TILJ Mini-Symposium on the Law of Neutrality

by Kevin Jon Heller

The Texas International Law Journal has published its mini-symposium on Karl Chang’s article that argues the law of neutrality provides the applicable legal framework for the United States’ conflict with al-Qaeda.  There are two responses to the article: one by Rebecca Ingber, who is currently a fellow at Columbia Law School; and one by me.  Here is the abstract of my response, which is entitled “The Law of Neutrality Does Not Apply to the Conflict with Al-Qaeda, and It’s a Good Thing, Too: A Response to Chang”:

In his Article “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). Some have argued that detention in NIAC is governed solely by the rules of international humanitarian law (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 IHRL 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, “The framework of duties and immunities in neutrality law gives an overarching international law framework for U.S. military operations against al-Qaeda.” This is a unique thesis. De lege ferenda, the law as it ought to be, the Article 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 Article 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.

Readers’ thoughts would be most welcome.

http://opiniojuris.org/2012/04/09/tilj-mini-symposium-on-the-law-of-neutrality/

2 Responses

  1. Response…
    Didn’t we do this one before?

    If we cannot be at war with al Qaeda as such (and we can’t under traditional int’l law criteria), NIACs and neutrality are out the window and human rights law and UN 51 self-defense is the internatinal law that applies (as it does during armed conflicts).  ICCPR art. 9(1) merely prohibits “arbitrary” detention — not much of a limit on the power to detain.  UN art. 51 should allow capture of persons that are targetable in self-defense, and then h.r. law would regulate treatment.

  2. JP,

    Agreed!

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