Judgment of 27 June 1986

CASE CONCERNING THE MILITARY AND PARAMILITARY ACTIVITIES

IN AND AGAINST NICARAGUA

(NICARAGUA CASE)

1. The Parties: NICARAGUA v. UNITED STATES OF AMERICA ( Nicaragua’s application instituting proceedings + the compulsory jurisdiction of this Court due to Declarations and Treaty of Friendship, Commerce and Navigation of 1956 )

2. Questions presented: whether The USA violated international law by supporting the Contras in their rebellion against the Nicaraguan government; can the USA actions be justified as the right of collective self-defense; what principles and rules of international law were violated

3. The Pleadings\Arguments:

NICARAGUA:

1) That the United States, in recruiting, training, arming, equipping, financing, supplying and otherwise supporting and directing military and paramilitary actions in and against Nicaragua, has violated its charter and treaty obligations.

2) That the United States has violated the sovereignty of Nicaragua by:

- armed attacks against Nicaragua by air, land and sea;

- incursions into Nicaraguan territorial waters;

- aerial trespass into Nicaraguan airspace;

- efforts by direct and indirect means to coerce and intimidate the Government of Nicaragua

3) That the United States has used and is using force and the threat of force against Nicaragua.

4) That the United States has intervened and is intervening in the internal affairs of Nicaragua

5) That the United States has infringed and the freedom of the high seas and interrupting peaceful maritime commerce.

6) That the United States has killed, wounded and kidnapped citizens of Nicaragua.

7) That the United States is under a particular d uty to cease and to refrain from all such flagrant acts

8) That the United States has an obligation to pay reparations for damages to person, property and the Nicaraguan economy (n15)

USA at the preliminary stage declared that: [ U.S. refused to participate at the merits stage]

1) the claims set forth in Nicaragua's Application of 9 April1984 are not within the jurisdiction of this Court and are inadmissible (n9)

2) claims to be exercising a right of collective self-defense for the protection of El Salvador, Honduras and Costa Rica (n165)

The Court followed its own logic and emphasized the following points.

№1. Contras

The ICJ established that the support of the United States authorities for the activities of the contras took various forms over the years. The Court finds it clear that a number of military and paramilitary operations were decided and planned, if not actually by U.S. advisers, but in close collaboration with them, and on the basis of the intelligence and logistic support which the United States was able to offer (n106)

The legislative and executive bodies of the U.S have openly admitted the nature, volume and frequency of this support. (n.107)

But, despite all the facts there is no virtually clear evidence of the United States having actually exercised such a degree of control in all fields as to justify treating the contras as acting on its behalf. (109)

The Court has taken the view that United States participation is still insufficient in itself for the all wrongful acts’ attribution to the USA. All the forms of United States participation and even the general control would not mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law. Such acts could have been committed by members of the contras without the control of the United States (n115)

To establish the U.S. responsibility, it needs to prove that State had effective contro l of the military or paramilitary operations. (n115)

In particular, the Court considers that the mere supply of funds to the contras, while undoubtedly an act of intervention in the internal affairs of Nicaragua, as will be explained below, does not in itself amount to a use of force (n228)

The contras remain responsible for their acts, and that the United States is not responsible for the acts of the contras, but is responsible for its own conduct against Nicaragua, including conduct related to the acts of the contras. (n 116)

All in all, the United States has committed a prima facie violation of principle non-use of force by its assistance to the contras in Nicaragua. (n.228)

№2. Self-defence

If Nicaragua has been giving support to the armed opposition in El Salvador, and if this constitutes an armed attack on El Salvador and the other appropriate conditions are met, collective self-defence could be legally invoked by the USA (n.127)

In view of the assertion by the United States that it has acted in exercise of the right of collective self-defence for the protection of El Salvador, Honduras and Costa Rica, the Court has also to consider the evidence whether those States, or any of them, made a request for such protection. (n.165)

Thus, the ICJ finds specific conditions for exercise the right of collective self-defence

1. a request for such protection (n.165, 196)

2. conditions of necessity (n.194, 237)

3. conditions of proportionality (n.194)

4. A State should concern having been the victim of an armed attack ( El Salvador, Honduras and Costa Rica – themselves, but not the USA) (n.195, 211)*

* There is no rule in customary international law permitting another State to exercise the right of collective self-defence on the basis of its own assessment of the situation. Where collective self-defence is invoked, it is to be expected that the State for whose benefit this right is used will have declared itself to be the victim of an armed attack. (n.195)

2.1 The lawfulness of the use of collective self-defence by the third State (Usa as a 3 State to El Salvador, Honduras and Costa Rica) It depends on a request addressed by that State to the third State. (n.196)

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. (n.199)

№3. Principles of IL.

1. The principle of non-intervention involves the right of every sovereign State to conduct its affairs without outside interference (202-205)

2. The Court finds that no such general right of intervention, in support of an opposition within another State, exists in contemporary. (Say «No» to Humanitarian intervention!! and even the responsibility to protect O_o?)

3. the non-intervention will constitute a breach of the principle of non-use of force in international relations. (209)

4. the lawfulness of the use of force by a State in response to a wrongful act of which it has not itself been the victim is not admitted when this wrongful act is not an armed attack. (211)

5. the principle of respect for State sovereignty closely linked with the principles of the prohibition of the use of force and of non-intervention

6. Distinction between Non-intervention and the non-use of force principles: (n210, 211, 249)

- In respect of the Non-intervention principle violation a State can recourse solely to countermeasures

- In respect of the Non-use of force principle violation a State can recourse to self-defense only.

№4. U.S. Mines in th waters and attacks of Nicaragua ports

In peacetime for one State to lay mines in the internal or territorial waters of another is an unlawful act (215)

The ICJ has found imputable to the Government of the United States acts such as:

- the laying of mines in Nicaraguan internal or territorial waters in early 1984;

- certain attacks on Nicaraguan ports, oil installations and a naval base

These activities constitute infringements of the principle of the prohibition of the use of force. (n.227)

The protection of human rights, a strictly humanitarian objective, cannot be compatible with the mining of ports, the destruction of oil installations, or again with the training (n.258)

The mining of Nicaraguan ports, and the direct attacks on ports and oil installations, cannot possibly be justified as "necessary" to protect the essential security interests of the United States (n.282)

№5. Humanitarian aid

An essential feature of truly humanitarian aid is that it is given " without discrimination" of any kind. In the view of the Court,

The term " humanitarian assistance " is often used to escape condemnation as an intervention in the internal affairs of State (243)

For all foregoing reasons, The Court:

1. Rejects the justification of collective self-defence maintained by the USA

2. Decides that the USA, by training, arming, equipping, financing and supplying the contra forcesintervened in the affairs of Nicaragua;

3. Decides that the USA, by certain attacks on Nicaraguan territory violated customary international law not to use force against Nicaragua;

4. Decides that the USA, by directing or authorizing overflights of Nicaraguan territory, violated the sovereignty ofNicaragua;

5. Decides that, by laying mines in the internal or territorial waters of Nicaragua violated customary international law not to use force against another State, not to intervene in its affairs, not to violate its sovereignty and not to interrupt peaceful maritime commerce;

6. Finds that the USA, by producing in 1983 a manual ’’ guerra de guerrillas’’, and distributing it amid contra forces, has encouraged the commission by them of acts contrary to general principles of humanitarian law; but does NOT find that any such acts which may have been committed are imputable to the USA as acts of the USA.

7. Decides that USA is under a duty immediately to cease and to refrain from all such acts.

8. Decides that the USA is under an obligation to make reparation to the Republic of Nicaragua for al1 injury caused to Nicaragua

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