G.R. No.

L-2662 March 26, 1949

SHIGENORI KURODA, petitioner, vs. Major General RAFAEL JALANDONI, ET AL., respondents.

FACTS:

Shigenori Kuroda was a former Lieutenant-General of the Japanese Imperial Army and Commanding General
of the Japanese Imperial Forces in The Philippines during a period from 1943 and 1944. He is charged before
a military Commission convened by the Chief of Staff of the Armed forces of the Philippines for violation of the
laws and customs of war for permitting the commission of brutal atrocities and other high crimes against
noncombatant civilians and prisoners of the Imperial Japanese Forces. Kuroda then went to the Supreme
Court questioning the legality of Executive Order No. 68 of the President of the Philippines which established a
National War Crimes Office governing the trial of accused war criminals.

Kuroda challenged the validity of Executive Order 68. His arguments, were as follows:

(1) Executive Order 68 is illegal on the ground that it violates not only the provisions of our constitutional law
but also our local laws.
(2) Military Commission has no Jurisdiction to try him for acts committed in violation of the Hague Convention
and the Geneva Convention because the Philippines is not a signatory to the first and signed the second only
in 1947 and, therefore, he is charged with “crime” not based on law, national or international
(3) Hussey and Port have no personality as prosecutors in this case because they are not qualified to practice
law in Philippines in accordance with our Rules of court and the appointment of said attorneys as prosecutors
is violative of our national sovereignty.

ISSUES: (1) Whether or not Executive Order No. 68 was unconstitutional?

(2) Whether or not the Military Commission has no jurisdiction to try petitioner for acts committed in
violation of the Hague Convention and the Geneva Convention because the Philippines is not a
signatory to the former and signed the latter only in 1947?

(3) Whether or not the appointment of Hussey and Port as prosecutors is violative of our national
sovereignty?

RULING:

(1) NO. The Supreme Court held that Executive Order No. 68 is valid and constitutional. Article 2 of the
Constitution provides in its section 3, that —

The Philippines renounces war as an instrument of national policy and adopts the generally accepted
principles of international law as part of the nation.

In accordance with the generally accepted principle of international law of the present including the Hague
Convention, the Geneva Convention and significant precedents of international jurisprudence established by
the United Nation, all those persons military or civilians who have been guilty of planning, preparing or waging
a war of aggression and of the commission of crimes and offenses consequential and incidental thereto in
violation of the laws and customs of war, of humanity and civilization are held accountable therefor.
Consequently, in the promulgation and enforcement of Execution Order No. 68, the President of the
Philippines has acted in conformity with the generally accepted and policies of international law which are part
of the our Constitution.

The promulgation of said executive order is an exercise by the President of his power as Commander in chief
of all armed forces. As held by the Supreme Court in the case of Yamashita vs. Styer, “the power to create a
military commission for the trial and punishment of war criminals is an aspect of waging war. And a military
commission has jurisdiction so long as a technical state of war continues. This includes the period of an
armistice or military occupation up to the effective of a treaty of peace and may extend beyond by treaty
agreement. Consequently, the President as Commander in Chief is fully empowered to consummate this
unfinished aspect of war which is namely the trial and punishment of war criminal through the issuance and
enforcement of Executive Order No. 68.

(2) NO.

It cannot be denied that the rules and regulation of the Hague and Geneva conventions form, part of and are
wholly based on the generally accepted principals of international law. Such rule and principles therefore form
part of the law of our nation even if the Philippines was not a signatory to the conventions embodying them for
our Constitution has been deliberately general and extensive in its scope and is not confined to the recognition
of rule and principle of international law as continued in treaties to which our government may have been or
shall be a signatory.

Furthermore when the crimes charged against petitioner were allegedly committed, the Philippines was under
the sovereignty of United States and thus were equally bound together with the United States and with Japan
to the right and obligation contained in the treaties between the belligerent countries. These rights and
obligation were not erased by our assumption of full sovereignty. War crimes committed against our people
and our government while we were a Commonwealth are triable and punishable by our present Republic.

(3) NO.

In the first place, Military Commission is a special military tribunal governed by a special law and not by the
Rules of court which govern ordinary civil court. It has already been shown that Executive Order No. 68 which
provides for the organization of such military commission is a valid and constitutional law. There is nothing in
said executive order which requires that counsel appearing before said commission must be attorneys qualified
to practice law in the Philippines in accordance with the Rules of Court.

Secondly the appointment of the two American attorneys is not violative of our nation sovereignty. It is only fair
and proper that United States, which has submitted the vindication of crimes against her government and her
people to a tribunal of our nation should be allowed representation in the trial of those very crimes. If there has
been any relinquishment of sovereignty it has not been by our government but by the United State Government
which has yielded to us the trial and punishment of her enemies.

The United State and its people have been equally if not more greatly aggrieved by the crimes with which
petitioner Kuroda stands charged before the Military Commission. It can be considered a privilege for our
Republic that a leader nation should submit the vindication of the honor of its citizens and its government to a
military tribunal of our country.

The Military Commission having been convened by virtue of a valid law with jurisdiction over the crimes
charged which fall under the provisions of Executive Order No. 68, and having said petitioner in its custody,
this Court will not interfere with the due process of such Military commission.
G.R. No. L-5 September 17, 1945

CO KIM CHAM (alias CO KIM CHAM), petitioner,

vs.
EUSEBIO VALDEZ TAN KEH and ARSENIO P. DIZON, Judge of First Instance of Manila, respondents.1

FACTS:

On January 2, 1942, the Imperial Japanese Forces occupied the City of Manila. Thereafter, the Commander in
Chief proclaimed "the Military Administration under law over the districts occupied by the Army." In said
proclamation, it was also provided that "so far as the Military Administration permits, all the laws now in force in
the Commonwealth, as well as executive and judicial institutions, shall continue to be effective for the time
being as in the past," and "all public officials shall remain in their present posts and carry on faithfully their
duties as before." On January 23, 1942, a civil government was organized by the Commander in Chief of the
Japanese forces under the name of Philippine Executive Commission wherein Jorge Vargas was appointed as
Chairman. On October 14, 1943, the so-called Republic of the Philippines was inaugurated, but no substantial
change was effected thereby in the organization and jurisdiction of the different courts that functioned during
the Philippine Executive Commission.

On October 23, 1944, a few days after the historic landing in Leyte, General Douglas MacArthur issued a
proclamation to the People of the Philippines which declared 1.) that the Government of the Commonwealth of
the Philippines is, subject to the supreme authority of the Government of the United States; and 2.) that the
laws now existing on the statute books of the Commonwealth of the Philippines and the regulations
promulgated pursuant thereto are in full force and effect and legally binding upon the people in areas of the
Philippines free of enemy occupation and control; and 3.) That all laws of any other government in the
Philippines than that of the said Commonwealth are null and void and without legal effect in areas of the
Philippines free of enemy occupation and control. On February 3, 1945, the City of Manila was partially
liberated. Thereafter, General MacArthur declared "the full powers and responsibilities under the Constitution
restored to the Commonwealth.

Co Kim Cham filed the present petition for mandamus praying that the respondent judge of the lower court,
Arsenio Dizon, be ordered to continue the proceedings in civil case No. 3012 which were initiated under the
regime of the so-called Republic of the Philippines established during the Japanese military occupation.

The respondent judge refused to take cognizance of and continue the proceedings in said case on the ground
that the proclamation issued on October 23, 1944, by General Douglas MacArthur had the effect of invalidating
and nullifying all judicial proceedings and judgements of the court of the Philippines under the Philippine
Executive Commission and the Republic of the Philippines established during the Japanese military
occupation. Furthermore, respondent judge argued that the lower courts have no jurisdiction to take
cognizance of and continue judicial proceedings pending in the courts of the defunct Republic of the
Philippines in the absence of an enabling law granting such authority. Finally, respondent argued that the
government established in the Philippines during the Japanese occupation were not de facto governments.

ISSUES:

(1) Whether or not the judicial acts and proceedings of the courts established in the Philippines under the
Philippine Executive Commission and the Republic of the Philippines were good and valid and remained good
and valid even after the liberation or reoccupation of the Philippines by the United States and Filipino forces.
RULINGS:

There are several kinds of de facto governments. The first is that government that
gets possession and control of, or usurps, by force or by the voice of the majority,
the rightful legal governments and maintains itself against the will of the latter. The
second is that which is established and maintained by military forces who invade
and occupy a territory of the enemy in the course of war, and which is denominated
a government of paramount force. And the third is that established as an
independent government by the inhabitants of a country who rise in insurrection
against the parent state.

(1) YES. The Supreme Court held that the governments by the Philippine Executive Commission and the
Republic of the Philippines during the Japanese occupation were de facto governments that were established
and maintained by military forces who invade and occupy a territory of the enemy in the course of war.
Being de facto governments, it necessarily follows that the judicial acts and proceedings of the courts of justice
of those governments, which are not of a political complexion, were good and valid, and, by virtue of the well-
known principle of postliminy (postliminium) in international law, remained good and valid after the liberation or
reoccupation of the Philippines by the American and Filipino forces under the leadership of General Douglas
MacArthur.

According to the principle of postliminy in international law, the fact that a territory which has been occupied by
an enemy comes again into the power of its legitimate government of sovereignty, "does not, except in a very
few cases, wipe out the effects of acts done by an invader, which for one reason or another it is within his
competence to do. Thus judicial acts done under his control, when they are not of a political complexion,
administrative acts so done, to the extent that they take effect during the continuance of his control, and the
various acts done during the same time by private persons under the sanction of municipal law, remain good.
Were it otherwise, the whole social life of a community would be paralyzed by an invasion. When the
occupation and the abandonment have been each an incident of the same war as in the present case,
postliminy applies, even though the occupant has acted as conqueror and for the time substituted his own
sovereignty as the Japanese intended to do apparently in granting independence to the Philippines and
establishing the so-called Republic of the Philippines.

That not only judicial but also legislative acts of de facto governments, which are not of a political complexion,
are and remain valid after reoccupation of a territory occupied by a belligerent occupant, is confirmed by the
Proclamation issued by General Douglas MacArthur on October 23, 1944, which declares null and void all
laws, regulations and processes of the governments established in the Philippines during the Japanese
occupation, for it would not have been necessary for said proclamation to abrogate them if they were invalid ab
initio.

Having arrived at the above conclusions, it follows that the Court of First Instance of Manila has jurisdiction to
continue to final judgment the proceedings in civil case No. 3012, which involves civil rights of the parties under
the laws of the Commonwealth Government, pending in said court at the time of the restoration of the said
Government.

In view of all the foregoing it is adjudged and decreed that a writ of mandamus issue, directed to the
respondent judge of the Court of First Instance of Manila, ordering him to take cognizance of and continue to
final judgment the proceedings in civil case No. 3012 of said court. No pronouncement as to costs. So
ordered.
G.R. No. L-129 December 19, 1945

TOMOYUKI YAMASHITA, petitioner,

vs.
WILHELM D. STYER, Commanding General, United States Army Forces, Western Pacific, respondent.

FACTS:

Tomoyuki Yamashita was a commanding general of the 14th army group of the Japanese Imperial Army in the
Philippines. He is charged before an American Military Commission with monstrous crimes committed against
the American and Filipino people. After his surrender, petitioner became a prisoner of war of the United States
of America. However, he was later removed from such status and placed in confinement as an accused war
criminal charged before an American Military Commission constituted by Lieutenant General Styer. Yamashita
then filed a petition for habeas corpus and prohibition with the Court against Lt. Gen. Wilhelm D. Styer, with the
prayer that he be reinstated to his former status as prisoner of war, and that the Military Commission be
prohibited from further trying him.

Yamashita argued that the Military Commission was not duly constituted, and, therefore, it is without
jurisdiction; that the Philippines cannot be considered as an occupied territory, and the Military Commission
cannot exercise jurisdiction therein; that Spain, the "protecting power" of Japan, has not been given notice of
the implementing trial against petitioner, contrary to the provisions of the Geneva Convention; that there is no
charge of an offense against the laws of war against the petitioner; and that the rules of procedure and
evidence under which the Military Commission purports to be acting denied the petitioner a fair trial.

ISSUES:

(1) Whether or not the petition for habeas corpus and prohibition is proper in the case?

(2) Whether or not the Military Commission had been validly constituted and therefore having jurisdiction over
war crimes?

RULINGS:

(1) NO. The Supreme Court held that the petition for habeas corpus is untenable. It seeks no discharge of
petitioner from confinement but merely his restoration to his former status as a prisoner of war, to be interned,
not confined. The relative difference as to the degree of confinement in such cases is a matter of military
measure, disciplinary in character, and beyond the jurisdiction of civil courts.

Neither may the petition for prohibition prosper against Lt. Gen. Wilhelm D. Styer. The military Commission is
not made party respondent in this case, and although it may be acting, as alleged, without jurisdiction, no order
may be issued in these case proceedings requiring it to refrain from trying the petitioner.

Furthermore, the Court has no jurisdiction to entertain the petition even if the commission be joined as
respondent. As held by the Court in Raquiza vs. Bradford (pp. 50, 61, ante), ". . . an attempt of our civil courts
to exercise jurisdiction over the United States Army before such period (state of war) expires, would be
considered as a violation of this country's faith, which this Court should not be the last to keep and uphold."

"An important incident to a conduct of a war is the adoption of measure by the military command not only to
repel and defeat the enemies but to seize and subject to disciplinary measures those enemies who in their
attempt to thwart or impede our military effort to have violated the law of the war." The power to create a
Military Commission for the trial and punishment of war criminals is an aspect of waging war. And, a Military
Commission "has jurisdiction so long as a technical state of war continues. This includes the period of an
armistice, or military occupation, up to the effective date of a treaty agreement."

(2) YES. The Court held that the Military Commission had been validly constituted and it has jurisdiction both
over the person of the petitioner and over the offenses with which he is charged.

The Commission has been validly constituted by Lieutenant General Styer duly issued by General Douglas
MacArthur in accordance in authority vested in him. According to the Regulations Governing the Trial of the
War Criminals in the Pacific, the "trial of persons, units and organizations accused as a war criminals will be
the Military Commissions to be convened by or under the authority of the Commander in Chief, United States
Army Forces, Pacific."

Articles of War Nos. 12 and 15 recognized the "Military Commission" appointed by military command as an
appropriate tribunal for the trial and punishment of offenses against the law of the war not ordinarily tried by
court martial. This is upon the theory that since the power to create a Military Commission is an aspect of
waging war, Military Commanders have that power unless expressly withdrawn from them.

The Military Commission thus duly constituted has jurisdiction both over the person of the petitioner and over
the offenses with which he is charged. It has jurisdiction over the person of the petitioner by reason of his
having fallen into the hands of the United States Army Forces. Under paragraph 347 of the Rules of the Land
Warfare, "the commanders ordering the commission of such acts, or under whose authority they are committed
by their troops, may be punished by the belligerent into whose hands they may fall."

As to the jurisdiction of the Military Commission over war crimes, Article 15 of the Articles of War has explicitly
provided, so far as it may constitutionally do so, that military tribunals shall have jurisdiction to try offenders or
offenses against the law of war in appropriate cases. Since petitioner is charged with crimes which include the
massacre and extermination of thousands of unarmed noncombatant civilians by cruel and brutal means, these
are offenses considered as war crimes and against the laws of the war.
THE REPUBLIC OF NICARAGUA V. THE UNITED STATES OF AMERICA

FACTS:

In July 1979, the Government of President Somoza was replaced by a government installed
by Frente Sandinista de Liberacion Nacional (FSLN). Supporters of the former Somoza Government and
former members of the National Guard opposed the new government. 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 the United States stopped its aid to Nicaragua and in September 1981, according to
Nicaragua, the United States “decided to plan and undertake activities directed against Nicaragua”. The armed
activities against the new Government was carried out mainly by
(1) Fuerza Democratica Nicaragüense (FDN), which operated along the border with Honduras, and
(2) Alianza Revolucionaria Democratica (ARDE), which operated along the border with Costa Rica. Initial US
support to these groups fighting against the Nicaraguan Government (called “contras”) was covert. However
later, the United States officially acknowledged its support such as when it made specific provision for funds to
be used by United States intelligence agencies for supporting “directly or indirectly military or paramilitary
operations in Nicaragua”.

On April 9, 1984, the Republic of Nicaragua filed a complaint with the International Court of Justice
(ICJ). It alleged that the United States, in recruiting, training, arming, equipping, financing, supplying and
otherwise encouraging, supporting, aiding, and directing military and paramilitary actions in and against
Nicaragua, had violated its treaty obligations to Nicaragua under:

 Article 2 (4) of the United Nations Charter;

 Articles 18 and 20 of the Charter of the Organization of American States;
 Article 8 of the Convention on Rights and Duties of States;
 Article I, Third, of the Convention concerning the Duties and Rights of States in the Event of
Civil Strife.

Nicaragua also alleged that the United States had breached international law by violating the
sovereignty of Nicaragua through armed attacks against Nicaragua by air, land and sea; efforts by direct and
indirect means to coerce and intimidate the Government of Nicaragua; using force and the threat of force
against Nicaragua; intervening in the internal affairs of Nicaragua; infringing upon the freedom of the high seas
and interrupting peaceful maritime commerce; and killing, wounding and kidnapping citizens of Nicaragua.

Meanwhile, the United States did not appear before the ICJ at the merit stages, after refusing to accept
the ICJ’s jurisdiction to decide the case. The United States argued that the Court did not have jurisdiction, with
U.S. ambassador to the United Nations Jeane Kirkpatrick dismissing the Court as a "semi-legal, semi-juridical,
semi-political body, which nations sometimes accept and sometimes don't." The United States at the
jurisdictional phase of the hearing, however, argued that that its actions were "primarily for the benefit of El
Salvador, and to help it to respond to an alleged armed attack by Nicaragua.

The United States claims to be exercising a right of collective self-defense, which it regards as a
justification of its own conduct towards Nicaragua. El Salvador joined the U.S. in their Declaration of
Intervention which it submitted on 15 August 1984, where it alleged itself the victim of an armed attack by
Nicaragua, and that it had asked the United States to exercise for its benefit the right of collective self-
defence."

The ICJ ruled in favor of Nicaragua and against the United States and awarded reparations to
Nicaragua. It held that the U.S. had violated international law by supporting the Contras in their rebellion
against the Nicaraguan government and by mining Nicaragua's harbors. The Court found in its verdict that the
United States was "in breach of its obligations under customary international law not to use force against
another State", "not to intervene in its affairs", "not to violate its sovereignty", "not to interrupt peaceful maritime
commerce", and "in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and
Navigation between the Parties signed at Managua on 21 January 1956." The United States then challenged
the jurisdiction of the I.C.J in the case when it was held responsible for illegal military and paramilitary activities
in and against Nicaragua.

ISSUES:

(1) Whether or not the prohibition of the use of force and collective self-defence are issues regulated
both by customary international law and by treaties, in particular the United Nations Charter.

(2) Whether or not the recognition of the States of certain rules is sufficient to consider as being part of
customary international law, and as applicable as such to States.

(3) Whether or not the United States breached 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?

(3) Whether or not the military and paramilitary activities that the United States undertook in and
against Nicaragua be justified as collective self-defence?

THE RULING OF THE COURT:

(1) YES. The Court ruled that the issues of the use of force and collective self-defence are regulated
both by customary international law and by treaties, in particular the United Nations Charter.

The Court concluded that both Parties accept a treaty-law obligation to refrain in their international
relations from the threat or use of force against the territorial integrity or political independence of any
State, or in any other manner inconsistent with the purposes of the United Nations. The Court has
however to be satisfied that there exists in customary law an opinio juris as to the binding character of
such abstention. It considers that this opinio juris may be deduced from, inter alia, the attitude of the
Parties and of States towards certain General Assembly resolutions, and particularly resolution 2625
(XXV) entitled "Declaration on Principles of International Law concerning Friendly Relations and Co-
operation among States in Accordance with the Charter of the United Nations". Consent to such
resolutions is one of the forms of expression of an opinio juris with regard to the principle of non-use of
force, regarded as a principle of customary international law, independently of the provisions, especially
those of an institutional kind, to which it is subject on the treaty-law plane of the Charter.

(2) NO. The Court ruled that the mere fact that States declare their recognition of certain rules is not
sufficient for the Court to consider these as being part of customary international law, and as applicable
to those States. Bound as it is by Article 38 of its Stature to apply, inter alia, international custom “as
evidence of general practice accepted as law”, the Court may not disregard the essential role played by
general practice. Where two States agree to incorporate a particular rule in a treaty, their agreement
suffices to make that rule a legal one, binding upon them; but in the field of customary international law,
the shared view of the Parties as to the content of what they regard as the rule is not enough. The
Court must satisfy itself that the existence of the rule in the opinio juris of State is confirmed by practice.

In the present disputes, the Court, while exercising its jurisdiction only in respect of the application of
the customary rules of non-use of force and non-intervention, cannot disregard the fact that the Parties
are bound by these rules as a matter of treaty law and of customary international law. Furthermore, in
the present case, apart from the treaty commitments binding the Parties to the rules in question,
there are various instances of their having expressed recognition of the validity thereof as
customary international law in other ways.
 The court said that in order to deduce the existence of customary rules, the Court deems it sufficient
that the conduct of the States should, in general, be consistent with such rules, and that instances of
State conduct inconsistent with the given rule should generally have been treated as breaches of that
rule, not as indications of the recognition of a new rule.

The Court emphasized, as was observed in the North Sea Continental Shelf case, for a new customary
rule to be formed, not only must the acts concerned “ amount to a settled practice”, but they must
accompanied by the opinio juris sive necessitates. Either the States taking such action or other States
in a position to react to it, must have behaved so that their conduct is “evidence of a belief that this
practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belef,
i.e., the existence of a subjective elements, is implicit in the very notion of the opinio juris sive
necessitates.”

(3) Yes. 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 Court held that:

 The principle of non-intervention requires that every State has a right to conduct its affairs without
outside interference. In other words, the principle “…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.

 The Court held that: “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. 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, to substantially damage the economy and to weaken the political system with the aim to
coerce the Government of Nicaragua to accept various political demands of the United States. The
Court concluded in international law, that 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, 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 violated the principle of non-interference. “…(N)o 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).

(4) No. The Court held that the United States could not justify its military and paramilitary
activities on the basis of collective self-defence.

Article 51 of the UN Charter sets out the treaty based requirements on the exercise of the right of self-
defense. It states:
“Nothing in the present Charter shall impair the inherent right of individual or collectiveself-
defence if an armed attack occurs against a Member of the United Nations, until the Security
Council has taken measures necessary to maintain international peace and security. Measures taken
by Members in the exercise of this right of self-defence shall be immediately reported to the Security
Council.”

The Court held that:

 Customary international law allows for exceptions to the prohibition on the use of force, which
includes the right to individual or collective self-defence. When a State claims that it used force in
collective self-defence, the Court would examine the following:
(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.
 Under international law, several requirements 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) That State must declare itself as a victim of an armed attack. The assessment on whether an
armed attack had taken place or not, is done by the State who was subjected to the attack. A third
State cannot exercise a right of collective self-defence based that third State’s own assessment;
(3) In the case of collective self-defence, the victim State must request for assistance. The Court held
that “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) A State that is attacked, 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 Court held that “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, then, looked extensively into the conduct of Nicaragua, El Salvador, Costa Rica, and
Honduras to determine if (1) an armed attack was undertaken by Nicaragua against the three countries,
which in turn would (2) necessitate those countries to act in self-defence against Nicaragua (paras 230
– 236). The Court noted that (1) none of the countries who were allegedly subject to an armed attack
by Nicaragua declared themselves as victims of an armed attack; (2) they did not request
assistance from the United States to exercise its right of self-defence; (3) the United States did not
claim that when it used force, it was acting under Article 51 of the UN Charter; and (4) the United
States did not report that it was acting in self-defense to the Security Council.

 The Court concluded that, based on the above, the United States cannot justify its use of force
as collective self-defence.
 In any event, the Court held that the criteria relating to necessity and proportionality, that is
required to be met when using force in self-defence – were also not fulfilled (para 237).