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some call for a complete abolition of the law,  the

ASIA BIBI CASE former judge of the Islamabad High Court, Justice
INTRODUCTION Shaukat Aziz Siddiqui, was of the opinion that it is
Blasphemy law was first promulgated in the sub- better to prevent exploitation of the law than to abolish
continent by the British Government as a result of it. 
protests by Muslims, who demanded enactment of a This case note examines the SC judgment in the
law that may provide protection against insult of their Asia Bibi case in the light of the established principles
religious feelings. This issue arose after a person of criminal law and the law of evidence: that
named Rajpal published material containing “everyone is presumed innocent unless proved guilty”,
derogatory remarks against the Prophet Muhammad and that “the prosecution has to prove its cases beyond
(Peace Be Upon Him).  He was not convicted, as there any reasonable doubt”. It shows that the verdict of the
was no law which prevented insult to a religion. Rajpal Lahore High Court (‘LHC’) in Asia Bibi case was
was later killed by Ilm-ud-Din and after the latter’s seriously flawed. It is argued that the SC has acquitted
hanging, the Muslims demanded a ban on this Asia Bibi on the basis of sound reasoning and the
pamphlet and forced the British Government to insert established principles of criminal law.
section 295-A  in the Indian Penal Code 1860.  FACTS AND JUDGMENT
Pakistan inherited the same law in 1947.
The facts of the case are that on 14 June 2009,
During the period of martial law imposed by
Asia Bibi allegedly uttered derogatory remarks against
General Zia-ul-Haq, rapid changes were brought in the
the Holy Prophet Muhammad (Peace Be Upon Him)
law. This time is commonly referred to as the
and the Holy Qur’an, while she was plucking falsa
‘Islamisation’ of the Pakistani legal system.  In this
(purple berries) along with other Muslim ladies in the
regard, section 295-C  was added in the Pakistan Penal
fields of one Muhammad Idrees in village Ittanwali,
Code 1860  (‘PPC’) in 1986. The validity of this
District Nankana, the Province of Punjab. Two Muslim
provision was considered by the Federal Shariat Court
ladies, namely, Mafia Bibi and Asma Bibi, narrated
(‘FSC’) in Muhammad Ismail Qureshi v Pakistan
this incidence to the complainant, Qari Muhammad
through Secretary, Law and Parliamentary Affairs. 
Salaam. On 19 June 2009, he called the accused to a
The FSC ruled that section 295-C was repugnant to
public gathering, where she allegedly confessed her
Islam by allowing life imprisonment as a substitute to
guilt, and on the same day a First Information Report
a death sentence. The Court was of the view that death
(‘FIR’) was registered against Asia Bibi under section
penalty is applicable for contempt of the Holy Prophet.
295-C of the PPC at the Police Station Sadar, District
The FSC further held that, if the President did not
Nankana.
amend the law before 30 April 1991, then section 295-
The prosecution’s case was essentially premised
C would stand amended by its decision. The ruling of
on the statements of the eyewitnesses and the alleged
FSC was challenged before the Supreme Court of
extra-judicial confession. Asia Bibi, however, denied
Pakistan (‘SC’). However, the appeal was dismissed
the allegations. In the statement under section 342  of
due to non-prosecution. Thus, the judgment of FSC
the Code of Criminal Procedure 1898 (‘CrPC’), she
remains in field. Therefore, under the existing law in
stated, “…I have great respect and honor to the Holy
PPC, persons convicted under section 295-C are liable
Prophet (PBUH) as well as Holy Quran and since
to be sentenced to death, with or without a fine.
police have conspired with the complainant, so, the
In Pakistan, the topic of blasphemy has been
police have falsely booked me in this case….”
under discussion for many years. Critics are of the
The trial court convicted Asia Bibi under section
view that this law targets the minorities and is misused.
295-C of the PPC vide judgment dated 8 November
It is stated that the law itself is broad, unclear, and has
2010 and sentenced her to death with a fine of
been misused for personal vendettas.   For example, in
Rs.1,00,000. In default of the payment thereof she was
Ayub Masih v The State,  the SC observed that the
liable to undergo simple imprisonment for a period of
complainant wanted to seize the land of Ayub Masih
six months. Asia Bibi appealed against her conviction
and his father, after involving them in a false
before the LHC,  which dismissed this appeal, vide
blasphemy case. This law has been misused and
judgment dated 16 October 2014. In appeal against this
applied arbitrarily, mostly affecting non-Muslims in
judgment, the SC reappraised the evidence on the
Pakistan.  Those who have spoken up regarding the
record and acquitted Asia Bibi after finding her
amendment and misuse of this law have also been
innocent because the prosecution failed to prove the
targeted.  A High Court judge, namely, Arif Iqbal
guilt beyond a reasonable doubt.
Bhatti was killed in 1997 after he acquitted Salamat
ANALYSIS
Masih and Rehmat Masih from blasphemy charges.  It
Under section 295-C of the PPC, a blasphemous
is reported that violence relating to blasphemy has
act targeting the Prophet (Peace Be Upon Him) attracts
increased during the past few years.  Due to this, it was
the punishment of death. Those who vehemently
suggested that the punishment be proposed for those
oppose the verdict of the SC are of the opinion that
falsely accusing others of blasphemy.  Even though
Asia Bibi committed the above-mentioned offense and

therefore should be put to death. More specifically, the
prosecution claimed that Asia Bibi committed an
heinous offense and offended the feelings of Muslims.
It was also stated that the five day delay in lodging of
the FIR was sufficiently explained as the complainant
had investigated the matter before reporting it to the
police. It was pointed out that both the eyewitnesses
were not cross-examined in connection to the material
aspect of blasphemy. In addition to this, as per the
prosecution, the accused admitted commission of
offence in a public gathering and on the basis of these
reasons, the counsel for prosecution claimed that Asia
Bibi deserved the death penalty because the case has
been proved beyond any shadow of doubt through
concrete and consistent evidence.
On the other hand, Asia Bibi’s defense is that on the
day of alleged occurrence, an altercation took place
between the appellant and both the eyewitnesses
regarding the fetching of water. According to Asia
Bibi, the eyewitnesses refused to take water from her
because she was a Christian. As a result of this
disagreement, a false case was registered against the
appellant. The appellant also claimed that the extra-
judicial confession was not voluntary but was a result
of coercion and undue pressure, as the complainant
brought the appellant before a gathering and threatened
to kill her. Therefore, the counsel for the appellant
contended that the extra-judicial confession cannot be
made the basis of the conviction. He also stated that
the inordinate delay in lodging of the FIR casts serious
doubts about the case of the complainant and a false
story was concocted against the appellant, thus, she
should be acquitted from the charge.
While considering potential misuse of blasphemy
law in Pakistan,  the SC, at the very outset, stated that
only the State has the authority to decide on blasphemy
charges. The SC, for the first time, has thoroughly
referred to the relevant provisions of the law (Articles
4,  37 (d),  175(2)  of the Constitution and section 28  of blasphemy. In the circumstances of this case, this
of the CrPC) in order to establish authority of the State
to decide in the blasphemy cases.  The SC further
referred to its judgment in Malik Muhammad Mumtaz
Qadri v the State  to clarify that the State is to ensure
that innocent persons are not tried on false blasphemy
charges.
The SC analyzed the evidence which was
available on record. The verdict of LHC may briefly be
discussed in order to examine the reasons recorded by
the SC for the acquittal of Asia Bibi. The LHC
confirmed the death sentence awarded by the trial
court for the reasons that (a) the presence of the
eyewitnesses and the appellant at the relevant time in
the field of falsa was not denied; (b) the witnesses
were not cross-examined by the defence in relation to
the offence of blasphemy alleged against the appellant;
(c) the defence could not point out any previous
enmity, ill-will, or ulterior motive of the eyewitnesses
against the appellant, which would indicate a false
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involvement in this case; and (d) the testimony of court
witness, Muhammad Idrees, provides a strong
corroboration to the evidence provided by the
eyewitnesses.
The reasons given by the LHC for maintaining
conviction of Asia Bibi are misconceived. It is to be
noted that under section 342 of the CrPC, Asia Bibi
had stated that Mafia and Asma Bibi had argued with
her over fetching of water and that they were both
sisters. As per Asia Bibi, they wanted to involve her in
the case on the basis on that quarrel.  Thus, it is not a
case of the defense that the eyewitnesses were not
present at the spot of the alleged occurrence. As stated
by Asia Bibi, the eyewitnesses implicated her in a false
case due to the exchange of hot words between them
on fetching water. The LHC, thus, erred while
appreciating the suggestions (put by defense to
establish enmity between Asia Bibi and the
eyewitnesses) as a proof of the presence of Asia Bibi
and the eyewitnesses at the place of occurrence. 
The second reason that the witnesses have not
been cross-examined by the defense as to the offence
of blasphemy alleged against the appellant  is based on
misreading of the evidence and misinterpretation of the
law. Reliance of the LHC on Hafiz Tassaduq Hussain
v Lal Khatoon,  with reference to the interpretation of
Article 132  of the Qanun-e-Shahadat Order 1984, that
a fact deposed in examination-in-chief, but not cross-
examined shall be deemed to have been admitted, is
misplaced. The LHC seems to have ignored the latest
case Nadeem Ramzan v The State,  in which it was
held that the part of the statement, which remains un-
rebutted amounts to an admission, does not attract in
criminal cases.
As to the non-appearance of other ladies present
at the place of alleged occurrence, the LHC relied on
Haji Bashir Ahmad v The State  to hold that evidence
of even a single witness is sufficient to prove a charge
rule does not apply, when none of the prosecution
witnesses were, in fact, able to prove the alleged
offence of blasphemy, against the accused. The LHC
failed to note irregularities in the conduct of police
investigation. This aspect of the case may be
elaborated later.
The SC assessed evidence of seven witness
produced by the prosecution and a court witness: Qari
Muhhamd Salaam (complainant), Mafia Bibi and
Asma Bibi (eyewitnesses), Muhammad Afzal (a
witness of extra-judicial confession), police witnesses,
and Muhammad Idress. The evidence was with
reference to the registration of the FIR and the conduct
of the police investigation, extra-judicial confession,
plausibility, coherence, and consistency of the
prosecution evidence. Regarding the delay in
registering the FIR, Justice Saqib Nisar found that the
explanation given for such delay was not satisfactory.
He referred to the case of Iftikhar Hussain and others v

The State,  in which it was held that the FIR lodged
after conducting an inquiry, loses its evidentiary value.
Justice Asif Khosa noted that the prosecution failed to
explain the delay of five days in getting the FIR
registered, and it failed to produce details of the
investigation, consultation, and looking into the matter
with people of the village before the recording of the
FIR. He noted  that the complainant did not even
remember where and before whom the application was
presented for the registration of the FIR. As the
eyewitnesses informed the complainant of the alleged
incident, admittedly, he was not present at the place of
occurrence. His statement was merely hearsay. The
complainant also changed his stance frequently. He did
not mention in the FIR as to when he was informed
about the incident. In his statement before the court, he
said that Mafia Bibi, Asma Bibi, and Yasmin Bibi
(given up witness) informed him on 14 June 2009 and
at that time Muhammad Afzal and Muhammad
Mukhtar Ahmad were present with him, whereas, he
did not mention the presence of these persons in the
FIR. In cross-examination, he stated that he came to
know about the occurrence on 16 June 2009. In view
of this, the SC concluded that the complainant’s
statements and the FIR lacked credibility. Further, the
SC noted that investigation was conducted in violation
of section 156-A  of the CrPC, as Muhammad
Arshad/ASI recorded the statements of the prosecution
witnesses, prepared the site plan, and arrested the
accused. Muhammad Amin Bukhari/SP, as required
under section 156-A CrPC, was assigned investigation
at a later stage. However, the LHC failed to note this
irregularity in the police investigation. Surprisingly,
both the courts failed to determine the impact of this
irregularity in the police investigation on the fate of the
case.
Regarding the extra-judicial confession that
allegedly took place at the public gathering, the SC
observed that it “is a fragile piece of evidence and
utmost care and caution has to be exercised in placing
reliance on such a confession.”  The Court further held
that “the legal worth of [an] extra-judicial confession is
almost equal to naught…”  as it might have been
obtained by inducement or coercion. The SC stated in
view of Article 37  of the Qanun-e-Shahadat Order
1984, a confession caused by any inducement, threat or
promise with reference to the charge against the
accused person is irrelevant in criminal proceedings.
One main question to consider is if Asia Bibi was
actually forced to appear before the public gathering
and whether the prosecution was able to convince the
SC that she was not threatened. “[T]he alleged extra-
judicial confession … even if presumed to have been
made by her before such public gathering”,  noted by
Justice Saqib Nisar, returning to the lack of clarity
regarding the circumstances surrounding the alleged
public gathering and the alleged extra-judicial
confession, cannot unequivocally be termed as “a
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voluntary action … nor it can be relied upon to form
the basis of a conviction, especially for capital
punishment.”
Justice Khosa found that the evidence produced
in respect of alleged public gathering and confession of
blasphemy was not only an afterthought but also a
concoction.  It may further be appreciated that the
complainant failed to mention any public gathering in
the FIR; the key prosecution witnesses, namely, Mafia
Bibi, Asma Bibi, and Muhammad Afzal did not
mention anything about any public gathering in their
statements under section 161 of the CrPC. Further,
their statements in court were found mutually
contradictory and against the record of the case,
particularly, with reference to date, time, or place of
holding of such gathering. Justice Khosa stated that the
“evidence … where the public gathering had been
held, how many people had participated in that
gathering, who and how the appellant was brought to
the gathering … has been found by me to be replete
with glaring contradictions exposing the complex
falsity of the … prosecution's story.” 
The SC has disbelieved the evidence of
eyewitnesses, Mafia Bibi and Asma Bibi, as they
suppressed material fact of verbal exchange of hot
words between them and Asia Bibi on fetching water,
during the investigation and also before the court. It
clearly showed that eyewitnesses were inimical
towards the accused so they tried to hide the quarrel
with the accused. This fact surfaced only through the
statements of Muhammad Amin Bukhari,
Superintendent Police (Investigation) and owner of the
fields, namely, Muhammad Idrees. It proved the fact
that both the eyewitnesses were not truthful witnesses.
The SC further noted that the eyewitnesses failed to
tell whom Asia Bibi addressed while making the
alleged remarks; they never deposed that in whose
fields the alleged occurrence took place, and why they
had not reported the incident to the local police.  The
LHC failed to examine this aspect as well. The SC
securitized the evidence duly and provided convincing
reasons for the acquittal of Asia Bibi.
CONCLUSION
In the landmark judgment in the Asia Bibi case,
the SC has extensively referred to the Quran, Sunnah,
and the covenant of the Prophet Muhammad (Peace Be
Upon Him) with non-Muslim minorities to strengthen
its reasoning. The SC further affirms its authority in
interpreting the Islam on blasphemy. It established
with a thorough analysis of the law that only the State
has the mandate to decide in blasphemy cases. This
judgment hints on the conduct of the lower courts as to
the appraisal of evidence. However, it does not provide
guidelines for the appreciation of evidence in
blasphemy cases by the lower courts. The SC
highlights the misuse of blasphemy laws in Pakistan,
but fails to propose safeguards for the protection of
minorities. The SC goes a long way to disapprove the
 4

conduct of those who have brought false blasphemy

cases against minorities. Nevertheless, it did not
recommend an adequate punishment for such persons.

NICARAGUA VS THE UNITED STATES: USE
OF FORCE AND SELF-DEFENSE (1 OF 3)
International Court of Justice Contentious
Case: Case Concerning the Military and
Paramilitary Activities In and Against Nicaragua
(Nicaragua vs United States)  budgetary legislation enacted by the United States
Year of Decision: 1986.  by United States intelligence agencies for supporting
Note: This post will discuss the International Court of
Justice’s (ICJ) discussions on the use of force and
self-defence. If you would like to read about the ICJ’s
discussions on jurisdictional issues relating to the
multilateral treaty reservation of the United States and
the ICJ’s reliance on customary law, please click
here.  controlled by the United States. Nicaragua also alleged
For a diagram on some of the points discussed here,
click here. It is recommended to use the diagram
alongside this blog post.
Overview:
The case involved military and paramilitary
activities carried out by the United States against
Nicaragua from 1981 to 1984.  Nicaragua asked the
Court to find that these activities violated
international law.  merit stages, after refusing to accept the ICJ’s
Facts of the Case:
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
5
(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. Later, the United States officially
acknowledged its support (for example: In 1983
Congress made specific provision for funds to be used
“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 the contras were paid for and directly
that some attacks against Nicaragua were carried out,
directly, by the United States military – with the aim to
overthrow the Government of Nicaragua. Attacks
against Nicaragua included the mining of Nicaraguan
ports, and other 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
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 when it
provided “upon request proportionate and appropriate
assistance…” to Costa Rica, Honduras, and El
Salvador in response to Nicaragua’s acts of aggression
against those countries (paras 126, 128). F1: Map of

Nicaragua, Costa Rica, Honduras and El Salvador.
Questions before the Court:
1. Did the United States violate 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 when it encouraged, supported, and
aided the military and paramilitary activities
against Nicaragua?
2. Did the United States violate its customary
international law obligation not to use force
against another State, when it directly
attacked Nicaragua in 1983 and 1984 and
when its activities in point (1) above resulted
in the use of force?
3.  Can the military and paramilitary activities
that the United States undertook in and
against Nicaragua be justified as collective
self-defence?
4. 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
the territory of Nicaragua and because of acts
referred to in (2) above?
5. 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 in the territorial sea of Nicaragua?
6
The Court’s Decision:
The United States violated customary international law
in relation to (1), (2), (4) and (5) above. On (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
violated its customary international law
obligation not to use force against another
State when its activities with
the contras resulted in the threat or use of
force  (see paras 191-201). 
The Court held that:
 The prohibition on the use of force is found
both in Article 2(4) of the Charter of the
United Nations (UN Charter) and in customary
international law.
 In a controversial finding the Court sub-
classified the use of force as:
(1) “most grave forms of the use of force” (i.e. those
that constitute an armed attack); and
(2) “other less grave forms” of the use of force (i.e.
organizing, instigating, assisting, or participating in
acts of civil strife and terrorist acts in another State –
when the acts referred to involve a threat or use of
force, but not amounting to an armed attack). (Para
191), 
 The United States violated the customary
international law prohibition on the use of
force when it laid mines in Nicaraguan ports.
It also violated this prohibition when it
attacked Nicaraguan ports, oil installations,
and a naval base (see below). The United
States could only justify its action on the basis
of collective self-defence, if certain criteria
were met (these criteria are 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 strife…in
another State”  and when these acts involved
the threat or use of force.
 The supply of funds to the contras did not
violate the prohibition on the use of force. On
the contrary, Nicaragua had previously argued
before the Court that the United States
determined the timing of offensives against
Nicaragua when it provided funds to
the contras. 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 the arming and training of the
contras and the supply of funds, in itself, only
amounted to acts of intervention in the internal
affairs of Nicaragua and did not violate the
prohibition on the use of force (para 227)
(again, this aspect will be discussed in detail
below).
2. The Court held that the United States violated its
customary international law obligation not to use
force against another State when it directly
attacked Nicaragua in 1983 and 1984 (see paras 187
– 201).
Note: A controversial but interesting aspect of the
Court’s 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 (sic) 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
State’s) substantial involvement therein”.
Note also that that he second point somewhat
resembles Article 3(g) of the UNGA Resolution 3314
(XXIX) on the Definition of Aggression.
The Court further held that:
7
 Mere frontier incidents will not considered as
armed attacks, unless, because of its scale and
effects, it would have been classified as an
armed attack had it been carried out by regular
forces.
 Assistance to rebels by providing weapons or
logistical support did not constitute an armed
attack. Instead, 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). 
Note:  In  in the ICJ’s Case Concerning Oil
Platforms and the ICJ’s 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 confirmed the definition of  an “armed
attack” as proposed in the Nicaragua case. Draft
Articles on State Responsibility, prepared by the
International Law Commission, provides 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 may have widened the
scope of an armed attack, and consequently, the right
of self defence, envisaged by the ICJ. (for example,
see discussion surrounding the United States’ attacks
in Afghanistan and Iraq) See also a paper
by Max Plank Institute on this topic (2017).

F 2. The most serious use of force and its
consequences. Full diagram is here.
3. The Court held that the United States could not
justify its military and paramilitary activities on the
basis of collective self-defence.
Note that 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 (see here for a
difference between individual and
collective self defense). The United States, at
an earlier stage of the proceedings, had
also agreed that the UN Charter acknowledges
8
the existence of this customary international
law right when it talks of the “inherent” right
under Article 51 of the Charter (para.193).
 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).
“…Whatever influence the Charter may have had on
customary international law in these matters, it is clear
that in customary international law it is not a condition
of the lawfulness of the use of force in self-defence
that a procedure so closely dependent on the content
of a treaty commitment and of the institutions

established by it, should have been followed. On the
other hand, if self-defence is advanced as a
justification for measures which would otherwise be in
breach both of the principle of customary international
law and of that contained in the Charter, it is to
be expected that the conditions of the Charter should
be respected. Thus for the purpose of enquiry into the
customary law position, the absence of a report may be
one of the factors indicating whether the State in
question was itself convinced that it was acting in self-
defence (See paras 200, 232 -236)”.
 The Court, 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).
 4. 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.  if such a request for assistance is made by an
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:
9
“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, 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 that:
 “…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 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
opposition group of that State (see para 246 for more).
F 3. The prohibition on non intervention. For full
diagram, click here.

 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). The 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.
“…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 States…
The 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
10
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 211 above) produce any
entitlement to take collective countermeasures
involving the use of force. The acts of which
Nicaragua is accused, even assuming them to have
been established and imputable to that State, could
only have justified proportionate counter-measures on
the part of the State which had been the victim of these
acts, namely El Salvador, Honduras or Costa Rica.
They could not justify counter-measures taken by a
third State, the United States, and particularly could
not justify intervention involving the use of force.”
 11

5. The United States violated 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  Court 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.  It held that a State’s sovereignty
extends to its internal waters, its territorial sea,
and the airspace 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.