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.")

'Nuff said

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

'There is already the beginnings of a global drone industry and a military-drone industrial complex. With success against al-Qaeda to his credit, it is time for Obama to step back and call for an international conference on the use (and abuse of drones), and the development of international legal protocols which regulate the use of drones in espionage and war.'

–  Our colleague Derek Shearer (prior posts), Stuart Chevalier Professor of Diplomacy and World Affairs at Los Angeles' Occidental College, in a Huff Po commentary entitled "After Obama Wins: What to Expect, What to Work for." The column ranges widely, discussing how President Barack Obama, should he win re-election in November, ought to tackle issues like poverty, fiscal policy, immigration and voter identification, climate change, manufacturing –  and targeted killing by drones, an issue on which IntLawGrrls often have posted. (credit for 2010 photo captioned "Armed Predator drone firing Hellfire missile")

On September 30

On this day in ...
... 2011, the United States killed 2 Americans by drone strike in north Yemen. As then posted, the 2, who were among several al-Qaeda-linked men traveling in a car when struck, were Anwar al-Awlaki, 40, a cleric whom the United States had long sought (and whom President Barack Obama said "had taken 'the lead role in planning and directing the efforts to murder innocent Americans'"), and Samir Kahn, 25, the editor of an online magazine maintained by al-Qaeda. Media attention was concentrated on account of the nationality of the 2, and so sparked a new round of debate regarding the U.S. policy respecting the drone aircraft (example picture above left), about which we've frequently posted. And see this report on civilians and drones, a just-released joint project of the Stanford International Human Rights and Conflict Resolution Clinic and the Global Justice Clinic at New York University School of Law. (photo credit)

(Prior September 30 posts are here, here, here, here, and here.)

'Nuff said

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

'I can see if your car is hot that you were just driving it, if you are smoking a cigarette.'

-- "Col. R" of the Israeli Defence Force, according to the Washington Post, the "commander of the drone squadron that flies over Gaza, who spoke on the condition that his full name not be used." (photo credit) Col. R's comment captures the precision of drone surveillance, and writer Scott Wilson's overall article, In Gaza, lives shaped by drones, conveys the ubiquity of the remote-controlled Israeli aircraft in Gaza, as well as their U.S. counterparts "over Pakistan's tribal areas and, increasingly, parts of East Africa and the Arabian Peninsula." (Followup letters to the WaPo editor here.)

Which lens for Awlaki?

What to think about the killing of Americans by a U.S. drone in Yemen?
Anwar al-Awlaki, a U.S.-born imam of Yemeni heritage said to have planned multiple attacks against the United States, and Samir Khan, a Saudi-born al Qaeda propagandist who'd spent his childhood in the United States, were among "at least seven" killed in the drone strike in Jawf, a Yemen province just south of the Saudi border.
What you think about this case depends on what law you think applies.
As reporter Carol J. Williams quoted me yesterday, in a Los Angeles Times article to which other colleagues also contributed:

Viewed through the lens of ordinary criminal justice, for the government to kill a suspect rather than put him on trial is summary execution, clearly forbidden by U.S. and international law alike. Viewed through the lens of armed conflict, the result is different, however: the laws of war permit a state to kill its enemies.

The U.S. citizenship of 2 who died has grabbed attention, but would seem not to change the legal analysis much. The 5th Amendment to the U.S. Constitution requires the federal government to accord due process to every "person," not just to citizens, and the laws of war are not blind to the possibility that a citizen might take up arms against his own country.
The problem is which laws apply.
The fact that the deaths occurred in Yemen, far from battlefields in Afghanistan, points to treating the killings under the rules of ordinary criminal justice. That's what civil rights groups alleged in a later-dismissed lawsuit they'd filed in 2010 on behalf of Awlaki.
But the fact that Awlaki is alleged to have been the enemy of the United States -- to have planned attacks during the current struggle between the United State and al Qaeda, as IntLawGrrl Karima Bennoune has stressed -- points to treating him as a casualty of war.
Which to choose is no easy question. That the operation was a joint effort between the U.S. military and the CIA underscores the blur.
What does seem clear is that the U.S. government will continue to chip at laws' lenses as long as it continues to wage its global campaign against terrorism.

...and counting...

(Occasional sobering thoughts.) It has been 11 weeks since, as we then posted, the United States and other countries intervened militarily against the government of Muammar el-Qaddafi in Libya. Intervention continues, albeit now under the auspices of the North Atlantic Treaty Organization. Having earlier this week extended its mission for another 3 months, NATO appears to have stepped up its attacks on Tripoli. And a permanent member that had abstained from voting on U.N. Security Council Resolution 1973 -- Russia -- now has joined a chorus calling for Qaddafi to go.
In Geneva tomorrow, discussion is scheduled of the report that the 3-member Libya inquiry commission (prior post) released last week and available here. The commission, appointed by the U.N. Human Rights Council, found the commission of war crimes and crimes against humanity by government and rebel troops alike.
Casualty numbers in this conflict are hard to come by. Best estimate found is a month old: from 2,000 to 10,000 persons killed between March 2 and May 3. (credit for above right Associated Press photo, by Darko Bandic, of a woman who attended a "funeral for nine of 11 clerics allegedly killed in a NATO airstrike in Tripoli" on May 14)
► As for Afghanistan, conflict now is nearing its 10th anniversary. May was the deadliest month for servicemembers in Afghanistan this year. Meanwhile, civilian deaths continue to provoke complaint. Last Tuesday -- days after "a weekend airstrike in Helmand province that Afghan officials said killed 14 civilians, 11 of them children" -- Afghan President Hamid Karzai insisted

'that NATO refrain from airstrikes on residential compounds, marking a sharp escalation in his long-running feud with Western commanders over the issue of civilian casualties.'

Yesterday, Robert Gates, the U.S. Secretary of Defense, envisioned negotiations; that is, he said

there could be political talks with the Afghan Taliban by the end of this year if NATO made more military advances and put pressure on the insurgents.

(credit for 2008 Associated Press photo above left, by Alauddin Khan, of funeral of victim of suicide bombing in Kandahar, Afghanistan)
The U.S. Department of Defense reports that in Afghanistan, coalition military casualties stand at 1,605 Americans, 369 Britons, and 535 other coalition servicemembers. That's an increase of 100, 9, and 28 casualties, respectively, in the last 11 weeks. The total coalition casualty count in the Afghanistan conflict is 2,509 service women and men.
► Drone attacks continue on both sides of the AfPak line. Save for occasional announcements like that yesterday respecting the drone-attack killing of an al Qaeda leader in Pakistan, no casualty figures available respecting that side of the border.
► Iraq Body Count reports that between 101,121 and 110,454 Iraqi women, children, and men have died in the conflict in Iraq since the U.S.-led invasion in March 2003. That represents an increase of between 1,070 and 1,136 persons in the last 11 weeks. According to the U.S. Defense Department, 4,454 American servicemembers have been killed in Iraq, representing 14 servicemember deaths in the last 11 weeks. (As posted, U.S. troops are the only foreign forces remaining in Iraq.)

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.

'Nuff said

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

'It is the characterization of who we target and when – and how that determination is made – that raises serious questions of law and morality. In a nutshell: are we killing the right people?
'Effective counterterrorism requires the nation state to apply self-imposed restraint. Otherwise, violations of international law and morality are inevitable. ...
'Among the many important international law principles applicable to targeted killing, the obligation of distinction sits at the pinnacle. The notion of counterterrorism as self-defense against imminent threats of harm means that the state must know, in a detailed manner, who poses such a threat, in what circumstances, and how and when such persons can be targeted. ...'

– IntLawGrrls contributor Laurie Blank (Emory Law) and our colleague Amos Guiora (Utah Law), in their Guardian op-ed, "Targeted killing's 'flexibility' doctrine that enables US to flout the law of war." It's subtitled "The Obama administration's targeted killing program is recklessly redefining imminent threat and proportional response." Theirs is the latest on drone killings, an issue on which IntLawGrrls frequently have posted.

Limits on sovereignty & collective security

(My thanks to IntLawGrrls for the opportunity to contribute, in 2 parts, a version of remarks I delivered on the at the March 2012 annual meeting of the American Society of International Law. A full version of my comments will be published in the ASIL Annual Meeting Proceedings)

Two trends challenge the ability of international law – in particular, the collective security structure of the U.N. Charter – to constrain the use of force. Today’s post will address the first trend, of changing normative understandings; the second trend, of changing warfare technologies, will be addressed in a post tomorrow.

Changed understandings of sovereignty
Increasingly in recent decades, legal scholars, advocates, and policymakers have articulated an understanding of state sovereignty as limited. A state is said to be required to execute certain responsibilities. If it fails to do so, others may step to ensure proper execution of those responsibilities. The argument emerged in two very different discourse communities:
►Human rights, which speaks of atrocity prevention and the responsibility to protect; and
►National security, which talks of state duties to prevent the export of terrorism.

Responsibility to protect
A 2001 report by the International Commission on Intervention and State Sovereignty offered a starkly different understanding of sovereignty than that taken for granted prior to World War II:
‘State sovereignty implies responsibility…Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect.’
The report noted that the use of military force to protect populations should be a last resort, authorized by the U.N. Security Council, yet it stopped short of making such authorization a requirement. If the Council “fails to discharge its responsibility to protect in conscience-shocking situations crying out for action,” the report stated, “concerned states may not rule out other means to meet the gravity and urgency of that situation.”
The normative logic of responsibility to protect suggests that Council authorization should not be dispositive. As Anne Orford put it in her IntLawGrrls posts, the conceptual framework implies that the lawfulness of state authority is dependent on the capacity and will to protect populations from at least certain kinds of egregious harms. As a matter of logic, if sovereignty involves a responsibility to protect, and a state’s failure to protect its own population triggers a responsibility to protect in other states, that responsibility exists regardless of the (in)action by the politicized and veto-prone Council.

Terrorism prevention
Prior to the terrorist attacks of September 11, 2011, most states accepted (publicly, at least) the international law principle that force could not be used inside the territory of a sovereign state unless the:
► State at issue consented;
► Security Council authorized use of force under Chapter VII of the U.N. Charter; or
► Use of force was in self-defense against an “armed attack” as delineated by Article 51.
But the 9/11 attacks, which occurred two months before issuance of the first report on responsibility to protect, changed things.

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:

Obama & foreign policy: Right-of-center Democrat?

As we enter a Presidential election year and as candidates on both sides of the political spectrum start to articulate their foreign policy positions, I have become increasingly perplexed with a paradoxical phenomenon.
Our current President, Barack Obama (right), inaugurated 3 years ago today, is a Democrat supposedly to the left of center. Yet he seems far right of center on many foreign policy issues – in fact, so far right that it will become virtually impossible for many Republican candidates to announce positions farther right.
This post will not debate the (in)correctness of any of these positions. Rather, it will explain some key foreign policy issues in light of international law, and discuss why I believe the Administration’s policy situates itself on the right.
► First, let’s start with Guantánamo.
The word itself sparks so much debate (as is evident from IntLawGrrls' series of posts here, as well as posts here and here) that it would be futile in this brief post to attempt to debate the pros and cons of indefinite detention of terrorist suspects. Rather, let me remind everybody of the Obama Administration’s stance on Gitmo. In his first day in office, as indicated in the above photo, President Obama signed an executive order promising to close the detention facility at Guantánamo Bay. Many civil and human rights advocates applauded this decision, and President Obama himself seemed intent on reneging on some of the Bush Administration policies which he had so adamantly campaigned against.
Fast forward to 2012.
Not only has the Guantánamo prison remained open, but the Obama Administration now firmly believes in indefinite detention of terrorist suspects – the very concept which President Obama had fought against until 2008. In fact, the President just signed into law the infamous National Defense Authorization Act, which authorizes the indefinite detention of terrorism suspects and also limits transfers of cleared detainees to other countries.
Excellent academic debate has already occurred on this subject (here, here, and here). Thus, I will only highlight a few key points about this law.
President Obama pledged, through this law, to detain suspects indefinitely at sites such as Guantánamo; through this law, the President has also limited our ability to reduce the number of detainees by transferring those whom we no longer believe to be a threat to third countries. Thus, not only is President Obama not closing Guantánamo, he is likely to increase the number of detainees we house there. I cannot imagine how Republican candidates such as Mitt Romney, Rick Santorum, or Newt Gingrich will be able to formulate more conservative policies that would still appeal to the American electorate.
What does international law have to say on Guantánamo-like detention policies?

IHL Workshop Simulation: Al Aulaqi

Santa Clara University School of Law recently held our 6th annual International Humanitarian Law (IHL) Workshop, co-hosted with the International Committee of the Red Cross. (See our prior coverage here). Faculty included lawyers with the ICRC, faculty of the JAG Center and School, human rights lawyers, government lawyers, and academics. Participants were mostly law and LLM students drawn from law schools all over the country, with a few foreign institutions represented as well.

Each year, we conclude the Workshop with a final role play/simulation. In the past, we've had students negotiate the text of a statute for an international tribunal to prosecute acts of terrorism or a domestic statute specifically authorizing law-of-war detention beyond whatever is implicit in the 2001 Authorization to Use Military Force (AUMF). (These exercises are posted here). We provide each group with "talking points," but they are expected to formulate the details of their negotiating positions and remain in character throughout the duration of the exercise.

This year we convened mock Congressional hearings to discuss the drone killing of U.S. citizen Anwar al Aulaqi in Yemen in September 2011. Students were assigned to groups representing the Department of Defense, Human Rights First, the ACLU (which brought an unsuccessful suit in federal court on behalf of the decedent's father), the Special Rapporteur on Extrajudicial Killing, Republican & Democratic members of Congress (both hawks and doves), the Department of State, and the Central Intelligence Agency. Each group made an opening statement and then proceeded to give testimony in light of their particular concerns, mandates, and "red lines."

In this regard, participants were forced to grapple with complex questions involving the jus ad bellum and the jus in bello and their interaction. These included:

1. Whether the jus ad bellum are applicable at all in light of Yemen's apparent consent to the operation.
2. Whether the jus ad bellum, standing alone, provide for continuous targeting authority for states to employ against dangerous individuals under a self-defense rationale.
3. The ability of states to advance a self-defense justification for using military force against non-state actors.
4. Whether the AUMF can be deemed to authorize the use of force against an entity (and individual) that is only tangentially linked to the attacks of 9/11.
5. Whether domestic authorization to use force is even relevant for discrete attacks that may not rise to the level of "hostilities."
6. Whether the jus in bello apply in Yemen and, if so, how to identify the predicate armed conflict--the localized conflict against Al Qaida in the region, a globalized conflict against Al Qaida, or a more discrete conflict involving Al Qaida in the Arabian Peninsula (AQAP).
7. Whether the United States can be deemed a party to the conflict in Yemen being waged between the government and AQAP and, if not, whether there are limitations to the types of actions the U.S. can take in Yemen when assisting governmental authorities.
8. Whether al Aulaqi was a lawful target, even though he was not directly participating in hostilities at the time of the operation.
9. Whether continuous targeting authority exists against members of organized armed groups, even if they do not assume classical "combat" functions.
10. Whether IHL or any other source of law (human rights law, domestic constitutional law, the lex loci, or the jus ad bellum) imposed a requirement to endeavor to capture al Aulaqi in lieu of killing him outright.
11. If any of the United States' human rights obligations apply extraterritorially or in situations governed by IHL.

Even with only a week's training, the participants did an excellent job of spotting the issues and "representing" their clients. The simulation was followed by a panel discussion involving all faculty on the inter-agency process of formulating U.S. IHL policy.

Applications for next year's workshop will be open in the fall of 2013.

Women @ ASIL (5th ed.)

As we have each year since our founding ((here, here, here, here, and here), IntLawGrrls is proud today to highlight women who will speak March 23-26 at the forthcoming annual meeting of the American Society of International Law.
This 105th gathering of the Society, entitled Harmony and Dissonance in International Law, kicks off with the Grotius Lecture by Nobel Prizewinning economist Amartya Sen, for which our colleague Kim Lane Scheppele (Princeton) will serve as discussant. Also of note are: the annual WILIG luncheon, featuring IntLawGrrl Lucy Reed, immediate past President of ASIL; an opening plenary by Michael H. Posner, Assistant Secretary of State for the Bureau of Democracy, Human Rights, and Labor; and a plenary among several international judges. I'm especially excited about the Friday lunch dialogue featuring International Criminal Court Deputy Prosecutor Fatou Bensouda (left) -- wearing my hat as an ASIL vice president, I've been given the honor of serving as discussant/moderator for her talk. (photo credit)
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 many more. Particularly proud that so many persons featured are IntLawGrrls or IntLawGrrls alumnae!
Without further ado, here's this year's honor roll of Women @ ASIL:

Wednesday, March 23, 4:30-6 p.m.
► "The Global Status of Rights": Kim Lane Scheppele (Princeton) as discussant for Grotius Lecture by Amartya Sen.

Thursday, March 24, 11:15 a.m.-12:45 p.m.
► "The Supreme Court & Arbitration Law": Lorraine M. Brennan (JAMS International).
► "Legal Origins, Doing Business and Rule of Law Indicators: The Economic Evaluation of Legal Systems": Corinne Boismain (Université de Metz).
► "International Environmental Law Making and the International Court of Justice": Malgosia Fitzmaurice (University of London) (right), Natalie Klein (Macquarie), and IntLawGrrl guest/alumna Cymie Payne (Lewis & Clark) as panelists; Caroline Foster (Auckland) will moderate.
► "International Courts and Tribunals Interest Group: Judicial Selection": Eloïse Obadia (International Centre for Settlement of Investment Disputes) and Gabrielle Kirk McDonald (Iran-U.S. Claims Tribunal) (left).
► "Commissions of Inquiry into Armed Conflict, Breaches of the Laws of War and Human Rights Abuses: Process, Standards, and Lessons Learned": Agnieszka Jachec Neale (Essex) and Heidi Tagliavini (Swiss Ministry of Foreign Affairs).
►"New Voices I: Global Health, Trade & Common Resource Regimes": Lisa Clarke (Amsterdam), Erika Techera (Macquarie), and Margaret Young (Melbourne).

Thursday, March 24, 1-2:30 p.m.
► IntLawGrrl Lucy Reed (right), immediate past President of ASIL and a partner at Freshfields Bruckhaus Deringer LLP in New York, at the annual luncheon of WILIG, the Women in International Law Interest Group.
► "Fragmentation of International Legal Orders and International Law: Ways Forward?": Nele Matz-Lück (Max Planck Institute for Comparative Public Law and International Law, Heidelberg) as panelist; Ruti Teitel (New York Law School) will moderate.
► "Responding to Nuclear Security Challenges in a Fragmented World": Asli Ü. Bâli (UCLA) and Rose Gottemoeller (Assistant Secretary of State, Bureau of Verification, Compliance, and Implementation).
► "Seamlessness or Segmentation? International Economic Governance and European Sovereign Debt": Odette Lienau (Cornell) and Ann Misback (Federal Reserve Board).

Thursday, March 24, 3-4:30 p.m.
► "Annual Benjamin Ferencz Session: Integrating the Crime of Aggression into International Criminal law and Public International Law": Teresa McHenry (U.S. Department of Justice) and IntLawGrrl Beth Van Schaack (Santa Clara).
► "The Role of International Tribunals in Managing Coherence and Diversity in International Law": IntLawGrrls guest/alumna Andrea K. Bjorklund (California-Davis) and Valerie Hughes (Legal Affairs Director, World Trade Organization).
► "Dispute Resolution Interest Group: IS ICSID Losing Its Appeal...Again?": Andrea Menaker (White & Case LLP), moderator.
► "Espionage and the First Amendment After Wikileaks": Mary-Rose Papandrea (Boston College).

Thursday, March 24, 5-6:15 p.m.
► "Decision Making in International Courts and Tribunals: A Conversation": plenary keynote featuring numerous international jurists, including Dame Rosalyn Higgins (former President of the International Court of Justice) (left) and Brigitte Stern (Université de Paris I (Panthéon-Sorbonne)).

Friday, March 25, 7-8:30 a.m.
► "Targeting with Drone Technology: Humanitarian Law Implications": Naz Modirzadeh (Harvard) will moderate.

Friday, March 25, 9-10:30 a.m.
► "Strategy and Planning Meeting for ASIL's new International Disability Rights Interest Group," about which IntLawGrrl Hope Lewis, interest group co-chair along with Stephanie Ortoleva (BlueLaw), posted yesterday.
► "International Environmental Law Interest Group: Roundtable on Research Methodologies," an all-woman panel: Cinnamon Carlarne (South Carolina), Edith Brown Weiss (Georgetown) (right) and Jutta Brunnée (Toronto) as panelists; Sara Seck (Western Ontario) will moderate.
► "International Trade Law and International Investment Law: Convergence or Divergence?": Marinn Carlson (Sidley & Austin LLP).
► "What the Kosovo Advisory Opinion Means for the Future": Anne Peters (Basel).
► "The Role of Legal Norms in Mediation and Negotiation: Views from the Field": Jennifer Lake (Legal Advisor, Independent Diplomat, an advisory group).
► "Ethical and Practical Challenges for Corporate Lawyers Advising Clients on Human Rights": Sarah Altschuller (Foley Hoag LLP), Rachel Davis (Harvard's Kennedy School), and Alexandra Guáqueta (Flinders University).

Friday, March 25, 10:45 a.m.-12:15 p.m.
► "International Criminal Law Interest Group: 'Fact Finding Without Facts': A Conversation with Nancy Combs": IntLawGrrls guest/alumna Nancy Amoury Combs (William & Mary) will speak on her book titled above, about which she posted here; discussant will be her William & Mary colleague, Linda A. Malone.
► "Intellectual Property Law Interest Group: Harmonizing International Law: An IP Perspective": Seagull Song (Renmin University); Elizabeth Chien-Hale (Institute for Intellectual Property in Asia) will moderate.
► "Recent Trends in International Investment Treaty Law": Carolyn Lamm (White & Case LLP) and Loretta Malintoppi (Eversheds LLP).
► "The Roles and Responsibilities of International Organizations": Vera Gowlland-Debbas (Université de Génève) and Daphna Shraga (Office of Legal Affairs, United Nations) as panelists; Blanca Montejo (Office of Legal Affairs, United Nations) will moderate.
► "New Battlefields/Old Laws: Shaping a Legal Environment for Counterinsurgency": Ashley Deeks (Columbia) and Sarah Sewall (Harvard's Kennedy School).
► "Elections and Ethnic Violence": Susan Benesch (World Policy Institute); Sarah Knuckey (NYU) will moderate.

Friday, March 25, 12:30-2:30 p.m.
► "Luncheon Dialogue on the International Criminal Court": ICC Deputy Prosecutor Fatou Bensouda will be the principal speaker; yours truly, Diane Marie Amann (California-Davis), will serve as moderator/discussant.

Friday, March 25, 1-2:30 p.m.
► "International Legal Research Interest Group: Greater than the Sum of Its Parts: Global Cooperation in Making the World's Laws Accessible": Hongxia Liu (World Justice Project), Marylin Raisch (Georgetown), and Roberta Shaffer (Law Librarian of Congress) (left) as panelists; Amy Emerson (Cornell) will moderate.
► "Harmony and Dissonance in Extraterritorial Regulation": IntLawGrrls guest/alumna Hannah Buxbaum (Indiana).
► "Labor and Migration in International Law: Challenges of Protection, Specialization and Bilateralism": Nisha Varia (Human Rights Watch) and Ayelet Schachar (Toronto) as panelists; Regan Ralph (Fund for Global Human Rights) will moderate.

Friday, March 25, 3-4:30 p.m.
► "International Law and the Liability for Catastrophic Environmental Damage": Monika Hinteregger (University of Graz) as panelist; Marie Soveroski (ASIL International Environmental Law Interest Group Co-Chair) will moderate.
► "New Voices II: Internationalizing & Domesticating Law": Anna Dolidze (Cornell), IntLawGrrls guest/alumna Molly Beutz Land (New York Law School), and Tonya Putnam (Columbia).
► "Are There 'Regional' Approaches to International Dispute Resolution?": Katia Fach Gómez (Fordham), Judge Nkemdilim Amelia Izuako (U.N. Dispute Tribunal), and Catherine Kessedjian (Université Panthéon-Assas).
► "International Legal Theory Interest Group: Harmony and Dissonance in International Legal Theory": IntLawGrrls guest/alumna Nienke Grossman and Helen Stacy (Stanford).
► "International Legal Implications of Israel's Attack on the Gaza Aid Flotilla": Sari Bashi (Gisha: Legal Center for Freedom of Movement); Sarah Weiss Maudi (Israel Ministry of Foreign Affairs); Naz Modirzadeh (Harvard).

Friday, March 25, 8-10 p.m.
► "ASIL Annual Dinner: A Celebration of Distinction and Promise": featuring, inter alia, award of the Goler T. Butcher Medal to IntLawGrrl guest/alumna Gay McDougall, (left), U.N. Independent Expert on Minorities; Certificate for Scholarship (Creative Scholarship) to Jutta Brunnée, coauthor with Stephen J. Toope of Legitimacy and Legality in International Law; and Certificate for Scholarship (Honorable Mention in a specialized area of international law) to IntLawGrrl guest/alumna Anne Gallagher, author of The International Law of Human Trafficking, on which she posted here.

Saturday, March 26, 9-10:30 a.m.
► "Duplication and Divergence in the Work of the United Nations Human Rights Treaty Bodies": Sarah McCosker (Office of the Australian Attorney General) and Catherine Powell (State Department) (right) as panelists; Christina Cerna (Organization of American States) will moderate.
► "Trade and Investment in Africa: Harmony and Disharmony with the International Community": Uche Ewelukwa (Arkansas) as panelist; Angela M. Banks (William & Mary) will moderate.
► "Geoengineering Climate Change: Can the Law Catch Up?": IntLawGrrl Hari M. Osofsky (Minnesota) as panelist; IntLawGrrl Rebecca Bratspies (CUNY) will moderate.
► "Author Meets Reader; International Law in the U.S. Supreme Court: Continuity and Change": IntLawGrrls guest/alumna Mary Dudziak (Southern California) and Lori Damrosch (Columbia) as panelists; Ingrid Wuerth (Vanderbilt) will moderate.
► "Transnational Piracy: To Pay or Prosecute?": Jennifer Landsidle (State Department) as panelist; Mileno Sterio (Cleveland-Marshall) will moderate.

Kudos to: ASIL President David Caron; ASIL Executive Director Betsy Andersen; the Program Committee Co-Chairs, IntLawGrrls' guest/alumna Chimène Keitner (California-Hastings), Catherine Amirfar (Debevoise & Plimpton LLP), and Tai-Heng Cheng (New York Law School), as well as Planning Committee members Kristen Boon (Seton Hall), Christiane Bourloyannis-Vrailas (EC/UN), Harlan Cohen (Georgia), Omar Dajani (Pacific McGeorge), Jennifer Daskal (Department of Justice), John Fellas (Hughes Hubbard & Reed LLP), Chiara Giorgetti (White & Case LLP), Dick Jackson (Department of Defense), Rebecca Jenkin (Debevoise & Plimpton LLP), Larry Johnson (Columbia), Erasmo Lara (Mexico Foreign Ministry), Blanca Montejo (United Nations), Michael Newton (Vanderbilt), IntLawGrrl Christiana Ochoa (Indiana), Jeffrey Pryce (Steptoe & Johnson LLP), Regan Ralph (Fund for Global Human Rights), Hina Shamsi (American Civil Liberties Union), Ingrid Wuerth (Vanderbilt), Lionel Yee (Singapore Attorney-General's Chambers), and Nassib Ziadé (International Centre for the Settlement of International Disputes)!

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.

...and counting...

(Occasional sobering thoughts.) Perhaps the most poignant story to appear since our last post on casualties came out of Baghdad, where, active hostilities having subsided, survivors of the Iraq War are going through the painful process of finding lost loved ones -- identifying them via morgue photos made years ago.
After telling of one sad moment of recognition, New York Times writer Anthony Shadid continued:

On the charts that the American military provides, those numbers are seen as success, from nearly 4,000 dead in one month in 2006 to the few hundred today. The Interior Ministry offers its own toll of war — 72,124 since 2003, a number too precise to be true.

Shadid added that "even sober estimates suggest ... 100,000 or more" dead -- an estimate consistent with our own count below.

For the family chronicled in Shadid's story, identification enabled a visit to pay respects at a grave bearing a number but no name. It is an ending-of-conflict journey that many family members have yet to make:

At the morgue, more than 20,000 of the dead ... are still unidentified.

Another potential indicator of transition: news of a possible power-sharing deal that would allow a government to form in Iraq, where, the U.S. military has ended its combat mission and assumed a mission of assisting local security forces. (Prior IntLawGrrls post.)

Matters are rather different in Afghanistan.

In that country, the United States and other NATO forces continue in a combat role, and U.S.-led drone attacks along the Afghanistan-Pakistan border have surged.

This weekend, Afghans went to the polls to elect members of the national parliament. Balloting was marred by incidents of violence, the absence of voters, and allegations of electoral fraud:

At least 10 people were killed, scores of polling stations were attacked and hundreds of them apparently never opened.
Even where there was no shooting, turnout appeared to be unusually light. Many polling centers were largely empty for most of the day, in sharp contrast with presidential elections a year ago, where voters waited in long lines to vote. And where there was voting, there were numerous reports of fraud, from vote-buying to ballot-stuffing.

Afghan governmental officials endeavored to spin this news in a positive direction by noting that "in most places" there was no "major incident."

With these developments in mind, here's our count since our last such post 5 weeks ago:

► The U.S. Department of Defense reports that coalition military casualties in Afghanistan stand at 1,280 Americans, 335 Britons, and 463 other coalition servicemembers. That's an increase of 54, 4, and 29 casualties, respectively, in the last 5 weeks. The total coalition casualty count in the Afghanistan conflict is 2,078 service women and men.
► Respecting the conflict in Iraq, Iraq Body Count reports that between 97,994 and 106,954 Iraqi women, children, and men have died in the conflict in Iraq since the U.S.-led invasion in March 2003. That represents an increase of at the low end, a decrease of 17 at the high end reported on that website 5 weeks ago. That latter discrepancy underscores a point in the Shadid article quoted above: Iraq civilian-casualty numbers inevitably are imprecise. Still, the consistency between the Iraq Body Count numbers and the estimates of others serves to convey the magnitude of the loss.

According to the U.S. Defense Department, 4,421 American servicemembers have been killed in Iraq, representing 7 servicemember deaths in the last 5 weeks. (As posted, U.S. troops are the only foreign forces remaining in Iraq.)

...and counting....

(Occasional sobering thoughts.) It's been fully 14 weeks since we last took account of the conflicts in Iraq, Afghanistan, and on the Afghanistan-Pakistan border.
The headline news this past week, of course, has been President Barack Obama's firing of U.S. Gen. Stanley A. McChrystal from command of forces in Afghanistan. The Oval Office dismissal came days after the online publication of spoken, and gestured, criticisms by McChrystal and his staff, the crudeness of which reads as a juvenile and downright dumb effort by military brass to out-Rolling Stone the Rolling Stone. (Perhaps if they'd seen the Gaga cover that would cloak the McChrystal story, they'd have known the futility of any such effort.)
Also seizing headlines was Obama's in-an-instant replacement of McChrystal with Gen. David H. Petraeus, commander of the U.S.-led coalition in Iraq from 2007 to 2008.
But neither seems the real story.
More likely, the real story is Obama's insistence that no change in war-waging policy would accompany the change in war-waging generals:

We are going to break the Taliban's momentum. We are going to build Afghan capacity. We are going to relentlessly apply pressure on al-Qaida and its leadership, strengthening the ability of both Afghanistan and Pakistan to do the same.

Whether that's in fact the last word on policy remains to be seen.
On her 1st day in office Friday, Julia Gillard, the new Prime Minister of Australia, assured Obama in a phone conversation that "supports the war in Afghanistan and he can rely on her to continue the commitment of troops." (credit for 2009 photo of Gillard, then Deputy Prime Minister, visiting Australian troops in Iraq shortly before their withdrawal from that country)
Yet in the country contributing the most troops after the United States to the NATO effort in Afghanistan, the news of the week was the 300th British servicemember death there. Not surprisingly, yesterday the new Prime Minister, David Cameron, sounded a rather more measured tone after meeting with Obama on the 1st day of this week's G-20 summit in Toronto. Cameron said:

Making progress this year, putting everything we have into getting it right this year is vitally important.

Criticism of the tactics of the AfPak war also persist, as was evident in the attention paid the public defense of targeted-killing-by-drones, delivered in March by State Department Legal Adviser Harold Hongju Koh. Four persons were killed in a drone raid yesterday, another 13 last week; "Pakistani officials have told the BBC that the US have carried out at least 70 such raids since January."
Also of concern, the continued spike in civilian deaths, a trend that Obama's promised to work to reverse:

Figures from the Pentagon show 90 civilians were killed by American or NATO forces in the first four months of this year, compared with 51 in the same period last year ...

As for Iraq?
Far less news. About a hundred persons killed by car bombs in May, on the "bloodiest day this year." More recently, reports of scattered violence "as," to quote The New York Times, "as the country’s political stalemate dragged on."
With these developments in mind, we revisit the casualty count since our last "...and counting..." post 6 weeks ago:
► The U.S. Department of Defense reports that coalition military casualties in Afghanistan stand at 1,141 Americans, 308 Britons, and 425 other coalition servicemembers. That's an increase of 117, 43, and 32 casualties, respectively, in the last 14 weeks. The total coalition casualty count in the Afghanistan conflict is 1,874 service women and men.
► Respecting the conflict in Iraq, Iraq Body Count reports that between 96,813 and 105,563 Iraqi women, children, and men have died in the conflict in Iraq since the U.S.-led invasion in March 2003, representing an increase of between 1,089 and 1,136 deaths in the last 14 weeks.
According to the U.S. Defense Department, 4,408 American servicemembers have been killed in Iraq, representing 23 servicemember deaths in the last 14 weeks. (As posted, U.S. troops are the only foreign forces remaining in Iraq.)