CASE CONCERNING
MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA
(Nicaragua v. United States of America)
International Court of Justice
June 27, 1986
General List No. 70
Judgment of 27 June 1986
Separate Opinion:
President Nagendra Singh
Judge Lachs
Judge Ruda
Judge Elias
Judge Ago
Judge Sette-Camara
Judge Ni
Dissenting Opinions:
Judge Oda
Judge Sir Robert Jennings
*14
MERITS
Failure of Respondent to
appear - Statute of the Court, Article 53 - Equality of the parties.
Jurisdiction of the Court
- Effect of application of multilateral treaty reservation to United States
declaration of acceptance of jurisdiction under Statute, Article 36, paragraph
2 - Third State 'affected' by decision of the Court on dispute arising under a
multilateral treaty - Character of objection to jurisdiction not exclusively
preliminary - Rules of Court, Article 79.
Justiciability of the
dispute - 'Legal dispute' (Statute, Article 36, paragraph 2).
Establishment of facts -
Relevant period - Powers of the Court - Press information and matters of public
knowledge - Statements by representatives of States - Evidence of witnesses -
Implicit admissions - Material not presented in accordance with Rules of Court.
Acts imputable to
respondent State - Mining of ports - Attacks on oil installations and other
objectives - Overflights - Support of armed bands opposed to Government of applicant State -
Encouragement of conduct contrary to principles of humanitarian law - Economic
pressure - Circumstances precluding international responsibility - Possible
justification of imputed acts - Conduct of Applicant during relevant period.
Applicable law - Customary
international law - Opinio juris and State practice - Significance of
concordant views of Parties - Relationship between customary international law
and treaty law - United Nations Charter - Significance of Resolutions of United
Nations General Assembly and Organization of American States General Assembly.
*15 Principle prohibiting recourse to the threat
or use of force in international relations - Inherent right of self-defence -
Conditions for exercise - Individual and collective self-defence - Response to
armed attack - Declaration of having been the object of armed attack and
request for measures in the exercise of collective self-defence.
Principle of
non-intervention - Content of the principle - Opinion juris - State practice -
Question of collective counter-measures in response to conduct not amounting to
armed attack.
State sovereignty -
Territory - Airspace - Internal and territorial waters - Right of access of
foreign vessels.
Principles of humanitarian
law - 1949 Geneva Conventions - Minimum rules applicable - Duty of States not
to encourage disrespect for humanitarian law - Notification
of existence and location of mines.
Respect for human rights -
Right of States to choose political system, ideology and alliances.
1956 Treaty of Friendship,
Commerce and Navigation - Jurisdiction of the Court - Obligation under
customary international law not to commit acts calculated to defeat object and
purpose of a treaty - Review of relevant treaty provisions.
Claim for reparation.
Peaceful settlement of
disputes.
Judgment
Present: President
NAGENDRA SINGH; Vice-President DE
LACHARRIERE; Judges LACHS, RUDA, ELIAS,
ODA, AGO, SETTE-CAMARA, SCHWEBEL, Sir Robert JENNINGS, MBAYE, BEDJAOUI, NI,
EVENSEN; Judge ad hoc COLLIARD;
Registrar TORRES BERNARDEZ.
In the case concerning
military and paramilitary activities in and against Nicaragua,
between
the Republic of Nicaragua,
H.E. Mr. Carlos Arguello Gomez, Ambassador,
as Agent and Counsel,
Mr. Ian Brownlie, Q.C., F.B.A., Chichele Professor of Public
International Law in the University of Oxford;
Fellow of All Souls College, Oxford,
Hon. Abram Chayes, Felix Frankfurter Professor of Law, Harvard Law
School; Fellow, American Academy of
Arts and Sciences,
Mr. Alain Pellet, Professor at the University of Paris-Nord and
the Institut d'etudes politiques de Paris,
*16 Mr. Paul S. Reichler,
Reichler and Appelbaum, Washington, D.C.;
Member of the Bar of the United States Supreme Court; Member of the Bar of the District of
Columbia,
as Counsel and Advocates,
Mr. Augusto Zamora Rodriguez, Legal Adviser to the Foreign Ministry
of the Republic of Nicaragua,
Miss Judith C. Appelbaum, Reichler and Appelbaum, Washington,
D.C.; Member of the Bars of the
District of Columbia and the State of California,
Mr. David Wippman, Reichler and Appelbaum, Washington, D.C.,
as Counsel,
and
the United States of America,
composed as above,
delivers the following
Judgment:
1. On 9 April 1984 the
Ambassador of the Republic of Nicaragua to the Netherlands filed in the
Registry of the Court an Application instituting proceedings against the United
States of America in respect of a dispute concerning responsibility for
military and paramilitary activities in and against Nicaragua. In order to found the jurisdiction of the
Court the Application relied on declarations made by the Parties accepting the
compulsory jurisdiction of the Court under Article 36 of the Statute.
2. Pursuant to Article 40,
paragraph 2, of the Statute, the Application was at once communicated to the
Government of the United States of America.
In accordance with paragraph 3 of that Article, all other States
entitled to appear before the Court were notified of the Application.
3. At the same time as the
Application was filed, the Republic of Nicaragua also filed a request for the
indication of provisional measures under Article 41 of the Statute. By an Order dated 10 May 1984, the Court
rejected a request made by the United States for removal of the case from the
list, indicated, pending its final decision in the proceedings, certain
provisional measures, and decided that, until the Court delivers its final
judgment in the case, it would keep the matters covered by the Order
continuously under review.
4. By the said Order of 10 May 1984, the Court further decided
that the written proceedings in the case should first be addressed to the
questions of the jurisdiction of the Court to entertain the dispute and of the
admissibility of the Application. By an
Order dated 14 May 1984, the President of the Court fixed 30 June 1984 as
time-limit for the filing of a Memorial by the Republic of Nicaragua and 17
August 1984 as time-limit for the filing of a Counter- Memorial by the United
States of America on the questions of jurisdiction and admissibility and these
pleadings were duly filed within the time-limits fixed.
5. In its Memorial on
jurisdiction and admissibility, the Republic of Nicaragua contended that, in
addition to the basis of jurisdiction relied on in the Application, a Treaty of
Friendship, Commerce and Navigation signed by the Parties *17 in 1956
provides an independent basis for jurisdiction under Article 36, paragraph 1,
of the Statute of the Court.
6. Since the Court did not
include upon the bench a judge of Nicaraguan nationality, Nicaragua, by a
letter dated 3 August 1984, exercised its right under Article 31, paragraph 2,
of the Statute of the Court to choose a judge ad hoc to sit in the case. The person so designated was Professor
Claude-Albert Colliard.
7. On 15 August 1984, two
days before the closure of the written proceedings on the questions of
jurisdiction and admissibility, the Republic of El Salvador filed a Declaration
of Intervention in the case under Article 63 of the Statute.
Having been supplied with the written observations of the Parties on the
Declaration pursuant to Article 83 of the Rules of Court, the Court, by an
Order dated 4 October 1984, decided not to hold a hearing on the Declaration of
Intervention, and decided that that Declaration was inadmissible inasmuch as it
related to the phase of the proceedings then current.
8. On 8-10 October and
15-18 October 1984 the Court held public hearings at which it heard the
argument of the Parties on the questions of the jurisdiction of the Court to
entertain the dispute and the admissibility of the Application.
9. By a Judgment dated 26
November 1984, the Court found that it had jurisdiction to entertain the
Application on the basis of Article 36, paragraphs 2 and 5, of the Statute of
the Court; that it had jurisdiction to
entertain the Application in so far as it relates to a dispute concerning the interpretation
or application of the Treaty of Friendship, Commerce and Navigation between the
United States and Nicaragua of 21 January 1956, on the basis of Article XXIV of
that Treaty; that it had jurisdiction
to entertain the case; and that the
Application was admissible.
10. By a letter dated 18
January 1985 the Agent of the United States referred to the Court's Judgment of
26 November 1984 and informed the Court as follows:
'the United States is
constrained to conclude that the judgment of the Court was clearly and
manifestly erroneous as to both fact and law.
The United States remains firmly of the view, for the reasons given in
its written and oral pleadings that the Court
is without jurisdiction to entertain the dispute, and that the Nicaraguan
application of 9 April 1984 is inadmissible.
Accordingly, it is my duty to inform you that the United States intends
not to participate in any further proceedings in connection with this case, and
reserves its rights in respect of any decision by the Court regarding
Nicaragua's claims.'
11. By an Order dated 22
January 1985 the President of the Court, after referring to the letter from the
United States Agent, fixed 30 April 1985 as time-limit for a Memorial of
Nicaragua and 31 May 1985 as time-limit for a Counter-Memorial of the United
States of America on the merits of the dispute. The Memorial of Nicaragua was
filed within the time-limit so fixed;
no pleading was filed by the United States of America, nor did it make
any request for extension of the time-limit.
In its Memorial, communicated to the United States pursuant to Article
43 of the Statute of the Court, Nicaragua invoked Article 53 of the Statute and
called upon the Court to decide the case despite the failure of the Respondent
to appear and defend.
*18 12. On 10 September 1985, immediately prior
to the opening of the oral proceedings, the Agent of Nicaragua submitted to the
Court a number of documents referred to as 'Supplemental Annexes' to the
Memorial of Nicaragua. In application of Article 56 of the Rules of Court,
these documents were treated as 'new documents' and copies were transmitted to
the United States of America, which did not
lodge any objection to their production.
13. On 12-13 and 16-20
September 1985 the Court held public hearings at which it was addressed by the
following representatives of Nicaragua:
H.E. Mr. Carlos Arguello Gomez, Hon. Abram Chayes, Mr. Paul S. Reichler,
Mr. Ian Brownlie, and Mr. Alain Pellet.
The United States was not represented at the hearing. The following witnesses were called by
Nicaragua and gave evidence: Commander Luis Carrion, Vice-Minister of the
Interior of Nicaragua (examined by Mr. Brownlie); Dr. David MacMichael, a former officer of the United States
Central Intelligence Agency (CIA) (examined by Mr. Chayes); Professor Michael John Glennon (examined by
Mr. Reichler); Father Jean Loison
(examined by Mr. Pellet); Mr. William
Huper, Minister of Finance of Nicaragua (examined by Mr. Arguello Gomez). Questions were put by Members of the Court
to the witnesses, as well as to the Agent and counsel of Nicaragua, and replies
were given either orally at the hearing or subsequently in writing. On 14 October 1985 the Court requested
Nicaragua to make available certain further information and documents, and one
Member of the Court put a question to Nicaragua. The verbatim records of the hearings and the information and
documents supplied in response to these requests were transmitted by the
Registrar to the United States of America.
14. Pursuant to Article
53, paragraph 2, of the Rules of Court, the pleadings and annexed documents
were made accessible to the public by the Court as from the date of opening of the oral proceedings.
15. In the course of the
written proceedings, the following submissions were presented on behalf of the
Government of Nicaragua:
in the Application:
'Nicaragua, reserving
the right to supplement or to amend this Application and subject to the
presentation to the Court of the relevant evidence and legal argument, requests
the Court to adjudge and declare as follows:
(a) 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, has
violated and is violating its express charter and treaty obligations to
Nicaragua, and in particular, its charter and treaty obligations 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.
(b) That the United States, in breach of its obligation under
general and customary international law, has violated and is violating the
sovereignty of Nicaragua by:
*19 - armed attacks against
Nicaragua by air, land and sea;
- incursions into Nicaraguan
territorial waters;
- aerial trespass into Nicaraguan airspace;
- efforts by direct and indirect means to coerce and intimidate
the Government of Nicaragua.
(c) That the United States, in breach of its obligation under
general and customary international law, has used and is using force and the
threat of force against Nicaragua.
(d) That the United States, in breach of its obligation under
general and customary international law, has intervened and is intervening in
the internal affairs of Nicaragua.
(e) That the United States, in breach of its obligation under
general and customary international law, has infringed and is infringing the
freedom of the high seas and interrupting peaceful maritime commerce.
(f) That the United States, in breach of its obligation under
general and customary international law, has killed, wounded and kidnapped and
is killing, wounding and kidnapping citizens of Nicaragua.
(g) That, in view of its breaches of the foregoing legal
obligations, the United States is under a particular duty to cease and desist
immediately: from all use of force - whether direct or indirect, overt or
covert - against Nicaragua, and from all threats of force against Nicaragua;
from all violations of
the sovereignty, territorial integrity or political independence of Nicaragua, including all
intervention, direct or indirect, in the internal affairs of Nicaragua;
from all support of any
kind - including the provision of training, arms, ammunition, finances,
supplies, assistance, direction or any other form of support - to any nation,
group, organization, movement or individual engaged or planning to engage in
military or paramilitary actions in or against Nicaragua;
from all efforts to
restrict, block or endanger access to or from Nicaraguan ports;
and from all killings,
woundings and kidnappings of Nicaraguan citizens.
(h) That the United States has an obligation to pay Nicaragua, in
its own right and as parens patriae for the citizens of Nicaragua, reparations
for damages to person, property and the Nicaraguan economy caused by the
foregoing violations of international law in a sum to be determined by the
Court. Nicaragua reserves the right to
introduce to the Court a precise evaluation of the damages caused by the United
States';
in the Memorial on the merits:
'The Republic of
Nicaragua respectfully requests the Court to grant the following relief:
First: the Court is requested to adjudge and
declare that the United *20 States has violated the obligations of
international law indicated in this
Memorial, and that in particular respects the United States is in continuing
violation of those obligations.
Second: the Court is requested to state in clear
terms the obligation which the United States bears to bring to an end the
aforesaid breaches of international law.
Third: the Court is requested to adjudge and
declare that, in consequence of the violations of international law indicated
in this Memorial, compensation is due to Nicaragua, both on its own behalf and
in respect of wrongs inflicted upon its nationals; and the Court is requested further to receive evidence and to
determine, in a subsequent phase of the present proceedings, the quantum of
damages to be assessed as the compensation due to the Republic of Nicaragua.
Fourth: without prejudice to the foregoing request,
the Court is requested to award to the Republic of Nicaragua the sum of
370,200,000 United States dollars, which sum constitutes the minimum valuation
of the direct damages, with the exception of damages for killing nationals of
Nicaragua, resulting from the violations of international law indicated in the
substance of this Memorial.
With reference to the
fourth request, the Republic of Nicaragua reserves the right to present
evidence and argument, with the purpose of elaborating the minimum (and in that
sense provisional) valuation of direct damages and, further, with the purpose of claiming
compensation for the killing of nationals of Nicaragua and consequential loss
in accordance with the principles of international law in respect of the
violations of international law generally, in a subsequent phase of the present
proceedings in case the Court accedes to the third request of the Republic of
Nicaragua.
16. At the conclusion of
the last statement made on behalf of Nicaragua at the hearing, the final
submissions of Nicaragua were presented, which submissions were identical to
those contained in the Memorial on the merits and set out above.
17. No pleadings on the
merits having been filed by the United States of America, which was also not
represented at the oral proceedings of September 1985, no submissions on the
merits were presented on its behalf.
* * * * *
18. The dispute before the
Court between Nicaragua and the United States concerns events in Nicaragua
subsequent to the fall of the Government of President Anastasio Somoza Debayle
in Nicaragua in July 1979, and activities of the Government of the United
States in relation to Nicaragua since that time. Following the departure of
President Somoza, a Junta of National Reconstruction and an 18-member
government was installed by the body which had led the armed opposition to President Somoza, the Frente
Sandinista de Liberacion Nacional (FSLN).
That body had initially an extensive share in the new government,
described as a 'democratic coalition', and as a result of later resignations
and reshuffles, became *21 almost its sole component. Certain opponents of the new Government,
primarily supporters of the former Somoza Government and in particular
ex-members of the National Guard, formed themselves into irregular military forces,
and commenced a policy of armed opposition, though initially on a limited
scale.
19. The attitude of the
United States Government to the 'democratic coalition government' was at first
favourable; and a programme of economic
aid to Nicaragua was adopted. However
by 1981 this attitude had changed.
United States aid to Nicaragua was suspended in January 1981 and
terminated in April 1981. According to
the United States, the reason for this change of attitude was reports of
involvement of the Government of Nicaragua in logistical support, including
provision of arms, for guerrillas in El Salvador. There was however no interruption in diplomatic relations, which
have continued to be maintained up to the present time. In September 1981, according to testimony
called by Nicaragua, it was decided to plan and undertake activities directed
against Nicaragua.
20. The armed opposition
to the new Government in Nicaragua, which originally comprised various
movements, subsequently became organized into two main groups:
the Fuerza Democratica Nicaraguense (FDN) and the Alianza Revolucionaria
Democratica (ARDE). The first of these
grew from 1981 onwards into a trained fighting force, operating along the
borders with Honduras; the second,
formed in 1982, operated along the borders with Costa Rica. The precise extent to which, and manner in
which, the United States Government contributed to bringing about these
developments will be studied more closely later in the present Judgment. However, after an initial period in which
the 'covert' operations of United States personnel and persons in their pay
were kept from becoming public knowledge, it was made clear, not only in the
United States press, but also in Congress and in official statements by the
President and high United States officials, that the United States Government
had been giving support to the contras, a term employed to describe those
fighting against the present Nicaraguan Government. 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'. According to
Nicaragua, the contras have caused it considerable material damage and
widespread loss of life, and have also committed such acts as killing of
prisoners, indiscriminate killing of civilians, torture, rape and kidnapping.
It is contended by Nicaragua that the United States Government is effectively
in control of the contras, that it devised their strategy and directed their tactics, and that the purpose of that
Government was, from the beginning, to overthrow the Government of Nicaragua.
21. Nicaragua claims
furthermore that certain military or paramilitary operations against it were
carried out, not by the contras, who at the time claimed responsibility, but by
persons in the pay of the United States *22 Government, and under the
direct command of United States personnel, who also participated to some extent
in the operations. These operations
will also be more closely examined below in order to determine their legal
significance and the responsibility for them;
they include the mining of certain Nicaraguan ports in early 1984, and
attacks on ports, oil installations, a naval base, etc. Nicaragua has also complained of overflights
of its territory by United States aircraft, not only for purposes of
intelligence-gathering and supply to the contras in the field, but also in
order to intimidate the population.
22. In the economic field,
Nicaragua claims that the United States has withdrawn its own aid to Nicaragua,
drastically reduced the quota for imports of sugar from Nicaragua to the United
States, and imposed a trade embargo; it
has also used its influence in the Inter-American Development Bank and the
International Bank for Reconstruction and Development to block the provision of
loans to Nicaragua.
23. As a matter of law,
Nicaragua claims, inter alia, that the United States has acted in violation of
Article 2, paragraph 4, of the United Nations Charter,
and of a customary international law obligation to refrain from the threat or
use of force; that its actions amount
to intervention in the internal affairs of Nicaragua, in breach of the Charter
of the Organization of American States and of rules of customary international
law forbidding intervention; and that
the United States has acted in violation of the sovereignty of Nicaragua, and
in violation of a number of other obligations established in general customary
international law and in the inter-American system. The actions of the United States are also claimed by Nicaragua to
be such as to defeat the object and purpose of a Treaty of Friendship, Commerce
and Navigation concluded between the Parties in 1956, and to be in breach of
provisions of that Treaty.
24. As already noted, the
United States has not filed any pleading on the merits of the case, and was not
represented at the hearings devoted thereto. It did however make clear in its
Counter-Memorial on the questions of jurisdiction and admissibility that 'by
providing, upon request, proportionate and appropriate assistance to third
States not before the Court' it claims to be acting in reliance on the inherent
right of self-defence 'guaranteed . . . by Article 51 of the Charter' of the
United Nations, that is to say the right of collective self-defence.
25. Various elements of
the present dispute have been brought before the United Nations Security
Council by Nicaragua, in April 1984 (as the Court had occasion to note in its Order of 10 May 1984,
and in its Judgment on jurisdiction and admissibility of 26 November 1984,
I.C.J. Reports 1984, p. 432, para. 91), and on a number of other
occasions. The subject-matter of the
dispute also forms part of wider issues affecting Central America at present
being dealt with on a regional basis in the *23 context of what is known
as the 'Contadora Process' (I.C.J. Reports 1984, pp. 183-185, paras.
34-36; pp. 438-441, paras. 102-108).
* * *
26. The position taken up
by the Government of the United States of America in the present proceedings,
since the delivery of the Court's Judgment of 26 November 1984, as defined in
the letter from the United States Agent dated 18 January 1985, brings into
operation Article 53 of the Statute of the Court, which provides that 'Whenever
one of the parties does not appear before the Court, or fails to defend its
case, the other party may call upon the Court to decide in favour of its
claim'. Nicaragua, has, in its Memorial
and oral argument, invoked Article 53 and asked for a decision in favour of its
claim. A special feature of the present case is that the United States only
ceased to take part in the proceedings after a Judgment had been given adverse
to its contentions on jurisdiction and admissibility. Furthermore, it stated when doing
so 'that the judgment of the Court was clearly and manifestly erroneous as to
both fact and law', that it 'remains firmly of the view . . . that the Court is
without jurisdiction to entertain the dispute' and that the United States
'reserves its rights in respect of any decision by the Court regarding
Nicaragua's claims'.
27. When a State named as
party to proceedings before the Court decides not to appear in the proceedings,
or not to defend its case, the Court usually expresses regret, because such a
decision obviously has a negative impact on the sound administration of justice
(cf. Fisheries Jurisdiction, I.C.J. Reports 1973, p. 7, para. 12; p. 54, para. 13; I.C.J. Reports 1974, p. 9, para. 17; p. 181, para. 18; Nuclear Tests, I.C.J. Reports 1974, p. 257,
para. 15; p. 461, para. 15; Aegean Sea Continental Shelf, I.C.J. Reports
1978, p. 7, para. 15; United States
Diplomatic and Consular Staff in Tehran, I.C.J. Reports 1980, p. 18, para.
33). In the present case, the Court
regrets even more deeply the decision of the respondent State not to
participate in the present phase of the proceedings, because this decision was
made after the United States had participated fully in the proceedings on the
request for provisional measures, and the proceedings on jurisdiction and
admissibility. Having taken part in the
proceedings to argue that the Court lacked jurisdiction, the United States
thereby acknowledged that the Court had the power to make a finding on its own
jurisdiction to rule upon the merits.
It is not possible to argue that the
Court had jurisdiction only to declare that it lacked jurisdiction. In the normal course of events, for a party
to appear before a court entails acceptance of the possibility of the court's
finding against that party. Furthermore the Court is bound to emphasize that
the non-participation of a party in the proceedings at any stage of the case
cannot, in any circumstances, affect the validity of its judgment. Nor does such validity depend upon the
acceptance of that judgment by one party.
The fact that a State purports to 'reserve its rights' *24 in
respect of a future decision of the Court, after the Court has determined that
it has jurisdiction, is clearly of no effect on the validity of that
decision. Under Article 36, paragraph
6, of its Statute, the Court has jurisdiction to determine any dispute as to
its own jurisdiction, and its judgment on that matter, as on the merits, is
final and binding on the parties under Articles 59 and 60 of the Statute (cf.
Corfu Channel, Judgment of 15 December 1949, I.C.J. Reports 1949, p. 248).
28. When Article 53 of the
Statute applies, the Court is bound to 'satisfy itself, not only that it has
jurisdiction in accordance with Articles 36 and 37, but also that the claim' of
the party appearing is well founded in fact and law. In the present case, the Court has had the benefit of both Parties
pleading before it at the earlier stages of the procedure, those concerning the
request for the indication of provisional measures and to the questions of
jurisdiction and admissibility. By its
Judgment of 26 November 1984, the Court found,
inter alia, that it had jurisdiction to entertain the case; it must however take steps to 'satisfy
itself' that the claims of the Applicant are 'well founded in fact and law'. The question of the application of Article
53 has been dealt with by the Court in a number of previous cases, referred to
above, and the Court does not therefore find it necessary to recapitulate the
content of these decisions. The
reasoning adopted to dispose of the basic problems arising was essentially the
same, although the words used may have differed slightly from case to
case. Certain points of principle may
however be restated here. A State which
decides not to appear must accept the consequences of its decision, the first
of which is that the case will continue without its participation; the State which has chosen not to appear
remains a party to the case, and is bound by the eventual judgment in
accordance with Article 59 of the Statute.
There is however no question of a judgment automatically in favour of
the party appearing, since the Court is required, as mentioned above, to
'satisfy itself' that that party's claim is well founded in fact and law.
29. The use of the term
'satisfy itself' in the English text of the Statute (and in the French text the term 's'assurer') implies that the
Court must attain the same degree of certainty as in any other case that the
claim of the party appearing is sound in law, and, so far as the nature of the
case permits, that the facts on which it is based are supported by convincing
evidence. For the purpose of deciding whether the claim is
well founded in law, the principle jura novit curia signifies that the Court is
not solely dependent on the argument of the parties before it with respect to
the applicable law (cf. 'Lotus', P.C.I.J., Series A, No. 10, p. 31), so that
the absence of one party has less impact.
As the Court observed in the Fisheries Jurisdiction cases:
'The Court . . ., as an
international judicial organ, is deemed to take judicial notice of
international law, and is therefore required in a case falling under Article 53
of the Statute, as in any other case, to consider on its own initiative all
rules of international law which may be *25 relevant to the settlement
of the dispute. It being the duty of
the Court itself to ascertain and apply the relevant law in the given
circumstances of the case, the burden of establishing or proving rules of international
law cannot be imposed upon any of the parties, for the law lies within the
judicial knowledge of the Court.'
(I.C.J. Reports 1974, p. 9, para. 17;
p. 181, para. 18.)
Nevertheless the views of the parties to a case as to the law
applicable to their dispute are very material, particularly, as will be
explained below (paragraphs 184 and 185), when those views are concordant. In the present case, the burden laid upon
the Court is therefore somewhat lightened by the fact that the United States
participated in the earlier phases of the case, when it submitted certain
arguments on the law which have a bearing also on the merits.
30. As to the facts of the
case, in principle the Court is not bound to confine its consideration to the
material formally submitted to it by the parties (cf. Brazilian Loans,
P.C.I.J., Series A, No. 20/21, p. 124;
Nuclear Tests, I.C.J. Reports 1974, pp. 263-264, paras. 31, 32). Nevertheless, the Court cannot by its own
enquiries entirely make up for the absence of one of the Parties; that absence, in a case of this kind
involving extensive questions of fact, must necessarily limit the extent to
which the Court is informed of the facts.
It would furthermore be an over-simplification to conclude that the only
detrimental consequence of the absence of a party is the lack of opportunity to
submit argument and evidence in support of its own case. Proceedings before the Court call for
vigilance by all. The absent party also
forfeits the opportunity to counter the factual allegations of its
opponent. It is of course for the party
appearing to prove the allegations it makes, yet as the Court has held:
'While Article 53 thus
obliges the Court to consider the submissions of the Party which appears, it
does not compel the Court to examine their accuracy in all their details; for this might in certain unopposed cases
prove impossible in practice.' (Corfu
Channel, I.C.J. Reports 1949, p. 248.)
31. While these are the
guiding principles, the experience of previous cases in which one party has
decided not to appear shows that something more is involved.
Though formally absent from the proceedings, the party in question
frequently submits to the Court letters and documents, in ways and by means not
contemplated by the Rules. The Court
has thus to strike a balance. On the
one hand, it is valuable for the Court to know the views of both parties in
whatever form those views may have been expressed. Further, as the Court noted in 1974, where one party is not
appearing 'it is especially incumbent upon the Court to satisfy itself that it
is in possession of all the available facts' (Nuclear Tests, I.C.J. Reports
1974, p. 263, para. 31; p. 468, para.
32). On the other hand, the Court has
to emphasize *26 that the equality of the parties to the dispute must
remain the basic principle for the Court.
The intention of Article 53 was that in a case of non-appearance neither
party should be placed at a disadvantage;
therefore the party which declines to appear cannot be permitted to
profit from its absence, since this would amount to placing the party appearing
at a disadvantage. The provisions of
the Statute and Rules of Court concerning the presentation of pleadings and
evidence are designed to secure a proper administration of justice, and a fair
and equal opportunity for each party to comment on its opponent's contentions.
The treatment to be given by the Court to communications or material emanating
from the absent party must be determined by the weight to be given to these
different considerations, and is not susceptible of rigid definition in the
form of a precise general rule. The
vigilance which the Court can exercise when
aided by the presence of both parties to the proceedings has a counterpart in
the special care it has to devote to the proper administration of justice in a
case in which only one party is present.
* * *
32. Before proceeding
further, the Court considers it appropriate to deal with a preliminary
question, relating to what may be referred to as the justiciability of the
dispute submitted to it by Nicaragua.
In its Counter- Memorial on jurisdiction and admissibility the United
States advanced a number of arguments why the claim should be treated as
inadmissible: inter alia, again
according to the United States, that a claim of unlawful use of armed force is
a matter committed by the United Nations Charter and by practice to the
exclusive competence of other organs, in particular the Security Council; and
that an 'ongoing armed conflict' involving the use of armed force contrary to
the Charter is one with which a court cannot deal effectively without overstepping
proper judicial bounds. These arguments
were examined by the Court in its Judgment of 26 November 1984, and
rejected. No further arguments of this
nature have been submitted to the Court by the United States, which has not
participated in the subsequent proceedings.
However the examination of the merits which the Court has now carried
out shows the existence of circumstances as
a result of which, it might be argued, the dispute, or that part of it which relates
to the questions of use of force and collective self-defence, would be
nonjusticiable.
33. In the first place, it
has been suggested that the present dispute should be declared non-justiciable,
because it does not fall into the category of 'legal disputes' within the
meaning of Article 36, paragraph 2, of the Statute. It is true that the jurisdiction of the Court under that
provision is limited to 'legal disputes' concerning any of the matters
enumerated in the text. The question
whether a given dispute between two States is or is not a 'legal dispute' for
the purposes of this provision may itself be a matter in dispute between those
two States; and if so, that dispute is
to be *27 settled by the decision of the Court in accordance with
paragraph 6 of Article 36. In the
present case, however, this particular point does not appear to be in dispute
between the Parties. The United States,
during the proceedings devoted to questions of jurisdiction and admissibility,
advanced a number of grounds why the Court should find that it had no
jurisdiction, or that the claim was not admissible. It relied inter alia on proviso (c) to its own declaration of
acceptance of jurisdiction under Article 36, paragraph 2, without ever
advancing the more radical argument that the whole declaration was inapplicable
because the dispute brought before the Court by Nicaragua was not a 'legal
dispute' within the meaning of that paragraph.
As a matter of admissibility, the
United States objected to the application of Article 36, paragraph 2, not
because the dispute was not a 'legal dispute', but because of the express
allocation of such matters as the subject of Nicaragua's claims to the
political organs under the United Nations Charter, an argument rejected by the
Court in its Judgment of 26 November 1984 (I.C.J. Reports 1984, pp. 431-
436). Similarly, while the United
States contended that the nature of the judicial function precludes its application
to the substance of Nicaragua's allegations in this case - an argument which
the Court was again unable to uphold (ibid., pp. 436-438) -, it was careful to
emphasize that this did not mean that it was arguing that international law was
not relevant or controlling in a dispute of this kind. In short, the Court can see no indication
whatsoever that, even in the view of the United States, the present dispute
falls outside the category of 'legal disputes' to which Article 36, paragraph
2, of the Statute applies. It must
therefore proceed to examine the specific claims of Nicaragua in the light of
the international law applicable.
34. There can be no doubt
that the issues of the use of force and collective self-defence raised in the
present proceedings are issues which are regulated both by customary
international law and by treaties, in particular the United Nations
Charter. Yet it is also suggested that,
for another reason, the questions of this kind which arise in the present case
are not justiciable, that they fall outside the limits of the kind of questions
a court can deal with. It is suggested that the plea of collective
self-defence which has been advanced by the United States as a justification
for its actions with regard to Nicaragua requires the Court to determine
whether the United States was legally justified in adjudging itself under a
necessity, because its own security was in jeopardy, to use force in response
to foreign intervention in El Salvador. Such a determination, it is said,
involves a pronouncement on political and military matters, not a question of a
kind that a court can usefully attempt to answer.
35. As will be further
explained below, in the circumstances of the dispute now before the Court, what
is in issue is the purported exercise by the United States of a right of
collective self-defence in response to an armed attack on another State. The possible lawfulness of a response to the
imminent threat of an armed attack which has not yet taken place has not *28
been raised. The Court has therefore to
determine first whether such attack has occurred, and if so whether the
measures allegedly taken in self-defence were a legally appropriate reaction as
a matter of collective self-defence. To
resolve the first of these questions, the Court does not have to determine
whether the United States, or the State which may have been under attack, was
faced with a necessity of reacting. Nor
does its examination, if it determines that an armed attack did occur, of
issues relating to the collective character of the self-defence and the kind of
reaction, necessarily involve it in any evaluation of military considerations. Accordingly the Court can at this stage
confine itself to a finding that, in the circumstances of the present case, the
issues raised of collective self-defence are issues which it has competence,
and is equipped, to determine.
* * *
36. By its Judgment of 26
November 1984, the Court found that it had jurisdiction to entertain the
present case, first on the basis of the United States declaration of acceptance
of jurisdiction, under the optional clause of Article 36, paragraph 2, of the
Statute, deposited on 26 August 1946 and secondly on the basis of Article XXIV
of a Treaty of Friendship, Commerce and Navigation between the Parties, signed
at Managua on 21 January 1956. The
Court notes that since the institution of the present proceedings, both bases
of jurisdiction have been terminated.
On 1 May 1985 the United States gave written notice to the Government of
Nicaragua to terminate the Treaty, in accordance with Article XXV, paragraph 3,
thereof; that notice expired, and thus
terminated the treaty relationship, on 1 May 1986. On 7 October 1985 the United States deposited with the
Secretary-General of the United Nations a notice terminating the declaration
under the optional clause, in accordance with the terms of that declaration,
and that notice expired on 7 April 1986. These
circumstances do not however affect the jurisdiction of the Court under Article
36, paragraph 2, of the Statute, or its jurisdiction under Article XXIV,
paragraph 2, of the Treaty to determine 'any dispute between the Parties as to
the interpretation or application' of the Treaty. As the Court pointed out in the Nottebohm case:
'When an Application is
filed at a time when the law in force between the parties entails the
compulsory jurisdiction of the Court . . . the filing of the Application is
merely the condition required to enable the clause of compulsory jurisdiction
to produce its effects in respect of the claim advanced in the Application. Once this condition has been satisfied, the
Court must deal with the claim; it has
jurisdiction to deal with all its aspects, whether they relate to jurisdiction,
to admissibility or to the merits. An
extrinsic fact such as the subsequent *29 lapse of the Declaration [or,
as in the present case also, the Treaty containing a compromissory clause], by
reason of the expiry of the period or by denunciation, cannot deprive the Court
of the jurisdiction already established.'
(I.C.J. Reports 1953, p. 123.)
*
37. In the Judgment of 26
November 1984 the Court however also declared that one objection advanced by the United States,
that concerning the exclusion from the United States acceptance of jurisdiction
under the optional clause of 'disputes arising under a multilateral treaty',
raised 'a question concerning matters of substance relating to the merits of
the case', and concluded:
'That being so, and
since the procedural technique formerly available of joinder of preliminary
objections to the merits has been done away with since the 1972 revision of the
Rules of Court, the Court has no choice but to avail itself of Article 79,
paragraph 7, of the present Rules of Court, and declare that aragraph 7, of the
present Rules of Court, and declare tht the objection based on the multilateral
treaty reservation of the United States Declaration of Acceptance does not
possess, in the circumstances of the case, an exclusively preliminary
character, and that consequently it does not constitute an obstacle for the
Court to entertain the proceedings instituted by Nicaragua under the
Application of 9 April 1984.' (I.C.J.
Reports 1984, pp. 425-426, para. 76.)
38. The present case is
the first in which the Court has had occasion to exercise the power first
provided for in the 1972 Rules of Court to declare that a preliminary objection
'does not possess, in the circumstances of the case, an exclusively preliminary
character'. It may therefore be
appropriate to take this opportunity to comment briefly on the rationale of
this provision of the Rules, in the light of the problems to which the handling
of preliminary objections has given
rise. In exercising its rule-making
power under Article 30 of the Statute, and generally in approaching the complex
issues which may be raised by the determination of appropriate procedures for
the settlement of disputes, the Court has kept in view an approach defined by
the Permanent Court of International Justice.
That Court found that it was at liberty to adopt
'the principle which it
considers best calculated to ensure the administration of justice, most suited
to procedure before an international tribunal and most in conformity with the
fundamental principles of international law' (Mavrommatis Palestine
Concessions, P.C.I.J., Series A, No. 2, p. 16).
39. Under the Rules of
Court dating back to 1936 (which on this point reflected still earlier
practice), the Court had the power to join an objection to the merits 'whenever
the interests of the good administration of justice require it'
(Panevezys-Saldutiskis Railway, P.C.I.J., Series A/B, No. 75, *30 p.
56), and in particular where the Court, if it were to decide on the objection,
'would run the risk of adjudicating on questions which appertain to the merits
of the case or of prejudging their solution' (ibid.). If this power was exercised, there was always a risk, namely that
the Court would ultimately decide the case on the preliminary objection, after
requiring the parties fully to plead the merits, - and this did in fact occur
(Barcelona Traction, Light and Power Company, Limited, Second Phase, I.C.J.
Reports 1970, p. 3). The result was regarded in some quarters as an
unnecessary prolongation of an expensive and time-consuming procedure.
40. Taking into account
the wide range of issues which might be presented as preliminary objections,
the question which the Court faced was whether to revise the Rules so as to
exclude for the future the possibility of joinder to the merits, so that every
objection would have to be resolved at the preliminary stage, or to seek a
solution which would be more flexible.
The solution of considering all preliminary objections immediately and
rejecting all possibility of a joinder to the merits had many advocates and
presented many advantages. In the
Panevezys-Saldutiskis Railway case, the Permanent Court defined a preliminary
objection as one
'submitted for the
purpose of excluding an examination by the Court of the merits of the case, and
being one upon which the Court can give a decision without in any way
adjudicating upon the merits' (P.C.I.J., Series A/B, No. 76, p. 22).
If this view is accepted then of course every preliminary
objection should be dealt with immediately without touching the merits, or
involving parties in argument of the merits of the case. To find out, for instance, whether there is
a dispute between the parties or whether the Court has jurisdiction, does not
normally require an analysis of the merits of the case. However that does not solve all questions of
preliminary objections, which may, as experience has shown, be to some extent bound up with the
merits. The final solution adopted in
1972, and maintained in the 1978 Rules, concerning preliminary objections is
the following: the Court is to give its
decision
'by which it shall either
uphold the objection, reject it, or declare that the objection does not
possess, in the circumstances of the case, an exclusively preliminary
character. If the Court rejects the
objection, or declares that it does not possess an exclusively preliminary
character, it shall fix time-limits for the further proceedings.' (Art. 79, para. 7.)
41. While the variety of
issues raised by preliminary objections cannot possibly be foreseen, practice
has shown that there are certain kinds of preliminary objections which can be
disposed of by the Court at an early stage without examination of the
merits. Above all, it is clear that a
question of jurisdiction is one which requires decision at the preliminary *31
stage of the proceedings. The new rule
enumerates the objections contemplated as follows:
'Any objection by the
respondent to the jurisdiction of the Court or to the admissibility of the
application, or other objection the decision upon which is requested before any
further proceedings on the merits . . .'
(Art. 79, para. 1.)
It thus presents one clear advantage: that it qualifies certain objections as preliminary, making it
quite clear that when they are exclusively of that character they will have to be decided upon
immediately, but if they are not, especially when the character of the
objections is not exclusively preliminary because they contain both preliminary
aspects and other aspects relating to the merits, they will have to be dealt
with at the stage of the merits. This
approach also tends to discourage the unnecessary prolongation of proceedings
at the jurisdictional stage.
* *
42. The Court must thus
now rule upon the consequences of the United States multilateral treaty
reservation for the decision which it has to give. It will be recalled that the United States acceptance of
jurisdiction deposited on 26 August 1946 contains a proviso excluding from its
application:
'disputes arising under a
multilateral treaty, unless (1) all parties to the treaty affected by the
decision are also parties to the case before the Court, or (2) the United
States of America specially agrees to jurisdiction'.
The 1984 Judgment included pronouncements on certain aspects of
that reservation, but the Court then took the view that it was neither
necessary nor possible, at the jurisdictional stage of the proceedings, for it
to take a position on all the problems posed by the reservation.
43. It regarded this as
not necessary because, in its Application, Nicaragua had not confined its claims to breaches of
multilateral treaties but had also invoked a number of principles of 'general
and customary international law', as well as the bilateral Treaty of
Friendship, Commerce and Navigation of 1956. These principles remained binding
as such, although they were also enshrined in treaty law provisions. Consequently, since the case had not been
referred to the Court solely on the basis of multilateral treaties, it was not
necessary for the Court, in order to consider the merits of Nicaragua's claim,
to decide the scope of the reservation in question: 'the claim . . . would not in any event be barred by the
multilateral treaty reservation' (I.C.J. Reports 1984, p. 425, para. 73). Moreover, it was not found possible for the
reservation to be definitively dealt with at the jurisdictional stage of the
proceedings. To make a judgment on the
scope of the reservation would have meant giving a definitive interpretation of
the term 'affected' in that reservation.
In its 1984 Judgment, the Court held *32 that the term 'affected'
applied not to multilateral treaties, but to the parties to such treaties. The Court added that if those parties wished
to protect their interests 'in so far as these are not already protected by
Article 59 of the Statute', they 'would have the choice of either instituting
proceedings or intervening' during the merits phase. But at all events, according to the Court, 'the determination of
the States 'affected' could not be left to the parties but must be made by the
Court' (I.C.J. Reports 1984, p. 425, para. 75). This process could however not be
carried out at the stage of the proceedings in which the Court then found
itself; 'it is only when the general
lines of the judgment to be given become clear', the Court said, 'that the
States 'affected' could be identified' (ibid.). The Court thus concluded that this was 'a question concerning
matters of substance relating to the merits of the case' (ibid., para.
76). Since 'the question of what States
may be 'affected' by the decision on the merits is not in itself a
jurisdictional problem', the Court found that it
'has no choice but to
avail itself of Article 79, paragraph 7, of the present Rules of Court, and
declare that the objection based on the multilateral treaty reservation . . .
does not possess, in the circumstances of the case, an exclusively preliminary
character' (ibid., para. 76).
44. Now that the Court has
considered the substance of the dispute, it becomes both possible and necessary
for it to rule upon the points related to the United States reservation which
were not settled in 1984. It is
necessary because the Court's jurisdiction, as it has frequently recalled, is
based on the consent of States, expressed in a variety of ways including
declarations made under Article 36, paragraph 2, of the Statute. It is the declaration made by the United
States under that Article which defines the categories of dispute for which the
United States consents to the Court's jurisdiction. If therefore that declaration, because of a reservation contained
in it, excludes from the disputes for which it accepts the Court's jurisdiction
certain disputes arising under multilateral
treaties, the Court must take that fact into account. The final decision on this point, which it was not possible to
take at the jurisdictional stage, can and must be taken by the Court now when coming
to its decision on the merits. If this
were not so, the Court would not have decided whether or not the objection was
well-founded, either at the jurisdictional stage, because it did not possess an
exclusively preliminary character, or at the merits stage, because it did to
some degree have such a character. It
is now possible to resolve the question of the application of the reservation
because, in the light of the Court's full examination of the facts of the case
and the law, the implications of the argument of collective self-defence raised
by the United States have become clear.
45. The reservation in
question is not necessarily a bar to the United States accepting the Court's
jurisdiction whenever a third State which may *33 be affected by the
decision is not a party to the proceedings.
According to the actual text of the reservation, the United States can
always disregard this fact if it 'specially agrees to jurisdiction'. Besides, apart from this possibility, as the
Court recently observed: 'in principle
a State may validly waive an objection to jurisdiction which it might otherwise
have been entitled to raise' (I.C.J. Reports 1985, p. 216, para. 43). But it is clear that the fact that the
United States, having refused to participate at the merits stage, did not have
an opportunity to press again at that stage the argument which, in the jurisdictional phase, it founded on its
multilateral treaty reservation cannot be tantamount to a waiver of the argument
drawn from the reservation. Unless unequivocally waived, the reservation
constitutes a limitation on the extent of the jurisdiction voluntarily accepted
by the United States; and, as the Court
observed in the Aegean Sea Continental Shelf case,
'It would not discharge
its duty under Article 53 of the Statute if it were to leave out of its
consideration a reservation, the invocation of which by the Respondent was
properly brought to its notice earlier in the proceedings.' (I.C.J. Reports 1978, p. 20, para. 47.)
The United States has not in the present phase submitted to the
Court any arguments whatever, either on the merits proper or on the question -
not exclusively preliminary - of the multilateral treaty reservation. The Court cannot therefore consider that the
United States has waived the reservation or no longer ascribes to it the scope
which the United States attributed to it when last stating its position on this
matter before the Court. This conclusion
is the more decisive inasmuch as a respondent's non-participation requires the
Court, as stated for example in the Fisheries Jurisdiction cases, to exercise
'particular circumspection and . . . special care' (I.C.J. Reports 1974, p. 10,
para. 17, and p. 181, para. 18).
46. It has also been suggested
that the United States may have waived the multilateral treaty reservation by
its conduct of its case at the jurisdictional
stage, or more generally by asserting collective self defence in accordance
with the United Nations Charter as justification for its activities vis-a-vis
Nicaragua. There is no doubt that the
United States, during its participation in the proceedings, insisted that the
law applicable to the dispute was to be found in multilateral treaties,
particularly the United Nations Charter and the Charter of the Organization of
American States; indeed, it went so far as to contend that such treaties
supervene and subsume customary law on the subject. It is however one thing for a State to advance a contention that
the law applicable to a given dispute derives from a specified source; it is quite another for that State to
consent to the Court's having jurisdiction to entertain that dispute, and thus
to apply that law to the dispute. The
whole purpose of the United States argument as to the applicability of the
United Nations and Organization of American *34 States Charters was to
convince the Court that the present dispute is one 'arising under' those
treaties, and hence one which is excluded from jurisdiction by the multilateral
treaty reservation in the United States declaration of acceptance of
jurisdiction. It is impossible to
interpret the attitude of the United States as consenting to the Court's
applying multilateral treaty law to resolve the dispute, when what the United
States was arguing was that, for the very reason that the dispute 'arises
under' multilateral treaties, no consent to its determination by the Court has
ever been given. The Court was fully
aware, when it gave its 1984 Judgment, that
the United States regarded the law of the two Charters as applicable to the
dispute; it did not then regard that
approach as a waiver, nor can it do so now.
The Court is therefore bound to ascertain whether its jurisdiction is
limited by virtue of the reservation in question.
47. In order to fulfil
this obligation, the Court is now in a position to ascertain whether any third
States, parties to multilateral treaties invoked by Nicaragua in support of its
claims, would be 'affected' by the Judgment, and are not parties to the
proceedings leading up to it. The
multilateral treaties discussed in this connection at the stage of the
proceedings devoted to jurisdiction were four in number: the Charter of the United Nations, the
Charter of the Organization of American States, the Montevideo Convention on
the Rights and Duties of States of 26 December 1933, and the Havana Convention
on the Rights and Duties of States in the Event of Civil Strife of 20 February
1928 (cf. I.C.J. Reports 1984, p. 422, para. 68). However, Nicaragua has not placed any particular reliance on the
latter two treaties in the present proceedings; and in reply to a question by a Member of the Court on the point,
the Nicaraguan Agent stated that while Nicaragua had not abandoned its claims
under these two conventions, it believed 'that the duties and obligations
established by these conventions have been subsumed in the Organization of
American States Charter'. The Court
therefore considers that it will be sufficient
to examine the position under the two Charters, leaving aside the possibility
that the dispute might be regarded as 'arising' under either or both of the
other two conventions.
48. The argument of the
Parties at the jurisdictional stage was addressed primarily to the impact of
the multilateral treaty reservation on Nicaragua's claim that the United States
has used force against it in breach of the United Nations Charter and of the
Charter of the Organization of American States, and the Court will first
examine this aspect of the matter.
According to the views presented by the United States during the
jurisdictional phase, the States which would be 'affected' by the Court's
judgment were El Salvador, Honduras and Costa Rica. Clearly, even if only one of these States is found to be
'affected', the United States reservation takes full effect. The Court will for convenience first take
the case of El Salvador, as there are certain special features in the position
of this State. It is primarily for the
benefit of El Salvador, and to help it to respond to an alleged armed attack by
Nicaragua, that the United States *35 claims to be exercising a right of
collective self-defence, which it regards as a justification of its own conduct
towards Nicaragua. Moreover, El
Salvador, confirming this assertion by the United States, told the Court in the
Declaration of Intervention which it submitted on 15 August 1984 that it
considered 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.
Consequently, in order to rule upon Nicaragua's complaint against the
United States, the Court would have to decide whether any justification for
certain United States activities in and against Nicaragua can be found in the
right of collective self-defence which may, it is alleged, be exercised in
response to an armed attack by Nicaragua on El Salvador. Furthermore, reserving for the present the
question of the content of the applicable customary international law, the
right of self- defence is of course enshrined in the United Nations Charter, so
that the dispute is, to this extent, a dispute 'arising under a multilateral
treaty' to which the United States, Nicaragua and El Salvador are parties.
49. As regards the Charter
of the Organization of American States, the Court notes that Nicaragua bases
two distinct claims upon this multilateral treaty: it is contended, first, that
the use of force by the United States against Nicaragua in violation of the
United Nations Charter is equally a violation of Articles 20 and 21 of the
Organization of American States Charter, and secondly that the actions it
complains of constitute intervention in the internal and external affairs of
Nicaragua in violation of Article 18 of the Organization of American States
Charter. The Court will first refer to
the claim of use of force alleged to be contrary to Articles 20 and 21. Article 21 of the Organization of American
States Charter provides:
'The American States
bind themselves in their international relations not to have recourse to the use of force, except in
the case of self-defense in accordance with existing treaties or in fulfillment
thereof.'
Nicaragua argues that the provisions of the Organization of
American States Charter prohibiting the use of force are 'coterminous with the
stipulations of the United Nations Charter', and that therefore the violations
by the United States of its obligations under the United Nations Charter also,
and without more, constitute violations of Articles 20 and 21 of the
Organization of American States Charter.
50. Both Article 51 of the
United Nations Charter and Article 21 of the Organization of American States
Charter refer to self-defence as an exception to the principle of the
prohibition of the use of force. Unlike
the United Nations Charter, the Organization of American States Charter does
not use the expression 'collective self-defence', but refers to the case of
'self-defence in accordance with existing treaties or in fulfillment thereof', one
such treaty being the United Nations Charter.
Furthermore it is evident that if actions of the United States complied
with all requirements of the United Nations Charter so as to constitute the
exercise *36 of the right of collective self-defence, it could not be
argued that they could nevertheless constitute a violation of Article 21 of the
Organization of American States Charter.
It therefore follows that the situation of El Salvador with regard to
the assertion by the United States of the right of collective self-defence is the same under the Organization of American
States Charter as it is under the United Nations Charter.
51. In its Judgment of 26
November 1984, the Court recalled that Nicaragua's Application, according to
that State, does not cast doubt on El Salvador's right to receive aid, military
or otherwise, from the United States (I.C.J. Reports 1984, p. 430, para.
86). However, this refers to the direct
aid provided to the Government of El Salvador on its territory in order to help
it combat the insurrection with which it is faced, not to any indirect aid
which might be contributed to this combat by certain United States activities
in and against Nicaragua. The Court has
to consider the consequences of a rejection of the United States justification
of its actions as the exercise of the right of collective self-defence for the
sake of El Salvador, in accordance with the United Nations Charter. A judgment to that effect would declare
contrary to treaty-law the indirect aid which the United States Government
considers itself entitled to give the Government of El Salvador in the form of
activities in and against Nicaragua.
The Court would of course refrain from any finding on whether El
Salvador could lawfully exercise the right of individual self- defence; but El Salvador would still be affected by
the Court's decision on the lawfulness of resort by the United States to
collective self-defence. If the Court
found that no armed attack had occurred, then not only would action by the
United States in purported exercise of the right of collective self- defence prove to be unjustified, but so also
would any action which El Salvador might take or might have taken on the
asserted ground of individual self- defence.
52. It could be argued
that the Court, if it found that the situation does not permit the exercise by
El Salvador of its right of self-defence, would not be 'affecting' that right
itself but the application of it by El Salvador in the circumstances of the
present case. However, it should be
recalled that the condition of the application of the multilateral treaty reservation
is not that the 'right' of a State be affected, but that the State itself be
'affected' - a broader criterion.
Furthermore whether the relations between Nicaragua and El Salvador can
be qualified as relations between an attacker State and a victim State which is
exercising its right of self-defence, would appear to be a question in dispute
between those two States. But El
Salvador has not submitted this dispute to the Court; it therefore has a right to have the Court refrain from ruling
upon a dispute which it has not submitted to it. Thus, the decision of the
Court in this case would affect this right of El Salvador and consequently this
State itself.
53. Nor is it only in the
case of a decision of the Court rejecting the United States claim to be acting
in self-defence that El Salvador would be *37 ' affected' by the
decision. The multilateral treaty
reservation does not require, as a condition for the exclusion of a dispute
from the jurisdiction of the Court, that a
State party to the relevant treaty be 'adversely' or 'prejudicially' affected
by the decision, even though this is clearly the case primarily in view. In other situations in which the position of
a State not before the Court is under consideration (cf. Monetary Gold Removed
from Rome in 1943, I.C.J. Reports 1954, p. 32;
Continental Shelf (Libyan Arab Jamahiriya/Malta), Application to
Intervene, Judgment, I.C.J. Reports 1984, p. 20, para. 31) it is clearly
impossible to argue that that State may be differently treated if the Court's
decision will not necessarily be adverse to the interests of the absent State,
but could be favourable to those interests. The multilateral treaty reservation
bars any decision that would 'affect' a third State party to the relevant
treaty. Here also, it is not necessary
to determine whether the decision will 'affect' that State unfavourably or
otherwise; the condition of the reservation
is met if the State will necessarily be 'affected', in one way or the other.
54. There may of course be
circumstances in which the Court, having examined the merits of the case,
concludes that no third State could be 'affected' by the decision: for example, as pointed out in the 1984
Judgment, if the relevant claim is rejected on the facts (I.C.J. Reports 1984,
p. 425, para. 75). If the Court were to
conclude in the present case, for example, that the evidence was not sufficient
for a finding that the United States had used force against Nicaragua, the
question of justification on the grounds of self-defence would not arise, and there would be no
possibility of El Salvador being 'affected' by the decision. In 1984 the Court could not, on the material
available to it, exclude the possibility of such a finding being reached after
fuller study of the case, and could not therefore conclude at once that El
Salvador would necessarily be 'affected' by the eventual decision. It was thus this possibility which prevented
the objection based on the reservation from having an exclusively preliminary
character.
55. As indicated in
paragraph 49 above, there remains the claim of Nicaragua that the United States
has intervened in the internal and external affairs of Nicaragua in violation
of Article 18 of the Organization of American States Charter. That Article provides:
'No State or group of
States has the right to intervene, directly or indirectly, for any reason
whatever, in the internal or external affairs of any other State. The foregoing principle prohibits not only
armed force but also any other form of interference or attempted threat against
the personality of the State or against its political, economic, and cultural
elements.'
The potential link, recognized by this text, between intervention
and the use of armed force, is actual in the present case, where the same
activities attributed to the United States are complained of under both counts,
and *38 the response of the United States is the same to each complaint
- that it has acted in self-defence. The Court has to consider what would be the
impact, for the States identified by the United States as likely to be
'affected', of a decision whereby the Court would decline to rule on the alleged
violation of Article 21 of the Organization of American States Charter,
concerning the use of force, but passed judgment on the alleged violation of
Article 18. The Court will not here
enter into the question whether self- defence may justify an intervention
involving armed force, so that it has to be treated as not constituting a
breach either of the principle of non-use of force or of that of
non-intervention. At the same time, it
concludes that in the particular circumstances of this case, it is impossible
to say that a ruling on the alleged breach by the United States of Article 18
of the Organization of American States Charter would not 'affect' El Salvador.
56. The Court therefore
finds that El Salvador, a party to the United Nations Charter and to the
Charter of the Organization of American States, is a State which would be
'affected' by the decision which the Court would have to take on the claims by
Nicaragua that the United States has violated Article 2, paragraph 4, of the
United Nations Charter and Articles 18, 20 and 21 of the Organization of
American States Charter. Accordingly,
the Court, which under Article 53 of the Statute has to be 'satisfied' that it
has jurisdiction to decide each of the claims it is asked to uphold, concludes
that the jurisdiction conferred upon it by the United States declaration of
acceptance of jurisdiction under Article 36,
paragraph 2, of the Statute does not permit the Court to entertain these
claims. It should however be recalled
that, as will be explained further below, the effect of the reservation in
question is confined to barring the applicability of the United Nations Charter
and Organization of American States Charter as multilateral treaty law, and has
no further impact on the sources of international law which Article 38 of the
Statute requires the Court to apply.
* * *
57. One of the Court's
chief difficulties in the present case has been the determination of the facts
relevant to the dispute. First of all,
there is marked disagreement between the Parties not only on the interpretation
of the facts, but even on the existence or nature of at least some of
them. Secondly, the respondent State
has not appeared during the present merits phase of the proceedings, thus
depriving the Court of the benefit of its complete and fully argued statement
regarding the facts. The Court's task
was therefore necessarily more difficult, and it has had to pay particular
heed, as said above, to the proper application of Article 53 of its
Statute. Thirdly, there is the secrecy
in which some of the conduct attributed to one or other of the Parties has been
carried on. This makes it more difficult
for the Court not only to decide on the
imputability of the facts, but also to *39 establish what are the
facts. Sometimes there is no question,
in the sense that it does not appear to be disputed, that an act was done, but
there are conflicting reports, or a lack of evidence, as to who did it. The problem is then not the legal process of
imputing the act to a particular State for the purpose of establishing
responsibility, but the prior process of tracing material proof of the identity
of the perpetrator. The occurrence of
the act itself may however have been shrouded in secrecy. In the latter case, the Court has had to
endeavour first to establish what actually happened, before entering on the
next stage of considering whether the act (if proven) was imputable to the
State to which it has been attributed.
58. A further aspect of
this case is that the conflict to which it relates has continued and is
continuing. It has therefore been
necessary for the Court to decide, for the purpose of its definition of the
factual situation, what period of time, beginning from the genesis of the
dispute, should be taken into consideration.
The Court holds that general principles as to the judicial process
require that the facts on which its Judgment is based should be those occurring
up to the close of the oral proceedings on the merits of the case. While the
Court is of course very well aware, from reports in the international press, of
the developments in Central America since that date, it cannot, as explained
below (paragraphs 62 and 63), treat such reports as evidence, nor has it had the benefit of the comments or argument
of either of the Parties on such reports.
As the Court recalled in the Nuclear Tests cases, where facts,
apparently of such a nature as materially to affect its decision, came to its
attention after the close of the hearings:
'It would no doubt have
been possible for the Court, had it considered that the interests of justice so
required, to have afforded the Parties the opportunity, e.g., by reopening the
oral proceedings, of addressing to the Court comments on the statements made
since the close of those proceedings.'
(I.C.J. Reports 1974, p. 264, para. 33;
p. 468, para. 34.)
Neither Party has requested such action by the Court; and since the reports to which reference has
been made do not suggest any profound modification of the situation of which
the Court is seised, but rather its intensification in certain respects, the
Court has seen no need to reopen the hearings.
* *
59. The Court is bound by
the relevant provisions of its Statute and its Rules relating to the system of
evidence, provisions devised to guarantee the sound administration of justice,
while respecting the equality of the parties.
The presentation of evidence is governed by specific rules relating to,
for instance, the observance of time-limits, the communication of *40
evidence to the other party, the submission
of observations on it by that party, and the various forms of challenge by each
party of the other's evidence. The
absence of one of the parties restricts this procedure to some extent. The Court is careful, even where both
parties appear, to give each of them the same opportunities and chances to
produce their evidence; when the
situation is complicated by the non-appearance of one of them, then a fortiori
the Court regards it as essential to guarantee as perfect equality as possible
between the parties. Article 53 of the
Statute therefore obliges the Court to employ whatever means and resources may
enable it to satisfy itself whether the submissions of the applicant State are
well-founded in fact and law, and simultaneously to safeguard the essential
principles of the sound administration of justice.
60. The Court should now
indicate how these requirements have to be met in this case so that it can
properly fulfil its task under that Article of its Statute. In so doing, it is not unaware that its role
is not a passive one; and that, within the limits of its Statute and Rules, it
has freedom in estimating the value of the various elements of evidence, though
it is clear that general principles of judicial procedure necessarily govern
the determination of what can be regarded as proved.
61. In this context, the
Court has the power, under Article 50 of its Statute, to entrust 'any
individual, body, bureau, commission or other organization that it may select, with the task of carrying out an
enquiry or giving an expert opinion', and such a body could be a group of
judges selected from among those sitting in the case. In the present case, however, the Court felt it was unlikely that
an enquiry of this kind would be practical or desirable, particularly since
such a body, if it was properly to perform its task, might have found it
necessary to go not only to the applicant State, but also to several other
neighbouring countries, and even to the respondent State, which had refused to
appear before the Court.
62. At all events, in the
present case the Court has before it documentary material of various kinds from
various sources. A large number of
documents have been supplied in the form of reports in press articles, and some
also in the form of extracts from books.
Whether these were produced by the applicant State, or by the absent
Party before it ceased to appear in the proceedings, the Court has been careful
to treat them with great caution; even
if they seem to meet high standards of objectivity, the Court regards them not
as evidence capable of proving facts, but as material which can nevertheless
contribute, in some circumstances, to corroborating the existence of a fact, i.e.,
as illustrative material additional to other sources of evidence.
63. However, although it
is perfectly proper that press information should not be treated in itself as
evidence for judicial purposes, public knowledge of a fact may nevertheless be
established by means of these sources of information, and the Court can attach a certain amount of
weight to such public knowledge. In the case of United States Diplomatic *41
and Consular Staff in Tehran, the Court referred to facts which 'are, for the
most part, matters of public knowledge which have received extensive coverage
in the world press and in radio and television broadcasts from Iran and other
countries' (I.C.J. Reports 1980, p. 9, para. 12). On the basis of information, including press and broadcast
material, which was 'wholly consistent and concordant as to the main facts and
circumstances of the case', the Court was able to declare that it was satisfied
that the allegations of fact were well-founded (ibid., p. 10, para. 13). The Court has however to show particular
caution in this area. Widespread reports of a fact may prove on closer
examination to derive from a single source, and such reports, however numerous,
will in such case have no greater value as evidence than the original
source. It is with this important
reservation that the newspaper reports supplied to the Court should be examined
in order to assess the facts of the case, and in particular to ascertain
whether such facts were matters of public knowledge.
64. The material before
the Court also includes statements by representatives of States, sometimes at
the highest political level. Some of
these statements were made before official organs of the State or of an
international or regional organization, and appear in the official records of
those bodies. Others, made during press conferences or interviews, were
reported by the local or international
press. The Court takes the view that
statements of this kind, emanating from high-ranking official political
figures, sometimes indeed of the highest rank, are of particular probative
value when they acknowledge facts or conduct unfavourable to the State
represented by the person who made them. They may then be construed as a form
of admission.
65. However, it is natural
also that the Court should treat such statements with caution, whether the
official statement was made by an authority of the Respondent or of the
Applicant. Neither Article 53 of the
Statute, nor any other ground, could justify a selective approach, which would
have undermined the consistency of the Court's methods and its elementary duty
to ensure equality between the Parties.
The Court must take account of the manner in which the statements were
made public; evidently, it cannot treat
them as having the same value irrespective of whether the text is to be found
in an official national or international publication, or in a book or newspaper. It must also take note whether the text of
the official statement in question appeared in the language used by the author
or on the basis of a translation (cf. I.C.J. Reports 1980, p. 10, para.
13). It may also be relevant whether or
not such a statement was brought to the Court's knowledge by official
communications filed in conformity with the relevant requirements of the
Statute and Rules of Court.
Furthermore, the Court has inevitably had sometimes to interpret the
statements, to ascertain precisely to what degree they constituted acknowledgments of a fact.
66. At the hearings in
this case, the applicant State called five witnesses to give oral evidence, and
the evidence of a further witness was offered in *42 the form of an
affidavit 'subscribed and sworn' in the United States, District of Columbia,
according to the formal requirements in force in that place. A similar affidavit, sworn by the United
States Secretary of State, was annexed to the Counter-Memorial of the United
States on the questions of jurisdiction and admissibility. One of the witnesses presented by the
applicant State was a national of the respondent State, formerly in the employ
of a government agency the activity of which is of a confidential kind, and his
testimony was kept strictly within certain limits; the witness was evidently concerned not to contravene the
legislation of his country of origin.
In addition, annexed to the Nicaraguan Memorial on the merits were two
declarations, entitled 'affidavits', in the English language, by which the
authors 'certify and declare' certain facts, each with a notarial certificate
in Spanish appended, whereby a Nicaraguan notary authenticates the signature to
the document. Similar declarations had
been filed by Nicaragua along with its earlier request for the indication of
provisional measures.
67. As regards the
evidence of witnesses, the failure of the respondent State to appear in the
merits phase of these proceedings has resulted in two particular
disadvantages. First, the absence of
the United States meant that the evidence of
the witnesses presented by the Applicant at the hearings was not tested by
cross-examination; however, those
witnesses were subjected to extensive questioning from the bench. Secondly, the Respondent did not itself
present any witnesses of its own. This
latter disadvantage merely represents one aspect, and a relatively secondary one,
of the more general disadvantage caused by the non-appearance of the Respondent.
68. The Court has not
treated as evidence any part of the testimony given which was not a statement
of fact, but a mere expression of opinion as to the probability or otherwise of
the existence of such facts, not directly known to the witness. Testimony of this kind, which may be highly
subjective, cannot take the place of evidence.
An opinion expressed by a witness is a mere personal and subjective
evaluation of a possibility, which has yet to be shown to correspond to a
fact; it may, in conjunction with other
material, assist the Court in determining a question of fact, but is not proof
in itself. Nor is testimony of matters
not within the direct knowledge of the witness, but known to him only from
hearsay, of much weight; as the Court
observed in relation to a particular witness in the Corfu Channel case:
'The statements
attributed by the witness . . . to third parties, of which the Court has
received no personal and direct confirmation, can be regarded only as
allegations falling short of conclusive evidence.' (I.C.J. Reports 1949, pp. 16-17.)
69. The Court has had to attach considerable significance to the
declarations made by the responsible authorities of the States concerned in
view of the difficulties which it has had to face in determining the facts. *43
Nevertheless, the Court was still bound to subject these declarations to the
necessary critical scrutiny. A
distinctive feature of the present case was that two of the witnesses called to
give oral evidence on behalf of Nicaragua were members of the Nicaraguan
Government, the Vice-Minister of the Interior (Commander Carrion), and the
Minister of Finance (Mr. Huper). The
Vice- Minister of the Interior was also the author of one of the two
declarations annexed to the Nicaraguan Memorial on the merits, the author of
the other being the Minister for Foreign Affairs. On the United States side, an affidavit was filed sworn by the
Secretary of State. These declarations
at ministerial level on each side were irreconcilable as to their statement of
certain facts. In the view of the
Court, this evidence is of such a nature as to be placed in a special
category. In the general practice of
courts, two forms of testimony which are regarded as prima facie of superior
credibility are, first the evidence of a disinterested witness - one who is not
a party to the proceedings and stands to gain or lose nothing from its outcome
- and secondly so much of the evidence of a party as is against its own
interest. Indeed the latter approach
was invoked in this case by counsel for Nicaragua.
70. A member of the
government of a State engaged, not merely in international litigation, but in litigation relating to armed
conflict, will probably tend to identify himself with the interests of his
country, and to be anxious when giving evidence to say nothing which could
prove adverse to its cause. The Court
thus considers that it can certainly retain such parts of the evidence given by
Ministers, orally or in writing, as may be regarded as contrary to the
interests or contentions of the State to which the witness owes allegiance, or
as relating to matters not controverted.
For the rest, while in no way impugning the honour or veracity of the
Ministers of either Party who have given evidence, the Court considers that the
special circumstances of this case require it to treat such evidence with great
reserve. The Court believes this
approach to be the more justified in view of the need to respect the equality
of the parties in a case where one of them is no longer appearing; but this should not be taken to mean that
the non-appearing party enjoys a priori a presumption in its favour.
71. However, before
outlining the limits of the probative effect of declarations by the authorities
of the States concerned, the Court would recall that such declarations may
involve legal effects, some of which it has defined in previous decisions
(Nuclear Tests, United States Diplomatic and Consular Staff in Tehran
cases). Among the legal effects which such
declarations may have is that they may be regarded as evidence of the truth of
facts, as evidence that such facts are attributable to the States the
authorities of which are the authors of
these declarations and, to a lesser degree, as evidence for the legal
qualification of these facts. The Court
is here concerned with the significance of the official declarations as
evidence of specific facts and of their imputability to the States in question.
*44 72. The declarations to which the Court
considers it may refer are not limited to those made in the pleadings and the
oral argument addressed to it in the successive stages of the case, nor are
they limited to statements made by the Parties. Clearly the Court is entitled to refer, not only to the Nicaraguan
pleadings and oral argument, but to the pleadings and oral argument submitted
to it by the United States before it withdrew from participation in the
proceedings, and to the Declaration of Intervention of El Salvador in the
proceedings. It is equally clear that
the Court may take account of public declarations to which either Party has
specifically drawn attention, and the text, or a report, of which has been
filed as documentary evidence. But the
Court considers that, in its quest for the truth, it may also take note of
statements of representatives of the Parties (or of other States) in
international organizations, as well as the resolutions adopted or discussed by
such organizations, in so far as factually relevant, whether or not such material
has been drawn to its attention by a Party.
73. In addition, the Court
is aware of the existence and the contents of a publication of the United
States State Department entitled 'Revolution Beyond Our Borders', Sandinista Intervention in
Central America intended to justify the policy of the United States towards
Nicaragua. This publication was issued
in September 1985, and on 6 November 1985 was circulated as an official
document of the United Nations General Assembly and the Security Council, at
the request of the United States (A/40/858;
S/17612); Nicaragua had
circulated in reply a letter to the Secretary-General, annexing inter alia an
extract from its Memorial on the Merits and an extract from the verbatim
records of the hearings in the case (A/40/907;
S/17639). The United States
publication was not submitted to the Court in any formal manner contemplated by
the Statute and Rules of Court, though on 13 September 1985 the United States
Information Office in The Hague sent copies to an official of the Registry to
be made available to anyone at the Court interested in the subject. The representatives of Nicaragua before the
Court during the hearings were aware of the existence of this publication,
since it was referred to in a question put to the Agent of Nicaragua by a
Member of the Court. They did not
attempt to refute before the Court what was said in that publication, pointing
out that materials of this kind 'do not constitute evidence in this case', and
going on to suggest that it 'cannot properly be considered by the Court'. The Court however considers that, in view of
the special circumstances of this case, it may, within limits, make use of
information in such a publication.
74. In connection with the
question of proof of facts, the Court notes that Nicaragua has relied on an
alleged implied admission by the United States. It has drawn attention to the invocation of collective
self-defence by the United States, and contended that 'the use of the
justification of *45 collective self-defence constitutes a major
admission of direct and substantial United States involvement in the military
and paramilitary operations' directed against Nicaragua. The Court would observe that the normal
purpose of an invocation of self-defence is to justify conduct which would
otherwise be wrongful. If advanced as a
justification in itself, not coupled with a denial of the conduct alleged, it
may well imply both an admission of that conduct, and of the wrongfulness of
that conduct in the absence of the justification of self-defence. This reasoning would do away with any
difficulty in establishing the facts, which would have been the subject of an
implicit overall admission by the United States, simply through its attempt to
justify them by the right of self-defence.
However, in the present case the United States has not listed the facts
or described the measures which it claims to have taken in self- defence; nor has it taken the stand that it is
responsible for all the activities of which Nicaragua accuses it but such
activities were justified by the right of self-defence. Since it has not done this, the United
States cannot be taken to have admitted all
the activities, or any of them; the
recourse to the right of self-defence thus does not make possible a firm and
complete definition of admitted facts.
The Court thus cannot consider reliance on self-defence to be an implicit
general admission on the part of the United States; but it is certainly a recognition as to the imputability of some
of the activities complained of.
* * * * *
75. Before examining the
complaint of Nicaragua against the United States that the United States is
responsible for the military capacity, if not the very existence, of the contra
forces, the Court will first deal with events which, in the submission of
Nicaragua, involve the responsibility of the United States in a more direct
manner. These are the mining of
Nicaraguan ports or waters in early 1984;
and certain attacks on, in particular, Nicaraguan port and oil
installations in late 1983 and early 1984.
It is the contention of Nicaragua that these were not acts committed by
members of the contras with the assistance and support of United States
agencies. Those directly concerned in
the acts were, it is claimed, not Nicaraguan nationals or other members of the
FDN or ARDE, but either United States military personnel or persons of the nationality
of unidentified Latin American countries, paid by, and acting on the direct instructions of, United States
military or intelligence personnel. (These persons were apparently referred to
in the vocabulary of the CIA as 'UCLAs' - 'Unilaterally Controlled Latino
Assets', and this acronym will be used, purely for convenience, in what
follows.) Furthermore, Nicaragua
contends that such United States personnel, while they may have refrained from
themselves entering Nicaraguan territory or recognized territorial waters,
directed the operations and gave very close logistic, intelligence and
practical support. A further complaint
by Nicaragua which does not *46 relate to contra activity is that of
overflights of Nicaraguan territory and territorial waters by United States
military aircraft. These complaints
will now be examined.
* *
76. On 25 February 1984,
two Nicaraguan fishing vessels struck mines in the Nicaraguan port of El Bluff,
on the Atlantic coast. On 1 March 1984
the Dutch dredger Geoponte, and on 7 March 1984 the Panamanian vessel Los
Caraibes were damaged by mines at Corinto.
On 20 March 1984 the Soviet tanker Lugansk was damaged by a mine in
Puerto Sandino. Further vessels were
damaged or destroyed by mines in Corinto on 28, 29 and 30 March. The period for which the mines effectively
closed or restricted access to the ports was some two months. Nicaragua claims that a total of 12 vessels or
fishing boats were destroyed or damaged by mines, that 14 people were wounded
and two people killed. The exact
position of the mines - whether they were in Nicaraguan internal waters or in
its territorial sea - has not been made clear to the Court: some reports indicate that those at Corinto
were not in the docks but in the access channel, or in the bay where ships wait
for a berth. Nor is there any direct
evidence of the size and nature of the mines;
the witness Commander Carrion explained that the Nicaraguan authorities
were never able to capture an unexploded mine. According to press reports, the
mines were laid on the sea-bed and triggered either by contact, acoustically,
magnetically or by water pressure; they
were said to be small, causing a noisy explosion, but unlikely to sink a ship.
Other reports mention mines of varying size, some up to 300 pounds of
explosives. Press reports quote United
States administration officials as saying that mines were constructed by the
CIA with the help of a United States Navy Laboratory.
77. According to a report
in Lloyds List and Shipping Gazette, responsibility for mining was claimed on 2
March 1984 by the ARDE. On the other
hand, according to an affidavit by Mr. Edgar Chamorro, a former political
leader of the FDN, he was instructed by a CIA official to issue a press release
over the clandestine radio on 5 January 1984, claiming that the FDN had mined
several Nicaraguan harbours. He also
stated that the FDN in fact played no role in the mining of the harbours, but did not state who
was responsible. According to a press
report, the contras announced on 8 January 1984, that they were mining all
Nicaraguan ports, and warning all ships to stay away from them; but according to the same report, nobody
paid much attention to this announcement. It does not appear that the United
States Government itself issued any *47 warning or notification to other
States of the existence and location of the mines.
78. It was announced in
the United States Senate on 10 April 1984 that the Director of the CIA had
informed the Senate Select Committee on Intelligence that President Reagan had
approved a CIA plan for the mining of Nicaraguan ports; press reports state that the plan was
approved in December 1983, but according to a member of that Committee, such
approval was given in February 1984. On
10 April 1984, the United States Senate voted that
'it is the sense of the
Congress that no funds . . . shall be obligated or expended for the purpose of
planning, directing, executing or supporting the mining of the ports or
territorial waters of Nicaragua'.
During a televised interview on 28 May 1984, of which the official
transcript has been produced by Nicaragua, President Reagan, when questioned
about the mining of ports, said 'Those were homemade mines . . . that couldn't
sink a ship. They were planted in those
harbors . . . by the Nicaraguan rebels.' According to press reports quoting
sources in the United States administration, the
laying of mines was effected from speed boats, not by members of the ARDE or
FDN, but by the 'UCLAs'. The mother
ships used for the operation were operated, it is said, by United States
nationals; they are reported to have
remained outside the 12-mile limit of Nicaraguan territorial waters recognized
by the United States. Other less
sophisticated mines may, it appears, have been laid in ports and in Lake
Nicaragua by contras operating separately;
a Nicaraguan military official was quoted in the press as stating that
'most' of the mining activity was directed by the United States.
79. According to
Nicaragua, vessels of Dutch, Panamanian, Soviet, Liberian and Japanese
registry, and one (Homin) of unidentified registry, were damaged by mines,
though the damage to the Homin has also been attributed by Nicaragua rather to
gunfire from minelaying vessels. Other
sources mention damage to a British or a Cuban vessel. No direct evidence is available to the Court
of any diplomatic protests by a State whose vessel had been damaged; according to press reports, the Soviet
Government accused the United States of being responsible for the mining, and
the British Government indicated to the United States that it deeply deplored
the mining, as a matter of principle.
Nicaragua has also submitted evidence to show that the mining of the
ports caused a rise in marine insurance rates for cargo to and from Nicaragua,
and that some shipping companies stopped sending vessels to Nicaraguan ports.
*48 80. On this basis, the Court finds it
established that, on a date in late 1983 or
early 1984, the President of the United States authorized a United States
government agency to lay mines in Nicaraguan ports; that in early 1984 mines were laid in or close to the ports of El
Bluff, Corinto and Puerto Sandino, either in Nicaraguan internal waters or in
its territorial sea or both, by persons in the pay and acting on the
instructions of that agency, under the supervision and with the logistic
support of United States agents; that neither before the laying of the mines,
nor subsequently, did the United States Government issue any public and
official warning to international shipping of the existence and location of the
mines; and that personal and material
injury was caused by the explosion of the mines, which also created risks
causing a rise in marine insurance rates.
* *
81. The operations which
Nicaragua attributes to the direct action of United States personnel or
'UCLAs', in addition to the mining of ports, are apparently the following:
(i) 8 September
1983: an attack was made on Sandino
international airport in Managua by a Cessna aircraft, which was shot down;
(ii) 13 September
1983: an underwater oil pipeline and
part of the oil terminal at Puerto Sandino were blown up;
(iii) 2 October 1983: an attack
was made on oil storage facilities at Benjamin Zeledon on the Atlantic coast,
causing the loss of a large quantity of fuel;
(iv) 10 October
1983: an attack was made by air and sea
on the port of Corinto, involving the destruction of five oil storage tanks,
the loss of millions of gallons of fuel, and the evacuation of large numbers of
the local population;
(v) 14 October
1983: the underwater oil pipeline at
Puerto Sandino was again blown up;
(vi) 4/5 January
1984: an attack was made by speedboats
and helicopters using rockets against the Potosi Naval Base;
(vii) 24/25 February
1984: an incident at El Bluff listed
under this date appears to be the mine explosion already mentioned in paragraph
76;
(viii) 7 March
1984: an attack was made on oil and
storage facility at San Juan del Sur by speedboats and helicopters;
(ix) 28/30 March
1984: clashes occurred at Puerto
Sandino between speedboats, in the course of minelaying operations, and
Nicaraguan patrol boats; intervention
by a helicopter in support of the speed-boats;
(x) 9 April 1984: a helicopter allegedly launched from a
mother ship in international waters provided fire support for an ARDE attack on
San Juan del Norte.
*49 82. At the time
these incidents occurred, they were considered to be acts of the contras, with
no greater degree of United States support than the many other military and
paramilitary activities of the contras.
The declaration of Commander Carrion lists the incidents numbered (i), (ii),
(iv) and (vi) above in the catalogue of activities of 'mercenaries', without
distinguishing these items from the rest;
it does not mention items (iii), (v) and (vii) to (x). According to a report in the New York Times
(13 October 1983), the Nicaraguan Government, after the attack on Corinto (item
(iv) above) protested to the United States Ambassador in Managua at the aid
given by the United States to the contras, and addressed a diplomatic note in
the same sense to the United States Secretary of State. The Nicaraguan Memorial does not mention
such a protest, and the Court has not been supplied with the text of any such
note.
83. On 19 October 1983,
thus nine days after the attack on Corinto, a question was put to President
Reagan at a press conference. Nicaragua
has supplied the Court with the official transcript which, so far as relevant,
reads as follows:
'Question: Mr. President, regarding the recent rebel
attacks on a Nicaraguan oil depot, is it proper for the CIA to be involved in
planning such attacks and supplying equipment for air raids? And do the American people have a right to
be informed about any CIA role?
The President: I think covert actions have been a part of
government and a part of government's
responsibilities for as long as there has been a government. I'm not going to comment on what, if any,
connection such activities might have had with what has been going on, or with
some of the specific operations down there.
But I do believe in the
right of a country when it believes that its interests are best served to
practice covert activity and then, while your people may have a right to know,
you can't let your people know without letting the wrong people know, those
that are in opposition to what you're doing.'
Nicaragua presents this as one of a series of admissions 'that the
United States was habitually and systematically giving aid to mercenaries
carrying out military operations against the Government of Nicaragua'. In the view of the Court, the President's
refusal to comment on the connection between covert activities and 'what has
been going on, or with some of the specific operations down there' can, in its
context, be treated as an admission that the United States had something to do
with the Corinto attack, but not necessarily that United States personnel were
directly involved.
84. The evidence available
to the Court to show that the attacks listed above occurred, and that they were
the work of United States personnel or 'UCLAs', other than press reports, is as
follows. In his declaration, *50
Commander Carrion lists items (i), (ii), (iv) and (vi), and in his oral
evidence before the Court he mentioned items
(ii) and (iv). Items (vi) to (x) were
listed in what was said to be a classified CIA internal memorandum or report,
excerpts from which were published in the Wall Street Journal on 6 March 1985;
according to the newspaper, 'intelligence and congressional officials' had
confirmed the authenticity of the document.
So far as the Court is aware, no denial of the report was made by the
United States administration. The
affidavit of the former FDN leader Edgar Chamorro states that items (ii), (iv)
and (vi) were the work of UCLAs despatched from a CIA 'mother ship', though the
FDN was told by the CIA to claim responsibility. It is not however clear what the source of Mr. Chamorro's
information was; since there is no
suggestion that he participated in the operation (he states that the FDN 'had
nothing whatsoever to do' with it), his evidence is probably strictly hearsay,
and at the date of his affidavit, the same allegations had been published in
the press. Although he did not leave
the FDN until the end of 1984, he makes no mention of the attacks listed above
of January to April 1984.
85. The Court considers
that it should eliminate from further consideration under this heading the
following items:
- the attack of 8
September 1983 on Managua airport (item (i)):
this was claimed by the ARDE; a
press report is to the effect that the ARDE purchased the aircraft from the
CIA, but there is no evidence of CIA planning, or the involvement of any United
States personnel or UCLAs;
- the attack on Benjamin Zeledon on 2 October 1983 (item (iii)): there is no evidence of the involvement of
United States personnel or UCLAs;
- the incident of 24-25
February 1984 (item vii), already dealt with under the heading of the mining of
ports.
86. On the other hand the
Court finds the remaining incidents listed in paragraph 81 to be
established. The general pattern
followed by these attacks appears to the Court, on the basis of that evidence
and of press reports quoting United States administration sources, to have been
as follows. A 'mother ship' was
supplied (apparently leased) by the CIA;
whether it was of United States registry does not appear. Speedboats, guns and ammunition were
supplied by the United States administration, and the actual attacks were
carried out by 'UCLAs'. Helicopters
piloted by Nicaraguans and others piloted by United States nationals were also
involved on some occasions. According
to one report the pilots were United States civilians under contract to the
CIA. Although it is not proved that any United States military personnel took a
direct part in the operations, agents of the United States participated in the
planning, direction, support and execution of the operations. The execution was the task rather *51
of the 'UCLAs', while United States nationals participated in the planning,
direction and support. The imputability
to the United States of these attacks appears therefore to the Court to be
established.
* *
87. Nicaragua complains of
infringement of its airspace by United States military aircraft. Apart from a minor incident on 11 January
1984 involving a helicopter, as to which, according to a press report, it was
conceded by the United States that it was possible that the aircraft violated
Nicaraguan airspace, this claim refers to overflights by aircraft at high
altitude for intelligence reconnaissance purposes, or aircraft for supply
purposes to the contras in the field, and aircraft producing 'sonic
booms'. The Nicaraguan Memorial also
mentions low-level reconnaissance flights by aircraft piloted by United States
personnel in 1983, but the press report cited affords no evidence that these
flights, along the Honduran border, involved any invasion of airspace. In addition Nicaragua has made a particular
complaint of the activities of a United States SR-71 plane between 7 and 11
November 1984, which is said to have flown low over several Nicaraguan cities
'producing loud sonic booms and shattering glass windows, to exert
psychological pressure on the Nicaraguan Government and population'.
88. The evidence available
of these overflights is as follows.
During the proceedings on jurisdiction and admissibility, the United
States Government deposited with the Court a 'Background Paper' published in
July 1984, incorporating eight aerial
photographs of ports, camps, an airfield, etc., in Nicaragua, said to have been
taken between November 1981 and June 1984. According to a press report,
Nicaragua made a diplomatic protest to the United States in March 1982
regarding overflights, but the text of such protest has not been produced. In the course of a Security Council debate
on 25 March 1982, the United States representative said that
'It is true that once we
became aware of Nicaragua's intentions and actions, the United States
Government undertook overflights to safeguard our own security and that of
other States which are threatened by the Sandinista Government',
and continued
'These overflights,
conducted by unarmed, high-flying planes, for the express and sole purpose of
verifying reports of Nicaraguan intervention, are no threat to regional peace
and stability; quite the
contrary.' (S/PV.2335, p. 48, emphasis
added.)
*52 The use of the present
tense may be taken to imply that the overflights were continuing at the time of
the debate. Press reports of 12
November 1984 confirm the occurrence of sonic booms at that period, and report
the statement of Nicaraguan Defence Ministry officials that the plane
responsible was a United States SR-71.
89. The claim that sonic
booms were caused by United States aircraft in November
1984 rests on assertions by Nicaraguan Defence Ministry officials, reported in
the United States press; the Court is
not however aware of any specific denial of these flights by the United States
Government. On 9 November 1984 the
representative of Nicaragua in the Security Council asserted that United States
SR-71 aircraft violated Nicaraguan airspace on 7 and 9 November 1984; he did not specifically mention sonic booms
in this respect (though he did refer to an earlier flight by a similar
aircraft, on 31 October 1984, as having been 'accompanied by loud explosions'
(S/PV. 2562, pp. 8-10)). The United States representative in the Security
Council did not comment on the specific incidents complained of by Nicaragua
but simply said that 'the allegation which is being advanced against the United
States' was 'without foundation' (ibid., p. 28).
90. As to low-level
reconnaissance flights by United States aircraft, or flights to supply the contras
in the field, Nicaragua does not appear to have offered any more specific
evidence of these; and it has supplied
evidence that United States agencies made a number of planes available to the
contras themselves for use for supply and low-level reconnaissance
purposes. According to Commander
Carrion, these planes were supplied after late 1982, and prior to the contras
receiving the aircraft, they had to return at frequent intervals to their
basecamps for supplies, from which it may be inferred that there were at that
time no systematic overflights by United States planes for supply purposes.
91. The Court concludes
that, as regards the high-altitude overflights for reconnaissance purposes, the
statement admitting them made in the Security Council is limited to the period
up to March 1982. However, not only is
it entitled to take into account that the interest of the United States in
'verifying reports of Nicaraguan intervention' - the justification offered in
the Security Council for these flights - has not ceased or diminished since
1982, but the photographs attached to the 1984 Background Paper are evidence of
at least sporadic overflights subsequently.
It sees no reason therefore to doubt the assertion of Nicaragua that
such flights have continued. The Court
finds that the incidents of overflights causing 'sonic booms' in November 1984
are to some extent a matter of public knowledge. As to overflights of aircraft for supply purposes, it appears
from Nicaragua's evidence that these were carried out generally, if not
exclusively, by the contras themselves, though using aircraft supplied to them
by the United States. Whatever other
responsibility the United States *53 may have incurred in this latter
respect, the only violations of Nicaraguan airspace which the Court finds
imputable to the United States on the basis of the evidence before it are first
of all, the high-altitude reconnaissance flights, and secondly the low-altitude
flights of 7 to 11 November 1984, complained of as causing 'sonic booms'.
92. One other aspect of
activity directly carried out by the United States in relation to Nicaragua has
to be mentioned here, since Nicaragua has attached a certain significance to
it. Nicaragua claims that the United
States has on a number of occasions carried out military manoeuvres jointly
with Honduras on Honduran territory near the Honduras/Nicaragua frontier; it alleges that much of the military
equipment flown in to Honduras for the joint manoeuvres was turned over to the
contras when the manoeuvres ended, and that the manoeuvres themselves formed
part of a general and sustained policy of force intended to intimidate the
Government of Nicaragua into accepting the political demands of the United
States Government. The manoeuvres in
question are stated to have been carried out in autumn 1982; February 1983 ('Ahuas Tara I'); August 1983 ('Ahuas Tara II'), during which
American warships were, it is said, sent to patrol the waters off both
Nicaragus's coasts; November 1984, when
there were troop movements in Honduras and deployment of warships off the
Atlantic coast of Nicaragua; February
1985 ('Ahuas Tara III'); March 1985
('Universal Trek ' 85'); June 1985,
paratrooper exercises. As evidence of
these manoeuvres having taken place, Nicaragua has offered newspaper
reports; since there was no secrecy
about the holding of the manoeuvres, the Court considers that it may treat the
matter as one of public knowledge, and as such, sufficiently established.
* *
93. The Court must now
examine in more detail the genesis, development and activities of the contra
force, and the role of the United States in relation to it, in order to
determine the legal significance of the conduct of the United States in this
respect. According to Nicaragua, the
United States 'conceived, created and organized a mercenary army, the contra
force'. However, there is evidence to show that some armed opposition to the
Government of Nicaragua existed in 1979-1980, even before any interference or
support by the United States. Nicaragua
dates the beginning of the activity of the United States to 'shortly after' 9
March 1981, when, it was said, the President of the United States made a formal
presidential finding authorizing the CIA to undertake 'covert activities'
directed against Nicaragua. According
to the testimony of Commander *54 Carrion, who stated that the
'organized military and paramilitary activities' began in December 1981, there
were Nicaraguan 'anti-government forces' prior to that date, consisting of
'just a few small bands
very poorly armed, scattered along the northern border of Nicaragua and . . .
composed mainly of exmembers of the Somoza's National Guard. They did not have any military effectiveness
and what they mainly did was rustling cattle
and killing some civilians near the borderlines.'
These bands had existed in one form or another since the fall of
the Somoza government: the affidavit of
Mr. Edgar Chamorro refers to 'the ex-National Guardsmen who had fled to
Honduras when the Somoza government fell and had been conducting sporadic raids
on Nicaraguan border positions ever since'. According to the Nicaraguan
Memorial, the CIA initially conducted military and paramilitary activities
against Nicaragua soon after the presidential finding of 9 March 1981, 'through
the existing armed bands'; these
activities consisted of 'raids on civilian settlements, local militia outposts
and army patrols'. The weapons used
were those of the former National Guard.
In the absence of evidence, the Court is unable to assess the military
effectiveness of these bands at that time;
but their existence is in effect admitted by the Nicaraguan Government.
94. According to the
affidavit of Mr. Chamorro, there was also a political opposition to the Nicaraguan
Government, established outside Nicaragua, from the end of 1979 onward, and in
August 1981 this grouping merged with an armed opposition force called the 15th
of September Legion, which had itself incorporated the previously disparate
armed opposition bands, through mergers arranged by the CIA. It was thus that the FDN is said to have
come into being. The other major armed
opposition group, the ARDE, was formed in 1982 by Alfonso Robelo Callejas, a former member of the
original 1979 Junta and Eden Pastora Gomez, a Sandinista military commander,
leader of the FRS (Sandino Revolutionary Front) and later Vice-Minister in the
Sandinista government. Nicaragua has not alleged that the United States was involved
in the formation of this body. Even on
the face of the evidence offered by the Applicant, therefore, the Court is
unable to find that the United States created an armed opposition in Nicaragua. However, according to press articles citing
official sources close to the United States Congress, the size of the contra
force increased dramatically once United States financial and other assistance
became available: from an initial body
of 500 men (plus, according to some reports, 1,000 Miskito Indians) in December
1981, the force grew to 1,000 in February 1982, 1,500 in August 1982, 4,000 in
December 1982, 5,500 in February 1983, 8,000 in June 1983 and 12,000 in
November 1983. When (as explained
below) United States aid other than 'humanitarian *55 assistance' was
cut off in September 1984, the size of the force was reported to be over 10,000
men.
95. The financing by the
United States of the aid to the contras was initially undisclosed, but
subsequently became the subject of specific legislative provisions and
ultimately the stake in a conflict between the legislative and executive organs
of the United States. Initial
activities in 1981 seem to have been financed out of the funds available to the
CIA for 'covert' action; according to subsequent press reports quoted by
Nicaragua, $19.5 million was allocated to
these activities. Subsequently, again
according to press sources, a further $19 million was approved in late 1981 for
the purpose of the CIA plan for military and paramilitary operations authorized
by National Security Decision Directive 17.
The budgetary arrangements for funding subsequent operations up to the
end of 1983 have not been made clear, though a press report refers to the
United States Congress as having approved 'about $20 million' for the fiscal
year to 30 September 1983, and from a Report of the Permanent Select Committee
on Intelligence of the House of Representatives (hereinafter called the
'Intelligence Committee') it appears that the covert programme was funded by
the Intelligence Authorization Act relating to that fiscal year, and by the
Defense Appropriations Act, which had been amended by the House of
Representatives so as to prohibit 'assistance for the purpose of overthrowing
the Government of Nicaragua'. In May
1983, this Committee approved a proposal to amend the Act in question so as to
prohibit United States support for military or paramilitary operations in
Nicaragua. The proposal was designed to
have substituted for these operations the provision of open security assistance
to any friendly Central American country so as to prevent the transfer of
military equipment from or through Cuba or Nicaragua. This proposal was adopted
by the House of Representatives, but the Senate did not concur; the executive in the meantime presented a
request for $45 million for the operations in Nicaragua for the fiscal year to
30 September 1984. Again conflicting
decisions emerged from the Senate and House of Representatives, but ultimately
a compromise was reached. In November
1983, legislation was adopted, coming into force on 8 December 1983, containing
the following provision:
'During fiscal year
1984, not more than $24,000,000 of the funds available to the Central
Intelligence Agency, the Department of Defense, or any other agency or entity
of the United States involved in intelligence activities may be obligated or
expended for the purpose or *56 which would have the effect of
supporting, directly or indirectly, military or paramilitary operations in
Nicaragua by any nation, group, organization, movement, or individual.' (Intelligence Authorization Act 1984,
Section 108.)
96. In March 1984, the
United States Congress was asked for a supplemental appropriation of $21
million 'to continue certain activities of the Central Intelligence Agency
which the President has determined are important to the national security of
the United States', i.e., for further support for the contras. The Senate approved the supplemental
appropriation, but the House of Representatives did not. In the Senate, two amendments which were
proposed but not accepted were: to
prohibit the funds appropriated from being provided to any individual or group
known to have as one of its intentions the violent overthrow of any Central
American government; and to prohibit
the funds being used for acts of terrorism in or against Nicaragua. In June 1984, the Senate took up consideration of the executive's
request for $28 million for the activities in Nicaragua for the fiscal year
1985. When the Senate and the House of
Representatives again reached conflicting decisions, a compromise provision was
included in the Continuing Appropriations Act 1985 (Section 8066). While in principle prohibiting the use of
funds during the fiscal year to 30 September 1985
'for the purpose or which
would have the effect of supporting, directly or indirectly, military or
paramilitary operations in Nicaragua by any nation, group, organization,
movement or individual',
the Act provided $14 million for that purpose if the President
submitted a report to Congress after 28 February 1985 justifying such an
appropriation, and both Chambers of Congress voted affirmatively to approve
it. Such a report was submitted on 10
April 1985; it defined United States
objectives toward Nicaragua in the following terms:
'United States policy
toward Nicaragua since the Sandinistas' ascent to power has consistently sought
to achieve changes in Nicaraguan government policy and behavior. We have not sought to overthrow the
Nicaraguan Government nor to force on Nicaragua a specific system of
government.'
The changes sought were stated to be:
'- termination of all forms of Nicaraguan support for insurgencies
or subversion in neighboring countries;
*57 - reduction of Nicaragua's expanded
military/security apparatus to restore military balance in the region;
- severance of Nicaragua's military and security ties to the
Soviet Bloc and Cuba and the return to those countries of their military and
security advisers now in Nicaragua; and
- implementation of Sandinista commitment to the Organization of
American States to political pluralism, human rights, free elections, non-
alignment, and a mixed economy.'
At the same time the President of the United States, in a press
conference, referred to an offer of a cease-fire in Nicaragua made by the
opponents of the Nicaraguan Government on 1 March 1984, and pledged that the
$14 million appropriation, if approved, would not be used for arms or
munitions, but for 'food, clothing and medicine and other support for survival'
during the period 'while the cease-fire offer is on the table'. On 23 and 24 April 1985, the Senate voted
for, and the House of Representatives against, the $14 million appropriation.
97. In June 1985, the
United States Congress was asked to approve the appropriation of $38 million to
fund military or paramilitary activities against Nicaragua during the fiscal
years 1985 and 1986 (ending 30 September 1986). This appropriation was approved by the Senate on 7 June
1985. The House of Representatives,
however, adopted a proposal for an appropriation of $27 million, but solely for humanitarian
assistance to the contras, and administration of the funds was to be taken out
of the hands of the CIA and the Department of Defense. The relevant legislation, as ultimately
agreed by the Senate and House of Representatives after submission to a
Conference Committee, provided
'$27,000,000 for
humanitarian assistance to the Nicaraguan democratic resistance. Such assistance shall be provided in such
department or agency of the United States as the President shall designate,
except the Central Intelligence Agency or the Department of Defense . . .
As used in this
subsection, the term 'humanitarian assistance' means the provision of food,
clothing, medicine, and other humanitarian assistance, and it does not include
the provision of weapons, weapons systems, ammunition, or other equipment,
vehicles, or material which can be used to inflict serious bodily harm or
death.'
The Joint Explanatory Statement of the Conference Committee noted
that while the legislation adopted
*58 'does proscribe these two agencies [CIA and
DOD] from administering the funds and from providing any military training or
advice to the democratic resistance . . . none of the prohibitions on the
provision of military or paramilitary assistance to the democratic resistance
prevents the sharing of intelligence information with the democratic
resistance'.
In the House of Representatives, it was
stated that an assurance had been given by the National Security Council and
the White House that
'neither the [CIA]
reserve for contingencies nor any other funds available [would] be used for any material assistance
other than that authorized . . . for humanitarian assistance for the Nicaraguan
democratic resistance, unless authorized by a future act of Congress'.
Finance for supporting the military and paramilitary activities of
the contras was thus available from the budget of the United States Government
from some time in 1981 until 30 September 1984; and finance limited to 'humanitarian assistance' has been
available since that date from the same source and remains authorized until 30
September 1986.
98. It further appears,
particularly since the restriction just mentioned was imposed, that financial
and other assistance has been supplied from private sources in the United
States, with the knowledge of the Government.
So far as this was earmarked for 'humanitarian assistance', it was
actively encouraged by the United States President. According to press reports, the State Department made it known in
September 1984 that the administration had decided 'not to discourage' private
American citizens and foreign governments from supporting the contras. The Court notes that this statement was
prompted by an incident which indicated that some private assistance of a
military nature was being provided.
99. The Court finds at all events that from 1981 until 30
September 1984 the United States Government was providing funds for military
and paramilitary activities by the contras in Nicaragua, and thereafter for
'humanitarian assistance'. The most
direct evidence of the specific purposes to which it was intended that these
funds should be put was given by the oral testimony of a witness called by
Nicaragua: Mr. David MacMichael,
formerly in the employment of the CIA as a Senior Estimates Officer with the
Analytic Group of the National Intelligence Council. He informed the Court that in 1981 he participated in that capacity
in discussion of a plan relating to Nicaragua, excerpts from which were
subsequently published in the Washington Post, and he confirmed that, with the
exception of a detail (here omitted), these excerpts gave an accurate account
of the plan, the purposes of which they described as follows:
*59 'Covert operations under the CIA proposal,
according to the NSC records, are intended to:
'Build popular support
in Central America and Nicaragua for an opposition front that would be
nationalistic, anti-Cuban and anti-Somoza.
Support the opposition
front through formation and training of action teams to collect intelligence
and engage in paramilitary and political operations in Nicaragua and elsewhere.
Work primarily through
non-Americans'
to achieve these covert
objectives . . .'
100. Evidence of how the
funds appropriated were spent, during the period up to autumn 1984, has been
provided in the affidavit of the former FDN leader, Mr. Chamorro; in that affidavit he gives considerable detail
as to the assistance given to the FDN.
The Court does not however possess any comparable direct evidence as to
support for the ARDE, though press reports suggest that such support may have
been given at some stages. Mr. Chamorro
states that in 1981 former National Guardsmen in exile were offered regular
salaries from the CIA, and that from then on arms (FAL and AK-47 assault rifles
and mortars), ammunition, equipment and food were supplied by the CIA. When he worked full time for the FDN, he
himself received a salary, as did the other FDN directors. There was also a budget from CIA funds for
communications, assistance to Nicaraguan refugees or family members of FDN
combatants, and a military and logistics budget; however, the latter was not large since all arms, munitions and
military equipment, including uniforms, boots and radio equipment, were
acquired and delivered by the CIA.
101. According to Mr.
Chamorro, training was at the outset provided by Argentine military officers,
paid by the CIA, gradually replaced by CIA personnel. The training given was in
'guerrilla warfare,
sabotage, demolitions, and in the use of a variety of weapons, including
assault rifles, machine guns, mortars, grenade launchers, and explosives, such as Claymore mines . . .
also . . . in field communications, and the CIA taught us how to use certain
sophisticated codes that the Nicaraguan Government forces would not be able to
decipher'.
The CIA also supplied the FDN with intelligence, particularly as
to Nicaraguan troop movements, derived from radio and telephonic interception,
code-breaking, and surveillance by aircraft and satellites. Mr. Chamorro also refers to aircraft being
supplied by the CIA; from press reports
it appears that those were comparatively small aircraft suitable for
reconnaissance and a certain amount of supply-dropping, not for offensive *60
operations. Helicopters with Nicaraguan
crews are reported to have taken part in certain operations of the 'UCLAs' (see
paragraph 86 above), but there is nothing to show whether these belonged to the
contras or were lent by United States agencies.
102. It appears to be
recognized by Nicaragua that, with the exception of some of the operations
listed in paragraph 81 above, operations on Nicaraguan territory were carried
out by the contras alone, all United States trainers or advisers remaining on
the other side of the frontier, or in international waters. It is however claimed by Nicaragua that the
United States Government has devised the strategy and directed the tactics of
the contra force, and provided direct combat support for its military operations.
103. In support of the
claim that the United States devised the strategy and directed the tactics of
the contras, counsel for Nicaragua referred to the successive stages of the United States
legislative authorization for funding the contras (outlined in paragraphs 95 to
97 above), and observed that every offensive by the contras was preceded by a
new infusion of funds from the United States.
From this, it is argued, the conclusion follows that the timing of each
of those offensives was determined by the United States. In the sense that an offensive could not be
launched until the funds were available, that may well be so; but, in the Court's view, it does not follow
that each provision of funds by the United States was made in order to set in
motion a particular offensive, and that that offensive was planned by the
United States.
104. The evidence in
support of the assertion that the United States devised the strategy and
directed the tactics of the contras appears to the Court to be as follows. There is considerable material in press
reports of statements by FDN officials indicating participation of CIA advisers
in planning and the discussion of strategy or tactics, confirmed by the
affidavit of Mr. Chamorro. Mr. Chamorro attributes virtually a power of command
to the CIA operatives: he refers to
them as having 'ordered' or 'instructed' the FDN to take various action. The specific instances of influence of
United States agents on strategy or tactics which he gives are as follows: the CIA, he says, was at the end of 1982
'urging' the FDN to launch an offensive designed to take and hold Nicaraguan
territory. After the failure of that
offensive, the CIA told the FDN to move its men back into Nicaragua and keep
fighting. The CIA in 1983 gave a tactical directive not to destroy farms
and crops, and in 1984 gave a directive to the opposite effect. In 1983, the CIA again indicated that they
wanted the FDN to launch an offensive to seize and hold Nicaraguan territory.
In this respect, attention should also be drawn to the statement of Mr. Ch
morro (paragraph 101 above) that the CIA supplied the FDN with intelligence,
particularly as to Nicaraguan troop movements, and small aircraft suitable for
reconnaissance and a certain amount of supply-dropping. Emphasis has been placed, by Mr. Chamorro,
by Commander Carrion, and by counsel *61 for Nicaragua, on the impact on
contra tactics of the availability of intelligence assistance and, still more
important, supply aircraft.
105. It has been contended
by Nicaragua that in 1983 a 'new strategy' for contra operations in and against
Nicaragua was adopted at the highest level of the United States Government. From the evidence offered in support of
this, it appears to the Court however that there was, around this time, a
change in contra strategy, and a new policy by the United States administration
of more overt support for the contras, culminating in the express legislative
authorization in the Department of Defense Appropriations Act, 1984, section
775, and the Intelligence Authorization Act for Fiscal Year 1984, section 108.
The new contra strategy was said to be to attack 'economic targets like
electrical plants and storage facilities' and fighting in the cities.
106. In the light of the
evidence and material available to it, the Court is not satisfied that all the operations launched
by the contra force, at every stage of the conflict, reflected strategy and
tactics wholly devised by the United States.
However, it is in the Court's view established that the support of the
United States authorities for the activities of the contras took various forms
over the years, such as logistic support, the supply of information on the
location and movements of the Sandinista troops, the use of sophisticated
methods of communication, the deployment of field broadcasting networks, radar
coverage, etc. The Court finds it clear
that a number of military and paramilitary operations by this force 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.
107. To sum up, despite
the secrecy which surrounded it, at least initially, the financial support
given by the Government of the United States to the military and paramilitary
activities of the contras in Nicaragua is a fully established fact. The legislative and executive bodies of the
respondent State have moreover, subsequent to the controversy which has been
sparked off in the United States, openly admitted the nature, volume and
frequency of this support. Indeed, they
clearly take responsibility for it, this government aid having now become the
major element of United States foreign policy in the region.
As to the ways in which such financial support has been translated into
practical assistance, the Court has been able to reach a general finding.
108. Despite the large
quantity of documentary evidence and testimony which it has examined, the Court
has not been able to satisfy itself that the respondent State 'created' the
contra force in Nicaragua. It seems
certain *62 that members of the former Somoza National Guard, together
with civilian opponents to the Sandinista regime, withdrew from Nicaragua soon
after that regime was installed in Managua, and sought to continue their
struggle against it, even if in a disorganized way and with limited and
ineffectual resources, before the Respondent took advantage of the existence of
these opponents and incorporated this fact into its policies vis-a-vis the regime
of the Applicant. Nor does the evidence
warrant a finding that the United States gave 'direct and critical combat
support', at least if that form of words is taken to mean that this support was
tantamount to direct intervention by the United States combat forces, or that
all contra operations reflected strategy and tactics wholly devised by the
United States. On the other hand, the
Court holds it established that the United States authorities largely financed,
trained, equipped, armed and organized the FDN.
109. What the Court has to
determine at this point is whether or not the relationship of the contras to
the United States Government was so much one of dependence on the one side and
control on the other that it would be right to equate
the contras, for legal purposes, with an organ of the United States Government,
or as acting on behalf of that Government.
Here it is relevant to note that in May 1983 the assessment of the
Intelligence Committee, in the Report referred to in paragraph 95 above, was
that the contras 'constitute[d] an independent force' and that the 'only
element of control that could be exercised by the United States' was 'cessation
of aid'. Paradoxically this assessment
serves to underline, a contrario, the potential for control inherent in the
degree of the contras' dependence on aid.
Yet despite the heavy subsides and other support provided to them by the
United States, there is no clear evidence of the United States having actually
exercised such a degree of control in all fields as to justify treating the
contras as acting on its behalf.
110. So far as the
potential control constituted by the possibility of cessation of United States
military aid is concerned, it may be noted that after 1 October 1984 such aid
was no longer authorized, though the sharing of intelligence, and the provision
of 'humanitarian assistance' as defined in the above-cited legislation
(paragraph 97) may continue. Yet, according
to Nicaragua's own case, and according to press reports, contra activity has
continued. 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 *63
legal purposes with the forces of the United States. This conclusion, however, does not of course suffice to resolve
the entire question of the responsibility incurred by the United States through
its assistance to the contras.
111. In the view of the
Court it is established that the contra force has, at least at one period, been
so dependent on the United States that it could not conduct its crucial or most
significant military and paramilitary activities without the multi-faceted
support of the United States. This
finding is fundamental in the present case.
Nevertheless, adequate direct proof that all or the great majority of
contra activities during that period received this support has not been, and
indeed probably could not be, advanced in every respect. It will suffice the Court to stress that a
degree of control by the United States Government, as described above, is
inherent in the position in which the contra force finds itself in relation to
that Government.
112. To show the existence of this control,
the Applicant argued before the Court that the political leaders of the contra
force had been selected, installed and paid by the United States; it also argued that the purpose herein was
both to guarantee United States control over this force, and to excite sympathy
for the Government's policy within Congress and among the public in the United
States. According to the affidavit of
Mr. Chamorro, who was directly concerned, when the FDN was formed 'the name of
the organization, the members of the political junta, and the members of the
general staff were all chosen or approved by the CIA'; later the CIA asked that a particular person
be made head of the political directorate of the FDN, and this was done. However, the question of the selection,
installation and payment of the leaders of the contra force is merely one
aspect among others of the degree of dependency of that force. This partial dependency on the United States
authorities, the exact extent of which the Court cannot establish, may
certainly be inferred inter alia from the fact that the leaders were selected
by the United States. But it may also
be inferred from other factors, some of which have been examined by the Court,
such as the organization, training and equipping of the force, the planning of
operations, the choosing of targets and the operational support provided.
* *
113. The question of the
degree of control of the contras by the United States Government is relevant to
the claim of Nicaragua attributing responsibility to the United States for
activities of the contras whereby the United States has, it is alleged,
violated an obligation of international law not to kill, wound or kidnap
citizens of Nicaragua. The activities
in question are said to represent a tactic which includes 'the spreading of
terror and danger to non- combatants as an end in itself with no attempt to *64
observe humanitarian standards and no reference to the concept of military
necessity'. In support of this,
Nicaragua has catalogued numerous incidents, attributed to 'CIA- trained
mercenaries' or 'mercenary forces', of kidnapping, assassination, torture,
rape, killing of prisoners, and killing of civilians not dictated by military
necessity. The declaration of Commander
Carrion annexed to the Memorial lists the first such incident in December 1981,
and continues up to the end of 1984.
Two of the witnesses called by Nicaragua (Father Loison and Mr. Glennon)
gave oral evidence as to events of this kind.
By way of examples of evidence to provide 'direct proof of the tactics
adopted by the contras under United States guidance and control', the Memorial
of Nicaragua offers a statement, reported in the press, by the ex-FDN leader
Mr. Edgar Chamorro, repeated in the latter's affidavit, of assassinations in
Nicaraguan villages; the alleged existence of a classified Defence Intelligence
Agency report of July 1982, reported in the
New York Times on 21 October 1984, disclosing that the contras were carrying
out assassinations; and the preparation
by the CIA in 1983 of a manual of psychological warfare. At the hearings, reliance was also placed on
the affidavit of Mr. Chamorro.
114. In this respect, the
Court notes that according to Nicaragua, the contras are no more than bands of
mercenaries which have been recruited, organized, paid and commanded by the
Government of the United States. This
would mean that they have no real autonomy in relation to that Government. Consequently, any offences which they have
committed would be imputable to the Government of the United States, like those
of any other forces placed under the latter's command. In the view of Nicaragua, 'stricto sensu,
the military and paramilitary attacks launched by the United States against
Nicaragua do not constitute a case of civil strife. They are essentially the acts of the United States.' If such a finding of the imputability of the
acts of the contras to the United States were to be made, no question would
arise of mere complicity in those acts, or of incitement of the contras to
commit them.
115. 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 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 *65 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
operations in the course of which the alleged violations were committed.
116. The Court does not
consider that the assistance given by the United States to the contras warrants
the conclusion that these forces are subject to the United States to such an
extent that any acts they have committed are imputable to that State. It takes the view that the contras remain
responsible for their acts, and that the United States is not responsible for
the acts of the contras, but for its own conduct vis-a-vis Nicaragua, including
conduct related to the acts of the contras.
What the Court has to investigate is not the complaints relating to
alleged violations of humanitarian law by the contras,
regarded by Nicaragua as imputable to the United States, but rather unlawful
acts for which the United States may be responsible directly in connection with
the activities of the contras. The
lawfulness or otherwise of such acts of the United States is a question
different from the violations of humanitarian law of which the contras may or
may not have been guilty. It is for
this reason that the Court does not have to determine whether the violations of
humanitarian law attributed to the contras were in fact committed by them. At the same time, the question whether the
United States Government was, or must have been, aware at the relevant time
that allegations of breaches of humanitarian law were being made against the
contras is relevant to an assessment of the lawfulness of the action of the
United States. In this respect, the
material facts are primarily those connected with the issue in 1983 of a manual
of psychological operations.
117. Nicaragua has in fact
produced in evidence before the Court two publications which it claims were
prepared by the CIA and supplied to the contras in 1983. The first of these, in Spanish, is entitled
'Operaciones sicologicas en guerra de guerrillas' (Psychological Operations in
Guerrilla Warfare), by 'Tayacan'; the
certified copy supplied to the Court carries no publisher's name or date. In its Preface, the publication is described
as
'a manual for the
training of guerrillas in psychological operations, and its application to the
concrete case of the Christian and democratic crusade being waged in Nicaragua by the Freedom
Commandos'.
The second is entitled the Freedom Fighter's Manual, with the
subtitle 'Practical guide to liberating
Nicaragua from oppression and misery by paralyzing the military-industrial
complex of the traitorous marxist state without having to use special tools and
with minimal risk for the combatant'. The text is printed in English and
Spanish, and illustrated with simple drawings:
it consists of guidance for elementary sabotage techniques. The only indications available to the Court
of its authorship are reports in the New York Times, quoting a United States
Congressman and *66 Mr. Edgar Chamorro as attributing the book to the CIA. Since the evidence linking the Freedom
Fighter's Manual to the CIA is no more than newspaper reports the Court will
not treat its publication as an act imputable to the United States Government
for the purposes of the present case.
118. The Court will
therefore concentrate its attention on the other manual, that on 'Psychological
Operations'. That this latter manual
was prepared by the CIA appears to be clearly established: a report published in January 1985 by the
Intelligence Committee contains a specific statement to that effect. It appears from this report that the manual
was printed in several editions; only
one has been produced and it is of that text that the Court will take account.
The manual is devoted to techniques for winning the minds of the population,
defined as including the guerrilla troops, the enemy troops and the civilian population.
In general, such parts of the manual as are devoted to military rather
than political and ideological matters are not in conflict with general
humanitarian law; but there are marked
exceptions. A section on 'Implicit and
Explicit Terror', while emphasizing that 'the guerrillas should be careful not
to become an explicit terror, because this would result in a loss of popular
support', and stressing the need for good conduct toward the population, also
includes directions to destroy military or police installations, cut lines of
communication, kidnap officials of the Sandinista government, etc. Reference is made to the possibility that
'it should be necessary . . . to fire on a citizen who was trying to leave the
town', to be justified by the risk of his informing the enemy. Furthermore, a section on 'Selective Use of
Violence for Propagandistic Effects' begins with the words:
'It is possible to
neutralize carefully selected and planned targets, such as court judges, mesta
judges, police and State Security officials, CDS chiefs, etc. For psychological purposes it is necessary
to take extreme precautions, and it is absolutely necessary to gather together
the population affected, so that they will be present, take part in the act,
and formulate accusations against the oppressor.'
In a later section on 'Control of mass concentrations and
meetings', the following guidance is given (inter alia):
'If possible,
professional criminals will be hired to carry out specific selective 'jobs'.
.............................
Specific tasks will be
assigned to others, in order to create a 'martyr' for the cause, taking the
demonstrators to a confrontation with the authorities, in order to bring about
uprisings or shootings, which will cause the death of one or more persons, who
would become the martyrs, a situation that should be made use of immediately
against the regime, in order to create greater conflicts.'
*67 119. According to the affidavit of Mr.
Chamorro, about 2,000 copies of the manual were distributed to members of the
FDN, but in those copies Mr. Chamorro had arranged for the pages containing the
last two passages quoted above to be torn out and replaced by expurgated
pages. According to some press reports,
another edition of 3,000 copies was printed (though according to one report Mr.
Chamorro said that he knew of no other edition), of which however only some 100
are said to have reached Nicaragua, attached to balloons. He was quoted in a press report as saying
that the manual was used to train 'dozens of guerrilla leaders' for some six
months from December 1983 to May 1984.
In another report he is quoted as saying that 'people did not read it'
and that most of the copies were used in a special course on psychological
warfare for middle-level commanders. In
his affidavit, Mr. Chamorro reports that the attitude of some unit commanders,
in contrast to that recommended in the manual,
was that 'the best way to win the loyalty of the civilian population was to
intimidate it' - by murders, mutilations, etc. - 'and make it fearful of us'.
120. A question examined
by the Intelligence Committee was whether the preparation of the manual was a
contravention of United States legislation and executive orders; inter alia, it examined whether the advice
on 'neutralizing' local officials contravened Executive Order 12333. This Executive Order, re- enacting earlier
directives, was issued by President Reagan in December 1981; it provides that
'2.11. No person
employed by or acting on behalf of the United States Government shall engage in
or conspire to engage in, assassination.
2.12. No agency of the
Intelligence Community shall participate in or request any person to undertake
activities forbidden by this Order.'
(US Code, Congressional and Administrative News, 97th Congress, First
Session, 1981, p. B. 114.)
The manual was written, according to press reports, by 'a
low-level contract employee' of the CIA;
the Report of the Intelligence Committee concluded:
'The Committee believes
that the manual has caused embarrassment to the United States and should never
have been released in any of its various forms. Specific actions it describes are repugnant to American values.
The original purpose of
the manual was to provide training to moderate FDN behavior in the field. Yet, the Committee believes that the manual
was written, edited, distributed and used without adequate supervision. No one but its author paid much attention *68
to the manual. Most CIA officials
learned about it from news accounts.
The Committee was told
that CIA officers should have reviewed the manual and did not. The Committee was told that all CIA officers
should have known about the Executive Order's ban on assassination . . . but
some did not. The entire publication
and distribution of the manual was marked within the Agency by confusion about
who had authority and responsibility for the manual. The incident of the manual illustrates once again to a majority
of the Committee that the CIA did not have adequate command and control of the
entire Nicaraguan covert action . . .
CIA officials up the
chain of command either never read the manual or were never made aware of
it. Negligence, not intent to violate
the law, marked the manual's history.
The Committee concluded
that there was no intentional violation of Executive Order 12333.'
When the existence of the manual became known at the level of the
United States Congress, according to one press report, 'the CIA urged rebels to
ignore all its recommendations and began trying to recall copies of the
document'.
121. When the Intelligence
Committee investigated the publication of the psychological
operations manual, the question of the behaviour of the contras in Nicaragua
became of considerable public interest in the United States, and the subject of
numerous press reports. Attention was
thus drawn to allegations of terrorist behaviour or atrocities said to have
been committed against civilians, which were later the subject of reports by
various investigating teams, copies of which have been supplied to the Court by
Nicaragua. According to the press, CIA
officials presented to the Intelligence Committee in 1984 evidence of such
activity, and stated that this was the reason why the manual was prepared, it
being intended to 'moderate the rebels' behaviour'. This report is confirmed by the finding of the Intelligence
Committee that 'The original purpose of the manual was to provide training to
moderate FDN behaviour in the field'.
At the time the manual was prepared, those responsible were aware of, at
the least, allegations of behaviour by the contras inconsistent with
humanitarian law.
122. The Court concludes
that in 1983 an agency of the United States Government supplied to the FDN a
manual on psychological guerrilla warfare which, while expressly discouraging
indiscriminate violence against civilians, considered the possible necessity of
shooting civilians who were attempting to leave a town; and advised the 'neutralization' for
propaganda purposes of local judges, officials or notables after the semblance *69
of trial in the presence of the population.
The text supplied to the contras also advised the use of professional criminals to perform
unspecified 'jobs', and the use of provocation at mass demonstrations to
produce violence on the part of the authorities so as to make 'martyrs'.
* *
123. Nicaragua has
complained to the Court of certain measures of an economic nature taken against
it by the Government of the United States, beginning with the cessation of
economic aid in April 1981, which it regards as an indirect form of
intervention in its internal affairs.
According to information published by the United States Government, it
provided more than $100 million in economic aid to Nicaragua between July 1979
and January 1981; however, concern in
the United States Congress about certain activities attributed to the
Nicaraguan Government led to a requirement that, before disbursing assistance
to Nicaragua, the President certify that Nicaragua was not 'aiding, abetting or
supporting acts of violence or terrorism in other countries' (Special Central
American Assistance Act, 1979, Sec. 536 (g)).
Such a certification was given in September 1980 (45 Federal Register
62779), to the effect that
'on the basis of an
evaluation of the available evidence, that the Government of Nicaragua 'has not
co-operated with or harbors any international terrorist organization or is aiding, abetting or
supporting acts of violence or terrorism in other countries".
An official White House press release of the same date stated that
'The certification is
based upon a careful consideration and evaluation of all the relevant evidence
provided by the intelligence community and by our Embassies in the field . .
. Our intelligence agencies as well as
our Embassies in Nicaragua and neighboring countries were fully consulted, and
the diverse information and opinions from all sources were carefully weighed.'
On 1 April 1981 however a determination was made to the effect
that the United States could no longer certify that Nicaragua was not engaged
in support for 'terrorism' abroad, and economic assistance, which had been
suspended in January 1981, was thereby terminated. According to the Nicaraguan Minister of Finance, this also
affected loans previously contracted, and its economic impact was more than $36
million per annum. Nicaragua also
claims that, at the multilateral level, the United States has *70 acted
in the Bank for International Reconstruction and Development and the
Inter-American Development Bank to oppose or block loans to Nicaragua.
124. On 23 September 1983,
the President of the United States made a proclamation modifying the system of
quotas for United States imports of sugar, the effect of which was to reduce
the quota attributed to Nicaragua by 90 per cent. The Nicaraguan Finance Minister assessed the
economic impact of the measure at between $15 and $18 million, due to the
preferential system of prices that sugar has in the market of the United
States.
125. On 1 May 1985, the
President of the United States made an Executive Order, which contained a
finding that 'the policies and actions of the Government of Nicaragua
constitute an unusual and extraordinary threat to the national security and
foreign policy of the United States' and declared a 'national emergency'. According to the President's message to
Congress, this emergency situation had been created by 'the Nicaraguan
Government's aggressive activities in Central America'. The Executive Order declared a total trade
embargo on Nicaragua, prohibiting all imports from and exports to that country,
barring Nicaraguan vessels from United States ports and excluding Nicaraguan
aircraft from air transportation to and from the United States.
* * *
126. The Court has before
it, in the Counter-Memorial on jurisdiction and admissibility filed by the
United States, the assertion that the United States, pursuant to the inherent
right of individual and collective self-defence, and in accordance with the
Inter-American Treaty of Reciprocal Assistance, has responded to requests from
El Salvador, Honduras and Costa Rica, for assistance in their self-defence against aggression by
Nicaragua. The Court has therefore to
ascertain, so far as possible, the facts on which this claim is or may be
based, in order to determine whether collective self-defence constitutes a
justification of the activities of the United States here complained of.
Furthermore, it has been suggested that, as a result of certain assurances
given by the Nicaraguan 'Junta of the Government of National Reconstruction' in
1979, the Government of Nicaragua is bound by international obligations as
regards matters which would otherwise be matters of purely domestic policy,
that it is in breach of those obligations, and that such breach might justify
the action of the United States. The
Court will therefore examine the facts underlying this suggestion also.
127. Nicaragua claims that
the references made by the United States to the justification of collective
self-defence are merely 'pretexts' for the activities of the United
States. It has alleged that the true
motive for the conduct of the United States is unrelated to the support which
it accuses *71 Nicaragua of giving to the armed opposition in El
Salvador, and that the real objectives of United States policy are to impose
its will upon Nicaragua and force it to comply with United States demands. In the Court's view, however, if Nicaragua
has been giving support to the armed opposition in El Salvador, and if this
constitutes an armed attack on El Salvador and the other appropriate conditions
are met, collective self-defence could be legally invoked by the United States, even though
there may be the possibility of an additional motive, one perhaps even more
decisive for the United States, drawn from the political orientation of the
present Nicaraguan Government. The
existence of an additional motive, other than that officially proclaimed by the
United States, could not deprive the latter of its right to resort to
collective self-defence. The conclusion
to be drawn is that special caution is called for in considering the
allegations of the United States concerning conduct by Nicaragua which may
provide a sufficient basis for self-defence.
128. In its
Counter-Memorial on jurisdiction and admissibility, the United States claims
that Nicaragua has 'promoted and supported guerrilla violence in neighboring
countries', particularly in El Salvador;
and has openly conducted cross-border military attacks on its
neighbours, Honduras and Costa Rica. In
support of this, it annexed to the Memorial an affidavit by Secretary of State
George P. Shultz. In his affidavit, Mr.
Shultz declares, inter alia, that:
'The United States has
abundant evidence that the Government of Nicaragua has actively supported armed
groups engaged in military and paramilitary activities in and against El
Salvador, providing such groups with sites in Nicaragua for communications
facilities, command and control headquarters, training and logistics
support. The Government of Nicaragua is
directly engaged with these armed groups in planning ongoing military and
paramilitary activities conducted in and against El Salvador. The Government of Nicaragua also participates directly in the procurement,
and transshipment through Nicaraguan territory, of large quantities of
ammunition, supplies and weapons for the armed groups conducting military and
paramilitary activities in and against El Salvador.
In addition to this
support for armed groups operating in and against El Salvador, the Government
of Nicaragua has engaged in similar support, albeit on a smaller scale, for
armed groups engaged, or which have sought to engage, in military or
paramilitary activities in and against the Republic of Costa Rica, the Republic
of Honduras, and the Republic of Guatemala.
The regular military forces of Nicaragua have engaged in several direct
attacks on Honduran and Costa Rican territory, causing casualties among the
armed forces and civilian populations of those States.'
In connection with this declaration, the Court would recall the
observations *72 it has already made (paragraphs 69 and 70) as to the
evidential value of declarations by ministers of the government of a State
engaged in litigation concerning an armed conflict.
129. In addition, the
United States has quoted Presidents Magana and Duarte of El Salvador, press
reports, and United States Government publications. With reference to the claim as to cross-border military attacks,
the United States has quoted a statement of the Permanent Representative of
Honduras to the Security Council, and diplomatic protests by the Governments of
Honduras and Costa Rica to the Government
of Nicaragua. In the subsequent United
States Government publication 'Revolution Beyond Our Borders', referred to in
paragraph 73 above, these claims are brought up to date with further
descriptive detail. Quoting 'Honduran
government records', this publication asserts that there were 35 border incursions
by the Sandinista People's Army in 1981 and 68 in 1982.
130. In its pleading at
the jurisdictional stage, the United States asserted the justification of
collective self-defence in relation to alleged attacks on El Salvador, Honduras
and Costa Rica. It is clear from the
material laid before the Court by Nicaragua that, outside the context of the
present judicial proceedings, the United States administration has laid the
greatest stress on the question of arms supply and other forms of support to
opponents of the Government in El Salvador.
In 1983, on the proposal of the Intelligence Committee, the covert
programme of assistance to the contras 'was to be directed only at the
interdiction of arms to El Salvador'.
Nicaragua's other neighbours have not been lost sight of, but the
emphasis has continued to be on El Salvador:
the United States Continuing Appropriations Act 1985, Section 8066 (b)
(1) (A), provides for aid for the military or paramilitary activities in
Nicaragua to be resumed if the President reports inter alia that
'the Government of
Nicaragua is providing material or monetary support to anti-government forces
engaged in military or paramilitary operations in El Salvador or other Central American countries'.
131. In the proceedings on
the merits, Nicaragua has addressed itself primarily to refuting the claim that
it has been supplying arms and other assistance to the opponents of the
Government of El Salvador; it has not
specifically referred to the allegations of attacks on Honduras or Costa Rica.
In this it is responding to what is, as noted above, the principal
justification announced by the United States for its conduct. In ascertaining whether the conditions for
the exercise by the United States of the right of collective self-defence are
satisfied, the Court will accordingly first consider the activities of
Nicaragua in relation to El Salvador, as established by the evidence and
material available to the Court. It
will then consider whether Nicaragua's conduct in relation to Honduras or Costa
*73 Rica may justify the exercise of that right; in that respect it will examine only the
allegations of direct cross-border attacks, since the affidavit of Mr. Shultz
claims only that there was support by the provision of arms and supplies for
military and paramilitary activities 'on a smaller scale' in those countries
than in El Salvador.
132. In its Declaration of
Intervention dated 15 August 1984, the Government of El Salvador stated
that: 'The reality is that we are the
victims of aggression and armed attack from Nicaragua and have been since at
least 1980.' (Para. IV.) The statements of fact in that Declaration
are backed by a declaration by the Acting
Minister for Foreign Affairs of El Salvador, similar in form to the
declarations by Nicaraguan Ministers annexed to its pleadings. The Declaration
of Intervention asserts that 'terrorists' seeking the overthrow of the
Government of El Salvador were 'directed, armed, supplied and trained by
Nicaragua' (para. III); that Nicaragua
provided 'houses, hideouts and communication facilities' (para. VI), and
training centres managed by Cuban and Nicaraguan military personnel (para.
VII). On the question of arms supply,
the Declaration states that
'Although the quantities
of arms and supplies, and the routes used, vary, there has been a continuing
flow of arms, ammunition, medicines, and clothing from Nicaragua to our
country.' (Para. VIII.)
133. In its observations,
dated 10 September 1984, on the Declaration of Intervention of El Salvador,
Nicaragua stated as follows:
'The Declaration
includes a series of paragraphs alleging activities by Nicaragua that El
Salvador terms an 'armed attack'. The
Court should know that this is the first time El Salvador has asserted it is
under armed attack from Nicaragua. None
of these allegations, which are properly addressed to the merits phase of the
case, is supported by proof or evidence of any kind. Nicaragua denies each and
every one of them, and stands behind the affidavit of its Foreign Minister,
Father Miguel d'Escoto Brockmann, in which the Foreign Minister affirms that
the Government of Nicaragua has not supplied arms
or other materials of war to groups fighting against the Government of El
Salvador or provided financial support, training or training facilities to such
groups or their members.'
134. Reference has also to
be made to the testimony of one of the witnesses called by Nicaragua. Mr. David MacMichael (paragraph 99 above)
said in evidence that he was in the full time employment of the CIA from March
1981 to April 1983, working for the most part on Inter-*74 American
affairs. During his examination by
counsel for Nicaragua, he stated as follows:
'[Question:] In your opinion, if the Government of
Nicaragua was sending arms to rebels in El Salvador, could it do so without
detection by United States intelligence-gathering capabilities?
[Answer:] In any significant manner over this long
period of time I do not believe they could have done so.
Q.: And there was in fact no such detection
during the period that you served in the Central Intelligence Agency?
A.: No.
Q.: In your opinion, if arms in significant
quantities were being sent from Nicaraguan territory to the rebels in El
Salvador - with or without the Government's knowledge or consent - could these
shipments have been accomplished without detection by United States
intelligence capabilities?
A.: If you say in significant quantities over
any reasonable period of time, no I do not
believe so.
Q.: And there was in fact no such detection
during your period of service with the Agency?
A.: No.
Q.: Mr. MacMichael, up to this point we have
been talking about the period when you were employed by the CIA - 6 March 1981
to 3 April 1983. Now let me ask you
without limit of time: did you see any
evidence of arms going to the Salvadorian rebels from Nicaragua at any time?
A.: Yes, I did.
Q.: When was that?
A.: Late 1980 to very early 1981.'
Mr. MacMichael indicated the sources of the evidence he was
referring to, and his examination continued:
'[Question:] Does the evidence establish that the
Government of Nicaragua was involved during this period?
[Answer:] No, it does not establish it, but I could
not rule it out.'
135. After counsel for
Nicaragua had completed his examination of the witness, Mr. MacMichael was
questioned from the bench, and in this context he stated (inter alia) as
follows:
'[Question:] Thus if the Government of Nicaragua had
shipped arms to El Salvador before March 1981, for example in 1980 and early 1981,
in order to arm the big January offensive
of the insurgents in El *75 Salvador, you would not be in a position to
know that; is that correct?
[Answer:] I think I have testified, your honour, that
I reviewed the immediate past intelligence material at that time, that dealt
with that period, and I have stated today that there was credible evidence and
that on the basis of my reading of it I could not rule out a finding that the
Nicaraguan Government had been involved during that period.
Q.: Would you rule it 'in'?
A.: I prefer to stay with my answer that I could
not rule it out, but to answer you as directly as I can my inclination would be
more towards ruling ' in' than ruling 'out'.
.............................
Q.: I understand you to be saying, Mr.
MacMichael, that you believe that it could be taken as a fact that at least in
late 1980/early 1981 the Nicaraguan Government was involved in the supply of
arms to the Salvadorian insurgency. Is that the conclusion I can draw from your
remarks?
A.: I hate to have it appear that you are
drawing this from me like a nail out of a block of wood but, yes, that is my
opinion.'
In short, the Court notes that the evidence of a witness called by
Nicaragua in order to negate the allegation of the United States that the
Government of Nicaragua had been engaged in the supply of arms to the armed
opposition in El Salvador only partly
contradicted that allegation.
136. Some confirmation of
the situation in 1981 is afforded by an internal Nicaraguan Government report,
made available by the Government of Nicaragua in response to a request by the
Court, of a meeting held in Managua on 12 August 1981 between Commander Ortega,
Co-ordinator of the Junta of the Government of Nicaragua and Mr. Enders,
Assistant Secretary of State for Inter-American Affairs of the United
States. According to this report, the
question of the flow of 'arms, munitions and other forms of military aid' to El
Salvador, was raised by Mr. Enders as one of the 'major problems' (problemas
principales). At one point he is reported to have said:
'On your part, you could
take the necessary steps to ensure that the flow of arms to El Salvador is
again halted as in March of this year.
We do not seek to involve ourselves in deciding how and with whom this
object should be achieved, but we may well monitor the results.'
*76 Later in the course of
the discussion, the following exchange is recorded:
'[Ortega:] As for the flow of arms to El Salvador, what
must be stated is that as far as we have been informed by you, efforts have
been made to stop it; however, I want
to make clear that there is a great desire here to collaborate with the
Salvadorian people, also among members of our armed forces, although our Junta
and the National Directorate have a decision that activities of this kind should not be
permitted. We would ask you to give us
reports about that flow to help us control it.
[Enders:] You have succeeded in doing so in the past
and I believe you can do so now. We are
not in a position to supply you with intelligence reports. We would compromise our sources, and our
nations have not yet reached the necessary level to exchange intelligence
reports.'
137. As regards the
question, raised in this discussion, of the picture given by United States
intelligence sources, further evidence is afforded by the 1983 Report of the
Intelligence Committee (paragraphs 95, 109 above). In that Report, dated 13 May 1983, it was stated that
'The Committee has
regularly reviewed voluminous intelligence material on Nicaraguan and Cuban
support for leftist insurgencies since the 1979 Sandinista victory in
Nicaragua.'
The Committee continued:
'At the time of the
filing of this report, the Committee believes that the intelligence available
to it continues to support the following judgments with certainty:
A major portion of the
arms and other material sent by Cuba and other communist countries to the
Salvadorian insurgents transits Nicaragua with the permission and assistance of
the Sandinistas.
The Salvadorian
insurgents rely on the use of sites in Nicaragua, some of which are located in Managua itself, for
communications, command-and-control, and for the logistics to conduct their
financial, material and propaganda activities.
The Sandinista
leadership sanctions and directly facilitates all of the above functions.
Nicaragua provides a
range of other support activities, including secure transit of insurgents to
and from Cuba, and assistance to the insurgents in planning their activities in
El Salvador.
In addition, Nicaragua
and Cuba have provided - and appear to continue providing - training to the
Salvadorian insurgents.'
The Court is not aware of the contents of any analogous report of
a body with access to United States intelligence material covering a more
recent *77 period. It notes
however that the Resolution adopted by the United States Congress on 29 July
1985 recorded the expectation of Congress from the Government of Nicaragua of:
'the end to Sandinista
support for insurgencies in other countries in the region, including the
cessation of military supplies to the rebel forces fighting the democratically
elected government in El Salvador'.
138. In its Declaration of
Intervention, El Salvador alleges that 'Nicaraguan officials have publicly
admitted their direct involvement in waging war on us' (para. IX). It asserts that the Foreign Minister of
Nicaragua admitted such support at a
meeting of the Foreign Ministers of the Contadora Group in July 1983. Setting this against the declaration by the
Nicaraguan Foreign Minister annexed to the Nicaraguan Memorial, denying any
involvement of the Nicaraguan Government in the provision of arms or other
supplies to the opposition in El Salvador, and in view of the fact that the
Court has not been informed of the exact words of the alleged admission, or
with any corroborative testimony from others present at the meeting, the Court
cannot regard as conclusive the assertion in the Declaration of
Intervention. Similarly, the public
statement attributed by the Declaration of Intervention (para. XIII) to
Commander Ortega, referring to 'the fact of continuing support to the
Salvadorian guerrillas' cannot, even assuming it to be accurately quoted, be
relied on as proof that that support (which, in the form of political support,
is openly admitted by the Nicaraguan Government) takes any specific material
form, such as the supply of arms.
139. The Court has taken
note of four draft treaties prepared by Nicaragua in 1983, and submitted as an
official proposal within the framework of the Contadora process, the text of
which was supplied to the Court with the Nicaraguan Application. These treaties, intended to be 'subscribed
to by all nations that desire to contribute to the peaceful solution of the
present armed conflict in the Republic of El Salvador' (p. 58), contained the
following provisions:
'Article One
The High Contracting
Parties promise to not offer and, should such be the case, to suspend military
assistance and training and the supply and trafficking of arms, munitions and
military equipment that may be made directly to the contending forces or
indirectly through third States.
Article Two
The High Contracting
Parties promise to adopt in their respective territories whatever measures may
be necessary to impede all supply and trafficking of arms, munitions and
military equipment and military assistance to and training of the contending
forces in the Republic of El Salvador.' (P. 60.)
*78 In the Introduction to
its proposal the Nicaraguan Government stated that it was ready to enter into
an agreement of this kind immediately, even if only with the United States, 'in
order that the Government of that country cease justifying its interventionist
policy in El Salvador on the basis of supposed actions by Nicaragua' (p. 58).
140. When filing its
Counter-Memorial on the questions of jurisdiction and admissibility, the United States deposited a
number of documents in the Registry of the Court, two of which are relevant to
the questions here under examination.
The first is a publication of the United States Department of State
dated 23 February 1981, entitled Communist Interference in El Salvador,
reproducing a number of documents (in Spanish with English translation) stated
to have been among documents in 'two particularly important document caches . .
. recovered from the Communist Party of El Salvador (PCS) in November 1980 and
the People's Revolutionary Army (ERP) in January 1981'. A summary of the documents is also to be
found in an attachment to the 1983 Report of the Intelligence Committee, filed
by Nicaragua. The second is a
'background Paper' published by the United States Department of State and
Department of Defense in July 1984, entitled Nicaragua's Military Build-Up and
Support for Central American Subversion.
141. The full significance
of the documents reproduced in the first of these publications, which are
'written using cryptic language and abbreviations', is not readily apparent,
without further assistance from United States experts, who might have been
called as witnesses had the United States appeared in the proceedings. For example, there are frequent references
to 'Lagos' which, according to the United States, is a code-name for Nicaragua; but without such assistance the Court cannot
judge whether this interpretation is correct. There is also however some
specific reference in an undated document to aid to the armed opposition 'which all would pass
through Nicaragua' - no code-name being here employed - which the Court must
take into account for what it is worth.
142. The second document,
the Background Paper, is stated to be based on
'Sandinista documents, press reports, and interviews with captured
guerrillas and defectors' as well as information from 'intelligence
sources'; specific intelligence reports
are not cited 'because of the potential consequences of revealing sources and
methods'. The only material evidence
included is a number of aerial photographs (already referred to in paragraph 88
above), and a map said to have been captured in a guerrilla camp in El
Salvador, showing arms transport routes;
this map does not appear of itself to indicate that arms enter El
Salvador from Nicaraguan territory.
143. The Court's attention
has also been drawn to various press reports of statements by diplomats, by
leaders of the armed opposition in El Salvador, or defectors from it,
supporting the view that Nicaragua was *79 involved in the arms
supply. As the Court has already
explained, it regards press reports not as evidence capable of proving facts,
but considers that they can nevertheless contribute, in some circumstances, to
corroborating the existence of a particular fact (paragraph 62 above). The press reports here referred to will
therefore be taken into account only to that extent.
144. In an interview
published in English in the New York Times Magazine on 28 April 1985, and in Spanish in ABC, Madrid, on
12 May 1985 given by Daniel Ortega Saavedra, President of the Junta of
Nicaragua, he is reported to have said:
'We've said that we're
willing to send home the Cubans, the Russians, the rest of the advisers. We're willing to stop the movement of
military aid, or any other kind of aid, through Nicaragua to El Salvador, and
we're willing to accept international verification. In return, we're asking for one thing: that they don't attack us,
that the United States stop arming and financing . . . the gangs that kill our
people, burn our crops and force us to divert enormous human and economic
resources into war when we desperately need them for development.' ('Hemos dicho que estamos dispuestos a sacar
a los cubanos, sovieticos y demas asesores;
a suspender todo transito por nuestro territorio de ayuda militar u otra
a los salvadorenos, bajo verificacion internacional. Hemos dicho que lo unico que pedimos es que no nos agredan y que
Estados Unidos no arme y financie . . . a las bandas que entran a matarnos, a
quemar las cosechas, y que nos obligan a distraer enormes recursos humanos y
economicos que nos hacen una falta angustiosa para el desarrollo.')
The Court has to consider whether this press report can be treated
as evidence of an admission by the Nicaraguan Head of State that the Nicaraguan
Government is in a position to stop the movement of military or other aid
through Nicaraguan territory to El
Salvador; and whether it can be deduced
from this (in conjunction with other material) that the Nicaraguan Government
is responsible for the supply or transit of such aid.
145. Clearly the remarks
attributed to President Ortega raise questions as to his meaning, namely as to
what exactly the Nicaraguan Government was offering to stop. According to Nicaragua's own evidence,
President Ortega had offered during the meeting of 12 August 1981 to stop the
arms flow if the United States would supply the necessary information to enable
the Nicaraguan Government to track it down;
it may in fact be the interview of 12 August 1981 that President Ortega
was referring to when he spoke of what had been said to the United States
Government. At all events, against the
background of the firm denial by the Nicaraguan Government of complicity in an
arms flow to El Salvador, the Court cannot regard remarks of this kind as an
admission that that Government *80 was in fact doing what it had already
officially denied and continued subsequently to deny publicly.
146. Reference was made
during the hearings to the testimony of defectors from Nicaragua or from the
armed opposition in El Salvador; the
Court has no such direct testimony before it.
The only material available in this respect is press reports, some of
which were annexed to the United States Counter-Memorial on the questions of
jurisdiction and admissibility. With
appropriate reservations, the Court has to consider what the weight is of such
material, which includes allegations of
arms supply and of the training of Salvadoreans at a base near Managua. While the Court is not prepared totally to
discount this material, it cannot find that it is of any great weight in itself. Still less can statements attributed in the
press to unidentified diplomats stationed in Managua be regarded as evidence
that the Nicaraguan Government was continuing to supply aid to the opposition
in El Salvador.
147. The evidence or
material offered by Nicaragua in connection with the allegation of arms supply
has to be assessed bearing in mind the fact that, in responding to that
allegation, Nicaragua has to prove a negative.
Annexed to the Memorial was a declaration dated 21 April 1984 of Miguel
d'Escoto Brockmann, the Foreign Minister of Nicaragua. In this respect the Court has, as in the
case of the affidavit of the United States Secretary of State, to recall the
observations it has already made (paragraphs 69 and 70) as to the evidential value
of such declarations. In the declaration,
the Foreign Minister states that the allegations made by the United States,
that the Nicaraguan Government 'is sending arms, ammunition, communications
equipment and medical supplies to rebels conducting a civil war against the
Government of El Salvador, are false'.
He continues:
'In truth, my government
is not engaged, and has not been engaged, in the provision of arms or other
supplies to either of the factions engaged in the civil war in El Salvador . .
. Since my government came to power on July 19, 1979, its policy and practice has been to
prevent our national territory from being used as a conduit for arms or other
military supplies intended for other governments or rebel groups. In fact, on numerous occasions the security
forces of my government have intercepted clandestine arms shipments, apparently
destined for El Salvador, and confiscated them.'
The Foreign Minister explains the geographical difficulty of
patrolling Nicaragua's frontiers:
*81 'Nicaragua's frontier with Honduras, to the
north, is 530 kilometers long. Most of
it is characterized by rugged mountains, or remote and dense jungles. Most of this border area is inaccessible by
motorized land transport and simply impossible to patrol. To the south, Nicaragua's border with Costa
Rica extends for 220 kilometers. This
area is also characterized by dense and remote jungles and is also virtually
inaccessible by land transport. As a
small underdeveloped country with extremely limited resources, and with no
modern or sophisticated detection equipment, it is not easy for us to seal off
our borders to all unwanted and illegal traffic.'
He then points out the complication of the presence of the contras
along the northern and southern borders, and describes efforts by Nicaragua to
obtain verifiable international agreements for halting all arms traffic in the
region.
148. Before turning to the
evidence offered by Nicaragua at the hearings, the Court would note that the
action of the United States Government itself, on the basis of its own intelligence reports, does
not suggest that arms supply to El Salvador from the territory of Nicaragua was
continuous from July 1979, when the new regime took power in Managua, and the
early months of 1981. The presidential
Determination of 12 September 1980, for the purposes of the Special Central
American Assistance Act 1979, quoted in paragraph 123 above, officially
certified that the Government of Nicaragua was not aiding, abetting or
supporting acts of violence or terrorism in other countries, and the press
release of the same date emphasized the 'careful consideration and evaluation
of all the relevant evidence provided by the intelligence community and by our
Embassies in the field' for the purposes of the Determination. The 1983 Report of the Intelligence
Committee, on the other hand, referring to its regular review of intelligence
since 'the 1979 Sandinista victory in Nicaragua', found that the intelligence
available to it in May 1983 supported 'with certainty' the judgment that arms
and material supplied to 'the Salvadorian insurgents transits Nicaragua with
the permission and assistance of the Sandinistas' (see paragraph 137 above).
149. During the oral
proceedings Nicaragua offered the testimony of Mr. MacMichael, already reviewed
above (paragraphs 134 and 135) from a different aspect. The witness, who was well placed to judge
the situation from United States intelligence, stated that there was no
detection by United States intelligence capabilities of arms traffic from
Nicaraguan territory to El Salvador during
the period of his service (March 1981 to April 1983). He was questioned also as to his opinion, in the light of
official *82 statements and press reports, on the situation after he
left the CIA and ceased to have access to intelligence material, but the Court
considers it can attach little weight to statements of opinion of this kind
(cf. paragraph 68 above).
150. In weighing up the
evidence summarized above, the Court has to determine also the significance of
the context of, or background to, certain statements or indications. That background includes, first, the
ideological similarity between two movements, the Sandinista movement in
Nicaragua and the armed opposition to the present government in El
Salvador; secondly the consequent
political interest of Nicaragua in the weakening or overthrow of the government
in power in El Salvador; and finally,
the sympathy displayed in Nicaragua, including among members of the army,
towards the armed opposition in El Salvador.
At the meeting of 12 August 1981 (paragraph 136 above), for example,
Commander Ortega told the United States representative, Mr. Enders, that 'we
are interested in seeing the guerrillas in El Salvador and Guatemala triumph .
. .', and that 'there is a great desire here to collaborate with the
Salvadorian people . . .'. Against this
background, various indications which, taken alone, cannot constitute either
evidence or even a strong presumption of aid being given by Nicaragua to the
armed opposition in El Salvador, do at least require to be examined
meticulously on the basis that it is probable that they are significant.
151. It is in this light,
for example, that one indirect piece of evidence acquires particular
importance. From the record of the
meeting of 12 August 1981 in Managua, mentioned in the preceding paragraph, it
emerges that the Nicaraguan authorities may have immediately taken steps, at
the request of the United States, to bring to a halt or prevent various forms
of support to the armed opposition in El Salvador. The United States representative is there reported to have
referred to steps taken by the Government of Nicaragua in March 1981 to halt
the flow of arms to El Salvador, and his statement to that effect was not
contradicted. According to a New York
Times report (17 September 1985) Commander Ortega stated that around this time
measures were taken to prevent an airstrip in Nicaragua from continuing to be
used for this type of activities. This,
in the Court's opinion, is an admission of certain facts, such as the existence
of an airstrip designed to handle small aircraft, probably for the transport of
weapons, the likely destination being El Salvador, even if the Court has not
received concrete proof of such transport. The promptness with which the
Nicaraguan authorities closed off this channel is a strong indication that it
was in fact being used, or had been used for such a purpose.
152. The Court finds, in
short, that support for the armed opposition in El Salvador from Nicaraguan
territory was a fact up to the early months of 1981. While the Court does not possess full proof
that there was aid, or as to its exact nature, its scale and its continuance
until the early months of *83 1981, it cannot overlook a number of
concordant indications, many of which were provided moreover by Nicaragua
itself, from which it can reasonably infer the provision of a certain amount of
aid from Nicaraguan territory. The
Court has already explained (paragraphs 64, 69 and 70) the precise degree to
which it intended to take account, as regards factual evidence, of statements
by members of the governments of the States concerned, including those of
Nicaragua. It will not return to this
point.
153. After the early
months of 1981, evidence of military aid from or through Nicaragua remains very
weak. This is so despite the deployment
by the United States in the region of extensive technical resources for
tracking, monitoring and intercepting air, sea and land traffic, described in
evidence by Mr. MacMichael and its use of a range of intelligence and
information sources in a political context where, moreover, the Government had
declared and recognized surveillance of Nicaragua as a 'high priority'. The Court cannot of course conclude from
this that no transborder traffic in arms existed, although it does not seem
particularly unreasonable to believe that traffic of this kind, had it been
persistent and on a significant scale, must inevitably have been discovered, in
view of the magnitude of the resources used for that purpose. The Court merely
takes note that the allegations of arms-trafficking are not solidly established; it has not, in any event, been able to satisfy itself that any
continuing flow on a significant scale took place after the early months of
1981.
154. In this connection,
it was claimed in the Declaration of Intervention by El Salvador that there was
a 'continuing flow of arms, ammunition, medicines, and clothing from Nicaragua
to our country' (para. VIII), and El Salvador also affirmed the existence of
'land infiltration routes between Nicaragua and El Salvador'. Had evidence of this become available, it is
not apparent why El Salvador, given full knowledge of an arms-flow and the routes
used, could not have put an end to the traffic, either by itself or with the
assistance of the United States, which has deployed such powerful
resources. There is no doubt that the
United States and El Salvador are making considerable effort to prevent any
infiltration of weapons and any form of support to the armed opposition in El
Salvador from the direction of Nicaragua.
So far as the Court has been informed, however, they have not succeeded
in tracing and intercepting this infiltration and these various forms of
support. Consequently, it can only
interpret the lack of evidence of the transborder arms-flow in one of the
following two ways: either this flow
exists, but is neither as frequent nor as considerable as alleged by the
respondent State; or it is being
carried on without the knowledge, and against the will, of a government which
would rather put a stop to it. If this
latter conclusion is at all valid with regard to El Salvador and the United States it must
therefore be at least equally valid with regard to Nicaragua.
155. Secondly, even
supposing it well established that military aid is *84 reaching the
armed opposition in El Salvador from the territory of Nicaragua, it still
remains to be proved that this aid is imputable to the authorities of the
latter country. Indeed, the applicant
State has in no way sought to conceal the possibility of weapons en route to
the armed opposition in El Salvador crossing its territory but it denies that
this is the result of any deliberate official policy on its part. As the Court observed in 1949:
'it cannot be concluded
from the mere fact of the control exercised by a State over its territory and
waters that that State necessarily knew, or ought to have known, of any
unlawful act perpetrated therein, nor yet that it necessarily knew, or should
have known, the authors. This fact, by
itself and apart from other circumstances, neither involves prima facie
responsibility nor shifts the burden of proof.' (Corfu Channel, I.C.J. Reports 1949, p. 18.)
Here it is relevant to bear in mind that there is reportedly a
strong will for collaboration and mutual support between important elements of
the populations of both El Salvador and Nicaragua, not least among certain
members of the armed forces in Nicaragua.
The Court sees no reason to dismiss these considerations, especially
since El Salvador itself recognizes the existence in Nicaraguan coastal areas of 'traditional smugglers'
(Declaration, para. VIII, H), because Nicaragua is accused not so much of
delivering weapons itself as of allowing them to transit through its
territory; and finally because evidence
has been provided, in the report of the meeting of 12 August 1981 referred to
in paragraph 136 above, of a degree of co-operation between the United States
and Nicaragua for the purpose of putting a stop to these arms deliveries. The continuation of this co-operation does
not seem to have depended solely on the Government of Nicaragua, for the
Government of the United States, which in 1981 again raised with it the
question of this traffic, this time refused to provide the Nicaraguan
authorities, as it had on previous occasions, with the specific information and
details that would have enabled them to call a halt to it. Since the Government
of the United States has justified its refusal by claiming that any disclosure
would jeopardize its sources of information, the Court has no means of
assessing the reality or cogency of the undivulged evidence which the United
States claimed to possess.
156. In passing, the Court
would remark that, if this evidence really existed, the United States could be
expected to have taken advantage of it in order to forestall or disrupt the
traffic observed; it could presumably
for example arrange for the deployment of a strong patrol force in El Salvador
and Honduras, along the frontiers of these States with Nicaragua. It is difficult to accept that it should
have continued to carry out military and paramilitary activities against Nicaragua if their only
purpose was, as alleged, to serve as a riposte in the exercise of the right of
collective self-defence. If, on the
other hand, this evidence does not exist, that, as the Court has pointed out,
implies that the arms traffic is so insignificant and *85 casual that it
escapes detection even by the sophisticated techniques employed for the
purpose, and that, a fortiori, it could also have been carried on unbeknown to
the Government of Nicaragua, as that Government claims. These two conclusions mutually support each
other.
157. This second
hypothesis would provide the Court with a further reason for taking Nicaragua's
affirmation into consideration, in that, if the flow of arms is in fact
reaching El Salvador without either Honduras or El Salvador or the United
States succeeding in preventing it, it would clearly be unreasonable to demand
of the Government of Nicaragua a higher degree of diligence than is achieved by
even the combined efforts of the other three States. In particular, when Nicaragua is blamed for allowing consignments
of arms to cross its territory, this is tantamount, where El Salvador is
concerned, to an admission of its inability to stem the flow. This is revealing as to the predicament of
any government, including that of Nicaragua, faced with this arms traffic: its determination to put a stop to it would
be likely to fail. More especially, to the extent that some of this aid is said
to be successfully routed through Honduras, this accusation against Nicaragua
would also signify that Honduras, which is
not suspected of seeking to assist the armed opposition in El Salvador, is
providing involuntary proof that it is by no means certain that Nicaragua can
combat this clandestine traffic any better than Honduras. As the means at the
disposal of the governments in the region are roughly comparable, the
geographical obstacles, and the intrinsic character of any clandestine arms
traffic, simply show that this traffic may be carried on successfully without
any complicity from governmental authorities, and even when they seek to put a
stop to it. Finally, if it is true that
the exceptionally extensive resources deployed by the United States have been
powerless to prevent this traffic from keeping the Salvadorian armed opposition
supplied, this suggests even more clearly how powerless Nicaragua must be with
the much smaller resources at its disposal for subduing this traffic if it
takes place on its territory and the authorities endeavour to put a stop to it.
158. Confining itself to
the regional States concerned, the Court accordingly considers that it is
scarcely possible for Nicaragua's responsibility for an arms traffic taking
place on its territory to be automatically assumed while the opposite
assumption is adopted with regard to its neighbours in respect of similar
traffic. Having regard to the
circumstances characterizing this part of Central America, the Court considers
it more realistic, and consistent with the probabilities, to recognize that an
activity of that nature, if on a limited scale, may very well be pursued
unbeknown to the territorial government.
159. It may be objected
that the Nicaraguan authorities are alleged to have declared on various
occasions that military assistance to the armed opposition in El Salvador was
part of their official policy. The
Court has already indicated that it is unable to give weight to alleged
statements to that effect of which there is insufficient evidence. In the report of the diplomatic talks held
on 12 August 1981 at Managua, Commander Ortega *86 did not in any sense
promise to cease sending arms, but, on the contrary, said on the one hand that
Nicaragua had taken immediate steps to put a stop to it once precise information
had been given and, on the other hand, expressed inability to take such steps
where Nicaragua was not provided with information enabling that traffic to be
located. The Court would further
observe that the four draft treaties submitted by Nicaragua within the
Contadora process in 1983 (quoted in paragraph 139 above) do not constitute an
admission by Nicaragua of the supply of assistance to the armed opposition in
El Salvador, but simply make provision for the future in the context of the
inter-American system, in which a State is prohibited from assisting the armed
opposition within another State.
160. On the basis of the
foregoing, the Court is satisfied that, between July 1979, the date of the fall
of the Somoza regime in Nicaragua, and the early months of 1981, an
intermittent flow of arms was routed via the territory of Nicaragua to the
armed opposition in El Salvador. On the
other hand, the evidence is insufficient to
satisfy the Court that, since the early months of 1981, assistance has
continued to reach the Salvadorian armed opposition from the territory of
Nicaragua on any significant scale, or that the Government of Nicaragua was
responsible for any flow of arms at either period.
* *
161. The Court therefore
turns to the claim that Nicaragua has been responsible for cross-border
military attacks on Honduras and Costa Rica.
The United States annexed to its Counter-Memorial on jurisdiction, inter
alia, a document entitled 'Resume of Sandinista Aggression in Honduran
Territory in 1982' issued by the Press and Information Officer of the Honduran
Ministry of Foreign Relations on 23 August 1982. That document listed 35 incidents said to involve violations of
Honduran territory, territorial waters or airspace, attacks on and harassment
of the Honduran population or Honduran patrols, between 30 January 1982 and 21
August 1982. Also attached to the
Counter- Memorial were copies of diplomatic Notes from Honduras to Nicaragua
protesting at other incidents stated to have occurred in June/July 1983 and
July 1984. The Court has no information as to whether Nicaragua replied to
these communications, and if so in what terms.
162. With regard to Costa
Rica, the United States has supplied the text of diplomatic Notes of protest from Costa Rica to
Nicaragua concerning incidents in September 1983, February 1984 and April 1984,
and a Note from Costa Rica to the Foreign Ministers of Colombia, Mexico, Panama
and Venezuela, referring to an incident of 29 April 1984, and requesting the
sending of a mission of observers.
Again, the Court has no information as *87 to the contemporary
reaction of Nicaragua to these allegations;
from press reports it appears that the matter was later amicably
settled.
163. As the Court has
already observed (paragraphs 130 to 131 above), both the Parties have addressed
themselves primarily to the question of aid by the Government of Nicaragua to
the armed opposition in El Salvador, and the question of aggression directed
against Honduras and Costa Rica has fallen somewhat into the background. Nevertheless the allegation that such
aggression affords a basis for the exercise by the United States of the right
of collective self-defence remains on the record; and the Court has to note that Nicaragua has not taken the
opportunity during the proceedings of expressly refuting the assertion that it
has made cross-border military attacks on the territory of those two
States. At the opening of the hearings
in 1984 on the questions of jurisdiction and admissibility, the Agent of
Nicaragua referred to the 'supposed armed attacks of Nicaragua against its
neighbours', and proceeded to 'reiterate our denial of these accusations which
in any case we will amply address in the merits phase of these
proceedings'. However, the declaration
of the Nicaraguan Foreign Minister annexed
to the Memorial on the merits filed on 30 April 1985, while repudiating the accusation
of support for the armed opposition in El Salvador, did not refer at all to the
allegation of border incidents involving Honduras and Costa Rica.
164. The Court, while not
as fully informed on the question as it would wish to be, therefore considers
as established the fact that certain trans-border military incursions into the
territory of Honduras and Costa Rica are imputable to the Government of
Nicaragua. The Court is also aware of
the fact that the FDN operates along the Nicaraguan border with Honduras, and
the ARDE operates along the border with Costa Rica.
* *
165. In view of the
assertion by the United States that it has acted in exercise of the right of
collective self-defence for the protection of El Salvador, Honduras and Costa
Rica, the Court has also to consider the evidence available on the question
whether those States, or any of them, made a request for such protection. In its Counter-Memorial on jurisdiction and
admissibility, the United States informed the Court that
'El Salvador, Honduras,
and Costa Rica have each sought outside assistance, principally from the United
States, in their self-defense against Nicaragua's aggression.
Pursuant to the inherent right of individual and collective
self-defense, and in accordance with the terms of the Inter-American Treaty of
Reciprocal Assistance, the United States has responded to these requests.'
No indication has however been given of the dates on which such
requests for assistance were made. The
affidavit of Mr. Shultz, Secretary of State, *88 dated 14 August 1984
and annexed to the United States Counter-Memorial on jurisdiction and
admissibility, while asserting that the United States is acting in accord with
the provisions of the United Nations Charter, and pursuant to the inherent
right of self defence, makes no express mention of any request for assistance
by the three States named. El Salvador,
in its Declaration of Intervention in the present proceedings of 15 August 1984,
stated that, faced with Nicaraguan aggression,
'we have been called upon
to defend ourselves, but our own economic and military capability is not
sufficient to face any international apparatus that has unlimited resources at
its disposal, and we have, therefore, requested support and assistance from
abroad. It is our natural, inherent
right under Article 51 of the Charter of the United Nations to have recourse to
individual and collective acts of self-defence. It was with this in mind that President Duarte, during a recent
visit to the United States and in discussions with United States congressmen,
reiterated the importance of this assistance for our defence from the United
States and the democratic nations of the
world.' (Para. XII.)
Again, no dates are given, but the Declaration continues 'This was
also done by the Revolutionary Junta of Government and the Government of
President Magana', i.e., between October 1979 and December 1980, and between
April 1982 and June 1984.
166. The Court however
notes that according to the report, supplied by the Agent of Nicaragua, of the
meeting on 12 August 1981 between President Ortega of Nicaragua and Mr. Enders,
the latter is reported to have referred to action which the United States might
take
'if the arms race in
Central America is built up to such a point that some of your [sc. Nicaragua's]
neighbours in Central America seek protection from us under the Inter-American
Treaty [of Reciprocal Assistance]'.
This remark might be thought to carry the implication that no such
request had yet been made. Admittedly,
the report of the meeting is a unilateral one, and its accuracy cannot be
assumed as against the United States.
In conjunction with the lack of direct evidence of a formal request for
assistance from any of the three States concerned to the United States, the
Court considers that this report is not entirely without significance.
* * *
167. Certain events which occurred at the
time of the fall of the regime of President Somoza have next to be mentioned,
since reliance has been placed on them to support a contention that the present
Government of Nicaragua is in violation of certain alleged assurances given by
its immediate*89 predecessor, the Government of National Reconstruction,
in 1979. From the documents made
available to the Court, at its request, by Nicaragua, it appears that what
occurred was as follows. On 23 June
1979, the Seventeenth Meeting of Consultation of Ministers of Foreign Affairs
of the Organization of American States adopted by majority, over the negative
vote of, inter alios, the representative of the Somoza government of Nicaragua,
a resolution on the subject of Nicaragua.
By that resolution after declaring that 'the solution of the serious
problem is exclusively within the jurisdiction of the people of Nicaragua', the
Meeting of Consultation declared
'That in the view of the
Seventeenth Meeting of Consultation of Ministers of Foreign Affairs this
solution should be arrived at on the basis of the following:
1. Immediate and
definitive replacement of the Somoza regime.
2. Installation in
Nicaraguan territory of a democratic government, the composition of which
should include the principal representative groups which oppose the Somoza
regime and which reflects the free will of the people of Nicaragua.
3. Guarantee of the respect for human
rights of all Nicaraguans without exception.
4. The holding of free
elections as soon as possible, that will lead to the establishment of a truly
democratic government that guarantees peace, freedom, and justice.'
On 12 July 1979, the five members of the Nicaraguan 'Junta of the
Government of National Reconstruction' sent from Costa Rica a telegram to the
Secretary- General of the Organization of American States, communicating the
'Plan of the Government of National Reconstruction to Secure Peace'. The telegram explained that the plan had
been developed on the basis of the Resolution of the Seventeenth Meeting of
Consultation; in connection with that
plan, the Junta members stated that they wished to 'ratify' (ratificar) some of
the 'goals that have inspired their government'. These included, first
'our firm intention to
establish full observance of human rights in our country in accordance with the
United Nations Universal Declaration of the Rights of Man [sic], and the
Charter on Human Rights of the Organization of American States';
The Inter-American Commission on Human Rights was invited 'to
visit our country as soon as we are installed in our national territory'. A further goal was
'the plan to call the
first free elections our country has known in this century, so that Nicaraguans
can elect their representatives to the city councils
and to a constituent assembly, and later elect the country's highest authorities'.
*90 The Plan to Secure Peace
provided for the Government of National Reconstruction, as soon as established,
to decree a Fundamental Statute and an Organic Law, and implement the Program
of the Government of National Reconstruction.
Drafts of these texts were appended to the Plan; they were enacted into law on 20 July 1979
and 21 August 1979.
168. In this connection,
the Court notes that, since thus announcing its objectives in 1979, the
Nicaraguan Government has in fact ratified a number of international
instruments on human rights. At the
invitation of the Government of Nicaragua, the Inter-American Commission on
Human Rights visited Nicaragua and compiled two reports (OEA/Ser.L/V/11.53 and
62). A state of emergency was declared
by the Nicaraguan Government (and notified to the United Nations
Secretary-General) in July 1979, and was re-declared or extended on a number of
subsequent occasions. On 4 November
1984, presidential and legislative elections were held, in the presence of
foreign observers; seven political
parties took part in the election, while three parties abstained from taking
part on the ground that the conditions were unsatisfactory.
169. The view of the
United States as to the legal effect of these events is reflected in, for
example, a Report submitted to Congress by President Reagan on 10 April 1985 in
connection with finance for the contras.
It was there stated that one of the
changes which the United States was seeking from the Nicaraguan Government was:
'implementation of
Sandinista commitment to the Organization of American States to political
pluralism, human rights, free elections, non-alignment, and a mixed economy'.
A fuller statement of those views is contained in a formal finding
by Congress on 29 July 1985, to the following effect:
'(A) the Government of
National Reconstruction of Nicaragua formally accepted the June 23, 1979,
resolution as a basis for resolving the Nicaraguan conflict in its 'Plan to
Achieve Peace' which was submitted to the Organization of American States on
July 12, 1979;
(B) the June 23, 1979,
resolution and its acceptance by the Government of National Reconstruction of
Nicaragua was the formal basis for the removal of the Somoza regime and the
installation of the Government of National Reconstruction;
(C) the Government of
National Reconstruction, now known as the Government of Nicaragua and
controlled by the Frente Sandinista (the FSLN), has flagrantly violated the
provisions of the June 23, 1979, resolution, the rights of the Nicaraguan
people, and the security of the nations in the region, in that it -
*91 (i) no longer includes
the democratic members of the Government of National
Reconstruction in the political process;
(ii) is not a government freely elected under conditions of
freedom of the press, assembly, and organization, and is not recognized as
freely elected by its neighbors, Costa Rica, Honduras, and El Salvador;
(iii) has taken significant steps towards establishing a
totalitarian Communist dictatorship, including the formation of FSLN
neighborhood watch committees and the enactment of laws that violate human
rights and grant undue executive power;
(iv) has committed atrocities against its citizens as documented
in reports by the Inter-American Commission on Human Rights of the Organization
of American States;
(v) has aligned itself with the Soviet Union and Soviet allies,
including the German Democratic Republic, Bulgaria, Libya, and the Palestine
Liberation Organization;
(vi) has committed and refuses to cease aggression in the form of
armed subversion against its neighbors in violation of the Charter of the
United Nations, the Charter of the Organization of American States, the Inter-
American Treaty of Reciprocal Assistance, and the 1965 United Nations General
Assembly Declaration on Intervention;
and
(vii) has built up an army beyond the needs of immediate
self-defense, at the expense of the needs of the Nicaraguan people and about
which the nations of the region have
expressed deepest concern.'
170. The resolution goes
on to note the belief expressed by Costa Rica, El Salvador and Honduras that
'their peace and freedom
is not safe so long as the Government of Nicaragua excludes from power most of
Nicaragua's political leadership and is controlled by a small sectarian party,
without regard to the will of the majority of Nicaraguans'
and adds that
'the United States, given
its role in the installation of the current Government of Nicaragua, has a
special responsibility regarding the implementation of the commitments made by
that Government in 1979, especially to those who fought against Somoza to bring
democracy to Nicaragua with United States support'.
Among the findings as to the 'Resolution of the Conflict' is the
statement that the Congress
*92 'supports the Nicaraguan democratic
resistance in its efforts to peacefully resolve the Nicaraguan conflict and to
achieve the fulfillment of the Government of Nicaragua's solemn commitments to
the Nicaraguan people, the United States, and the Organization of American
States'.
From the transcripts of speeches and press conferences supplied to
the Court by Nicaragua, it is clear that the resolution of Congress expresses a
view shared by the President of the United
States, who is constitutionally responsible for the foreign policy of the
United States.
171. The question whether
the alleged violations by the Nicaraguan Government of the 1979 Resolution of
the Organization of American States Meeting of Consultation, listed in
paragraph 169, are relied on by the United States Government as legal
justifications of its conduct towards Nicaragua, or merely as political
arguments, will be examined later in the present Judgment. It may however be observed that the
resolution clearly links United States support for the contras to the breaches
of what the United States regards as the 'solemn commitments' of the Government
of Nicaragua.
* * * * *
172. The Court has now to
turn its attention to the question of the law applicable to the present
dispute. In formulating its view on the
significance of the United States multilateral treaty reservation, the Court
has reached the conclusion that it must refrain from applying the multilateral
treaties invoked by Nicaragua in support of its claims, without prejudice
either to other treaties or to the other sources of law enumerated in Article
38 of the Statute. The first stage in
its determination of the law actually to be applied to this dispute is to
ascertain the consequences of the exclusion of the
applicability of the multilateral treaties for the definition of the content of
the customary international law which remains applicable.
173. According to the
United States, these consequences are extremely wide- ranging. The United States has argued that:
'Just as Nicaragua's
claims allegedly based on 'customary and general international law' cannot be
determined without recourse to the United Nations Charter as the principal
source of that law, they also cannot be determined without reference to the
'particular international law' established by multilateral conventions in force
among the parties.'
The United States contends that the only general and customary
international law on which Nicaragua can base its claims is that of the
Charter: in particular, the Court could
not, it is said, consider the lawfulness of an alleged use of armed force
without referring to the 'principal source of the *93 relevant
international law', namely, Article 2, paragraph 4, of the United Nations
Charter. In brief, in a more general
sense 'the provisions of the United Nations Charter relevant here subsume and
supervene related principles of customary and general international law'. The United States concludes that 'since the
multilateral treaty reservation bars adjudication of claims based on those
treaties, it bars all of Nicaragua's claims'.
Thus the effect of the reservation in question is not, it is said,
merely to prevent the Court from deciding upon Nicaragua's claims by applying
the multilateral treaties in question; it further prevents it from applying in its
decision any rule of customary international law the content of which is also
the subject of a provision in those multilateral treaties.
174. In its Judgment of 26
November 1984, the Court has already commented briefly on this line of
argument. Contrary to the views
advanced by the United States, it affirmed that it
'cannot dismiss the
claims of Nicaragua under principles of customary and general international
law, simply because such principles have been enshrined in the texts of the
conventions relied upon by Nicaragua.
The fact that the above-mentioned principles, recognized as such, have
been codified or embodied in multilateral conventions does not mean that they
cease to exist and to apply as principles of customary law, even as regards
countries that are parties to such conventions. Principles such as those of the non-use of force,
non-intervention, respect for the independence and territorial integrity of
States, and the freedom of navigation, continue to be binding as part of
customary international law, despite the operation of provisions of
conventional law in which they have been incorporated.' (I.C.J. Reports 1984, p. 424, para. 73.)
Now that the Court has reached the stage of a decision on the
merits, it must develop and refine upon these initial remarks. The Court would observe that, according to
the United States argument, it should refrain from applying the rules of customary international law because
they have been 'subsumed' and 'supervened' by those of international treaty
law, and especially those of the United Nations Charter. Thus the United States apparently takes the
view that the existence of principles in the United Nations Charter precludes
the possibility that similar rules might exist independently in customary
international law, either because existing customary rules had been
incorporated into the Charter, or because the Charter influenced the later
adoption of customary rules with a corresponding content.
175. The Court does not
consider that, in the areas of law relevant to the present dispute, it can be
claimed that all the customary rules which may be invoked have a content
exactly identical to that of the rules contained in *94 the treaties
which cannot be applied by virtue of the United States reservation. On a number of points, the areas governed by
the two sources of law do not exactly overlap, and the substantive rules in
which they are framed are not identical in content. But in addition, even if a treaty norm and a customary norm
relevant to the present dispute were to have exactly the same content, this
would not be a reason for the Court to take the view that the operation of the
treaty process must necessarily deprive the customary norm of its separate
applicability. Nor can the multilateral
treaty reservation be interpreted as meaning that, once applicable to a given
dispute, it would exclude the application of any rule of customary international
law the content of which was the same as,
or analogous to, that of the treaty-law rule which had caused the reservation
to become effective.
176. As regards the
suggestion that the areas covered by the two sources of law are identical, the
Court observes that the United Nations Charter, the convention to which most of
the United States argument is directed, by no means covers the whole area of
the regulation of the use of force in international relations. On one essential point, this treaty itself
refers to pre-existing customary international law; this reference to customary law is contained in the actual text
of Article 51, which mentions the 'inherent right' (in the French text the
'droit naturel') of individual or collective self-defence, which 'nothing in
the present Charter shall impair' and which applies in the event of an armed
attack. The Court therefore finds that
Article 51 of the Charter is only meaningful on the basis that there is a 'natural'
or 'inherent' right of self-defence, and it is hard to see how this can be
other than of a customary nature, even if its present content has been
confirmed and influenced by the Charter.
Moreover the Charter, having itself recognized the existence of this
right, does not go on to regulate directly all aspects of its content. For
example, it does not contain any specific rule whereby self-defence would
warrant only measures which are proportional to the armed attack and necessary
to respond to it, a rule well established in customary international law.
Moreover, a definition of the 'armed attack' which, if found to exist, authorizes the exercise of the 'inherent
right' of self-defence, is not provided in the Charter, and is not part of
treaty law. It cannot therefore be held
that Article 51 is a provision which 'subsumes and supervenes' customary
international law. It rather
demonstrates that in the field in question, the importance of which for the
present dispute need hardly be stressed, customary international law continues
to exist alongside treaty law. The
areas governed by the two sources of law thus do not overlap exactly, and the
rules do not have the same content.
This could also be demonstrated for other subjects, in particular for
the principle of non-intervention.