Enemy status and military detention in the war against al-Qaeda
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Texas international law journal, Vol. 47, no. 1, 2011, p. 1-73
Karl S. Chang
This article presents "enemy" as a concept for defining the legal limits on military detention in the United States' campaign against al-Qaeda. Existing frameworks have sought to define the governments'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 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 full range of authority necessary to wage war successfully and, on the other, ensuring that the 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.