NICARAGUA VS UNITED STATES (SUMMARY) ON SELF DEFENCE AND USE OF FORCE

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 selfdefence)
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

forms of the use of force (i.e. those that constitute an armed
form (i.e. organizing, instigating, assisting or participating in
acts in another State when the acts referred to involve
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.

force as: (1) the most grave

attack) and (2) the less grave
acts of civil strife and terrorist
a threat or use of force not

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 nonState 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 selfdefence:

(1) A State must have been the victim of an armed attack;

(2) This State must declare itself as a victim of an armed attack; [NB: the assessment whether an
armed attack took place nor not is done by the state who was subjected to the attack. A third State
cannot exercise a right of collective self-defence based its (the third 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 selfdefence (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 countermeasures 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. Twentyfive 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.)