What rogue states do we have in mind? Use of Force Law and the Different Kinds of Threats Posed by Different Kinds of Rogues (a) Security Rogues (b) Human Rights Rogues Concluding Observations The title of today's conference--International Law in the Age of Trump--reminds us that we have entered a period in which many things, big and small, are being re-examined, and this re-examination is being shaped by forces that we do not fully understand.
There are questions on the domestic stage about how our political system will operate into the future, and the values and priorities of the American people to which it will respond. But the questions on the international stage are just as profound: questions about the basic institutions of our international architecture, including the role of the United Nations, the future of the North Atlantic Alliance, the principles of free trade, and the importance of international law and other international norms. There are strong interests in the stability, predictability, and reliability that the existing institutions and rules have been intended to provide.
Questions about the rules governing the use of force are part of this broader debate about the post-World War II architecture. It is thus in the context of this broader debate that we should consider these rules should operate in connection with so-called "rogue states" and, inevitably, about whether we should be working to loosen these rules. (1)
In principle, there would seem to be a strong interest in not contributing to a breaking down of basic paradigms that are central to the international architecture, and not fueling a sense that international institutions generally are ripe for rejection. Beyond questions about the desirability of not contributing generally to paradigm breaking, there are questions about whether we find ourselves in an opportune political environment in which to affirmatively articulate new criteria or standards for resort to force that would be needed to replace the old. How, in this environment, would the new rules be crafted? Would they be sufficiently cabined so as to protect against over-emphasis on short-term advantages to the detriment of our genuine long-term interests? Change, even of bad rules, is not inherently desirable, but rather depends on what rules, or lack of rules, would replace them.
I say this not to argue against the desirability of encouraging changes in the rules as such, but only to strike a note of caution about the need to think carefully before doing so. The existence of risk is only one part of what needs to be considered, and one cannot determine whether the risk is worth taking without also considering the potential benefits. To evaluate the potential benefits of new rules, we need to consider the extent to which the existing rules are in fact constraining us from actions against rogue states that we would otherwise want to undertake. And it also requires a clear understanding of what we mean when we refer to rogue states.
What rogue states do we have in mind?
The phrase "rogue state" is not defined under international law and there is no clear consensus about what it means. (2) Different administrations have had different ideas about the criteria for qualification as a rogue state and which states meet the criteria. (3) Lawyers sometimes refer to lists that exist under various pieces of domestic legislation, such as the list of terrorism-supporting states under United States foreign assistance and export control laws (4) or the list of so-called "pariah states" that are the subject of special rules requiring proportionate withholdings when calculating United States contributions to international organizations. (5) Others outside the U.S. government have had their own views, such as the characterization by the President of the International Criminal Tribunal of the former Yugoslavia of the Federal Republic of Yugoslavia under Milosevic as a rogue state. (6)
For its part, the Clinton administration used this phrase to include Iran, Iraq, Libya, and North Korea, and sometimes Cuba. (7) Then-National Security Adviser Anthony Lake described them as "recalcitrant and outlaw states that not only choose to remain outside the family but also assault its basic values." (8) He described characteristics that he said they shared:--rule by cliques that control power through coercion, suppression of human rights, promotion of radical ideologies, antipathy toward popular participation that might undermine the regime, and a chronic inability to engage constructively with the rest of the world. (9)
The Clinton administration eventually found that the use of the phrase complicated foreign policymaking and made a conscious decision to stop using it. (10) However it was again used by the Bush administration, notably in connection with the phrase "axis of evil," which was often seen as tied to interests in regime change. (11) What did rogue states have in common? According to National Security Adviser Lake--
"they are embarked on ambitious and costly military programs-especially in weapons of mass destruction (WMD) and missile delivery systems-in a misguided quest for a great equalizer to protect their regimes or advance their purposes abroad." (12)
In President Bush's words
"States like these, and their terrorist allies, constitute an axis of evil, arming to threaten the peace of the world. By seeking weapons of mass destruction, these regimes pose a grave and growing danger. They could provide these arms to terrorists, giving them the means to match their hatred. They could attack our allies or attempt to blackmail the United States. In any of these cases, the price of indifference would be catastrophic." (13)
Statements like these strongly suggest that "rogue-ness" was conceptualized in terms of states that pose security threats. It is true that President Bush also said that the attributes of these countries included brutalization of their own people and disregard of international law, (14) and National Security Adviser Lake described the propensity to suppress human rights as a characteristic these countries shared. (15) But the fact that the remedies they proposed for dealing with these states were security measures--proactive and strengthened counter-proliferation and non-proliferation efforts, (16) and active engagement "in unilateral and multilateral efforts to restrict their military and technological capabilities" (17)--left little doubt that the heart of the problem was seen as a security threat. As rogue...