Enemy status and military detention : neutrality law and non-international armed conflict, municipal neutrality statutes, the U.N. Charter, and hostile intent
Karl S. Chang
Host item entries:
Texas international law journal, Vol. 47, no. 2, Spring 2012, p. 381-401
In “Enemy Status and Military Detention in the War Against Al-Qaeda,” the author proposed that the concept of “enemy” and the standards for construing “enemy” that have been developed in the law of neutrality provide the appropriate legal framework for construing the limits of detention authority in U.S. military operations against al-Qaeda. The author proposed the concept of “enemy” as a legal theory that would bridge domestic and international law. This theory could provide principles to address the hard cases and define the edges of the authority that the U.S. government may exercise to prosecute its war against al-Qaeda. And, unlike attempts to craft law anew, this theory draws from the rich principles and practice that states have developed in the law of neutrality. In this vein, Rebecca Ingber and Kevin Jon Heller have written responses to “Enemy Status and Military Detention,” which accompanied it in the first issue of the forty-seventh volume of the Texas International Law Journal. Ingber and Heller have raised some important issues to which the author would like to reply. Below, he discusses : (1) the law of neutrality and non-international armed conflict; (2) using municipal neutrality statutes to interpret international law; (3) the effect of the U.N. Charter on the law of neutrality; and (4) using hostile intent to distinguish between violations of neutral duties and conversion of a neutral to an enemy.