Dr Elizabeth Stubbins Bates is a Junior Research Fellow in Law at Merton College, Oxford; an Early Career Fellow at the Bonavero Institute of Human Rights, and a Research Fellow at the Oxford Institute for Ethics, Law and Armed Conflict (ELAC). 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.
Dr Stubbins Bates is currently writing on international humanitarian law's norms of implementation and enforcement, synthesising the obligation to include IHL in military instruction and training with preventive obligations in command responsibility and subordinates' duties to disobey unlawful orders. Her impact projects and scholarly work also focus on the absence or neglect of monitoring mechanisms in international humanitarian law. As a response to failed diplomatic initiatives, she is establishing the Oxford Forum for International Humanitarian Law Compliance, a series of workshops for states to share their practice in IHL's norms of implementation and enforcement, while hearing research findings from scholars working on the same norms. The first of these workshops (scheduled for spring 2020) will be funded by a University Knowledge Exchange Seed Grant (2019-2020), and is supported by the Oxford Law Faculty and the Oxford Institute for Ethics, Law and Armed Conflict.
In 2018-2019, Dr Stubbins Bates's research on the UK Ministry of Defence's investigations into alleged torture and inhuman treatment in Iraq, and her doctoral work on the British Army's training in international humanitarian law were both cited in the Joint Alternative Civil Society Report to the UN Committee against Torture on the UK's 6th periodic report, with the former quoted in the Committee's Concluding Observations. She co-organised a conference at the Bonavero Institute to mark the first anniversary of the judgment in Alseran and Others v. Ministry of Defence in January 2019 (audio recordings here). Her research on the Ministry of Defence's closure of investigations into alleged torture and inhuman treatment was published by the International and Comparative Law Quarterly in July 2019. This article has been cited in non-governmental organisation submissions to the International Criminal Court Office of the Prosecutor in relation to its preliminary examination of the UK in Iraq.
Prior to her JRF at Merton, Dr Stubbins Bates's work had been published by the International Review of the Red Cross, the European Journal of International Law, International Legal Materials, and Oxford University Press. She has taught international law and human rights at SOAS, and at the London School of Economics and Political Science (LSE); and was the first David Davies of Llandinam Research Fellow at the LSE Department of International Relations. Prior to that, she was a legal adviser to a number of human rights non-governmental organisations, including Amnesty International. She holds a PhD from SOAS, University of London, an LL.M. from Harvard Law School, and a BA in Jurisprudence from Oxford.
- DOI: 10.1017/S002058931900023XThe 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).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.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).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.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).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.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.