Elizabeth Stubbins Bates

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

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 th...

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 wrong-headed 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).

that the international legal order was once a unified, well-organized, legal order and is now threatened by the proliferation of international courts and tribunals. Obviously, that is a fiction in the sense that the international legal order was from the outset never unified and probably never will be, but rather has developed over time in an uncoordinated manner. In other words, the uncoordinated development of international law is the normal state of affairs in international law. Therefore, occasional divergent or conflicting rulings by different international courts or tribunals are not regarded as problematic. However, what is regarded as problematic are major systemic inconsistencies that affect the legal orders or regimes concerned in their proper functioning, development, and interaction with other legal orders or regimes. My research illustrates that while the various hard-law options in theory promise to be effective tools for regulating jurisdictional competition, the unwillingness of states to implement them by amending the relevant legal instruments essentially eliminates their practical use. Therefore, the solution depends on the judges and arbitrators and their willingness to apply the soft-law tools discussed above. Besides, the utilization of the res judicata and lis pendens principles, the general application of comity, in particular the Solange-method, appear to be effective tools for solving issues of jurisdictional competition in a systempreserving way. However, the Solange-method is only a ' 'voluntary restraint instrument'' whose application solely depends on the attitude and readiness of each and every court and tribunal. Nonetheless, it is argued that the Solange-method and, for that matter, judicial comity in general is part of the legal duty of each and every court to deliver justice. In doing so, taking due account of the existing jurisdiction of another court and subsequently drawing the conclusion of not exercising its own jurisdiction if the jurisdiction of another court is more appropriate, is of course a task that all courts and tribunals should perform. Indeed, justice is part of the rule of law, which is the most fundamental principle that underpins the belief in supranational and international cooperation and its advantages for individuals. Without a firm place of the rule of law at the supraand international level, the shift in sovereignty that we currently perceive in so many different facets will have few benefits for the individual. Thus, the challenge in each and every case is to-find an appropriate balance between the interests of the parties to a dispute, the institutional and systemic interests of the courts and tribunals, the legal orders and regimes involved, as well as the interests of the individuals concerned. The general application of comity, in particular the Sotange-method, can assist in finding this balance.

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 bes...

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 internat...

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).

Preface 1. Introduction: Terrorism in International Law 2. Counter-Terrorism in International Humanitarian Law 3. Counter-Terrorism in International Human Rights Law 4. Accountability 5. Victims' Rights to a Remedy and Reparation 6. Reform: Preventing Terrorism in Accordance with International Law 7. Conclusion and Recommendations Appendix Bibliography

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.