Write On! ASIL Research Forum

(Thanks to IntLawGrrls for the opportunity to contribute this guest post, another in IntLawGrrls' Write On! series)

The American Society of International Law has launched a new initiative that may be of interest. On November 4 and 5 of this year we will be launching the first ASIL Research Forum at UCLA Law School. We hope that the Forum will become be a yearly scholarly conference on new research in international law.
Spearheading the initiative is the 2011 ASIL Research Forum Committee:
► Co-Chairs: yours truly, Laura Dickinson, Foundation Professor and Faculty Director at the Center for Law and Global Affairs, Arizona State University Sandra Day O'Connor College of Law, along with Kal Raustiala, Professor at the UCLA School of Law and Director of UCLA's Ronald W. Burkle Center for International Relations.
► Committee members: Mark A. Drumbl, Class of 1975 Alumni Professor of Law & Director, Transnational Law Institute, Washington & Lee University School of Law, along with IntLawGrrl guests/alumnae Nienke Grossman, University of Baltimore School of Law, and Mary Ellen O’Connell, an ASIL Vice President and the Robert and Marion Short Professor of Law and Research Professor of International Dispute Resolution at Notre Dame Law School.
The idea is to hold an event that is focused around in-depth discussion of works in progress. Particularly welcome are interdisciplinary projects, empirical studies, and research that deploys new methodologies to study international or transnational law.
Proposals are due April 30, and will be reviewed anonymously.
The official call for papers is below:

Call for Scholarly Papers
The Inaugural ASIL Research Forum
November 4-5, 2011
The American Society of International Law calls for submissions of scholarly paper proposals for the inaugural ASIL Research Forum to be held at UCLA Law School on November 4-5, 2011.
The Research Forum is a new initiative of the Society aimed at providing a setting for the presentation and focused discussion of works in progress. The Spring Annual Meeting does this in part through its "works-in-progress" sessions, but the Research Forum aims to do this exclusively.
The Research Forum will be held in the fall and, as possible, coordinated as an integral part of the Fall ASIL Mid-Year Meeting. All ASIL members are invited to attend the Forum, whether presenting a paper or not.
Interested participants should submit a proposal (preferably 500, and no more than 1,000, words in length) summarizing the scholarly paper to be presented at the forum. Papers can be on any topic related to international and transnational law. Works-in-progress are particularly encouraged. Interdisciplinary projects, empirical studies, and jointly authored proposals are welcome.
Submissions should be sent to 2011forum@asil.org by April 30. Proposals will be vetted anonymously by the Research Forum Committee with selections to be announced by June 15.
At present, it is the intent of the Research Forum Committee to organize the selected paper proposals around common issues, themes, and approaches. Discussants, who will comment on the papers, will be assigned to each cluster of papers.

Guest Blogger: Kathleen Clark

It's IntLawGrrls' great pleasure to welcome Kathleen Clark (left) as today's guest blogger.
Kathleen is Professor of Law and 2010-11 Israel Treiman Faculty Fellow at Washington University School of Law, St. Louis, Missouri, where teaches and writes about government ethics, national security law, legal ethics, and whistleblowing. For more than a decade, she has offered a course she created, on governmental ethics; in addition, she created a course on comparative whistleblowing, which she taught at the Summer Institute for Global Justice, Utrecht University, the Netherlands.
A 2004 Washington Post op-ed on the Department of Justice "torture memo," coauthored with our colleague Julie Mertus, led to Kathleen's testimony before Congress and her publication of "Ethical Issues Raised by the OLC Torture Memorandum," 1 Journal of National Security Law & Policy 455 (2005).
In her guest post below, Kathleen makes the case for the need for "someone in government will provide some clarification -- and some sanity" on the issue of WikiLeaks disclosures, an issue on which IntLawGrrls featured 2 guest posts last week, by Judge Patricia M. Wald (here) and by Professor Mary Ellen O’Connell (here).
Kathleen earned her B.A. and J.D. degrees from Yale University, and clerked for the Honorable Judge Harold H. Greene, U.S. District Court for the District of Columbia. She then served as counsel to the U.S. Senate Judiciary Committee, working on issues of white collar crime.
A member of the American Law Institute, Kathleen's an advisor to the institute’s Project on Principles of Government Ethics. She's also a consultant to the Administrative Conference of the United States and past Chair of the National Security Law Section of the Association of American Law Schools.

Heartfelt welcome!

International Law & WikiLeaks

(Delighted to welcome back alumna Mary Ellen O’Connell (below right), who contributes this guest post on release of classified documents by WikiLeaks, an issue on which alumna Patricia M. Wald posted yesterday)

I generally share Judge Wald’s critical view of WikiLeaks’ action.
In thinking about the matter from the perspective of international law, so far I see three areas of special interest:

1. Prosecution
State Department Legal Adviser Harold Koh, Attorney General Eric Holder, Secretary of State Hillary Clinton, and others have all discussed prosecuting “those responsible” for the document dump. The main figure associated with WikiLeaks is the Australian, Julian Assange. He is thought to be in hiding somewhere in Europe. Interpol has issued an international arrest warrant for Assange, to send him to Sweden to face questioning. I have seen no reports of a U.S. request for an international arrest warrant. (credit for logo of Interpol Red Notice)
My first thoughts in this episode have concerned on what basis Assange could be brought to the U.S. for prosecution. If he comes into Swedish custody, for example, and the United States then requests his extradition, NPR is reporting that the basis of criminal prosecution would likely be the Espionage Act. (See, e.g., 18 U.S.C. sec. 798 “Disclosure of Classified Information”.)
The Espionage Act seems to be narrowly drafted and to contain details that might well make it difficult to meet the requirements of U.S. extradition treaties.

2. Terrorism
Perhaps for the issues raised in Point 1, U.S. Rep. Peter King (R-N.Y.) is calling for WikiLeaks to be declared a terrorist organization? I wonder if Rep. King believes that declaring WikiLeaks a terrorist organization means that the U.S. will treat Assange as an “enemy combatant?” International law has no authority to support such assertions. We can hope that the administration will definitive reject them, and even reconsider other cases where criminal suspects are currently being treated as “enemy combatants.” (See my soon-to-be forthcoming article, “The Choice of Law Against Terrorism.”)

3. Diplomacy
We can further hope that this case will wake up governments around the world to greater vigilance on behalf of international law.
We should all be very concerned that certain Middle Eastern governments want to see military force used against Iran. There is no right to use military force against a state for the possession of even unlawful weapons. (See my “The Ban on the Bomb and Bombing, Iran, the U.S., and the International Law of Self-Defense”.) This is only one example. The documents are full of issues we in international law should be bringing to public awareness.
Ironically, in some cases involving the United States and non-compliance with international law, I wonder if governments are going to read the unflattering documents and either end cooperation or pressure the United States into ending non-compliant conduct? I have written about U.S. uses of military force in Yemen that conflict with international law. Is Yemeni President Ali Abdullah Saleh going to continue to cooperate in this after what has been said about him?
And, of course, all of us in international law need to be concerned about the attempt to steal private information concerning the Secretary-General of the United Nations.
The gratuitous gossip in some of the communications is also striking — it made me think of the Rolling Stone interview with General Stanley McChrystal. (prior IntLawGrrls post)
The WikiLeaks decision to release this material was reprehensible. Hopefully the right lessons will be learned from it with respect to the conduct of diplomacy and the goals of U.S. foreign policy.

On drones

The United States is putting on the pressure to expand the scope of U.S. drone operations, but getting nowhere, according to reports published in the last couple days.
For readers trying to figure out this hot-button global issue, there's The International Law of Drones, a new ASIL Insight by IntLawGrrl guest/alumna Mary Ellen O'Connell (prior posts).
In the Insight, Mary Ellen traces the history of unmanned aerial vehicles, or UAVs, as drones officially are called. (UAV photo credit; O'Connell photo credit)
Then she describes how they've been used as weapons -- since the 1st U.S. attack, launched from Djibouti into Yemen, in 2002 -- through to current deployment at the Afghanistan-Pakistan border.
Next she tries to fit the issues surrounding such uses into the framework of international law respecting the use of force; that is, term-of-art concepts such as "armed conflict," "armed attack," and "self-defense."
Finally, Mary Ellen points to a need for greater research, particularly on the psychological effects that drone warfare has on those who wage it.
Well worth a read.

Drone debate

Washington University St. Louis School of Law was the site last week of a debate on on the legality and foreign policy implications of the United States' use of drones in the Afghanistan-Pakistan border regions, an issue about which we've posted frequently.
Debating were IntLawGrrls guest/alumna Mary Ellen O'Connell (University of Notre Dame), who's posted on the issue here, and Kenneth Anderson (American University).
Their spirited engagement at the Whitney R. Harris Institute, of which IntLawGrrl guest/alumna Leila Nadya Sadat is Director, can be watched on video here.

Darfur.Gitmo.dot.

There's a constant in the subtext of stories about Sudan.
For years, criticism of Sudan's treatment of its western and southern regions has come from many corners -- from college campuses, political candidates, human rights groups, aid workers, even states themselves. Not much progress, for all of that:
► The western region, Darfur, remains a humanitarian-aid disaster, as posted just days ago. Moreover, the current suspension of outright civil war in that region (in light green on the map at left) seems to have a rather short fuse.
► The warrant issued in March 2009 by the International Criminal Court, for the arrest of Sudan's President on charges of genocide and other atrocities in Darfur, remains unfulfilled. Indeed, it is flouted not only by its target, Omar al-Bashir, but also by the African Union, the regional organization through which some of Bashir's fellow leaders have promised him cover against the global court.
► Meanwhile, concerns mount that the government will put off a Southern Sudan independence referendum, which a 2005 peace agreement set for January 2011. Yesterday, according to the Associated Press, a local leader predicted "the collapse of a peace accord that ended a war that killed more than 2 million people if it stalls" the election, "which could turn the arid region," in red on the map at left, "into the world's newest nation and split Africa's largest country in two."
That's the text.
Why such disarray?
Why no change given the apparent consensus, at least in the West, that the Darfur conflict needs to come to an end?

Given further apparent consensus that the Southern Sudan peace agreement should be honored?

In short, what's the subtext?

In an article published this week, the Wall Street Journal's Jess Bravin connected dots that may answer some of these questions.

Reporting from Guantánamo Bay, Cuba, on a military commission's recommendation that "former al Qaeda cook Ibrahim al-Qosi" be sentenced to 14 years in prison, Bravin wrote:

The U.S. has been working with the Sudanese government to repatriate detainees from Guantanamo Bay, according to evidence presented ....

Indications are that upon imposition of sentence, Qosi will be repatriated to Sudan, along with 9 other Sudanese men detained at Gitmo. Adduced, Bravin wrote, was a letter which said:

'Sudan is ready to cooperate with President Obama in his effort to close down the Guantanamo facility ...'

Bravin connected this readiness to cooperate to Bashir's continuing at-large status. Experts he contacted -- Juan E. Méndez and IntLawGrrls' own guest/alumna, Mary Ellen O'Connell, disagreed on whether including Gitmo in the Sudan/ICC mix was a good or bad idea.

Truth is, given the way that countries interact, conflation of the 2 is probably inevitable. So too the add-on of concerns about the on-the-ground situation in Darfur -- even apart from consideration of the ICC charges. So three the add-on of concerns about what's up with Southern Sudan.

There's yet a 4th add-on, implicit but not quite overt in these Guantánamo revelations: Sudan's been a linchpin in counterterrorism at least since the days that the government tolerated Osama bin Laden's presence there, so that the United States and its allies are loathe to dismiss out of hand any aid the Sudanese government gives to anti-Qaeda efforts.

Kudos to Bravin for bringing subtext to light.

Time now for people who care to push the United States -- and other countries with clout, in the Security Council or elsewhere -- squarely to confront the complex of issues related to policy on Sudan.

Spring reading, of sorts

It is Spring, when a law prof's fancy lightly turns to thoughts of...
... you know ...
... which casebook she'll assign next semester.*

That thought in mind, we note 2 promising new intlaw texts:
► The 1st is The International Legal System: Cases and Materials (6th ed. 2010) (below, far right).
Initially published in 1973, this Foundation Press standard has a whole new authors' lineup: Naomi Roht-Arriaza (California-Hastings) and Mary Ellen O'Connell (Notre Dame), IntLawGrrl and IntLawGrrl guest/alumna, respectively, along with Richard F. Scott (Thomas Jefferson). The table of contents promises an organized and varied survey of public international law, in general and in specific areas like the environment and the economy, human rights and the use of force. This 'Grrl, who's teaching intlaw in the fall, plans to give it a try.
► The 2d is International and Transnational Criminal Law (2009) (near right).
This 1st edition Aspen publication is the work of 3 of our colleagues, all affiliated with Georgetown Law: Julie R. O'Sullivan, David Luban, and David P. Stewart. It joins others in the ICL field, including the casebook, now in its 2d ed., co-authored by IntLawGrrl Beth Van Schaack.
Check 'em out.

* Apologies to Tennyson. Only Jackson Browne would've said love. (credit for 1922 portrait, La Liseuse, by Félix Valloton)

Koh on targeted killing

There was much worth pondering in the keynote speech that Harold Hongju Koh (center left), since last June the Legal Adviser to the U.S. Department of State, delivered yesterday at the annual meeting of the American Society of International Law.
'Grrls will be posting on various aspects of that talk and others in short order. But we can't let a day go by without posting his remarks on unmanned aerial vehicles, better known as UAVs or drones (pictured below).
A few hours before Koh's speech, IntLawGrrls guest/alumna Mary Ellen O'Connell, newly elected an ASIL Vice President, had chaired a well-attended panel on the issue. Mary Ellen, who'd written a Balkinization post in support of Koh's nomination about this time last year, last December contributed an IntLawGrrls post outlining her legal concerns about the United States' use of drones in the AfPak conflict to target for killing persons believed to be al Qaeda operatives.
Thanks to ASIL's Sheila R. Ward, we set forth verbatim relevant quotes from Koh's speech, which you can watch in the video clip here.
Koh, formerly the Yale Law Dean and an ASIL Counsellor, maintained that such use is legal, essentially embracing the "war" paradigm that many others have challenged. He stated:

[I]t is the considered view of this administration … that targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles (UAVs), comply with all applicable law, including the laws of war…
As recent events have shown, Al Qaeda has not abandoned its intent to attack the United States, and indeed continues to attack us. Thus, in this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al Qaeda leaders who are planning attacks….

He then detailed how "this administration has carefully reviewed the rules governing targeting operations to ensure that these operations are conducted consistently with law of war principles"; specifically:

► First, the principle of distinction, which requires that attacks be limited to military objectives and that civilians or civilian objects shall not be the object of the attack; and
► Second, the principle of proportionality, which prohibits attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, that would be excessive in relation to the concrete and direct military advantage anticipated.

Koh endeavored to assure his audience that in

U.S. operations against al Qaeda and its associated forces – including lethal operations conducted with the use of unmanned aerial vehicles – great care is taken to adhere to these principles in both planning and execution, to ensure that only legitimate objectives are targeted and that collateral damage is kept to a minimum.

Addressing critics of the policy, he continued:

[S]ome have suggested that the very use of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war. But individuals who are part of such an armed group are belligerent and, therefore, lawful targets under international law....
[S]ome have challenged the very use of advanced weapons systems, such as unmanned aerial vehicles, for lethal operations. But the rules that govern targeting do not turn on the type of weapon system involved, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict – such as pilotless aircraft or so-called smart bombs – so long as they are employed in conformity with applicable laws of war….
[S]ome have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.

[On this boldfaced statement, consider the rather different view in my post above, which reprints a passage, from my 2006 article, that recounts Justice John Paul Stevens' concerns regarding a targeted killing in which he and other Navy codebreakers played a role -- the killing in 1943 of Admiral Isoroku Yamamoto, architect of Japan's attack on Pearl Harbor.]
Koh maintained that due precautions are taken even without the interposition of due process:

Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise. In my experience, the principles of distinction and proportionality that the United States applies are not just recited at meeting. They are implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law….

Finally, Koh cited domestic law as an independent justification:

[S]ome have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems – consistent with the applicable laws of wear – for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute ‘assassination.’

Women @ ASILquater

As we have each year since our founding (here, here, and here), IntLawGrrls is proud today to highlight women who will speak March 24-27 at the forthcoming annual meeting of the American Society of International Law.
This 104th gathering of the Society, entitled International Law in a Time of Change, kicks off with the Grotius Lecture by Antony Anghie at 4:30 p.m. on March 24, features a keynote address by State Department Legal Adviser Harold Hongju Koh at 5 p.m. March 25, the Manley O. Hudson Medal Lecture by Edith Brown Weiss (right)at 4:15 p.m. March 26, a keynote by Canada's Chief Justice, Beverley McLachlin (below left), at 5:30 March 26, and runs through March 27. All events will take place at the Ritz Carlton Hotel, 1150 22d Street, N.W., Washington, D.C. (Details and registration here.)

Delighted to see from the program that, once again, there's much diversity in topics and presenters. Virtually all panels again 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). Kudos to the Program Committee Co-Chairs, IntLawGrrls' own Hari M. Osofsky and our colleagues K. Russell LaMotte and Allen S. Weiner! Particularly proud that so many persons featured are IntLawGrrls or IntLawGrrls guest alumnae -- not only Planning Committee members Rebecca Bratspies, Chimène Keitner, Hope Lewis, and Beth Van Schaack, but also, of course, Lucy Reed (right), who will conclude her 2-year tenure as ASIL President at the meeting, to be succeeded by our colleague David D. Caron.
Without further ado, here's this year's honor roll:

Thursday, March 25, 9-10:30 a.m.
► "Empirical Approaches to International Law": Elizabeth Andersen (ASIL Executive Director), IntLawGrrl Elena Baylis (Pittsburgh), Susan Franck (Washington & Lee), Janet Levit (Tulsa), and panelists; Tonya Putnam (Columbia), moderator.
►"New Thinking on Social and Economic Rights: Honoring Virginia Leary," an IntLawGrrls foremother: IntLawGrrl guest/alumna Gay McDougall (United Nations) (below, far right), Mona Rishmawi (United Nations), and Alicia Ely Yamin (Harvard), panelists; IntLawGrrl guest/alumna Barbara Stark (Hofstra), moderator.
►"International Human Rights Law, Foreign Sovereign Immunity, and National Courts": Rosanne van Alebeek (Amsterdam), Sarah H. Cleveland (Counselor to State Department) (near right), panelists.
►"Getting to Closure: Winding Up the International and Hybrid Criminal Tribunals": Tracey Gurd (Open Society Justice Initiative) and Anne Joyce (State Department), panelists; IntLawGrrl guest/alumna Valerie Oosterveld (Western Ontario), moderator.
►"Risk, Science and Law in the WTO": Tracey Epps (New Zealand Ministry of Foreign Affairs & Trade), panelist.
►"New Voices I": Dionysia Avgerinopoulou (Columbia), IntLawGrrl guest/alumna Máiréad Enright (Cork), and Alexandra R. Harrington (McGill), panelists; Edith Brown Weiss (Georgetown), moderator.

Thursday, March 25, 10:45 a.m.-12:15 p.m.
►"Providing Global Public Goods Under International Law": Anne van Aaken (St. Gallen, Max Planck Institute), Victoria Henson-Apollonio (Consultative Group on International Agricultural Research), Inge Kaul (United Nations), and Sabrina Safrin (Rutgers-Newark), panelists; IntLawGrrl Rebecca Bratspies (CUNY), moderator.
►"Extraterritoriality: Bagram and Beyond": Sabine Nölke (Canadian Department of Foreign Affairs), panelist; IntLawGrrl guest/alumna Chimène Keitner (California-Hastings), moderator.
►"Hot Topics in GATS and Human Rights": Jane Kelsey (Auckland) and Marion Panizzon (World Trade Institute), panelists.
►"Teaching International Law: Lessons from Clinical Education": Lusine Hovhannisian (Public Interest Law Initiative) and Deena Hurwitz (Virginia), panelists.

Thursday, March 25, 12:30-2:30 p.m.
► Women in International Law Interest Group Luncheon: Dinah Shelton (George Washington; Inter-American Commission on Human Rights) (left), speaker.

Thursday, March 25, 1-2:30 p.m.
► "Afghanistan, Pakistan and the Modern Challenges to Use of Force Law": Elizabeth Rindskopf Parker (Pacific McGeorge) and Hina Shamsi (NYU), panelists; IntLawGrrl guest/alumna Mary Ellen O'Connell (Notre Dame), moderator.
► "Evolving Intersections Between Treaty Law and Domestic Law": IntLawGrrl Johanna E. Bond (Washington & Lee) and Mallory Stewart (State Department), panelists.

Friday, March 26, 9-10:30 a.m.
► "International Environmental Justice: Possibilities, Limits and Tensions": Deepa Badrinarayana (Chapman) and Jennifer M. Green (Minnesota), panelists.
► "Corruption and Human Rights": Leslye Obiora (Arizona), panelist.
► "International Law 2.0": Beth Simone Noveck (Office of Science and Technology) and Renee C. Redman (Iran Human Rights Documentation Center), panelists; IntLawGrrl guest/alumna Molly Beutz Land (New York), moderator.
► "New Voices II": Neha Jain (Max Planck Institute for Foreign and International Criminal Law), Kimberley N. Trapp (Cambridge), and IntLawGrrl guest/alumna Julie Veroff (Oxford), panelists.

Friday, March 26, 10:45 a.m.-12:15 p.m.
► "Non-State Actors and the Emerging Climate Change Law Regime:" Elizabeth Burleson (South Dakota) and IntLawGrrl Naomi Roht-Arriaza (California-Hastings), panelists; Jaye Dana Ellis (McGill), moderator.
► "Updating the Restatement": Oona Hathaway (Yale) and 9th Circuit Judge Margaret McKeown (left), panelists.
► "Same or Different? Fighting Terrorists in the Bush and Obama Administrations": IntLawGrrl Diane Marie Amann (California-Davis) and Susan Baker Manning (Bingham McCutchen), panelists.

► "The Rising Use of International Law by African Judiciaries": Erika George (Utah), panelist; Angela M. Banks (William & Mary), moderator.
► "Preventing the Next Financial Crisis: Coordination and Competition in Global Finance": Barbara C. Matthews (BCM International Regulatory Analytics), panelist.

Friday, March 26, 12:45-2:15 p.m.
► "Reform and Restructuring at International Financial Institutions": Anne-Marie Leroy (General Counsel, World Bank), panelist.
► "Theoretical Insights at the Margins of International Law: CLS Meets TWAIL": Celina Romany (Puerto Rico Bar Association), panelist; Jeanne M. Woods (Loyola-New Orleans), moderator.
► "Family, Sex, and Reproduction: Emerging Issues in International Law": Joanna N. Erdman (Toronto), Katherine Franke (Columbia), Laura Katzive (Wellspring Advisors), and Kathleen Lahey (Queen's-Ontario); Nancy Northup (Center for Reproductive Rights), moderator.
► "War and Law in Cyberspace": Eliana Davidson (Defense Department) and Robin Geiss (International Committee of the Red Cross), panelists.
► "Implications of the Global Financial Crisis on International Trade and Investment Regimes": Elizabeth Trujillo (Suffolk), panelist.

Friday, March 26, 2:30-4 p.m.
► "Bottom-Up Strategies for Survival and Resistance: Examples from Latin America and Elsewhere": Chantal Thomas (Cornell), panelist; Berta Esperanza Hernández-Truyol (Florida), moderator.
► "Transnational Legal Dialogue, a Human Rights-Based Hierarchy, and the Creation of Norms": Jutta Brunnée (Toronto), IntLawGrrl guest/alumna Patricia M. Wald (former Judge, International Criminal Tribunal for the former Yugoslavia) (right, and Melissa A. Waters (Washington University), panelists; Erika de Wet (Amsterdam and Pretoria), moderator.

► "Remembering Tom Franck: What He Taught Us about the Recourse to Force": Rosalyn Higgins (former President, International Court of Justice) (far left), moderator.

► "ICSID in the Twenty-First Century: An Interview with Meg Kinnear" (Secretary-General, World Bank's International Centre for Settlement of Investment Disputes) (near left).

Friday, March 26, 4:15-5:15 p.m.

► "Hudson Medal Lecture": Medal Winner Edith Brown Weiss (Georgetown).

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

► ""Keynote": Chief Justice Beverley McLachlin, Supreme Court of Canada

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

► "The Road Forward from Copenhagen: Climate Change Policy in the 21st Century": Ann Petsonk (Environmental Defense Fund), panelist.

► "The ICC Review Conference and Changing U.S. Policy Towards the Court": Olivia Swaak-Goldman (International Criminal Court), panelist; Leila Nadya Sadat (Washington University), moderator.

► "China and East Asia on the World Stage": Deborah Brautigam (American) and Saadia Pekkanen (University of Washington), panelists; Julia Ya Qin (Wayne State), moderator.

Saturday, March 27, 10:45 a.m.-12:15 p.m.

► "Advancing Women's Rights Internationally": Cathy Albisa (National Economic and Social Rights Initiative), Fionnuala D. Ní Aoláin (Minnesota) and Rebecca Cook (Toronto),panelists; Kamari Maxine Clarke (Yale), moderator.

► "Treaty Bodies and Beyond: The Practice and Process of Translating International Norms into Domestic Law": Susan Deller Ross (Georgetown) and Ruth Wedgwood (John Hopkins; Human Rights Council) (right), panelists; Celia Goldman, moderator.

Interpreting foreign officials' immunity

(IntLawGrrls is delighted to welcome a new guest post, from alumna Chimène Keitner, on an amicus brief she's just filed in an Alien Tort case before the U.S. Supreme Court)

A year ago January, as Beth Van Schaack then posted, the U.S. Court of Appeals for the Fourth Circuit dealt a “blow” to foreign sovereign immunity in Yousuf v. Samantar, which held that the Foreign Sovereign Immunities Act of 1976 does not apply to individuals. Samantar, who lives in Virginia and is the former Prime Minister and Minister of Defense of Somalia, faces claims for torture and extrajudicial killing brought under the Alien Tort Statute and the Torture Victim Protection Act. The U.S. Supreme Court granted Samantar’s petition for certiorari to review the Fourth Circuit’s decision interpreting the FSIA, as posted last fall by IntLawGrrls guest/alumna Pamela Merchant, Executive Director of the Center for Justice & Accountability. (The Huffington Post has published Pamela's thought-provoking summary of the case; moreover, information on the case and links to legal documents are available on the CJA’s website.) Briefing is currently in progress, and oral arguments are scheduled for March 3.
Strictly speaking, the questions before the Court at this juncture are, simply,
► Whether the FSIA provides immunity to individual foreign officials and,
► If it does, whether it also provides immunity to former foreign officials.
The Fourth Circuit found that the FSIA does not apply to individuals, and it remanded the question of whether other sources of immunity might nonetheless apply. The Solicitor General filed an amicus curiae brief urging the Supreme Court to affirm the Fourth Circuit’s interpretation of the FSIA. Numerous briefs that have been filed by other amici may be found here.
The Brief of Professors of Public International Law and Comparative Law as Amici Curiae in Support of Respondents -- for which I was counsel of record and whose signatories include IntLawGrrl guest/alumna Mary Ellen O'Connell -- systematically examines non-FSIA case law involving the immunities of foreign officials from civil suit. In the context of this case, the amicus brief refutes two unsupported assertions made by petitioner Samantar:
► First, Samantar asserts that “pre-1976 common law immunized a state’s officials for their official acts.” He relies heavily on this assertion for his conclusion that the FSIA should be read to include former foreign officials notwithstanding the omission in FSIA, 28 U.S.C. § 1603(a), of any reference to individuals in its definition of the term “foreign state.”

► Second, Samantar claims that “the overwhelming current international authority” provides immunity to former foreign officials sued in their personal capacity for acts of torture and extrajudicial killing. The authorities he cites, and significant authorities that he omits to cite, do not support these assertions. Non-FSIA sources of foreign official immunity do not provide a blanket shield from personal liability for universally recognized international law violations, even if such violations were committed by individuals who held government positions.

Drones and the Law: What We Know

(IntLawGrrls is pleased to welcome back alumna Mary Ellen O'Connell, who contributes this guest post)

The New York Times reported last week that the U.S. would be increasing its drone strikes into Pakistan. The article attributes the following comment to Philip Alston:

it is impossible to judge whether the program violates international law without knowing whether Pakistan permits the incursions, how targets are selected and what is done to minimize civilian casualties.

Alston’s job as UN special rapporteur for extrajudicial executions is to get this information. It makes sense for him to state his concerns in a form designed to entice cooperation from the United States.
But international lawyers already have sufficient information to draw conclusions about the legality of drone use in Pakistan. We know first and foremost that the use of drones to fire missiles and drop bombs is only lawful during actual hostilities of armed conflict — drones are a war-fighting tool, not a law-enforcement tool. (photo credit) Yet, many U.S. attacks have occurred when there has been no fighting in Pakistan. During the last nine months when there has been fighting, few U.S. strikes have been of assistance to Pakistan.
Pakistani intelligence services or the military have apparently cooperated with the United States on strikes, but under international law, it should be the elected civilian officials who provide a state’s consent for foreign military operations. The New York Times article quoted the Pakistani Prime Minister as saying

the drone strikes 'do no good, because they boost anti-American resentment throughout the country.'

The United States should not be undermining civilian control in Pakistan by failing to seek the consent of civilian authorities. Nor should we settle for less than express, public consent that cannot later be denied.
We also know CIA operatives are carrying out the strikes in Pakistan, not the U.S. military. CIA operatives, however, are not part of the United States' armed forces. They do not wear uniforms, are not in the chain of command, and are not trained in the law of armed conflict. They have no right to kill in combat.
And we know that in the attempt to kill about a dozen individuals on the CIA’s "kill" list 80-some strikes have been carried out and almost 800 persons have been killed. Yet, killing suspected leaders has little long-term impact on militant organizations in a context like Pakistan. If a military objective cannot be achieved, killing violates the principle of military necessity.
A CIA spokesman quoted in the Times article says that it is "flat-out false" that hundreds of civilians have been killed by CIA strikes. But we know that the CIA has little, if any information about its victims. In such situations, the principle of humanity requires that we assume persons are civilians, not fighters. Law enforcement methods must be used against civilians, not the war-fighting mechanism of the unmanned drone. Killing many civilians in the attempt to kill a single fighter violates the principle of proportionality.
In sum, we know plenty.

(For a more detailed analysis of the law on drones, see my article entitled Unlawful Killing with Combat Drones.")

Gitmo 'Grrls

(One in a series on Experts at Law)

As mentioned in our recent Read On! Review, a recurrent theme in IntLawGrrl Kristine A. Huskey's new book is, to quote her,

the fact that women are woefully scarce in national security law, my chosen field. I do not mean to convey that I am the only woman in this field, as there are many women writing, speaking about, and practicing nationalsecurity legal issues, specifically relating to Guantánamo ...

She continued:

[E]very one of these women will tell you that they, too, are often the only female speaker on these issues in a conference room or on a panel filled with men. The world can stand to have more women in fields that are traditionally filled by men.

(pp. iv-v) Kristine then proceeded "to name a few" of the Gitmo 'Grrls who jumped to mind. Her list is reproduced here, along with links to these women and some of their works:

► IntLawGrrl Beth Van Schaack, Santa Clara Law. Her IntLawGrrls posts are here; list of other publications is here.

► IntLawGrrl yours truly (thanks, Kristine!), University of California, Davis. My IntLawGrrls posts are here; list of other publications is here.

► Leila Nadya Sadat, Washington University. IntLawGrrls posts about her are here; publications list is here.

► Gitanjali S. Gutierrez, Center for Constitutional Rights, attorney for detainees. IntLawGrrls posts about her are here; her op-ed is here.

► Agnieszka M. Fryszman, partner at Cohen Milstein, attorney for detainees.

► Beth Gilson, attorney for detainees.

► H. Candace Gorman, attorney for detainees, whom the Chicago Tribune recently profiled. She runs 2 Gitmo blogs, here and here.

► Sylvia Royce, attorney for detainees.

► Sarah Havens, Allen & Avery, attorney for detainees.

► Becky Dick, attorney for detainees.

► Hina Shamsi, staff attorney at the National Security Project of the American Civil Liberties Union. Her ACLU blog posts are here.

► Maria LaHood, Center for Constitutional Rights.

► Opinio Juris' Deborah Pearlstein, Princeton University. IntLawGrrls posts about her are here; her OJ posts are here; her publications list is here.

► Karen J. Greenberg, New York University. IntLawGrrls posts about are her here; some publications are listed here; her newest Gitmo book is here.

► Suzanne Spaulding, Bingham Consulting Group and former Executive Director of the National Commission on Terrorism, among many other natsec posts. An op-ed by her is here.

► Kate Martin, Center for National Security Studies. Some of her publications are here.

► Sahar Aziz, formerly an associate at Cohen Milstein, now Senior Policy Advisor at Office for Civil Rights, U.S. Department of Homeland Security.

► Barbara Olshansky, attorney for detainees. Her books are here.

► Jennifer Daskal, formerly senior counterterrorism counsel at Human Rights Watch, now a Department of Justice attorney.

Recognition is due to many other women as well, of course. (Readers' nominations welcome!)

There are, for example, all the IntLawGrrls and guests/alumnae who have contributed posts in IntLawGrrls' "Guantánamo" series. In addition to Beth, Kristine, and I, they are Elena Baylis, Ursula Bentele, Fiona de Londras, Monica Hakimi, Lynne Henderson, Elizabeth L. Hillman, Dawn Johnsen, Michelle Leighton, Pamela Merchant, Naomi Norberg, Hari M. Osofsky, Jaya Ramji-Nogales, and Lucy Reed. Not to mention guests/alumnae Mary L. Dudziak, editor of this book, and Mary Ellen O'Connell, interviewed here, both with respect to post-9/11 issues. Or my University of California colleague Laurel E. Fletcher, co-author of this book, an empirical study of the fate of ex-detainees.

And there are also the women who shared a Quonset-like tent with Jen Daskal and me during the December '08 week that, as posted earlier, I spent observing Gitmo military commissions on behalf of the National Institute of Military Justice. (A fuller account of my visit begins at page 9 of this report, which also includes dispatches from Executive Director Michelle Lindo McCluer and other NIMJ'ers) These tentmates were: Jill Heine, Amnesty International; Stacy Sullivan, Human Rights Watch; and Devon Chaffee, Human Rights First. And don't get me started on the many women journalists I met at Gitmo, or on the women JAG lawyers whom I watched provide excellent representation of various detainees as detailed defense counsel.

Bottom line -- memo to media reps, conference organizers, anthology editors, etc.:

There are many, many women now working in the field of national security. We've given you the list; it's your job to get in touch. As we posted when a similar issue arose years ago, the key is not only having women "in" the supposedly nontraditional fields of law. It's also having them recognized as being there.

"Nyet"

Remember Georgia?

Russia does.

The dispute in the former Soviet Socialist Republic now known as the Republic of Georgia has disappeared from the global news page that today tells of election protests in Iran and an anti-sanctions rally in North Korea. Yet the dispute about which IntLawGrrls guest/alumna Mary Ellen O'Connell has posted -- a dispute fueled by the desire of the regions of South Ossetia and Abkhazia to break away from Georgia and ally with welcoming neighbor Russia -- remains.
And so yesterday Russia wielded its veto clout as 1 of the 5 permanent members of the U.N. Security Council to say nyet to a 16-year-old peacekeeping operation in Abkhazia.

Because the "Council failed ... to extend the presence of the United Nations Observer Mission in Georgia," a U.N. press release stated, "Secretary-General Ban Ki-moon will instruct his Special Representative to take all measures required to cease UNOMIG’s operations, effective 16 June, and consult with his advisors on the immediate next steps ...."

As for another P-5 member: U.S. Ambassador Rosemary DiCarlo (below right), Alternate Representative to the United Nations for Special Political Affairs, decried the veto with these words:

'It is the civilian population that suffers by facing a tenuous security environment without an international presence in Abkhazia, Georgia.'

More said in support of intlaw & Dean Koh

International law is not an ideology. It is a system of law. It is almost 400 years old. The United States today may claim credit for some of the most important developments in international law. Since the Founding, our leaders have consistently understood the importance of international law to American goals and values. It is true that beginning in the 1960s, misinformation and misunderstanding about international law began to emerge political science departments, then apparently even crept into some law schools. We now have a knowledge gap respecting international law in the United States and it is becoming a handicap in our relations with other nations. It is time to return to our roots and become learned again in this area of law.

-- IntLawGrrls guest/alumna Mary Ellen O'Connell, in a super Balkinization guest essay that takes on the current crop of intlaw critics. Indeed, it's hard to pluck just 1 quote from her eloquent post: its range includes discussion of international law as a national-sovereignty-strengthener to Presidential respect for international law dating to the days it was still called the law of nations. Mary Ellen concludes her essay in the same vein as this excellent Opinio Juris post by our colleague Laura A. Dickinson. They have joined many others, including IntLawGrrls Beth Van Schaack (here), Jaya Ramji-Nogales (here), and yours truly (here), in concluding, as Mary Ellen's post puts it:

This is America’s tradition: leadership in international law. It is also the way forward.
But returning to this tradition may not be a simple matter given our declining expertise. President Obama has asked one of the leading experts on international law in the United States to take on the top international law job: Dean Harold Koh [right] will give the President accurate advice on what international law requires and the advantages it offers our country and the world.