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Case Concerning Military and Paramilitary Activities in and Against Nicaragua

(Nicaragua v. United States)

1986 I.C.J. 14 (June 27)

The Sandinistas (Communists) took power in Nicaragua.

o They began providing safe haven to communist rebels trying overthrow the
US-allied government in El Salvador.
The US began supplying the Contras, who were trying overthrow the Sandinistas from
basis in Honduras and Costa Rica.
o In addition, they secretly mined some harbors in Nicaragua.
Nicaragua brought a suit in the International Court of Justice, claiming that the US was
illegally using force against them.
The US claimed that the ICJ did not have jurisdiction. However, the ICJ found that
they did.
o Under Article 36(2) of the ICJ Statute, Parties had to accept compulsory
o The US refused to participate, but the ICJ heard the merits of the case
The ICJ found for Nicaragua.
o ICJ found that use of force against another state violates Article 2(4) of
the United Nations Charter, unless it can be justified as collective
defense under Article 51.
Collective defense only applies if the country has been the victim
of an armed attack.
o The ICJ considered the US position that they were allied with El Salvador,
and El Salvador had been subject to an armed attack because of the
Nicaraguan harboring of the communist rebels.
That doesn't rise to the level of an armed attack.
o However, the ICJ found that the US justification of collective defense could
not be sustained because Nicargaura's actions in supporting the communist
rebels did not amount to an armed attack on El Salvador.
o The ICJ found that even if there was an armed attack, in order to come to a
country's defense, the target of the attack (El Salvador), must request
assistance, and the third-party country (the US) must report to the UN
Security Council before taking actions.
Neither of these things happened, so the US loses.
o The ICJ found that the US:
Violated the non-intervention principle by arming, equipping, and
supporting the Contras.
Had violated Article 2(4) by mining Nicaraguan waters.
Should cease and desist and make reparations.
The ICJ did not specify what would constitute an armed attack that would justify a
response under Article 51?
o How significant must an incursion be to count?
o Nicaragua was arming militants in Honduras, but it was very low level.
The ICJ also didn't address:
o What a country could do when there was less than an armed attack,
o Whether if a country supports one side in a civil war in a second country,
can a third country enter and support the other side.
o Whether a country could use force in anticipation of an attack.

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.












(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

If so, can the military and paramilitary activities that the United States undertook in
and against Nicaragua be justified as collective self-defence?

agencies for supporting directly or indirectly military or paramilitary operations in Nicaragua).

Did the United States breach its customary international law obligation not to violate

Nicaragua also alleged that the United States is effectively in control of the contras, the United

the sovereignty of another State when it directed or authorized its aircrafts to fly over

States devised their strategy and directed their tactics and that they were paid for and directly

Nicaraguan territory and by acts referred to in bullet point 2 above?

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

Did the United States breach its customary international law obligations not to

against Nicaragua included the mining of Nicaraguan ports and attacks on ports, oil installations

violate the sovereignty of another State, not to intervene in its affairs, not to use force

and a naval base. Nicaragua alleged that aircrafts belonging to the United States flew over

against another State and not to interrupt peaceful maritime commerce when it laid

Nicaraguan territory to gather intelligence, supply to the contras in the field and to intimidate the

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
The United States did not appear before the ICJ at the merit stages, after refusing to accept the

1, 2, 4 and 5 above. On bullet point 3, the Court found that the United States could not rely on

ICJs jurisdiction to decide the case. The United States at the jurisdictional phase of the hearing,

collective self-defence to justify its use of force against Nicaragua.

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:

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).

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

The Court held that:

The prohibition on the use of force is found in Article 2(4) of the UN Charter and in

paramilitary activities against Nicaragua?

customary international law.

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?

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

(2) the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries,

use of force not amounting to an armed attack).

which carry out acts of armed force against another State of such gravity as to amount to (inter

The United States violated the customary international law prohibition on the use of













substantial involvement therein

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

NB: The second point somewhat resembles Article 3 (g) of the UNGA Resolution 3314 (XXIX)

States could justify its action on collective self-defence, if certain criteria were met

on the Definition of Aggression.

this aspect is discussed below.

Mere frontier incidents are not considered as an armed attack unless because of its

The United States violated the customary international law prohibition on the use of

scale and effects it would have been classified as an armed attack if it was carried out

force when it assisted the contras by organizing or encouraging the organization of

by regular forces.

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

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

threat or use of force.

intervention in the internal or external affairs of other States (see paras 195, 230).

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

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).

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.

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

What is an armed attack?

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

A controversial but interesting aspect of the Courts judgement was its definition of an

non-State actors may be attributed to States. These articles, together with recent State practice

armed attack. The Court held that an armed attack included:

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

(1) action by regular armed forces across an international border; 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

(4) The State does not, under customary international law, have the same obligation as under

activities on the basis of collective self-defence.

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

Customary international law allows for exceptions to the prohibition on the use of force

was itself convinced that it was acting in self-defence (see below).

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

At this point, the Court may consider whether in customary international law there is any

proceedings, had asserted that the Charter itself acknowledges the existence of this

requirement corresponding to that found in the treaty law of the United Nations Charter, by which

customary international law right when it talks of the inherent right of a State under

the State claiming to use the right of individual or collective self-defence must report to an

Article 51 of the Charter (para.193).

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

When a State claims that it used force in collective self-defence, the Court would look

Nations Charter requires that measures taken by States in exercise of this right of self-defence

into two aspects:

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

(1) whether the circumstances required for the exercise of self-defence existed and

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

(2) whether the steps taken by the State, which was acting in self-defence, corresponds to the
these matters, it is clear that in customary international law it is not a condition of the lawfulness
requirements of international law (i.e. did it comply with the principles of necessity and
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

Several criteria must be met for a State to exercise the right of individual or collective

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

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

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-

(2) This State must declare itself as a victim of an armed attack; [NB: the assessment whether

defence (See paras 200, 232 -236).

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

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

(3) In the case of collective self-defence the victim State must request for assistance (there is

230 - 236). The Court referred to statements made by El Salvador, Costa Rica,

no rule permitting the exercise of collective self-defence in the absence of a request by the State

Honduras and the United States before the Security Council. None of the countries

which regards itself as the victim of an armed attack).

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-

political system to coerce the Government of Nicaragua to accept various political

defence at the time when the United States was allegedly acting in collective self-

demands of the United States. The Court held:

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

first, that the United States intended, by its support of the contras, to coerce the Government

Court concluded that the United States cannot justify its use of force as collective self-

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

The criteria with regard to necessity and proportionality, that is necessary when using

considers that in international law, if one State, with a view to the coercion of another State,

force in self-defence was also not fulfilled (para 237).

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,

3. The Court held that the United States breached its CIL obligation not to intervene in

whether or not the political objective of the State giving such support and assistance is equally

the affairs of another State when it trained, armed, equipped and financed the contra

far reaching.

forces or encouraged, supported and aided the military and paramilitary activities against

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-

The principle of non- intervention means that every State has a right to conduct its

interference. no such general right of intervention, in support of an opposition within

affairs without outside interference i.e it forbids States or groups of States to

another State, exists in contemporary international law, even if such a request for

intervene directly or indirectly in internal or external affairs of other States. . This is a

assistance is made by an opposition group of that State (see para 246 for more).

corollary of the principle of sovereign equality of States.

However, in a controversial finding, the Court held that the United States did

A prohibited intervention must accordingly be one bearing on matters in which each State is

not devise the strategy, direct the tactics of the contras or exercise control on them in

permitted, by the principle of State sovereignty to decide freely. One of these is the choice of a

manner so as to make their acts committed in violation of international law imputable

political, economic, social and cultural system, and the formulation of foreign policy. Intervention

to the United States (see in this respect Determining US responsibility for contra

is wrongful when it uses methods of coercion in regard to such choices, which must remain free

operations under international law 81 AMJIL 86).T he Court concluded that a number

ones. The element of coercion, which defines, and indeed forms the very essence of, prohibited

of military and paramilitary operations of the contras were decided and planned, if not

intervention, is particularly obvious in the case of an intervention which uses force, either in the

actually by United States advisers, then at least in close collaboration with them, and

direct form of military action, or in the indirect form of support for subversive or terrorist armed

on the basis of the intelligence and logistic support which the United States was able

activities within another State (para 205).

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

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

United States.

In sum, the evidence available to the Court indicates that the various forms of assistance

While an armed attack would give rise to an entitlement to collective self-defence, a use of force

provided to the contras by the United States have been crucial to the pursuit of their activities,

of a lesser degree of gravity cannot as the Court has already observed (paragraph 21 1 above).

but is insufficient to demonstrate their complete dependence on United States aid. On the other

produce any entitlement to take collective countermeasures involving the use of force. The acts

hand, it indicates that in the initial years of United States assistance the contra force was so

of which Nicaragua is accused, even assuming them to have been established and imputable to

dependent. However, whether the United States Government at any stage devised the strategy

that State, could only have justified proportionate counter-measures on the part of the State

and directed the tactics of the contras depends on the extent to which the United States made

which had been the victim of these acts, namely El Salvador, Honduras or Costa Rica. They

use of the potential for control inherent in that dependence. The Court already indicated that it

could not justify counter-measures taken by a third State, the United States, and particularly

has insufficient evidence to reach a finding on this point. It is a fortiori unable to determine that

could not justify intervention involving the use of force.

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

4. The United States breached its customary international law obligation not to violate

preponderant or decisive, in the financing, organizing, training, supplying and equipping of the

the sovereignty of another State when it directed or authorized its aircrafts to fly over

contras, the selection of its military or paramilitary targets, and the planning of the whole of its

Nicaraguan territory and when it laid mines in the internal waters of Nicaragua and its

operation, is still insufficient in itself, on the basis of the evidence in the possession of the Court,

territorial sea.

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

to ports of the territorial sea or internal waters of Nicaragua by persons in the pay or

participation mentioned above, and even the general control by the respondent State over a

acting ion the instructions of the United States and acting under its supervision with

force with a high degree of dependency on it, would not in themselves mean, without further

its logistical support. The United States did not issue any warning on the location or

evidence, that the United States directed or enforced the perpetration of the acts contrary to

existence of mines and this resulted in injuries and increases in maritime insurance

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.

regarded as unlawful intervention, or as in any other way contrary to international law

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.

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

The ICJ examined evidence and found that in early 1984 mines were laid in or close

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,

(para 242).
its territorial sea and the air space above its territory. The United States violated

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).

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

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)

case. If you would like to add to the list, please note your suggestions in the comment box.
Drawing the right line, Tom J. Farer, 81 AMJIL 112 (Farer takes a cold-war contextual approach
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:

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

We have then a double irony. The Court uses the United States position accepting the treaty

planned, trained, armed and directed from that territory).

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

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)

survives the jurisdictional bar to the use of the other. Yet the two norms are not different enough
Discretion to decline to exercise jurisdiction, Edward Gorden, 81 AMJIL 129 (discusses the
to undermine completely the content of the Charter norm. This formalism simply masks the more
discretionary power of the court to decline to exercise its jurisdiction at the merit stages).
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

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).

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

Somber reflections on the compulsory jurisdiction of the international court, Mark Weston Janis,

constitutive one of potential great significance (81 AMJIL 100, 1987).

81 AMJIL 144

Trashing customary international law, Antony DAmato, 81 AMJIL 102 (1987) (full text):

Custom on a sliding scale, Frederic L. Kirgis 81 AMJIL 146 (Kirgis discusses the relationship

(DAmato discusses the paucity of State practice examined by the international court of justice

between State practice and opinio juris, criticizes the methods (or lack thereof) of the Court in

before concluding that the principle non-intervention formed part of customary international law.

determining the customary law nature of Article 2(4) of the Charter. Points out that actual State

He argues that the acceptance of General Assembly resolutions do not manifest opinio juris. He

practice on intervention did not support the Courts findings).

states that the Court failed to consider that Article 2(4) continued to evolve through the years.)

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

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

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

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

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

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

LJIL Symposium: Discussion of the ICJ Nicaragua Judgment

doctrine of humanitarian intervention, as well as state practice in violation of this principle, in no
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.


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

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.)