The Substantial Relevance of the Threats of Force by an Incoming Head of Government When Subsequently Acknowledged and Adopted: A Brief Response to Faix and Svicevic

[Jens Iverson is an Assistant Professor at Leiden University and a Visiting Professor/Lecturer at Vermont Law School, Santa Clara University School of Law, and University of California College of the Law, San Francisco]

A previous post on Opinio Juris, Threats of Force and Attribution: The Case of Incoming Heads of State, casts doubt on the legal seriousness of Trump’s statements before returning to the US Presidency.  The apparent sources of the doubt are twofold: first, whether the threats are “credible,” and second, “whether statements made by an incoming president, although not yet in office but who will with relative certainty assume such office, can at all be attributable to a State.”  Here, I would like to respectfully push back regarding both potential areas of doubt.  I am concerned that a reader of their post risks taking the conduct in question too lightly, and that their arguments could be used to, effectively, let Trump off the hook.

At issue are the repeated statements by the current U.S. President after his election but before his swearing in, regarding the use of force against Panama and Denmark.  The first reason why Faix and Svicevic appear to harbor some doubt about the wrongfulness of the threat of the use of force has to do with the “credibility” of the threat.  There is no apparent question that the statements in question (excluding economic coercion) regard military force, and that actually using force would be unlawful.  Instead, the emphasis is on the “central” question of credibility.  The thrust of their argument is: this is Trump.  No one takes him seriously.  If it were Obama threatening, it would be more serious, but since it is Trump it is not so serious.  Denmark and Panama did not take it seriously, so perhaps we should not either.  Somewhat confusingly, they note that Panama did take his statements seriously when they were repeated in his inauguration speech, seriously enough to refer the matter to the UN Security Council, but say it is “interesting” that Panama made no mention of Trump’s comments prior to his inauguration.  It is an error to assume that the governments in question did not take the comments as real threats because those governments did not, for example, call for Article 4 consultations under the NATO treaty framework in the case of Denmark or wait until the threats were repeated to bring them to the attention of the UN Secretary General and the UN Security Council in the case of Panama.  There are political reasons to (initially) publicly downplay real threats, just as there are political reasons to break the law for those who put power above the law. In addition, the governments and people of Greenland and Panama appear to be taking it seriously.  Given the weight international law puts on self-determination, the general alarm felt by those threatened by the illegal use of force should not be taken lightly.

A defense counsel, defending Trump’s threatening statements as a whole, is provided a very slender reed on which to stand by Faix and Svicevic’s analysis.  His only defence is his own purported lack of credibility.  Trump is not Obama.  They assert: “Had these comments been made by former President Barack Obama as the incoming President, the situation would likely be viewed in a far more serious light. Consequently, the threat of force would be perceived with far higher credibly.”  The reasoning here is somewhat unclear.  Had Trump been a serious person, a person who had not blustered in the past about North Korea and Iran, a person who was not a felon, a person who was not considered by many to be a notorious liar, then such comments, apparently, would be… worse?  Is that really the case?  Had Obama made such comments, wouldn’t they be much more likely to be a joke?  (Obama had such notoriously good comic timing, some have hypothesized his roasting of Trump was the cause for Trump to run for president in the first place.)  It is possible to joke about buying sovereign territory.  But there is simply no sign that Trump intends his threats to be taken humorously.  He is on track to be the oldest U.S. president in history, desperate to make his mark on history by marking up the map, from “Mount McKinley” to the Gulf of America.  Ridiculousness has not proven to be a bar to action.  He reportedly sees himself as a “disrupter,” and has surrounded himself by acolytes of similar ilk.  His notorious disrespect for the law and disreputable character in general are an odd basis to not take his threats (to break the most fundamental prohibition in international law) seriously.  

Perhaps Trump’s irrationality, rather than low moral character is the defense.  Stürchler, in his analysis of The Threat of Force in International Law, discussing the credibility of threats in the context of potentially making open threats to extract concessions, describes state practice as follows:

The first question is whether the threat brandished, under the circumstances of the time, was credible and thus sufficiently serious and dangerous to raise the shared risk of armed conflict. A threat is credible when it is rational to carry it out, or at least if it appears plausible that it is carried out when facing an ‘irrational’ threatener (although the appearance of irrationality is, in a sense, again rational for the uncertainty it instils). Military preponderance and capability provide the basis for a credible threat, and so does the increase of the political stakes by openly and consistently declaring a readiness to use force. Idi Amin’s moody declarations were not the mark of a well-planned course of action, and Kenya’s grip on Uganda’s oil supply proved a highly effective countermeasure. (p. 170)

So is Trump akin to Idi Amin with respect to threats being not credible?  Not really.  When someone is the commander in chief of the most powerful military in history, each subsequent seemingly irrational demand, from the harmless attempt to rename international waters to the open call for ethnic cleansing and the seizure of the Gaza Strip, compounds rather than reduces the wrongfulness of each individual threat of the use of force.

This brings us to the second reason Faix and Svicevic (as I read it) depreciate Trump’s earlier comments.  Article 11 of ARSIWA is raised only to be dismissed.  Article 11 states in full: “Conduct which is not attributable to a State under the preceding articles shall nevertheless be considered an act of that State under international law if and to the extent that the State acknowledges and adopts the conduct in question as its own.”  Faix and Svicevic assert: “The United States therefore never acknowledged or adopted President Trump’s position. The statements by President Trump before his inauguration therefore cannot be seen to represent the United States in any way, at least not under the rules of attribution.”  

This is potentially misleading.  At one level, private citizen Trump’s utterances did not violate Article 2.4 of the U.N. Charter when they were uttered.  But that is far from a complete picture.  Can “statements made by an incoming president, although not yet in office but who will with relative certainty assume such office […] be attributable to a State?”  Yes, of course, if they are repeated, acknowledged, and adopted by the sitting president.  The central legal point is not abstract.  The President of the United States has acknowledged and adopted his own position, as it existed before he was sworn in.  He even did so in his inaugural address.  The whole body of threats should now be taken into account in toto, without needless blinders.  A state can acknowledge and adopt conduct of an entity that is not and has never been a state actor and thus convert that conduct to conduct attributable to the state.  This case is much stronger than that situation.  Had Trump died before taking office and in President Vance’s inauguration speech Vance said “I acknowledge and adopt the threats Trump made to Panama and Denmark” without anything more, it would be wrongful.  The reality, Trump’s ubroken affirmation of his own threats, is even more threatening and thus worse.  Again, it is true that as a private citizen, the prohibition against the threat of force was not addressed to him.  But he was not saying he, as a private citizen, would use force.  He was saying the US may very well use armed force when he was commander in chief of the military, a role he would take inevitably and shortly take on, barring an act of god.  It was incumbent upon him to renounce his threats upon taking power.  He did the opposite.  It does not make his current threats, unquestionably attributable to the United States, any better that he also uttered them before he was sworn in.  It makes them worse.  If a person had been publicly issuing threats for years and finally has the means to make good on those threats, those new threats are made more credible, more serious, and more obviously unlawful by the old threats.  At the very least, such previous utterances serve as evidence of the seriousness of the literal particular threats as well as the more general threat to the underpinnings of international law.  

While not determinative, it is also perhaps worth noting that the private and public roles of Trump have intermingled in the past.  While de jure an incoming US President has no formal power, de facto citizen Trump was involved in US international diplomacy, for example with respect to Israel and Gaza.  He was impeached for mingling private political ends with public funds abroad, and then again for disregarding the fundamental operation of the rule of law and the limits on his own power.  Trump never publicly acknowledged his status as a private citizen. He was in touch with foreign leaders from the moment he was elected, and possibly before.  He was not simply an ordinary private citizen, or even an ordinary incumbent president.  His threats were a threat to the prohibition against the use of force before and after swearing in.  In short, Trump’s utterances should not be treated just like any other private citizen until the moment he is sworn in, regardless of his affirmation of them afterwards.  He did not become a new person as he regained an old role.  The law does not require willful blindness on this point.

There is very little evidence that the current US president believes in the sanctity of law, domestic or international.  I have no problem with any valid area of legal inquiry as long as no one is accidentally misled.  When threats to the foundations of international law are acknowledged and adopted by the head of government in power, both the original and repeated threats should not be depreciated.  They should be unequivocally condemned.  Such condemnation should be part of the international community rededicating itself towards safeguarding the prohibition on the use of force to acquire territory, a prohibition that has saved tens of millions of lives since World War II.  This prohibition is at risk, and should be vociferously defended.