This research project (based at the Bonavero Institute of Human Rights, and led by Dr Elizabeth Stubbins Bates) is at the intersection of international human rights law and international humanitarian law, where the two co-apply in international or non-international armed conflict. Its premise is the relative lack of monitoring and enforcement mechanisms for international humanitarian law, where domestic prosecutions or litigation under international human rights law might fill the gap. Its research questions consider how and to what extent states are willing to investigate violations of international law in armed conflict, and how accurately international legal concepts are understood by governments and domestic courts. Further, it asks if states might prefer to emphasise policies to prevent future violations of international law in armed conflict (including reforms to military training in international humanitarian law) while neglecting their investigatory obligations. 

Publications

The first article for this project, published in 2019 by the International and Comparative Law Quarterly, focuses on the United Kingdom's investigations into alleged torture and inhuman or degrading treatment in Iraq. This article finds that the Ministry of Defence (MOD) closed many hundreds of these investigations on the assertion that the allegations of ill-treatment were 'less serious' or at a 'lower' or 'middle' range of severity. These terms usually appeared without reference to international law, and are once defined with reference to the English criminal law of assault, so that investigations were closed if the alleged treatment resulted in less than grievous bodily harm. This approach is conceptually underinclusive, and fails to grasp substantive and procedural obligations under international human rights law and international humanitarian law. 

The second article, on the British Army's Training in International Humanitarian Law, has been published by the Journal of Conflict and Security Law. This combines archival research with documentary analysis of training materials obtained by Freedom of Information request. The article finds that historically, implementation of the IHL training obligation was delayed; and that absent or perfunctory training correlated with patterns of torture and ill-treatment in British military detention from the 1950s to the 2000s. From 2012-2017, however, there were comprehensive reforms to the British Army's IHL training, following the Report of the Baha Mousa Public Inquiry, into the death of an Iraqi civilian in British military custody. Current training comprehensively implements the 71 recommendations of the Baha Mousa Public Inquiry which the MOD accepted. Yet there is no norm-by-norm evaluation of soldiers' and officers' understanding of the training materials; some IHL and IHRL prohibitions are under-emphasised or absent; and training reforms have been cited (without justification) as one reason to close pending investigations into alleged violations of international law in Iraq. 

The third article, now published in the European Human Rights Law Review, examines the UK’s approach to the obligation to conduct an effective investigation into alleged breaches of the right to life and the prohibition of torture, inhuman or degrading treatment or punishment under Articles 2 and 3 of the European Convention on Human Rights. The article finds evidence that the UK has sought to expand the dicta from Osman v United Kingdom that positive obligations should not be interpreted to impose an 'impossible or disproportionate burden' on domestic authorities, while under-emphasising the criteria for effective investigations. There are frequent, inappropriate references to 'proportionality' in the Ministry of Defence’s decisions to close hundreds of investigations of alleged unlawful killings, torture and ill-treatment in Iraq. The ECHR’s positive investigatory obligations do not allow the closure of investigations on unscrutinised proportionality grounds. The article highlights inconsistencies in domestic cases, and an undesirable divergence between these and the European Court’s jurisprudence. The article concludes that 'impossible or disproportionate burden' must be evidenced and narrowly construed.

Impact

This research project has had the following impact:

a) The Joint Civil Society Report to the UN Committee against Torture on the UK's 6th periodic report cited the first and second of these articles (from the International and Comparative Law Quarterly and the Journal of Conflict and Security Law). The Committee against Torture's Concluding Observations of May 2019 include an extract from the first article (para 32). In its response to these Concluding Observations, the UK denied that investigations had been closed owing to an 'arbitrary and conceptually under-inclusive ranking of their severity', quoting again from the article for the International and Comparative Law Quarterly, as cited in the Joint Civil Society Report. The Concluding Observations also include a recommendation, drawn from the article for the Journal of Conflict and Security Law, to '[d]evelop a methodology for assessing the effectiveness of training programmes' for the prevention of torture and ill-treatment (para 27(c)). 

b) The first and third articles were quoted in the December 2020 decision by the International Criminal Court Office of the Prosecutor (OTP) to close its preliminary examination into the situation of the UK in Iraq (paras 357-360, notes 578, 580, 582). The OTP used research findings from both articles in its bilateral correspondence and discussions with the UK authorities. The UK objected to the OTP's request for information on allegations which were not investigated further by the Iraq Historic Allegations Team (IHAT) and the Service Police Legacy Investigations (SPLI), but confirmed findings from the article for the International and Comparative Law Quarterly that investigations into 'low-level offences were dropped', retained only for contextual understanding and 'intelligence purposes' (para 359).  Drawing on Dr Stubbins Bates's article for the European Human Rights Law Review, the OTP noted its concerns about the UK's 'use of the proportionality criterion to dismiss such allegations without further investigations' (para 360), especially given the lack of publicly-available information to enable the OTP to analyse investigators' decision-making. A lack of transparency in states' investigations is a recurring theme in this research project. 

c) Dr Stubbins Bates co-authored a consultation response to MOD proposals in 2019 for a presumption against prosecuting historic offences allegedly committed by members of the armed forces. In 2020, she contributed to an All-Party Parliamentary Group (APPG) on Drones Virtual Briefing for Parliamentarians on the Overseas Operations (Service Personnel and Veterans) Bill 2019-2021. Her blog post for EJIL:Talk! argues that the Bill will not fulfil the government's intention to reassert the primacy of international humanitarian law over international human rights law. If enacted, the Bill risks impunity for international crimes, and could reinforce flawed investigatory practices, while undermining recent reforms to military training in international humanitarian law. Dr Stubbins Bates has argued that Schedule 1 to the Bill should be amended, so that the crime of torture, and crimes under the International Criminal Court Act 2001 should be exempt from the Bill's 'triple-lock' which is intended to render 'exceptional' historic prosecutions for crimes allegedly committed by service personnel or veterans overseas. 

Publications

  • E Stubbins Bates, 'Distorted Terminology: The UK’s Closure of Investigations into Alleged Torture and Inhuman Treatment in Iraq' (2019) 68 International and Comparative Law Quarterly 719
    DOI: 10.1017/S002058931900023X
    The UK Ministry of Defence (MOD) has closed hundreds of investigations into alleged ill-treatment of detainees by British troops in Iraq. This Article probes one reason given for the closure of these investigations: the assertion (without further evidence) that the allegations were ‘less serious’, ‘lower-level’ or in the ‘middle’ range of severity. These terms usually appear without reference to international law, and are once defined with reference to the English criminal law of assault, so that investigations were closed if the alleged treatment resulted in less than grievous bodily harm. The MOD’s terminology is wrongheaded and conceptually underinclusive: it fails to grasp the threshold of inhuman or degrading treatment in international human rights law (IHRL), and largely neglects the investigatory obligations in IHRL, international humanitarian law (IHL) and international criminal law (ICL).
  • Stuart Wallace, E Stubbins Bates and Noelle Quenivet, Legal Protections for Armed Forces Personnel and Veterans serving in operations outside the United Kingdom: Response to Public Consultation Questionnaire (Ministry of Defence Public Consultation 2019)
    The UK Ministry of Defence announced a public consultation in July 2019. Its first proposal was a statutory 'presumption against prosecution of current or former Armed Forces personnel for alleged offences committed in the course of duty outside the UK more than ten years ago' where previous investigations had not resulted in prosecution. The Ministry of Defence intended to 'raise the threshold to be applied by prosecutors when considering whether a prosecution is genuinely in the public interest in such cases.' Investigations might be re-opened, on these proposals, only in exceptional circumstances, such as the emergence of new evidence. In response, we argue that these proposals will not remove the uncertainty ex-service personnel face regarding investigations and potential prosecutions for alleged historical crimes during extra-territorial military operations. The proposed measures, analogous as they are to time bars, amnesties and other impediments which limit criminal proceedings for historical crimes, would be incompatible with the UK's obligations under international human rights law, international humanitarian law and international criminal law. The proposals cannot remove the possibility that service personnel will be tried before the International Criminal Court or in other jurisdictions. The proposed measures are also unduly restrictive of the circumstances in which investigations can be re-opened by the State and the UK’s track record in investigating alleged wrongdoing during extra-territorial military operations is poor. The combination of these two factors is a serious cause for concern and may create perverse incentives, where poor investigations are conducted in the future, followed by reliance on the presumptions proposed.
  • E Stubbins Bates, 'The British Army's Training in International Humanitarian Law' (2020) 25 Journal of Conflict and Security Law 291
    DOI: https://doi.org/10.1093/jcsl/kraa006
    States must disseminate international humanitarian law (IHL) and integrate it into military instruction. Implementation of the IHL training obligation was delayed in the UK; when the government asserted that IHL was inapplicable to colonial warfare, resisted the development of the IHL of non-international armed conflict, and was keen to maintain the nuclear deterrent. Absent or perfunctory IHL training correlated with recurrent violations of the prohibitions of torture and inhuman treatment, from the 1950s to the 2000s. Despite official assertions that the British Army’s training in IHL was being reformed following the death of Baha Mousa in British military custody in 2003, there were gradual changes from 2004 to 2011, and more thorough improvements from 2012 to 2017. Training materials for soldiers and officers now offer breadth and detail on IHL, with elements of international human rights law. They implement the 71 recommendations in the Baha Mousa Public Inquiry Report which the Ministry of Defence accepted, and are supplemented by practical training. Yet these are reactive reforms, which still lack norm-by-norm evaluation of soldiers’ understanding. Prohibitions on humiliating or degrading treatment of a sexual nature, and on the intentional infliction of severe mental pain and suffering are (respectively) under-emphasised and absent. References to the necessity of restraint positions (as opposed to the prohibited stress positions) may cause confusion. There is a simplistic suggestion that reprisals are lawful if they are politically authorised. Training reforms have been cited as one reason to close criminal investigations into alleged war crimes: a response which neglects coexistent investigatory obligations.
  • E Stubbins Bates, '"Impossible or Disproportionate Burden": The UK's Investigations under Articles 2 and 3 ECHR' (2020) European Human Rights Law Review 499
    In this article, I argue for a rigorous engagement by the UK executive and domestic courts with the European Court of Human Rights’ development of the positive investigatory obligation under arts 2 and 3 of the European Convention on Human Rights (ECHR). The UK has sought to expand the dicta from Osman v United Kingdom that positive obligations should not be interpreted to impose an “impossible or disproportionate burden” on domestic authorities, while under-emphasising the criteria for effective investigations. There are frequent, inappropriate references to “proportionality” in the Ministry of Defence’s decisions to close hundreds of investigations of alleged unlawful killings, torture and ill-treatment in Iraq. The ECHR’s positive investigatory obligations do not allow the closure of investigations on unscrutinised proportionality grounds. This article highlights inconsistencies in domestic cases, and an undesirable divergence between these and the European Court’s jurisprudence. “Impossible or disproportionate burden” must be evidenced and narrowly construed.