Debating border-crossing in noninternational conflict

Under international law:
► Could the United States have killed alleged dirty bomber José Padilla at O'Hare Airport?
► Could Uganda enter, say, Mozambique in pursuit of Joseph Kony?
►  Are cross-border drone strikes legal?
These were the kind of provocative questions bruited about at Geography of War in Armed Conflict, a fascinating workshop in which yours truly took part last week at the the U.S. Naval War College International Law Department, Newport, Rhode Island.
Kudos for assembling a fiery, multinational group of participants with an array of perspectives –  think dinner party in a Woody Allen film – are due to organizers, particularly Professor Michael N. Schmitt, a retired Air Force officer, and Instructor Matt Hover, an Army major. Schmitt, formerly Chair of the Public International Law Department at Durham University in England and Dean of the George C. Marshall European Center for Security Studies in Germany, has chaired the College's International Law Department since October.
Noteworthy given the subject matter were the many women among the 20 or so participants. As detailed in the program, 4 women were among those enlisted to set the stage for discussion:
► Jelena Pejic (right), Geneva-based Legal Adviser at the International Committee of the Red Cross, the century-and-a-half-year-old nongovernmental organization that promotes and monitors compliance with international humanitarian law. (photo credit)
► Gabriella Blum, Rita E. Hauser Professor of Human Rights and Humanitarian Law at Harvard. Gabby's depicted at foreground in the top photo; behind her is Sasha E. Radin, a Visiting Research Scholar at the War College (photo credit)
► Jennifer Daskal (left), Fellow at the Center on National Security and the Law, Georgetown University Law Center. (photo credit) Jen, whom I'd met back in 2008, when the 2 of us observed GTMO military commissions for different NGOs, is the author of an article right on point with this workshop: "The Geography of the Battlefield: A Framework for Detention and Targeting Outside the 'Hot' Conflict Zone," forthcoming in the University of Pennsylvania Law Review. In it, Jen accepts arguendo current U.S. practice with regard to targeting (which IntLawGrrls have discussed in posts available here, here, and here), and proceeds to propose guidelines for regulating that practice.
► Ashley Deeks (right), who is completing a stint as an Academic Fellow at Columbia Law School and soon will take up an appointment as Associate Professor at the University of Virgina School of Law. (photo credit) Ashley's article "'Unwilling or Unable': Toward an Normative Framework for Extra-Territorial Self-Defense," just published in the Virginia Journal of International Law, discusses a theory by which some countries, like the United States, have endeavored to justify entering the territory of a state – a state with which the country is not at war – in pursuit of a person or group with which the country is at war.
In an armed conflict "between two or more of the High Contracting Parties," to quote Article 2 common to the Geneva Conventions, such pursuit is permitted. But what about, to quote Article 3 common, "an armed conflict not of an international character"? What if a country is warring against a nonstate actor, on the territory of a not-at-war state?
Whether, and by what legal reasoning, that country can get across that nonconsenting state's border were the central questions of the workshop.
Possible answers implicate a host of legal subfields. For example:

Go On! Cyber War & International Law

(Go On! is an occasional item on symposia and other events of interest)

From IntLawGrrls reader Sasha E. Radin, who's a Visiting Research Scholar in the International Law Department of the U.S. Naval War College in Newport, Rhode Island, comes word of an interesting upcoming conference.
Entitled Cyber War and International Law, the conference will take place June 25-27, 2012, at the NWC's McCarty-Little Hall Auditorium.
It's co-organized by the NWC International Law Department, chaired by Professor Michael Schmitt, and the Maryland-based U.S. Cyber Command, whose Staff Judge Advocate is Air Force Colonel Gary Brown. Both men will speak at the conference.
According to organizers, the aim is to

'bring together operators, policy makers, technical experts, and legal scholars to examine the legal norms that govern both cyber strategies and the use of cyber capabilities during armed conflict and other military operations.'

Selected papers will be published in a volume of the International Law Studies (Blue Book), a series dating to 1901.
As detailed in the agenda available here, topics to be discussed include: national security law and cyberspace; self-defense; cyber conflict and the law of armed conflict; and the road ahead. Panelists will include academics and an array of past and present governmental officials, both military personnel and civilians, not only from the United States but also from the Netherlands, Germany, Britain, Canada, Sweden, and Israel.
Women scheduled to present papers are: Army Lieutenant Colonel Lisa Gumbs, U.S. Cyber Command; Dr. Deborah Schneider (near right), U.S. Department of State (photo credit); Alexandra Perina, U.S. Department of State; Navy Captain Geneviève Bernatchez, Office of the Judge Advocate General; Dr. Cordula Droege (far right), International Committee of the Red Cross. (credit for photo © ICRC)
Registration and other details available here.

'Nuff said

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

Yet 25 years later, a woman just four years my junior, Lt-Cdr Sarah West, is poised to take control of HMS Portland. She will become the first woman warship commander in the Navy’s 500-year history, although a succession of infamous female pirates, such as Lady Killigrew and Grace O’Malley, have demonstrated an equally long tradition of women making gifted seafarers and strategists.

-- Rowan Pelling (left), mentioning IntLawGrrls' foremother O'Malley in a London Telegraph column cheering the news of the trail-blazing naval appointment, effective next April, of West (above right) (credit), who holds a degree in law as well as in other subjects. First permitted to go to sea as part of the Royal Navy in 1990, women now comprise 15%-20% of crews. But they're still excluded "from posts in the Royal Marine Commandos, mine clearance involving diving, and" -- unlike their American counterparts -- "submarines."

On July 31

On this day in ...
... 1942, a new order-in-council authorized the entry of Canadian women into the navy. The 7,000 women in the branch known formally as the Women's Royal Canadian Naval Service -- and informally, on account of its acronym, as the "Wrens" -- aided Canada's efforts during World War II. (credit for 1944 photo of women naval servicemembers leaving from Halifax, Nova Scotia, for Britain)

(Prior July 31 posts are here, here, here, and here.)

On December 13

On this day in ...
... 1921, in Washington, D.C., was signed a Treaty Between the United States of America, the British Empire, France, and Japan, by which the 4 countries agreed to "respect" one another's "rights in relation to their insular possessions and insular dominions in the region of the Pacific Ocean." This Four-Power Pact, as it was known, was among several agreements reached in the Washington Naval Conference that had begun the previous month and would run till the next February. Convening the conference outside the aegis of the League of Nations was U.S. President Warren G. Harding; leading the U.S. delegation was Harding's Secretary of State, Charles Evans Hughes, later Chief Justice of the United States. (credit for 1922 photo of Secretary Hughes, in top hat, aboard U.S. Navy ship bound for Brazil's Centennial Exposition).

(Prior December 13 posts are here, here, and here.)

UNCLOS needs bipartisan push

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

Twenty-eight years ago, on December 10th, 1982, 119 nations signed the United Nations Convention on the Law of the Sea, a convention that the United States has yet to join. It was written recently that the American government can no longer approve treaties, at least not ones of importance. While IntLawGrrls Diane Marie Amann made a convincing counterargument, the case of the United Nations Convention on the Law of the Sea (prior posts) could leave one pondering the issue again. (credit for photo of 1982 U.N. law of sea conference in Montego Bay, Jamaica)
UNCLOS is recognized worldwide as one of the great accomplishments in modern international law. Responding to changes of ocean use that were undermining the three-century-old Grotian regime of free seas, negotiators labored for more than a decade to craft a convention that benefited all nations. Then they labored another dozen years to resolve the last of the concerns, enumerated by President Ronald Reagan, which had previously kept the United States from joining the Convention.
Though it can be intimidating in its scope and detail, the Convention has garnered the support of the U.S. Navy and Coast Guard, the energy, transportation, fishing and telecommunications industries, and non-profit organizations committed to conservation, law, and international engagement. In fact, there is no international agreement in decades that has garnered such a broad and powerful body of domestic support.
In spite of this support, UNCLOS, with its partner agreement on the implementation of Part XI, has been stalled in the Senate for 16 years.
For the first eight years, Senator Jesse Helms (R-N.C.), who chaired the Foreign Relations Committee, refused all requests for hearings. In 2003, when Helms retired and Senator Richard Lugar (R-Ind.) took his place, the Convention moved smoothly through hearings and unanimous approval in committee, but was brought to a halt by Senate Majority Leader Bill Frist (R-Tenn.).
After Democrats took control of the Senate in 2007, the Convention was once again approved in committee -- only to have George W. Bush’s support disappear in light of the foxhole conversion of Senator John McCain (R-Ariz.) to opposition to the Convention during his campaign for the Republican nomination.
The Convention returned to the Senate Foreign Relations Committee again at the beginning of 2009. The new administration of President Barack Obama listed the Convention as one of 17 “priority” treaties, but never placed it above the economy and other domestic issues in the Administration’s legislative agenda. Without active Presidential support, the Senate declined to act.
At the beginning of 2011, the Convention will automatically return to the Senate Foreign Relations Committee to start the process once again.
So, should supporters of the Convention be discouraged and turn their attention and energy to other matters in 2011? That would be understandable, but it would be wrong.
The loss of 6 Democratic seats and replacement of several supportive Republicans certainly increases the effort needed to secure Senate advice and consent over the current session, during which the 2/3 majority was assured. Still, the outlook is more promising than in any other session since hearings began in 2003.
The key to approval of the Convention in 2011 lies in mobilizing a bipartisan coalition that includes Senate Democrats and Republicans, leaders of major industries, environmental groups, good governance and international engagement organizations, and respected Republican statesmen and military leaders. Most of these have already endorsed the Convention, but they won’t pull out their big guns and commit their political and financial assets unless and until the President calls on them to make common effort to secure approval.
The downside for the President is that the Convention will be subjected to all the procedural roadblocks that opposing Senators, James Inhofe (R-Okla.), David Vitter (R-La.), and Jim DeMint (R-S.C.) can devise. This includes not one but two filibusters and cloture votes -- one for adoption of the Convention and another for adoption of the resolution of advice and consent. These delays would come at the cost of floor time for other legislative issues.
In addition to the Senate battle, another contest will be fought by grassroots groups through faxes and e-mails.
Conservative and libertarian networks such as “FreeRepublic.com” and “GrassFire.org” have deluged Senate offices with thousands of messages on a moment’s notice. These communications are fraught with errors and outright lies, but the number of opposition messages puts senators on the defensive.
In the past, there have been no corresponding efforts to support for the Convention. This has to change. But just as businesses want to know that the Administration is serious before committing their CEOs and their political resources, public interest groups want to know that they will be part of a team effort and will not be abandoned by the Administration along the way.
Two women leaders will be key to success in approving the Convention: Secretary of State Hillary Clinton and Senator Lisa Murkowski (R-Alaska). (photo credit) Both have been outspoken supporters of the Convention, notably during Secretary Clinton’s confirmation hearing (video clip). The commitment recently was repeated Clinton’s comments to the Commonwealth Club in San Francisco:

We're going to prioritize the Law of the Seas next year. It is critical to how we're going to manage the Arctic. It is critical to our credibility in working with nations in Southeast Asia over questions regarding activities in the South China Sea. It is so much in America's interests. And the objections to it are just not well founded. So I'm hoping that we'll be able to get a hearing on it early in the year and get a vote on it as soon thereafter as possible.

In the end, success or failure regarding the Convention on the Law of the Sea rests with President Obama, for three reasons:
► First, he, with Senate Majority Leader Harry Reid (D-Nev.), will determine where the Convention fits in the Senate’s agenda;
► Second, military leaders, always strong supporters of the Convention, will not move forward until the President directs them to do so; and
► Third, the heavy hitters of industry, environment and public interest groups will only move as part of a concerted effort with the Administration.
While Clinton and Murkowski will help lead the effort to move the Convention through the Senate, their effort cannot get underway until the President enlists partners inside and outside the government in a bipartisan and multi-sector effort to secure the support of all but the most ideological opponents in the Senate.

'Nuff said

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

'We literally could not run the Navy without women today.'

-- U.S. Secretary of the Navy Ray Mabus, announcing that his department has put an end to the long-standing ban on women serving on submarines. (photo credit) Today 52,446 out of the Navy's 330,700 active-duty personnel, or 15%, are women. Prior IntLawGrrls posts about women servicemembers are available here.

Postcard from Palmyra

The United States has many well-known offshore territories like Puerto Rico, Guam, and American Samoa. I have just had the pleasure of visiting one of the least known: Palmyra Atoll. One of the 12 most isolated islands in the world, Palmyra (above) is located about 1,052 miles south/southwest of Hawaii. It is only accessible by privately chartered plane (estimated $6,000 per person) or aboard a recreational yacht. I am a stowaway on the latter (to use the term "crew" would be a major stretch of the truth). Thanks to the wonders of satellite technology, this post thus hails from S/V Constellation (above), currently deep at sea.
The history of Palmyra Atoll is fascinating and little known. Originally claimed by Dr. Gerrit Judd of the United States, it was later taken by citizens of Hawaii for the benefit of Kamehameha IV, and was formally annexed to the Hawaiian Kingdom in April of 1862. (In 1897, as posted, Hawaii was annexed to the United States.)
The Atoll was privately owned until 1934, when it was placed under the Department of the Navy. The Navy built an air station there, and brought 5,000 men to the station during World War II. The Atoll is still littered with remnants of its military occupation; for example, entry on entire islands is forbidden due to unexploded ordinance.
After the war, the Fullard-Leo family, the most recent private owners of the Atoll, sued the military for return of the Atoll. In United States v. Fullard-Leo (1947), Supreme Court ruled in the family's favor. In 1990, the family leased the island to Peter Savio, who hired Roger Lextrait as caretaker. Lextrait had several animals on the island, one of them a dog named Dadu (left), which he trained to hunt small black-tipped reef sharks for food.
The dog remains on the island, and I personally witnessed him pounce on a shark. He didn't get it ... but then he's getting up in years.
In 2000,The Nature Conservancy purchased the Atoll, retaining one island as a research station for scientists, and the rest is managed by the Fish and Wildlife Service as a wildlife refuge. The total staff and visiting research teams at the time I was there brought the population of the Atoll, as shown at right, to a whopping sixteen people! It's practically a cosmopolitan center in the mid-Pacific. The scientific research being done there varies; from sea turtles to algae to mud, if it relates to the Atoll's ecology it is fair game. The scientists were kind enough to show us their lab work, and Amanda Myers from the Fish and Wildlife Service took us on what was, frankly, the most amazing snorkel trip of my life.
When the good people of Palmyra aren't working, they're playing at the "Palmyra Yacht Club," a structure predating the Nature Conservancy's tenure on the Atoll. The three rooms (one with an ancient weight set, one with a ping pong table and library, and the last with a BYOB bar (below left)) are covered in words of wisdom and signatures, like those below right, from the yachties who have been visiting the islands since the 1980s. It's quite a monument to adventurers the world over.
Palmyra made news in the 1970s when it was the site of the double murder of two pleasure cruisers, husband and wife Mac and Muff Graham.
The story is set out in Vincent Bugliosi's torturous 800-page book And the Sea Will Tell. Unless you are looking for a lengthy refresher in evidence law, this book should be skipped, though I understand there is a film version which might prove more palatable.
The two resultant murder trials took place in federal court, apparently pursuant to the Department of the Interior Order 3224, which gave all executive, legislative, and judicial authority over the Atoll to the Secretary of the Interior.
This authority notwithstanding, Palmyra seems as final as the final frontier can be these days.
My journey continues to Samoa, and I'll post regarding my adventures there when I make landfall.

(all photos (c); see here)

On July 30

On this day in ...
... 1893 (115 years ago today), Fatima Jinnah was born in Karachi, in what was then British India and is now Pakistan. Raised by her older brother after her father's death when she was a child, Jinnah was educated at Dr Ahmad Dental College, and in 1923 she opened her own dental clinic in Calcutta, "at a time when taking up a profession was considered inappropriate for girls from Muslim families." Eventually she gave up her practice to care for her extended family. She accompanied her brother, Mohammad Ali Jinnah, "the leader of Muslim India" and 1st leader of independent Pakistan, on official visits; she told his story in her posthumously published book, My Brother (1987). In 1941 she helped form the All India Muslim Women Students Federation. In 1965, she ran unsuccessfully for President of Pakistan. Jinnah, who died 2 years later in the city of her birth, was honored on the stamp at above left in 2003.
... 1942, half a year after the United States entered World War II, President Franklin D. Roosevelt signed into law the Navy Women's Reserve Act, establishing the WAVES -- Women Accepted for Volunteer Emergency Service -- as a women's auxiliary agencyfor the U.S. Navy. "By the end of the war, over 84,000 women served in WAVES with 8,000 female officers, which constituted 2.5% of the US Navy's personnel strength."

Do whales have standing? Ask the Supremes...

One of the very 1st posts ever to appeared at IntLawGrrls was entitled "Whales Against War?" It concerned a 2007 decision in which, by a vote of 8 to 1, the California Coastal Commission ruled "that the U.S. Navy could not go forward with sonar-testing in the Pacific unless it took certain measures to cut the sonar's harm to whales and other living, swimming creatures."
The dispute has bubbled up through the litigation system in the intervening months, and today, the U.S. Supreme Court agreed to hear argument on it during the Term set to begin in October 2008.
In Winter (Navy Secretary), et al., v. Natural Resources Defense Council, et al. (No. (07-1239), the Court will review the 2008 judgment in which the U.S. Court of Appeals for the Ninth Circuit unanimously affirmed the trial court's issuance of a preliminary injunction barring such testing.

On October 19, ...

... 2000, the Appeals Chamber of the International Criminal Tribunal for Rwanda affirmed the conviction of Jean Kambanda, who'd been Prime Minister during the mass killings and brutality that took place in Rwanda in spring 1994. In upholding the Trial Chamber's 1998 judgment and sentence to life in prison, the Appeals Chamber made Kambanda, who'd been convicted by way of a guilty plea, the 1st head of state convicted by an international criminal tribunal since the post-World War II era, and the 1st person ever whom an international criminal trbunal convicted of genocide.
... 1944, following many months of urging by civil rights leaders, U.S. President Franklin D. Roosevelt approved the induction of African-American women into the previously all-white women's unit of the Navy. A Navy press release proclaimed: "The plan calls for the immediate commissioning of a limited number of especially qualified Negro women to serve as administrative officers." The branch, Women Accepted for Volunteer Emergency Service, typically known as WAVES, itself had been established just 2 years earlier, thus marking a return of women to the Navy after a 23-year hiatus. The continuing role of African-American women in the Navy is reflected in the Vietnam-era recruiting poster above.

Whales Against War?

A panelist at last week's enemy combatant symposium at UCLA put forward what he believed a ridiculous scenario as proof that congressional statutes can't trump the war powers of the President. The National Environmental Policy Act requires the government to get an environmental impact statement before it takes any action, he noted. Would anyone seriously argue that the President needs an EIS before troops go to battle? The vision of environmentalist legions litigating the war to an end bemused.
But his was no silly-season story. Just this January, the California Coastal Commission ruled 8-1 that the U.S. Navy could not go forward with sonar-testing in the Pacific unless it took certain measures to cut the sonar's harm to whales and other living, swimming creatures. Though the Navy reportedly rebuffed the Commission this week, last summer it settled a sonar challenge involving Hawaiian marine mammals.
Perhaps holding the President to Congress' ban on cruelty in time of crisis isn't crazy after all.