The articles in this symposium were among the many presented by distinguished scholars and policymakers who attended the Ninth Annual Joint United States European Command and Federal Republic of Germany Ministry of Defense Legal Conference held in picturesque Garmisch, Germany. Entitled "The Rule of Law in Conflict and Post-Conflict Situations," the conference was hosted by the bi-national George C. Marshall Center and was attended by over sixty participants from twenty-five countries who were either senior attorneys or other government officials from their nation's defense and foreign ministries. (1) Most of the countries represented hailed from the Marshall Center's region of emphasis--East/Central Europe, the Balkans, and the States of the former Soviet Union. (2) As such, this mix of participants provided the catalyst for a frank, but always respectful, exchange of ideas and viewpoints on the state of international law following Operation Iraqi Freedom.
Although contentious debate is not uncommon at legal conferences, what was striking about the discourse during this multilateral conference was that the divide over the legality of United States' actions generally reflected two approaches to international law. (3) Specifically, those critical of Operation Iraqi Freedom or humanitarian intervention tended to focus on the war's alleged incompatibility with the U.N. Charter, customary law, or International Court of Justice (ICJ) precedent, thereby limiting their analysis to "internal" sources of law--those that can be traced to a manifestation of state consent. (4) In contrast, those more supportive of Operation Iraqi Freedom or humanitarian intervention tended to employ a more normative approach. They thereby allowed, in addition to traditional manifestations of sovereign consent, "external" references to enter into their legal calculus, whether directly or by way of interpreting traditional sources of sovereign consent. Providing some of these external reference points for the assembled attorneys were Dr. Martin L. Cook and Professor Michael Novak's presentations on Ethics, Just War and Just Peace. (5) The conference, in short, was a prototypical example of what one academic, Professor David J. Bederman, astutely observed as today's "debate" in international law:
[T]he issue is whether law for the international community is
exclusively the product of consent by the participants in the system
(however manifested) or also of enduring truths that somehow
reflect the fundamental values of that community. Put another way,
are all rules in a legal community internally generated by means
and institutions chosen by the participants, or is there also a
metaphysic of first principles that governs the system? (6)
The purpose of this article is to examine these two approaches through the illustrative use of the articles in this symposium issue, to highlight how this debate is fueled by increasingly normative judgments by States and NGOs, and to suggest a third approach to international law to better foster the rule of law, one consisting of recognizing the key values held on both sides of the debate.
II. TWO APPROACHES TO INTERNATIONAL LAW
For ease of discussion and analysis, this article refers to a positivist and a naturalist approach to international law in generic fashion, although there are many historical and modern variations within each approach, and other approaches to law have evolved from these approaches. Moreover, although seemingly mutually exclusive, positivism and natural law may not be as doctrinally incompatible as they appear at first glance. Nevertheless, as a general description, these two designations do signal a legal perspective or mindset that many times results in disparate analysis and conclusions regarding the lawfulness of international actions, and these terms are used in this Article to illustrate the divide. …