Case Summary
| Citation | NICARAGUA CASE (Nicaragua v United States of America) ICJ Reports, 1986, p.14 |
| Keywords | state responsibility, armed forces, loss to life and property |
| Facts | It was claimed by Nicaragua that US has been engaging itself, since March 1981, in the use of force against Nicaragua through the instrumentality of a mercenary army recruited, paid, equipped, supplied, trained and directed by the US. As a result, Nicaragua suffered grievous consequences consisting of huge loss of life and damage to property. |
| Issues | Whether the conduct of the contras was attributable to the United States so as to hold the latter generally responsible for breaches of international humanitarian law committed by the contras. |
| Contentions | |
| Law Points | The ICJ observed that for a new customary rule to be formed, not only must the acts concerned amount to a settled practice, but they must be accompanied by the opinio juris sive necessitatis. Either the States taking such action or other States in a position to react to it, must have behaved so that their conduct is “evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitates. The Court further stated that the principles such as those of the non-use of force, non- intervention, respect for the independence and territorial integrity of States, and the freedom of navigation, continue to be binding as part of customary international law, despite the operation of provisions of conventional law in which they have been incorporated. The Court, while referring to the occasional violations of the principle of non- intervention, stated: “The court does not consider that for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules … the conduct of States should, in general, be consistent with such rules and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule and not as indication of the recognition of a new rule. There are no grounds for holding that when customary international law is comprised of rules identical to those of treaty law, the latter ‘supervenes’ the former so that the customary international law has no further existence of its own. |
| Judgement | The ICJ Passed judgment on merits holding US liable for acting in breach of its obligation under customary international law by training, arming, equipping, financing and supplying the contra forces or otherwise encouraging , supporting and aiding military and paramilitary activities in and against Nicaragua. The court called upon US to immediately cease and refrain from such activities and make reparation to Nicaragua for all injury caused to Nicaragua. |
| Ratio Decidendi & Case Authority |
Full Case Details
(Principle of state responsibility and attribution; constituent elements of custom; prohibition
of use of force and non-intervention as customary rules of international law)
18. The dispute before the Court between Nicaragua and the United States concerns events in
Nicaragua subsequent to the fa1l of the Government of President Anastasio Somoza Debayle
in Nicaragua in July 1979, and activities of the Government of the United States in relation to
Nicaragua since that time. Following the departure of President Somoza, a Junta of National
Reconstruction and an 18-member government was installed by the body which had led the
armed opposition to President Somoza, the Frente Sandinista de Liberacion Nacional (FSLN).
That body had initially an extensive share in the new government, described as a “democratic
coalition”, and as a result of later resignations and reshuffles, became almost its sole
component.
19. The attitude of the United States Government to the “democratic coalition government”
was at first favourable; and a programme of economic aid to Nicaragua was adopted.
However by 1981 this attitude had changed. United States aid to Nicaragua was suspended in
January 1981 and terminated in April 1981. According to the United States, the reason for this
change of attitude was reports of involvement of the Government of Nicaragua in logistical
support, including provision of arms, for guerrillas in El Salvador. There was however no
interruption in diplomatic relations, which have continued to be maintained up to the present
time. In September 1981, according to testimony called by Nicaragua, it was decided to plan
and undertake activities directed against Nicaragua.
20. The armed opposition to the new Government in Nicaragua, which originally comprised
various movements, subsequently became organized into two main groups: the Fuerza
Democratica Nicaragüense (FDN) and the Alianza Revolucionaria Democratica (ARDE). The
first of these grew from 1981 onwards into a trained fighting force, operating along the
borders with Honduras; the second, formed in 1982, operated along the borders with Costa
Rica. The precise extent to which, and manner in which, the United States Government
contributed to bringing about these developments will be studied more closely later in the
present Judgment. However, after an initial period in which the “covert” operations of United
States personnel and persons in their pay were kept from becoming public knowledge, it was
made clear, not only in the United States press, but also in Congress and in official statements
by the President and high United States officials, that the United States Government had been
giving support to the contras, a term employed to describe those fighting against the present
Nicaraguan Government. 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”. According
to Nicaragua, the contras have caused it considerable material damage and widespread loss of
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life, and have also committed such acts as killing of prisoners, indiscriminate killing of
civilians, torture, rape and kidnapping. It is contended by Nicaragua that the United States
Government is effectively in control of the contras, that it devised their strategy and directed
their tactics, and that the purpose of that Government was, from the beginning, to overthrow
the Government of Nicaragua.
57. One of the Court’s chief difficulties in the present case has been the determination of the
facts relevant to the dispute. First of all, there is marked disagreement between the Parties not
only on the interpretation of the facts, but even on the existence or nature of at least some of
them. Secondly, the respondent State has not appeared during the present merits phase of the
proceedings, thus depriving the Court of the benefit of its complete and fully argued statement
regarding the facts. The Court’s task was therefore necessarily more difficult, and it has had to
pay particular heed, as said above, to the proper application of Article 53 of its Statute.
Thirdly, there is the secrecy in which some of the conduct attributed to one or other of the
Parties has been carried on. This makes it more difficult for the Court not only to decide on
the imputability of the facts, but also to establish what are the facts. Sometimes there is no
question, in the sense that it does not appear to be disputed, that an act was done, but there are
conflicting reports, or a lack of evidence, as to who did it. The problem is then not the legal
process of imputing the act to a particular State for the purpose of establishing responsibility,
but the prior process of tracing material proof of the identity of the perpetrator. The
occurrence of the act itself may however have been shrouded in secrecy. In the latter case, the
Court has had to endeavour first to establish what actually happened, before entering on the
next stage of considering whether the act (if proven) was imputable to the State to which it
has been attributed.
80. … the Court finds it established that, on a date in late 1983 or early 1984, the President of
the United States authorized a United States government agency to lay mines in Nicaraguan
ports; that in early 1984 mines were laid in or close to the ports of El Bluff, Corinto and
Puerto Sandino, either in Nicaraguan internal waters or in its territorial sea or both, by persons
in the pay and acting on the instructions of that agency, under the supervision and with the
logistic support of United States agents ; that neither before the laying of the mines, nor
subsequently, did the United States Government issue any public and officia1 warning to
international shipping of the existence and location of the mines ; and that personal and
material injury was caused by the explosion of the mines, which also created risks causing a
rise in marine insurance rates.
91. The Court concludes that, as regards the high-altitude overflights for reconnaissance
purposes, the statement admitting them made in the Security Council is limited to the period
up to March 1982. However, not only is it entitled to take into account that the interest of the
United States in “verifying reports of Nicaraguan intervention” – the justification offered in
the Security Council for these flights – has not ceased or diminished since 1982, but the
photographs attached to the 1984 Background Paper are evidence of at least sporadic
overflights subsequently. It sees no reason therefore to doubt the assertion of Nicaragua that
such flights have continued. The Court finds that the incidents of overflights causing “sonic
booms” in November 1984 are to some extent a matter of public knowledge. As to overflights
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of aircraft for supply purposes, it appears from Nicaragua’s evidence that these were carried
out generally, if not exclusively, by the contras themselves, though using aircraft supplied to
them by the United States. Whatever other responsibility the United States may have incurred
in this latter respect, the only violations of Nicaraguan airspace which the Court finds
imputable to the United States on the basis of the evidence before it are first of all, the highaltitude reconnaissance flights, and secondly the low-altitude flights of 7 to 11 November
1984, complained of as causing “sonic booms”.
99. The Court finds at all events that from 1981 until 30 September 1984 the United States
Government was providing funds for military and paramilitary activities by the contras in
Nicaragua, and thereafter for “humanitarian assistance”. The most direct evidence of the
specific purposes to which it was intended that these funds should be put was given by the
oral testimony of a witness called by Nicaragua : Mr. David MacMichael, formerly in the
employment of the CIA as a Senior Estimates Officer with the Analytic Group of the National
Intelligence Council. He informed the Court that in 1981 he participated in that capacity in
discussion of a plan relating to Nicaragua, excerpts from which were subsequently published
in the Washington Post, and he confirmed that, with the exception of a detail (here omitted),
these excerpts gave an accurate account of the plan…
106. In the light of the evidence and material available to it, the Court is not satisfied that all
the operations launched by the contra force, at every stage of the conflict, reflected strategy
and tactics wholly devised by the United States. However, it is in the Court’s view established
that the support of the United States authorities for the activities of the contras took various
forms over the years, such as logistic support, the supply of information on the location and
movements of the Sandinista troops, the use of sophisticated methods of communication, the
deployment of field broadcasting networks, radar coverage, etc. The Court finds it clear that a
number of military and paramilitary operations by this force 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.
107. To sum up, despite the secrecy which surrounded it, at least initially, the financial
support given by the Government of the United States to the military and paramilitary
activities of the contras in Nicaragua is a fully established fact. The legislative and executive
bodies of the respondent State have moreover, subsequent to the controversy which has been
sparked off in the United States, openly admitted the nature, volume and frequency of this
support. Indeed, they clearly take responsibility for it, this government aid having now
become the major element of United States foreign policy in the region. As to the ways in
which such financial support has been translated into practical assistance, the Court has been
able to reach a general finding.
108. Despite the large quantity of documentary evidence and testimony which it has
examined, the Court has not been able to satisfy itself that the respondent State “created” the
contra force in Nicaragua. It seems certain that members of the former Somoza National
Guard, together with civilian opponents to the Sandinista régime, withdrew from Nicaragua
soon after that régime was installed in Managua, and sought to continue their struggle against
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it, even if in a disorganized way and with limited and ineffectual resources, before the
Respondent took advantage of the existence of these opponents and incorporated this fact into
its policies vis-à-vis the régime of the Applicant. Nor does the evidence warrant a finding that
the United States gave “direct and critical combat support”, at least if that form of words is
taken to mean that this support was tantamount to direct intervention by the United States
combat forces, or that all contra operations reflected strategy and tactics wholly devised by
the United States. On the other hand, the Court holds it established that the United States
authorities largely financed, trained, equipped, armed and organized the FDN.
109. What the Court has to determine at this point is whether or not the relationship of the
contras to the United States Government was so much one of dependence on the one side and
control on the other that it would be right to equate the contras, for legal purposes, with an
organ of the United States Government, or as acting on behalf of that Government. Here it is
relevant to note that in May 1983 the assessment of the Intelligence Committee was that the
contras “constitute[d] an independent force” and that the “only element of control that could
be exercised by the United States” was “cessation of aid”. Paradoxically this assessment
serves to underline, a contrario, the potential for control inherent in the degree of the contras’
dependence on aid. Yet despite the heavy subsidies and other support provided to them by the
United States, there is no 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.
111. In the view of the Court it is established that the contra force has, at least at one period
been so dependent on the United States that it could not conduct its crucial or most significant
military and paramilitary activities without the multi-faceted support of the United States.
This finding is fundamental in the present case. Nevertheless, adequate direct proof that all or
the great majority of contra activities during that period received this support has not been,
and indeed probably could not be, advanced in every respect. It will suffice the Court to stress
that a degree of control by the United States Government, as described above is inherent in
the position in which the contra force finds itself in relation to that Government.
115. The Court has taken the view 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 operations in the
course of which the alleged violations were committed.
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116. The Court does not consider that the assistance given by the United States to the contras
warrants the conclusion that these forces are subject to the United States to such an extent that
any acts they have committed are imputable to that State. It takes the view that the contras
remain responsible for their acts, and that the United States is not responsible for the acts of
the contras, but for its own conduct vis-à-vis Nicaragua, including conduct related to the acts
of the contras. What the Court has to investigate is not the complaints relating to alleged
violations of humanitarian law by the contras, regarded by Nicaragua as imputable to the
United States, but rather unlawful acts for which the United States may be responsible
directly in connection with the activities of the contras. The lawfulness or otherwise of such
acts of the United States is a question different from the violations of humanitarian law of
which the contras may or may not have been guilty. It is for this reason that the Court does
not have to determine whether the violations of humanitarian law attributed to the contras
were in fact committed by them. At the same time, the question whether the United States
Government was, or must have been, aware at the relevant time that allegations of breaches of
humanitarian law were being made against the contras is relevant to an assessment of the
lawfulness of the action of the United States. In this respect, the material facts are primarily
those connected with the issue in 1983 of a manual of psychological operations.
122. The Court concludes that in 1983 an agency of the United States Government supplied to
the FDN a manual on psychological guerrilla warfare which, while expressly discouraging
indiscriminate violence against civilians, considered the possible necessity of shooting
civilians who were attempting to leave a town; and advised the “neutralization” for
propaganda purposes of local judges, officials or notables after the semblance of trial in the
presence of the population. The text supplied to the contras also advised the use of
professional criminals to perform unspecified “jobs”, and the use of provocation at mass
demonstrations to produce violence on the part of the authorities so as to make “martyrs”.
148. … the Court would note that the action of the United States Government itself on the
basis of its own intelligence reports does not suggest that arms supply to El Salvador from the
territory of Nicaragua was continuous from July 1979, when the new régime took power in
Managua and the early months of 1981. The presidential Determination of 12 September
1980, for the purposes of the Special Central American Assistance Act 1979, officially
certified that the Government of Nicaragua was not aiding, abetting or supporting acts of
violence or terrorism in other countries, and the press release of the same date emphasized the
“careful consideration and evaluation of all the relevant evidence provided by the intelligence
community and by our Embassies in the field” for the purposes of the Determination. The
1983 Report of the Intelligence Committee, on the other hand, referring to its regular review
of intelligence since “the 1979 Sandinista victory in Nicaragua”, found that the intelligence
available to it in May 1983 supported “with certainty” the judgment that arms and material
supplied to “the Salvadorian insurgents transits Nicaragua with the permission and assistance
of the Sandinistas” .
152. The Court finds, in short, that support for the armed opposition in El Salvador from
Nicaraguan territory was a fact up to the early months of 1981. While the Court does not
possess full proof that there was aid, or as to its exact nature, its scale and its continuance
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until the early months of 1981, it cannot overlook a number of concordant indications, many
of which were provided moreover by Nicaragua itself, from which it can reasonably infer the
provision of a certain amount of aid from Nicaraguan territory.
153. After the early months of 1981, evidence of military aid from or through Nicaragua
remains very weak. This is so despite the deployment by the United States in the region of
extensive technical resources for tracking, monitoring and intercepting air, sea and land traffic
. . . The Court merely takes note that the allegations of arms-trafficking are not solidly
established; it has not, in any event, been able to satisfy itself that any continuing flow on a
significant scale took place after the early months of 1981.
159. It may be objected that the Nicaraguan authorities are alleged to have declared on
various occasions that military assistance to the armed opposition in El Salvador was part of
their official policy. The Court has already indicated that it is unable to give weight to alleged
statements to that effect of which there is insufficient evidence.
160. On the basis of the foregoing, the Court is satisfied that, between July 1979, the date of
the fall of the Somoza régime in Nicaragua, and the early months of 1981, an intermittent
flow of arms was routed via the territory of Nicaragua to the armed opposition in El Salvador.
On the other hand, the evidence is insufficient to satisfy the Court that, since the early months
of 1981, assistance has continued to reach the Salvadorian armed opposition from the territory
of Nicaragua on any significant scale, or that the Government of Nicaragua was responsible
for any flow of arms at either period.
183. In view of this conclusion, the Court has next to consider what are the rules of customary
international law applicable to the present dispute. For this purpose, it has to direct its
attention to the practice and opinio juris of States.
184. The Court notes that there is in fact evidence, to be examined below, of a
considerable degree of agreement between the Parties as to the content of the
customary international law relating to the non-use of force and non-intervention.
This concurrence of their views does not however dispense the Court from having
itself to ascertain what rules of customary international law are applicable. The mere
fact that States declare their recognition of certain rules is not sufficient for the Court
to consider these as being part of customary international law, and as applicable as
such to those States. Bound as it is by Article 38 of its Statute to apply, inter alia,
international custom “as evidence of a general practice accepted as law”, the Court
may not disregard the essential role played by general practice. Where two States
agree to incorporate a particular rule in a treaty, their agreement suffices to make that
rule a legal one, binding upon them; but in the field of customary international law,
the shared view of the Parties as to the content of what they regard as the rule is not
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enough. The Court must satisfy itself that the existence of the rule in the opinio juris
of States is confirmed by practice.
186. It is not to be expected that in the practice of States the application of the rules in
question should have been perfect, in the sense that States should have refrained, with
complete consistency, from the use of force or from intervention in each other’s internal
affairs. The Court does not consider that, for a rule to be established as customary, the
corresponding practice must be in absolutely rigorous conformity with the rule. In order to
deduce the existence of customary rules, the Court deems it sufficient that the conduct of
States should, in general, be consistent with such rules, and that instances of State conduct
inconsistent with a given rule should generally have been treated as breaches of that rule, not
as indications of the recognition of a new rule. If a State acts in a way prima facie
incompatible with a recognized rule, but defends its conduct by appealing to exceptions or
justifications contained within the rule itself, then whether or not the State’s conduct is in fact
justifiable on that basis, the significance of that attitude is to confirm rather than to weaken
the rule.
187. The Court must therefore determine, first, the substance of the customary rules relating
to the use of force in international relations, applicable to the dispute submitted to it.
188. The Court thus finds that both Parties take the view that the principles as to the use of
force incorporated in the United Nations Charter correspond, in essentials, to those found in
customary international law. The Parties thus both take the view that the fundamental
principle in this area is expressed in the terms employed in Article 2, paragraph 4, of the
United Nations Charter. They therefore accept a treaty-law obligation to refrain in their
international relations from the threat or use of force against the territorial integrity or
political independence of any State, or in any other manner inconsistent with the purposes of
the United Nations. The Court has however to be satisfied that there exists in customary
international law an opinio juris as to the binding character of such abstention. This opinio
juris may, though with all due caution, be deduced from, inter alia, the attitude of the Parties
and the attitude of States towards certain General Assembly resolutions, and particularly
resolution 2625 (XXV) entitled “Declaration on Principles of International Law concerning
Friendly Relations and Co-operation among States in accordance with the Charter of the
United Nations”. The effect of consent to the text of such resolutions cannot be understood as
merely that of a “reiteration or elucidation” of the treaty commitment undertaken in the
Charter. On the contrary, it may be understood as an acceptance of the validity of the rule or
set of rules declared by the resolution by themselves. The principle of non-use of force, for
example, may thus be regarded as a principle of customary international law, not as such
conditioned by provisions relating to collective security, or to the facilities or armed
contingents to be provided under Article 43 of the Charter. It would therefore seem apparent
that the attitude referred to expresses an opinio juris respecting such rule (or set of rules), to
be thenceforth treated separately from the provisions, especially those of an institutional kind,
to which it is subject on the treaty-law plane of the Charter.
199. At all events, the Court finds that in customary international law, whether of a general
kind or that particular to the inter-American legal system, there is no rule permitting the
exercise of collective self-defence in the absence of a request by the State which regards itself
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as the victim of an armed attack. The Court concludes that the requirement of a request by the
State which is the victim of the alleged attack is additional to the requirement that such a State
should have declared itself to have been attacked.
202. The principle of non-intervention involves the right of every sovereign State to conduct
its affairs without outside interference; though examples of trespass against this principle are
not infrequent, the Court considers that it is part and parce1 of customary international law.
As the Court has observed: “Between independent States, respect for territorial sovereignty is
an essential foundation of international relations” (I.C.J. Reports 1949, p. 35), and
international law requires political integrity also to be respected. Expressions of an opinio
juris regarding the existence of the principle of non-intervention in customary international
law are numerous and not difficult to find.
227. The Court will first appraise the facts in the light of the principle of the non-use of force,
examined in paragraphs 187 to 200 above. What is unlawful, in accordance with that
principle, is recourse to either the threat or the use of force against the territorial integrity or
political independence of any State. For the most part, the complaints by Nicaragua are of the
actual use of force against it by the United States. Of the acts which the Court has found
imputable to the Government of the United States, the following are relevant in this respect :
– the laying of mines in Nicaraguan interna1 or territorial waters in early1984 ;
– 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,
defined earlier, unless they are justified by circumstances which exclude their unlawfulness, a
question now to be examined. The Court has also found (paragraph 92) the existence of
military manoeuvres held by the United States near the Nicaraguan borders; and Nicaragua
has made some suggestion that this constituted a “threat of force”, which is equally forbidden
by the principle of non-use of force. The Court is however not satisfied that the manoeuvres
complained of, in the circumstances in which they were held, constituted on the part of the
United States a breach, as against Nicaragua, of the principle forbidding recourse to the threat
or use of force.
238. Accordingly, the Court concludes that the plea of collective self-defence against an
alleged armed attack on El Salvador, Honduras or Costa Rica, advanced by the United States
to justify its conduct toward Nicaragua, cannot be upheld ; and accordingly that the United
States has violated the principle prohibiting recourse to the threat or use of force by the acts
listed in paragraph 227 above, and by its assistance to the contras to the extent that this
assistance “involve[s] a threat or use of force” (paragraph 228 above).
239. The Court comes now to the application in this case of the principle of non-intervention
in the internal affairs of States. It is argued by Nicaragua that the “military and paramilitary
activities aimed at the government and people of Nicaragua” have two purposes:
“(a) The actual overthrow of the existing lawful government of Nicaragua and its
replacement by a government acceptable to the United States; and
(b) The substantial damaging of the economy, and the weakening of the political
system, in order to coerce the government of Nicaragua into the acceptance of United
States policies and political demands.”
Nicaragua also contends that the various acts of an economic nature, constitute a form of
“indirect” intervention in Nicaragua’s internal affairs.
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242. The Court therefore finds that the support given by the United States, up to the
end of September 1984, to the military and paramilitary activities of the contras in
Nicaragua, by financial support, training, supply of weapons, intelligence and logistic
support, constitutes a clear breach of the principle of non-intervention. The Court has
however taken note that, with effect from the beginning of the United States
governmental financial year 1985, namely 1 October 1984, the United States
Congress has restricted the use of the funds appropriated for assistance to the contras
to “humanitarian assistance” (paragraph 97 above). There can be no doubt that the
provision of strictly 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.
290. In the present Judgment, the Court has found that the Respondent has, by its
activities in relation to the Applicant, violated a number of principles of customary
international law. The Court has however also to recall a further principle of
international law, one which is complementary to the principles of a prohibitive
nature examined above, and respect for which is essential in the world of today: the
principle that the parties to any dispute, particularly any dispute the continuance of
which is likely to endanger the maintenance of international peace and security,
should seek a solution by peaceful means. Enshrined in Article 33 of the United
Nations Charter, which also indicates a number of peaceful means which are
available, this principle has also the status of customary law. In the present case, the
Court has already taken note, in its Order indicating provisional measures and in its
Judgment on jurisdiction and admissibility (I. C.J. Reports 1984, pp. 183-184, paras.
34 ff., pp. 438-441, paras. 102 ff.) of the diplomatic negotiation known as the
Contadora Process, which appears to the Court to correspond closely to the spirit of
the principle which the Court has here recalled.
