Biography

Dr Elizabeth Stubbins Bates is an Early Career Fellow at the Bonavero Institute of Human Rights, and in 2021-2022, Vice-Chancellor's Research Fellow in Law at Oxford Brookes University. From 2018-2021, she was Junior Research Fellow in Law at Merton College, Oxford. Her research is at the intersection of international humanitarian law (IHL) and international human rights law (IHRL); the prevention, investigation and prosecution of violations of international law in armed conflict.

Her forthcoming monograph, A Framework for Compliance in International Humanitarian Law, will be published by Hart in 2022. Dr Stubbins Bates's research has been published in the International and Comparative Law Quarterly, the Journal of Conflict and Security Law, the European Human Rights Law Review, the International Review of the Red Cross, the European Journal of International LawInternational Legal Materials, and by Oxford University Press. She is on the Editorial Board of the Journal of Human Rights Practice

Her work has been cited by the International Criminal Court Office of the Prosecutor, by the International Committee of the Red Cross's Updated Commentary to the Four Geneva Conventions 1949, and by the UN Committee against Torture. She is part of an expert panel for the All-Party Parliamentary Group on Drones and has submitted expert evidence to the Joint Committee on Human Rights. She established the Oxford Forum for International Humanitarian Law Compliance, a series of video conversations between researchers and military legal advisers and representatives of the International Committee of the Red Cross (ICRC) about military training and compliance in IHL. 

Dr Stubbins Bates has taught at the London School of Economics and Political Science (LSE), SOAS, University of London, the University of Oxford, and the Academy of European Law (European University Institute). She holds an AHRC-funded PhD from SOAS, University of London, an LL.M. from Harvard Law School, a BA in Jurisprudence from Oxford, and is a Fellow of the Higher Education Academy. 

Recent Publications and Impact

Oxford Law Faculty Impact Story 2019

SSRN 

Twitter: @estubbinsbates

Publications

Selected publications

  • 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.
  • 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, '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).

Internet Publication (7)

E Stubbins Bates, 'From Multilateralism to Minilateralism in International Humanitarian Law Compliance' (2021) EJIL:Talk EJIL:Talk
Geneva law (the Four Geneva Conventions 1949 and their Additional Protocols 1977 and 2005) has few compliance mechanisms. As I argued in my introduction to this blog series, IHL has an enduring compliance problem. This is because of 1. IHL’s contested primary norms combined with high stakes in the event of their misinterpretation, 2. its delegation of obligations to individual soldiers and armed group fighters, and 3. its history of confidential diplomacy between states and the ICRC or states and their allies, combined with multilateral monitoring initiatives that are either never agreed (such as the ICRC/Swiss Strengthening Compliance Initiative: Zegenhagen and Meyer) or fall into disuse (Protecting Powers, the enquiry mechanism, and the meetings of states foreseen by Art 7 Additional Protocol I). Geneva law’s compliance mechanisms apply only to international armed conflicts (with the possible exception of the IHFFC). This post critically evaluates the Intergovernmental Process, the ‘Bringing IHL Home’ resolution, and current diplomatic initiatives on IHL. I ask why multilateral compliance initiatives in IHL are repeatedly difficult, when the Four Geneva Conventions 1949 have been universally ratified, and their Additional Protocols enjoy majority support. I locate the answer in two trends: first, states’ longstanding preferences to exclude civil society from norm-creation, interpretation and monitoring in IHL; and second: fractures in multilateral decision-making, so that ‘minilateral’ initiatives (led by one or several willing states, in dialogue with civil society) take their place.
E Stubbins Bates, 'Joint Symposium: Oxford Forum for International Humanitarian Law Compliance' (2021) EJIL:Talk and Articles of War
The word ‘compliance’ is disconcerting in its benevolence, as is the ‘humanitarian’ in international humanitarian law (IHL). Both terms hide what IHL permits – killing and destruction within certain limits – in its malleable balance between military necessity and the principle of humanity (Weizman, Scarry, af Jochnick and Normand). IHL allows the death of combatants and the destruction of military targets, but prohibits the targeting of non-combatants, offering protections to the wounded, shipwrecked and prisoners of war. As Benvenisti explains (echoing Luban), the choice between ‘international humanitarian law’ or the ‘law of armed conflict’ is code for opposing ‘camps’, where labels are clues for interpretive preferences. Yet ‘compliance’ can also be diplomatic doublespeak: states which participate in multilateral fora on IHL compliance might demonstrate their humanitarian credentials while also supplying ‘weapons and other forms of military and security assistance’ to states and armed groups which violate IHL. For the protection of civilians, civil society organizations argue that ‘compliance with the law is the bare minimum’. Compliance scholars are humanitarian idealists. We emphasise IHL’s norms of restraint, and the obligations of implementation and enforcement that persist even in peacetime. These include dissemination and military instruction in IHL norms, the obligation to ‘respect and ensure respect’ for the Four Geneva Conventions and their Additional Protocols, ‘in all circumstances’, and the requirement to criminalise, prosecute or extradite those suspected of grave breaches of the IHL in international armed conflict; Additional Protocol I’s provisions on legal advisers, and on commanders’ responsibility to prevent and suppress breaches of Geneva law.
E Stubbins Bates, 'Unpacking the Potential of “Ensure Respect” in Common Article 1' (2020) Just Security
The obligation to ‘respect and ensure respect’ for Geneva law ‘in all circumstances’ has been interpreted with breadth and depth in the Updated Commentary to the Third Geneva Convention. While the inter-state due diligence obligation crafted in the Commentary has a doubtful legal basis, and is unlikely to be universally implemented; the Commentary offers a blueprint for IHL’s implementation and enforcement. Debates on the legal basis of the ICRC’s outward-facing due diligence reading of ‘ensure respect’ should not be a distraction from the potential of the Updated Commentary for IHL compliance, and more can be done to unpack its potential to improve the protection of prisoners of war.

Report (8)

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.
Sarah Williams, Matthew Cross and E Stubbins Bates, Implementation of International Humanitarian Law and International Human Rights Law in the United Kingdom (Study Commissioned by the European Commission as part of the ATLAS Project 2009)
E Stubbins Bates, Occupation, armed conflict and the legal aspects of the relationship between Israel, the West Bank, and the Gaza Strip: A resource for practitioners (HPCR Policy Brief 2008)
E Stubbins Bates, From Legal Theory to Policy Tools: International Humanitarian Law and International Human Rights Law in the Occupied Palestinian Territory (HPCR Policy Brief 2007)

Journal Article (6)

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.
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, '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).
E Stubbins Bates, 'Towards Effective Military Training in International Humanitarian Law' (2015) 96 International Review of the Red Cross 795
The obligation to train troops in international humanitarian law (IHL) is simply stated and its implementation delegated to State discretion. This reflects a past assumption that mere dissemination of IHL would be an effective contribution to the prevention of violations. Academic literature has evolved so that dissemination alone is now known to be insufficient for compliance, while the ICRC's integration model emphasizes the relevance of IHL to all aspects of military decision-making. A separate process, the ICRC/Government of Switzerland Initiative on Strengthening Compliance with IHL, is still in its consultative stages at the time of writing, but may result in voluntary State reporting and/or thematic discussions at meetings of States. This article synthesizes academic and practitioner insights on effective IHL training, and suggests a collaborative rubric for informative, standardized reporting on IHL training. Such a rubric could enable States and researchers to share best practice and future innovations on IHL training, using a streamlined, cost-effective tool.
E Stubbins Bates, 'Sophisticated Constructivism in Human Rights Compliance Theory' (2014) 25 European Journal of International Law 1169
DOI:
In recent decades, there has been an increase in the volume and sophistication of works on compliance theory in international law in general,1 and in human rights in particular.2 This body of work is interdisciplinary, influenced by political science and international relations in substance and method.3 The typology of compliance theories, once formed of several separate strands,4 coalesced into two duelling perspectives. These were broadly characterized by rational choice approaches, focused on hegemony, sanctions, incentives, and material self-interest, with Andrew T. Guzman’s addition of reputational concerns;5 and constructivist approaches, which argue that repeated interactions, argumentation, and exposure to norms characterize and construct state practice.6 Each of the three works reviewed in this essay critically engages with constructivist research and incorporates some analysis of material incentives, suggesting that constructivism is eclectic and rigorous, willing to debate its own assumptions. Taken together, their contributions are evidence of modern constructivism’s sophistication and methodological breadth.

Case Note (3)

E Stubbins Bates, 'Hassan v United Kingdom (European Court of Human Rights)' (2015) 54 International Legal Materials 83 [Case Note]
On September 16, 2014, the Grand Chamber of the European Court of Human Rights (the Court) gave its judgment in the case of Hassan v. United Kingdom.This is the Court’s first explicit engagement with the co-applicability of international humanitarian law and international human rights law in relation to detention in international armed conflicts. The judgment is significant for its rejection of the government’s argument that international humanitarian law operates as lex specialis to displace international human rights law entirely during the “active hostilities phase of an international armed conflict.” It is also noteworthy for the majority’s ruling that provisions on detention of prisoners of war and the internment of protected persons in the Third and Fourth Geneva Conventions of 1949 could be read into Article 5 (right to liberty and security) of the European Convention on Human Rights (the European Convention), creating a new ground for detention under Article 5(1) in international armed conflicts and modifying the procedural guarantees in Article 5(4).
E Stubbins Bates, 'Marguš v. Croatia (European Court of Human Rights)' (2014) 53 International Legal Materials 751 [Case Note]
On May 27, 2014, the Grand Chamber of the European Court of Human Rights rendered its judgment in the case of Marguš v. Croatia. The applicant, who had served in the Croatian Army, was convicted of war crimes in 2007, following an earlier decision in 1997 to grant him amnesty for these crimes. A majority of the Grand Chamber drew on Articles 2 and 3 of the European Convention of Human Rights (the Convention) and general international law to argue that Article 4 of Protocol No. 7 of the Convention (the right not to be tried or punished twice) was inapplicable in these circumstances and that the applicant’s claim on this point was inadmissible. The Grand Chamber also ruled that there had been no violation of Article 6 of the Convention (the right to a fair trial).
E Stubbins Bates, 'Situation in Kenya, Prosecutor v. Muthaura, Kenyatta & Ali (International Criminal Court Appeals Chamber)' (2012) 51 International Legal Materials 17 [Case Note]
On August 30, 2011, a majority of the Appeals Chamber of the International Criminal Court (‘‘ICC’’) rejected the appeal of the Government of Kenya to the earlier admissibility decision of Pre-Trial Chamber II in the case of Prosecutor v. Francis Kirimi Muthaura, Uhuru Muigai Kenyatta and Mohammed Hussein Ali, one of two cases arising from the ICC’s investigations into crimes against humanity committed during the 2007 post-election violence in Kenya.

Other (2)

Book (1)

Research projects