Rogue states and international law (yes, an Iraq war blog)

Somehow, I’ve bluffed people into believing I know something about international law. So a friend in an e-mail discussion recently asked me for a definition of “rogue state” and challenged me to think about whether the United States is one. (I should say the discussion challenged/spurred my thinking about classifying the US, there was no flinging down of ideological gauntlets.)

My view is that international law is a game of standards. It is a frustrating game because there is no enforcement unless there is the political will to back it. The only way international law can live up to its calling is persuasion, and that includes persuading weak players they are better in the game than out of it, because it may protect them from the strong. It also includes persuading the strong the rules are worth sticking to.

I have a big objection to the concept of a “rogue state” as a legal concept; and object to applying the term to the United States. The concept, like “terrorism”, is meaningless and its use counterproductive. I dislike attempting to attach legal significance to merely rhetorical terms. Terminology can confer legitimacy where none exists.

The US Government’s classifying al-Qaeda and Taliban prisoners taken in the Afghanistan War as “illegal combatants” and using that as a reason to deny them full Geneva Convention rights is a case in point. “Illegal combatants” is simply a ludicrous concept: the laws of war know combatants and non-combatant. Combatants may breach those laws and be prosecuted for war crimes. To say these men are inherently “illegal” because they did not wear identifying uniforms would put, say, the French Resistance (also an irregular movement, not officially government-sanctioned and operating in “enemy” territory) in a dodgy position. These prisoners may have acted illegally and committed war crimes, but until tried and sentenced, they are POWs.

Not according prisoners Geneva Convention rights only erodes the moral force of the Conventions and places US (and allied) servicemen at risk. Yes, “our boys” may be fighting opponents unlikely to respect the Conventions; but that respect is much less likely to be fostered under the present approach.

Similarly, I think many new “terrorism” laws are misconceived: Al-Quadia forces are either combatants who can be tried for war crimes, or they are ordinary criminals. The special category “terrorist” has proved enormously difficult to define (see provisions of the reasonably workable, if, I think, complex to prosecute, Australian legislation here and here). Most definitions of terrorism talk of the use of violence to change public policy, which can sound a good deal like war as waged by states. The slipperiness of the term tends to make for bad laws, legislated in haste, that infringe civil liberties.

Sometimes I wonder if the English-speaking world learned nothing from Northern Ireland. If you relax laws to make detention or conviction easier, you risk unjust results and radicalising the moderates whose support you need for a lasting peace (or even, crudely, as informers). There are still inquiries, headed by international jurists, looking into the mess created by that “terrorist” conflict. (Does anyone doubt it was a guerilla war?)

OK, so why is “rogue state” meaningless? Like “illegal combatant” or “terrorist” it is essentially a political term. It expresses a pre-judgement, not a solid legal meaning. As far as I know the phrase has no meaning at international law, and has principally been a US State Department classification, now replaced by the friendlier term “states of concern”.

“Rogue state” might indicate a willingness to resort to the unilateral use of force (other than in self defence) outside the UN system. It might also indicate a history of human rights abuses. It might also indicate a level of general condemnation by the international community as expressed by trade embargos, lack of diplomatic recognition, etc. It might also indicate being in breach of Security Council Resolutions or a ruling of the International Court of Justice.

Depending on how you want to weight those elements, almost any nation could be a “rogue state”.
Democracies are particularly vulnerable to human rights scrutiny, and tend to resent adverse UN (or other) reports rather than accepting them as a challenge to live up to democracy’s potential. Australia hasn’t had a great track record at the UN, attracting consistent adverse criticism on asylum-seeker and indigenous issues; and Britain has had a series of losses in the European Court of Human Rights. We don’t call our country or England rogue states. I am not making an argument for unconstrained relativism here: some states are clearly worse international citizens, and worse places to live, than others. But lumping groups of states under perjorative terms and then trying to give those terms legal meaning is unhelpful. That process elides significant differences just as relativism does.

Present US foreign policy, in the hands of George W. Bush and his Cabinet, does have dangerous unilateralist leanings. International law is a game where you have to persuade standards up, convincing the least powerful players they have a stake in a secure, stable system. If the system can’t keep the biggest player within the rules, it will not be seen to be worth much. Threats or intimations of a willingness to act regarding Iraq without a second Security Council Resolution may be diplomatically expedient, but can only serve to reduce the confidence on which the system is built.

Am I arguing a slippery slope? Yes. This week in Parliament the Prime Minister of Australia cited the 1999 NATO bombing campaign in Yugoslavia as a justifiable military exercise that was not authorised in advance by a Security Council Resolution. It’s called precedent, people - and it’s a part of legal reasoning. If it justifies acts that undermine the stability of international systems, it’s dangerous. So is the growing talk of “self-defence by pre-emptive strike” - also a concept without legal content. (Apparently a Japanese military academic has opined that the Japanese pacifist constitution should be re-interpreted to make defensive strikes against North Korean airbases “legal”. This comes on top of US, British and Australian uses of the idea.)

What’s the answer? The same as always: persuading people, leaders, countries to respect international law - because it’s the only game in town. It can only be enforced by the will of nations: the ICJ can’t impound your economy, the UN has no standing army. Yes, the process of persuasion is slow and tedious - but telling the US, a country that does not actually want this war or agree with its leader about the necessity for it, that it is a “rogue state” is not going to be very constructive. Yes, successive US federal governments have had a patchy track record on international law and cooperation: many other nations do too.

At the end of the day there is no “game” without the US, and no “game” if the strong trample its rules underfoot either. We have to persuade everyone to stick with the UN project. Like international law, it may be flawed, it may have little power beyond moral authority; but it’s goals are worthy and provide our best hope for a stable world order.

The thing I find encouraging? In Britain, Australia and the US there is only majority support for a war with a second Security Council Resolution.

What do I call that? A modest triumph for moral authority.

I call it a start.




Rant over: a reward for those who made it this far, tomorrow’s entry will be in the form of a romantic musical comedy.