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 self-defence)
Year of Decision: 1986
Court: ICJ
NB: This blog post will discuss matters on the use of force and self-defence. If you
would like to read about the impact of the Nicaragua judgement on
customary international law and the US multilateral reservation please
click here.
Overview: The case involved military and paramilitary activities conducted by the
United States against Nicaragua from 1981 to 1984. Nicaragua asked the Court to
find that these activities violated international law.
Facts of the Case:
In July 1979 the Government of President Somoza collapsed following an armed
opposition led by the Frente Sandinista de Liberacibn Nacional (FSLN) . The new
government installed by FSLN began to meet armed opposition from supporters
of the former Somoza Government and ex-members of the National Guard. The US
initially supportive of the new government changed its attitude when, according
to the United States, it found that Nicaragua was providing logistical support and
weapons to guerrillas in El Salvador. In April 1981 it terminated United States aid
to Nicaragua and in September 1981, according to Nicaragua, the United
States decided to plan and undertake activities directed against Nicaragua.
The armed opposition to the new Government was conducted mainly by
(1) Fuerza Democratica Nicaragense (FDN), which operated along the border with
Honduras, and (2)Alianza Revolucionaria Democratica (ARDE), which operated
along the border with Costa Rica, (see map of the region). Initial US support to
these groups fighting against the Nicaraguan Government (called contras) was
covert. Later, the United States officially acknowledged its support (for example: In
1983 budgetary legislation enacted by the United States Congress made specific
provision for funds to be used by United States intelligence agencies for supporting
directly or indirectly military or paramilitary operations in Nicaragua).
Nicaragua also alleged that the United States is effectively in control of
the contras, the United States devised their strategy and directed their tactics and
that they were paid for and directly controlled by United States personal.
Nicaragua also alleged that some attacks were carried out by United
States military with the aim to overthrow the Government of Nicaragua. Attacks
against Nicaragua included the mining of Nicaraguan ports and attacks on ports,
oil installations and a naval base. Nicaragua alleged that aircrafts belonging to the
United States flew over Nicaraguan territory to gather intelligence, supply to the
contras in the field and to intimidate the population.
The United States did not appear before the ICJ at the merit stages, after refusing
to accept the ICJs jurisdiction to decide the case. The United States at the
jurisdictional phase of the hearing, however, stated that it relied on an inherent
right of collective self-defence guaranteed in A. 51 of the UN Charter by providing,
upon request, proportionate and appropriate assistance to Costa Rica, Honduras
and El Salvador in response to Nicaraguas alleged acts aggression against those
countries (paras. 126, 128).
Questions before the Court:
Did the United States breach its customary international law obligation
not to intervene in the affairs of another State when it trained, armed,
equipped and financed the contra forces or encouraged, supported and aided the
military and paramilitary activities against Nicaragua?
Did the United States breach its customary international law obligation
not to use force against another State when it directly attacked Nicaragua in
1983 1984 and when its activities in bullet point 1 above resulted in the use of
force?
If so, can the military and paramilitary activities that the United
States undertook in and against Nicaragua be justified as collective self-defence?
Did the United States breach its customary international law obligation
not to violate the sovereignty of another State when it directed or authorized its
aircrafts to fly over Nicaraguan territory and by acts referred to in bullet point 2
above?
Did the United States breach its customary international law
obligations not to violate the sovereignty of another State, not to intervene in its
affairs, not to use force against another State and not to interrupt peaceful
maritime commerce when it laid mines in the internal waters and the territorial
sea of Nicaragua?
ICJ decision: The United States violated customary international law in relation to
bullet points 1, 2, 4 and 5 above. On bullet point 3, the Court found that the United
States could not rely on collective self-defence to justify its use of force against
Nicaragua.
Relevant Findings of the Court:
1. The court held that the United States breached its customary
international law obligation not to use force against another State: (1)
when it directly attacked Nicaragua in 1983 1984; and (2) when its
activities with the contra forces resulted in the threat or use of force (see
paras 187 -201).
The Court held that:
The prohibition on the use of force is found in Article 2(4) of the UN
Charter and in customary international law.
In a controversial finding the court sub-classified the use of 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 use of force 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 violated this
prohibition when it attacked Nicaraguan ports, oil installations and a naval base
(see below). The United States could justify its action on collective self-defence, if
certain criteria were met this aspect is discussed below.
The United States violated the customary international law prohibition
on the use of force when it assisted the contras by organizing or encouraging the
organization of irregular forces and armed bands for incursion into the territory of
another state and participated in acts of civil strifein another State when
these acts involved the threat or use of force.
The supply of funds to the contras did not violate the prohibition on the
use of force. Nicaragua argued that the timing of the offensives against it was
determined by the United States: i.e. an offensive could not be launched until the
requisite funds were available. The Court held that it does not follow that each
provision of funds by the United States was made to set in motion a particular
offensive, and that that offensive was planned by the United States. The Court
held further that while the arming and training of the contras involved the threat

or use of force against Nicaragua, the supply of funds, in it self, only amounted to
an act of intervention in the internal affairs of Nicaragua (para 227) this aspect
is discussed below.
What is an armed attack?
A controversial but interesting aspect of the Courts judgement was its
definition of an armed attack. The Court held that an armed attack included:
(1) action by regular armed forces across an international border; and
(2) the sending by or on behalf of a State of armed bands, groups, irregulars or
mercenaries, which carry out acts of armed force against another State of such
gravity as to amount to (inter alia) an actual armed attack conducted by regular
forces, or its (the States) substantial involvement therein
NB: The second point somewhat resembles Article 3 (g) of the UNGA Resolution
3314 (XXIX) on the Definition of Aggression.
Mere frontier incidents are not considered as an armed attack unless
because of its scale and effects it would have been classified as an armed attack if
it was carried out by regular forces.
Assistance to rebels in the form of provision of weapons or logistical
support did not constitute an armed attack it can be regarded as a threat or use
of force, or an intervention in the internal or external affairs of other States (see
paras 195, 230).
Under Article 51 of the UN Charter and under CIL self-defence is only
available against a use of force that amounts to an armed attack (para 211).
NB: In in the Case Concerning Oil Platforms and the advisory opinion on the Legal
Consequences of of the Construction of a Wall in the Occupied Palestinian Territory
(hereinafter called the Palestine wall case) the ICJ upheld the definition of armed
attack proposed in the Nicaragua case. In the Palestinian wall case, the attacks
from which Israel was claiming self defence originated from 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 Higgins,
Buergenthal and Kooijmans opposed this narrow view. Articles on State
Responsibility, prepared by the International Law Commission, provided significant
guidance as to when acts of non-State actors may be attributed to States. These
articles, together with recent State practice relating attacks on terrorists operating
from other countries (see legal opinions surrounding the United States attack on
Afghanistan), may have widened the scope of an armed attack, and consequently,
the right of self defence, envisaged by the ICJ.
2. The Court held that the United States could not justify its military and
paramilitary activities on the basis of collective self-defence.
Customary international law allows for exceptions to the prohibition on
the use of force including the right to individual or collective self-defence (for a
difference between the two forms of self defence, click here). The United States, at
an earlier stage of the proceedings, had asserted that the Charter itself
acknowledges the existence of this customary international law right when it talks
of the inherent right of a State under Article 51 of the Charter (para.193).
When a State claims that it used force in collective self-defence, the
Court would look into two aspects:
(1) whether the circumstances required for the exercise of self-defence existed
and
(2) whether the steps taken by the State, which was acting in self-defence,
corresponds to the requirements of international law (i.e. did it comply with the
principles of necessity and proportionality).
Several criteria must be met for a State to exercise the right of
individual or collective self-defence:
(1) A State must have been the victim of an armed attack;
(2) This State must declare itself as a victim of an armed attack; [NB: the
assessment whether an armed attack took place nor not is done by the state who
was subjected to the attack. A third State cannot exercise a right of collective selfdefence based its (the third States) own assessment]; and
(3) In the case of collective self-defence the victim State must request for
assistance (there is no rule permitting the exercise of collective self-defence in the
absence of a request by the State which regards itself as the victim of an armed
attack).
(4) The State does not, under customary international law, have the same
obligation as under Article 51 of the UN Charter to report to the Security Council
that an armed attack happened but the absence of a report may be one of the
factors indicating whether the State in question was itself convinced that it was
acting in self-defence (see below).
At this point, the Court may consider whether in customary international law there
is any requirement corresponding to that found in the treaty law of the United
Nations Charter, by which the State claiming to use the right of individual or
collective self-defence must report to an international body, empowered to
determine the conformity with international law of the measures which the State is
seeking to justify on that basis. Thus Article 51 of the United Nations Charter
requires that measures taken by States in exercise of this right of self-defence
must be immediately reported to the Security Council. As the Court has observed
above (paragraphs 178 and 188), a principle enshrined in a treaty, if reflected in
customary international law, may well be so unencumbered with the conditions
and modalities surrounding it in the treaty. Whatever influence the Charter may
have had on customary international law in these matters, it is clear that in
customary international law it is not a condition of the lawfulness of the use of
force in self-defence that a procedure so closely dependent on the content of a
treaty commitment and of the institutions established by it, should have been
followed. On the other hand, if self-defence is advanced as a justification for
measures which would otherwise be in breach both of the principle of customary
international law and of that contained in the Charter, it is to be expected that the
conditions of the Charter should be respected. Thus for the purpose of enquiry into
the customary law position, the absence of a report may be one of the factors
indicating whether the State in question was itself convinced that it was acting in
self-defence (See paras 200, 232 -236).
The Court looked extensively into the conduct of Nicaragua, El
Salvador, Costa Rica and Honduras in determining whether an armed attack was
undertaken by Nicaragua against the three countries which in turn would
necessitate self-defence (paras 230 - 236). The Court referred to statements made
by El Salvador, Costa Rica, Honduras and the United States before the Security
Council. None of the countries who were allegedly subject to an armed attack by
Nicaragua (1) declared themselves as a victim of an armed attack or
request assistance from the United States in self-defence at the time when the
United States was allegedly acting in collective self-defence; and (2) the United
States did not claim that it was acting under Article 51 of the UN Charter and it did
not report that it was so acting to the Security Council. The Court concluded that
the United States cannot justify its use of force as collective self-defence.

The criteria with regard to necessity and proportionality, that is

necessary when using force in self-defence was also not fulfilled (para 237).
3. The Court held that the United States breached its CIL obligation not
to intervene in the affairs of another State when it trained, armed,
equipped and financed the contra forces or encouraged, supported and
aided the military and paramilitary activities against Nicaragua.
The principle of non- intervention means that every State has a right to
conduct its affairs without outside interference i.e it forbids States or groups of
States to intervene directly or indirectly in internal or external affairs of other
States. . This is a corollary of the principle of sovereign equality of States.
A prohibited intervention must accordingly be one bearing on matters in which
each State is permitted, by the principle of State sovereignty to decide freely. One
of these is the choice of a political, economic, social and cultural system, and the
formulation of foreign policy. Intervention is wrongful when it uses methods of
coercion in regard to such choices, which must remain free ones. The element of
coercion, which defines, and indeed forms the very essence of, prohibited
intervention, is particularly obvious in the case of an intervention which uses force,
either in the direct form of military action, or in the indirect form of support for
subversive or terrorist armed activities within another State (para 205).
Nicaragua stated that the activities of the United States were aimed to
overthrow the government of Nicaragua and to substantially damage the economy
and weaken the political system to coerce the Government of Nicaragua to accept
various political demands of the United States. The Court held:
first, that the United States intended, by its support of the contras, to coerce
the Government of Nicaragua in respect of matters in which each State is
permitted, by the principle of State sovereignty, to decide freely (see paragraph
205 above) ; and secondly that the intention of the contras themselves was to
overthrow the present Government of Nicaragua The Court considers that in
international law, if one State, with a view to the coercion of another State,
supports and assists armed bands in that State whose purpose is to overthrow the
government of that State, that amounts to an intervention by the one State in the
internal affairs of the other, whether or not the political objective of the State
giving such support and assistance is equally far reaching.
The financial support, training, supply of weapons, intelligence and
logistic support given by the United States to the contras was a breach of the
principle of non-interference. no such general right of intervention, in support of
an opposition within another State, exists in contemporary international law, even
if such a request for assistance is made by an opposition group of that State (see
para 246 for more).
However, in a controversial finding, the Court held that the United
States did not devise the strategy, direct the tactics of the contras or exercise
control on them in manner so as to make their acts committed in violation of
international law imputable to the United States (see in this respect Determining
US responsibility for contra operations under international law 81 AMJIL 86).T he
Court concluded that a number of military and paramilitary operations of the
contras were decided and planned, if not actually by United States advisers, then
at least in close collaboration with them, and on the basis of the intelligence and
logistic support which the United States was able to offer, particularly the supply
aircraft provided to the contras by the United States but not all contra operations
reflected strategy and tactics wholly devised by the United States.
In sum, the evidence available to the Court indicates that the various forms of
assistance provided to the contras by the United States have been crucial to the
pursuit of their activities, but is insufficient to demonstrate their complete
dependence on United States aid. On the other hand, it indicates that in the initial
years of United States assistance the contra force was so dependent. However,
whether the United States Government at any stage devised the strategy and
directed the tactics of the contras depends on the extent to which the United

States made use of the potential for control inherent in that dependence. The
Court already indicated that it has insufficient evidence to reach a finding on this
point. It is a fortiori unable to determine that the contra force may be equated for
legal purposes with the forces of the United StatesThe Court has taken the view
(paragraph 110 above) that United States participation, even if preponderant or
decisive, in the financing, organizing, training, supplying and equipping of the
contras, the selection of its military or paramilitary targets, and the planning of the
whole of its operation, is still insufficient in itself, on the basis of the evidence in
the possession of the Court, for the purpose of attributing to the United States the
acts committed by the contras in the course of their military or paramilitary
operations in Nicaragua. All the forms of United States participation mentioned
above, and even the general control by the respondent State over a force with a
high degree of dependency on it, would not in themselves mean, without further
evidence, that the United States directed or enforced the perpetration of the acts
contrary to human rights and humanitarian law alleged by the applicant State.
Such acts could well be committed by members of the contras without the control
of the United States. For this conduct to give rise to legal responsibility of the
United States, it would in principle have to be proved that that State had effective
control of the military or paramilitary.
Interesting, however, the Court also held that providing
humanitarian aid to persons or forces in another country, whatever their political
affiliations or objectives, cannot be regarded as unlawful intervention, or as in any
other way contrary to international law (para 242).
In the event one State intervenes in the affairs of another State, the
victim State has a right to intervene in a manner that is short of an armed attack
(210).
While an armed attack would give rise to an entitlement to collective self-defence,
a use of force of a lesser degree of gravity cannot as the Court has already
observed (paragraph 21 1 above). produce any entitlement to take collective
countermeasures involving the use of force. The acts of which Nicaragua is
accused, even assuming them to have been established and imputable to that
State, could only have justified proportionate counter-measures on the part of the
State which had been the victim of these acts, namely El Salvador, Honduras or
Costa Rica. They could not justify counter-measures taken by a third State, the
United States, and particularly could not justify intervention involving the use of
force.
4. The United States breached its customary international law obligation
not to violate the sovereignty of another State when it directed or
authorized its aircrafts to fly over Nicaraguan territory and when it laid
mines in the internal waters of Nicaragua and its territorial sea.
The ICJ examined evidence and found that in early 1984 mines were
laid in or close to ports of the territorial sea or internal waters of Nicaragua by
persons in the pay or acting ion the instructions of the United States and acting
under its supervision with its logistical support. The United States did not issue
any warning on the location or existence of mines and this resulted in injuries and
increases in maritime insurance rates.
The court found that the United States also carried out high-altitude
reconnaissance flights over Nicaraguan territory and certain low-altitude flights,
complained of as causing sonic booms.
The basic concept of State sovereignty in customary international law
is found in Article 2(1) of the UN Charter. State sovereignty extends to a States
internal waters, its territorial sea and the air space above its territory. The United
States violated customary international law when it laid mines in the territorial sea
and internal waters of Nicaragua and when it carried out unauthorised overflights
over Nicaraguan airspace by aircrafts that belong to or was under the control of
the United States.