The law of neutrality does not apply to the conflict with Al-Qaeda, and it's a good thing, too : a response to Chang
Kevin Jon Heller
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Texas international law journal, Vol. 47, no. 1, Fall 2011, p. 115-141
In his Article “Enemy Status and Military Detention in the War Against Al-Qaeda,” Karl Chang addresses the critical problems of the scope of a state’s detention authority in non-international armed conflict (NIAC). He rejects the idea that the scope of detention in NIAC is determined by the distinction between “combatants” and “civilians”. Instead, he argues that “the legal limit on military detention is ‘enemy,’ a concept that has been defined in the law of neutrality.” This article is a response divided into three sections. Part I criticizes Chang’s assertion that the law of neutrality applies to the conflict between the United States and al-Qaeda, explaining why neutrality law 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. Part 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, Part 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 U.N. Charter’s prohibition on the use of force.