NICARAGUA VS UNITED STATES

(SUMMARY) ON SELF DEFENCE AND

USE OF FORCE
Case: Case Concerning the Military and Paramilitary Activities In and Against Nicaragua
(Nicaragua vs United States) (Merits: focusing on matters relating to the use of force and self-

defence)
Year of Decision: 1986
Court: ICJ

NB: This blog post will discuss matters on the use of force and self-defence. If you would like to
read about the impact of the Nicaragua judgement on customary international law and the US
multilateral reservation please click here.
Overview: The case involved military and paramilitary activities conducted by the United States
against Nicaragua from 1981 to 1984. Nicaragua asked the Court to find that these activities
violated international law.
Facts of the Case:
In July 1979 the Government of President Somoza collapsed following an armed opposition led
by the Frente Sandinista de Liberacibn Nacional (FSLN) . The new government installed by
FSLN began to meet armed opposition from supporters of the former Somoza Government
and ex-members of the National Guard. The US initially supportive of the new government
changed its attitude when, according to the United States, it found that Nicaragua was
providing logistical support and weapons to guerrillas in El Salvador.

In April 1981 it

terminated United States aid to Nicaragua and in September 1981, according to Nicaragua, the
United States decided to plan and undertake activities directed against Nicaragua.
The

armed

opposition

to

the

new

Government

was

conducted

mainly

by

(1) Fuerza Democratica Nicaragense (FDN), which operated along the border with Honduras,
and (2)Alianza Revolucionaria Democratica (ARDE), which operated along the border with Costa
Rica, (see map of the region). Initial US support to these groups fighting against the Nicaraguan
Government (called contras) was covert. Later, the United States officially acknowledged its
support (for example: In 1983 budgetary legislation enacted by the United States Congress

made specific provision for funds to be used by United States intelligence agencies for
supporting directly or indirectly military or paramilitary operations in Nicaragua).
Nicaragua also alleged that the United States is effectively in control of the contras, the United
States devised their strategy and directed their tactics and that they were paid for and directly
controlled by United States personal. Nicaragua also alleged that some attacks were carried out
by United States military with the aim to overthrow the Government of Nicaragua. Attacks
against Nicaragua included the mining of Nicaraguan ports and attacks on ports, oil
installations and a naval base. Nicaragua alleged that aircrafts belonging to the United
States flew over Nicaraguan territory to gather intelligence, supply to the contras in the field
and to intimidate the population.
The United States did not appear before the ICJ at the merit stages, after refusing to accept the
ICJs jurisdiction to decide the case. The United States at the jurisdictional phase of the hearing,
however, stated that it relied on an inherent right of collective self-defence guaranteed in A. 51
of the UN Charter by providing, upon request, proportionate and appropriate assistance to
Costa Rica, Honduras and El Salvador in response to Nicaraguas alleged acts aggression
against those countries (paras. 126, 128).
Questions before the Court:

Did the United States breach its customary international law obligation not to intervene
in the affairs of another State when it trained, armed, equipped and financed the
contra forces or encouraged, supported and aided the military and paramilitary activities
against Nicaragua?

Did the United States breach its customary international law obligation not to use force
against another State when it directly attacked Nicaragua in 1983 1984 and when its
activities in bullet point 1 above resulted in the use of force?

If so, can the military and paramilitary activities that the United States undertook in and
against Nicaragua be justified as collective self-defence?

Did the United States breach its customary international law obligation not to violate
the sovereignty of another State when it directed or authorized its aircrafts to fly over
Nicaraguan territory and by acts referred to in bullet point 2 above?

Did the United States breach its customary international law obligations not to violate
the sovereignty of another State, not to intervene in its affairs, not to use force against

another State and not to interrupt peaceful maritime commerce when it laid mines in
the internal waters and the territorial sea of Nicaragua?
ICJ decision: The United States violated customary international law in relation to bullet points
1, 2, 4 and 5 above. On bullet point 3, the Court found that the United States could not rely on
collective self-defence to justify its use of force against Nicaragua.
Relevant Findings of the Court:
1. The court held that the United States breached its customary international law obligation
not to use force against another State: (1) when it directly attacked Nicaragua in 1983 1984;
and (2) when its activities with the contra forces resulted in the threat or use of force (see
paras 187 -201).
The Court held that:

The prohibition on the use of force is found in Article 2(4) of the UN Charter and in
customary international law.

In a controversial finding the court sub-classified the use of force as: (1) the most
grave forms of the use of force (i.e. those that constitute an armed attack) and (2) the
less grave form (i.e. organizing, instigating, assisting or participating in acts of civil
strife and terrorist acts in another State when the acts referred to involve a threat or
use of force not amounting to an armed attack).

The United States violated the customary international law prohibition on the use of
force when it laid mines in Nicaraguan ports. It violated this prohibition when it attacked
Nicaraguan ports, oil installations and a naval base (see below). The United States could
justify its action on collective self-defence, if certain criteria were met this aspect is
discussed below.

The United States violated the customary international law prohibition on the use of
force when it assisted the contras by organizing or encouraging the organization of
irregular forces and armed bands for incursion into the territory of another state and
participated in acts of civil strifein another State when these acts involved the threat
or use of force.

The supply of funds to the contras did not violate the prohibition on the use of force.
Nicaragua argued that the timing of the offensives against it was determined by the

United States: i.e. an offensive could not be launched until the requisite funds were
available. The Court held that it does not follow that each provision of funds by the
United States was made to set in motion a particular offensive, and that that offensive
was planned by the United States. The Court held further that while the arming and
training of the contras involved the threat or use of force against Nicaragua, the supply
of funds, in it self, only amounted to an act of intervention in the internal affairs of
Nicaragua (para 227) this aspect is discussed below.
What is an armed attack?
A controversial but interesting aspect of the Courts judgement was its definition of an

armed attack. The Court held that an armed attack included:

(1) action by regular armed forces across an international border; and

(2) the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries,
which carry out acts of armed force against another State of such gravity as to amount to (inter
alia)

an

actual

armed

attack

conducted

by

regular

forces,

or

its

(the

States)

substantial involvement therein

NB: The second point somewhat resembles Article 3 (g) of the UNGA Resolution 3314 (XXIX) on
the Definition of Aggression.

Mere frontier incidents are not considered as an armed attack unless because of its
scale and effects it would have been classified as an armed attack if it was carried out by
regular forces.

Assistance to rebels in the form of provision of weapons or logistical support did not
constitute an armed attack it can be regarded as a threat or use of force, or an
intervention in the internal or external affairs of other States (see paras 195, 230).

Under Article 51 of the UN Charter and under CIL self-defence is only available against
a use of force that amounts to an armed attack (para 211).

NB: In

in the Case Concerning Oil Platforms and the advisory opinion on the Legal

Consequences of of the Construction of a Wall in the Occupied Palestinian Territory (hereinafter

called the Palestine wall case) the ICJ upheld the definition of armed attack proposed in the
Nicaragua case. In the Palestinian wall case, the attacks from which Israel was claiming self
defence originated from non-State actors. However, the Court held that Article 51s inherent

right of self defence was available to one State only against another State (para 139). Judges
Higgins, Buergenthal and Kooijmans opposed this narrow view. Articles on State Responsibility,
prepared by the International Law Commission, provided significant guidance as to when acts
of non-State actors may be attributed to States. These articles, together with recent State
practice relating attacks on terrorists operating from other countries (see legal opinions
surrounding the United States attack on Afghanistan), may have widened the scope of an armed
attack, and consequently, the right of self defence, envisaged by the ICJ.
2. The Court held that the United States could not justify its military and paramilitary activities
on the basis of collective self-defence.

Customary international law allows for exceptions to the prohibition on the use of force
including the right to individual or collective self-defence (for a difference between the
two forms of self defence, click here). The United States, at an earlier stage of the
proceedings, had asserted that the Charter itself acknowledges the existence of this
customary international law right when it talks of the inherent right of a State under
Article 51 of the Charter (para.193).

When a State claims that it used force in collective self-defence, the Court would look
into two aspects:

(1) whether the circumstances required for the exercise of self-defence existed and
(2) whether the steps taken by the State, which was acting in self-defence, corresponds to the
requirements of international law (i.e. did it comply with the principles of necessity and
proportionality).

Several criteria must be met for a State to exercise the right of individual or collective
self-defence:

(1) A State must have been the victim of an armed attack;

(2) This State must declare itself as a victim of an armed attack; [NB: the assessment whether an
armed attack took place nor not is done by the state who was subjected to the attack. A third
State cannot exercise a right of collective self-defence based its (the third States) own
assessment]; and

(3) In the case of collective self-defence the victim State must request for assistance (there is
no rule permitting the exercise of collective self-defence in the absence of a request by the
State which regards itself as the victim of an armed attack).
(4) The State does not, under customary international law, have the same obligation as under
Article 51 of the UN Charter to report to the Security Council that an armed attack happened
but the absence of a report may be one of the factors indicating whether the State in question
was itself convinced that it was acting in self-defence (see below).
At this point, the Court may consider whether in customary international law there is any
requirement corresponding to that found in the treaty law of the United Nations Charter, by
which the State claiming to use the right of individual or collective self-defence must report to
an international body, empowered to determine the conformity with international law of the
measures which the State is seeking to justify on that basis. Thus Article 51 of the United
Nations Charter requires that measures taken by States in exercise of this right of self-defence
must be immediately reported to the Security Council. As the Court has observed above
(paragraphs 178 and 188), a principle enshrined in a treaty, if reflected in customary
international law, may well be so unencumbered with the conditions and modalities
surrounding it in the treaty. Whatever influence the Charter may have had on customary
international law in these matters, it is clear that in customary international law it is not a
condition of the lawfulness of the use of force in self-defence that a procedure so closely
dependent on the content of a treaty commitment and of the institutions established by it,
should have been followed. On the other hand, if self-defence is advanced as a justification for
measures which would otherwise be in breach both of the principle of customary international
law and of that contained in the Charter, it is to be expected that the conditions of the Charter
should be respected. Thus for the purpose of enquiry into the customary law position, the
absence of a report may be one of the factors indicating whether the State in question was itself
convinced that it was acting in self-defence (See paras 200, 232 -236).

The Court looked extensively into the conduct of Nicaragua, El Salvador, Costa Rica and
Honduras in determining whether an armed attack was undertaken by Nicaragua against
the three countries which in turn would necessitate self-defence (paras 230 - 236).
The Court referred to statements made by El Salvador, Costa Rica, Honduras and the
United States before the Security Council. None of the countries who were allegedly
subject to an armed attack by Nicaragua (1) declared themselves as a victim of an armed
attack or request assistance from the United States in self-defence at the time when
the United States was allegedly acting in collective self-defence; and (2) the United
States did not claim that it was acting under Article 51 of the UN Charter and it did not

report that it was so acting to the Security Council. The Court concluded that the United
States cannot justify its use of force as collective self-defence.

The criteria with regard to necessity and proportionality, that is necessary when using
force in self-defence was also not fulfilled (para 237).

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

The principle of non- intervention means that every State has a right to conduct its
affairs without outside interference i.e it forbids States or groups of States to
intervene directly or indirectly in internal or external affairs of other States. . This is a
corollary of the principle of sovereign equality of States.

A prohibited intervention must accordingly be one bearing on matters in which each State is
permitted, by the principle of State sovereignty to decide freely. One of these is the choice of a
political, economic, social and cultural system, and the formulation of foreign policy.
Intervention is wrongful when it uses methods of coercion in regard to such choices, which
must remain free ones. The element of coercion, which defines, and indeed forms the very
essence of, prohibited intervention, is particularly obvious in the case of an intervention which
uses force, either in the direct form of military action, or in the indirect form of support for
subversive or terrorist armed activities within another State (para 205).

Nicaragua stated that the activities of the United States were aimed to overthrow the
government of Nicaragua and to substantially damage the economy and weaken the
political system to coerce the Government of Nicaragua to accept various political
demands of the United States. The Court held:

first, that the United States intended, by its support of the contras, to coerce the
Government of Nicaragua in respect of matters in which each State is permitted, by the
principle of State sovereignty, to decide freely (see paragraph 205 above) ; and secondly that
the intention of the contras themselves was to overthrow the present Government of
Nicaragua The Court considers that in international law, if one State, with a view to the
coercion of another State, supports and assists armed bands in that State whose purpose is to
overthrow the government of that State, that amounts to an intervention by the one State in the
internal affairs of the other, whether or not the political objective of the State giving such
support and assistance is equally far reaching.

The financial support, training, supply of weapons, intelligence and logistic support
given by the United States to the contras was a breach of the principle of noninterference. no such general right of intervention, in support of an opposition within
another State, exists in contemporary international law, even if such a request for
assistance is made by an opposition group of that State (see para 246 for more).

However, in a controversial finding, the Court held that the United States did not devise
the strategy, direct the tactics of the contras or exercise control on them in manner so
as to make their acts committed in violation of international law imputable to the United
States (see in this respect Determining US responsibility for contra operations under
international law 81 AMJIL 86).T he Court concluded that a number of military and
paramilitary operations of the contras were decided and planned, if not actually by
United States advisers, then at least in close collaboration with them, and on the basis of
the intelligence and logistic support which the United States was able to offer,
particularly the supply aircraft provided to the contras by the United States but not all
contra operations reflected strategy and tactics wholly devised by the United States.

In sum, the evidence available to the Court indicates that the various forms of assistance
provided to the contras by the United States have been crucial to the pursuit of their activities,
but is insufficient to demonstrate their complete dependence on United States aid. On the other
hand, it indicates that in the initial years of United States assistance the contra force was so
dependent. However, whether the United States Government at any stage devised the strategy
and directed the tactics of the contras depends on the extent to which the United States made
use of the potential for control inherent in that dependence. The Court already indicated that it
has insufficient evidence to reach a finding on this point. It is a fortiori unable to determine that
the contra force may be equated for legal purposes with the forces of the United StatesThe
Court has taken the view (paragraph 110 above) that United States participation, even if
preponderant or decisive, in the financing, organizing, training, supplying and equipping of the
contras, the selection of its military or paramilitary targets, and the planning of the whole of its
operation, is still insufficient in itself, on the basis of the evidence in the possession of the
Court, for the purpose of attributing to the United States the acts committed by the contras in
the course of their military or paramilitary operations in Nicaragua. All the forms of United
States participation mentioned above, and even the general control by the respondent State
over a force with a high degree of dependency on it, would not in themselves mean, without
further evidence, that the United States directed or enforced the perpetration of the acts
contrary to human rights and humanitarian law alleged by the applicant State. Such acts could
well be committed by members of the contras without the control of the United States. For this

conduct to give rise to legal responsibility of the United States, it would in principle have to be
proved that that State had effective control of the military or paramilitary.

Interesting, however, the Court also held that providing humanitarian aid to persons
or forces in another country, whatever their political affiliations or objectives, cannot be
regarded as unlawful intervention, or as in any other way contrary to international law
(para 242).

In the event one State intervenes in the affairs of another State, the victim State has a
right to intervene in a manner that is short of an armed attack (210).

While an armed attack would give rise to an entitlement to collective self-defence, a use of
force of a lesser degree of gravity cannot as the Court has already observed (paragraph 21 1
above). produce any entitlement to take collective countermeasures involving the use of force.
The acts of which Nicaragua is accused, even assuming them to have been established and
imputable to that State, could only have justified proportionate counter-measures on the part
of the State which had been the victim of these acts, namely El Salvador, Honduras or Costa
Rica. They could not justify counter-measures taken by a third State, the United States, and
particularly could not justify intervention involving the use of force.
4. The United States breached its customary international law obligation not to violate the
sovereignty of another State when it directed or authorized its aircrafts to fly over Nicaraguan
territory and when it laid mines in the internal waters of Nicaragua and its territorial sea.

The ICJ examined evidence and found that in early 1984 mines were laid in or close to
ports of the territorial sea or internal waters of Nicaragua by persons in the pay or
acting ion the instructions of the United States and acting under its supervision with its
logistical support. The United States did not issue any warning on the location or
existence of mines and this resulted in injuries and increases in maritime insurance
rates.

The court found that the United States also carried out high-altitude reconnaissance
flights over Nicaraguan territory and certain low-altitude flights, complained of as
causing sonic booms.

The basic concept of State sovereignty in customary international law is found in

Article 2(1) of the UN Charter. State sovereignty extends to a States internal waters,
its territorial sea and the air space above its territory. The United States violated

customary international law when it laid mines in the territorial sea and internal
waters of Nicaragua and when it carried out unauthorised overflights over
Nicaraguan airspace by aircrafts that belong to or was under the control of the
United States.

Material on the Nicaragua case

The following contains a list of scholarly articles and other material that discuss the Nicaragua
case. If you would like to add to the list, please note your suggestions in the comment box.
The judgment including separate opinions of individual judges and summaries of the judgment
and orders
The World Court and Jus Cogens, 81 AMJIL 93, Gorden A. Christenson. Christenson argues
that an independent development of the customary law right divorced from the treaty can have
wider consequences:
We have then a double irony. The Court uses the United States position accepting the treaty
norm against the threat or use of force also as a customary norm possibly having jus cogens
quality, in part, to justify taking jurisdiction as a matter quite independent of the norm that
otherwise falls under the multilateral treaty reservation. Since there are two separate sources of
the law, the choice of the one source rather than the other means that the norm relied upon
survives the jurisdictional bar to the use of the other. Yet the two norms are not different
enough to undermine completely the content of the Charter norm. This formalism simply masks
the more interesting question of the Courts institutional claim, given the ineffectiveness of the
UN Security system, to develop an international public order case by case, by breaking away
form the strictures of the Charter and treaty norms. The Court untied the treaty norms from
their constraints within the United Nations or regional collective security systems, a potentially
destabilizing decision, one whose consequences are unforeseen. The decision based on the
validity of an autonomous norm of customary international law free from the Charter is a
constitutive one of potential great significance (81 AMJIL 100, 1987).
Trashing customary international law, Antony DAmato, 81 AMJIL 102 (1987) (full text):
(DAmato discusses the paucity of State practice examined by the international court of justice
before concluding that the principle non-intervention formed part of customary international
law. He argues that the acceptance of General Assembly resolutions do not manifest opinio
juris. He states that the Court failed to consider that Article 2(4) continued to evolve through
the years.)

The World Courts Achievement, Richard Falk, 81 AMJIL 106 (Falk takes a generally positive
approach to the judgment, gives a good overview of the case and Judge Shwebels dissent)
Drawing the right line, Tom J. Farer, 81 AMJIL 112 (Farer takes a cold-war contextual approach
to the judgment and supports the Courts narrow view of an armed attack and self defence).
Some observations on the ICJs procedural and substantive innovations, Thomas M. Franck, 81
AMJIL 116 (criticizes the determination of relevant State practice in relation to non-intervention
and the reliance on UN resolutions to illicit opinio juris (it alleges that the Court sought to
harden soft law prematurely). Frank points out that the interventions falling short of armed
attacks would not allow States to target rebel groups in another States territory even if the
insurgency is planned, trained, armed and directed from that territory).
Protecting the Courts institutional interests: Why not the Marbury approach? Michael J.
Glennon, 81 AMJIL 121 (discusses reservations before the ICJ and the Courts prerogative to
determine its own jurisdiction)
Discretion to decline to exercise jurisdiction, Edward Gorden, 81 AMJIL 129 (discusses the
discretionary power of the court to decline to exercise its jurisdiction at the merit stages).
The Nicaragua judgment and the future of the law of force and self-defense, John Lawrence
Hargrove 81AMJIL 135 (Hargrove criticizes the ICJs construction of the notion of collective self
defense, armed attack and forcible countermeasures).
Somber reflections on the compulsory jurisdiction of the international court, Mark Weston Janis,
81 AMJIL 144
Custom on a sliding scale, Frederic L. Kirgis 81 AMJIL 146 (Kirgis discusses the relationship
between State practice and opinio juris, criticizes the methods (or lack thereof) of the Court in
determining the customary law nature of Article 2(4) of the Charter. Points out that actual State
practice on intervention did not support the Courts findings).
The International Court lives unto its name, Herbert W. Briggs, 81 AMJIL 78.
Determining US responsibility for contra operations under international law, Francis V. Boyle
Le peuple, cest moi!The world court and human rights, 81 AMJIL 173
LJIL Symposium: Discussion of the ICJ Nicaragua Judgment

The Impact of the Nicaragua Case on the Court and Its Role: Harmful, Helpful, or In Between?,
Lori Fisler Damrosch (Abstract: At the time the United States withdrew from participation in the
Nicaragua case at the International Court of Justice, the US government expressed concern that
the course on which the Court may now be embarked could do enormous harm to it as an
institution and to the cause of international law. This essay examines whether or to what
extent the anticipated negative effects came to pass. It concludes that dire predictions of harm
to the Court were overstated. Twenty-five years later, the rate at which states accept the
Courts jurisdiction has held steady. Only a few states have added jurisdictional reservations
concerning military activities. The mix of cases being brought to the Court has shifted towards
a more representative distribution. States are generally complying with the Courts decisions,
though some compliance problems remain. The most serious negative impact has been on the
willingness of the United States (still the Courts most active litigant) to participate fully in
international dispute settlement.)
LJIL Symposium: The Nicaragua Case: Its Impact, John Dugard
LJIL Symposium: Response of Lori F. Damrosch to Comments by John Dugard, Lori F. Damrosch
The Principle of Non-Intervention 25 Years after the Nicaragua Judgment, by Marcelo
Kohen(Abstract: This article focuses on the analysis by the International Court of Justice of the
principle of non-intervention in domestic affairs in its judgment of 27 June 1986 in the case
concerning Military and Paramilitary Activities in and against Nicaragua and contrasts it with the
evolution of international law and practice in this field. It is proposed that the Courts 1986
analysis not only remains of actuality today, but also constitutes a precursor to legal
developments that have since taken place. This is particularly the case with regard to the
relationship between the protection of human rights on the one hand and the safeguard of state
sovereignty and the collective security regime on the other. The 1986 judgment helped to
clarify the content of humanitarian assistance. It constituted the starting point for the
development of this concept in a series of GA resolutions that were subsequently adopted. The
controversial doctrine of humanitarian intervention, as well as state practice in violation of this
principle, in no way led to modifying existing international law. Similarly, the new concept of
responsibility to protect, which places emphasis on collective security and discounts unilateral
action, has not led to the disappearance of the principle of non-intervention either.)