Published online by Cambridge University Press: 06 March 2019
Viewed at a certain angle, the rogue state seems to be in almost necessary relation with the idea of rupture. As Derrida put it in his 2002 lectures on Rogues, the rogue state, état voyou in franglaise,' “is someone who rattles, who shakes things up, who agitates.” Past and present rogue states like Iran, Iraq, Libya or North Korea, are associated with the acquisition of Weapons of Mass Destruction (WMD), state sponsorship of terrorism and the violation of human rights. These entities pose both external threats to other states and internal threats to their own people. Today, the phrase ‘rogue state’ may seem to be past its sell-by-date. While the term was not coined by the G.W. Bush administration, during the eight years it was in power in the United States (US), the phrase became strongly associated with the Bush Doctrine, appearing in key security documents as well as speeches. Under the banner of ‘change’ President Obama, a Nobel Peace Laureate, has distanced himself from the policies of his predecessor. The phrase ‘rogue state’ has been expunged from the current National Security Strategy, for instance.
1 Derrida, Jacques, Rogues: Two Essays on Reason (Pascale-Anne Brault and Michael Naas tr., 2003).Google Scholar
2 Id. at 66.Google Scholar
3 National Security Council of USA, National Security Strategy (September 2002).Google Scholar
4 National Security Council of USA, National Security Strategy (May 2010).Google Scholar
5 Bauman, Zygmunt, Social Issues of Law and Order, 40 British Journal of Criminology 205, 207 (2000).Google Scholar
6 Gerry Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (2004).Google Scholar
7 Derrida, supra note 2, at 66.Google Scholar
8 United Nations Charter art. 2(1): “The Organization is based on the principle of the sovereign equality of all its Members.”Google Scholar
9 Simpson, supra note 7, at 280–281.Google Scholar
10 See for example, Saunders, Elizabeth N., Setting Boundaries: Can International Society Exclude ‘Rogue States'?, 8 Int. Stu. Rev. 23 (2006).Google Scholar
11 Litwak, Robert S., The New Calculus of Pre-emption, 44(4) Survival 53, 67 (2002-3).Google Scholar
12 Caprioli, Mary & Trumbore, Peter F., Identifying ‘Rogue’ States and Testing their Interstate Conflict Behaviour, 9(3) EJIR 377, 378 (2003).Google Scholar
13 Yoo, John, Using Force, 71(3) Univ. Chi. L.R. 729, 783 (2004).Google Scholar
14 Litwak, Robert S., Rogue States and US Foreign Policy: Containment After the Cold War (2000).Google Scholar
15 US NSS 2002, supra note 4, at 14.Google Scholar
16 Madeleine Albright, Speech at Tennessee University, State, (Feb. 19 1998), available at: http://secretary.state.gov/www/statements/1998/980219b.html (last accessed: 24 April 2012).Google Scholar
17 Derrida, supra note 2, at 66.Google Scholar
18 Rice, Condoleezza, Promoting the National Interest, 79(1) Foreign Affairs 45, 46 (2000).Google Scholar
19 Lake, Anthony, Confronting Backlash States, 73(2) Foreign Affairs 45, 55 (1994).Google Scholar
20 Litwak, Robert S., Rogue States: A Handy Label but a Lousy Policy, The Washington Post, (Feb. 20, 2000).Google Scholar
21 Litwak, supra note 15, at 75.Google Scholar
22 Saunders, supra note 11, at 28; Litwak, supra note 15, at 11.Google Scholar
23 UN Charter art. 2(7): “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any stateGoogle Scholar
24 Derrida, supra note 2, at xiii.Google Scholar
25 Id. at 10–14.Google Scholar
26 Id. at 21.Google Scholar
27 Id. at 97.Google Scholar
28 UN Charter art. 24(1): “In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.”Google Scholar
29 UN Charter art. 25: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”Google Scholar
30 Matthew Happold, Security Council Resolution 1373 and the Constitution of the United Nations, 16 Leiden Journal of International Law (LJIL) 593 (2003).Google Scholar
31 Article 27(3) UN: “Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.”Google Scholar
32 Derrida, supra note 2, at 98.Google Scholar
33 Id. at 99.Google Scholar
34 Brierly, Jamer, The Covenant and the Charter, 23 British Yearbook of International Law (BYIL) 83, 91-2 (1946).Google Scholar
35 Simpson, supra note 7, at 6.Google Scholar
36 Anghie, Antony, On Critique and Other, in International Law and its Others 394 (Anne Orford ed., 2006).Google Scholar
37 Franck, Thomas M., The Power of Legitimacy and the Legitimacy of Power: International Law in an Age of Disequilibrium 100(1) AJIL 88, 97 (2006).Google Scholar
38 According to, inter alia, the Oxford English Dictionary Online, available at: http://www.oed.com/view/Entry/166894?redirectedFrom=rogue%20state#eid25187963 (last accessed: 24 April 2012).Google Scholar
39 National Security Council of USA, National Security Strategy (February 1995).Google Scholar
40 Boucher, Richard, State Department Daily Press Briefing, Jun. 19, 2000, available at: http://1997-2001.state.gov/www/briefings/0006/000619db.html (last accessed: 24 April 2012).Google Scholar
41 US NSS 2010, supra note 5, at 2.Google Scholar
42 Id. at 12–13.Google Scholar
43 Obama, Barack, Responsibility for our Common Future, address to the UN General Assembly Meeting, 64th Session, Sept. 23, 2009.Google Scholar
44 Blair, Tony, Doctrine of the International Community, address to the Economic Club of Chicago, Apr. 24, 1999.Google Scholar
45 High-level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility (2004).Google Scholar
46 Established under UN Doc. S/Res/1373 (2001).Google Scholar
47 UN Doc. S/PV.6390, 6390th Meeting of the Security Council (2010).Google Scholar
48 Derrida, supra note 2, at 64.Google Scholar
49 For example, the Millennium Declaration, adopted unanimously by the General Assembly on 8 September 2000, listed the values of Freedom, Equality, Solidarity, Tolerance, Respect for Nature and Shared Responsibility as fundamental values: see UN Doc. A/Res/55/2 (2000).Google Scholar
50 Simma, Bruno & Paulus, Andreas L., The ‘International Community': Facing the Challenge of Globalization 9(2) EJIL 266, 268 (1998).Google Scholar
51 Koskenniemi, Martti, From Apology to Utopia: The Structure of International Legal Argumentation (2005).Google Scholar
52 Derrida, supra note 2, at 64.Google Scholar
53 See for example, UN Doc. S/Res/1696 (2006).Google Scholar
54 UN Charter art. 2(7).Google Scholar
55 Tomuschat, Christian, Obligations Arising for States Without of Against Their Will, 241 Recueil des Cours 194, 342 (1993).Google Scholar
56 Koskenniemi, supra note 52, at 300.Google Scholar
57 For the idea that actors that are excluded because of their deviance are not trusted with their freedom, see Bauman, supra note 6, at 207.Google Scholar
58 Id. at 206.Google Scholar
59 US NSS 2010, supra note 5, at 35.Google Scholar
60 US NSS 2002, supra note 4, at 3.Google Scholar
61 See for example, US NSS 2010, supra note 5, at 5. For the George H. W. Bush position, see National Security Council of USA, National Security Strategy (2006).Google Scholar
62 Carr, Edward H., The Twenty Years' Crisis 1919–1939: An Introduction to the Study of International Relations (1981).Google Scholar
63 Derrida, supra note 2, at 79–80.Google Scholar
64 Id. at 79–80.Google Scholar
65 It is thought that the Clinton Administration's adoption of “states of concern” rather than rogue states was a response to their negotiating position with respect to the Democratic People's Republic of Korea.Google Scholar
66 Simpson, supra note 7, at 285.Google Scholar
67 Id. at 284.Google Scholar
68 Isolation, in the guise of containment was also used by the Clinton administration; See, for example, National Security Council of USA, National Security Strategy, December 2000; US NSS 1995, supra note 40, at 2.Google Scholar
69 UN Charter art. 41.Google Scholar
70 UN Charter art. 42.Google Scholar
71 Frowein, Jochin & Krisch, Nico, Article 42, in The Charter of the United Nations: A Commentary 753 (Bruno Simma ed., 2002).Google Scholar
72 Barack Obama, Hradcany Square, Prague„ Apr.5 2009, available at: http://www.whitehouse.gov/the_press_office/Remarks-By-President-Barack-Obama-In-Prague-As-Pelivered/(last accessed: 24 April 2012).Google Scholar
73 The UK's permanent representative at the Security Council, Sir Mark Lyall Grant, expressed this rationale in the Security Council meeting at which SCR 1929 (2010) was passed; see UN Doc. S/PV.6335 (2010).Google Scholar
74 US Chief of Staff Admiral Mike Mullen has not only said that military actions remain on the table, but also that the military has already made “a plan”; see transcript from “Meet the Press,” MSNBC, Aug. 1, 2010, available at: http://www.msnbc.msn.com/id/38487969/ (last accessed: 24 April 2012).Google Scholar
75 US NSS 2010, supra note 5, at 11–12.Google Scholar
76 Bauman, supra note 6, at 206.Google Scholar
77 US NSS 2010, supra note 5, at 12.Google Scholar
78 See, for example, Cassese, Antonio, International Law in a Divided World (1986).Google Scholar
79 Roele, Isobel, Ascertaining Inchoate Threats to International Peace and Security, in International Law in a Multipolar World (Mathew Happold ed., 2011).Google Scholar
80 Interestingly the Oxford English Dictionary online edition suggests that the word ‘rogue’ originally meant vagrant or vagabond. These individuals wandered across the country rather than being included in any particular society; see generally, The Oxford English Dictionary, available at: http://www.oed.com/ (last accessed: 24 April 2012).Google Scholar
81 Derrida, supra note 2.Google Scholar
82 Bauman, supra note 6, at 207.Google Scholar
83 Id. at 206.Google Scholar
84 International Atomic Energy Agency Doc. GOV/2006/14 (2006).Google Scholar
85 UN Doc. S/Res.1696 (2006).Google Scholar
86 Bauman, supra note 6, at 206.Google Scholar
87 Id. at 206.Google Scholar
88 Id. at 207.Google Scholar
89 Report of the High-Level Panel on Threats, Challenges and Change, supra note 46, at 17.Google Scholar
90 Derrida, supra note 2, at 79.Google Scholar
91 Id. at 64.Google Scholar
92 Derrida, supra note 2, at 64.Google Scholar
93 UN Doc. A/53/10 (1998); International Law Commission, Report of the International Law Commission on the work of its fiftieth session (1998).Google Scholar
94 Phrase attributed to eighteenth century Lord Chancellor of Great Britain, First Baron Thurlow; See, for example, John Coffee, 'No Soul to Damn and No Body to Kick': An Unscandalized Inquiry into the Problem of Corporate Punishment 79(3) Mich. L. Rev. 386 (1980-1).Google Scholar
95 Nuremberg International Military Tribunal, Judgment and Sentences, 41(1) AJIL 172, 221 (1947).Google Scholar
96 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (BIH v. SRB), 2007 I.C.J. 43, at 172 (Feb. 26, 2007).Google Scholar
97 Id. at 170.Google Scholar
98 UN Doc. A/53/10 (1998); International Law Commission, supra note 95; Official Records of the General Assembly, Fifty-third session, Supplement No.10, at 64–77.Google Scholar
99 UN Doc. A/31/10 (1976); International Law Commission, Report of the International Law Commission on the work of its twenty-eighth Session (1976); Official Records of the General Assembly, Thirty-first session, Supplement No. 10, at 95–96.Google Scholar
100 Id. at 95–96.Google Scholar
101 Derrida, supra note 2.Google Scholar
102 The ways in which crime can be understood as a public matter are interestingly considered by G. Lamond, What is a Crime?, 27(4) OJLS 609, 614 (2007).Google Scholar
103 Sandra E. Marshall and Antony Duff, Criminalization and Sharing Wrongs, 11(1) Can. J. L & Juris. 7, 15 (1998).Google Scholar
104 UN Charter art. 24(1).Google Scholar
105 Many commentators writing on state crime are careful to note that not all breaches of obligations erga omnes could be considered criminal; see, for example, Geoff Gilbert, The Criminal Responsibility of States, 39(2) ICLQ 345, 355 (1990); James Crawford, First Report, UN Doc. A/53/10 (1998) 69, at 278–279.Google Scholar
106 Barcelona Traction, Light and Power Company, Limited (NV v. ES) (New Application: 1962), Second Phase, ICJ Reports, (Feb. 5, 1970), at para. 33.Google Scholar
107 UN Doc. A/53/10 (1998); International Law Commission, supra note 95; Official Records of the General Assembly, Fifty-third session, Supplement No.10, 67 at 265.Google Scholar
108 Simma, Bruno, From Bilateralism to Community Interest, 250 Recueil des Cours 217, 306 (1994 VI).Google Scholar
109 Happold, supra note 31.Google Scholar
110 Fassbender, Bardo, The United Nations Charter as the Constitution of the International Community (2009); Nigel White, The Legality of Bombing in the Name of Humanity 5(1) JCSL 27, 28–29 (2000); Christian Tomuschat, Obligations Arising for States Without of Against Their Will, 241 Recueil des Cours 194, 334 (1993 IV).Google Scholar
111 And within the SC, the P5; High-Level Panel on Threats, Challenges and Change, supra note 46.Google Scholar
112 See, for example, Tony Blair in Hansard HC vol. 390 col. 5, Sept. 24, 2002.Google Scholar
113 Simma, supra note 110, at 309.Google Scholar
114 Nuremberg International Military Tribunal, Judgment and Sentences, 41(1) AJIL 172, 186 (1947).Google Scholar
115 Robert Cryer et. al., Introduction to International Criminal Law and Procedure (2010).Google Scholar
116 Resolution RC/Res.6, The Crime of Aggression, Adopted at the 13th plenary meeting, on 11 June 2010, by consensus, article 15.Google Scholar
117 But cf. the “acts of aggression committed by the racist regime of South Africa” against Angola, which were condemned in UN Doc. S/Res/602 (1987).Google Scholar
118 Bauman, supra note 6, at 207.Google Scholar
119 Bauman, supra note 6, at 208.Google Scholar
120 Simpson, supra note 7, at 284.Google Scholar
121 Derrida, supra note 2.Google Scholar
122 Press release, Briefing by Secretary Clinton, Secretary Gates, Admiral Mullen on the announcement of the new START treaty (Office of the Press Secretary), The White House, Mar. 26, 2010, available at: http://www.whitehouse.gov/the-press-office/briefing-secretary-clinton-secretary-gates-admiral-mullen-announcement-new-start-tr (last accessed: 24 April 2012).Google Scholar
123 Press release, Robert Gates, Secretary of Defence Interview With Judy Woodruff, The News Hour with Jim Lehrer, Apr. 7, 2009, available at: http://www.defense.gov/transcripts/transcript.aspx?transcriptid=4397 (last accessed: 24 April 2012).Google Scholar
124 Press release, Remarks by the President to CIA Employees (White House, Office of the Press Secretary), CIA Headquarters, Apr. 20, 2009, available at: http://www.whitehouse.gov/the-press-office/remarks-president-cia-employees-cia-headquarters (last accessed: 24 April 2012).Google Scholar