2019-119284 Public International Law

Case Digest No. 3

Military and Paramilitary Activities in and against Nicaragua

(Nicaragua v. US)
ICJ Reports, 27 June 1986

TOPIC/S: Support for the military and paramilitary activities in and against
another State is in violation of the customary international law.

EXCERPT: The ICJ decided that the United States was under a duty immediately
to cease and to refrain from all acts constituting breaches of its legal obligations, and
that it must make reparation for all injury caused to Nicaragua by the breaches of
obligations under customary international law and the 1956 Treaty, the amount of that
reparation to be fixed in subsequent proceedings if the Parties were unable to reach
agreement.

FACTS:

When 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. The armed activities against the new Government was
carried out mainly by two groups which operated along the borders with Honduras,
and Costa Rica. Initial US support to these groups fighting against the Nicaraguan
Government (called “contras”) was covert.

Later, the United States enacted a budgetary legislation for funds to be used
by United States intelligence agencies for supporting “directly or indirectly military or
paramilitary operations in Nicaragua.

Nicaragua 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 controlled by the United States. Attacks against Nicaragua
included the mining of Nicaraguan ports, and other attacks on ports, oil installations,
and a naval base.

During the dispute, 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 at the jurisdictional phase of the hearing, however, stated that it relied on an
inherent right of collective self-defense 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. Hence, this matter.

ISSUES:

Whether or not U.S. had violated international law by supporting the Contras in
their rebellion against the Sandinistas and by mining Nicaragua's harbors.

RULINGS:

U.S. had violated international law by supporting the Contras in their

rebellion against the Sandinistas and by mining
Nicaragua's harbors.
2019-119284 Public International Law
Case Digest No. 3

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.

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).

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. The United
States could only justify its action on the basis of collective self-defense, if certain
criteria were met.

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 Court held that the United States breached its CIL obligation not to
intervene in the affairs of another State, when it trained, armed, equipped and financed
the contra forces or encouraged, supported and aided the military and paramilitary
activities against Nicaragua.

The principle of non-intervention 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.

The Court concluded that 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 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.