NICARAGUA VS UNITED STATES

(SUMMARY) ON SELF DEFENCE AND

USE OF FORCE
Ruwanthika Gunaratne and Public International Law
at https://ruwanthikagunaratne.wordpress.com, 2008 present. Unauthorized use and/or
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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

Court: ICJ

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 Nicaragense (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 ICJs 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
Nicaraguas 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 strifein 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 Courts 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
States) 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 51s 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
States) 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 StatesThe 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 States 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 judgment including separate opinions of individual judges and summaries of the
judgment and orders

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 Courts 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 DAmato, 81 AMJIL 102 (1987) (full text):
(DAmato 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 Courts Achievement, Richard Falk, 81 AMJIL 106 (Falk takes a generally positive
approach to the judgment, gives a good overview of the case and Judge Shwebels dissent)

Drawing the right line, Tom J. Farer, 81 AMJIL 112 (Farer takes a cold-war contextual
approach to the judgment and supports the Courts narrow view of an armed attack and self
defence).

Some observations on the ICJs 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 States territory
even if the insurgency is planned, trained, armed and directed from that territory).

Protecting the Courts institutional interests: Why not the Marbury approach? Michael J.
Glennon, 81 AMJIL 121 (discusses reservations before the ICJ and the Courts 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 ICJs 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 Courts findings).

The International Court lives unto its name, Herbert W. Briggs, 81 AMJIL 78.

Determining US responsibility for contra operations under international law, Francis V. Boyle

Le peuple, cest moi!The world court and human rights, 81 AMJIL 173

LJIL Symposium: Discussion of the ICJ Nicaragua Judgment

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 Courts 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 Courts decisions, though some compliance problems remain.
The most serious negative impact has been on the willingness of the United States (still the
Courts most active litigant) to participate fully in international dispute settlement.)

LJIL Symposium: The Nicaragua Case: Its Impact, John Dugard

LJIL Symposium: Response of Lori F. Damrosch to Comments by John Dugard, Lori F.

Damrosch

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
Courts 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.)