Prohibition of Threats of Force: New Forms of Communication and
Challenges to International Law in the Future
Max Höwel max_hoewel@web.de Student Number: 12900133
LL.M. Public International Law 2019-2020
Date of Submission: 24 July 2020 Supervisor: Dr. León Castellanos-Jankiewicz
2 Abstract
Threats of force have always been part of interstate relations, whether in the classical or modern era of international law. With the abandonment of the classical law of war and the development of the jus ad bellum, however, the use of armed force as well as the threat of it were placed under a general prohibition. Within this general prohibition of force, numerous exceptional circumstances are defined.
The aim of this study is to determine how threats of force have changed over the past decade. The emergence of new media has changed diplomacy as a whole, but especially the communication of threats relevant under international law. A general overview of the relevant normativity of the prohibition on threats of force is given in relation to specific threats laid out in this paper.
For this purpose, various novel threats of force will be compared with those from the pre-2010 era to point out possible shifts in the past decade and analyzed with regard to their means of communication, but also with regard to the subsequent reactions. Overall, it was found that the international community has not yet taken adequate account of these changes in diplomacy and communication in its responses to threats. In the future, this focus must be sharpened in order to prevent and pre-empt possible softening of the prohibition on threats of force.
3 Contents
1. INTRODUCTION ________________________________________________________ 5 2. METHODOLOGY _______________________________________________________ 6 3. THE TERM THREAT OF FORCE – APPROACHES TO A DEFINITION ___________ 7
3.1. Treaty-based definitions __________________________________________________________________ 8 3.1.1. Briand-Kellogg Pact _________________________________________________________________ 8 3.1.2. UN Charter ________________________________________________________________________ 8 3.1.3. Rome Statute of the International Criminal Court __________________________________________ 9 3.2. Jurisprudence and the ILC ________________________________________________________________ 9 3.2.1. ILC ______________________________________________________________________________ 9 3.2.2. ICJ _______________________________________________________________________________ 9 3.3. Legal doctrine _________________________________________________________________________ 10 3.3.1. Ian Brownlie ______________________________________________________________________ 10 3.3.2. Romana Sadurska __________________________________________________________________ 10 3.3.3. Marco Roscini _____________________________________________________________________ 11
4. DISTINCTION TO THREAT TO THE PEACE _______________________________ 11 5. FURTHER CONSIDERATIONS ON WHAT CONSTITUTES A THREAT OF FORCE: ELEMENTS OF THE DEFINITION __________________________________________ 12
5.1. What is force? ________________________________________________________________________ 12 5.2. What is a threat? _______________________________________________________________________ 13 5.3. Threshold for threats to meet to be considered illegal __________________________________________ 14 5.3.1. Equal legal status of the use and the threat of force ________________________________________ 15 5.3.2. Different legal status of the use and the threat of force _____________________________________ 16 5.3.3. Illegal threat of force presupposes an imminent intent to use force ____________________________ 18 5.4. Interim conclusion _____________________________________________________________________ 18
6. THREATS OF FORCE AND SELF-DEFENSE ________________________________ 19
6.1. The self-defense regime _________________________________________________________________ 19 6.2. Anticipatory self-defense ________________________________________________________________ 20 6.3. Self-defense with and against threats _______________________________________________________ 21
7. PRE-2010 THREATS ____________________________________________________ 22
7.1. NATO – Yugoslavia (1999) ______________________________________________________________ 23 7.1.1. Legality under international law _______________________________________________________ 23 7.1.2. International reactions to this threat ____________________________________________________ 24 7.2. USA and UK – Iraq (2003) _______________________________________________________________ 25 7.2.1. Legality under International Law ______________________________________________________ 26 7.2.2. International reactions to this threat ____________________________________________________ 26
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8. RECENT THREATS COMMUNICATED VIA NEW MEDIA ____________________ 26
8.1 Threatened obliteration __________________________________________________________________ 27 8.1.1. Example of threat __________________________________________________________________ 27 8.1.2. Legality under international law _______________________________________________________ 28 8.1.3. International reactions to this threat ____________________________________________________ 29 8.2. Threat to attack Iranian culture ____________________________________________________________ 29 8.2.1. Issuing of the threat _________________________________________________________________ 29 8.2.2. Legality under international law _______________________________________________________ 30 8.2.3. International reactions to this threat ____________________________________________________ 30 8.3. Threat to destroy Israel and to support any group fighting Israel __________________________________ 31 8.3.1. Issuing of the threats ________________________________________________________________ 31 8.3.2. Legality under international law _______________________________________________________ 32 8.3.3. International reactions _______________________________________________________________ 33
9. GENERAL CONCLUSION _______________________________________________ 33 10. BIBLIOGRAPHY ______________________________________________________ 36
5 1. Introduction
The prohibition on the threat (and use) of force is governed and laid out in Article 2 (4) of the UN Charter. In addition, it is undoubtedly a rule of customary international law.1 The threat to use force is considered to be equal to the actual use of force. A hierarchical gradation of these two constituent facts of a breach of international law does not exist, since both elements prohibit different sorts of state action. Furthermore, the prohibition is only applicable between states, i.e. it has little or no effect on non-international armed conflicts and requires a cross-border situation for it to be applicable.2
In the era of modern international law since the end of the Second World War and the foundation of the United Nations, the general prohibition of the use and threat of force represents a fundamental departure from the previous right to resort to war ("jus ad bellum"). The introduction and acceptance of the prohibition on a universal level is thus a general condemnation of forceful conflict resolution. Strictly limited exceptions to the legitimate and lawful threat (and use) of force however remain.
When observing international policies and statements of decision makers over the last few years, one could come to the subjective conclusion that threats as a tool of policy making or even diplomacy in international relations have become more frequent and might have met a higher degree of acceptance throughout the international community by states or international organizations. Whether threats are inherently excluded from the definition of diplomacy and, like some say should only be used when diplomacy fails3 or can be seen as an important and inexpensive adjunct to diplomatic suasion4 is debatable. Even though a majority views threats as a tool at the service of diplomacy,5 it seems like a rather academic debate which is not decisive for the purposes of this paper. Therefore, in the wording of this paper, when analyzing diplomatic communication and its changes, the formulation also includes threats of force as part of it and threats are not per definition excluded from the term diplomacy like some argue.
1 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States), Merits, ICJ Reports
1986, para 190;
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgement 19
December 2005, ICJ Reports 2005, para. 266.
2 Gleider Hernández, International Law, OUP 2019, 349-350;
Yoram Dinstein, War, Aggression and Self-Defence, 5th ed, CUP 2011, 91;
Oliver Dörr, Albrecht Randelzhofer, in: Simma et al. (eds), The Charter of the United Nations: A Commentary, Vol. I, 3rd ed., OUP 2012, 214, para. 32.
3 Barry M. Blechman, Tamara Cofman Wittes, ‘Defining Moment: The Threat and Use of Force in American Foreign Policy’, Political Science Quarterly 114/1 (1999), 1-30, 2.
4 Ibid.
6
The purpose of this thesis is to evaluate the level of acceptance of threats to the use of force in contemporary international law. The influence of states and international organizations in general, and certain state leaders and decision makers in particular will be analyzed with the focus on possible shifts towards more acceptance of threats to the use of force as a policy tool and changes in the legal regime of the threat of force prohibition. Questions to be answered are if and how state practice and practice of international organizations influence the normativity of the prohibition on the threat to use force.
In sum, this paper aims to answer the question whether a change of international law can be observed or whether the threat of force prohibition is non-derogable and still an undisputed pillar of international law.
2. Methodology
Determining the influence of public statements of governmental authorities on the threat of force prohibition and possible shifts in this particular legal regime requires an appropriate methodology of research. In this quest the interpretation of possible changes in a legal regime through increased acceptance of policy tools “is not predicated solely on the concrete body of legal rules.”6 Therefore, in finding an answer to that question the research cannot be based only on legal and doctrinal research methods but methods of social science research can be borrowed in order to find a response to the problem defined.7 In using a policy method, the application of the law in (state) practice will be analyzed in order to determine the influence of policies and political decisions and statements on the relevant rules of international law. Policy method in this regard is understood as an analytical and descriptive approach. It is not the aim to prescribe or recommend future policy decisions but rather to describe the current legal understanding of the threat of force prohibition from a neutral point of view. A non-doctrinal approach in looking at recent developments in the conduct of subjects of international law is vital for concluding whether shifts in the normativity of the threat of force prohibition are taking place or not. Before evaluating possible shifts through acceptance in the threat of force prohibition, the law governing that issue has to be identified. For identifying relevant norms and rules of customary
6 Reza Banakar, Reflections on the Methodological Issues of the Sociology of Law, Journal of Law and Society
27/2 (2000), 273-295, 282.
7 Aikaterini Argyrou, Making the Case for Case Studies in Empirical Legal Research, Utrecht Law Review 13/3
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international law a doctrinal and classical legal research will be followed by taking court decisions, but also commentaries and legal articles or books of scholars into consideration.
All in all, a qualitative research method will be followed. In combination with an empirical approach, this methodology is capable of showing how law is applied in practice and creating possibilities of evaluating these findings.8 The meaning of the examined sources in this paper is to be captured and categorized in order to extract a conclusion in a legal sense.9 For the data to be dependable and a scientific conclusion legitimate, a sufficiently large and representative sample of state action, opinions and statements should be covered.10 When interpreting changes in the acceptance of a norm of (customary) international law, “the effect of policy shifts can only be examined using in-depth, qualitative methods.”11
3. The term threat of force – approaches to a definition
Despite relatively little work on the concept of threat of force in international law compared to its broadly discussed counterpart of the actual use of force,12 there have been various approaches or attempts to define the term. Various scholars have developed their own definitions, and the International Law Commission (ILC) of the United Nations has also attempted to define the term. In the following, therefore, the most important definitions of the term threat of force will be illustrated in order to give an overview on the framework of the threat of force prohibition. Even though some of the definitions have been laid out decades ago, they are still not outdated but instead relevant for the development and understanding of the overall normativity of the prohibition. All in all, they have similarities but differ in some criteria regarding the threshold of what exactly constitutes a threat.
8 Philip Langbroek et al., Methodology of Legal Research: Challenges and Opportunities, Utrecht Law Review
13/3 (2017), 1-8, 7.
9 Lisa Webley, Qualitative Approaches to Empirical Legal Research, in Cane, Kritzer (eds), The Oxford
Handbook of Empirical Legal Research, OUP 2010, 927-950, 928.
10 Ibid, 933. 11 Ibid, 948.
12 Oliver Dörr, Albrecht Randelzhofer, in: Simma et al. (eds), The Charter of the United Nations: A Commentary, Vol. I, 3rd ed., OUP 2012, 203, para. 1.
8 3.1. Treaty-based definitions
3.1.1. Briand-Kellogg Pact
The 1928 General Treaty for the Renunciation of War, or Briand-Kellogg Pact is a landmark document in the history of the prohibition of the threat and use of force in international relations. Its milestone provision on the use of force and international law in general is that the parties condemn recourse to war for the solution of disputes and renounce it as an instrument of policy in their international relations.13 Even though this provision did not prevent the outbreak of the Second World War, it is still considered as an important precedent for the modern-day prohibition on the use and threat of force and its embedding in the Charter of the United Nations.14 Furthermore, it also implemented principles that still apply under the current UN Charter and customary framework of international law like the obligation to peaceful dispute settlement, the inherent right of self-defense and a strong organ of an international organization to even possibly authorize force.15
3.1.2. UN Charter
The prohibition of the threat or use of force is explicitly laid out in Article 2 (4) of the UN Charter stating that all states “shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state”. It is a fundamental cornerstone of the international legal order established after the Second World War and its body reflects a core value of today’s international community.16 It is one of the main elements in the efforts to prevent war between states.17 With its exceptions under Chapter VII, it guides the prohibition on the use and threat of force and lays out the framework under which threats and forceful actions against states are assessed. Today, Article 2 (4) is considered as basis for a legal discussion on the use and threat of force in international relations.18 The prohibition laid out in the Charter is strictly limited to those uses or threats of force concerning international relations and enforcement of a state’s territorial jurisdiction is not covered.19
13 General Treaty for the Renunciation of War (1928), Article 1. 14 Gleider Hernández, International Law, OUP 2019, 348.
15 James Crawford, Brownlie’s Principles of Public International Law, 9th ed, OUP 2019, 718. 16 Ibid, 209, para. 19.
17 Oliver Dörr, Albrecht Randelzhofer, in: Simma et al. (eds), The Charter of the United Nations: A Commentary, Vol. I, 3rd ed., OUP 2012, 203, para. 2.
18 Ibid, 207, para. 12. 19 Ibid, 215, para. 34.
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3.1.3. Rome Statute of the International Criminal Court
In Article 8bis of the Rome Statute, the international crime of aggression and its threshold are outlined. According to it, aggression is constituted by “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State.” Both, aggression and a prohibited use or threat of force are closely related because the crime of aggression in international criminal law is the realization of a criminal offense through a breach of the use of force prohibition. Yet, there is no distinction in the UN Charter between the framework laid out in Article 2 (4) and the term aggression in Article 39. The UN General Assembly issued a resolution with a definition of the term aggression which seems to be corresponding with an illegal use of force, but is not exhaustive.20 However, the main – and for this paper most relevant – difference is that a threat of force is not included in the definition of an aggression.21 Therefore, the crime of aggression will not be evaluated with regard to the focus on threats of force.
3.2. Jurisprudence and the ILC
3.2.1. ILC
The ILC addressed the issue of the threat of force in its 41st session in regard to acts constituting crimes against the peace and security of mankind and in particular the threat of aggression. Such a threat should be understood as an "act undertaken with a view to making a state believe that force will be used against it if certain demands are not met by the state".22 Thus, the ILC also focuses on a demand that must be met in order to prevent the use of force. Furthermore, the word "act" implies that it includes not only verbal or written communications in which a threat may be expressed, but also acts which are of an inherent threatening character.
3.2.2. ICJ
The International Court of Justice (ICJ) dealt with the issue of a threat, too, and considered it as “a signalled intention to use force if certain events occur”23 with “a particular use of force
20 UN GA Res/3314 (XXIX) (14 December 1974)
21 Robert Cryer, An Introduction to International Criminal Law and Procedure, CUP 2007, 271. 22 International Law Commission Yearbook 1989, Vol. II, Part II, 68, para. 2.
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envisaged”24 being “itself unlawful”.25 This could only be seen as explicitly excluding vague and unidentified threats from the legal framework of the prohibition of the threat to use force.26 Furthermore, any threat of a use of force which would necessarily violate the principles of necessity and proportionality must be viewed as unlawful.27 This is based on a court finding in
Nicaragua where the ICJ stated that only measures that are proportional to the armed attack
and necessary to respond to it are legal under international law.28
3.3. Legal doctrine
3.3.1. Ian Brownlie
The first definition in legal scholarship of the term is that of Ian Brownlie, some 18 years after the signing of the Charter of the United Nations. He defined a threat of force in the sense of Article 2 (4) of the UN Charter as "an express or implied promise by a government of a resort to force conditional on non-acceptance of certain demands of that government".29 He connects the illegality of a threat closely to the justification requirements of the actual use of force. If no such justification for a use of force exists, the according threat itself should be considered illegal.30
3.3.2. Romana Sadurska
It was not until 25 years later that Romana Sadurska came up with another noteworthy attempt at definition. She sees a threat of force as a “message, explicit or implicit, formulated by a decision maker and directed to the target audience, indicating that force will be used if a rule or demand is not complied with”.31 Sadurska extends the concept of the threat of force to the extent that the use of force is envisaged even if a certain rule is not followed. In Brownlie's case, only the non-acceptance of a demand was covered by the definition, which Sadurska only
24 Ibid, 247, para. 48. 25 Ibid, 246, para. 47.
26 Francois Dubuisson, Anne Lagerwall, ‘Que signifie encore l’interdiction de recourir à la menace de la force?’, in Karine Bannelier et al (eds), L’intervention en Irak et le droit international, Pedone 2004, 83-104, 88. 27 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Rep (1996), 247, para. 48. 28 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States), Merits, ICJ
Reports 1986, para 176.
29 Ian Brownlie, International Law and the Use of Force by States, 1st ed, OUP 1963, 364. 30 Ibid.
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partially accepted. Rather, she uses the verb "comply", which encompasses more than just accepting a demand, but also fulfilling its conditions.
3.3.3. Marco Roscini
Marco Roscini addressed the issue in 2007 and defined a threat of force under Article 2 (4) of
the UN Charter as “an explicit or implicit promise of a future and unlawful use of armed force against one or more states, the realization of which depends on the threatener’s will.”32 Similar to the ILC definition, Roscini includes non-written or non-verbal threats. Moreover, he explicitly states and clarifies, that the threatened use of force is such of an armed character.
4. Distinction from threat to the peace
A threat of force is to be distinguished from the principle of a threat to the peace in international law which is especially laid out in Article 39 of the UN Charter. Even though any threat to use force can be determined as a threat to the peace by the UN Security Council according to Article 39 of the UN Charter, this qualification is not self-evident. Notably, it is up to the Security Council not to classify a threat of force as a threat to the peace as stated in Article 39 of the UN Charter.33 Threats to the peace can also be determined on the basis of massive human rights violations, the breakdown of state order or the violation of fundamental democratic principles by the UN Security Council, without there necessarily having been a violation of the prohibition of the use or threat of force under international law.34 Vague threats might be a risk for security and can therefore be determined as a threat to the peace by the UN Security Council but only direct threats of one state against another with the use of force are covered by the threat of force prohibition.35 This interpretation is also shared by the ILC. According to their Draft Code of Crimes Against the Peace and Security of Mankind the term “threat” has to be interpreted in different ways suitable to the actual circumstances. On the one hand, it can refer to a situation or dispute which could have a repercussion on the stability of peace, on the other hand to a threat that fulfills the definition criteria laid out above.36
32 Marco Roscini, Threats of Armed Force and Contemporary International Law, NILR 2007, 229-277, 235. 33 Ibid, 231.
34 Kai Schadtle, Das völkerrechtliche Gewaltverbot und seine Ausnahmen, JURA 31/9, 2009, 686-695, 691. 35 Olivier Corten, The Law against War: The Prohibition on the Use of Force in Contemporary International Law, Hart Publishing 2010, 95.
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5. Further considerations on what constitutes a threat of force: elements of the definition 5.1. What is force?
It is rightly agreed in the doctrine of international law that all military force is covered by the term force.37 In this context, a comprehensive concept of military force applies, which not only includes conventional armed force, but also new methods of warfare, if they are comparable to the effects of traditional weapons.38
Even an interpretation of the fundamental Charter principles by the United Nations itself leaves no doubt that the prohibition of the use and threat of force prohibits military force. When interpreting the characteristics of the threat and use of force, the only reference is to military force.39 Moreover, the international practice of states and international organizations has considered the use of military force as such, which falls under the prohibition of the use and threat of force in Article 2 (4) of the UN Charter.40 Accordingly, there can be no doubt that Article 2 (4) of the UN Charter prohibits the threat and use of military force at a minimum. Additionally, the term force also includes attacks by groups that are not state armed forces, if they are sent by another state.41 In this respect, logistical or material support provided by weapons of rebel groups is also covered by the prohibition of the use of force.42
The use of economic pressure through sanctions or similar measures could also constitute a form of force. During the negotiations on the ban on the use of and threat of force in San Francisco in 1945, the state of Brazil proposed that economic measures should also be covered by Article 2 (4) of the UN Charter.43 However, this was clearly rejected by a margin of 26 votes against 2 votes in favor.44 From this it can be concluded that the states wanted to reserve the exercise but also the threat of economic sanctions for themselves, without these falling under the prohibition on the use and threat of force. Accordingly, the classification of these as force is not supported by international treaty law, nor is it opinio juris, which could make it
37 Gleider Hernández, International Law, OUP 2019, 349.
38 Michael N. Schmitt (ed), Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, 2nd ed,
CUP 2017, Rule 69, 330-331.
39 Friendly Relations Declaration (UNGA Res. 2625 XXV) 24 October 1970.
40 Oliver Dörr, Albrecht Randelzhofer, in: Simma et al. (eds), The Charter of the United Nations: A Commentary, Vol. I, 3rd ed., OUP 2012, 209, para. 19.
41 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States), Merits, ICJ
Reports 1986, para. 195.
42 Ibid.
43 Documents of the United Nations Conference on International Organization, Vol. VI, 334. 44 Ibid, 609.
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customary international law. In addition, international law scholarship is also of the predominant opinion that political and economic means in foreign policy are not covered by the prohibition of the use and threat of force.45
Rather, economic measures are often seen as part of a catalogue of measures to which states can resort in the event of violations of the rights of other states without having to use physical force.46
5.2. What is a threat to use force?
Without a doubt, ultimata as explicit communications from one state to another that for the last time and with certainty, demands have been made which must be met in order to avert other forceful measures are considered threats.47 If, in the specific case under consideration, these measures refer to those which fall within the concept of force, there is no doubt that there is a
de facto threat of force. More difficult to assess seem to be possible threats which, although
they are also explicit, do not refer ad hoc to a specific individual case, but rather express a threat of a general nature. These could also be norms of national legal systems or political instructions, if they were legally identifiable and sufficiently precise with regard to their objectives and content.48 It should be emphasized that this force is mostly to be used in the context of collective self-defense49 and that the question of illegality is different from the question in which way the threat of force is communicated. Less clearly identifiable and correctly to evaluate are threats of force that are not clearly expressed but are expressed through certain types of behavior. Examples of this are, above all, the concentration of armed forces near borders and the carrying out of military maneuvers.50 Thus, a demonstration of military strength with the purpose of exerting political pressure could also be regarded as a prohibited threat of force in the sense of Article 2 (4) of the UN Charter and its mirrored customary international law provision,51 provided it is accompanied with a hostile intent.52 In addition, the threatened state must have knowledge of the military maneuver or the preparation of an aggression, since measures
45 Oliver Dörr, Albrecht Randelzhofer, in: Simma et al. (eds), The Charter of the United Nations: A Commentary, Vol. I, 3rd ed., OUP 2012, 208-209, paras. 17-18;
Gleider Hernández, International Law, OUP 2019, 349;
Oliver Dörr, ‘Use of Force, Prohibition of’, MPEPIL 2015, para. 12.
46 Barry E. Carter, ‘Economic Coercion’, MPEPIL 2009, para. 1.
47 Olivier Corten, The Law against War: The Prohibition on the Use of Force in Contemporary International Law, Hart Publishing 2010, 103.
48 Marco Roscini, Threats of Armed Force and Contemporary International Law, NILR 2007, 229-277, 238. 49 e.g. The North Atlantic Treaty, 1949, in particular article 5.
50 Romana Sadurska, Threats of Force, AJIL Vol. 82/2 (1988), 239-268, 243. 51 Corfu Channel (United Kingdom v. Albania), Merits, ICJ Reports 1949, p. 35.
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unknown to the victim cannot be considered a threat.53 However, every troop maneuver or other display of military strength must be considered on a case-by-case basis, since the same behavior can be assessed as a prohibited threat of force or as behavior that is not threatening in any way, depending on the presence of hostile intent.54 The context and the relationship between the affected states is decisive in the assessment whether the behavior can be viewed as threatening or not.55 The inherently difficult assessment of non-verbal behavior must therefore be based on the criteria mentioned above. Especially since the ICJ has so far avoided taking a clear position on this issue and in various cases has tended to take different views without giving further reasons. On the one hand, it found that US maneuvers in the conflict with Nicaragua did not constitute a violation of the prohibition on force under public international law, although both regimes were fundamentally hostile to each other.56 On the other hand, the possession of nuclear weapons was sufficient for the ICJ to assume an implicit threat of force through their prohibited use, even if their use was not envisaged in any form.57 An implicit threat of force can therefore also constitute a violation of the prohibition of the use and threat of force. However, it is absolutely necessary to examine the individual case in detail.
Moreover, it has to be added that a threat of force has to be credible.58 The addressee state of the threat has to have good reasons to believe that aggressions against it are seriously contemplated by the threatening state.59
5.3. Threshold for threats to meet to be considered illegal
Important for the understanding of the prohibition of threats of force in international law is an analysis of the characteristics that a threat must contain, or which behavior can be interpreted as a prohibited threat of force in the sense of its prohibition. Various approaches to interpreting threats of force are possible and to classify them in the systematics of international law and state practice.
53 Ibid, 238. 54 Ibid, 240.
55 Francis Grimal, Threats of Force: International Law and Strategy, Routledge 2013, 44.
56 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States), Merits, ICJ
Reports 1986, para. 227.
57 Legality of the Threat or Use of Nuclear Weapons, Advidory Opinion, ICJ Reports 1996, para. 48. 58 Hannes Hofmeister; ‘Ceterum censeo Carthaginem esse delendam: Eine Analyse des völkerrechtlichen Gewaltandrohungsverbots’, Archiv des Völkerrechts 48/2 (2010), 248-265, 257.
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5.3.1. Equal legal status of the use and the threat of force
One possibility is that the threat of force in international law is to be classified as unlawful if the use of force in the form and circumstances threatened would itself be unlawful. Therefore, if a state would not be entitled to use force in the concrete situation, then its threat would be equally unlawful.60 From this, a complete equality of treatment of the threat of force and the use of force would be the result.61 This leads to the conclusion, that threats are illegal where the envisaged us of force is. Additionally, the same legal justifications that are proposed for the use of force must be applied to the threat of force and will equally work for such threats.62
Accordingly, the threat of force would be subject to the same standards of justification, such as the right of self-defense, a possibly permissible humanitarian intervention or an authorization by the Security Council, as the use of force itself.63 This view was also followed by the ICJ in 1996, when it stated that if the use of force, for whatever reason, is illegal, the threat of such force is also illegal.64
In addition, this parallelism is laid out and reflected throughout international legal documents and scholarship. Article 50 paragraph 1 (a) of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts does not distinguish between the legality of a threat and the use of force. According to the ILC, the prohibition of forceful countermeasures applies equally to the threat and the use of force.65 Furthermore, relevant international treaties do not distinguish between the use of force and its threat.66 Moreover, in various United Nations General Assembly resolutions over a large period of time there has been no divergence in the perception of those two prohibited acts.67 Similarly, the United Nations Security Council resolutions did not differ in the prohibition of the use of force and the prohibition of the threat to use force.68 Furthermore, the majority of legal scholars do not view the legality of the use
60 Brownlie, International Law and the Use of Force by States, 346.
61 Francis Grimal, Threats of Force: International Law and Strategy, Routledge 2013, 47. 62 Nikolas Stürchler, The Threat of Force in International Law, CUP 2007, 41
63 Ibid, 38.
64 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, para. 47.
65 International Law Commission, Commentary on the Articles on the Responsibility of States for Internationally Wrongful Acts, ILC Yearbook 2001 Vol. II Part. 2, Art 50, p. 132, paras. 4-5.
66 The North Atlantic Treaty (1949), Article 1; Vienna Convention on the Law of the Treaties (1969), Article 52; United Nations Convention on the Law of the Sea (1982), Article 301.
67 UN GA Res 2625 (XXV) (24 October 1970); UN GA Res. 37/10 (15 November 1982); UN GA Res 42/22 (18
November 1987).
68 UN SC Res 186 (4 March 1964); UN SC Res 268 (28 July 1969); UN SC Res 294 (15 July 1971); UN SC Res
487 (19 June 1981); UN SC Res 580 (30 December 1985); UN SC Res 1234, (9 April 1999); UN SC Res 1291 (24 February 2000).
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and the threat as distinct from each other and their prohibition is parallel to each other and prohibited to the same extent and in the same manner.69
Concluding, this approach therefore advocates for an equal legal treatment of the use and the threat to use force with the result that any threat to use force has to meet the same justification criteria as the envisaged use of force. The same illegality threshold is applied and the illegality of the hypothetically used force leads automatically to the unlawfulness of its threat in any situation.
5.3.2. Different legal status of the use and the threat to use force
It is also possible to take the opposite view, in the sense that there is no direct connection between the threat of force and its use. If the connection of illegality and justification with the use of force is removed, the prohibition of the threat of force can be interpreted more tolerantly, so that some threats of force can be regarded as legally permissible and an interpretation of the prohibition according to more liberal standards can take place.70 Since a threat of force typically does not have the same destructive effects as the use of force, there is no reason to assume that the threat would always be illegal if the use of force were illegal under the same circumstances.71
It is also argued that the prohibition laid out in Article 2 (4) of the UN Charter no longer applies to the threat of force. In practice, states have a comparatively high tolerance threshold for threats of force.72 This is also reflected in the practice of international organizations such as the United Nations, where an explicit condemnation of such threats has been rather rare.73 On the basis of these observations, it could be concluded that the wording of Article 2 (4) of the UN Charter no longer represented the currently applicable law, since such threats of force were tolerated when they did not endanger international peace or led to massive violations of human rights.74 As far as the different effects of the use of violence and the threat of violence are concerned,
69 Olivier Corten, The Law against War: The Prohibition on the Use of Force in Contemporary International Law, Hart Publishing 2010, 113;
Francois Dubuisson, Anne Lagerwall, ‘Que signifie encore l’interdiction de recourir à la menace de la force?’, in Bannelier et al (eds), L’intervention en Irak et le droit international, Pedone 2004, 83-104, 91;
Nigel D. White, Robert Cryer, ‘Unilateral Enforcement of Resolution 687: A Threat too far?’, California Western International Law Journal 29/2 (1999), 243-282, 247.
70 Nikolas Stürchler, The Threat of Force in International Law, CUP 2007, 43. 71 Romana Sadurska, Threats of Force, AJIL Vol. 82/2 (1988), 239-268, 250.
72 Oliver Dörr, Albrecht Randelzhofer, in: Simma et al. (eds), The Charter of the United Nations: A Commentary, Vol. I, 3rd ed., OUP 2012, 217, para. 42.
73 Nigel D. White, Robert Cryer, ‘Unilateral Enforcement of Resolution 687: A Threat too far?’, California
Western International Law Journal 29/2 (1999), 243-282, 245.
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Sadurska may be right about the purely physical consequences. However, it is precisely the
reactions of the addressee states to threats that depend not on whether they have been victims of the use or threat of force, but on the political interests of the state concerned and the result of the behavior.75
It is doubtful whether a higher tolerance for threats or little debate about threats of force can be recognized by the United Nations as applicable customary international law in deviation from the provisions of Article 2 (4) of the UN Charter. First of all, it is an existing treaty obligation.76 The ICJ has expressed the opinion that the actions of states must be in absolutely rigorous conformity with the rule.77 Furthermore, contrary to Sadurska's assumption, there is state practice of condemning threats of force. In 1986, for instance, the UN Security Council condemned South Africa's actions as a threat and stressed the urgent need to refrain from further threats of force by South Africa.78 There were also unilateral complaints about threats of force, such as a complaint from Argentina in 1969 that the exclusion zone established by Great Britain was an illegal military threat.79 Finally, there was also a statement by the United Kingdom to the Security Council in 1994 that it regarded the provision of military material, namely weapons and tanks by Iraq on the border with Kuwait as a threat to Kuwait.80
All these cases show that states continue to be convinced of the institution of the prohibition of threats of force and are incorporating this into their state practice. One reason for the comparatively rare occurrence in international practice could be that threats of force often lead to the use of force, and that this use is then the more decisive and relevant criterion in the later legal discussion of the conflict and supersedes the previous threat of force.81 If no use of force was carried out following a threat of force, the absence of condemnation by the threatened state could often be attributed to a general relief that the use of force had not occurred and the conflict has calmed down.82 Therefore, a comparatively high tolerance of threats to use force and the absence of their condemnation cannot immediately prove an opinio juris.83
75 Marco Roscini, Threats of Armed Force and Contemporary International Law, NILR 2007, 229-277, 245. 76 Nigel D. White, Robert Cryer, ‘Unilateral Enforcement of Resolution 687: A Threat too far?’, California
Western International Law Journal 29/2 (1999), 243-282, 245.
77 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States), Merits, ICJ
Reports 1986, para. 98.
78 UN Doc. S/RES/581 (13 February 1986).
79 Romana Sadurska, Threats of Force, AJIL Vol. 82/2 (1988), 239-268, 261. 80 UN Doc. S/PV 3431 (29 September 1994).
81 Nigel D. White, Robert Cryer, ‘Unilateral Enforcement of Resolution 687: A Threat too far?’, California
Western International Law Journal 29/2 (1999), 243-282, 246.
82 Hilaire McCoubrey, Nigel D. White, International Law and Armed Conflict, Dartmouth Publishing 1992, 58. 83 Nigel D. White, Robert Cryer, ‘Unilateral Enforcement of Resolution 687: A Threat too far?’, California
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5.3.3. Illegal threat of force presupposes an imminent intent to use force
Another way of understanding the prohibition of the threat of force is to consider an imminence of the actual use of force as a constituent element of the breach. According to this view, a threat of force would then be illegal according to the prohibition on the threat of force if the use of such force was imminent.84 However, it would not be clearer to define the offence of an illegal threat of force if the assumption of imminent danger was taken as a characteristic feature. In the world of modern warfare, weapons are always ready to be used. Being ready and operational, however, does not necessarily mean that they are about to be used.85 Consequently, the characteristic of being ready to be used would leave an even greater ambiguity, since it would now have to be assessed when the use of these weapons was imminent and would leave a wide scope of interpretation about the legitimacy of one's own self-defense measures. Therefore, the immediate imminent threat is in part a suitable indication of the existence of an illegal threat of force, but not a prerequisite for it.86
Furthermore, the analogy with the requirement of imminence in the context of the right of self-defense under Article 51 of the UN Charter does not seem conclusive either. To assume the immediacy of the situation as a prerequisite for legitimate self-defense is a legitimate and proven means of conflict avoidance, in order to avoid rapid reactions that could lead to a military conflict. However, to assume this in order to qualify a threat as illegal does not seem very plausible, since virtually any threat would be acceptable under international law if there was not the danger and probability of immediate realization. Therefore, the criticism is rightly made that in the end it cannot be desirable to tolerate the most serious threats such as the destruction of a state in the future, just because the realization of the threat is not imminent.87
5.4. Interim conclusion
The articulation of a demand or the imminence of the threat of force is not a requirement for a threat to be considered as illegal under international law.88 Threatening statements or actions cannot be viewed as in conformity with international law when they do not have a coercive
84 Nikolas Stürchler, The Threat of Force in International Law, CUP 2007, 55. 85 Ibid, 56-57.
86 Ibid, 57.
87 Nigel D. White, Robert Cryer, ‘Unilateral Enforcement of Resolution 687: A Threat too far?’, California
Western International Law Journal 29/2 (1999), 243-282, 252.
Hannes Hofmeister; ‘Ceterum censeo Carthaginem esse delendam: Eine Analyse des völkerrechtlichen
Gewaltandrohungsverbots’, Archiv des Völkerrechts 48/2 (2010), 248-265, 262.
88 Hannes Hofmeister, ‘Watch What You are Saying: The UN Charter’s Prohibition on Threats to Use Force‘,
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element and a demand linked to this threat because it is in contrary to the object and purpose of the UN Charter and the prohibition of threats and use of force as a cornerstone of modern international law. Furthermore, a greater tolerance of threats than of the use of force cannot be proven with the regard to state practice. This view also finds no basis in any international treaties whatsoever and bares the risk of an escalation of a situation through threats and counter-threats which can in the end lead to a major conflict. Tolerance might be observed in some cases, but it is caused by policy considerations and not legal arguments. Therefore, threats of force are closely linked with regards to their framework and exceptions to the use of force.
6. Threats of force and self-defense
This conclusion can also be affirmed with regard to the regime of self-defense in international law. It is to be asked whether a threat of force can be considered as a valid reason for the exercise of anticipatory self-defense. The regime of self-defense and in particular the institution of anticipatory self-defense is highly disputed in international law. Its invocation is rare and states prefer to rely on self-defense as a response to an actual armed attack and are reluctant in openly claiming anticipatory self-defense.89 On the other hand, reports of the United Nations Secretary General show a possibility of anticipatory self-defense: self-defense against imminent threats can be fully covered, not only by customary international law, but also by its regime laid out in Article 51 of the UN Charter.90 This argument strengthens the position of the possibility of anticipatory self-defense as lawful measure against threats of force and opens up opportunities to counter illegal threats, even with forcible action.
6.1. The self-defense regime
The right of self-defense is a main exception to the Article 2 (4) of the UN Charter and its respective customary international law rule.91 Generally recognized is, that the exercise of self-defense has to be necessary and proportionate.92 Whereas necessity means that the state that uses self-defense has no other means but a recourse to armed force in order to halt an armed
89 Christine Gray, International Law and the Use of Force, 4th ed, OUP 2018, 170.
90 UN GA ‚Report of the Secretary-General’s High-level Panel on Threats, Challenges and Change‘, UN Doc
A/59/565 (2 December 2004), para. 189; UN GA ‚In Larger Freedom: towards development, security and
human rights for all‘, UN Doc A/59/2005 (21 March 2005), para. 125. 91 Oliver Dörr, ‘Use of Force, Prohibition of’, MPEPIL 2015, para. 38. 92 Gleider Hernández, International Law, OUP 2019, 352.
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attack,93 proportionality requires an assessment of relations what is necessary to stop an armed attack and its consequences which must not be in disproportionate dimensions to the consequences of the attack suffered.94 One cannot find a general conclusion on which action and behavior exceeds the legal possibilities of these requirements, rather it has to be analyzed on a case-by-case basis for each individual recourse to force.95
6.2. Anticipatory self-defense
It is not the aim of this paper to discuss and decide about the possible legality of anticipatory defense in international law. Rather, it will be assumed that a right to anticipatory self-defense in certain exceptional situations exists in order to answer the question whether this right could be triggered by threats to use force. However, the regime of anticipatory self-defense is relevant for an assessment of threats and their following reactions by other states, since threats of force cannot be armed attacks occurring in the narrowest sense of Article 51 of the UN Charter. This is because a threat to use force logically and literally cannot be the use of that force in the context of an armed attack. Therefore, forcible self-defense against threats of force can only be lawful within the regime of anticipatory self-defense under the circumstances that the threat meets a certain threshold of intensity and imminence.
Anticipatory self-defense is the use or threat of force in order to ward off an imminent armed attack.96 Its concept seems contrary to the UN Charter which requires an armed attack that “occurs” in order to exercise forceful self-defense. Also, it can be seen as in conflict with the object and purpose of the Charter to restrict the unilateral employment of armed force.97 The regime of anticipatory defense can also be divided in preventive and pre-emptive self-defense.98 On the one hand, preemptive self-defense strongly relies of the imminence of a threatened armed attack and is accepted on a rather broad level in international law.99 On the other hand, preventive self-defense aims at forcefully preventing armed attacks even though the time and place of this attack are uncertain and the strict imminence criteria is neglected.100 It finds no legal basis and is generally not accepted in international law.101
93 ILC, ‘Eighth Report by Special Rapporteur Roberto Ago‘ (1980), UN Doc. A/CN.4/318. 94 Ibid.
95 Oil Platforms (Islamic Republic of Iran v. USA), Judgement, ICJ Reports 2003, 198. 96 James Crawford, Brownlie’s Principles of Public International Law, 9th ed, OUP 2019, 723. 97 Ibid.
98 Yoram Dinstein, War, Aggression and Self-Defence, 5th ed, CUP 2011, 205 (Dinstein even distinguishes further with a concept of “interceptive self-defense”).
99 Gleider Hernández, International Law, OUP 2019, 356.
100 James Crawford, Brownlie’s Principles of Public International Law, 9th ed, OUP 2019, 725. 101 Ibid.
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The so-called Webster-formula or Caroline criteria lay out the framework of anticipatory self-defense. According to it, the necessity of self-defense is given, when there is an instant, overwhelming threat that leaves no choice of means and no moment of deliberation other than the execution of the right.102 Over 250 years after the Caroline incident, these requirements can still be applied today in order to assess whether such a threat gives rise to the right to self-defense.
6.3. Self-defense with and against threats
According to this formulation of requirement, threats of force could be such a threat that triggers the anticipatory self-defense right and can be considered as an armed attack or receive equal treatment to an armed attack within the meaning of Article 51 of the UN Charter.103 Yet, these threats have to be very precise in the danger they pose to the addressee state. The requirements of no other choice of means and no moment of deliberation have to be interpreted very restrictively. Therefore, the vast majority of illegal threats, including the ones mentioned in this paper, do not trigger the right in question since the danger of a possible aggression is not imminent enough. However, this possibility is not ruled out in the self-defense framework in public international law. But it has to be noted that for the right to self-defense to be exercised “the threat of an imminent armed attack is an absolute precondition.”104 Furthermore, it must be emphasized that not any threat but only the threat of an armed attack can trigger the right in question.105
In addition, this conclusion confirms the finding that threats of force and the use of force and their prohibition are symmetric and threats are illegal if the envisaged force is. When threats to use force could be likened to an armed attack, they are prohibited in a fairly stringent manner and a greater tolerance of threats can logically not be justified.106
This question can also be raised in the opposite way, namely whether threats, inter alia called “countervailing threats”107, can be legally made in self-defense. For it to be answered, it has to be examined whether non-forcible self-defense is conceptually possible. States in general do
102 Tom Ruys, ‚Armed Attack‘ and Article 51 of the UN Charter, CUP 2010, 256.
103 Olivier Corten, The Law against War: The Prohibition on the Use of Force in Contemporary International Law, Hart Publishing 2010, 115.
104 Terry D. Gill, ‘The Law of Armed Attack in the Context of the Nicaragua Case‘, The Hague Yearbook of
International Law 1 (1998), 30-58, 35.
105 James A. Green, Francis Grimal, ‘The Threat of Force as an Action in Self-Defense under International Law’
Vanderbilt Journal of Transnational Law 44 (2011), 285-330, 303.
106 Ibid.
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not claim that threats are issued as an exercise of the self-defense right but rather threaten to respond with forcible self-defense to counter an armed attack.108 This means states usually indicate that they will react with forcible self-defense instead of claiming that this reaction is already a threat in order to exercise the right to self-defense in the first place. A state that declares its readiness to exercise forcible self-defense is not breaching the threat of force prohibition but relying on the exception of the prohibition of the use and threat of force and this must be considered as a legitimate warning and reminder.109
With regard to self-defense as an exception of the use and threat of force prohibition, it has been argued that in principle “threats can be justified either as a measure of self-defense or when authorized by the Security Council.”110 In Construction of a Wall, Israel claimed that the construction of a wall was an action taken in self-defense.111 This argument was rejected by the ICJ, but not by basing it on the argument that non-forcible self-defense measures are outside the scope of the framework.112 This argumentation can be seen as an indication for the acceptance of threats as a self-defense instrument without necessarily involving the actual use of force.113 In addition, one could argue that threats of force can even be desirable in light of the proportionality requirement of the self-defense framework since they inherently cause less physical damage than the use of armed force. This conclusion seems obvious with regard to the goal of international law to minimize the resort to military force as far as possible.114 When threats of force can effectively be issued instead of an actual use of force and still manage to halt an armed attack, non-forcible measures must be and are a lawful option to exercise the right of self-defense by using force.
7. Pre-2010 threats
2010 was selected as cut-off date to focus on changes in the last decade, which corresponds with a massively increased use of social media around the world. The case studies below were
108 James A. Green, Francis Grimal, ‘The Threat of Force as an Action in Self-Defense under International Law’
Vanderbilt Journal of Transnational Law 44 (2011), 285-330, 306.
109 Yoram Dinstein, War, Agression and Self-Defence, 5th ed, CUP 2011, 88.
110 Independent International Fact-Finding Mission on the Conflict in Georgia, Report (2009), 236.
111 James A. Green, Francis Grimal, ‘The Threat of Force as an Action in Self-Defense under International Law’
Vanderbilt Journal of Transnational Law 44 (2011), 285-330, 309
112 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion, 9 July 2004, paras. 138-139.
113 James A. Green, Francis Grimal, ‘The Threat of Force as an Action in Self-Defense under International Law’
Vanderbilt Journal of Transnational Law 44 (2011), 285-330, 309
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chosen, because both situations had a major impact on aspects of international peacekeeping and security law. The threats analyzed afterwards are less discussed to these and not considered to be groundbreaking situations yet could lead to a different understanding of the threat of force prohibition in comparison to those issued pre-2010.
7.1. NATO – Yugoslavia (1999)
This first case study concerns threats issued by NATO against the Yugoslavia and reflects the classical understanding of communication of threats. After rising tensions in the former Yugoslavia, an increased military presence and assaults by the forces of President Milosevic in the course of the year 1998 led to killings of civilians and a large number of refugees searching for protection in improvised camps.115 The situation was recognized by the UN Security Council as a threat to the peace and security in the region and it demanded the implementation of immediate measures to avoid a humanitarian catastrophe.116 Nevertheless, a Security Council resolution to authorize military force was not in the range of possibilities because the permanent members China and Russia indicated that they would veto against a resolution that would authorize the use of force under Chapter VII of the UN Charter.117 After various further efforts and negotiations that failed to change the situation in the region the NATO Council issued a declaration stating that “NATO is ready to take whatever measures are necessary”118 and that it agreed “that the NATO Secretary-General may authorize air strikes against targets on FRY territory.”119 Furthermore, the NATO Secretary-General addressed the Yugoslavian government directly with a final warning120 in a formal communiqué “that the demands of the international community concerning this crisis are met.”121
7.1.1. Legality under international law
These statements by NATO are widely considered to be unlawful threats under international law.122 Without NATO exercising collective self-defense, because no armed attack occurred
115 Thomas M. Franck, Recourse to Force: State Action Against Threats and Armed Attacks, CUP 2002,
163-165.
116 UN Doc. S/RES/1 199 (23 September 1998)
117 Nikolas Stürchler, The Threat of Force in International Law, CUP 2007, 150-151.
118 ‘Statement by the North Atlantic Council on Kosovo’, Press Release (99)12 (30 January 1999). 119 Ibid.
120 UN Yearbook 1999, 339.
121 UN Doc. S/1999/107 (2 February 1999).
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against one of its members, the exception of Article 51 of the UN Charter regarding the use and threat of force prohibition could not be applied in this case and justify NATO’s threats to use force. In addition, NATO did not offer a clear and consistent legal argumentation for its actions.123 As a possible justification, the intention to avoid a “humanitarian catastrophe”124 could be a legitimate ground “to threaten, and if necessary, use force.”125 Nevertheless, apart from the system of collective security laid out in Chapter VII of the UN Charter, public international law does not recognize a right to humanitarian intervention by individual states.126 The UN Charter does not substantiate a right to humanitarian intervention and in no way a right to unilaterally use or threaten the use of force in order to secure the implementation of human rights.127 A right to humanitarian intervention can also not be derived either from the UN Charter nor from the ICJ Nicaragua ruling.128 In the earlier Corfu Channel case, the ICJ even stated that an alleged right to intervention must be viewed as a policy of force which has given rise to serious abuses.129 Therefore, this possible justification of the threat of force must be deemed illegal under international law.
7.1.2. International reactions to this threat
Yugoslavia condemned that threat as a clear and illegal threat of aggression under international law and called for an emergency session of the UN Security Council and even cited the received final warning as an evidence for a breach of international law.130 The Yugoslavian government protested repeatedly against a continued threat of the use of force by NATO and its envisaged military action against the state.131
In addition to Yugoslavian statements as a threatened state, Ukraine and Belarus also repeatedly condemned the threat to use force in order to solve the crisis by forcible action implemented by
Michael Byers, Simon Chesterman, ‘Changing the Rules about Rules? Unilateral Humanitarian Intervention
and the Future of International Law’, in Jeff L. Holzgrefe, Robert O. Keohane (eds), Humanitarian Intervention:
Ethic, Legal and Political Dilemmas, CUP 2003, 177-203, 181-187;
Dino Kritsiotis, ‚Close Encounters of a Soverign Kind‘, EJIL 20/2 (2009), 299-330, 301
123 Nikolas Stürchler, The Threat of Force in International Law, CUP 2007, 156.
124 James P. Rubin, US Department of State Press Briefing 8 (16 March 1999), quoted from Stürchler, ‘The Threat of Force in International Law’, 156.
125 Ibid.
126 Philip Kunig, Humanitäre Intervention, Jahrbuch Dritte Welt 1994, 54.
127 Thomas M. Franck, Nigel S. Rodley, ‘After Bangladesh: The Law of Humanitarian Intervention by Military Force‘, AJIL 67 (1973), 275-305, 300-302.
128 Dörr, Randelzhofer, in: Simma et al. (eds), The Charter of the United Nations: A Commentary, Vol. I, 3rd ed.,
OUP 2012, 223, para. 54.
129 Corfu Channel (United Kingdom v. Albania), Merits, ICJ Reports 1949, p. 35. 130 UN Yearbook 1999, 339; UN Doc. S/1999/118 (4 February 1999).
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NATO and criticized it as a breach of international law in general and the prohibition on the threat and use of force in particular.132
Because the situation in Kosovo led to an armed conflict through the realization of the previously exhibited threat, major focus in international discussions was and is laid on the actual use of force and a violation of its prohibition.133 The NATO airstrikes were, inter alia, condemned as a breach of international law in a Security Council meeting by Russia, China, India and Namibia.134
Of course, NATO members and allies did not view the threat to use force as a violation of international law. Even non-aligned states to a large extent did neither condemn nor support this threat, and in the end the use of force, in the light of the apparent humanitarian catastrophe.135 Yet, it is to be observed that there were severe diplomatic reactions to the threat to use force in the first place before actual force was used which pointed out its illegality under international law.
7.2. USA and UK – Iraq (2003)
In the aftermath of various discussions with the UN as a forum and several UN Security Council resolutions (none of which authorized the use of force against Iraq), the United States issued a threat par excellence, namely an ultimatum against the Iraqi government. President George W.
Bush stated in an address to the Nation that “Saddam Hussein and his sons must leave Iraq
within 48 hours”136 and threatened that non-compliance will “result in military conflict, commenced at a time of our choosing.”137 Previous to that ultimatum, former US Secretary of State Colin Powell explicitly mentioned in the UN Security Council that the “threat of force must remain.”138
132 UN Yearbook 1999, 241 and 339; UN Doc. S/1999/208 (26 February 1999); UN Doc. S/1999/194 (26
February 1999); UN Doc. S/1999/306 (20 March 1999).
133 Nikolas Stürchler, The Threat of Force in International Law, CUP 2007, 154.
134 Thomas M. Franck, Recourse to Force: State Action Against Threats and Armed Attacks, CUP 2002,
167-168.
135 UN Doc. S/1999/429 (14 April 1999); UN Doc. S/1999/490 (26 April 1999); UN Doc. S/1999/451 (21 April
1999);
Nikolas Stürchler, The Threat of Force in International Law, CUP 2007, 155.
136 George W. Bush, ‘Adress to the Nation on Iraq’ (17 March 2003),
https://www.govinfo.gov/content/pkg/PPP-2003-book1/pdf/PPP-2003-book1-doc-pg277.pdf accessed 23 June 2020.
137 Ibid.
26 7.2.1. Legality under International Law
A possible argument of anticipatory self-defense with the requirement of an imminent attack must be answered in the negative. Even the US administration at the time emphasized its position, that the US had the right to preventively go to war without signs of an impending and therefore imminent armed attack.139 However, there is no legal basis for this perception, since the use and threat of force prohibition is to be interpreted narrowly and its exceptions follow the strict criteria laid out in the UN Charter. A threat to use force can only be legal if the envisaged force is a response to an aggression by another actor or authorized by the UN Security Council.140
Some view the rejection of the UN Security Council to authorize the use of force against Iraq even as a rejection of the proceeding threat.141
7.2.2. International reactions to this threat
After putting pressure on the Iraqi government through UN Security Council resolutions the consensus on a widespread international level was to keep the authority regarding the threat and use of force in the hands of the United Nations. A bypassing and exceeding of the UN Security Council met disagreement with the shift in US policy regarding Iraq to unilaterally threaten to use force without authorization by the Council.142 In general, the gathering threat lacked support in the relevant time in early 2003 by a vast majority of states.143
The League of Arab States verbalized that it viewed the threat to use force by the United States as a violation of Article 2 (4) of the UN Charter.144
8. Recent threats communicated via new media
In contrast to the previously illustrated threats of force, the main difference in the recent threats that raised the attention to analyze them in this paper is the form of communicating them in the
139 Sean D Murphy, ‘Efforts to Address Iraqi Compliance‘ (1999), AJIL 96, 956-962, 958.
140 Francios Dubuisson, Anne Lagerwall, ‚A Threat of the Use of Force and Ultimata‘, in Marc Weller (ed), The
Handbook of the Use of Force in International Law, OUP 2015, 910-924, 924.
141 Nigel D White, ‘Self-Defence, Security Council Authority and Iraq‘ in Richard Burchill et al (eds),
International Conflict and Security Law: Essays in Memory of Hilaire McCoubrey, CUP 2005, 261.
142 Nikolas Stürchler, The Threat of Force in International Law, CUP 2007, 168. 143 Ibid.
