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International Law and Rogue States:
The Failure of the Charter Framework
Anthony Clark Arend
The concept of “rogue state” has been much maligned in the past. Appearing to some to be nothing more than an ideological tag with no content,
the term was being eased out of much official discussion. As is well noted,
the Department of State had changed its designation from “rogue states” to
“states of concern.” But in the wake of the terrorist attacks of September 11,
2001, the idea of a “rogue state” seems to have returned. Indeed, in his State
of the Union Address in January 2002, President George W. Bush went so
far as to place three states -- Iran, Iraq, and North Korea -- in an “Axis of
Evil.”1 Without going to that extreme, the moniker “rogue state” nonetheless does seem to be useful for understanding the behavior of certain regimes in light of international law. In a sense, a rogue state is one that does
not follow the rules. While almost all states may at times violate international legal rules, a rogue state would be a perennial violator. It would, in
essence, be a state whose identity is to some extent defined by acting outside of the standard rules of international law.2 But from the perspective of
international jurisprudence an even greater problem is that while as such a
state may be violating well-established international legal rules, it may also
be engaging in behavior that was not anticipated when the rules were developed. In particular, a rogue state may use military force in ways that classic
international law did not address. And here is the problem for international
law. Since the rules developed to respond to certain classic uses of force, it
is often unclear how the traditional rules of international law apply to the
behavior of rogue states. How does international law respond to actions by

Professor of Government and Adjunct Professor of Law, Georgetown
University. The author wishes to thank Robert J. Beck for his collaboration on
these issues over the years and Michael J. Glennon for his recent work on the use
of force. This article draws upon Professor Glennon’s approach to these crucial
legal questions.
1. George W. Bush, State of the Union Address (January 29, 2002) available
at http://www.whitehouse.gov/news/releases/2002/01/20020129-11.html (“States like
these [Iraq, North Korea, and Iran], and their terrorist allies, constitute an axis of evil,
arming to threaten the peace of the world”).
2. An analogy could be drawn to a criminal organization. The very identity of
such an organization is tied to the fact that it is acting outside established legal norms.
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rogue states that fall outside the parameters of traditional international law?
If a rogue state engages in covert actions against another state, supports
rebels in another state, supports the work of terrorist groups, commits human rights abuses against its own citizens, or develops weapons of mass
destruction, how does the existing international legal regime respond?
The purpose of this article is to explore several of the challenges posed by
rogue states relating to the recourse to force and to explore some efforts to
respond to these challenges. In order to do this, this article will do four
things. First, it will discuss the United Nations Charter framework for the
use of force -- the most widely accepted legal paradigm for contemporary
international law relating to the recourse to force. Second, it will explain
several problems that rogue states pose to that framework. Third, it will
explore efforts by the international community to respond to those problems, arguing that the international community has not yet developed a clear
approach to the challenges of rogue states. Fourth, it will conclude that the
challenges posed by rogue states are merely a part of the challenges posed
to the Charter framework by the community of states at large and suggest
that efforts need to be made to establish a general rule-based regime for the
use of force.
I. THE UNITED NATIONS CHARTER FRAMEWORK FOR THE
RECOURSE TO FORCE
Over the years, customary international law has come to recognize two
elements of the international law dealing with the use of force: the jus ad
bellum and the jus in bello. The jus ad bellum deals with the legal rules concerning the recourse to force.3 It asks the question of when an actor has the
right to take recourse to military force against another actor. Can, for example, Iraq lawfully invade Kuwait? Can other states use force to respond to
that invasion? Can the United States use force against Iraq for its noncompliance with the weapons inspections regime established by the United
Nations Security Council? The jus in bello contains the rules dealing with
the conduct of hostilities. It explores the rules concerning how all actors in a
conflict have to behave, irrespective of who had the right to initiate hostilities in the first place. Thus, the jus in bello asks questions such as: what
types of targets are permissible in combat? How are non-combatants to be
treated? How are prisoners are war to be cared for by their captors? While
both sets of rules would apply to the behavior of rogue states, this article
3. For a discussion of the law relating to the recourse to force, see generally
ANTHONY C LARK AREND & R OBERT J. B ECK, INTERNATIONAL LAW AND THE U SE OF
F ORCE: B EYOND THE U.N. C HARTER P ARADIGM (1993); CHRISTINE GRAY ,
INTERNATIONAL LAW AND THE USE OF F ORCE (2000).
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will focus on the jus ad bellum– the legal rules that address the question of
when an international actor can permissibly use force.
Since 1945, most discussions of the law relating to the recourse to military force have begun with an exploration of the United Nations Charter
framework. Coming out of two devastating world wars, the founders of the
United Nations sought to establish an extremely restrictive approach to the
use of force. To do this, the Charter begins with a fundamental presumption
against the recourse to force. Article 2, paragraph 4 of the Charter provides:
All Members [of the United Nations] 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 other manner inconsistent with
the Purposes of the United Nations.4
This provision seemed to constitute a basic proscription on both the actual use and the threat to use force against another state. It is even more restrictive than the much-criticized Kellogg-Briand Pact of 1928,5 which only
prohibited “war” not all uses and threats of force.
In the Charter, there are only two explicit exceptions to this Article 2(4)
prohibition that are still applicable: self-defense, and force authorized by the
United Nations Security Council. The first exception is contained in Article
51, which provides in part:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of
the United Nations, until the Security Council has taken measures necessary
to maintain international peace and security.6
Thus, if a state is experiencing an “armed attack,” it is permissible for
that state to use military force against the states that have instituted that attack. The victim state can also call upon other states to help it fend off the
attacker in collective self-defense. So, for example, when Argentina attacked the Falkland Islands in 1982,7 the United Kingdom responded in
self-defense in response to an armed attack and could have asked other
states for assistance in this effort.
The second exception to the Article 2(4) prohibition is contained in other
portions of Chapter VII of the Charter. Under Article 39, the Security
Council is empowered to determine if there has been a “threat to the peace,”
4. U.N. CHARTER , art. 2, para. 4.
5. Kellogg-Briand Pact, Aug. 27, 1928, Stat. 46, 2343, T.S. No. 796, 94
L.N.T.S. 57.
6. U.N. CHARTER , art. 51.
7. On the Falklands War, see generally LOWELL F. GUSTAFSON , THE
S OVEREIGNTY DISPUTE OVER THE F ALKLAND (M ALVINAS) ISLANDS (1988); THE
F ALKLANDS W AR : LESSONS FOR S TRATEGY , DIPLOMACY , AND INTERNATIONAL LAW
(Alberto R. Coll & Anthony C. Arend eds., 1985).
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a “breach of the peace,” or an “act of aggression.”8 If the Council so determines, it is further authorized under Article 419 to impose diplomatic and
economic sanctions and under Article 4210 to impose military sanctions.
This is precisely what happened in the Gulf War.11 After the invasion of
Kuwait on August 2, 1990, the United Nations Security Council met and
immediately condemned the Iraqi invasion.12 Soon thereafter, the Council
adopted resolution 661,13 which imposed sweeping economic and diplomatic sanctions on Iraq. Ultimately, the Council decided to adopt resolution
678,14 authorizing states with troops deployed in the region to use force to
remove Iraq from Kuwait.
II.
ROGUE STATES AND THE CHARTER
The Charter framework seems quite well suited to address the types of
force with which the framers of the Charter would have been most familiar - clear, overt acts of aggression undertaken by regular military forces of
states. No doubt, these were the kinds of uses of force that the framers were
8.
Article 39 provides:
The Security Council shall determine the existence of any threat to the
peace, breach of the peace, or act of aggression and shall make reco mmendations, or decide what measures shall be taken in accordance with
Articles 41 and 42, to maintain or restore international peace and sec urity.
U.N. CHARTER ., art. 39.
9. Id. art. 41.
10. Article 42 provides:
Should the Security Council consider that the measures provided for in
Article 41 [diplomatic and economic sanctions] would be inadequate or
have proven to be inadequate, it may take such action by air, sea, or
land forces as may be necessary to maintain or restore international
peace and security. Such action may include demonstrations, blockade,
and other operations by air, sea, or land forces of Members of the United Nations.
Id. art. 42.
11. For a discussion of international law and the Gulf War, see Oscar
Schachter, United Nations Law in the Gulf Conflict, 85 AM . J. INT’ L L.452, 452 (1991).
12. See U.N. S.C. Res. 660, U.N. SCOR, 45th Sess., 2932nd mtg., U.N. Doc.
S/RES/660 (1990). .
13. U.N. S.C. Res. 661, U.N. SCOR, 45th Sess., 2922rd mtg.,U.N. Doc.
S/RES/661 (1990). .
14. Resolution 678 authorized:
Member States co-operating with the Government of Kuwait, unless
Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the above-mentioned resolutions, to use all necessary
means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and sec urity in the area.
U.N. S.C. Res., U.N. SCOR, 45th Sess., 2963rd mtg., U.N. Doc. S/RES/678 (1990).
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envisioning when the Charter was written in San Francisco in the spring of
1945.15 The world had just been shaken by the aggressive actions of Germany, Japan, and Italy. Under the Charter system, such actions would be
clearly prohibited, and states would be empowered to respond, either in selfdefense or as authorized by the Security Council. The problem is that most
of the uses of force that have taken place in the world since 1945 have not
fallen easily into the neat definitions provided by the framers of the Charter.
In particular, many of the challenges posed by rogue states are not clearly
addressed by the Charter framework. Three challenges seem most acute.
First, rogue states often do not engage in obvious armed attacks, but instead
use force against other international actors in ways that do not squarely fall
under the textbook definition of “armed attack.” Second, rogue states frequently engage in actions against their domestic populations that do not
constitute international aggression, but may nonetheless be horrible violations of international human rights law. Third, rogue states may possess or
seek to possess or develop weapons of mass destruction. While the mere
possession of these weapons, or potential possession of these weapons, does
not constitute an actual armed attack, such actions by the rogue states may
still threaten international peace.
The Armed Attack Threshold
When a state launches a conventional military attack against another state
-- when armies cross the borders, bombs are dropped on the territory of a
state, or naval vessels fire cruise missiles -- an armed attack has occurred.
Hence, the Iraqi invasion of Kuwait clearly was an armed attack that
engendered a right of self-defense under Article 51. But, while rogue states
like Iraq are not strangers to this type of action, many of the uses of force
undertaken by such states do not fall under the standard definition of armed
attack. Several such uses of force include: covert action, intervention in
support of rebels, and, perhaps most notably, various forms of support for
terrorist actions.
Covert Action and Support of Rebels
A covert action is an act by a state in which it attempts to influence the
political, economic, or other conditions of the state without that action being
known. While commentators often only think of the most dramatic types of
covert actions -- such as efforts to assassinate state leaders -- covert actions
run the spectrum from the least forceful, such as propaganda, financial support of political parties, bribing of government officials, to the most force-
15. For a discussion of the United Nations Charter, see generally THE C HARTER
UNITED N ATIONS: A COMMENTARY (Bruno Simma ed., 1994).
OF THE
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ful, such as blowing up military installations in another states and forcible
actions against regime elites. From the perspective of international law, the
critical question is under what circumstances such actions would rise to the
level of an armed attack.
A similar problem presents itself when a state intervenes -- either covertly
or overtly -- in an on-going civil conflict to support rebel groups that are
challenging the existing regime. This type of involvement in internal conflict has occurred repeatedly during the period since World War II. During
the Nicaragua conflict in the 1980's, for example, the United States accused
the Sandinista government of Nicaragua of providing various types of financial and other support to the Farabundo Marti de Liberacion Nacional
(the “FMLN”) rebels in El Salvador.16 While such actions would constitute
impermissible interference in the internal affairs of a state, when does assistance– money, arms, training, logistical support, etc. – reach the point of
being tantamount to an armed attack? When could the aggrieved state take
arms against the intervening state?
A. Terrorism
In light of the September 11th attacks and the response of the U.S. and its
allies, one of the most pressing questions regarding the armed attack threshold relates to terrorism. While efforts to “define” terrorism have been undertaken numerous times over the years,17 terrorism will be defined here as the
threat or use of force, undertaken for political purposes, by a non-state actor that intentionally targets civilians and other non-combatants in violation
of existing law relating to the conduct of hostilities. Hence, actions such as
the attacks on the World Trade Center would clearly meet the definition of
terrorism. Not surprisingly, rogue states are frequently involved in supporting, in one way or another, the efforts of terrorist groups. During the recent
action in Afghanistan, for example, the Taliban regime was found by the
Security Council to have provided support to the Al Qaeda terrorists in their
efforts against the United States and other targets throughout the world.18
16. For an exploration of the American position, see generally JOHN NORTON
M OORE, THE S ECRET WAR IN CENTRAL AMERICA (1987); ROBERT F. TURNER ,
NICARAGUA V . UNITED S TATES: A LOOK AT THE F ACTS (1987).
17. See Walter Gary Sharp, Sr., The Use of Armed Force Against Terrorism:
American Hegemony or Impotence?, 1 CHI. J. INT ' L L. 37, 37-39 (2000) (“Although the
international community began a concerted effort to control international terrorism in
the late 1920s, it has never been able to agree on a definition of international terro rism.”) (footnote omitted).
18. In Resolution 1390, the Council condemned
the Taliban for allowing Afghanistan to be used as a base for te rrorists
training and activities, including the export of terrorism by the Al -Qaida
network and other terrorist groups as well as for using foreign merc enaries in hostile actions in the territory of Afghanistan . . . .
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But once again, the interesting legal question is: when does state support to
terrorists rise to the level of an armed attack under Article 51? Clearly, there
are a number of different levels of support that states could be providing to
terrorists. At the high end of the spectrum, states could be directing and
controlling terrorist groups. In other words, states could essentially be using
terrorists as proxies in the international system. This level of state involvement might be termed state sponsored terrorism.19 At a lower level, states
could be providing financial and military assistance to terrorists. This level
could be termed state supported terrorism. And at yet a lower level, states
could be tolerating and otherwise harboring terrorists. This would be a circumstance where “a state does not sponsor or support terrorist groups within
its borders, but knows of their existence and fails to suppress them.”20 This
level could be termed state tolerated terrorism. At what level would state
involvement in terrorism rise to the level of an armed attack? Clearly, different observers could draw the line at different places.
B. The Internal Use of Force
While rogue states may very well become pariahs because of their actions
abroad, such states may also engage in the use of military force against their
own citizens. The notorious actions of the Khmer Rouge in Cambodia, the
horrors of Rwanda, and the ethnic cleansing of the Serbian regime immediately come to mind. Prior to World War II, international law, did not address the matter of how a government treated its own people. It was not
until the abomination of the Holocaust that the international community
decided to make human rights norms a major part of international law. In
1945, the drafters of the U.N. Charter proclaimed their determination “to
reaffirm faith in fundamental human rights, in the dignity and worth of the
human person, in the equal rights of men and women . . . .”21 Following the
adoption of the Charter, the United Nations proceeded to adopt a host of
instruments dedicated to the establishment of an elaborate regime of international human rights law. These include the Genocide Convention,22 the
Covenant on Civil and Political Rights,23 and the Covenant on Economic,
U.N. S.C. Res. 1390, U.N. SCOR, 54th Sess., 4452nd mtg., U.N. Doc S/RES/1390
(2002)..
19. This follows the categories suggested in AREND & B ECK, supra note 4,at
142.
20. Id. (footnote omitted).
21. U.N. CHARTER , preamble.
22. Convention on the Prevention and Punishment of the Cri me of Genocide,
Dec. 9, 1948, 78 U.N.T.S. 277 [hereinafter Genocide Convention].
23. International Covenant on Civil and Political Rights, G.A. Res. 2200A,
U.N. GAOR, 21st Sess., Supp. No. 16, at 1, U.N. Doc. A/6546 (1966), reprinted in 999
U.N.T.S. 171 [hereinafter Covenant on Civil and Political Rights].
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Social, and Cultural Rights.24 When states violate applicable human rights
law , they are clearly breaching their international legal obligations, yet they
are not engaging in an armed attack against another member state. If the
Security Council determined that such abuse of human rights would constitute a threat to international peace and security, and subsequently, authorized the use of force under Article 42 of the Charter, military action against
the state would seem to be lawful. But in the absence of Security Council
action, the Charter framework would seem to outlaw forcible action by
states against the offending regime, even if the purpose of such force was to
prevent massive violations of human rights.
C. Weapons of Mass Destruction
When the Charter was drafted in the spring of 1945, only a few people
were aware of the potential power of the atom. Consequently, the Charter
framework was, as one advisor to the United States delegation, John Foster
Dulles, would later say, a “pre-atomic” document.25 While chemical and
biological weapons were certainly known to the delegates at San Francisco,
their use as “weapons of mass destruction” was probably not on the minds
of the Charter framers. After all, the use of chemical weapons in the First
World War had generally been regarded as a strategic mistake and, indeed,
such use had been prohibited by the 1925 Geneva Gas Protocol.26 But in the
world after Hiroshima and Nagasaki and with increasing evidence of the
production and stockpiling of various chemical and biological agents, the
unique threat posed by weapons of mass destruction presents a particularly
acute problem in the wake of rogue regimes.
At first blush, the problem may seem unremarkable. These weapons, like
any others, would be subject to standard laws of armed conflict. Several
conventions prohibit the possession and use of chemical and biological
weapons, and while the use of nuclear weapons is not clearly prohibited
under customary international law,27 the use of such weapons in an indis-
24. International Covenant on Economic, Social and Cultural Rights, adopted
Dec. 21, 1966, 993 U.N.T.S. 3 [hereinafter Covenant on Social and Cultural Rights].
25. See, ANTHONY C LARK AREND , P URSUING A JUST AND D URABLE P EACE: JOHN
F OSTER DULLES AND INTERNATIONAL ORGANIZATION 231 (1988).
26. Protocol for Prohibition of the Use in War of Asphyxiating, Poisonous or
Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925, 26 U.S.T.
571, 94 L.N.T.S. 65 [hereinafter Geneva Gas Protocol].
27. The International Court of Justice in its advisory opinion on The Legality
of the Threat or Use of Nuclear Weapons declined to rule that the use of nuclear weapons would be unlawful in all circumstances. Legality of the Threat or Use of Nuclear
Weapons, 1996 I.C.J. 226 (July 8, 1996). For a discussion of the case, see generally
Dale Stephens, Human Rights and Armed Conflict -- The Advisory Opinion of the In-
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criminate way or in a manner that causes unnecessary suffering would be
proscribed.28 But the problem with rogue regimes lies at a deeper level. If
certain states have a history of violating acceptable norms of international
behavior, how should the international community respond to any efforts on
the part of these states to develop such weapons of mass destruction? Following the Gulf War, the United Nations Security Council was so troubled
by the prospect of Iraq acquiring weapons of mass destruction, that it imposed strict disarmament requirements and ordered Iraq to destroy chemical, biological, and nuclear weapons facilities and submit to an inspection
regime.29 Since Iraq was a party to both the Nuclear Non-Proliferation Treaty and the 1972 Biological Weapons Convention,30 it was already prohibited
from possessing nuclear and biological weapons. At the time of the Security
Council action, however, there was no explicit prohibition on the possession
of chemical weapons.31 Iraqi compliance with these requirements has been
less than satisfactory and on several occasions, the United States and some
of its allies have used force against Iraq to secure compliance with the inspections regime.32
These uses of force raise the question that weapons of mass destruction
pose for the Charter framework: Does the mere possession of weapons of
mass destruction present such a threat to international peace and security
that states can unilaterally intervene to abate this threat? If so, at what point,
can states take such action? In 1981, Israel bombed the Osarik Reactor in
ternational Court of Justice in the Nuclear Weapons Case, 4 YALE H UM .RTS. & D EV.
L.J. 1 (2001).
28. The Hague Convention on the Laws and Customs of War on Land prohibits
the use of “arms, projectiles, or material calculated to cause unnecessary suffering.”
Convention (no. IV) Respecting the Laws and Customs of War on Land, with Annex of
Regulations, Oct. 18, 1907, 36 Stat. 2277, T.S. No. 539, 1 Bevans 631, Annex, art 23,
e.
29. See U.N. S.C. Res. 687, U.N. SCOR, 46th Sess., 2983rd mtg., U.N. Doc.
S/RES/687 (1991).
30. Convention on the Prohibition of Development, Production, and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, Apr.
10, 1972, 26 U.S.T. 583, 1015 U.N.T.S. 163.
31. The Chemical Weapons Convention was not signed by the U.S. until 1993
and did not enter into force until April 29, 1997. See Convention on the Prohibition of
the Development, Production, Stockpiling and Use of Chemical Weapons and Their
Destruction, Jan. 13, 1993, S. TREATY DOC . NO. 21, (1993), 1974 U.N.T.S. 3.
32. The United States used force in 1993 and again in 1998 to secure Iraqi
compliance with the weapons inspections regime established by the Security Council
under Resolution 687. For a discussion of the lawfulness of these actions, see generally
Jules Lobel & Michael Ratner, Bypassing the Security Council: Ambiguous Authorizations to Use Force, Cease-Fires and the Iraqi Inspection Regime, 93 AM . J. INT’ L L.
124 (1999); Nigel D. White & Robert Cryer, Unilateral Enforcement of Resolution
687: A Threat too Far, 29 CAL. W. INT’ L L. J. 243 (1999).
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Iraq, claiming that the reactor was to be used to produce weapons-grade
material that would produce weapons that would be used to threaten Israel.
While the members of the Security Council, including the United States,
condemned Israel for its actions, the history of the Iraqi nuclear weapons
program and its regular rejection of arms inspectors, raise similar questions
today.
III.
ADDRESSING THE PROBLEMS POSED BY ROGUE STATES
In light of these challenges that rogue regimes pose for the United Nations Charter framework, scholars and international actors have attempted to
apply the basic Charter principles to these problems not anticipated by the
framers of the Charter. Accordingly, a series of arguments have been developed about the questions posed in the section above.
A. The Armed Attack Threshold
1. Covert Action and the Support of Rebels
In the scholarly literature, there seems to be general agreement that both
covert actions and support of rebels can rise to the level of an armed attack,
thus engendering the right of self-defense. The difficulty is determining
precisely at what point the armed attack threshold is reached. The most instructive case on this matter is the Nicaragua case. As noted earlier, in that
case, the United States alleged that Nicaragua was providing various forms
of support to the FMLN, a rebel group in El Salvador. While the International Court of Justice did not find any evidence of assistance from the
Government of Nicaragua to the FMLN, the court did comment on the circumstances under which assistance to rebels would rise to the level of an
armed attack. It explained that:
[I]t may be considered to be agreed that an armed attack must be understood
as including not merely action by regular armed forces across an international border, but also “the sending by or on behalf of a State of armed bands,
groups, irregulars or mercenaries, which carry out acts of armed force
against another State of such gravity as to amount to” (inter alia) an actual
armed attack conducted by regular forces, “or its substantial involvement
therein.”33
This was a crucial statement by the court for two reasons. First, it was the
first judicial acknowledgment that “indirect aggression” could rise to the
33. Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14 (June
27) para. 195 [hereinafter Nicaragua Case].
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level of an armed attack. At some point, the support for rebels could be so
great that it would justify a forcible response in self-defense against the
intervening state. Second, the court’s decision was also a comment on the
point at which support would be tantamount to an armed attack. For the
court, this occurred only in sending in “armed bands, groups, irregulars or
mercenaries” that use force at a level equivalent to an armed attack by regular military forces. Despite American arguments to the contrary, the court
explicitly rejected the notion that anything short of sending in such armed
bands would ever rise to the level of an armed attack. The court noted that
while providing arms and other assistance to rebel groups may indeed violate Article 2(4),34 the court did “not believe that the concept of ‘armed attack’ includes not only acts by armed bands where such acts occur on a significant scale but also assistance to rebels in the form of the provision of
weapons or logistical or other support.”35
This second conclusion by the court has raised a great deal of scholarly
concern.36 The court seems to suggest that a state could be in a most untenable position. An outside state could be providing significant military, logistical, financial, and other assistance to rebels within the territory of a state.
While such assistance might violate the Charter provisions on the use of
force, as long as assistance did not actually involve the sending in of armed
bands, the victim state would be unable to respond in self-defense. In essence, an outside state could do as much damage by providing weapons and
money to rebels as it would if it had launched an outright attack, and yet
Article 51 would not be triggered. Such a position– especially in light of the
potential threat from rogue regimes– seems to contradict the very essence of
a right of effective self-defense established in the Charter. Indeed, as will be
noted below, subsequent decisions by the Security Council on terrorism
would seem to reject such a restrictive interpretation of armed attack.
34. See id. The court noted that: “such assistance may be regarded as a threat
or use of force, or amount to intervention in the internal or external affairs of other
States.” Id.
35. Id.
36. Professor John Norton Moore, for example, has strongly argued against this
“high threshold” approach to armed attack. Following the decision of the court , he
concluded that the court had “announced, contrary to the Charter, a restrictive inte rpretation of the right of defense that could deny individual or collective defense
against secret warfare, the most serious contemporary threat to world order.” Joh n
Norton Moore, The Nicaragua Case and the Deterioration of World Order, 81 AM . J.
INT’ L L. 151, 152 (1987).
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2. Support for Terrorism
Until the events of September 11th, most of the discussion about how assistance to terrorist groups related to the armed attack threshold came in a
variety of scholarly debates. Not surprisingly, scholarly opinion was all over
the map. Some scholars supported a “high threshold” approach, arguing that
a terrorist attack should only be considered to be tantamount to an armed
attack if such attack occurs within the territory of the aggrieved states. Presumably, these scholars would want the victim states to prove direct state
sponsorship of the terrorist group. At the other extreme, other scholars argued for a “low threshold.” Under such a conception, terrorist actions could
rise to the level of an armed attack even if they did not occur within the
territory of the victim states. It would also make sense that low threshold
supporters would also require less than full sponsorship from a state aiding
terrorism to be held responsible for an armed attack. Somewhere in between
these two would be a “moderate level” threshold.
Using the logic of the Nicaragua case, it would seem that the International Court of Justice was in the high threshold camp. Indeed, this was the conclusion reached by Michael Glennon in his recent analysis of the American
response to the September 11thactions.37 The act in question would need to
occur in the territory of the state and the state aiding the terrorist would
have to have be engaging in state-sponsored terrorism. As Glennon notes,
quoting from the Nicaragua case, “[a]ctive, not passive, support– an actual
‘sending’ of ‘armed bands, groups, irregulars or mercenaries’ or ‘substantial
involvement therein’ -- is necessary to meet the armed attack requirement.”38 “Indeed,” as Glennon continues, “the entire approach of the United
States in fighting terrorism -- refusing to distinguish between terrorists and
those who harbor them, which has come to be called the ‘Bush Doctrine’ -is outlawed by this precept to the extend that it precludes any use of force
against states that only passively provide a safe harbor for terrorists and
avoid substantial involvement in terrorists’ activities.”39
Yet, despite this approach by the International Court of Justice, in recent
months it appears that the Security Council articulated a bit lower threshold.
In Resolution 1373, the Council was very strong in its condemnation of
providing any kind of assistance to terrorist groups.40 The Council also reaf-
37. See generally Michael J. Glennon, The Fog of Law: Self-Defense, Inherence and Incoherence in Article 51 of the United Nations Charter, 25 HARV. J.L. &
P UB. P OL’ Y 539 (2002).
38. Id. at 542 (citation omitted).
39. Id. at 543-44.
40. See U.N. S.C. Res. 1373, U.N. SCOR, 56th Sess., 1385th mtg., U.N. Doc.
S/RES/1373 (2001). In this Resolution, the Council:
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firmed the “inherent right of individual or collective self-defence as recognized by the Charter of the United Nations as reiterated in resolution 1368 .
. . .”41 As noted earlier, in Resolution 1390, the Council went on to condemn
the Taliban regime for its support for Al Qaeda. In light of these actions by
the Council, and in the wake of American actions against the harboring of
terrorists, its seems that the Council has been willing to go further than the
International Court of Justice in expanding the definition of an armed attack. But neither the Security Council nor any other authoritative decisionmaker has articulated a clear definition of the armed attack threshold.
Decide[d] also that all States shall:
(a) Refrain from providing any form of support, active or passive, to e ntities
or persons involved in terrorist acts, including by suppressing recrui tment of
members of terrorist groups and eliminating the supply of weapons to
terrorists;
(b) Take the necessary steps to prevent the commission of terrorist acts,
including by provision of early warning to other States by exchange of
information;
(c) Deny safe haven to those who finance, plan, support, or commit te rrorist
acts, or provide safe havens;
(d) Prevent those who finance, plan, facilitate or commit terrorist acts
from
using their respective territories for those purposes against other States
or their
citizens;
(e) Ensure that any person who participates in the financing, planning,
preparation or perpetration of terrorist acts or in supporting terrorist
acts is brought
to justice and ensure that, in addition to any other measures against
them, such
terrorist acts are established as serious criminal offences in domestic
laws and
regulations and that the punishment duly reflects the seriousness of such
terrorist
acts;
(f) Afford one another the greatest measure of assistance in connection
with
criminal investigations or criminal proceedings relating to the financing
or support
of terrorist acts, including assistance in obtaining evidence in their po ssession
necessary for the proceedings;
(g) Prevent the movement of terrorists or terrorist groups by effective
border
controls and controls on issuance of identity papers and travel doc uments, and
through measures for preventing counterfeiting, forgery or fraudulent
use of identity
papers and travel documents.
Id.
41. Id. Resolution 1368 was the first that condemned the September 11th attacks. See U.N.S.C. Res. 1368, U.N. SCOR 56th Sess., 4370th mtg., U.N. Doc.
S/RES/1368 (2001).
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B. The Internal Use of Force
For many years, there have been extensive debates about the lawfulness
of the use of force to prevent a state from committing genocide or other
massive human rights violations. Using the rubric of “humanitarian intervention” scholars and public officials alike have deliberated upon the possible legal justification for such actions. Most commentators can be understood as falling into one of two categories -- restrictionists and counterrestrictionists.42 The restrictionists argue that the language of the Charter is
clear on this point. Unless the Security Council authorizes the use of force,
states cannot intervene in another state to stop a government from engaging
in human rights violations. Counter-restrictionists, however, present three
primary arguments, or variants thereof, to claim that in cases where a state
engages in genocide or other violations of fundamental human rights, intervention should be lawful -- even in the absence of an explicit Security
Council authorization.
The first of these arguments relates to the protection of human rights.
While it is true that the Charter sought to establish a restrictive regime relating to the recourse to force, it also endeavored to create a legal regime to
protect human rights. As Professor Fernando Tesón has noted, “the promotion of human rights is as important a purpose in the Charter as is the control of international conflict.”43 As a consequence, it could be argued that in
certain extreme cases, the protection of human rights should trump the
Charter’s prohibition on the use of force. Professors Reisman and McDougal explain that the Charter’s “repeated emphasis upon the common interest
in human rights indicates that the use of force for the urgent protection of
such rights is no less authorized than other forms of self-help.”44
A second argument presented by some counter-restrictionists contends
that there has been a revival of a customary right of humanitarian intervention. Here, counter-restrictionists argue that because the United Nations
Security Council has been, for the most part, unable to act effectively to
prevent human rights abuses, a pre-existing right of self-help has been revived.
A final argument in support of the lawfulness of humanitarian interven-
42. We have used these categories previously. See AREND & B ECK, supra note
4, at 131-36. The discussion of humanitarian intervention here draws upon our prev ious discussion.
43. F ERNANDO TESÓN , HUMANITARIAN INTERVENTION : AN INQUIRY INTO LAW
& M ORALITY 131 (1988).
44. Michael Reisman & Myres S. McDougal, Humanitarian Intervention to
Protect the Ibos, in HUMANITARIAN I NTERVENTION AND THE UNITED N ATIONS 172
(Richard B. Lillich, ed. 1973).
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tion claims that using force solely for humanitarian purposes falls below the
“Article 2(4) threshold.” This argument is based on a close reading of the
language of Article 2(4). The text of that provision does not literally prohibit all threats or uses of force, but only those directed against the “territorial
or political independence” of states or which in some other way transgresses
the “Purposes of the United Nations.” Hence, it is contended, a use of force
to protect human rights is lawful, since “[a] genuine humanitarian intervention does not result in territorial conquest or political subjugation.”45 Indeed,
it could be argued that the true political independence of a state lies in the
people of the state, not in the ruling elite. Using force to protect these suffering people, thus, would actually be affirming the political independence
of the state.
Despite these scholarly arguments, one of the real problems with the concept of humanitarian intervention has been the difficulty finding examples
where states made unambiguous claims of engaging in humanitarian intervention, and the international community responded to those claims. Only
with the NATO action in the Kosovo crisis has there been a relatively clear
case of humanitarian intervention. Even in that case, the United States did
not explicitly justify its actions based on that doctrine.46 Nonetheless, Kosovo may be a turning point. Given the many positive reactions to NATO’s
actions, seeming support from the Secretary-General, and muted criticism
from the rest of the world, Kosovo may be the crucial stage in the emergence of a clear doctrine of humanitarian intervention. In a sense, it may
still be too soon to tell, but the reaction of the international community to a
subsequent use of force to promote human rights may well indicate that
states are now prepared to accept humanitarian intervention.47 The law,
however, remains unclear at present.
45. TESÓN , supra note 42, at 131.
46. The United States was rather inconsistent in the justifications it gave for
the NATO action. See Contemporary Practice of the United States Relating to Intern ational Law, 93 AM . J. INT’ L L. 628, 631 (Sean D. Murphy, ed. 1999) “The U.S. Government based its position on the lawfulness of the air strikes under international law
on various factors, which changed in emphasis over time.” Id. While the United
States did, at times, make reference to humanitarian reasons, it also noted other vio lations of international law by Yugoslavia and previous Security Council resolutions. See
id.
47. For a lengthier exposition of the current state and possible future of h umanitarian intervention, see Christopher C. Joyner & Anthony Clark Arend, Anticipatory Humanitarian Intervention: An Emerging Legal Norm?, 10 U.S. A.F. ACAD . J. L.
S TUD. 27 (1999/2000).
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C. Weapons of Mass Destruction
As noted above, weapons of mass destruction in the hands of a rogue
state pose a unique threat to the international system. But would such possession or efforts to gain possession of such weapons give rise to a right of
forcible self-help on the part of an outside state?
Under customary international law that pre-dated the Charter, many
scholars would argue48 there was a right of anticipatory self-defense. Based
on the famous Caroline test of 1837, a state could use force in self-defense
prior to an actual armed attack if two criteria were met: necessity and proportionality. First, the state seeking to use force would need to demonstrate
that some attack was imminent. Second, the response by the soon-to-be victim state would have to be proportionate to the threat. Such guidelines are
fine when applied to conventional warfare in the 1800’s. They become more
problematic when applied to modern warfare -- in particular, in the face of
the threat of weapons of mass destruction. The necessity prong is particularly troublesome. In the original formulation given by the American Secretary
of State in the Caroline case, a state using force in anticipatory self-defense
would have to demonstrate that “the necessity of that self-defense is instant,
overwhelming, and leaving no choice of means, and no moment of deliberation.”49 Yet with nuclear weapons or other weapons of mass destruction, by
the time this test is met, it is probably too late. As noted earlier, the Security
Council criticized Israel following the bombing of the Iraqi reactor for failure to meet the test of necessity. The reactor was not yet on-line, it was unclear that when it did come on-line that it would produce nuclear weapons -since Iraq was a party to the Nuclear Non-Proliferation Treaty -- and the
mere possession of weapons would not constitute an imminent threat of
their use. While hindsight may judge Israel’s action differently, the legal
questions posed at the time remain the same today. Certainly, the strict test
of necessity that Daniel Webster described does not make a great deal of
sense in the age of weapons of mass destruction. But what is the appropriate
test? The international community does not seem to have developed a clear
alternative.
48. For an examination of the scholarly debate on anticipatory self-defense, see
AREND & BECK, supra note 4, at 71-79. Scholars supporting the existence of such right
include William V. O’Brien, Derek W. Bowett, Myres S. McDougal, and Julius Stone.
49. J.B. Moore, Destruction of theCaroline, in 2 DIGEST OF INTERNATIONAL
LAW 412 (1906) (quoting M. Webster, Sec. of State, to Lord Ashburton, British plen.,
Aug. 6, 1842).
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CONCLUSIONS AND RECOMMENDATIONS
In light of the preceding discussion of the challenges posed by rogue
states, several conclusions become clear. First, the United Nations Charter
framework for the use of force did not anticipate the ways in which rogue
states would use force. As a consequence, it is unclear how the literal language of the Charter can be applied to various actions of rogue states. Second, while the international community has attempted to respond to some of
these challenges through international organs– such as the International
Court of Justice and the Security Council -- and the efforts of international
legal scholars, international law is still very much in dispute. When does a
covert action or efforts to support rebels rise to the level of an armed attack?
What level of involvement with terrorist groups is necessary for a rogue
state to have itself committed an armed attack? Can force ever be used to
prevent a rogue state from engaging in genocide or other human rights violations? Can weapons of mass destruction in the hands of a rogue state give
others the right to preemptively use force? The answers to all of these questions are by no means clear. So what does this mean for the Charter framework?
Most scholars have sought to salvage the United Nations Charter framework in the wake of these and other challenges. They have attempted to
preserve the core of the Charter provisions on the use of force, modifying
them based on their understanding of customary international law.50 Such
approach, however, seems to miss the fundamental point. While it is indeed
true that the actions posed by rogue states challenge the efficacy of the
Charter regime, so too do the actions of non-rogue states. The true test of
whether a putative rule of international law is actually law is whether that
rule has both authority and control.51 First, is the rule authoritative? Is it
perceived by the decision-making elites in states to be the law -- does it
have opinio juris? Second, is the rule controlling of the behavior of international actors? Is it reflected in the practice of states?52 If the rule in question
is the Charter framework for the use of force -- no threat or use of force
unless undertaken in self-defense following an armed attack or as authorized by the Security Council -- my conclusion is that it fails the test.
50. Elsewhere, we have called these individuals “core-interpretists.” They
argue that the “core” of Article 2(4) is still good law, but contend that a reading of 2(4)
as prohibiting all threats or uses of force is not an accurate understanding of that provision. See AREND & BECK supra note 4, at 182-84.
51. For a more elaborate examination of the “authority-control” test, see
ANTHONY C LARK AREND , LEGAL R ULES AND INTERNATIONAL S OCIETY (1999).
52. As Professor Mark Weisburd has noted: “A putative rule cannot survive
contrary practice no matter how that practice is characterized.” A. Mark Weisburd,
USE OF F ORCE: THE P RACTICE OF S TATES S INCE W ORLD WAR II 24 (1997).
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First, the rule of the Charter is not authoritative. While states may give lip
service to the Charter framework, since 1945 states from all quarters of the
international system have consistently claimed the right to use force in circumstances that fall outside of any reasonable interpretation of the
Charter.53 Second, the rule is not controlling of state behavior. Despite protests to the contrary, states have actually used force hundreds of times in
ways that are inconsistent with the Charter rules.54 As Professor Glennon
aptly concludes, “[s]o many states have used force with such regularity in so
wide a variety of situations that it can no longer be said that any customary
norm of state practice constrains the use of force.”55
If this is indeed the case, if the Charter framework for the use of force
does not reflect existing international law, then what does this mean for
rogue states? Does it mean that there is nothing that can be said about the
lawfulness of their actions? To me, it says that now is the time to begin creating new rules about the behavior of rogue states. Democratic states must
unite to develop a set of rules relating to the use of force that will truly
criminalize the behavior of rogue regimes. But in doing so, those states
must understand that a rule-based regime must apply to them as well. As
Glennon notes, “[n]o rules will work that do not reflect underlying geopolitical realities.”56 “The use-of-force regime set out in the U.N. Charter
failed,” he explains, “ because the Charter sought to impose rules that are
53. See AREND & B ECK, supra note 4, at 181. (“ For obvious political reasons,
states have not overtly argued that the Charter norms are invalid. But as noted earlier,
states have on numerous occasions claimed the right to use force in circumstances that
are, nevertheless, clearly antithetical to the principle enshrined in Article 2(4). Given
these claims, it seems incorrect to contend that states still hold 2(4) in very high e steem. Admittedly, the provision may command some perceptions of legitimacy, but
they seem to be far below those required for a healthy rule of law.”) (footnotes omitted).
54. In his brilliant work, Limits of Law, Prerogatives of Power, Michael Glennon provides the most recently exploration with respect to state practice. He examines
numerous uses of force since the Charter was adopted and then asks this question -“What lesson is to be drawn from this sorry record?” M ICHAEL J. GLENNON , LIMITS OF
LAW, P REROGATIVES OF P OWER : INTERVENTIONISM AFTER KOSOVO 84 (2001). He answers the question by concluding:
It is impossible to avoid the conclusion that use of force among states
simply is no longer subject – if it ever was subject – to the rule of law.
The rules of the Charter do not today constitute binding restraints on i ntervention by states. Their words cannot realistically be given effec t in
the face of widespread and numerous contrary deeds.
Id.
55. Glennon, supra note 38, at 554. This is consistent with the conclusion that
Professor Beck and I reached in 1993. Although at the time, we argued that there did
still seem to be an authoritative and controlling prohibition on the use of force for pure
territorial aggrandizement. AREND & BECK, supra note 4, at 187-88.
56. Glennon, supra note 38, at 557.
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out-of-sync with the way states actually behave.”57 Consequently, “[a] new
use-of-force regime that does work will have to rest far more firmly upon
actual patterns of practice that reveal, with solid empirical evidence, what
regulation of force is possible and what is not.”58
The starting point for this new regime, its “core,” could be “rogue behavior.” Rather than attempting to create a full-blown legal system to restrict
the use of force, if the United States and its allies that seek to establish a
rule-based regime would begin by prohibiting “rogue” actions, they may be
able to develop rules that would truly be authoritative and controlling. What
would such a regime look like? That remains to be seen. But whatever regime the United States and other democratic states seek, it must be a regime
that they are willing to follow. Otherwise, such putative legal regime will be
just as illusory as the Charter regime has become.59
57. Id.
58. Id.
59. Commenting as early as 1970, Professor Thomas M. Franck observed that
“[t]he practice of these states has so severely shattered the mutual confidence which
would have been the sine qua non of an operative rule of law embodying the precepts
of Article 2(4) that, as with Ozymandias, only the words remain.” Tho mas M. Franck,
Who Killed Article 2(4)? Or: Changing Norms Governing the Use of Force by States,
64 AM . J. INT’ L L. 809, 809 (1970).