Nicaragua vs. US (Digest)
Public international law case...
Case: Nicaragua vs United States Case: Case Concerning the Military and Paramilitary Activities In and Against Nicaragua (Nicaragua vs United States) (Merits:focusing on matters relating to the use of force and self-defense) Year of Decision: 1986 Court: ICJ Overview: The case involved military and paramilitary activities conducted by the US against Nicaragua from 1981 to 1984. Nicaragua asked the Court to find that these activities violated international law. Facts of the Case: In July 1979 the Government of President Somoza collapsed following an armed opposition led by the Frente Sandinista de Liberacibn Nacional (FSLN) . The new government – installed by FSLN – began to encounter armed opposition from supporters of the formerSomoza Government and exmembers of the National Guard. The US – initially supportive of the new government – changed its attitude when, according to the US, it found that Nicaragua was providing logistical support and weapons to guerrillas in El Salvador. In April 1981 it terminated US aid to Nicaragua and in September 1981, according to Nicaragua, the US “decided to plan and undertake activities directed against Nicaragua”. The armed opposition to the new Government was conducted mainly by (1) Fuerza Democratica Nicaragüense (FDN), which operated along the border with Honduras, and (2)Alianza Revolucionaria Democratica (ARDE), which operated along the border with Costa Rica, (see map of the region). Initial support to these groups fighting against the Nicaraguan Government (called “contras”) was covert. Later, the US officially acknowledged its support (for example: In 1983 budgetary legislation enacted by the United States Congress made specific provision for funds to be used by United States intelligence agencies for supporting “directly or indirectly military or paramilitary operations in Nicaragua”). Nicaragua also alleged that the US is effectively in control of the contras, the US devised their strategy and directed their tactics and that they were paid for and directly controlled by US personal and some attacks were carried out by US military – with the aim to overthrow the Government of Nicaragua. Attacks against Nicaragua included the mining of Nicaraguan ports and attacks on ports, oil installations and a naval base. Nicaragua alleged that US aircrafts flew over Nicaraguan territory to gather intelligence, supply to the contras in the field and to intimidate the population. Questions before the Court: 1.
Did the US breach its customary international law obligation – not to intervene in the affairs of another State – when it trained, armed, equipped and financed the contra forces or
encouraged, supported and aided the military and paramilitary activities against Nicaragua? 2.
Did the US breach its customary international law obligation – not to use force against another State – when it directly attacked Nicaragua in 1983 – 1984 and when its activities in bullet point 1 above resulted in the use of force?
Can the military and paramilitary activities that the US undertook in and against Nicaragua be justified as collective self-defence?
Did the US breach its customary international law obligation – not to violate the sovereignty of another State – when it directed or authorized its aircrafts to fly over Nicaraguan territory and by acts referred to in bullet point 2 above?
Did the US breach its customary international law obligations – not to violate the sovereignty of another State, not to intervene in its affairs, not to use force against another State and not to interrupt peaceful maritime commerce – when it laid mines in the internal waters and the territorial sea of Nicaragua?
ICJ decision: US violated CIL in relation to bullet points 2, 3, 4 and 5 above. The Court rejected the US justification of collective self-defence and held that US violated the prohibition on the use of force. Relevant Findings of the Court: The US breached its customary international law obligation – not to use force against another State: (1) when it directly attacked Nicaragua in 1983 – 1984; and (2) when its activities with the contra forces resulted in the threat or use of force. See paras 187 -201. The Court held that: 1.
The prohibition on the use of force is a principle that can be found in Article 2(4) of the UN Charter and in customary international law (CIL).
Use of force can be: (1) “most grave forms of the use of force” (i.e. those that constitute an armed attack) and (2) “less grave forms” of use of force (i.e. organizing, instigating, assisting or participating in acts of civil strife and terrorist acts in another State – when the acts referred to involve a threat or use of force).
The US violated the CIL prohibition on the use of force when it laid mines in Nicaraguan ports and attacked its ports, oil installations and a naval base. If however, the force was used in collective self- defence, then the US was justified in the use of force (see below on selfdefence).
The US violated the CIL prohibition on the use of force when it assisted the contras by “organizing or encouraging the organization of irregular forces and armed bands… for
incursion into the territory of another state” and “participating in acts of civil strife…in another State” and when these acts involved the threat or use of force. 5.
The supply of funds to the contras does not violate the prohibition on the use of force.
“…while the arming and training of the contras can certainly be said to involve the threat or use of force against Nicaragua… the Court considers that the mere supply of funds to the contras, while undoubtedly an act of intervention in the internal affairs of Nicaragua… does not in itself amount to a use of force.” (para 227) What is an armed attack?
An armed attack includes (1) action by regular armed forces across an international border; and (2) “the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to (inter alia) an actual armed attack conducted by regular forces, or its substantial involvement therein” [the second point is taken from Article 3 (g) of the UNGA Resolution 3314 (XXIX) on the Definition of Aggression].
Mere frontier incidents are not considered as an armed attack – unless because of its scale and effects it would have been classified as an armed attack if it was carried out by regular forces.
Assistance to rebels in the form of provision of weapons or logistical support does not constitute an armed attack – it can be regarded as a threat or use of force, or an intervention in the interna1 or external affairs of other States (see para 195, 230).
Under Article 51 of the UN Charter and under CIL – self-defence is only available against a use of force that amounts to an armed attack (para 211).
US cannot justify the military and paramilitary activities that it undertook in and against Nicaragua as collective self-defence. 1.
CIL allows for exceptions to the prohibition on the use of force – including the right of individual or collective self-defence. US asserted that the Charter itself acknowledges the existence of this CIL right when it talks of the “inherent” right of a State (para.193).
When a State claims that it used force in collective self-defence, the Court will look into two aspects : (1) whether the circumstances required for the exercise of self-defence existed and (2) whether the steps taken by the State, which was acting in self-defence, corresponds to the requirements of international law (i.e. necessity and proportionality).
Several criteria must be met for a State to exercise the right of individual or collective selfdefence:
(1) A State must have been the victim of an armed attack;
(2) This State must declare itself as a victim of an armed attack; [NB: the assessment whether an armed attack took place nor not is done by the state who was subjected to the attack. A third State cannot exercise a right of collective self-defence based its (the third State’s) own assessment]; and (3) in the case of collective self-defence – the victim State must request for assistance (“there is no rule permitting the exercise of collective self-defence in the absence of a request by the State which regards itself as the victim of an armed attack”); (4) the State does not, under CIL, have the same obligation as under Article 51 of the UN Charter to report to the Security Council that an armed attack happened – but “the absence of a report may be one of the factors indicating whether the State in question was itself convinced that it was acting in self-defence”(see below). Para 200: At this point, the Court may consider whether in customary international law there is any requirement corresponding to that found in the treaty law of the United Nations Charter, by which the State claiming to use the right of individual or collective self-defence must report to an international body, empowered to determine the conformity with international law of the measures which the State is seeking to justify on that basis. Thus Article 51 of the United Nations Charter requires that measures taken by States in exercise of this right of self-defence must be ”immediately reported” to the Security Council.As the Court has observed above (paragraphs 178 and 188), a principle enshrined in a treaty, if reflected in customary international law, may well be so unencumbered with the conditions and modalities surrounding it in the treaty. Whatever influence the Charter may have had on customary international law in these matters, it is clear that in customary international law it is not a condition of the lawfulness of the use of force in self-defence that a procedure so closely dependent on the content of a treaty commitment and of the institutions established by it, should have been followed. On the other hand, if self-defence is advanced as a justification for measures which would otherwise be in breach both of the principle of customary international law and of that contained in the Charter, it is to be expected that the conditions of the Charter should be respected. Thus for the purpose of enquiry into the customary law position, the absence of a report may be one of the factors indicating whether the State in question was itself convinced that it was acting in self-defence (emphasis added)(See also paras 232 -236). 4. The Court looked extensively into the conduct of Nicaragua, El Salvador, Costa Rica and Honduras in determining whether an armed attack was undertaken by Nicaragua against the three countries – which in turn would necessitate self-defence (paras 230 - 236) . The Court referred to statements made by El Salvador, Costa Rica, Honduras and the US before the Security Council. None of the countries who were allegedly subject to an armed attack by Nicaragua (1) declared themselves as a victim of an armed attack or request assistance from the US in self-defence – at the time when the US was allegedly acting in collective self-defence; and (2) the US did not claim that it was acting
under Article 51 of the UN Charter and it did not report that it was so acting to the Security Council. US cannot justify its use of force as collective self-defence. 5.
The criteria with regard to necessity and proportionality, that is necessary when using force in
self-defence – was also not fulfilled (para 237).
The US breached its CIL obligation – not to intervene in the affairs of another State – when it trained, armed, equipped and financed the contra forces or encouraged, supported and aided the military and paramilitary activities against Nicaragua. 1.
The principle of non- intervention means that every State has a right to conduct its affairs without outside interference – I.e it “…forbids States or groups of States to intervene directly or indirectly in internal or external affairs of other States.” . This is a corollary of the principle of sovereign equality of States.
A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones. The element of coercion, which defines, and indeed forms the very essence of, prohibited intervention, is particularly obvious in the case of an intervention which uses force, either in the direct form of military action, or in the indirect form of support for subversive or terrorist armed activities within another State (para 205). 2.
Nicaragua stated that the activities of the US was aimed at (1) overthrowing the government
of Nicaragua and (2) substantially damaging the economy and weakening the political system so as to coerce the Government of Nicaragua to accept US political demands. The Court held: “…first, that the United States intended, by its support of the contras, to coerce the Government of Nicaragua in respect of matters in which each State is permitted, by the principle of State sovereignty, to decide freely (see paragraph 205 above) ; and secondly that the intention of the contras themselves was to overthrow the present Government of Nicaragua… The Court considers that in international law, if one State, with a view to the coercion of another State, supports and assists armed bands in that State whose purpose is to overthrow the government of that State, that amounts to an intervention by the one State in the internal affairs of the other, whether or not the political objective of the State giving such support and assistance is equally far reaching.” 3.
The financial support, training, supply of weapons, intelligence and logistic support given by
the US to the contras was a breach of the principle of non-interference. “…no such general right of intervention, in support of an opposition within another State, exists in contemporary international
law”, even if such a request for assistance is made by an opposition group of that State (see para 246 for more). 4.
Interesting, however, the Court also held that providing “…humanitarian aid to persons or
forces in another country, whatever their political affiliations or objectives, cannot be regarded as unlawful intervention, or as in any other way contrary to international law” (para 242). 5.
In the event one State intervenes in the affairs of another State, the second State has a right to
intervene in a manner that is short of an armed attack (210). “While an armed attack would give rise to an entitlement to collective self-defence, a use of force of a lesser degree of gravity cannot as the Court has already observed (paragraph 21 1 above). produce any entitlement to take collective countermeasures involving the use of force. The acts of which Nicaragua is accused, even assuming them to have been established and imputable to that State, could only have justified proportionate counter-measures on the part of the State which had been the victim of these acts, namely El Salvador, Honduras or Costa Rica. They could not justify countermeasures taken by a third State, the United States, and particularly could not justify intervention involving the use of force.” The US breached its customary international law obligation – not to violate the sovereignty of another State – when it directed or authorized its aircrafts to fly over Nicaraguan territory and when it laid mines in the internal waters of Nicaragua and its territorial sea. The basic concept of State sovereignty in CIL is found in Article 2(1) of the UN Charter. State sovereignty extends to its internal waters, territorial sea and the air space above its territory. The US violated CIL when it laid mines in the territorial sea and internal waters of Nicaragua and when it carried out unauthorized overflights over Nicaraguan airspace by aircrafts belong to or under the control of the US.