Credible Threat Is An Unlawful Threat

Every week, the U.S. seems to invite a new UN Charter Article 2(4) controversy. This weekend, U.S. Special Forces undertook raids in Libya and Somalia that – at least in the former case – might well have run afoul of Article 2(4)’s prohibition on the use of force. Last week at this time, legal scholars were still debating whether a strike on Syria could have been justified under the doctrine of humanitarian intervention or whether it, too, would have constituted an unlawful use of force. And, of course, we’ve been discussing whether U.S. drone strikes in Pakistan – if not undertaken with the consent of the Pakistani government – violate Article 2(4)’s prohibition for awhile now. In short, there is no seeming end to the legal debate the U.S. is willing to stir over the breadth and scope of UN Charter Article 2(4).

But one particular threat of force that has not received due attention is the U.S.’s threat to use force on Iran should the Islamic Republic cross ‘red lines’ that the U.S. itself has set on its nuclear program. In the White House’s terminology, this is presenting to Iran a ‘credible threat’ of force so as to procure Iran’s compliance with U.S. demands during negotiations and keep Iran’s nuclear program within defined limits. If Iran should bypass these limits and ignore Washington’s ‘red lines’, then the implication is that the U.S. will not hesitate to engage in military strikes on Iran’s nuclear facilities.

The question is, though, whether a ‘credible’ threat of force is also an unlawful threat of force. UN Charter Article 2(4) states, quite clearly, that “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.’ That is, Article 2(4) is not just a blanket prohibition on the use of force (with one exception provided in UN Charter Article 51), but also a prohibition on the threat to use force as well.

While there has been little adjudication on what constitutes an unlawful threat to use force, and no instances in which a State has been held to account for such a threat, we do have a pretty clear idea on the broad contours of the Article 2(4) prohibition – thanks to an Advisory Opinion rendered by the International Court of Justice. In that opinion, the Court set out a rule of construction for Article 2(4)’s prohibition on the threat and use of force, stating in relevant part:

“Whether a signaled intention to use force if certain events occur is or is not a ‘threat’ within Article 2(4) of the Charter depends upon various factors. If the envisaged use of force is itself unlawful, the stated readiness to use it would be a threat prohibited under Article 2(4). Thus it would be illegal to threaten force to secure territory from another State, or to cause it to follow or not follow certain political or economic paths. The notions of ‘threat’ and ‘use’ of force under Article 2(4) of the Charter stand together in the sense that if the use of force itself in a given case is illegal, for whatever reason, the threat to use such force will likewise be illegal. In short, if it is to be lawful, the declared readiness of a State to use force must be a use of force that is in conformity with the Charter. For the rest, no State, whether or not it defended the policy of deterrence, suggested to the Court that it would be lawful to threaten to use force if the use of force contemplated would be illegal.”

In other words, a threat is illegal if the use of force that it contemplates would likewise be illegal. Thus, if the U.S. maintains a ‘credible threat’ of force towards Iran should the Islamic Republic cross the ‘red lines’ the U.S. has set for it, then the force that is threatened must be a lawful use of force. Unfortunately, for the U.S., I don’t think there is much doubt that a unilateral U.S. strike on Iran’s nuclear facilities would be contrary to both the letter and spirit of Article 2(4), and would thus constitute an unlawful use of force. If that is true, then the U.S.’s threat to use force (which was repeated by President Obama during his press conference with Israeli Prime Minister Benjamin Netanyahu last week) would be likewise unlawful. The bluster that we hear from both the U.S. and Israel would be a stark violation of Article 2(4)’s prohibition on a threat to use force, and Iran could pursue remedies as it sees fit.

UN Charter Article 2(4) is often viewed as a foundational principle of the international order the Charter’s drafters hoped to construct. The fact that the U.S. exhibits such callous concern for upholding the principle tells us a great deal about the nature of U.S. action overseas, intended not to buttress international law (as was claimed in the aftermath of the Syria CW attacks) but rather to undermine it at every turn. We see that as clearly in the case of Iran, where the U.S. threatens force and renders that threat actionable at a moment’s notice, as in the cases of Libya and Somalia today.

Update: During his Sunday morning appearance on ABC’s This Week with George Stephanopoulos, Iran Foreign Minister Javad Zarif made a side comment in which he noted that he had been arguing against the possession of nuclear weapons for close to two decades, including oral argument before the International Court of Justice. I picked up on it and looked for his name in the Court’s opinion, and I found it. Because the Court was rendering an advisory opinion, foreign dignitaries were permitted time to present argument on why the Court should rule one way or another. Javad Zarif represented Iran before the Court and argued in favor of the proposition that the mere possession of nuclear weapons constituted an unlawful threat to use force. His argument did not win the day, but it does show consistency in regards to Iran’s insistence that nuclear disarmament take place — not just non-proliferation.

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