Law’s Labours Lost? Comment on Dino Kritsiotis, Close Encounters of a Sovereign Kind

Nikolas Stürchler is a Diplomatic Officer at the Swiss Federal Department of Foreign Affairs, Directorate of International Law, and author of “The Threat of Force in International Law” (Cambridge University Press 2007). This text reflects the personal views of the author. It does not in any manner implicate the views of the Swiss Federal Department of Foreign Affairs.

The UN Charter is clear in demanding that all member states of the organization must not rely on threats of force in their international relations. Nonetheless, and even though there never has been a shortage of states issuing military threats in past or present, few have paid more than passing attention to the subject.  The 1996 advisory opinion of the International Court of Justice on the legality of the threat or use of nuclear weapons, for example, is agonizingly ambiguous, reflecting a clear uneasiness on the part of the Court to say anything definitive about the thorny issue of nuclear deterrence. And the opinion is, with regard to some important aspects, outright irreconcilable with earlier decisions of the same Court.

This situation has changed recently. Perhaps due to the all too visible role of threats foreshadowing military interventions in Kosovo in 1999 and in Iraq in 2003, there now may be a greater willingness on the part of international institutions and international lawyers to examine the legality of reported threats. In September 2007, an arbitration tribunal constituted under Annex VII to the UN Convention on the Law of the Sea ruled that in a dispute between Suriname and Guyana, the conduct of gunboats from the Suriname Navy against an oil rig and drill ship amounted to a threat of force in violation of the UN Charter. In its report of September 2009, the Independent International Fact-Finding Mission on the Conflict in Georgia took a closer look at threats of force in the run-up to the war between Georgia and Russia in August 2008. The report concluded that both major players, Russia and Georgia, had issued unlawful threats of force prior to the outbreak of hostilities. A series of academic publications, too, have entered the scene, easily doubling the available literature on threats of force prior to 2000.

Against this background, Professor Kritsiotis’ article (EJIL Vol. 20, No. 2, pp. 299-330) can only be welcomed as a most recent addition.  In examining article 2(4), Professor Kritsiotis’ central argument seems to be that there is a dissonance between what the UN Charter demands of states to do (“abstain from military threats!”) and a general, if reluctant, appreciation of threats of force by the international community in certain circumstances (“actually, threats are not always bad”).

Quite naturally, the demand of the UN Charter has been upheld by the International Court of Justice in 1996, with which it explained that – like the use of force – threats of force are unlawful in principle, and justification can only be obtained on an exceptional basis and within the strict confines of UN Charter law.

Conversely, appreciation for the uses of threats is voiced outside the courtroom, often in the context of an unresolved international crisis. Referring to past military threats against Iraq and the difficult attempts in gaining compliance from Saddam Hussein, even UN Secretary-General Kofi Annan may be cited as at one time, in 1998, endorsing the use of military threats and at another time, in 2003, condemning it.

Law and reality, Professor Kritsiotis concludes from this, are out of sync. Where the UN assumes black and white, the real world is all in shades of grey. Hence there is a problem in applying the Charter’s ban on threats to international politics of the day. As a remedy, Professor Kritsiotis seems to propose a case-by-case approach, along the lines of the ICJ’s Corfu Channel judgment of 1949, which holds the promise of a more flexible, less doctrinal way in giving effect to the UN Charter in practical cases.

I agree with much of this analysis, but believe that it needs to be complemented. Two points stand out. First, while the dissonance between law and reality is there, it can be readily explained, and on that basis, is not as dramatic or unique as it may first seem. Second, a dynamic interpretation of the relevant Charter provisions is available to address what dissonance there is.

With regard to the first point, it is important to take a step back and take on a historic perspective. The UN Charter’s underlying assumption is that in any military conflict between States, a useful distinction can be made between aggressor and victim. It is the aggressor state that threatens and uses force against the victim state, which, never having provoked the act of aggression, is entitled to self-defensive action. This aggressor-victim template was conceived with arms build-up and Blitzkrieg experiences of World War II in mind, and as such fit hand-to-glove with the realities of 1945.

What actually creates today’s dissonance between the UN Charter’s regime of force and contemporary military conflicts is that in most cases since 1945, reality has been a different one. It is far more frequent for states to be embroiled in protracted conflicts, where it is hard to blame exclusively one side for the commencement of hostilities. Accordingly, it is difficult to apply the UN Charter’s aggressor-victim template, be it for the threat of force or for the use of force. For threats of force, it may be added, the problem is more acute because parties to a conflict regularly threaten each other simultaneously. There is often little point in saying that state A threatened state B first, and thus the question of who was acting in self-defence is practically unanswerable. This general dissonance is often the primary underlying cause for difficulties in spelling out UN law to military conflicts of today.

But Professor Kritsiotis rather relies on another, more special case. This is the situation where it can be argued that military threats are arguably employed in the service of a common good, say, to manage an international crisis, to address a humanitarian catastrophe or even to avert a war. These are the cases of “benign threats” implicitly referred to by former UN Secretary-General Kofi Annan in 1998.

Here, what explains much of the difficulty in applying the UN Charter in a strict manner is a moral dilemma. In a situation where military pressure is deemed essential to bring a notorious norm breaker to compliance with demands of the UN Security Council, states are reluctant to condemn a threat of force issued, even if it is not authorized, whenever it holds the promise of securing compliance. The dilemma is that bystander states, if they condemned the use of military threats, at the same time would end up helping the target state, which is often undesirable because non-compliance in all likelihood would trigger military intervention. Hence the ambivalence towards threats of force in such situations. Here, too, the dissonance is not strictly unique to military threats. The debate on the lawfulness of the so-called “humanitarian intervention”, for example, evokes similar arguments with regard to the use of force.

The question then is whether international law can provide meaningful answers to what are in essence changed circumstances – the unforeseen change in the way conflicts are borne out, and the unforeseen difficulties of the UN Security Council to decide on collective action against notorious norm breakers.

The answer is Yes. Simply, what constitutes a threat of force according to the UN Charter is a matter of treaty interpretation. There is no reason why, contrary to what may be concluded from Professor Kritsiotis’ article, an attempt at interpretation must be unsuccessful. In fact, an enquiry reveals that while there is little case law, state practice is rather rich on examples where the international community has reacted in response to threats of force and that, on that basis, what amounts to a military threat and under what conditions it may lawful be put to use is not at all that elusive.

Quite to the contrary. States take a comprehensive view of article 2(4) of the UN Charter, considering any reliance on military force to influence the outcome of an international dispute as essentially incompatible with the UN Charter. Threats of force among protracted conflict parties are condemned with particular consistency, while there is a certain reluctant acknowledgement that threats may be legitimate in the context of a genuine effort at crisis management (the case of “benign threats”).

So in sum, we should not worry too much about the timeliness of the UN Charter’s demands. They are, if read in the light of post-Charter practice, quite adequate. A future judgment on a new case is not doomed to end up being either unjust or anachronistic. UN law’s labours, so to speak, are not all that lost.