The publications listed here represent a small selection of the work of staff members of the GCILS. To see full listings of publications please click through to the University of Glasgow main webpages in each individual staff member profile.

Discretion and the gravity of situations at the International Criminal Court

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This article offers a new perspective on the gravity notion in Article 17(1)(d) of the Statute. It demonstrates that it is impossible to determine gravity to ‘exacting legal requirements’, as the Pre-Trial Chamber in the situation of the registered vessels of the Union of the Comoros, Greece and Cambodia found. Instead, the Prosecutor is equipped with some ‘interpretative discretion’ that allows adjustment to the factually diverse situations that the International Criminal Court (icc) is confronted with. This form of discretion, however, is distinct from those procedural discretionary processes that have to be used to select which situations to investigate. Interpretative discretion nevertheless requires as much consistency as possible. As pathways to achieve that, this article challenges the concept of situational gravity. It further proposes to exclude any perpetrator-based element in the gravity assessment to harmonise the interpretation of gravity for potential and real cases before the ICC.

International Criminal Law Review / Volume 17 / Issue 5 / October 2017 / pp. 960-984

Burmych and ors v Ukraine, Judgment (striking out)

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Burmych and ors v Ukraine, Judgment (striking out) (‘Burmych’) is the latest in a series of European Court of Human Rights (‘ECtHR’ or ‘Court’) judgments concerning the systemic non-enforcement of domestic judgments in Ukraine. Between 2004 and 2009, non-enforcement of domestic final judicial decisions accounted for more than 300 violations being found against Ukraine. In the face of these repeat violations, in 2009 the Grand Chamber gave its pilot judgment of Ivanov v Ukraine (‘Ivanov’). At that time some 1400 similar applications were pending before the Court (see Ivanov, paras 83 and 86; see also Appendix to Interim Resolution CM/ResDH(2008)1; and Interim Resolution CM/ResDH(2009)159). Ukraine was one of the states with the highest number of pending cases (see Pending Applications Allocated to a Judicial Formation). The pilot judgement procedure, whereby the Court identifies a case or cases that are thought to be exemplary, was created as a means to tackle the backlog of cases that the Court continues to face.

Scott, D. (2018) Burmych and ors v Ukraine, Judgment (striking out), 12th October 2017. In: Oxford International Organization (OXIO). Oxford University Press.

Towards the ‘Golden Hour’?: A critical exploration of the length of preliminary examinations

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Over the years, the conduct of preliminary examinations has gained increasing importance at the International Criminal Court (ICC). One notable aspect in this area is the hugely diverging length of such examinations, ranging from one week for the situation in Libya to 12 years (and rising) for the situation in Colombia. This article critically interrogates the repeated claim of the Prosecutor that the absence of any provisions regulating the length of preliminary examinations was a deliberate decision of the drafters of the Rome Statute, leaving her with unfettered discretion in that area. Instead, it is suggested that the exercise of prosecutorial discretion in prioritizing preliminary examinations is legally limited through the obligation to ensure effective investigations, demanding reasonably swift responses because evidence vanishes over time — witnesses disappear, memories fade, and data gets lost (the ‘golden hour’ principle). Furthermore, the conduct of preliminary examinations is also limited through the legal and policy commitment to impartiality, including the appearance of impartiality. A robust debate about a structured and transparent process of prioritization at the preliminary examination stage is thus overdue. It is proposed that the Prosecutor should introduce a policy commitment to conclude preliminary examinations within a defined time limit. Such a policy would be an important step towards a more structured method of situation selection, and would reduce the possibility that decision-making processes in more contentious situations are postponed for obscure reasons.

Journal of International Criminal Justice / Volume 15 / Issue 3 / July 2017 / pp. 435-453

Humanizing the Laws of War: The Red Cross and the Development of International Humanitarian Law

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Over the past 150 years, the International Committee of the Red Cross (ICRC) has been one of the main drivers of progressive development in international humanitarian law, whilst assuming various roles in the humanization of the laws of war. With select contributions from international experts, this book critically assesses the ICRC's unique influence in international norm creation. It provides a detailed analysis of the workings of the International Red Cross, Red Crescent Movement and ICRC by addressing the milestone achievements as well as the failures, shortcomings and controversies over time. Crucially, the contributions highlight the lessons to be learnt for future challenges in the development of international humanitarian law. This book will be of particular interest to scholars and students of international law, but also to practitioners working in the field of international humanitarian law at both governmental and non-governmental organizations.

Andreas Zimmermann
Stefanie Haumer

Human Rights Watch v Secretary of State for the Foreign and Commonwealth Office : victim status, extraterritoriality and the search for principled reasoning

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In Human Rights Watch v Secretary of State for the Foreign and Commonwealth Office the UK Investigatory Powers Tribunal found that the relevant standard of ‘victim status’ that applies in secret surveillance cases consists in a potential risk of being subjected to surveillance and that the European Convention on Human Rights does not apply to the surveillance of individuals who reside outside of the UK. This note argues that the Tribunal's finding regarding the victim status of the applicants was sound but that the underlying reasoning was not. It concludes that the Tribunal's finding on extraterritoriality is unsatisfactory and that its engagement with the European Court of Human Rights case law on the matter lacked depth. Finally, the note considers the defects of the Human Rights Watch case, and the case law on extraterritoriality more generally, against the backdrop of the place of principled reasoning in human rights adjudication.

Modern Law Review, 80(3), pp. 510-524. (doi:10.1111/1468-2230.12268)

Lethal Autonomous Weapons Systems: Technology, Definition, Ethics, Law & Security

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The rapid evolution of new military technologies poses significant challenges. Autonomous weapons systems in particular are set to revolutionise the ways wars are fought. The trend towards gradually increasing autonomy in military systems in general and in weapons systems in particular will continue in the future. Various significant strategic and operational advantages are associated with autonomous weapons systems. They are far more capable to adapt to and cope with the complexity, accelerated pace and data processing requirements of the modern battlefield than human soldiers. Factors that may cause stress, wrong decisions, or excess in human soldiers such as fear, anger, or hatred are absent in a robot. And they can perform the dull, dirty, and dangerous tasks and do so without exhaustion or any imminent risk to human life. But the development towards autonomous weapons systems also carries significant risks. Concerns are varied and range from fears of a new arms race; qualms over unpredictable battlefield activities and resultant responsibility gaps; doubts as to these systems’ ability to reliably abide by international humanitarian and human rights law; to ethical concerns over a devaluation of human life and dignity if life and death decisions are ceded to algorithms. Against this background, this edited volume contains a collection of expert opinions delivered at the third CCW informal meeting of experts on lethal autonomous weapons systems in April 2016.