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

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.

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Robin Geiß, Andreas Zimmermann and Stefanie Haumer

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.

International Investment Law and the Global Financial Architecture

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This book addresses how international investment law interacts with the (re-)regulation of financial and capital markets, in particular in the sovereign debt and banking sectors. It considers where the line should be drawn between legitimate regulation and undue interference with investor rights and, equally importantly, who draws it.

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Christian J Tams, Stephan W. Schill and Rainer Hofmann

The ECHR and Human Rights Theory: Reconciling the Moral and the Political Conceptions

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The European Convention of Human Rights (ECHR) has been relatively neglected in the field of normative human rights theory. This book aims to bridge the gap between human rights theory and the practice of the ECHR. In order to do so, it tests the two overarching approaches in human rights theory literature: the ethical and the political, against the practice of the ECHR ‘system’. The book also addresses the history of the ECHR and the European Court of Human Rights (ECtHR) as an international legal and political institution. The book offers a democratic defence of the authority of the ECtHR. It illustrates how a conception of democracy – more specifically, the egalitarian argument for democracy developed by Thomas Christiano on the domestic level – can illuminate the reasoning of the Court, including the allocation of the margin of appreciation on a significant number of issues. Alain Zysset argues that the justification of the authority of the ECtHR – its prominent status in the domestic legal orders – reinforces the democratic process within States Parties, thereby consolidating our status as political equals in those legal and political orders.