The Law of Neutrality and the U.S. Conflict with Al-Qaeda

by Kevin Jon Heller

As readers know, a few of us on the blog have been debating whether the law of neutrality has any relevance to the United States’ conflict with al-Qaeda.  I’m thus delighted to announce that three essays on that very issue are now available on SSRN as part of a mini-symposium hosted by the Texas International Law Journal.  The lead essay is by Karl Chang, a lawyer with the Department of Defense; the two (long) responses are by yours truly and by Rebecca Ingber, who is on leave from the State Department’s Office of the Legal Adviser and is currently a CFR International Affairs Fellow at Columbia Law School.  Chang argues that the law of neutrality provides the relevant framework for the conflict with al-Qaeda; each in our own way, Ingber and I reject that idea.  Readers who are interested in the recognition of belligerency in non-international armed conflict will find that my response includes a much more academic treatment of that issue than has been possible on Opinio Juris.  Here are the abstracts:

Karl Chang, “Enemy Status and Military Detention in the War Against Al-Qaeda”

This Article presents “enemy” as a concept for defining the legal limits on military detention in the U.S. campaign against al-Qaeda. Existing frameworks have sought to define U.S. military detention authority in terms of “combatant,” a concept drawn from jus in bello — international law governing how enemies fight one another. Although helpful for informing who may be detained under the government’s war powers, “combatant” is not the correct legal concept for defining the limits of that authority. Instead, the correct legal concept is “enemy,” a concept that has been defined in the international law of neutrality — a species of jus ad bellum. Unlike jus in bello, which specifies the relations between opposing belligerents, neutrality law specifies the relations between belligerents and neutrals — those outside of the conflict. Neutrality law explains when non-hostile persons, organizations, and States forfeit their neutral immunity and acquire enemy status. Neutrality law’s role in defining who belligerents may treat as enemies in war is important not only as a matter of international law, but also domestic law. Interpreting the war powers conferred by Congress to be informed by the framework of duties and immunities in neutrality law balances, on the one hand, giving the President the authority necessary to wage war successfully and, on the other, ensuring that President uses the powers Congress grants only for the war that Congress has authorized. Lastly, this Article uses neutrality law’s framework of duties and immunities to describe who may be detained as an enemy in the ongoing war against al-Qaeda.

Kevin Jon Heller, “The Law of Neutrality Does Not Apply to al-Qaeda, and It’s a Good Thing, Too: A Response to Chang”

In his essay “Enemy Status and Military Detention in the War Against al-Qaeda,” Karl Chang addresses one of the most critical problems in contemporary international law: the scope of a state’s detention authority in non-international armed conflict (NIAC). Conventional international humanitarian law (IHL) applicable in such conflict – Common Article 3 of the Geneva Conventions and the Second Additional Protocol – is silent concerning detention; it simply requires individuals who are detained to be treated humanely. Scholars have thus turned to a variety of legal sources to address the detention issue. Some have argued that detention in NIAC is governed solely by the rules of IHL applicable in international armed conflict (IAC), particularly the Fourth Geneva Convention’s provisions concerning the detention of civilians. Others claim that because conventional IHL does not regulate detention in NIAC, the scope of detention must be determined solely by reference to national law and international human rights law (IHRL). And still others have taken the position that IHL, national law, and IHLR are all relevant to determining the scope of detention in NIAC.

Chang, by contrast, looks to a completely different source of law: the law of neutrality. He rejects the idea that the scope of detention in NIAC is determined by the distinction between “combatants” and “civilians,” which is essential to all of the approaches mentioned above. Instead, he argues that “the legal limit on military detention is ‘enemy’, a concept that has been defined in the law of neutrality.” Indeed, in his view, “[t]he framework of duties and immunities in neutrality law give an overarching international law framework for U.S. military operations against al-Qaeda.”

This is a unique thesis. No scholar or state has ever taken the position that the law of neutrality applies to a transnational NIAC involving a terrorist group like al-Qaeda, much less that it provides the “overarching framework” for that type of conflict. And that is both the strength of Chang’s essay and its greatest weakness. De lege ferenda, the law as it ought to be, the essay makes an intriguing case for the relevance of neutrality law’s distinction between friend and enemy. But de lege lata, the law as it is, the essay is deeply problematic. Properly understood, the law of neutrality either does not apply to whatever NIAC exists between the United States and al-Qaeda or applies in a symmetrical manner that, if states took it seriously, would effectively cripple the United States’ counterterrorism efforts against al-Qaeda.

My Response is divided into three sections. Section I criticizes Chang’s assertion that the law of neutrality applies to the conflict between the United States and al-Qaeda, explaining why neutrality would apply only if the United States or third states recognized al-Qaeda as a legitimate belligerent, a status that the United States would desperately want to avoid. Section II demonstrates that the power to detain is far more limited under the law of neutrality than Chang believes and that permitting states to declare neutrality would undermine the United States’ counterterrorism efforts. Finally, Section III explains why, contrary to Chang’s claim, the law of neutrality no longer determines the limits of the jus ad bellum, its rules having been effectively supplanted by the UN Charter’s prohibition on the use of force.

Rebecca Ingber, “Untangling Belligerency from Neutrality in the Conflict with Al-Qaeda”

This article presents a defense of the complex though critical practice of applying jus in bello principles, in particular the principle of distinction between belligerents and civilians, to non-international armed conflicts such as the conflict with al Qaeda.

There have been many attempts over the last decade to provide legal justification for a broad system of detention authority in the conflict with al Qaeda. The United States Government and the Supreme Court have construed state action in this conflict in “law of war” terms, sanctioning long-term preventive detention of captured al Qaeda and Taliban belligerents in accordance with “longstanding law-of-war principles.” Despite the flexibility in this framework, some legal commentators and government officials have nevertheless over the years pressed for broader and broader interpretation of the state’s authority. The Supreme Court has dismissed some of these more aggressive efforts — holding, for example, that Common Article 3 of the Geneva Conventions provides some minimum baseline of protection to detainees in the conflict with al Qaeda — though, having laid the foundation for the framework and established certain basic principles, its intervention has become increasingly rare in recent years. The overarching legal architecture for this conflict is thus fairly well-settled today and moored to recognized legal principles in the laws of war, but there is significant work that remains in its application and in determining the outer contours of the framework. Yet in seeking to demarcate these outer limits, Karl Chang’s recent piece, “Enemy Status and Military Detention in the War against al-Qaeda,” proposes a different framework altogether and one that yet again attempts to broaden the sphere of lawful state action in this conflict.

In “Enemy Status,” Chang contends that the appropriate international law framework for determining the scope of the United States Government’s detention authority in the conflict with al-Qaeda is found primarily not in the law of armed conflict but rather in the historic law of neutrality. In his attempt to resolve unsettled questions regarding the Government’s authority under both international and domestic law, particularly the 2001 Congressional Authorization for Use of Military Force, Chang eschews reliance on the belligerent-civilian distinction currently employed by the Government and some courts and drawn from the law of armed conflict. Chang instead argues that the contours of military detention should be constructed predominantly around a determination of who is the “enemy,” which he views as defined by the law of neutrality.

Principles drawn from neutrality law and practice may inform aspects of how states assess the legal contours of conflict with non-state organized armed groups. In particular, the answer to the critical question Chang does not resolve — namely, where was the historic line between mere violations of neutrality and acts of belligerency? — is one of the most relevant insights we might draw from neutrality practice. Nevertheless, a framework based on the laws developed to govern relations with neutral states cannot simply supplant the laws developed to inform and constrain actions between and against belligerents.

America’s credibility in modern armed conflict turns in large part on its fidelity to recognized legal authorities and constraints. The trend in the U.S. federal courts of late has been to defer broadly to the Government’s authority in this realm. Ultimately, however, whether or not there is extensive judicial oversight, the United States must conform its actions with the international laws of war. In fact, the broad deference that the courts are at present willing to afford the Executive makes it all the more incumbent on the Government — as the last word in many cases due either to judicial deference or non-justiciability — to draw its own careful distinctions and review of the legality of its decisionmaking in these arenas. The United States’ respect for and compliance with the laws of war are essential for the well-being of our troops, the continued cooperation and good will of our allies, and for our legitimacy in seeking to enforce compliance by others. It may also be critical to maintaining the current good will and deference of the federal courts.

http://opiniojuris.org/2011/10/06/the-law-of-neutrality-and-the-u-s-conflict-with-al-qaeda/

10 Responses

  1. Not sure how law of state neutrality applies to non-state actors.  I guess the idea is that if you leave an enemy in your country then the state that host’s them is no longer neutral and so then we can go down the belligerent path in an IAC.  Seems to be a stretch.  Asylum for political dissidents like Chileans under Pinochet in France makes France a belligerent with Chile.  Do not see it.  But, look forward to the articles.
    Best,
    Ben

  2. Kevin, congrats to you and the other participants in this, I’ve just started reading the papers, after Bobby C. had mentioned them somewhere, and they are excellent, and an excellent exchange.

  3. Response…
    I agree that we cannot be at war with al Qaeda as such, since they do not have state, nation, belligerent, or insurgent status.  There is no NIAC with al Qaeda as such.  However, we are involved in a real international armed conflict in Afghanistan and parts of Pakistan, where the theatre of war has migrated de facto.
    Thus, the law of neutrality has some relevance in some secotors of the globe.  The laws of war applicable to international armed conflicts provide the U.S. competencies and duties with respect to detainees in the theatre of war, and human rights law applies globally with respect to anyone of any status in the “effective control” of the U.S. or within its territorial jurisdiction.  The relevant standard under human rights law is “arbitrary” detention plus the right of access to a court for review of the propriety of detention (see, e.g. my Harv. Int’l L. J. article on Judicial Power, quoted in Hamdi on another point).
    What would be most interesting is detention of those who are DPAA (direct participants in armed attacks, ongoing armed attacks that trigger the right of the U.S. to target them under Article 51 of the U.N. Charter wherever they are located and whether or not they are an “enemy”.  By the way, U.S. cases early in our history used the laws of war and the fact of war to interpret the term “enemy” during our limited war with France.  I believe that one cannot be an “enemy” under international law outside the context of a real war, international or noninternational.
    If DOD or State think that the U.S. is involved in a NIAC with al Qaeda — better think again (outside the self-defense paradigm that is), because you are needless;y arguing for the placing U.S. military personnel in harms way with respect to the laws of war and lawful targetings and/or detention under the laws of war as such because U.S. military personnel would NOT have combatant status and would NOT have combatant immunity for what would otherwise be lawful acts of war during an international armed conflict.  Lucky for them, however, we are involved in an international armed conflict in Afghanistan and parts of Pakistan, and U.N. 51 allows the targeting (and detention?) of DPAA in Yemen, etc. outside the thaeatre of a real war.

  4. Response…
    p.s.  sorry for the spelling errors — sometimes my fingers don’t coordinate with my thoughts.
    As “readers” here probably know well, all of this (even self-defense captures) is addressed in my FSU J. Transnat’l L. & Pol’y article on Self-Defense Targeting…. (also available on-line at SSRN).
    Let’s “talk” more about self-defense captures and detention.

  5. Mr Chang presented his arguments at the annual international law conference of the US Naval War College held this past summer. You can listen to the presentation, and the reception that his arguments generated, by clicking on the picture associated with the particular panel of which he was a part by going here:

    https://www.usnwc.edu/Events/International-Law-Conference-2011.aspx

  6. Response…
    Kevin: I have read your draft article.  Yours is a scholarly presentation, but I disagree regarding permissible self-defense targetings of non-state attackers who are situated in a foreign country — at page 22, text around notes 138-139– I don’t read the Wall Op. or the DRC case as actually ruling the way you state — see my article on Self-Defense Targetings of Non-State Actors and Permissibility of U.S. Use of Drones in Pakistan, 18 J. Transnat’l L. & Pol’y 237, 249-58 (2010), available on ssrn
    On page 6 at text at note 27, the U.S. S.Ct. did not requore that “the insurgents respected the laws of war” as Lauterpacht himself preferred, so I am not sure that “echoed by the Supreme Court” is appropriate — perhaps echoed mostly by….

  7. Response…
    p.s. for other “readers” free download of the self-defense targetigs article at
    http://ssrn.com/abstract=1520717

  8. Jordan,

    We’ll just have to agree to disagree about that.  Nothing in DRC or Wall supports the “unwilling or unable” standard; both agree that imputability is required, although whether they agree with the restrictive Nicaragua test is, as Ruys discusses, certainly open to debate.

  9. Response…
    Kevin: re: ICJ’s DRC case, see footnotes 3 (at end), 33, 36 of my article, also noting the Chatham House group’s recognition that the ICJ did not answer the question re: attacks by non-state actors and responses without territorial state consent.  Moreover, as noted, the ICJ impliedly recognized the propriety of such responsive action.  In any event, ultimately art. 51 trumps art. 2(4).
    Regarding the article by REBECCA INGBER, I have read it and note that your’s is better for several reasons, although both of you provide convincing arguments why Mr. Chang’s approach is not appropriate.
    However, her article rests on some layered errors, such as the notion that the U.S. could be at war with al Qaeda as such — when al Qaeda does not even meet the test for application of AP2, much less traditional criteria for insurgent status (e.g., no effective control of territory as their own, no semblance of a government, no protracted or sustained hostilities).  There is also confusion between belligerency (such as the U.S. Civil War, where the traditional criteria for belligereent status were met by the CSA, including outside recognition of belligerent status — your piece is also helpful in this regard), and an insurgency or NIAC.  U.S. FM 27-10 aptly recognizes that all of the customary laws of war apply during a belligerency, once the insuregents meet all of the criteria for such status.  This is well-known in the military manuals and the law review literature.  It is also set forth in our Paust, Bassiouni, et al., International Criminal Law (3 ed. 2007) (Carolina Academic Press) casebook.
    Another problem with her article is the assumption that Hamdi recognized that the U.S. is in an armed conflict with al Qaeda (her page 4), since the Court focused on the armed conflict in Afghanistan (a real war with the Taliban, in which some al Qaeda types have been targeted and detained) — and, by the way, quoting me in part, the Court noted that this authority to detain will only last as long as the real war in Afghanistan lasts!  Clearly a potential problem for post-Afghan-war detention.  On page 6, she assumes that Hamdan recognized that the U.S. was in an armed conflict with al Qaeda as such, but the Court applied GC 3 as a minimum set of rights, duties, and competencies in the actual context of the war with the Taliban. There was no consideration of the actual criteria needed for belligerent or insurgent status, as there was by the Court regarding belligerent status in The Prize Cases.
    Of course, she is likely to espouse the claim of the Obama Admin. that the U.S., somehow, is at “war” with al Qaeda.  Readers here might also recall points made that even the loose Tadic claim, not necessarily adopted elsewhere as customary international law, has not been met with respect to “organized” armed or “protraqcted” hostilities.  Al Qaeda’s tactics outside of the actual theatre of war in Afghanistan and Pakistan (and query even there) are not the sort of organized, protracted hostilities that Tadic had invisioned.

  10. Response…
    sorry — still can’t type that well.
    Recall the minimum threshold for an internal armed conflict set forth in AP2, art. 1(1) — requring the existence of “dissident armed forces or other organized armed groups” (not al Qaeda), “under responsible command” (not al Qaeda), “exercise such control of part of” territory (not really al Qaeda as al Qaeda), and “carry out sustained and concerted hostilities” (not al Qaeda). 

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