The Holy See, Historicity, and Humanitarian Intervention: Using Integrative Jurisprudence to Inform Contemporary Practice JASON DANIEL MEDINGER† ABSTRACT The academic debate surrounding the legality of humanitarian intervention has faltered because of fundamental disagreement about legitimating sources of law. For the states and scholars who give primacy to positive sources of law, humanitarian intervention is a violation of state sovereignty not permitted under international law. In contrast, for natural law theorists who contend that natural law should predominate when necessary to abate atrocities, humanitarian intervention is permitted to curtail human rights abuses. With the positivists and the natural law adherents in such pitched positions, scholarship on the issue of intervention has degenerated into stalemate. One state, however, offers an opportunity for compromise: the Holy See. By proposing historical precedent as a third source of law that impacts the legality of humanitarian intervention, the Holy See’s position lays the groundwork for the adoption of a new framework in the debate over intervention, a framework which incorporates all three classical schools of legal theory—positivism, natural law, and historicity—to evaluate the legality of intervention. Recognizing the Holy See’s important contribution, and drawing from the positivist and natural law positions, Jason Medinger’s article proposes a model for evaluating the legality of humanitarian intervention based on classical integrative jurisprudence.

SUMMARY I.

INTRODUCTION............................................................................................................ 40

II.

INTEGRATIVE JURISPRUDENCE AND HUMANITARIAN INTERVENTION: A FRAMEWORK ............................................................................................................... 44

III.

LEGAL POSITIVISM AND HUMANITARIAN INTERVENTION............................................ 46 A. The Positivist Perspective: The Dominant Theory.............................................. 46 B. Current Positive International Humanitarian Law Condemns Intervention ......................................................................................................... 47 C. Critiques of Positivist Arguments in the Field of Humanitarian Intervention ......................................................................................................... 49

† Law Clerk for the Honorable Stanley F. Birch, Jr., United States Court of Appeals for the Eleventh Circuit; B.A. University of Notre Dame (2000); J.D. Emory University School of Law (2004). I would like to thank Johan van der Vyver, Tyler Sande, and Alison McElroy for their helpful comments on earlier drafts of this Article.

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IV.

NATURAL LAW AND HUMANITARIAN INTERVENTION ................................................. 51 A. The Natural Law Perspective: The Altruistic Theory.......................................... 52 B. Natural Law Condones Humanitarian Intervention............................................ 52 C. Critiques of Natural Law Standing in Isolation .................................................. 54

V.

HISTORICITY AND HUMANITARIAN INTERVENTION ..................................................... 56 A. Historical Perspective: The Forgotten Theory.................................................... 56 B. Historicity Allows Intervention in Particular Circumstances ............................. 57 1. Writings of Pre-Modern Scholars Allow Intervention in Certain Circumstances .............................................................................................. 58 2. Common Historical Experiences Have Galvanized a Duty to Intervene....................................................................................................... 60 C. Critiques of the Historical Position..................................................................... 61

VI.

HUMANITARIAN INTERVENTION THROUGH THE LENS OF INTEGRATIVE JURISPRUDENCE........................................................................................................... 62

VII. CONCLUSION ............................................................................................................... 65

I.

INTRODUCTION

Atrocities inspire activism. Throughout modern history, in the face of gross and persistent violations of human rights, states have intervened to abate oppression, violence, and slaughter. In 1827, Britain, France, and Russia intervened to avert the systematic killing of Christians in Greece;1 in 1971, India invaded East Pakistan to stop mass genocide and widespread looting;2 and in 1999, the allied forces of NATO intervened in Kosovo to end the massacre of Kosovar Albanian civilians.3 These are but a few examples of the humanitarian interventions4 that have taken place over the last two centuries.5 1. FRANCIS KOFI ABIEW, THE EVOLUTION OF THE DOCTRINE AND PRACTICE OF HUMANITARIAN INTERVENTION 48–49 (1999). The intervention was ostensibly motivated “‘no less by sentiments of humanity, than by interests for the tranquillity of Europe.’” Id. at 49 (quoting the 1827 London Treaty which eventually ended the hostilities and provided for an independent Greek state). 2. SEAN D. MURPHY, HUMANITARIAN INTERVENTION: THE UNITED NATIONS IN AN EVOLVING WORLD ORDER 97–100 (Procedural Aspects of Int’l Law Inst., Series Vol. 21, 1996). Indian governmental officials noted that one of the reasons for their intervention was to “‘rescue the people of East Bengal from what they are suffering.’” ABIEW, supra note 1, at 115. 3. See David Vesel, The Lonely Pragmatist: Humanitarian Intervention in an Imperfect World, 18 BYU J. PUB. L. 1, 41–49 (2003). In defending its intervention, a NATO spokesman said “‘that there are some crimes so extreme that a state responsible for them, despite the principle of sovereignty, may properly be the subject of military intervention.’” Id. at 45. One NATO country, Great Britain, explicitly claimed that NATO’s Kosovo intervention was justified by humanitarian ends. See John Yoo, Using Force, 71 U. CHI. L. REV. 729, 733 (2004). 4. Humanitarian intervention, as used in this Article, is defined as the threat or use of force by a state actor, a group of state actors, or an intergovernmental organization primarily for the purpose of abating or eliminating massive human rights violations being committed against the nationals of the target state. See MURPHY, supra note 2, at 11–12. The humanitarian intervention encompassed by this Article thus must be distinguished from a state’s intervention to protect its own nationals who are in the target state. The latter kind of intervention is widely recognized as legal either by an extension of the self-defense principles of Article 51 of the U.N. Charter, see Klinton W. Alexander, NATO’s Intervention in Kosovo: The Legal Case for Violating Yugoslavia’s National Sovereignty in the Absence of Security Council Approval, 22 HOUS. J. INT’L L. 403, 413–14 (2000), or by customary international law doctrines still in force which sanction such intervention, MURPHY, supra note 2, at 113; Marian Nash Leich, Contemporary Practice of the United States Relating to International Law, 84 AM. J. INT’L L. 536, 546 (1990). Humanitarian intervention must also be distinguished from humanitarian assistance, which refers to the rendering of aid in the form of food, medicine, and other basic supplies to civilians in a target state. See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of

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But despite the empirically significant number of interventions in modern history, such activism has not always been met with approbation. While some interventions using force were sanctioned by the United Nations Security Council pursuant to its Chapter VII enforcement powers,6 others were carried out by a state, or a group of states, without a U.N. mandate. Often, regardless of the humanitarian motivations behind these latter actions,7 state-led interventions were met with widespread criticism.8 Thus, despite a host of international humanitarian law conventions designed to safeguard human rights,9 efforts to secure such rights are routinely condemned if effected outside of U.N. auspices.10 Accordingly, the present dichotomy pits a state practice against its state detractors. Bolstering, and perhaps deepening, this divide is the legal academy, which has produced scholars who support the legality of humanitarian intervention11 and those who condemn it.12 And while scholars and jurists on each side of the controversy have posited a myriad

Victims of International Armed Conflicts (Protocol I) art. 69(1), adopted June 8, 1977, 1125 U.N.T.S. 3 [hereinafter Geneva Protocol I]. Assistance actions, because they do not involve the threat or use of force, have been deemed legal because they are outside of U.N. Charter Article 2(4)’s prohibitions. See Yogesh K. Tyagi, The Concept of Humanitarian Intervention Revisited, 16 MICH. J. INT’L L. 883, 891–92 (1995). 5. Other examples of post-Westphalian interventions prompted, at least in part, by humanitarian concerns include: France in Syria (1860); Russia in Bosnia, Herzegovina, and Bulgaria (1877); United States in Cuba (1898); Greece, Bulgaria, and Serbia in Macedonia (1913); France, Greece, and Armenia in Turkey (1919); Egypt in Palestine/Israel (1948); Belgium in the Congo (1960); United States in Dominican Republic (1965); Syria in Lebanon (1976); Vietnam in Cambodia (1978); Tanzania in Uganda (1979); United States in Grenada (1983); United States in Panama (1990); ECOMOG in Liberia (1990); NATO in Bosnia-Herzegovina (1992); United Nations in Somalia (1992); France in Rwanda (1994); United Nations in Haiti (1994); ECOMOG in Sierra Leone (1998); Australia in East Timor (1999); and NATO in Kosovo (1999). See MURPHY, supra note 2, at 53–57; NATALINO RONZITTI, RESCUING NATIONALS ABROAD THROUGH MILITARY COERCION AND INTERVENTION ON GROUNDS OF HUMANITY 30–33 (1985); Vesel, supra note 3, at 19–49; Yoo, supra note 3, at 743. While many of these examples were also, in part, motivated by concerns other than human rights-related issues—such as a desire to protect nationals, increase trade, spread democracy, etc.—the fact that a portion of the rationale stemmed from a desire to abate human rights abuses makes them appropriate examples of humanitarian interventions. See Yoo, supra note 3, at 743. 6. Under Chapter VII of the U.N. Charter, the Security Council is charged with taking action with respect to any “threat to the peace, breach of the peace, or act of aggression.” U.N. Charter art. 39. Provided the Security Council finds there is a threat to the peace, it may authorize remedial action pursuant to Articles 41 (economic and diplomatic sanctions) and 42 (military force). U.N. Charter arts. 41, 42. The intervention in Somalia was an example of an Article 42 enforcement action conducted pursuant to Chapter VII. Cf. MURPHY, supra note 2, at 221. 7. Critics of interventions assert, however, that an intervening state’s declarations of humanitarian motives are no more than lip service to cloak their strategic behavior and national self-interest. See RONZITTI, supra note 5, at 108–10; Daphné Richemond, Normativity in International Law: The Case of Unilateral Humanitarian Intervention, 6 YALE HUM. RTS. & DEV. L.J. 45, 51 (2003). 8. See, e.g., ABIEW, supra note 1, at 116 (noting how Argentina, China, Pakistan, Saudi Arabia, Tunisia, and the United States condemned India’s intervention in East Pakistan in 1971). 9. See, e.g., Convention on the Prevention and Punishment of the Crime of Genocide, G.A. Res. 260 (III), art. I, U.N. Doc. A/810 (Dec. 9, 1948), available at http://www.un.org/documents/ga/res/3/ares3.htm (outlawing genocide); Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 3(1), Aug. 12, 1949, 75 U.N.T.S. 287 (prohibiting, inter alia, murder of all kinds, cruel treatment and torture, and outrages to personal dignity); Rome Statute of the International Criminal Court art. 7, § 1(h), July 17, 1998, 37 I.L.M. 999 (making it a crime against humanity to willfully cause the persecution of any identifiable group). 10. Richard B. Lillich, Forcible Self-Help by States to Protect Human Rights, 53 IOWA L. REV. 325, 335–36 (1967) (remarking that “‘[f]rom a practical point of view it would seem that the Charter encumbers rather than advances . . . human rights’”) (quoting ANN VAN WYNEN THOMAS & A.J. THOMAS, JR., NON-INTERVENTION: THE LAW AND ITS IMPORT IN THE AMERICAS 312 (1956)). 11. See infra Part IV.B. 12. See infra Part III.B.

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of multi-factored tests to support their positions,13 the crux of the debate essentially boils down to one issue: legitimating sources. Where a scholar stands on the legality of intervention devolves into a question of which sources the scholar believes are authoritative in legitimating intervention. Pursuant to this dynamic, modern scholars who debate the legality of intervention roughly divide into two ideological camps: legal positivists and natural law proponents.14 Legal positivists contend that international conventions, particularly the U.N. Charter provisions, are the only sources which can legitimate intervention.15 The majority of positivists cite Article 2(4) of the U.N. Charter16 as conclusive proof that all extra-U.N. interventions which do not fall under Article 51’s self-defense exception17 are illegal a fortiori.18 In contrast, natural law theorists, the minority group in relation to positivists,19 assert that principles of natural law can provide legal justification apart from the written instruments of positive law.20 Natural law theorists stress universal principles, such as respect for human dignity and justice,21 and it is these values which provide the legal legitimacy for states to resort to intervention.22 Viewing this dynamic in which each camp cites different legitimating sources to justify opposite conclusions, it is easy to see how the debate regarding the legality of humanitarian intervention has degenerated into deadlock.23 This Article seeks to shift the debate away from such stalemate by highlighting how one state recognizes a third legitimating source and, in so doing, suggests a new framework by which to measure the legality of humanitarian intervention. That state is the Holy See.24 13. See, e.g., Richard A. Falk, Kosovo, World Order, and the Future of International Law, 93 AM. J. INT’L L. 847, 856 (1999) (suggesting a five-factored test); Patricia Y. Reyhan, Genocidal Violence in Burundi: Should International Law Prohibit Domestic Humanitarian Intervention?, 60 ALB. L. REV. 771, 789–96 (1997) (describing a six-factored test). 14. While there are those who would further delineate and classify the scholarly camps on this issue, all attempts at categorization realize the basic divide between positivists and natural law adherents. See, e.g., A.P.V. Rogers, Humanitarian Intervention and International Law, 27 HARV. J.L. & PUB. POL’Y 725, 730–33 (2004). 15. For a broader discussion of the positivist position, see infra Part III. 16. Article 2(4) of the U.N. Charter provides that “Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the Purposes of the United Nations.” U.N. Charter art. 2, para. 4. 17. See U.N. Charter art. 51 (authorizing states to engage in “individual or collective self-defense if an armed attack occurs against a Member of the United Nations”). 18. Cf. RONZITTI, supra note 5, at 108–09. Ian Brownlie was the leading scholar to posit this view. See Ian Brownlie, Humanitarian Intervention, in LAW AND CIVIL WAR IN THE MODERN WORLD 217, 226 (John Norton Moore ed., 1974). He is joined by a host of others. See, e.g., Louis Henkin, Commentary, Kosovo and the Law of “Humanitarian Intervention,” 93 AM. J. INT’L L. 824, 826 (1999) (“[T]he law is, and ought to be, that unilateral intervention by military force by a state or group of states is unlawful unless authorized by the Security Council.”); infra Part III.B. Although the majority of positivists do condemn interventions, there is a minority of positivists who support the right to intervention, especially if conducted pursuant to objectives found in Article 1 of the U.N. Charter. See JULIUS STONE, AGGRESSION AND WORLD ORDER: A CRITIQUE OF UNITED NATIONS THEORIES OF AGGRESSION 95 (1958); see also PHILIP C. JESSUP, A MODERN LAW OF NATIONS: AN INTRODUCTION 162–63 (photo. reprint 1968) (1947); Jordan J. Paust, Use of Armed Force Against Terrorists in Afghanistan, Iraq, and Beyond, 35 CORNELL INT’L L.J. 533, 536 (2002); infra Part III.B (detailing positivist arguments against intervention). 19. MURPHY, supra note 2, at 33 (stating that most modern scholars focus exclusively on the U.N. Charter with little or no references to natural law theories or pre-U.N. Charter historical practice). For additional commentary on natural law theorists, see note 53 infra. 20. See infra Part IV for a more detailed discussion of the natural law adherents’ position. 21. See Harold J. Berman, Toward an Integrative Jurisprudence: Politics, Morality, History, 76 CAL. L. REV. 779, 780 (1988). 22. See id.; MURPHY, supra note 2, at 33. 23. Cf. MURPHY, supra note 2, at 33–34. 24. Despite a judicial determination that the Holy See is a sovereign state, see Americans United For Separation of Church & State v. Reagan, 786 F.2d 194, 198 (3d Cir. 1986), and the establishment of diplomatic relations with the Holy See by numerous other states, there remains some debate about whether the Holy See can

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The Holy See, despite its small territorial size,25 its lack of a regular army,26 and the fact that its forces have not participated in a major armed conflict since the eighteenth century,27 is nonetheless a vocal participant in international humanitarian law. The Holy See has been particularly outspoken on issues related to humanitarian intervention. For example, in response to the ethnic cleansing campaign waged by Serb forces in Bosnia in 1992, Pope John Paul II spoke of the need for “humanitarian intervention” by third party states to “disarm the aggressor.”28 Similar statements were issued by the Holy See calling for intervention in Kosovo and East Timor in 1999.29 But the significance of the Holy See’s activity in relation to intervention is not that it is a participant in the debate. Rather, the significance lies in the substance of its arguments. Careful analysis demonstrates that the Holy See justifies pro-intervention statements with arguments grounded not only in terms of positivism and natural law but also in historical practice.30 The Holy See thus gives voice to the application of a new framework for evaluating the legality of interventions, a framework based on a trinity of positivism, natural law, and historicism. Legal scholars call this framework “classical integrative jurisprudence.”31

be considered a state according to the generally accepted criteria for modern statehood outlined by the 1933 Montevideo Convention on the Rights and Duties of States. Compare Robert John Araujo, The International Personality and Sovereignty of the Holy See, 50 CATH. U. L. REV. 291 (2001) (asserting that the Holy See is a state) with Yasmin Abdullah, Note, The Holy See at United Nations Conferences: State or Church?, 96 COLUM. L. REV. 1835 (1996) (arguing that the Holy See does not meet the Montevideo criteria). Under the constitutive theory of statehood—which is a more appropriate barometer of statehood here than the declaratory theory—a sovereign actor is considered a state if other states treat it as one. Accordingly, because it is treated as a state by the 172 countries (including the United States) that have established diplomatic relations with it, the Holy See is a state under the constitutive theory of statehood and shall be considered as such in this Article. See Araujo, supra, at 324. 25. Thomas D. Grant, Between Diversity and Disorder, 12 AM. U. J. INT’L L. & POL’Y 629, 671 (1997) (reviewing JORRI C. DUURSMA, FRAGMENTATION AND THE INTERNATIONAL RELATIONS OF MICRO-STATES: SELFDETERMINATION AND STATEHOOD (1996)) (noting that the state of the Vatican City, the seat of the Holy See, spans less than half of a square kilometer). 26. The Vatican has had the services of the Swiss Guard since 1506, and utilized them in armed conflicts several times during the sixteenth and seventeenth centuries. See Vatican, Swiss Guard: History, http://www.vatican.va/roman_curia/ swiss_guard/swissguard/storia_en.htm (last visited Oct. 21, 2005). However, from the mid-twentieth century to the present, the Swiss Guard has been used strictly for security and ceremonial purposes. See Vatican, Swiss Guard: Duties, http://www.vatican.va/roman_curia/swiss_guard/swissguard/ compiti_en.htm (last visited Oct. 21, 2005); Winston P. Nagan & Craig Hammer, The New Bush National Security Doctrine and the Rule of Law, 22 BERKELEY J. INT’L L. 375, 386 (2004). As such, they cannot be considered a regular army in the traditional sense of the term. 27. See Carol Glatz, Swiss Guard: Keeping the Peace and Protecting the Pope for 500 Years, CATH. NEWS SERV., May 7, 2004, available at http://www.catholicnews.com/data/stories/cns/swiss.htm (noting that the last major conflict fought by the Swiss Guard was against the forces of Napoleon in 1798). 28. See Holy Father Calls for Intervention in Bosnia, L’OSSERVATORE ROMANO (WEEKLY EDITION IN ENGLISH), Apr. 1, 1992, at 1. See also Communiqué from Holy See’s Press Office, L’OSSERVATORE ROMANO (WEEKLY EDITION IN ENGLISH), Aug. 12/19, 1992, at 12 (commenting on “the right and duty of humanitarian intervention ‘to disarm anyone who wants to kill’. . . .”). 29. Press Release, Vatican Press Office, Communication on the Mission of His Excellency Monsignor JeanLouis Tauran to Belgrade (Apr. 1, 1999) (translated from original in Italian) (on file with author); Pope John Paul II, End the Slaughter of East Timor’s People!, L’OSSERVATORE ROMANO (WEEKLY EDITION IN ENGLISH), Sept. 15, 1999, at 1. While time will tell, it has been predicted that the Holy See will continue to actively participate in international relations and address universal human rights issues under John Paul II’s successor, Pope Benedict XVI. See Editorial, A New Pope, WASH. POST, Apr. 20, 2005, at A24; see also Pope Benedict XVI, Address to the Delegates of Other Churches and Ecclesial Communities and of Other Religious Traditions (Apr. 25, 2005), available at http://www.vatican.va/holy_father/benedict_xvi/speeches/2005/april/documents/hf_benxvi_spe_ 20050425_rappresentanti-religiosi_en.html (noting his desire to engage in dialogue with various groups at the “international level”). 30. See infra Part V.B. 31. For a more detailed explanation of the facets of integrative jurisprudence, see infra Part II.

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Part I of this Article will briefly outline the integrative jurisprudence framework and how it can be applied to the humanitarian intervention debate. Parts II and III will sketch the arguments made by the positivist and the natural law adherents, respectively, with regard to humanitarian intervention and will discuss their particular shortcomings. Part IV will examine the historicist perspective, with a particular emphasis on the Holy See’s advancement of historical arguments in favor of humanitarian intervention. Part V concludes with a look at how the humanitarian intervention debate is changed by the addition of the historicist perspective and determines that, in light of an integrative approach, humanitarian intervention merits greater legal recognition.

II.

INTEGRATIVE JURISPRUDENCE AND HUMANITARIAN INTERVENTION: A FRAMEWORK

Integrative jurisprudence32 is a legal philosophy which posits that what the law “is” cannot be restricted to solely what is written in a statute. Rather, integrative jurisprudence teaches that the legality of an act is measured by the actual language contained in a rule as well as by values and historical practices which inform how the legal rule is interpreted and applied.33 While later sections in this Article will explain in detail the three component parts of integrative jurisprudence,34 several examples of constitutional interpretation from the United States Supreme Court should suffice to demonstrate how integrative jurisprudence works in a macro sense. For example, the Fourteenth Amendment of the United States Constitution provides the legal rule that no state may deprive “any person of life, liberty, or property, without due process of law.”35 When deciding whether a criminal in a state court proceeding was convicted in violation of the Due Process Clause, however, courts must determine whether the conviction was based on evidence obtained “by methods . . . ‘so brutal and so offensive to human dignity’ that they ‘shoc[k] the conscience.’”36 Accordingly, in this instance, the terms of the Due Process Clause do not by themselves determine whether a state court conviction was legal; rather, societal norms and values gloss how the positive law is interpreted and impact what we understand to be a “legal” conviction. In another example involving U.S. constitutional interpretation, the Establishment Clause provides the legal rule that “Congress shall make no law respecting an establishment of religion.”37 But to decipher whether the state of Maryland’s Sunday closing laws violated the First Amendment, the Supreme Court in McGowan v. Maryland engaged in a historical analysis of the practice of Sunday closing laws.38 Accordingly, in

32. Integrative jurisprudence was a term first coined by Professor Jerome Hall. See generally JEROME HALL, FOUNDATIONS OF JURISPRUDENCE 142 (1973) (writing about trends in the making of law which pointed “[t]owards an Integrative Jurisprudence”). 33. See Berman, supra note 21, at 799. 34. See infra Part III.A (positive legal rules), Part IV.A (natural law values), and Part V.A (historical precedent). 35. U.S. CONST. amend. XIV, § 1. 36. Chavez v. Martinez, 538 U.S. 760, 774 (2003). Similarly, the Court considers societal values when construing the legal rule prohibiting cruel and unusual punishment in the Eighth Amendment. See Gregg v. Georgia, 428 U.S. 153, 173 (1976) (stating that the Eighth Amendment “‘must draw its meaning from the evolving standards of decency that mark the progress of a maturing society’” (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958))). 37. U.S. CONST. amend. I. 38. See McGowan v. Maryland, 366 U.S. 420, 431–44 (1961) (finding that Sunday closing laws were secular in purpose based on its analysis of the rationales given for such laws from 1237 under Henry III in England to the time of the Framers in the 1700s). In making its determination, the Court found this “history both enlightening and persuasive.” Id. at 440; see also id. at 460 (“I find in the history of these statutes insights controllingly relevant to the constitutional issues before us . . . .”) (Frankfurter, J., concurring).

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McGowan, as in other cases,39 historical precedent informed the construction of the Establishment Clause. Moreover, beyond these explicit references to historical understandings, the United States’ common law legal system—which is based on the principles of stare decisis—illustrates that historical precedent shapes the outcome of contemporary legal disputes.40 These examples demonstrate the fundamental principle of integrative jurisprudence: namely, that the true legality of an act can only be measured by analyzing the convergence of the rule’s terms, how values and norms impact the way the terms are interpreted, and how political authorities have historically applied these interpretations. In addition to its original proponents,41 integrative jurisprudence has been recognized and supported by several prominent scholars,42 especially for its applicability to international law.43 Admittedly, however, integrative jurisprudence is not without critics.44 Some detractors note the framework’s susceptibility to a selective interpretation of societal values or historical practice to reach a desired result.45 Other critics note that if a rigid rule is allowed any flexibility, it will be abused.46 In response to these arguments, scholars note that, especially in the context of international law in which states are sovereign actors who are not subject to an overarching enforcement authority, “‘law has to be believed in or it will not work.’”47 Accordingly, integrative jurisprudence recognizes that, while aberrations of selective interpretation of history or abuse of an exception to a rule may occur, the alternative head-in-the-sand approach of blindly adhering to a rule is unworkable if the rule is not followed.48 By being more inclusive of values and history, a rule gains greater legitimacy and thereby shapes future behavior more effectively.49 Thus, while integrative jurisprudence has its critics, it has particular utility in resolving legal debates in the arena of international law.50 39. In Everson v. Board of Education, the Court construed the Establishment Clause “in the light of its history” to uphold a New Jersey general welfare program which allowed state funds to pay for the bus fare of students attending parochial schools. 330 U.S. 1, 14 (1947). Similarly, in Marsh v. Chambers, the Court found that the historical practice of the Virginia legislature was “instructive” in the question of the constitutionality of opening legislative sessions with prayer. 463 U.S. 783, 787 n.5 (1983). 40. See Planned Parenthood v. Casey, 505 U.S. 833, 854 (1992) (discussing stare decisis in the U.S. legal system). 41. See Berman, supra note 21, at 792; HALL, supra note 32. 42. See, e.g., Anthony E. Cook, The Temptation and Fall of Original Understanding, 1990 DUKE L.J. 1163, 1206 (reviewing ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW (1989)) (advocating for the development of an “integrative jurisprudence” for determining the legality of race-specific legislation); Thomas J.R. Stadnik, Book Review, 50 BROOK. L. REV. 339, 340 (1984) (reviewing HAROLD J. BERMAN, LAW AND REVOLUTION: THE FORMATION OF THE WESTERN LEGAL TRADITION (1983)) (“Berman’s analysis should not be ignored by anyone involved in the law today.”). 43. Berman, supra note 21, at 797; see Bradley Bryan, Justice and Advantage in Civil Procedure: Langbein’s Conception of Comparative Law and Procedural Justice in Question, 11 TULSA J. COMP. & INT’L L. 521, 541 (2004) (“‘We need a jurisprudence that integrates the three traditional schools [to properly engage in an analysis of comparative civil procedure that is international in scope] . . . .’”) (quoting HAROLD J. BERMAN, LAW AND REVOLUTION vi–vii (1983)). 44. See G.L. Ulmen, “Integrative Jurisprudence” and Other Misdemeanors, 77 TEX. L. REV. 1107, 1119 (1999) (book review) (calling integrative jurisprudence a “fraud”). 45. See id. 46. For examples of such criticism, see note 7 supra. 47. See Bryan, supra note 43, at 541 (quoting HAROLD J. BERMAN, LAW AND REVOLUTION vi–vii (1983)). 48. See Ronald C. Slye, International Law, Human Rights Beneficiaries, and South Africa: Some Thoughts on the Utility of International Human Rights Law, 2 CHI. J. INT’L L. 59, 62 (2001) (“If states do not obey international law, . . . then what is its relevance?”). 49. See Bryan, supra note 43, at 541 (noting that a law which incorporates “‘emotion, intuition, and faith’” will have greater legitimacy and adherence) (quoting HAROLD J. BERMAN, LAW AND REVOLUTION vi–vii (1983)). 50. See Berman, supra note 21, at 797.

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Integrative jurisprudence is an especially appropriate framework in which to analyze the legality of humanitarian intervention. Although the U.N. Charter may arguably proscribe by legal rule extra-U.N. intervention, fundamental values of justice and human dignity have prompted states to intervene to stop human rights abuses. Some of the interventions have been deemed “legal” in the sense that they were not condemned by the international community.51 In addition, despite the Charter’s arguably clear language, empirical and historical facts show examples in which the U.N. did not enforce its prohibition, but rather “looked the other way” in the face of a non-U.N.-sanctioned intervention.52 Thus, the three perspectives of integrative jurisprudence—legal positivism, natural law theory, and historicism—each add an important element in determining what the law is with regard to humanitarian intervention. Using this integrative jurisprudence framework, the proceeding parts will detail the arguments advanced by adherents of each perspective and will demonstrate how each, in isolation, fails to provide a satisfactory answer with regard to the legality of humanitarian intervention.

III.

LEGAL POSITIVISM AND HUMANITARIAN INTERVENTION

Scholars that adhere to the positivist school have dominated the jurisprudence in the area of humanitarian intervention since the passage of the U.N. Charter.53 Their ideology thus forms a major part of what the international community believes about the legality of humanitarian intervention. Accordingly, the positivist paradigm will be defined first, followed by an examination of the sources of law that positivists cite to arrive at their conclusion that intervention is illegal. This will be followed by an analysis of the shortcomings of positivism. A.

The Positivist Perspective: The Dominant Theory

Positivists adhere to the principle that actions of state power, which are manifested in a body of rules and judgments laid down by the state, are the only legitimate sources of law.54 For positivists, these rules operate “independently of principles of right and wrong and independently of the history or social consciousness of the given polity.”55 States enact rules solely to serve their own self-interest and will amend such rules when the current regime no longer serves the ends of the state.56 As such, the positivist school identifies law with the lawmaker.57 Positivism resonates with the “realist” perspective of international relations which views all state action as an attempt to further national self-interests using

51. For example, Tanzania asserted humanitarian motivations and referenced “‘freedom, justice, and human dignity’” in its 1979 intervention in Uganda. See RONZITTI, supra note 5, at 103. Although a few countries spoke out against the intervention, neither the Organization of African Unity nor the United Nations censured Tanzania for its actions. See id. at 104. 52. See, e.g., ABIEW, supra note 1, at 123 (noting that many states of the U.N. “remained silent on the Tanzanian action” in Uganda in 1971). 53. Bruce P. Frohnen, Multicultural Rights? Natural Law and the Reconciliation of Universal Norms with Particular Cultures, 52 CATH. U. L. REV. 39, 48 (2002) (noting that legal positivism is “so prevalent in current jurisprudence”); Harold J. Berman, Law and Logos, 44 DEPAUL L. REV. 143, 151 (1994); MURPHY, supra note 2, at 33–34; see also Antony Anghie, Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law, 40 HARV. INT’L L.J. 1, 2 (1999) (describing positivism as the “principal jurisprudential technique” for deciphering international law). 54. Berman, supra note 21, at 780. 55. Id. 56. See MURPHY, supra note 2, at 33. 57. Berman, supra note 53, at 151.

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state power.58 In addition to pure positivists who only recognize official rules as law, the American legal realists and followers of the Critical Legal Studies movement can also be put into the positivist camp.59 Although these two groups look skeptically at official conduct which is rationalized or disguised by reference to legal rules, they nonetheless only recognize the legitimacy of enacted rules.60 Thus, positivists insist that the only legitimating sources for actions are enacted law and legal judgments.61 B.

Current Positive International Humanitarian Law Condemns Intervention

Applying the positivist perspective to humanitarian law, it becomes apparent that current positive international law outlaws unilateral and multilateral extra-U.N. humanitarian intervention. After the rise of positivism in the nineteenth century, jurists developed the theory of non-intervention as the primary underpinning for international law regulating the use of force.62 This concept was manifested in successive international agreements drafted after World War II which condemned intervention. For example, under Article 2(4) of the U.N. Charter, Member States must “refrain . . . from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”63 Similarly, Article 2(7) indicated that no state may “intervene in matters which are essentially within the domestic jurisdiction of any state.”64 These provisions were interpreted to mean that sovereignty and territorial integrity were to be valued above all else.65 This perspective was buttressed philosophically by the Hegelian notion that states have absolute moral autonomy within their own territory.66 Thus, positivist scholars, relying solely on the U.N. Charter, have determined that humanitarian intervention was made illegal because “it is radically contrary to Article 2(4) . . . and no [positive] precedent supporting the opposite view can be quoted.”67 Despite the majority of positivists adopting this stance, a minority of positivist scholars argued shortly after the passage of the Charter that Article 2(4) did not contain an

58. See Benedict Kingsbury, Book Note, 94 AM. J. INT’L L. 591, 591 (2000) (reviewing STEPHEN D. KRASNER, SOVEREIGNTY: ORGANIZED HYPOCRISY (1999)); MURPHY, supra note 2, at 21. 59. See Berman, supra note 21, at 781. 60. See id. 61. See David D. Jividen, Rediscovering International Law Through Dialogue Rather Than Diatribe: Reflections on an International Legal Conference in the Aftermath of Operation Iraqi Freedom, 27 HARV. J.L. & PUB. POL’Y 691, 694 (2004). But see Berman, supra note 21, at 784 (noting that even “ardent” positivists give some credence to values and morality in their arguments). 62. See SIMON CHESTERMAN, JUST WAR OR JUST PEACE?: HUMANITARIAN INTERVENTION AND INTERNATIONAL LAW 8 (2001); see also Glenn R. Butterton, Signals, Threats, and Deterrence: Alive and Well in the Taiwan Strait, 47 CATH. U. L. REV. 51, 70–71 (1997) (detailing the emergence of the “international law norm of non-intervention”). 63. U.N. Charter art. 2, para. 4. 64. U.N. Charter art. 2, para. 7. 65. See RONZITTI, supra note 5, at 1–2; cf. Steven R. Ratner, The Cambodia Settlement Agreements, 87 AM. J. INT’L L. 1, 35 (1993). 66. Fernando R. Tesón, Commentary, Le Peuple, C’est Moi!: The World Court and Human Rights, 81 AM. J. INT’L L. 173, 181 (1987). Immanuel Kant also provides philosophical support for the supremacy of sovereignty over other values. See IMMANUEL KANT, PERPETUAL PEACE 18 (U.S. Library Ass’n 1932) (1795) (“‘No state shall by force interfere with either the constitution or government of another state.’”). 67. RONZITTI, supra note 5, at 108; see also ANTHONY C. AREND & ROBERT J. BECK, INTERNATIONAL LAW AND THE USE OF FORCE: BEYOND THE U.N. CHARTER PARADIGM 131–32 (1993); Jost Delbrück, A Fresh Look at Humanitarian Intervention Under the Authority of the United Nations, 67 IND. L.J. 887, 889 (1992).

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absolute prohibition on intervention.68 According to their statutory interpretation, Article 2(4) only proscribes intervention against the territorial integrity and political independence of a state. Therefore, “[i]f force can be used in a manner which does not threaten the territorial integrity or political independence of a state, it escapes the restriction of the first clause.”69 Even though these positivists broke with the majority rule, their primary focus in solving the question of the legality of intervention rested on the same basis as the majority: the U.N. Charter. The strength of this minority group’s argument notwithstanding, international agreements enacted subsequent to the U.N. Charter more definitively answered the question of legality, seemingly discrediting the minority position in the process. For instance, the U.N. General Assembly stated in Resolution 2625 in 1970, and again in Resolution 36/103 in 1981, that no state or group of states “has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State.”70 Furthermore, in 1977, Geneva Protocol I71 was adopted, which began with its signatories “[e]xpressing their conviction that nothing in this Protocol or in the Geneva Conventions of 12 August 1949 can be construed as legitimizing or authorizing any act of aggression or any other use of force inconsistent with the Charter of the United Nations.”72 In addition, also in 1977, Protocol II73 was issued, which declared that “[n]othing in this Protocol shall be invoked as a justification for intervening, directly or indirectly, for any reason whatever, in the armed conflict or in the internal or external affairs of the High Contracting Party in the territory of which that conflict occurs.”74 This language is reiterated in the 1998 Rome Statute75 and the 1999 Second Hague Protocol for the Protection of Cultural Property.76 These latter provisions do not conclusively place a ban on non-U.N.-sanctioned intervention. But taken in pari materia with U.N. Resolutions 2625 and 36/103, which do explicitly ban intervention, it is apparent that post-Charter positive law clarified that extra-U.N. interventions are prohibited. In addition to the enactments of positive law since the passage of the U.N. Charter, positivists also point to the rules laid down by international tribunals as proof of the illegality of intervention. In Nicaragua v. United States, the International Court of Justice 68. For a fuller discussion of this debate, see note 18 supra. 69. JESSUP, supra note 18, at 162. To underscore the legitimacy of this argument, it should be noted that Jessup is a former judge of the International Court of Justice. 70. Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation Among States in Accordance with the Charter of the United Nations, G.A. Res. 2625 (XXV), Annex, U.N. Doc. A/8082 (Oct. 24, 1970) (emphasis added); Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States, G.A. Res. 36/103, Annex, U.N. Doc. A/RES/36/103 (Dec. 9, 1981) (emphasis added). 71. Protocol I applies during situations of war and international armed conflict as defined in Common Article 2 of the Geneva Conventions. See Geneva Protocol I, supra note 4, art. 1(3). 72. Id. at pmbl., para. 4. In addition, paragraph 5 of the Preamble clarified that no exceptions could be made to the Protocol “based on . . . the causes espoused by or attributed to the Parties to the conflict.” Id. at para. 5. This effectively short-circuited any arguments that humanitarian motives could excuse a party from following the Protocol’s ban on improper use of force. 73. Protocol II applies to victims of internal or civil wars. See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) art. 1(1), adopted June 8, 1977, 1125 U.N.T.S. 609. 74. Id. at art. 3(2) (emphasis added). 75. Rome Statute of the International Criminal Court, supra note 9, pmbl. at 1002 (“Emphasizing in this connection that nothing in this Statute shall be taken as authorizing any State Party to intervene in an armed conflict in the internal affairs of any State . . . .”). 76. Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict art. 22, para. 5, Mar. 26, 1999, available at http://www.icrc.org/ihl.nsf/FULL/ 590?OpenDocument (“Nothing in this Protocol shall be invoked as a justification for intervening, directly or indirectly, for any reason whatever, in the armed conflict or in the internal or external affairs of the Party in the territory of which that conflict occurs.”).

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(ICJ) was called upon to decide whether Article 51 of the U.N. Charter sanctioned the United States to mine Nicaraguan harbors and give support to Nicaraguan “contras.”77 In finding the United States’ Article 51 “collective self-defense” argument unavailing, the ICJ concluded that “the argument derived from the preservation of human rights in Nicaragua cannot afford a legal justification for the conduct of the United States . . . .”78 Scholars have determined that this dictum constituted another source of positive law that prohibited intervention.79 Accordingly, for positivists who look only to state-created manifestations of law to determine the legality of particular conduct, there is ample support in international agreements and case law from the post-Charter era for their argument that non-U.N.sanctioned intervention is impermissible. Adherents to this perspective include not only a majority of scholars,80 but also many states. For example, in reaction to India’s intervention in East Pakistan in 1971, Sweden rested its condemnation on the positivist view that “[t]he Charter of the United Nations . . . forbids the use of force except in selfdefence. . . . [and] [n]o other purpose can justify the use of military force by states.”81 In another example of a state adopting the positivist perspective, the former Soviet Union condemned the U.S. intervention in Panama in 1989 as a flagrant violation of the U.N. Charter.82 Verily, because of the consistency in post-Charter positive international law outlawing humanitarian intervention, the positivist position would have merit if positive sources were the only sources that could legitimate action. However, there are several shortcomings with the positivist assertion which strengthen the integrative jurisprudence argument that other sources should be consulted for determining what the law is. C.

Critiques of Positivist Arguments in the Field of Humanitarian Intervention

Despite the appeal of positivist arguments based on transparent, written international rules, “‘law’ is more than a set of rules governing social behavior.”83 Laws represent an articulation of the values and social beliefs of a community. And in this way, what the law “is” transcends the written letter of the law. Thus, for several reasons, positivist arguments alone cannot claim to explain what the law of intervention “is” in any definitive sense. First, international law expressly recognizes sources of law not contained in positive law. According to the statute creating the ICJ, proper sources of international law include not only conventions establishing rules, but also international custom, general principles of 77. See Ryan C. Hendrickson, Article 51 and the Clinton Presidency: Military Strikes and the U.N. Charter, 19 B.U. INT’L L.J. 207, 211–12 (2001). 78. Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, at 134–35 (June 27). 79. See Nigel S. Rodley, Human Rights and Humanitarian Intervention: The Case Law of the World Court, 38 INT’L & COMP. L.Q. 321, 332 (1989); cf. Richemond, supra note 7, at 72. But see FERNANDO R. TESÓN, HUMANITARIAN INTERVENTION: AN INQUIRY INTO LAW AND MORALITY 241–44 (1988) (arguing that Nicaragua had no bearing on humanitarian intervention because the ICJ was construing Article 51 and not Article 2(4)). 80. See, e.g., RONZITTI, supra note 5, at 108; IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 431 (1963); Quincy Wright, The Legality of Intervention Under the United Nations Charter, 1957 AM. SOC’Y INT’L L. PROC. 79, 88. 81. RONZITTI, supra note 5, at 97. The United States raised similar concerns to the Indian intervention. See id. (noting how the United States questioned the use of force in violation of the U.N. Charter). 82. MURPHY, supra note 2, at 114. 83. Id. at 22; see Bryan, supra note 43, at 541 (stating that law “‘involves not only reason . . . but also emotion, intuition, and faith. It involves a total social commitment.’”) (quoting HAROLD J. BERMAN, LAW AND REVOLUTION vi–vii (1983)).

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law recognized by civilized nations, judicial decisions, and the writings of jurists.84 In addition, the legality of action in international law may also be decided ex aequo et bono (by what is equal and good),85 which allows natural law, equity, and jus cogens to inform legality.86 That Article 38 of the ICJ Statute is authoritative with respect to determining which sources of international law are legitimate has been widely accepted.87 Thus, ironically, the positivist position that enacted law is the only source of law to determine the legality of intervention contravenes the ICJ Statute. Second, the positivist position can also be discredited for its failure to account for state and U.N. practice. Despite the fact that positivists argue the Charter is a clear prohibition on intervention, states nonetheless continue to engage in humanitarian intervention outside of U.N. auspices for purely humanitarian reasons, for strategic reasons, or for a mix of both.88 Thus, there is no opinio juris among states that they must adhere to an absolute prohibition on intervention. In addition, the United Nations has not condemned all post-Charter interventions.89 In response to this discrepancy in practice, positivists in favor of intervention would argue that intervention should be illegal, but that humanitarian motives provide subjective grounds for exculpation, pursuant to which the United Nations could choose not to condemn the intervention.90 This stance is unpalatable because it defines the law and then admits the law can be transgressed in certain circumstances that have not been defined.91 Because there is a lack of generally accepted criteria for when a state may be excused for its intervention,92 this theory paves the way for arbitrary exonerations and undermines a core goal of international law: distributive justice.93 A better approach would be to define the law in a way that can be consistently applied and enforced. In any event, the inconsistency between positive law and state and U.N. practice undermines the positivist notion that what the law “is” with regard to intervention is relegated to the confines of Article 2(4). Third, the positivist position can be attacked because of the inability of the Security Council to consistently shape state behavior.94 Because positivists seek to find legality exclusively in enacted statutes, the only vehicle by which an intervention can be sanctioned is through a Chapter VII enforcement action ordered by the Security Council. However, as 84. Statute of the International Court of Justice art. 38, June 26, 1945, 1947 I.C.J. Acts & Docs. 37. 85. Id. 86. See Jonathan I. Charney, Ocean Boundaries Between Nations: A Theory for Progress, 78 AM. J. INT’L L. 582, 587 (1984); Carole F. Cukell, Comment, The Author’s Moral Right: Can Louisiana Adopt the Doctrine?, 51 TUL. L. REV. 309, 329 (1977). 87. See MURPHY, supra note 2, at 30 (citing Article 38 for the proposition that “[m]ost treatises and casebooks on international law agree on the standard ‘sources’ of international law (treaties, state practice, general principles, judicial decisions, and the views of scholars)”). 88. See Yoo, supra note 3, at 743. 89. For example, neither the U.N. Security Council nor the General Assembly condemned Tanzania’s intervention in Uganda in 1971. MURPHY, supra note 2, at 106. 90. See RICHARD B. LILLICH & HURST HANNUM, INTERNATIONAL HUMAN RIGHTS: PROBLEMS OF LAW, POLICY, AND PRACTICE 640 (3d ed. 1995) (stating that Brownlie is in the camp of scholars who “‘deny the legality of humanitarian intervention in law, but who condone it to a greater or less degree in practice’”). 91. See Richemond, supra note 7, at 51 (arguing that an acceptable, clearly defined standard must be in place to thwart abuse). 92. See Vesel, supra note 3, at 19–20 (“Such an identification [of criteria] is necessary, because no steadfast and objectively measurable threshold requirement has been agreed upon to dictate either when, where or under what circumstances to intervene.”). 93. See, e.g., U.N. Charter art. 2, para. 1. (recognizing the “sovereign equality” of Member States which means they are to be treated similarly and consistently under international law). 94. See Karina Michael Waller, Intrastate Ethnic Conflicts and International Law: How the Rise of Intrastate Ethnic Conflicts Has Rendered International Human Rights Laws Ineffective, Especially Regarding Sex-Based Crimes, 9 AM. U. J. GENDER SOC. POL’Y & L. 621, 647 (2001) (noting the Security Council’s “inability to effectuate” a reduction in human rights violations by Yugoslavia in 1992).

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several scholars have pointed out, the veto power of the permanent members of the Security Council often renders the body ineffectual in the face of atrocities because opposition to intervention by one or more of the permanent members can thwart any Chapter VII action.95 For example, because both Russia and China indicated that they would veto any proposal that advocated intervention in Kosovo in 1999, NATO opted to act unilaterally to curtail human rights atrocities being committed there.96 Based on this dynamic, scholars have argued that a strict positivist position is improper and intervention should be allowed as an “emergency mechanism” which can be employed when the Security Council is incapable of acting.97 Fourth, with regard to the minority group of positivists who argue Article 2(4) is not an absolute prohibition of intervention,98 their line of argumentation can be attacked for its sophistry. Their literalist interpretation myopically ignores other values stated in the U.N. Charter, such as Article 2(7), which stresses the inviolability of state sovereignty.99 Thus, because such literalism used to evade seemingly clear language is contrary to the spirit of the U.N. Charter, their position has been discredited as “interpretive acrobatics” or “doctrinal manipulation.”100 Because of these shortcomings, the positivist position cannot alone determine the legality of intervention. But in addition to these practical critiques, there is also a group of scholars who find fault with the positivists on a more fundamental level. These jurists argue that a large lacuna in the positivist position is its failure to account for the values and norms behind the Charter and international law in general. This group is composed of natural law theorists.

IV. NATURAL LAW AND HUMANITARIAN INTERVENTION Notwithstanding the current dominance of the positivist position, “a complete picture of the law on the use of force, including that of humanitarian intervention, cannot ignore the continuing relevance of natural law.”101 And, according to the integrative jurisprudence model introduced in Part I, natural law is an essential facet for determining what the law of intervention actually is in practice. As such, natural law theory will be addressed first in the abstract, followed by an explanation of what natural law has to say about the legality of 95. Tyagi, supra note 4, at 901 (“The veto power of the five permanent members of the Security Council hangs as a Sword of Damocles over the head of collective decision-making.”); see Thomas C. Wingfield, The Convergence of Traditional Theory and Modern Reality: Just War Doctrine and Tyrannical Regimes, 2 AVE MARIA L. REV. 93, 119 (2004); Maxine Marcus, Humanitarian Intervention Without Borders: Belligerent Occupation or Colonization?, 25 HOUS. J. INT’L L. 99, 105 (2002). 96. See Vesel, supra note 3, at 43; John J. Merriam, Kosovo and the Law of Humanitarian Intervention, 33 CASE W. RES. J. INT’L L. 111, 144 n.160 (2001). 97. Richard Baxter and Richard Lillich are the most prominent adherents to this view. See Richard B. Lillich, A United States Policy of Humanitarian Intervention and Intercession, in HUMAN RIGHTS AND AMERICAN FOREIGN POLICY 278, 288–89 (Donald P. Kommers & Gilburt D. Loescher eds., 1979). 98. For a fuller discussion of this debate, see note 18 and Part III.B supra. 99. See Michael Reisman with Myres S. McDougal, Humanitarian Intervention to Protect the Ibos, in HUMANITARIAN INTERVENTION AND THE UNITED NATIONS 167, 177 (Richard B. Lillich ed., 1973) (advocating analysis of Article 2(4) in light of other Charter provisions). 100. See, e.g., Tom J. Farer, An Inquiry into the Legitimacy of Humanitarian Intervention, in LAW AND FORCE IN THE NEW INTERNATIONAL ORDER 185, 195 (Lori Fisler Damrosch & David J. Scheffer eds., 1991) (characterizing “strained interpretations of key Charter articles” as a “romp in the measureless fields of realism . . . free from the suffocating embrace of the past with its heavy burdens of proof, free as well from the tyranny of words and majorities”). 101. MURPHY, supra note 2, at 34; see also Bartram S. Brown, The Protection of Human Rights in Disintegrating States: A New Challenge, 68 CHI.-KENT L. REV. 203, 221 (1992).

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intervention. This Part will conclude with an analysis of how the natural law perspective also cannot provide the only source of legitimacy for humanitarian intervention. A.

The Natural Law Perspective: The Altruistic Theory

Natural law theorists treat “law” as the embodiment of norms and values.102 Natural law stresses that these norms and values are universal principles which emanate from “right reason” and the conscience collectively held by humanity.103 Guided by these principles, states are supposed to enact and follow rules in accordance with these universal norms and values.104 Thus, what the law “is” according to natural law theorists is determined by what the law “ought to be” according to a universal value system.105 For the natural law adherent, implicit in the concept of law is that rules must be analyzed, interpreted, and applied in light of the moral purposes for which they exist. By extension, then, “it is a tenet of natural-law theory that governmental acts or commands that grossly contravene fundamental principles of justice do not deserve to be called law at all.”106 Consequently, the main sources of law for the natural law theorist are the values and norms derived from reason, to which positive law must be subordinate.107 B.

Natural Law Condones Humanitarian Intervention

Starting from the premise that human dignity and justice are immutable, universal values which are derived from “right reason” and conscience, advocates of the natural law perspective consider humanitarian intervention permissible in certain circumstances. The natural law argument appeals to the notion that humanitarian considerations can, at least in some cases, supersede the existing rules that would prohibit interventions.108 Building on the notion that positive law deserves little deference when it contravenes fundamental principles,109 natural law theorists find that a rule which absolutely prohibits intervention, such as Article 2(4), cannot be controlling in the face of mass genocide or other gross injustices. Thus, when there is an absence of a minimum moral order in a given state, intervention is permissible to restore the primacy of fundamental values.110 While the number of scholars advancing natural law arguments in Anglo-American literature has markedly declined since the nineteenth century,111 a number of states continue 102. Berman, supra note 21, at 780. 103. See Frohnen, supra note 53, at 48; MURPHY, supra note 2, at 33. 104. See Robert John Araujo, International Law Clients: The Wisdom of Natural Law, 28 FORDHAM URB. L.J. 1751, 1753 (2001) (noting that natural law “‘serves as a standard for the laws enacted by the state’”) (quoting CHARLES E. RICE, FIFTY QUESTIONS ON THE NATURAL LAW: WHAT IT IS AND WHY WE NEED IT 30 (1993)); Eduardo Moisés Peñalver, Redistributing Property: Natural Law, International Norms, and the Property Reforms of the Cuban Revolution, 52 FLA. L. REV. 107, 165–66 (2000). 105. See Jianming Shen, The Basis of International Law: Why Nations Observe, 17 DICK. J. INT’L L. 287, 291–92 (1999). 106. Berman, supra note 21, at 780; see Shen, supra note 105, at 291–92 (noting that naturalists do not recognize positive law divorced from the laws of nature). 107. William C. Bradford, “The Duty to Defend Them”: A Natural Law Justification for the Bush Doctrine of Preventive War, 79 NOTRE DAME L. REV. 1365, 1429 (2004) (stating that natural law adherents conceptualize positive law as “subject to and limited by” natural law). 108. See Vesel, supra note 3, at 6; cf. Brown, supra note 101, at 221. 109. See Berman, supra note 21, at 780; Shen, supra note 105, at 291–92. 110. See Tyagi, supra note 4, at 884; Jules Lobel, Benign Hegemony?: Kosovo and Article 2(4) of the U.N. Charter, 1 CHI. J. INT’L L. 19, 29 (2000). 111. See MURPHY, supra note 2, at 33; William R. Nifong, Promises Past: Marcus Atilius Regulus and the Dialogue of Natural Law, 49 DUKE L.J. 1077, 1083 (2000) (noting the view that natural law “has been relegated to

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to invoke natural law principles as justification for unilateral or collective non-U.N. interventions. For example, when Egyptian forces invaded Palestinian regions in the newly-independent state of Israel in 1948, the Egyptian government cited the “‘[h]orrible crimes, revolting to the conscience of humanity’” as justification.112 This appeal to a sense of duty to protect values derived from conscience manifested a belief in natural law principles. In addition, the Tanzanian government declared that its intervention in Uganda in 1979 was legitimate because it sought to secure “‘freedom, justice, and human dignity.’”113 Furthermore, Germany argued that its participation in the NATO intervention in Kosovo in 1999 was justified because its aim was to “‘defend . . . human rights.’”114 Thus, despite the decline of natural law scholarship, states continue to cite universal values as sources of law which legitimate intervention. Interestingly, and perhaps not surprisingly, the Holy See is among the cadre of states that still refer to natural law principles.115 In its constitution, Gaudium et Spes,116 the Holy See asserted its belief in the “permanent binding force of universal natural law and its allembracing principles.”117 In Pacem in Terris, Pope John XXIII’s landmark encyclical on modern international security concerns, Pope John reiterated that “[e]very basic human right draws its authoritative force from the natural law.”118 This natural law perspective has been used by the Holy See to legitimate its calls for humanitarian intervention. For example, Pope John Paul II invoked the natural law concept of the duty to protect human dignity when he called for humanitarian intervention in East Timor in 1999.119 However, in addition to this natural law perspective, and more importantly for the purposes of the integrative jurisprudence model, the Holy See also bases its arguments on a historical perspective, as will be shown below.120 In sum, adherents to the natural law perspective believe that certain norms and values—including fundamental human rights, human dignity, and justice—trump the post-

the yellowed annals of legal history”). Fernando Tesón is one of the leading scholars who continues to assert the natural law argument that fundamental human rights precede and undergird all acts of state sovereignty. See Fernando R. Tesón, The Kantian Theory of International Law, 92 COLUM. L. REV. 53, 54 (1992) (using Kant’s work to demonstrate that “the principles of international justice must be congruent with the principles of internal justice”); MURPHY, supra note 2, at 138. 112. RONZITTI, supra note 5, at 93. 113. Id. at 103. 114. Henry Kissinger, The End of NATO as We Know It?, WASH. POST, Aug. 15, 1999, at B7 (quoting German Chancellor Gerhard Schroeder speaking in defense of Germany’s participation in Kosovo). That Germany’s intervention was motivated by natural law concepts is supported by the fact that its constitution, the Basic Law, contains an explicit protection for the inviolable principle of human dignity, a value that sounds in natural law theory. See GRUNDGESETZ [GG] [Constitution] art. 1(1), (F.R.G.). Because Germany’s constitution contains natural law language, it is not surprising that it considers natural law a proper source of legitimization for intervention. 115. After all, “[n]atural law has its roots in a religious conception of the human person and the rights and obligations flowing from that person’s relationship with his creator.” Frohnen, supra note 53, at 48. With this religiously based understanding of law, it is logical that the Holy See’s rhetoric would reference natural law. 116. John Witte, Jr., The Goods and Goals of Marriage, 76 NOTRE DAME L. REV. 1019, 1041 (2001) (describing Gaudium et Spes as the Catholic Church’s “pastoral constitution”). 117. GAUDIUM ET SPES [Pastoral Constitution on the Church in the Modern World], ch. V, § 1, para. 79, available at http://www.cori.ie/justice/cath_soc_thought/Papal_Encyclicals/ppaul_VI/Gaudium_et_spes.pdf [hereinafter GAUDIUM ET SPES]. 118. Pope John XXIII, Pacem in Terris: Encyclical of Pope John XXIII on Establishing Universal Peace in Truth, Justice, Charity, and Liberty, para. 30 (Apr. 11, 1963), available at http://www.vatican.va/holy_father/ john_xxiii/encyclicals/documents/hf_j-xxiii_enc_11041963_pacem_en.html. 119. Pope John Paul II, End the Slaughter of East Timor’s People!, supra note 29, at 1 (referencing humanity’s “collective moral responsibility” to end the violence and slaughter by intervening). 120. See infra Part V.B.

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Westphalian belief that territorial sovereignty is supreme. In response to the positivist position, natural law adherents call upon states to look to universal human values rather than attempting to “‘hide behind the formula of non-intervention when human rights are blatantly violated.’”121 Recognizing the shortcomings of positive law to provide protection for fundamental rights or to explain state practice, natural law theorists appeal to notions of humanity and justice to advocate for the legality of intervention.122 C.

Critiques of Natural Law Standing in Isolation

While natural law proponents are quick to rally around universal principles in response to inadequacies in positive law, they must also come to grips with the inability of natural law to claim exclusive primacy in the debate over the legality of intervention. First, natural law can be attacked for its cultural relativism. Although natural law theorists assert their arguments are grounded in universal values, some scholars retort that “it is impossible in a culturally diverse world to have universal notions of human rights.”123 Moreover, many see natural law as “a product of Western liberal thought,”124 which cannot gain credence in non-Western cultures that adhere to a value system radically different from the Western paradigm.125 In essence, critics claim that natural law contains less objectivity and universality than it really claims to have.126 In response, natural law theorists assert that post-Charter U.N. documents show there has been some congruence with respect to values and norms in the human rights context.127 Looking at the Universal Declaration on Human Rights,128 which purports to be a “common standard” embodying the rights and freedoms for all peoples,129 natural law theorists argue that a common set of universal principles does exist.130 Moreover, they argue that Article 55 of the U.N. Charter shows that Member States pledge to safeguard and promote human rights,131 thereby evincing a consensus with regard to intervention for humanitarian reasons.132 Despite these counterarguments, the cultural relativist critique still holds some merit. And despite the U.N. documents showing congruence, some non-Western countries criticize the U.N. as a “Western-dominated” organization.133 Thus, because natural law 121. RONZITTI, supra note 5, at 106 (quoting the President of Uganda installed after the 1971 intervention). 122. See MURPHY, supra note 2, at 48. 123. ABIEW, supra note 1, at 83; Hamid M. Khan, Note, Nothing Is Written: Fundamentalism, Revivalism, Reformism and the Fate of Islamic Law, 24 MICH. J. INT’L L. 273, 336 n.320 (2002) (stating that it “is difficult, if not entirely impossible, to create universal human rights standards that will apply equally to all members of the global community”). 124. ABIEW, supra note 1, at 86. 125. See Anthony Chase, Legal Guardians: Islamic Law, International Law, Human Rights Law, and the Salman Rushdie Affair, 11 AM. U. J. INT’L L. & POL’Y 375, 377 (1996); Amyn B. Sajoo, Islam and Human Rights: Congruence or Dichotomy?, 4 TEMP. INT’L & COMP. L.J. 23, 23–24 (1990). 126. See Berman, supra note 21, at 785. 127. See, e.g., ABIEW, supra note 1, at 75. 128. Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 (Dec. 10, 1948). 129. Id. at pmbl. 130. See Chase, supra note 125, at 382; Frank J. Garcia, The Global Market and Human Rights: Trading Away the Human Rights Principle, 25 BROOK. J. INT’L L. 51, 70 n.73 (1999). 131. See U.N. Charter art. 55(c) (stating that the U.N. shall promote “universal respect for, and observance of, human rights and fundamental freedoms for all”). 132. Theodor Meron, On a Hierarchy of International Human Rights, 80 AM. J. INT’L L. 1, 11–12 (1986). 133. Mary Margaret Penrose, No Badges, No Bars: A Conspicuous Oversight in the Development of an International Criminal Court, 38 TEX. INT’L L.J. 621, 634 (2003); see William C. Bradford, International Legal Regimes and the Incidence of Interstate War in the Twentieth Century: A Cursory Quantitative Assessment of the Associative Relationship, 16 AM. U. INT’L L. REV. 647, 714 n.237 (2001) (citing Steven R. Ratner, International Law: The Trials of Global Norms, FOREIGN POL’Y, Spring 1998, at 65, 73).

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theories with regard to humanitarian intervention can be criticized for being an ethnocentric, western paradigm, it is difficult for its proponents to claim that their position merits primacy. Second, advocates of the positivist position criticize natural law theory because some countries cite altruistic values and norms, such as human dignity and justice, as a mask for unadulterated, strategic, self-interested behavior.134 In this way, critics note that natural law fails to account for historical circumstances in which states have distorted natural law to serve nationalist ends.135 Grotius, the “‘father’ of modern international law”136 himself, pointed out this flaw in natural law by noting that intervention “may often be used as the cover of ambitious designs.”137 For example, even though Vietnam justified its intervention in Cambodia in 1978 in part because of the atrocities being committed by the Pol Pot regime, some argued that Vietnam’s desires to expand its territory and influence were its primary motivations.138 When viewed in light of Nazi Germany’s claim that it had to intervene in Czechoslovakia to protect the rights of oppressed Aryans at the start of World War II, it becomes clear that natural law concepts can be “twisted and warped into a cloak for illegal intervention.”139 The force of that argument notwithstanding, natural law theorists can retort that particular misapplications and abuse of a doctrine do not detract from its inherent value.140 In fact, natural law theorists point to Kosovo, Uganda, and East Pakistan as examples of altruistic interventions that prove that natural law concepts are not abused in every instance.141 However, because altruistic rhetoric can sometimes be used as a shield for motives based solely on self-interest, it is difficult for natural law to claim that it should be the only source of law that is considered in determining the legitimacy of humanitarian intervention. A third critique of natural law is that by allowing extra-U.N. activity based on nonpositive law, natural law opens up a Pandora’s box of anarchic behavior that could undermine the international system.142 For example, in response to the international community’s tacit approval of the Tanzanian intervention, Nigeria stated that the world had set “‘a dangerous precedent of unimaginable consequences.’”143 Similar statements were made in response to Vietnam’s intervention in Cambodia.144 In essence, positivists argue

134. See RONZITTI, supra note 5, at 108–10; Richemond, supra note 7, at 51. 135. See Frohnen, supra note 53, at 40 (noting how critics cite historical practices to discredit adherence to natural law). 136. Christopher A. Ford, Preaching Propriety to Princes: Grotius, Lipsius, and Neo-Stoic International Law, 28 CASE W. RES. J. INT’L L. 313, 315 (1996). 137. 2 HUGO GROTIUS, DE JURE BELLI AC PACIS [THE LAW OF WAR AND PEACE] ch. 25, § 8, para. 3 (A.C. Campbell trans., 1969) (1625). This citation refers, respectively, to Book II, Chapter 25, section 8, paragraph 3. Subsequent citations to Grotius will follow the same citation convention. 138. See Nhan T. Vu, The Nondemocractic Benefits of Elections—The Case of Cambodia, 28 CASE W. RES. J. INT’L L. 395, 417 (1996); RONZITTI, supra note 5, at 101. 139. ABIEW, supra note 1, at 57 (quoting ANN VAN WYNEN THOMAS & A.J. THOMAS, JR., NONINTERVENTION: THE LAW AND ITS IMPORT IN THE AMERICAS 375 (1956)). 140. See id. at 57–58. 141. See Aaron Schwabach, Yugoslavia v. NATO, Security Council Resolution 1244, and the Law of Humanitarian Intervention, 27 SYRACUSE J. INT’L L. & COM. 77, 101 (2000). 142. See Cristóbal Orrego, H. L. A. Hart’s Arguments Against Classical Natural Law Theory, 48 AM. J. JURIS. 297, 318 (2003) (noting how some scholars believe that “natural law theory tends towards anarchy”); cf. Vesel, supra note 3, at 48. 143. RONZITTI, supra note 5, at 105. 144. Id. at 100 (“‘The notion that because a régime is detestable foreign intervention is justified and forcible overthrow is legitimate is extremely dangerous.’”).

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that by refusing to recognize the absolute primacy of the U.N. Charter, natural law theory will undermine international order.145 In response, natural law theorists can argue that, while the slippery slope argument has logical appeal, it lacks empirical support. In fact, no post-Charter intervention exhibited the kind of Hobbesian anarchy that positivists fear. Rather, interventions usually take the form of larger states conducting limited interventions to stem massive abuses in smaller states.146 However, despite the lack of empirical evidence, the conceptual argument that natural law can be wantonly abused has sufficient force to disable natural law from being the only source of law with regard to the legality of humanitarian intervention. Thus, it is clear that other perspectives must serve as counterweights to the natural law theory which allows for humanitarian intervention. One such perspective, although virtually ignored by most states147 and scholars,148 is the historical perspective.

V. HISTORICITY AND HUMANITARIAN INTERVENTION While positivists and natural law adherents have well-entrenched, well-documented positions, a third and important perspective in the integrative jurisprudence model remains virtually forgotten: the historical perspective.149 Where the positivists and natural law proponents talk past each other, the adherent of the historical school adds a mediating perspective grounded in a less controversial source of law: our collective past. To expose this perspective and how it relates to intervention, this part will first explain the historical school and will then examine what it adds to the debate on humanitarian intervention. A.

Historical Perspective: The Forgotten Theory

Historical school proponents treat law as a manifestation of “the historically developing ethos—the traditional social representations and attitudes—of a people or a society.”150 Thus, for adherents of the historical perspective, what the law “is” is based on the character of the people, their culture, and the ideals and traditions they have historically held.151 Importantly, the historical school does not advocate that law should remain static by crystallizing in amber some particular time in the past which will be used as a talisman for contemporary behavior.152 Rather, the historicist believes that long-term historical 145. See Halldör E. Sigurbjörnsson, A Critique of “Kantian International Law,” 5 INT’L LEGAL THEORY 51, 56 (1999) (book review); ABIEW, supra note 1, at 73–74. 146. See Tyagi, supra note 4, at 887. For fuller discussion of this issue, see notes 1–3 supra and accompanying text. 147. But see Schwabach, supra note 141, at 92 (noting that “Belgium’s argument [for intervention in Yugoslavia in 1999] included reference to numerous past instances of humanitarian intervention which have been tolerated”). 148. See Berman, supra note 53, at 153 (noting that, among contemporary American scholars, he is “one of the last of [the historical school’s] defenders”); Frederick Schauer & Virginia J. Wise, Legal Positivism as Legal Information, 82 CORNELL L. REV. 1080, 1081 (1997) (describing historicism as “surviving only in the museums of jurisprudential archaeology”); Peter R. Teachout, “Complete Achievement”: Integrity of Vision and Performance in Berman’s Jurisprudence, 42 EMORY L.J. 497, 506 (1993) (noting the “decline of the historical school”). 149. Berman, supra note 21, at 794 (“The historical school has been almost universally disparaged and has virtually disappeared from almost all jurisprudential writings in the 20th century, at least in England and the United States.”). 150. Id. at 780. 151. See id. at 780–81; Berman, supra note 53, at 152 (describing historicity as “experience,” “tradition,” “community consent,” and “precedent and custom”). 152. Berman, supra note 53, at 153 (describing historicity as “including not only recollection of the past but also awareness of the present and anticipation of the future”).

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trends in a society should drive the development of current law.153 Thus, history is not merely revived in contemporary law; rather, new law is validated by its congruence with its historical pedigree.154 The most prominent modern state adherent to historicist philosophy is the Holy See. Indeed, as one scholar noted, “[a]round the Vatican, it’s nothing for officials to cite decisions made by regional church councils in the fourth century.”155 This emphasis on historicism is a crucial element when the Holy See addresses issues of international law. For example, when Pope Paul VI addressed the General Assembly of the United Nations regarding peace and security issues in 1965, he advocated a “message [that] comes from Our historical experience.”156 In calling for greater efforts to protect peace and human rights, Paul VI called on U.N. Member States to find inspiration by taking “a moment to think anew of our common origin, our history, our common destiny.”157 Pope John Paul II continued Paul VI’s emphasis on historicity in the international arena. In his first address to the General Assembly of the United Nations, John Paul II stated: “Permit me . . . to recall a constant rule of the history of humanity . . . [which emphasizes that the] development [of] human rights” is the touchstone of a “just peace.”158 In addition, commemorating the 2004 World Day of Peace, John Paul II noted that international norms, based on the ius gentium, have been “refined in the light of the historical experiences of the different peoples.”159 This clearly references the historical school which asserts that what the law “is,” is based on an evolution of the culture, character, and ideals held by a society throughout its history. Thus, despite its invocation of positivist160 and natural law161 language at times, the Holy See is also a vocal advocate of historicity. And this perspective has important ramifications for the debate surrounding the legality of humanitarian intervention. B.

Historicity Allows Intervention in Particular Circumstances

As demonstrated by its historical-school-inspired remarks, “[h]istory plays an essential role in comprehending the participation and evolution of the Holy See in

153. See id. (noting how the historicist looks to “custom and to precedent”). 154. Cf. Burnham v. Super. Ct. of Cal., 495 U.S. 604, 621 (1990) (Scalia, J.) (explaining that in-state service of process is a valid method of obtaining personal jurisdiction because of its “pedigree,” or consistent historical acceptance). 155. JOHN L. ALLEN, JR., ALL THE POPE’S MEN: THE INSIDE STORY OF HOW THE VATICAN REALLY THINKS 7 (2004). 156. Pope Paul VI, Address to United Nations General Assembly (Oct. 4, 1965), available at http://www.christusrex.org/www1/pope/U.N.-1965.html. 157. Id. 158. Pope John Paul II, Address to the United Nations General Assembly (Oct. 2, 1979), available at http://www.newadvent.org/docs/jp02u1.htm. 159. Pope John Paul II, An Ever Timely Commitment: Teaching Peace § 5 (Jan. 1, 2004), available at http://www.vatican.va/holy_father/john_paul_ii/messages/peace/documents/hf_jp-ii_mes_20031216_xxxviiworld-day-for-peace_en.html [hereinafter Pope John Paul II, Commitment]. 160. See Pope John Paul II, Address to the Members of the International Institute of Humanitarian Law (May 18, 1982), available at http://www.vatican.va/holy_father/john_paul_ii/speeches/1982/may/documents/hf_jpii_spe_19820518_diritto-umanitario_en.html (noting that the “Charter of the United Nations and many other documents provide a solid basis” for international humanitarian law); GAUDIUM ET SPES, ch. V, § 1, para. 79, available at http://www.cori.ie/justice/cath_soc_thought/Papal_Encyclicals/ppaul_VI/Gaudium_et_spes.pdf (stating that international humanitarian law agreements “must be honored”); Pope John Paul II, Commitment, supra note 159, § 5 (citing the value of “pacta sunt servanda” and asserting that “accords freely signed must be honoured”). 161. See supra Part IV.A.

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international affairs . . . .”162 Particularly, with regard to humanitarian intervention, the Holy See invokes historicity to argue that intervention is permissible and legal under certain circumstances. The Holy See does this in two ways: (1) it makes historical arguments which advocate that the writings of ancient scholars constitute a legitimate source of law to sanction intervention; and (2) it references historical experience to derive common lessons that humanity has learned which legitimate intervention. 1.

Writings of Pre-Modern Scholars Allow Intervention in Certain Circumstances

In his World Day of Peace 2000 speech, Pope John Paul II asserted that humanitarian intervention is permissible and justified by stating that: “[c]learly, when a civilian population risks being overcome by the attacks of an unjust aggressor and political efforts and non-violent defence prove to be of no avail, it is legitimate and even obligatory to take concrete measures to disarm the aggressor.”163 Obliquely criticizing the positivist view that Article 2(7) forbids interference in the internal affairs of a state, John Paul II noted that “[c]rimes against humanity cannot be considered an internal affair of a nation.”164 In referencing and defending these remarks in a later address, John Paul II said that the Holy See’s stance was drawn from “the philosophical and theological reflection of many Christian thinkers” who have “made a significant contribution in directing international law to the common good” in this area.165 Accordingly, by invoking the writings of ancient scholars who condoned intervention, the Holy See was making a historicist argument that modern international law should also recognize the legality of intervention under appropriate circumstances. In another example of appealing to ancient writers for support of its view, the Holy See’s Apostolic Nuncio to the United Nations noted that it was the “medieval canon lawyers and the gallant legal commentators of the sixteenth-century like Vitoria and Suárez [who] had already developed precedents for the basic principles of human rights that flow from the primacy and dignity of the human person.”166 Based on this perspective rooted in the historical writings of scholars, the Holy See’s Mission to the

162. Araujo, supra note 24, at 294; see also Celestino Migliore, Ways and Means of the International Activity of the Holy See, in CHURCH AND STATE: CHANGING PARADIGMS, at 31, pp. (Leuven & Peeters eds., Monsignor W. Onclin Chair Lectures Series, 2003) (“The Vatican thinks in terms of centuries.”). Ostensibly, the Holy See will continue to embrace historicity under Pope Benedict XVI, who was formerly Cardinal Joseph Ratzinger. See generally JOSEPH RATZINGER, TRUTH AND TOLERANCE: CHRISTIAN BELIEF AND WORLD RELIGIONS (Henry Taylor trans., 2004) (exploring the construct of religion and its influence on world affairs through a historical approach which examines the legacies of ancient mysticism, monotheism, and the Enlightenment); JOSEPH RATZINGER, CHURCH, ECUMENISM AND POLITICS (1988) (same). 163. Pope John Paul II, “Peace on Earth to Those Whom God Loves!” § 11 (Jan. 1, 2000), available at http://www.vatican.va/holy_father/john_paul_ii/messages/peace/documents/hf_jp-ii_mes_08121999_xxxiiiworld-day-for-peace_en.html [hereinafter Pope John Paul II, “Peace on Earth”]. 164. Id. § 7; see also Pope John Paul II, Commitment, supra note 159, § 9 (criticizing government leaders “who violate with impunity human dignity and rights while hiding behind the unacceptable pretext that it is a matter of questions internal to their state”). 165. Pope John Paul II, Commitment, supra note 159, § 9; see also Pope John Paul II, Morality Must Inspire Law of Nations § 4 (Jan. 13, 1997), available at http://www.vatican.va/holy_father/john_paul_ii/ speeches/1997/january/documents/hf_jp-ii_spe_13011997_diplomatic-corps_en.html (stating that “it was philosophers and theologians who, between the 15th and 16th centuries, were the first theorists of international society and the precursors of an explicit recognition of ius gentium”). 166. Archbishop Celestino Migliore, Permanent Observer of the Holy See to the United Nations, Statement by the Holy See Before the 58th Session of the General Assembly of the U.N. on Agenda Item 48: Fifty-Fifth Anniversary of the Universal Declaration of Human Rights (Dec. 10, 2003), available at http://www.holyseemission.org/10dec2003.html.

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United Nations has advocated for the legality of humanitarian intervention.167 Thus, in defending its positions, the Holy See, in its historicist paradigm, cites to ancient scholars. But, these references to ancient writers as a source of support for a prointervention stance beg the question of what the ancient writers actually had to say with regard to intervention. In general, the historical school adherent finds support for the legality of intervention in ancient writers. Although Aristotle168 and Cicero169 can be cited for support of intervention, and doubtless were used as inspiration for later Christian writers, the “classical origins of what became known as humanitarian intervention lie in the emergence of a substantive doctrine of the just war in the Middle Ages.”170 The father of the Christian theory on just intervention was St. Thomas Aquinas, who argued that a sovereign had the right to intervene “in the internal affairs of another when the latter mistreats his own subjects beyond the limits of what seems acceptable.”171 Following Aquinas, and perhaps more authoritative than Aquinas because he is hailed as the father of modern international law,172 was Grotius, who wrote that if a tyrant “should inflict upon his subjects such treatment as no one is warranted in inflicting, the exercise of the right vested in human society is not precluded.”173 Grotius also asserted that “kings . . . have the right of demanding punishments . . . on account of injuries which do not directly affect them but excessively violate the law of nature or of nations in regard to any persons whatsoever.”174 In addition to these scholars, the Holy See has referenced the writings of Emmerich de Vattel,175 who argued that “‘[i]f a prince, by violating the fundamental laws, gives his subjects a lawful cause for resisting him; if, by his insupportable tyranny, he brings a national revolt against him, any foreign power may rightfully give assistance to an oppressed people who ask for its aid.’”176 Thus, historicists find a wealth of support for humanitarian intervention in the writings of ancient scholars. In addition to citing scholars that independently support a pro-interventionist stance, the Holy See is also tacitly basing its argument on pre-Charter customary international law. Because the scholars noted above and their contemporaries were nearly universal in their support of the legality of intervention, the right of humanitarian intervention was accepted

167. See, e.g., Silvano M. Tomasi, Monsignor, Address at the Intervention by the Holy See at the Executive Committee of the United Nations High Commissioner for Refugees § 3 (Oct. 4, 2004), available at http://www.vatican.va/roman_curia/secretariat_state/2004/documents/rc_seg-st_20041004_tomasi-unhcr_en.html. 168. See MURPHY, supra note 2, at 37 (noting that Aristotle described intervention as just if done to help oppressed peoples “‘share in the good life’”). 169. See id. at 39, n.24 (quoting Cicero as writing that war is justified “‘when it is evident that peace is the one object we pursue’”). 170. CHESTERMAN, supra note 62, at 9. 171. Jean-Pierre L. Fonteyne, The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity Under the U.N. Charter, 4 CAL. W. INT’L L.J. 203, 214 (1974). Aquinas’s stance on intervention was largely drawn from his just war theory, which posited that a war could be waged if (1) the resort to war is based on right authority; (2) there is just cause, which exists when the target has acquired some form of guilt (justa causa); and (3) the intervenor has the right intention (recta intention). See Arthur Nussbaum, Just War—A Legal Concept?, 42 MICH. L. REV. 453, 457 (1943). All of these conditions would usually apply when a state intervenes for altruistic reasons in response to the commission of atrocities by another state. 172. See Ford, supra note 136, at 315. 173. GROTIUS, supra note 137, at para. 2. 174. Id. at ch. 20, § 40, para. 1; see also id. at ch. 1, § 2, para. 2 (noting that war was just when inflicted on a nation as punishment for excessive crimes). 175. See Pope John Paul II, Angelus at Castel Gandolfo (July 25, 2004), available at http://www.vatican.va/holy_father/john_paul_ii/angelus/2004/documents/hf_jp-ii_ang_20040725_en.html. 176. Lloyd N. Cutler, The Right to Intervene, 64 FOREIGN AFF. 96, 97 (1985) (quoting EMMERICH DE VATTEL, THE LAW OF NATIONS, Vol. III, Chap. IV, p. 131 (1758) (Charles G. Fenwick trans. 1964)).

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as a customary international law prior to the adoption of the U.N. Charter.177 By referencing a pool of scholars who supported intervention, the Holy See’s historical argument that intervention was a traditional ideal held by international society thus gains additional force because the permissibility of intervention was part of recognized customary international law.178 Under the historicist model, these ancient scholars show that favoring intervention is part of the culture, ideals, and traditions of humanity. Consequently, according to the Holy See, the contemporary notion of what the law “is” with regard to intervention must recognize both historical writings and long-established customary international law as legitimate sources of law that should have bearing on the humanitarian intervention debate. 2.

Common Historical Experiences Have Galvanized a Duty to Intervene

In addition to citing ancient scholars, the Holy See also takes a historicist tack by referencing world history and arguing that the lessons humanity has learned throughout its history should be a legitimate source of law to justify intervention. For example, in his World Day of Peace 2000 message, John Paul II referenced the history of the twentieth century, which included a “horrifying sequence of wars, conflicts, genocides and ‘ethnic cleansings’ . . . .”179 Based on this common world history, John Paul II argued that one of the lessons learned was that “brutal and systematic violence . . . has had to be countered by armed resistance.”180 Likewise, in a homily on the Jubilee of the Armed Forces and the Police, John Paul II referenced historical “experience” to demonstrate that armed forces have a duty to intervene under certain circumstances.181 In addition to this overt use of history as a legitimating source to sanction intervention, John Paul II also indicated that, in response to past atrocities, humanity had created a “legal system [supporting intervention] made up of norms established down the centuries as a means of disciplining” states which commit human rights violations.182 According to this argument, if historical instances of atrocities were the catalysts for the development of the current legal system, then implicit in that system should be an allowance for efforts to avert future atrocities in the form of intervention. Thus, the Holy See argues that history has taught humanity that intervention is necessary at times, and that historical lessons should be a legitimate source by which contemporary interventions should be permitted.183 In addition to citing historical lessons for justification, the Holy See also alludes to historical lessons to criticize the positivist position. In his World Day of Peace 2004 speech, John Paul II stated, “[h]istory teaches that the building of peace cannot prescind 177. See Vesel, supra note 3, at 9; Fonteyne, supra note 171, at 235–36 (“‘[T]he doctrine of humanitarian intervention appears to have been so clearly established under customary international law that only its limits and not its existence is subject to debate.’”). 178. Berman, supra note 21, at 781–82 (noting how historical school proponents look to customary international law to support their arguments). 179. Pope John Paul II, “Peace on Earth,” supra note 163, § 3. 180. Id. 181. Pope John Paul II, Homily on the Jubilee of the Armed Forces and the Police § 4 (Nov. 19, 2000), available at http://www.vatican.va/holy_father/john_paul_ii/homilies/documents/hf_jp-ii_hom_20001119_ jubilarmforces_en.html. 182. Pope John Paul II, Commitment, supra note 159, § 8. 183. To underscore the legitimacy of this argument, it should be noted that Germany made a similar argument when it decided to intervene in Kosovo as part of NATO in 1999. To justify Germany’s involvement in the intervention, German Foreign Minister Fischer recounted the lessons Germany has learned from history: “I learned not only ‘No more war’ but also ‘No more Auschwitz.’” Josef Joffe, A Peacenik Goes to War, N.Y. TIMES MAGAZINE, May 30, 1999, at 30, 33 (internal quotations omitted). This demonstrates that other states see historical experiences as proper sources by which to justify contemporary intervention as well.

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from respect for an ethical and juridical order, in accordance with the ancient adage: ‘Serva ordinem et ordo servabit te’ (preserve order and order will preserve you).”184 In this way, John Paul II argues that positivism’s extreme position—that the letter of the U.N. Charter should be followed, even if it means not responding to atrocities—is wrong-minded in light of the catastrophic horrors that humanity has witnessed when such a policy has been followed. Order alone, established by rules, cannot be the only value given primacy. In sum, the Holy See uses historicism to argue that intervention is permissible. When circumstances comport with the standard by which interventions were allowed in the past according to ancient scholars and pre-Charter customary international law, that is, when a state was subjecting its citizens to atrocities which “‘shock[] the conscience’” of international society, intervention aimed at the termination of such atrocities is allowed.185 In addition, the historical model is frequently used to argue that certain situations give rise to obligations erga omnes (i.e., universally applicable toward all).186 Because these obligations have historically created a duty for states to intervene, intervention is permissible.187 Thus the historical perspective adds that the legality of intervention is not guided only by the collective political will of states expressed in international legislation and administration, and not only by a moral order expressed in universally accepted standards and values, but also by that which may be understood by revisiting history and the lessons it teaches.188 C.

Critiques of the Historical Position

The historicity advocated by the Holy See has some merit in its responses to the shortcomings of both positivism and natural law.189 By referencing historical instances of intervention, historicity presents a model which accounts for those times in which state practice failed to coincide with positive law.190 Moreover, arguments based on historicity coming from the Holy See are not as easily condemned by the international relations “realists” who ascribe to positivism191 because scholars and states realize that the Holy See’s agenda is to secure peace, not temporal power, and therefore it is not driving the debate for self-interested reasons.192 In addition, by using the empirical facts of the past, historicity reduces the danger of relying on culturally relativistic norms and values because the past is shared collectively by all.193

184. See Pope John Paul II, Commitment, supra note 159, § 9. 185. See Lillich, supra note 10, at 332; see also Nikolai Krylov, Humanitarian Intervention: Pros and Cons, 17 LOY. L.A. INT’L & COMP. L.J. 365, 368 (1995). 186. Cf. Barcelona Traction, Light & Power Co. (Belg. v. Spain), 1970 I.C.J. 3, 32 (Feb. 5) (discussing erga omnes obligations). 187. See Tyagi, supra note 4, at 885. 188. See Berman, supra note 21, at 795. 189. See id. 190. For examples and discussion of such instances of interventions, see notes 87–92 supra and accompanying text. 191. For an explanation of the realists’ criticisms, see note 58 and accompanying text. 192. See Pope Paul VI, supra note 156 (“[The Holy See] has no temporal power, nor any ambition to compete with you [states].”); Eugene V. Rostow, The Role of the Vatican in the Modern World, L’OSSERVATORE ROMANO (WEEKLY ED. IN ENGLISH), May 30, 1968, at 4 (“[the Vatican] derives its additional diplomatic force from its attitude of benevolent neutrality . . . .”); ALLEN, supra note 155, at 45–46 (describing the Holy See’s foreign policy goals as “peace, justice, environmental protection, and sustainable development”). 193. For a critique of natural law’s reliance on cultural relativism, see notes 123–26 supra and accompanying text.

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However, there are still some objective critiques that can be made of the historical school and the Holy See’s invocation of its tenets. The first and most obvious critique of historicity is the argument that ancient scholars and outdated customary international law cannot be authoritative in a modern international debate.194 The rise of the United Nations and the post-World War II era has radically changed the world order, and thus “‘past law relating to humanitarian intervention has little relevance to the present system.’”195 Scholars espousing this view reason that positivism’s ultimate triumph over the historical school196 demonstrates that historicism has no place in modern international law.197 Accordingly, because the world has drastically changed since the times of Aquinas and Grotius, the historical model cannot necessarily carry the day by itself. A second critique of historicity comes from positivists. In retort to the natural law and historical school arguments that positivism myopically looks to enacted law for legitimacy, positivists argue that historicity is itself myopic by referencing ancient history while being blind to more recent developments.198 In this way, positivists assert that historicists are selective in their citations to historical precedent.199 This argument has some force in the area of intervention when viewed against the backdrop of inconsistent state practice. In essence, because all genocide, for example, is not uniformly met with state intervention, positivists argue that historicists cannot point exclusively to history to justify intervention to stop genocide.200 Accordingly, while Grotius may command a certain amount of respect as the father of modern international law,201 and therefore reference to his works may be proper, historicity can be charged with failing to account for contemporary developments. There has been over fifty years of history since the founding of the United Nations and, throughout most of that history, international bodies composed of states have officially condemned humanitarian intervention.202 Thus, a historicity that selectively calls upon ancient sources to legitimate intervention can be discredited for ignoring more recent history. In light of these critiques, one cannot rest on historical arguments alone when deciphering what the law is with regard to humanitarian intervention.

VI. HUMANITARIAN INTERVENTION THROUGH THE LENS OF INTEGRATIVE JURISPRUDENCE As has been shown, not one of the three facets of integrative jurisprudence can legitimately claim primacy in the debate over the legality of humanitarian intervention. Rather, each school adds an important dimension that must be considered when 194. See Nadine Strossen, Recent U.S. and International Judicial Protection of Individual Rights: A Comparative Legal Process Analysis and Proposed Synthesis, 41 HASTINGS L.J. 805, 820 (1990); Douglas J. Sylvester, Comment, Customary International Law, Forcible Abductions, and America’s Return to the “Savage State,” 42 BUFF. L. REV. 555, 609–10 (1994). 195. Richard B. Lillich, Humanitarian Intervention: A Reply to Ian Brownlie and a Plea for Constructive Alternatives, in LAW AND CIVIL WAR IN THE MODERN WORLD, supra note 18, at 231; Tyagi, supra note 4, at 906 (“The traditional international law of humanitarian intervention cannot be a good basis of a new international humanitarian law.”). 196. Harold J. Berman, The Origins of Historical Jurisprudence: Coke, Selden, Hale, 103 YALE L.J. 1651, 1737–38 (1994). 197. For examples of such scholars and their views, see note 53 supra. 198. See Ulmen, supra note 44, at 1119. 199. See Geoffrey R. Watson, The Death of Treaty, 55 OHIO ST. L.J. 781, 845 (1994). 200. Cf. Tyagi, supra note 4, at 893. 201. But see Nagan & Hammer, supra note 26, at 401 n.99 (quoting Senator Daniel Patrick Moynihan for the proposition that “‘real men [do] not cite Grotius’”). 202. See supra Part III.B.

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determining what the law “is” with regard to intervention. The proceeding paragraphs will detail the particular aspects that each school puts forth, and in doing so will suggest a model for determining the legality of future interventions. First, as detailed in Part III, the positivist school condemns resort to unilateral or collective, non-U.N.-sanctioned humanitarian intervention outside of the Article 51’s selfdefense exception. Articles 2(4) and 2(7), in addition to a host of other international documents, assert the primacy of territorial sovereignty and integrity over all other values. According to this model, all post-Charter interventions203 were illegal, with the exceptions of Liberia, Somalia, Bosnia, Rwanda, Haiti, Sierra Leone, and East Timor, which received U.N. Security Council sanction.204 But, recognizing that positivism is not the only source of law, integrative jurisprudence operates to incorporate the major premise of positivism as a component part of a coherent framework. This is achieved by gleaning from positivism a presumption against the legality of an intervention. Thus, the positivist contribution to the legality framework is that “a jurist asserting a right of forcible humanitarian intervention [initially] has a very heavy burden of proof”205 and therefore must overcome a presumption of illegality by referencing other legitimating sources. Second, as explained in Part IV, natural law proponents largely support humanitarian interventions when there is an absence of a minimum moral order in a given state and intervention is undertaken to safeguard universal values.206 Natural law thus views intervention as necessary in times when the sovereign functions of a state break down and the state no longer protects the fundamental rights of its citizens. According to this doctrine, even interventions partly motivated by a desire to protect human rights and dignity would be legal. This theory would have made nearly all the post-Charter interventions legal. But, several qualifications of the natural law position must be added to account for instances in which natural law rhetoric was used to mask intervention motivated by national self-interest. One such exception is Vietnam’s intervention in Cambodia, which pure natural law theory may not have sanctioned because it was widely condemned as having been driven solely by Vietnam’s self-interest.207 In addition, the Indian intervention in East Pakistan is a marginal case because of India’s interest in protecting the Hindu minority in East Pakistan, its distaste for the then recently elected autonomy-minded Awami League government, and its desire to avoid an influx of poor refugees into its country.208 In terms of the integrative jurisprudence model, then, natural law adds to the framework two ideas: (1) the idea of intentionalism—if a state is motivated in large part by altruistic humanitarian motivations, the intervention should not be deemed illegal;209 and (2) the idea of a fallen state structure—if the state is no longer able to secure a minimum moral order (or is in fact itself contributing to the violation of moral values), then intervention should not be deemed illegal. Both of these ideas allow for states to act 203. For a list of post-Charter interventions, see note 4 supra. 204. See ABIEW, supra note 1, at 159–221. 205. Brownlie, supra note 18, at 218. 206. See Vesel, supra note 3, at 6–7. 207. See ABIEW, supra note 1, at 130–31 (noting that Vietnam’s occupation of the capital for an extended period of time and its installation of a puppet regime in place of Pol Pot revealed it was motivated by nationalist, not humanitarian, concerns). 208. See id. at 114–19. 209. Recognizing the persuasiveness of the realist perspective that few states will engage in intervention solely for altruistic reasons, this model pragmatically permits that states may have mixed motives and still engage in a lawful intervention. See Yoo, supra note 3, at 743 (dismissing the notion that mixed motives disqualify an intervention from consideration because some interventions “might not have occurred but for the presence of independent humanitarian goals”). Otherwise, domestic political pressures would likely thwart many states’ interventions if there was no benefit that would adhere to the intervenor. Cf. id.

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based on the values outlined by natural law, but also provide necessary checks to avoid altruistic rhetoric from being abused by power-hungry states. Third, as outlined in Part V, historicity allows intervention when gross human rights violations “shock the conscience” of international society according to common culture, ideals, and traditions long-established. Under this rubric, the historical perspective would have sanctioned the interventions in Bosnia, Somalia, Rwanda, Sierra Leone, East Timor, and Kosovo because they were in step with the kind of grave abuses that had historically received intervention. The common thread running through these cases is the presence of genocide and grave, systematic violations of human rights. Looking back, historicity recognizes the universal condemnation and revulsion that resulted from the concentration camp exterminations perpetrated by the Nazis toward the end of World War II.210 Because the genocide and slaughter in Bosnia, Somalia, Rwanda, Sierra Leone, East Timor, and Kosovo involved analogous behavior, though perhaps not on the same scale, historicity would condemn these acts based on the universal lessons learned from the Nazi horrors. In addition, the historical perspective would have sanctioned the interventions in the Congo, Grenada, and Panama because history and ancient scholarly writing are rife with examples of legal interventions to protect nationals abroad.211 Thus, the historical perspective adds to the framework a reference to past state and U.N. practices and historical ideals and traditions as seen in the writings of ancient scholars and prior customary law. Accordingly, for the integrative jurisprudence model, historicity adds that an intervention is deemed legal if it comports with prior practices, the writings of past scholars, and long-established customary law. Putting the pieces of the integrative jurisprudence model together, then, the following three-step inquiry should be applied to contemporary interventions to determine their legality: (1) Positive Law Prong: Assess whether the action is a non-U.N.-sanctioned humanitarian intervention that cannot be classified as self-defense, humanitarian assistance, or protection of nationals abroad.212 If the intervention satisfies the definition of an intervention and cannot be classified under an exception, then a rebuttable presumption against legality should be applied in light of the positive law prohibiting interventions. The state or group of states wishing to engage in intervention would thus bear the burden of persuasion with respect to the following two prongs in order to rebut the presumption against the legality of the intervention. (2) Natural Law Prong: Determine whether the intervention (a) is being effected at least in part pursuant to altruistic motivations (e.g., to protect human rights, dignity, and justice); and (b) is being effected to restore moral order to a fallen state structure. Both prongs must be met in order for this natural law test to sanction an intervention and in part rebut the positive law presumption against legality. (3) Historicity Prong: Determine whether the intervention is in step with historically held ideals as seen in state and U.N. practice in similar interventions,

210. See, e.g., Leonard W. Schroeter, Human Experimentation, the Hanford Nuclear Site, and Judgment at Nuremberg, 31 GONZ. L. REV. 147, 167 (1995); David Alonzo-Maizlish, Note, In Whole or in Part: Group Rights, the Intent Element of Genocide, and the “Quantitative Criterion,” 77 N.Y.U. L. REV. 1369, 1400 & n.179 (2002) (noting that some scholars “see the [Genocide] Convention as a context-specific articulation of the world community’s collective revulsion at the Nazi horror”). 211. For discussion and examples of such interventions, see notes 4 & 5 supra. 212. For the definition of humanitarian intervention, see note 4 supra.

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ancient writings, and customary international law. If there is congruence between historical precedent that has sanctioned intervention and the current action, then the historicity prong favors a finding of legality in the intervention. In sum, if the intervening state or group of states meet the historicity prong and the two sub-prongs of the natural law test, then the intervention should be legal under international law. Importantly, this model recognizes that each perspective of the integrative jurisprudence trinity has something to add to the determination of whether an intervention is legal. In affirming that each perspective references legitimate sources of law that bear on an intervention’s legality, a more balanced, palatable concept of the legality of humanitarian intervention has been developed. In doing so, the framework developed in this Article eschews the trench warfare being fought by positivist and natural law adherents. By offering a unified, compromise framework, this Article seeks to re-engage scholars in the debate surrounding humanitarian intervention and to conceptually realign how states and scholars view intervention. In essence, this Article offers a viable alternative to restart the debate over the legality of humanitarian intervention. And, by integrating and legitimizing all three of the classical schools of legal theory, and by removing the fear of outright prohibition of intervention in the process, perhaps the practice of states in intervening on humanitarian grounds will be less “haphazard, parochial, and controversial”213 and more focused on preventing atrocities for the collective good of international society.214

VII.

CONCLUSION

Following World War II, the United Nations was created to prevent rampant nationalism from bringing the world into such destructive armed conflict again.215 At that time, international law adapted from a system of allowing states virtual free rein to engage in forcible self-help to a system that emphasized state sovereignty and territorial integrity.216 Since that time, as the primacy of state actors in international law has diminished,217 international law has undergone another dramatic change, this time to a system that values human rights and human dignity above all.218 Accordingly, while the debate surrounding the legality of humanitarian intervention is not new,219 a new model 213. Tyagi, supra note 4, at 893. 214. See Yoo, supra note 3, at 784–89 (detailing how the use of force can be judged on a cost-benefit basis and ultimately whether it results in the provision of an international public good such as an end to genocide). 215. See Ko-Yung Tung, Shaping Globalization: The Role of Human Rights—Comment on the Grotius Lecture by Mary Robinson, 19 AM. U. INT’L L. REV. 27, 31 (2003). 216. For background on the theory of non-intervention, see note 62 supra and accompanying text. 217. Julie Mertus, The State and the Post-Cold War Refugee Regime: New Models, New Questions, 20 MICH. J. INT’L L. 59, 85–86 (1998) (noting that the “role of the state mutate[d] and diminishe[d] with the entry of new non-state actors into the international arena, including powerful NGOs” and groups supporting individual human rights). 218. See Prosecutor v. Furund`ija, Case No. IT-95-17/I-T, Judgment, para. 162 (Dec. 10, 1998), available at http://www.un.org/icty/furundzija/trialc2/judgement/fur-tj981210e.pdf (asserting that the primary purpose of international humanitarian law is the preservation of human dignity); Brown, supra note 101, at 211–12 (“A number of scholars have suggested that international law [has] progress[ed] from its state-centric roots into a more evolved system which protects the rights and interests not only of states but of peoples and individuals as well.”). For a list of recent conventions designed to safeguard individual human rights, see note 9 supra. 219. “The doctrine of unilateral humanitarian intervention has been contemplated, discussed, and debated for over 600 years.” Steve G. Simon, Comment, The Contemporary Legality of Unilateral Humanitarian Intervention, 24 CAL. W. INT’L L.J. 117, 117 (1993).

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should be adopted to recognize this transformation, thereby allowing the law to adapt to meet modern needs and goals.220 As has been shown, the integrative jurisprudence model for humanitarian intervention outlined in Part VI is a viable candidate to replace the reigning positivist-natural law stalemate. The Holy See has led the way in advocating that a historical approach should be added to the debate, and other states and scholars should consider its argument. Neither the formal literalism espoused by positivists, nor the values-inspired tenets held by natural law adherents, nor the precedent cited by historicists can alone accurately and completely determine the legality of humanitarian intervention. But, by recognizing that each of these schools reference legitimate sources of law, and by integrating them into a coherent model, the integrative jurisprudence framework described in this Article offers a more nuanced, balanced evaluation of the legality of an intervention. And by resorting to this integrated approach, perhaps the “laws of humanity”221 can actually regulate international society while also protecting humanity at its darkest hours.

220. See ABIEW, supra note 1, at 185 (quoting Kofi Annan as stating that the modern “‘reality is [that] there are situations when you cannot assist people unless you are prepared to take certain [military] measures’”). 221. Declaration Renouncing the Use in Time of War of Explosive Projectiles Under 400 Grammes Weight, para. 6, Dec. 11, 1868, 138 Consol. T.S. 297, translation available at http://www.lib.byu.edu/~rdh/wwi/1914m/ gene68.html.