The Law of Neutrality Does Not Apply to the Conflict with Al-Qaeda, and It’s a Good Thing, Too: A Response to Chang

Abstract

In his essay “Enemy Status and Military Detention in the War Against al-Qaeda,” Karl Chang addresses one of the most critical problems in contemporary international law: the scope of a state’s detention authority in non-international armed conflict (NIAC). Conventional international humanitarian law (IHL) applicable in such conflict – Common Article 3 of the Geneva Conventions and the Second Additional Protocol – is silent concerning detention; it simply requires individuals who are detained to be treated humanely. Scholars have thus turned to a variety of legal sources to address the detention issue. Some have argued that detention in NIAC is governed solely by the rules of IHL applicable in international armed conflict (IAC), particularly the Fourth Geneva Convention’s provisions concerning the detention of civilians. Others claim that because conventional IHL does not regulate detention in NIAC, the scope of detention must be determined solely by reference to national law and international human rights law (IHRL). And still others have taken the position that IHL, national law, and IHLR are all relevant to determining the scope of detention in NIAC.

Chang, by contrast, looks to a completely different source of law: the law of neutrality. He rejects the idea that the scope of detention in NIAC is determined by the distinction between “combatants” and “civilians,” which is essential to all of the approaches mentioned above. Instead, he argues that “the legal limit on military detention is ‘enemy’, a concept that has been defined in the law of neutrality.” Indeed, in his view, “[t]he framework of duties and immunities in neutrality law give an overarching international law framework for U.S. military operations against al-Qaeda.”

This is a unique thesis. No scholar or state has ever taken the position that the law of neutrality applies to a transnational NIAC involving a terrorist group like al-Qaeda, much less that it provides the “overarching framework” for that type of conflict. And that is both the strength of Chang’s essay and its greatest weakness. De lege ferenda, the law as it ought to be, the essay makes an intriguing case for the relevance of neutrality law’s distinction between friend and enemy. But de lege lata, the law as it is, the essay is deeply problematic. Properly understood, the law of neutrality either does not apply to whatever NIAC exists between the United States and al-Qaeda or applies in a symmetrical manner that, if states took it seriously, would effectively cripple the United States’ counterterrorism efforts against al-Qaeda.

My Response is divided into three sections. Section I criticizes Chang’s assertion that the law of neutrality applies to the conflict between the United States and al-Qaeda, explaining why neutrality 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. Section 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, Section 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 UN Charter’s prohibition on the use of force.

Keywords: IHL, international humanitarian law, law of war, law of neutrality, belligerency, jus in bello, jus ad bellum, UN Charter, use of force, non-state actors, counterterrorism