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Roscini, Marco
Languages: English
Types: Article
Subjects: UOW8
The present article analyses threats of armed force by states against other states. After determining what conduct amounts to a ‘threat of force’, the current status of its prohibition is investigated. In particular, this article contends that the prohibition of the threat of force contained in Article 2(4) of the UN Charter reflects customary international law. The fact that only a few states have supported the legality of threats for certain law enforcement purposes prevents the prohibition of any threats of force from being qualified as jus cogens. This status should be limited to the prohibition of threats of aggression, which constitutes the common denominator of the practice and opinio juris of all states.\ud \ud The consequences of threats of force under the law of treaties, the law of state responsibility and international criminal law are then discussed, in particular treaties, the conclusion of which has been obtained by the threat of force in violation of the UN Charter are void ab initio. Article 41 of the ILC Articles on State Responsibility could also entail a duty of non-recognition of situations procured by the threat of aggression. On the other hand, threats of aggression (let alone threats of less serious forms of the use of force) cannot be qualified as international crimes entailing individual responsibility.\ud \ud As to remedies at the disposal of the victim state, armed responses to threats of force would be lawful only within the limits of self-defence, and only if the threatened armed attack is imminent enough to meet the Caroline requirements. On the contrary, coercive responses to non-imminent armed attacks are still prohibited under contemporary international law.\ud
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    • 1. Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment of 25 September 1997, ICJ Reports (1997) para. 79.
    • 2. Report of the International Law Commission on the work of its fifty-third session (23 April-1 June and 2 July-10 August 2001), UN Doc. A/56/10, GAOR, fifty-sixth session, Suppl. no. 10, p. 143.
    • 3. ILC Yearbook (1950-I) p. 59 (remarks by Liang). In some situations, threats of force can be part of a plan or preparation to wage war: see, e.g., the 1940-1941 Japanese threats against French Indo-China, carried out in order to secure a 'jumping-off place' for attacks against the Philippines, Malaya and the Netherlands East Indies (International Military Tribunal for the Far East, Judgment, 4-12 November 1948, reprinted in B.V.A. Röling and C.F. Rüter, eds., The Tokyo Judgment, Vol. I (Amsterdam, University Press Amsterdam 1977) (hereinafter 'Tokyo Judgment') pp. 381, 440).
    • 4. As noted by the UN Secretary-General, 'the threat of force differs from the employment of force in the same way as the threat to kill differs from murder. The person who utters the threat may not intend to carry it out, and the threat is then only a form of intimidation and “blackmail”' (Report of the Secretary-General on the question of defining aggression, UN Doc. A/2211 (3 October 1952), GAOR, seventh session, Annexes, Agenda item 54, at p. 68.
    • 5. ILC Yearbook (1950-I) p. 58 (remarks by Yepes).
    • 6. See, e.g., SC Res. 581 (13 February 1986) with regard to the threats of South Africa against its neighbouring states, which were qualified by the Council as a threat to the peace. South Africa's aggressive policies against neighbouring states had already been qualified as a threat to international peace and security in SC Res. 418 (4 November 1977), although in this resolution the link between threat of force and threat to the peace was less explicit.
    • 7. H. McCoubrey and N.D. White, International Law and Armed Conflict (Aldershot, Dartmouth Publishing 1992) p. 57.
    • 8. SC Res. 186 (4 March 1964).
    • 9. SC Res. 353 (20 July 1974).
    • 10. R. Sadurska, 'Threats of Force', 82 AJIL (1988) p. 246.
    • 11. P. Karsten, P.D. Howell and A.F. Allen, Military Threats: A Systematic Historical Analysis of the Determinants of Success (Westport, Conn., Greenwood Press 1984) p. 4.
    • 12. The 1907 Hague Convention I revised the 1899 Hague Convention I on the Pacific Settlement of International Disputes.
    • 13. Obligatory arbitration is only mentioned in the declaration contained in the Final Act of the Conference.
    • 14. See E.C. Stowell, 'Convention Relative to the Opening of Hostilities', 2 AJIL (1908) pp. 50-57. See also infra n. 44. There are currently 34 States Parties to this Convention, while 17 states have signed but not ratified it. The Nuremberg and Tokyo International Military Tribunals included the 1907 Hague Conventions I and III among the treaties violated by Germany and Japan (Nuremberg International Military Tribunal, Judgment, 1 October 1946, reprinted in 41 AJIL
    • 18. J. Stein and L. Urdang, eds., The Random House Dictionary of the English Language (New York, Random House 1967) p. 1478.
    • 19. E.A. Martin and J. Law, eds., A Dictionary of Law (Oxford, OUP 2006) p. 535.
    • 20. Legality of the threat and use of nuclear weapons (hereinafter 'Nuclear Weapons'), written statement of the Government of the French Republic, 20 June 1995, at p. 25. The ICJ written and oral proceedings are available on line at the Court's website, .
    • 21. UN Doc. A/AC.125/L.23, in Report of the 1966 Special Committee on Principles of International Law concerning Friendly Relations and Co-operation among States, 27 June 1966, GAOR, twenty-first session, Annexes, Vol. III, Agenda item 87, pp. 30-31.
    • 22. ILC Yearbook (1989-II, pt. 2) p. 68.
    • 23. Brownlie, supra n. 15, at p. 364.
    • 24. Sadurska, supra n. 10, at p. 242.
    • 25. This is also suggested by Randelzhofer where he writes that '[o]nly a threat directed towards a specific reaction on the part of the target State is unlawful under the terms of Art. 2(4)'
    • 33. Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports (1996) para. 47. The same view was taken by some members of the ILC during the works for the Draft Code of Offences Against the Peace and Security of Mankind (ILC Yearbook (1951-I) p. 236).
    • 34. The French government pointed out that defensive military alliances are lawful even though they imply a deterrent threat (Nuclear Weapons, written statement of the Government of the French Republic, 20 June 1995, p. 25).
    • 35. Karsten, Howell and Allen, supra n. 11, at p. 117. However, the threats failed and the UK had to use force to regain control of the archipelago.
    • 36. Of course, threats can also be lawfully made directly by the Security Council when exercising its powers under Chapter VII of the Charter: to cite well-known examples, in Res. 1154 (2 March 1998) and 1441 (8 November 2002), the Council threatened Yugoslavia and Iraq with 'serious' and 'severest' consequences should they not comply with previous resolutions.
    • 37. SC Res. 940 (31 July 1994).
    • 38. J. Currie, 'NATO's Humanitarian Intervention in Kosovo: Making or Breaking International Law?', 36 Can. YIL (1998) p. 320.
    • 39. It is well-known that this opinion was argued by the UK Attorney General, Lord Goldsmith (54 ICLQ (2005) pp. 767-778).
    • 40. Sadurska, supra n. 10, at p. 242, who adds that '[o]nly communications that arouse the anticipation of severe deprivation or destruction of values in the target audience and, hence, trigger a reaction of stress that leads to accommodating or adaptive behaviour as the only reasonable alternative can be regarded as a threat' (ibid., at p. 244). See also San Marino's statement according
    • 57. Keesing's Contemporary Archives (1987) p. 35129.
    • 58. Keesing's Contemporary Archives (1995) pp. 40373, 40513.
    • 59. ILC Yearbook (1989-I) p. 291.
    • 60. Corfu Channel, supra n. 49, at p. 35.
    • 61. ICJ Pleadings (1991-IV) pp. 117, 120.
    • 62. Nicaragua, Merits, Judgment of 27 June 1986, ICJ Reports (1986) para. 118.
    • 63. Declaration by I. Brownlie, counsel for Libya (Lockerbie, Preliminary Objections, Verbatim Record, CR 97/21, 17 October 1997, p. 51).
    • 77. Ronzitti, supra n. 46, at p. 40.
    • 78. Sadurska, supra n. 10, at p. 261.
    • 79. See the statements of Argentina, Djibouti, Kuwait, New Zealand, Pakistan, Spain, UK, US (S/PV.3438, 15 October 1994, pp. 4-5, 8-11, 13).
    • 80. Nicaragua, Merits, supra n. 62, para. 92. See also Nicaragua's Memorial (Merits), ICJ Pleadings (1991-IV) pp. 119-120.
    • 81. S/PV.5551, 14 October 2006, p. 8.
    • 82. In 1998, Iran and Libya qualified the threats as a violation of the Charter (White and Cryer, supra n. 27, at p. 262). See also the declarations by China (S/PV.3831, 12 November 1997, p. 15, and S/PV.3858, 2 March 1998, p. 14) and the Russian Federation (S/PV.3831, 12 November 1997, p. 13). With regard to Operation Iraqi Freedom, see the declarations by the representatives of Lebanon (S/PV.4717, 11 March 2003, p. 33), Malaysia (S/PV.4625 (Resumption 1), 16 October 2002, p. 6), Nepal (S/PV.4625 (Resumption 2), 17 October 2002, p. 26), Nigeria (S/PV.4625 (Resumption 1), 16 October 2002, p. 20), Yemen (S/PV.4709, 18 February 2003, p. 29). The Summit of the Non-Aligned Movement held in Kuala Lumpur (24-25 February 2003) also condemned the threat of military action, as well as the Arab Summit held at Sharm el-Sheikh on 1 March 2003, the Annual Coordination Meeting of Foreign Ministers of Member States of the Organization of the Islamic Conference (New York, 17 September 2002) and the Beirut Summit of the League of Arab States of 27-28 March 2002.
    • 83. S/PV.3937, 24 October 1998, p. 14. As it has been observed, 'although the sharp division between the members of the Security Council prevented that organ from taking any position on the legality of the NATO military threat, the strong Chinese and Russian opposition greatly reduced the relevance of the NATO initiative as a case of departure from the prohibition of the threat of force' (Gazzini, supra n. 44, at p. 430).
    • 84. Russia called for the immediate rescission of the NATO Activation Order (S/PV.3937, 24 October 1998, p. 12).
    • 85. B. Simma, 'NATO, the UN and the Use of Force: Legal Aspects', 10 EJIL (1999) p. 9.
    • 160. Ronzitti, supra n. 46, at p. 75.
    • 161. Emphasis added.
    • 162. Nicaragua, Merits, ICJ Pleadings (1991-IV) p. 115. However, it is not at all clear from the Memorial whether it is believed that only the prohibition of the use of force reflects jus cogens or the whole of Art. 2(4).
    • 163. Nuclear Weapons, Memorial of the Government of Nauru, 15 June 1995, pp. 3-4.
    • 164. Nuclear Weapons, Verbatim Record, CR/95/26, 6 November 1995, p. 22.
    • 165. Nuclear Weapons, Verbatim Record, CR/95/25, 3 November 1995, p. 19.
    • 166. Nuclear Weapons, written statement of the Government of Malaysia, 19 June 1995, p. 3.
    • 167. Nuclear Weapons, Verbatim Record, CR/95/29, 10 November 1995, p. 30.
    • 222. See, e.g., Arts. 384-385 of the Armenian Criminal Code, Art. 409 of the Bulgarian Criminal Code, Section 80 of the German Criminal Code, Section 72 of the Latvian Criminal Code, Art. 139 of Moldova's Criminal Code, Arts. 353-354 of the Russian Federation's Criminal Code, Arts. 395-396 of Tajikistan's Criminal Code, Art. 437 of Ukraine's Criminal Code, Art. 151 of Uzbekistan's Criminal Code. Texts at .
    • 223. The use or threat of force must be aimed at changing the Constitution of a foreign state or to break up its territorial integrity.
    • 224. The Tribunal has thus jurisdiction over 'the abuse of position and the pursuit of policies that may lead to the threat of war or the use of the armed forces of Iraq against an Arab country' (Art. 14(c)). Even more clearly, Law No. 7 criminalizes 'using the country's armed forces against the brotherly Arab countries threatening to use such forces' (quoted in Cassese, supra n. 53, at p. 448). See C. Kress, 'The Iraqi Special Tribunal and the Crime of Aggression', 2 Journal of International Criminal Justice (2004) pp. 347-352.
    • 225. Cassese, supra n. 213, at p. 114. A proposal on the definition of aggression submitted by Bosnia and Herzegovina, New Zealand and Romania at the Rome Conference on the ICC also suggested that 'planning for aggression that is never carried out would not be enough to found individual criminal responsibility for this crime' (Preparatory Commission for the International Criminal Court, PCNICC/2001/WGCA/DP.2, 27 August 2001, p. 3).
    • 226. Amendments can be considered only after seven years after the entry into force of the Statute and their adoption requires a two third majority of states parties (Art. 121).
    • 227. Informal inter-sessional meeting of the Special Working Group on the Crime of Aggres5. 6.
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