Enemy Status and Military Detention: Neutrality Law and Non-International Armed Conflict, Municipal Neutrality Statutes, the U.N. Charter, and Hostile Intent

Article excerpt

SUMMARY

INTRODUCTION ............................................................................................................ ...382

I. THE LAW OF NEUTRALITY AND NON-INTERNATIONAL ARMED CONFLICT.............................................................................................................383

II. USING MUNICIPAL NEUTRALITY STATUTES TO INTERPRET INTERNATIONAL LAW........................................................................................387

III. THE EFFECT OF THE U.N. CHARTER ON THE LAW OF NEUTRALITY............ 391

IV. USING HOSTILE INTENT TO DISTINGUISH BETWEEN VIOLATIONS OF NEUTRAL DUTIES AND CONVERSION OF A NEUTRAL TO AN ENEMY. ....... ..394

CONCLUSION ...................................................................................................................400

INTRODUCTION

In "Enemy Status and Military Detention in the War Against Al-Qaeda," I 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.1

I sought to solve a problem of legal theory. The U.S. government has advanced common-sense, practical legal standards governing who may be detained in its military operations against al-Qaeda, but aspects of the legal theories underlying those standards have been sharply criticized. From the perspective of international law, critics have argued that the concept of "enemy combatant" advanced by the Bush Administration fails to justify the detention standard that the U.S. government has applied, while in the same breath noting that such authority is justified under other theories of international law.2 From the perspective of domestic law, certain judges on the D. C. Circuit have also accepted the legal standards offered by the government, while criticizing the use of customary international law to construe and apply those standards.3

I proposed the concept of "enemy" as a legal theory that would bridge domestic and international law, answering both sets of critics. 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. Of course, I did not hope to answer definitively every question, but rather to present an approach that has not yet been considered in the current context and to inspire new discussion and debate over a well-worn topic. 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.4 I thank Ms. Ingber and Professor Heller for taking the considerable time and effort to write thoughtful responses to "Enemy Status and Military Detention" and for furthering the conversation I hoped to begin.

Ingber and Heller have raised some important issues to which I would like to reply. Below, I discuss: (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.

I. THE LAW OF NEUTRALITY AND NON-INTERNATIONAL ARMED CONFLICT

From the title of Heller's Response, "The Law of Neutrality Does Not Apply to the Conflict with Al-Qaeda, and It's a Good Thing, Too: A Response to Chang," one might receive the impression that he disagrees with "Enemy Status and Military Detention" on the application of neutrality law to non-international armed conflict. …

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.