Untangling belligerency from neutrality in the conflict with Al-Qaeda
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Texas international law journal, Vol. 47, no. 1, Fall 2011, p. 75-114
This Article provides a survey of the legal architecture currently governing the conflict with al-Qaeda and the Taliban, and — considering that operating framework —presents a defense of critical law of war constraints on state action. It responds to Karl Chang’s Article, “Enemy Status and Military Detention in the War Against Al-Qaeda,” which proposes a broad legal theory of detention based on the law of neutrality and divorced from core protective law of war constraints. In responding to this and other calls for broad authority, this Article supports the complex though crucial practice of applying jus in bello principles, such as the principle of distinction between belligerents and civilians, to modern armed conflicts such as that with al-Qaeda and the Taliban. To the extent the U.S. government and other states rely on an armed conflict paradigm to support broad authorities, they must likewise constrain themselves in accordance with the international legal regimes governing such conflicts.