'Nuff said

(Taking context-optional note of thought-provoking quotes)

'What Congress member is going to want to spend their political capital on passing a bill to pay money to suspected terrorists?'

-- IntLawGrrl Jenny S. Martinez right), on the slim chance of U.S. compensation for post-9/11 detainees, in a Wall Street Journal article about yesterday's news that Britain will pay about a half-dozen ex-detainees a settlement to end challenges to Britain's role in how the men were treated at Guantánamo.

Suppressing Maritime Piracy: What Are The Options?

Further to Diane's post below, this post is to call attention to a report produced by the ASIL, the Academic Council on the UN System (ACUNS) and the One Earth Future Foundation on international piracy. The report grew out of a conference on the topic, details of which are here and here. (I was a participant along with American Society of International Law Executive Director Betsy Andersen). The conference and report focused on the following topics:

• Can the crime of piracy be added to the jurisdiction of the ICC? If so, what is the process for doing so?
• Given the politics around the 2010 ICC review conference (the possibility that the crime of aggression will be added to the ICC’s jurisdiction; the desire on the part of some to add terrorism), how likely is it that the ICC might try pirates in the near future?
• What are the same possibilities for the Law of the Sea Tribunal?
• What are the advantages and disadvantages of using (third party) national governments to try apprehended pirates? How might universal jurisdiction work in practice with regard to the crime of piracy in the current era?
• What alternative governance options exist to prosecute pirates?
• What are the prospects for a special tribunal on piracy? How might this be established? By whom or under whose auspices? Through what processes?

My presentation focused on the international/hybrid tribunal option and discussed the different modalities by which international or hybrid tribunals have been established in the past:

• by coercion through the Security Council (ICTY & ICTR)),
• by consent with a host government (SCSL, ECCC, STL), or
• as part of a transitional administration (Special Panels in East Timor & Kosovo).

I also discussed potential regional and bilateral arrangements as well as other cooperative arrangements among affected states (along the lines of the mixed antislavery commissions of the 19th century, which IntLawGrrl Jenny Martinez (right) has written about, or the Lockerbie Tribunal). My presentation argued that given the vagaries of incorporation of the piracy prohibition into domestic law and the demonstrated inability and unwillingness of states to aggressively prosecute offenders, the international community needs a more comprehensive regime to effectively prosecute acts of piracy to supplement the cooperative military and preventative responses to date.
The Security Council's action is indeed welcome. Interestingly, so far, the Council has been careful not to identify piracy per se as a threat to the peace. In the Somalia resolutions, the Council designates the situation in Somalia as the threat that is exacerbated by piracy. Several states (including South Africa) are on record opposing the idea that piracy per se constitutes a threat to the peace. China has taken the opposite position. In its Resolution 1918, the Council asks the Secretary General to report on options

to further the aim of prosecuting and imprisoning persons responsible for acts of piracy and armed robbery at sea.

No doubt the ASIL/ACUNS/OEF report will feature prominently in this research. Check it out!

Women @ ASILter

As we have each year since our founding (here and here), IntLawGrrls is proud today to highlight women who will speak at the forthcoming annual meeting of the American Society of International Law.

This 103d gathering of the Society, entitled International Law as Law, will be held next week, March 25-28, at the Fairmont Hotel in Washington, D.C.

Delighted to see from the program that there's much diversity in topics and presenters. As has been the case in recent years, virtually all panels have at least 1 woman participating, and that many have more (those few that do not include women do not, alas, receive mention in this list). Especially proud that so many persons featured are IntLawGrrls or IntLawGrrls guest alumnae -- foremost among them, of course, ASIL President Lucy Reed (right). Kudos to the Program Committee Co-Charis, our colleagues Anthea Elizabeth Roberts, Stephen Mathias, and Carlos Manuel Vázquez!

Without further ado, here's this year's honor roll:

Wednesday, March 25, 8:30 a.m.-12 noon

► "Intellectual Property Rights in China: Reflections and Directions": Victoria Espinel (George Mason) and Tracy-Gene Durkin (Sterne Kessler Goldstein & Fox), panelists; Elizabeth Chien-Hale (Institute for Intellectual Property in Asia), moderator.

Wednesday, March 25, 3-4:30 p.m.

► "Whither the Law of War for the U.S.?": Ashley Deeks (U.S. Department of State), panelist.
Wednesday, March 25, 4:30-6 p.m.

► Dinah Shelton (George Washington) will serve as discussant for the Grotius Lecture, "Focusing on the Good or the Bad: What Can International Environmental Law Do to Accelerate The Transition Towards A Green Economy?"

Thursday, March 26, 9-10:30 a.m.

► "A Comparative Look at Domestic Enforcement of International Tribunal Judgments": Lori Fisler Damrosch (Columbia) and Ingrid Wuerth (Vanderbilt), panelists.

► "Responsibility to Protect in Environmental Emergencies": Linda Malone (William & Mary), panelist; Gwen K. Young (Bill & Melinda Gates Foundation), moderator.

► "Feminist Interventions: Human Rights, Armed Conflict and International Law": Doris Buss (Carleton, Canada), Janet Halley (Harvard), Ratna Kapur (Centre for Feminist Legal Research), panelists; Vasuki Nesiah (International Center for Transitional Justice), moderator.

► "New Voices: Rethinking the Sources of International Law": IntLawGrrl guest/alumna Annecoos Wiersema (Ohio State), panelist.

Thursday, March 26, 10:45 a.m.-12:15 p.m.

► "Medellin v. Texas and the Self-Execution of Treaties": Avril Haines (U.S. Department of State) and H. Kathleen Patchel (Indiana-Indianapolis), panelists.

► "Piracy Off of Somalia: the Challenges for International Law": Katharine Shepherd (British Foreign & Commonwealth Office) and Malvina Halberstam (Cardozo), panelists.

► "The United States and the Post-Kyoto Climate Change Treaty": Jennifer Haverkamp (Environmental Defense Fund), panelist; Cymie Payne (California-Berkeley), moderator.

► "The Principle of Legality in International Criminal Law": Elisa Massimino (Human Rights First), and IntLawGrrl Beth Van Schaack (Santa Clara), panelists.

► "In What Sense is International Law Law?": Antonia Chayes (Tufts), panelist.

Thursday, March 26, 12:30-2:30 p.m.

► Women in International Law Interest Group Luncheon: Judge Unity Dow (right), High Court of Botswana, speaker and recipient of the annual Prominent Women in International Law Award.
Thursday, March 26, 1-2:30 p.m.

► Book Discussion Featuring 2009 Winner of the ASIL Certificate of Merit for Creative Scholarship: IntLawGrrl guest/alumna Mary Ellen O'Connell (Notre Dame), panelist.

► "Multilateralizing Regionalism and the Future Architecture of International Trade Law as a System of Law": Alberta Fabbricotti (University of Rome), Gabrielle Marceau (University of Geneva and Cabinet of the WTO Director-General), and Kati Suominen (Inter-American Development Bank), panelists; Amelia Porges (Sidley Austin), moderator.

► "Closing Guantánamo: The Legal and Policy Issues": Deborah Pearlstein (Princeton) and Joanne Mariner (Human Rights Watch), panelists.
Thursday, March 26, 2:15-3:45 p.m.

► "Is Legal Empowerment Good for the Poor?": Christina Biebesheimer (World Bank) and Kerry Rittich (University of Toronto), panelists; Anne Trebilcock (International Labor Organization), moderator.

Thursday, March 26, 2:45-3:45 p.m.
► Annual General Meeting of the Society, featuring election of officers and presentation of Society awards and honors, among them the medal named after Goler Teal Butcher (an IntLawGrrls transnational foremother), to Mónica Pinto (left) of the University of Buenos Aires.

Thursday, March 26, 3-4:30 p.m.

► "Teaching International Law Interest Group Meeting: Using Simulations to Enhance International Law Teaching": Cindy Buys (Southern Illinois), panelist.

Thursday, March 26, 5-6:30 p.m.

► Plenary: "The United States and International Law During the Obama Administration: Executive and Legislative Perspectives": Joan Donoghue and Anne-Marie Slaughter (both U.S. Department of State), panelists.

Friday, March 27, 9-10:30 a.m.

► "Is the UN Security Council Bound by Human Rights Law?": Vera Gowlland-Debbas (Graduate Institute of International and Development Studies) and Gráinne de Búrca (Fordham), panelists.

► "The Impact of International Criminal Proceedings on National Prosecutions in Mass Atrocity Cases": Marieke Wierda (International Center of Transitional Justice) and Olivia Swaak-Goldman (International Criminal Court, Office of Prosecutor), panelists.

► "Judging International Law as Law": Judge Rosemary Barkett (left) (U.S. Court of Appeals for the Eleventh Circuit), Judge Unity Dow (above right) (High Court of Botswana), and Chief Justice Margaret Marshall (right) (Supreme Judicial Court of Massachusetts), panelists.

► "New Voices: Issues in the Human Side of International Law": Janina Dill (Oxford), Angela Banks (William & Mary), and IntLawGrrl Hari M. Osofsky (Washington & Lee), panelists.

► "Governing Through Indicators": Leslie Benton (Transparency International) and Sally Engle Merry (New York University), panelists.
Friday, March 27, 10:45 a.m.-12:15 p.m.

► Jane Stromseth (Georgetown) will serve as discussant for a lecture entitled "Transatlantic Views of International Law: Cooperation and Conflict in Hard Times."

► "The Security Council and the Rule of Law": Christine Gray (Cambridge) and Kim Lane Scheppele (Princeton University), panelists.

► "The Future of Corporate Accountability for Violations of Human Rights": Lisa Misol (Human Rights Watch) and IntLawGrrl Christiana Ochoa (Indiana-Bloomington), panelists; Penelope Simons (University of Ottawa), moderator.

► "Challenges of Transnational Legal Practice: Advocacy and Ethics": Laurel Baig (International Criminal Tribunal for the former Yugoslavia, Office of the Prosecutor) and Laurel Terry (Penn State), panelists; Catherine Rogers (Penn State), moderator.

► "The Cutting Edge": Karen Knop (University of Toronto), Katerina Linos (Harvard Society of Fellows), and Gabriella Blum (Harvard); Anthea Elizabeth Roberts (London School of Economics), moderator.

Friday, March 27, 12:15-2:45 p.m.

► "Research Showcase: Poster Session": IntLawGrrls guest/alumna Alessandra Arcuri (University of Rotterdam), IntLawGrrl Karen E. Bravo (Indiana-Indianapolis), Melissa Casagrande (McGill), Susan Franck (Washington & Lee), Diane Frey (London School of Economics), M. Florencia Guerzovich (Northwestern University), Claire Kelly (Brooklyn Law School), and Elizabeth Stubbins Bates (London School of Economics).

Friday, March 27, 1-2:30 p.m.

► "Mapping the Future of Investment Treaty Arbitration as a System of Law": Gabriela Alvarez-Avila (Curtis, Mallet-Prevost) and Yas Banifatemi (Shearman & Sterling), panelists; IntLawGrrl Lucy Reed (top right) (Freshfields Bruckhaus Deringer and ASIL President), moderator.

► "Irresponsible Arms Trade and the Arms Trade Treaty": Rachel Stohl (Centre for Defense Information), panelist.
► "Anthropological Perspectives on Human Rights Law and Lawyers": Kamari Clarke (Yale), Laura Dickinson (Arizona State), and Ann Janette Rosga (Women's International League for Peace & Freedom), panelists.

► "International Environmental Law Interest Group Meeting: Scientific Whaling and International Law": Laurence Boisson de Chazournes (University of Geneva), speaker.
Friday, March 27, 2:45-4:15 p.m.

► "International Law and the "War on Terror:" A Look Back": IntLawGrrl Jenny S. Martinez (Stanford) and Julia Tarver Mason (Paul, Weiss, Rifkind, Wharton & Garrison), panelists.

► "Border Tax Adjustments: Climate Change, the WTO, and New Tools for International Environmental Law-Making": Ellen Hey (Erasmus University) and Laura Nielsen (University of Copenhagen), panelists.

► "Visions of International Law: Insights from Normative Theory": IntLawGrrls' guest/alumna Mary Ellen O'Connell (Notre Dame); Dianne Otto (Melbourne), panelists.

► "U.S. Implementation of the 2005 Hague Convention on Choice-of-Court Agreements (Resource Session)": Louise Ellen Teitz (Roger Williams), panelist.

Friday, March 27, 4:30-5:45 p.m.

► Plenary: "International Law as Law at the International Court of Justice": IntLawGrrl Lucy Reed (top right) (Freshfields Bruckhaus Deringer and ASIL President), moderator.

Friday, March 27, 6:30-11 p.m.

► ASIL-ILSA Dinner Celebrating the Jessup Competition 50th Anniversary: Judge Rosalyn Higgins (left) (former President of the International Court of Justice), speaker.

Saturday, March 28, 9-10:30 a.m.

► "Changing Concepts of State Sovereignty": Rosa Brooks (Georgetown) and Ruti Teitel (New York Law School), panelists; Judge Rosalyn Higgins (left) (former President of the International Court of Justice), commentator; Oona Hathaway (California-Berkeley), moderator.

► "Learning from Doha: Can 'Development' be Operationalized in International Economic Law?": Uche Ewelukwa (Arkansas), panelist.

"Evolutions of the Jus ad Bellum: The Crime of Aggression": Jutta Bertram-Nothnagel (Permanent Representative of the Union Internationale des Avocats to the United Nations) and Elizabeth Wilmhurst (Royal Institute of International Affairs at Chatham House), panelists.

Details and registration for this year's annual meeting are here.

Go On! Future of International Criminal Justice

(Go On! is an occasional item on symposia of interest) On March 13-14, Santa Clara University School of Law will host a symposium and experts' round table to discuss "The Future of International Criminal Law." The event is free and is co-sponsored by the American Society of International Law and its ASIL-West contingent.
The symposium will featured panels on:
► The International Crimes of Terrorism;
► Complementarity and the International Criminal Court;
► Universal Jurisdiction; and
► Systemic Criminality.
It will conclude with a roundtable discussion in which panelists will explore how the international legal system may better achieve the goals of international criminal law.
Professor M. Cherif Bassiouni (right) will provide the keynote address. The symposium will feature several Int'l Law Grrls members, alumnae, and visitors, including Naomi Norberg, Luz Estella Nagle (left), and Jenny Martinez (below right). Additional participants include Linda Carter, Jordan Paust, Payam Ahkavan, Steve Vladeck, Michael Scharf, Wolfgang Kaleck, Laura Dickinson, Jamie Mayerfeld, Allison Danner, Dapo Akande, Mark Drumbl, Andre Nollkaemper, Julian Ku, Allen S. Weiner and Almudena Bernabeu along with David Sloss and me from Santa Clara. Click here for a full schedule of events.
The symposium's theme is described below:

The international criminal proceedings held in Nuremberg and Tokyo following a global war of catastrophic proportions are credited with launching the modern regime of international criminal law. After a Cold War hiatus, the international community began to build upon this revolutionary postwar legacy in significant ways. Key events are the 1994 establishment of the first ad hoc criminal tribunal, the 1998 launch of a permanent International Criminal Court in The Hague; the 1998 arrest of General Augusto Pinochet of Chile [below left] in the United Kingdom in response to an arrest warrant from Spain for him to stand trial for torture, genocide, and other international crimes over which Spain asserts universal jurisdiction; and the 1999 indictment of President Slobodan Miloševic, the first against a sitting head of state.
Notwithstanding these important developments, progress toward a more comprehensive system of international justice has not been linear or continuous.
Rather, it has featured a number of oversteps and backslides that include the failure of international troops and domestic officials to arrest key indicted war criminals from the Yugoslav war; the in absentia indictment in Belgium of high-level political figures from powerful states, which resulted in an international backlash and a contrite amendment of Belgium’s universal jurisdiction law; the failure of the East Timor Special Panels to gain jurisdiction over any defendants of real consequence as a result of Indonesian obstructionism and international neglect; and the summary execution of Saddam Hussein [below right] after a controversial trial and while important charges remained pending against him. Most important, perhaps, the tragic events of September 11, 2001, led to the creation of "legal black holes" at Guantánamo and elsewhere where pure power for a time had all but eclipsed law.
It cannot be gainsaid that international criminal law has become a regular feature of international relations and part of the repertoire of any transitional government moving from a period of repression and state terror to one in which the rule of law can take root. At the same time, international criminal law is also invoked outside of conflict zones in states with transient custody over offenders, but scant other connection to the crimes in question. Even more controversially, states have attempted to assert jurisdiction over individuals who are not in their custody and who have never stepped foot on their territories. These expansive assertions of international and extraterritorial jurisdiction are not without their detractors. In these varied contexts, international actors do not resort to international criminal law in a vacuum. Rather, choosing to implement a regime of international criminal justice
is a political choice, among other available and competing political choices. As such, it is impossible to consider international criminal law without also invoking issues of state sovereignty, national security, and the exercise of power in international relations.
Given the centrality of institutions and processes of international criminal justice to contemporary public international law and international relations, this conference brings together leading academic and practitioners to discuss cutting edge issues associated with international criminal law and its enforcement. These topics include the controversial exercise of universal jurisdiction, the principle of complementarity before the International Criminal Court, responses to collective and systemic criminal behavior, and the contested crimes of terrorism. Our perspective is expressly forward looking in an effort to anticipate where the field is going in light of its current manifestations.

We welcome your contributions to our symposium and hope to see you there! Registration is helpful, so that we have enough food.

Scholars state detention changes

Seems everyone has notions these days about how to close the detention camp for terrorist suspects that the Bush Administration opened on January 11, 2002. Some are included in a report by a coalition of more than 20 organizations, entitled Liberty and Security: Recommendations for the Next Administration and Congress. IntLawGrrls’ own Fiona de Londras, in an excellent post, recently offered hers. I’ve my own, too, and will post them in due course. They begin with a pre-eminent concern, on which I posted more than a year ago. In closing Guantánamo as he has promised to do, the new President also must close “Guantánamo” – the abusive policies of detention, interrogation, and rendition now given that metaphoric label even if in point of fact they occur far away from the 45 square miles that comprise the U.S. naval base at Guantánamo Bay. (12/08 photo of Camp Justice, Guantánamo Bay, Cuba, by Diane Marie Amann)
Today’s post is intended to point readers to the Scholars’ Statement of Principles for the New President on U.S. Detention Policy: An Agenda for Change. Drafted by our colleague Catherine Powell, also author of a human rights Blueprint on which we’ve posted, and signed by more than 2 dozen other scholars, among them yours truly, IntLawGrrl Jenny Martinez, and our colleagues Fionnuala Ní Aoláin, Sarah H. Cleveland, Deborah Pearlstein, Hope Metcalf, Martha Minow, Judith Resnik, Margaret L. Satterthwaite, and Ruti Teitel. The Statement begins with an explication of how “the existing detention system,” -- “viewed as unprincipled, unreliable, and illegitimate” -- “undermines our national security.” It then sets forth 4 principles on which any new policy ought to be based:
► Observe the rule of law
► Liberty is the norm
► Individualized process
► Transparency
Then follows a host of recommendations for the new administration. As one would expect, it calls on the President to “Close Guantánamo” – to close it in the broader sense. Detainees who can be released are to be released; those should be prosecuted are to be transferred to the United States for prosecution before “established U.S. courts,” and not the military commissions. The Statement urges the Administration to attend to U.S. detention at other sites, “primarily in Iraq and Afghanistan.” It calls for an end to extraordinary rendition, and it admits no tolerance for abuse during detention or interrogation.
In short, the Statement's a document essential to thorough consideration of what to do to undo post-9/11 detention policies.

Gitmo, round 3

Today the U.S. Supreme Court embarked on its 3d voyage in 3 years to Guantánamo Bay.
Justices convened at 10 to hear an hour of oral argument in Boumediene v. Bush, the title for consolidated cases brought by many of the noncitizens whom executive officials seized abroad in the years since 9/11 and then transported to the naval base that the United States has operated for more than a century at the southeastern corner of the island of Cuba.
Arguing on behalf of detainees were Seth P. Waxman, who served as Solicitor General, the United States' chief appellate attorney, from 1997-2001 and is now a D.C.-based private practitioner. Arguing on behalf of the government was Paul D. Clement, the current Solicitor General.
As detailed in briefs about which IntLawGrrl and amicus author Beth Van Schaack* has posted, discussion promised to cover both jurisdictional and merits issues. Preargument, these seemed like likely key concerns:
1st, may U.S. courts consider legal challenges brought by these detainees? In Rasul v. Bush (2004), 1 of 3 judgments in the 1st round of Gitmo litigation, the Court ruled that nothing in the federal habeas statute precluded so extending the "privilege of litigation." Congress responded by rewriting the statute, not just once but, after the Court rebuffed the 1st attempt in Hamdan v. Rumsfeld (2006) -- Gitmo, round 2 -- twice. With regard to that 2d effort, contained in the Military Commissions Act, the Court will determine whether Congress indeed intended to curtail federal litigation and, if so, whether the Constitution permits such curtailment.
2d, assuming that the litigation may go forward, do the special military panels set up in the wake of the 2004 judgments satisfy legal requirements for reviewing the lawfulness of detention? Evidence supporting petitioners' contention that the panels are procedurally deficient and unduly skewed toward the government's side have come from a number of sources, among them the Denbeaux studies of CSRT transcripts and, at the appendix to this filing, an affidavit from officer who served on those panels.
UPDATE: The Court's now released to the internet both an audio tape and written transcript of this morning's argument. For a roundup on commentary so far, see SCOTUSblog.

* Other IntLawGrrls with a hand in today's arguments: Amicus author Jenny S. Martinez, and Kristine A. Huskey, whose representation of certain detainees is described here. Have I forgotten anyone?

Welcome new IntLawGrrls Stephanie Farrior, Kelly Askin, and Jenny S. Martinez

Completing a new wave of arrivals to our blog, we're delighted to announce the arrival of 3 more IntLawGrrls: Stephanie Farrior (right), Kelly Askin (below left), and Jenny S. Martinez (below right).
Professor of Law and Director of the Center for Applied Human Rights Research at Pennsylvania State University's Dickinson College of Law in Carlisle, Pennsylvania, Stephanie's a leader in the field of international human rights law. She's the former Legal Director and General Counsel of the London-based NGO Amnesty International, a founding board member of the San Francisco-based NGO Center for Justice & Accountability, and a member of the Executive Council of the American Society of International Law. Her recent scholarship includes studies of the U.N. Commission on the Status of Women and of women refugees. Stephanie's chosen Goler Teal Butcher (1925-1993), onetime Howard University Law Professor, State Department official, and head of the U.S. Agency for International Development, as her IntLawGrrls transnational foremother.
Dr. Kelly Dawn Askin is the Senior Legal Officer, International Justice, with the Open Society Justice Initiative in New York. In addition to teaching and serving as a visiting scholar at Notre Dame, Washington College of Law, Harvard, and Yale, Kelly's served as Executive Director of the International Criminal Justice Institute and American University’s War Crimes Research Office, as a legal advisor to the judges of the International Criminal Tribunal for the former Yugoslavia and for Rwanda, and as an expert consultant, legal advisor, or international law trainer to prosecutors, judges, and registry at those tribunals and others in East Timor, Sierra Leone, and Cambodia, as well as at the International Criminal Court. She's published extensively on international criminal law, international humanitarian law, and gender justice, and serves on the board of several organizations, including the Executive Board of the American Branch of the International Law Association, the International Judicial Academy, and the International Journal of Criminal Law.
Jenny is an Associate Professor of Law and Justin M. Roach, Jr. Faculty Scholar at California's Stanford Law School. Jenny's scholarship examines ramifications of the recent prolifteration of international tribunals. In a 2004 oral argument before the U.S. Supreme Court, she represented José Padilla, the Brooklyn-born man who, as posted here, spent years in incommunicado military custody as an "enemy combatatant." She's worked as a consultant for the NGOS Human Rights First and the International Center for Transitional Justice.
Heartfelt welcome!