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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-defence)
Year of Decision: 1986
NB: This blog post will discuss matters on the use of force and self-defence. If you would like to read about the impact of the Nicaragua judgement on customary international law and the US multilateral reservation please click here.
Overview: The case involved military and paramilitary activities conducted by the United States 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 meet armed opposition from supporters of the former Somoza Government and ex-members of the National Guard. The US – initially supportive of the new government – changed its attitude when, according to the United States, it found that Nicaragua was providing logistical support and weapons to guerrillas in El Salvador. In April 1981 it terminated United States aid to Nicaragua and in September 1981, according to Nicaragua, the United States “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 US support to these groups fighting against the Nicaraguan Government (called “contras”) was covert. Later, the United States 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 United States is effectively in control of the contras, the United States devised their strategy and directed their tactics and that they were paid for and directly controlled by United States personal. Nicaragua also alleged that some attacks were carried out by United States 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 aircrafts belonging to the United States flew over Nicaraguan territory to gather intelligence, supply to the contras in the field and to intimidate the population.
The United States did not appear before the ICJ at the merit stages, after refusing to accept the ICJ’s jurisdiction to decide the case. The United States at the jurisdictional phase of the hearing, however, stated that it relied on an inherent right of collective self-defence guaranteed in A. 51 of the UN Charter by “providing, upon request, proportionate and appropriate assistance…” to Costa Rica, Honduras and El Salvador in response to Nicaragua’s alleged acts aggression against those countries (paras. 126, 128).
Questions before the Court:
- Did the United States 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?
- Did the United States 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?
- If so, can the military and paramilitary activities that the United States undertook in and against Nicaragua be justified as collective self-defence?
- Did the United States 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 United States 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: The United States violated customary international law in relation to bullet points 1, 2, 4 and 5 above. On bullet point 3, the Court found that the United States could not rely on collective self-defence to justify its use of force against Nicaragua.
Relevant Findings of the Court:
1. The court held that the United States 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:
- The prohibition on the use of force is found in Article 2(4) of the UN Charter and in customary international law.
- In a controversial finding the court sub-classified the use of force as: (1) the “most grave forms of the use of force” (i.e. those that constitute an armed attack) and (2) the “less grave form” (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 not amounting to an armed attack).
- The United States violated the customary international law prohibition on the use of force when it laid mines in Nicaraguan ports. It violated this prohibition when it attacked Nicaraguan ports, oil installations and a naval base (see below). The United States could justify its action on collective self-defence, if certain criteria were met – this aspect is discussed below.
- The United States violated the customary international law 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 participated “in acts of civil strife…in another State” when these acts involved the threat or use of force.
- The supply of funds to the contras did not violate the prohibition on the use of force. Nicaragua argued that the timing of the offensives against it was determined by the United States: i.e. an offensive could not be launched until the requisite funds were available. The Court held that “…it does not follow that each provision of funds by the United States was made to set in motion a particular offensive, and that that offensive was planned by the United States.” The Court held further that while the arming and training of the contras involved the threat or use of force against Nicaragua, the supply of funds, in it self, only amounted to an act of intervention in the internal affairs of Nicaragua (para 227) – this aspect is discussed below.
What is an armed attack?
- A controversial but interesting aspect of the Court’s judgement was its definition of an armed attack. The Court held that an armed attack included:
(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 (the State’s) substantial involvement therein”
NB: The second point somewhat resembles 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 did not constitute an armed attack – it can be regarded as a threat or use of force, or an intervention in the internal or external affairs of other States (see paras 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).
NB: In in the Case Concerning Oil Platforms and the advisory opinion on the Legal Consequences of of the Construction of a Wall in the Occupied Palestinian Territory (hereinafter called the Palestine wall case) the ICJ upheld the definition of “armed attack” proposed in the Nicaragua case. In the Palestinian wall case, the attacks from which Israel was claiming self defence originated from non-State actors. However, the Court held that Article 51’s inherent right of self defence was available to one State only against another State (para 139). Judges Higgins, Buergenthal and Kooijmans opposed this narrow view. Articles on State Responsibility, prepared by the International Law Commission, provided significant guidance as to when acts of non-State actors may be attributed to States. These articles, together with recent State practice relating attacks on terrorists operating from other countries (see legal opinions surrounding the United States attack on Afghanistan), may have widened the scope of an armed attack, and consequently, the right of self defence, envisaged by the ICJ.
2. The Court held that the United States could not justify its military and paramilitary activities on the basis of collective self-defence.
- Customary international law allows for exceptions to the prohibition on the use of force – including the right to individual or collective self-defence (for a difference between the two forms of self defence, click here). The United States, at an earlier stage of the proceedings, had asserted that the Charter itself acknowledges the existence of this customary international law right when it talks of the “inherent” right of a State under Article 51 of the Charter (para.193).
- When a State claims that it used force in collective self-defence, the Court would 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. did it comply with the principles of necessity and proportionality).
- Several criteria must be met for a State to exercise the right of individual or collective self-defence:
(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 customary international law, 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).
“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 (See paras 200, 232 -236)”.
- 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 United States 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 United States in self-defence – at the time when the United States was allegedly acting in collective self-defence; and (2) the United States 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. The Court concluded that the United States cannot justify its use of force as collective self-defence.
- The criteria with regard to necessity and proportionality, that is necessary when using force in self-defence – was also not fulfilled (para 237).
3. The Court held that the United States 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.
- 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).
- Nicaragua stated that the activities of the United States were aimed to overthrow the government of Nicaragua and to substantially damage the economy and weaken the political system to coerce the Government of Nicaragua to accept various political demands of the United States. 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.”
- The financial support, training, supply of weapons, intelligence and logistic support given by the United States 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).
- However, in a controversial finding, the Court held that the United States did not devise the strategy, direct the tactics of the contras or exercise control on them in manner so as to make their acts committed in violation of international law imputable to the United States (see in this respect “Determining US responsibility for contra operations under international law” 81 AMJIL 86).T he Court concluded that “a number of military and paramilitary operations of the contras were decided and planned, if not actually by United States advisers, then at least in close collaboration with them, and on the basis of the intelligence and logistic support which the United States was able to offer, particularly the supply aircraft provided to the contras by the United States” but not all contra operations reflected strategy and tactics wholly devised by the United States.
“In sum, the evidence available to the Court indicates that the various forms of assistance provided to the contras by the United States have been crucial to the pursuit of their activities, but is insufficient to demonstrate their complete dependence on United States aid. On the other hand, it indicates that in the initial years of United States assistance the contra force was so dependent. However, whether the United States Government at any stage devised the strategy and directed the tactics of the contras depends on the extent to which the United States made use of the potential for control inherent in that dependence. The Court already indicated that it has insufficient evidence to reach a finding on this point. It is a fortiori unable to determine that the contra force may be equated for legal purposes with the forces of the United States…The Court has taken the view (paragraph 110 above) that United States participation, even if preponderant or decisive, in the financing, organizing, training, supplying and equipping of the contras, the selection of its military or paramilitary targets, and the planning of the whole of its operation, is still insufficient in itself, on the basis of the evidence in the possession of the Court, for the purpose of attributing to the United States the acts committed by the contras in the course of their military or paramilitary operations in Nicaragua. All the forms of United States participation mentioned above, and even the general control by the respondent State over a force with a high degree of dependency on it, would not in themselves mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State. Such acts could well be committed by members of the contras without the control of the United States. For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary.”
- 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).
- In the event one State intervenes in the affairs of another State, the victim 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 counter-measures taken by a third State, the United States, and particularly could not justify intervention involving the use of force.”
4. The United States 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 ICJ examined evidence and found that in early 1984 mines were laid in or close to ports of the territorial sea or internal waters of Nicaragua “by persons in the pay or acting ion the instructions” of the United States and acting under its supervision with its logistical support. The United States did not issue any warning on the location or existence of mines and this resulted in injuries and increases in maritime insurance rates.
- The court found that the United States also carried out high-altitude reconnaissance flights over Nicaraguan territory and certain low-altitude flights, complained of as causing sonic booms.
- The basic concept of State sovereignty in customary international law is found in Article 2(1) of the UN Charter. State sovereignty extends to a State’s internal waters, its territorial sea and the air space above its territory. The United States violated customary international law when it laid mines in the territorial sea and internal waters of Nicaragua and when it carried out unauthorised overflights over Nicaraguan airspace by aircrafts that belong to or was under the control of the United States.
Material on the Nicaragua case
The following contains a list of scholarly articles and other material that discuss the Nicaragua case. If you would like to add to the list, please note your suggestions in the comment box.
The World Court and Jus Cogens, 81 AMJIL 93, Gorden A. Christenson. Christenson argues that an independent development of the customary law right divorced from the treaty can have wider consequences:
We have then a double irony. The Court uses the United States position accepting the treaty norm against the threat or use of force also as a customary norm possibly having jus cogens quality, in part, to justify taking jurisdiction as a matter quite independent of the norm that otherwise falls under the multilateral treaty reservation. Since there are two separate sources of the law, the choice of the one source rather than the other means that the norm relied upon survives the jurisdictional bar to the use of the other. Yet the two norms are not different enough to undermine completely the content of the Charter norm. This formalism simply masks the more interesting question of the Court’s institutional claim, given the ineffectiveness of the UN Security system, to develop an international public order case by case, by breaking away form the strictures of the Charter and treaty norms. The Court untied the treaty norms from their constraints within the United Nations or regional collective security systems, a potentially destabilizing decision, one whose consequences are unforeseen. The decision based on the validity of an autonomous norm of customary international law free from the Charter is a constitutive one of potential great significance (81 AMJIL 100, 1987).
Trashing customary international law, Antony D’Amato, 81 AMJIL 102 (1987) (full text): (D’Amato discusses the paucity of State practice examined by the international court of justice before concluding that the principle non-intervention formed part of customary international law. He argues that the acceptance of General Assembly resolutions do not manifest opinio juris. He states that the Court failed to consider that Article 2(4) continued to evolve through the years.)
The World Court’s Achievement, Richard Falk, 81 AMJIL 106 (Falk takes a generally positive approach to the judgment, gives a good overview of the case and Judge Shwebel’s dissent)
Drawing the right line, Tom J. Farer, 81 AMJIL 112 (Farer takes a cold-war contextual approach to the judgment and supports the Court’s narrow view of an armed attack and self defence).
Some observations on the ICJ’s procedural and substantive innovations, Thomas M. Franck, 81 AMJIL 116 (criticizes the determination of relevant State practice in relation to non-intervention and the reliance on UN resolutions to illicit opinio juris (it alleges that the Court sought to harden soft law prematurely). Frank points out that the interventions falling short of armed attacks would not allow States to target rebel groups in another State’s territory even if the insurgency is planned, trained, armed and directed from that territory).
Protecting the Court’s institutional interests: Why not the Marbury approach? Michael J. Glennon, 81 AMJIL 121 (discusses reservations before the ICJ and the Court’s prerogative to determine its own jurisdiction)
Discretion to decline to exercise jurisdiction, Edward Gorden, 81 AMJIL 129 (discusses the discretionary power of the court to decline to exercise its jurisdiction at the merit stages).
The Nicaragua judgment and the future of the law of force and self-defense, John Lawrence Hargrove 81AMJIL 135 (Hargrove criticizes the ICJ’s construction of the notion of collective self defense, armed attack and forcible countermeasures).
Somber reflections on the compulsory jurisdiction of the international court, Mark Weston Janis, 81 AMJIL 144
Custom on a sliding scale, Frederic L. Kirgis 81 AMJIL 146 (Kirgis discusses the relationship between State practice and opinio juris, criticizes the methods (or lack thereof) of the Court in determining the customary law nature of Article 2(4) of the Charter. Points out that actual State practice on intervention did not support the Court’s findings).
The International Court lives unto its name, Herbert W. Briggs, 81 AMJIL 78.
The Impact of the Nicaragua Case on the Court and Its Role: Harmful, Helpful, or In Between?, Lori Fisler Damrosch (Abstract: At the time the United States withdrew from participation in the Nicaragua case at the International Court of Justice, the US government expressed concern that ‘the course on which the Court may now be embarked could do enormous harm to it as an institution and to the cause of international law’. This essay examines whether or to what extent the anticipated negative effects came to pass. It concludes that dire predictions of harm to the Court were overstated. Twenty-five years later, the rate at which states accept the Court’s jurisdiction has held steady. Only a few states have added jurisdictional reservations concerning military activities. The mix of cases being brought to the Court has shifted towards a more representative distribution. States are generally complying with the Court’s decisions, though some compliance problems remain. The most serious negative impact has been on the willingness of the United States (still the Court’s most active litigant) to participate fully in international dispute settlement.)
The Principle of Non-Intervention 25 Years after the Nicaragua Judgment, by Marcelo Kohen(Abstract: This article focuses on the analysis by the International Court of Justice of the principle of non-intervention in domestic affairs in its judgment of 27 June 1986 in the case concerning Military and Paramilitary Activities in and against Nicaragua and contrasts it with the evolution of international law and practice in this field. It is proposed that the Court’s 1986 analysis not only remains of actuality today, but also constitutes a precursor to legal developments that have since taken place. This is particularly the case with regard to the relationship between the protection of human rights on the one hand and the safeguard of state sovereignty and the collective security regime on the other. The 1986 judgment helped to clarify the content of humanitarian assistance. It constituted the starting point for the development of this concept in a series of GA resolutions that were subsequently adopted. The controversial doctrine of ‘humanitarian intervention’, as well as state practice in violation of this principle, in no way led to modifying existing international law. Similarly, the new concept of ‘responsibility to protect’, which places emphasis on collective security and discounts unilateral action, has not led to the disappearance of the principle of non-intervention either.)