NICARAGUA VS THE UNITED STATES: USE OF FORCE AND SELF-DEFENSE

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 (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
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 the contras were paid for and
directly controlled by the United States. Nicaragua also alleged 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 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-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).

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.

1
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
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:

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).

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

3
individual and collective self defense). The United States, at an earlier stage of the proceedings,
had also agreed that the UN Charter acknowledges 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

4
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.

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. 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,

5
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 if such a request for assistance is made by an opposition group of that
State (see para 246 for more).

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.

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).

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..