The law of neutrality and the conflict with Al Qaeda
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New York University law review, Vol. 85, no. 4, October 2010, p. 1186-1224
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Where, if at all, does the law of neutrality fit into the legal framework governing the conduct of this armed conflict with al Qaeda and associated forces? The author argues that neutrality is one of several principles that ensure the completeness of the modern law of armed conflict (LOAC) framework. The Obama administration has begun to apply analogous provisions of the LOAC rules developed in inter-state wars to its current conflicts - a recognition that this conflict, like all others, should be waged according to a complete legal regime. To date, however, the United States has not recognized the role of neutrality in its conflict with al Qaeda. This Note begins to fill that gap. While arguing that the law of neutrality is more important in this conflict than many others due to the conflict's global nature, this Note concludes that recognizing neutrality will only be a partial solution. Neutrality instructs, however, that the LOAC rules themselves may be applicable almost globally because of the asymmetrical nature of the conflict. The author argues that the central purpose of recognizing neutrality in our current conflicts is to avoid selectively applying parts of a comprehensive legal system, thereby leaving legal black holes in which some individuals have no protection. What matters most is that the intended fundamental feature of the LOAC regime - its completeness - is not abandoned each time a new form of conflict is recognized.