Nicaragua vs US 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 encounter 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 US, it found that Nicaragua was providing logistical support and weapons to guerrillas in El Salvador. In April 1981 it terminated US aid to Nicaragua and in September 1981, according to Nicaragua, the US 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 support to these groups fighting against the Nicaraguan Government (called contras) was covert. Later, the US 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 US is effectively in control of the contras, the US devised their strategy and directed their tactics and that they were paid for and directly controlled by US personal and some attacks were carried out by US 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 US aircrafts flew over Nicaraguan territory to gather intelligence, supply to the contras in the field and to intimidate the population.

Issues
1. Did the US 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? 2. Did the US 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? 3. Can the military and paramilitary activities that the US undertook in and against Nicaragua be justified as collective self-defence?

4. Did the US 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? 5. Did the US 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?

Held
ICJ decision: US violated CIL in relation to bullet points 2, 3, 4 and 5 above. The Court rejected the US justification of collective self-defence and held that US violated the prohibition on the use of force. Relevant Findings of the Court: The US 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 thecontra forces resulted in the threat or use of force. See paras 187 -201. The Court held that: 1. The prohibition on the use of force is a principle that can be found in Article 2(4) of the UN Charter and in customary international law (CIL). 2. Use of force can be: (1) most grave forms of the use of force (i.e. those that constitute an armed attack) and (2) less grave forms of use of force (i.e. organizing, instigating, assisting or participating in acts of civil strife and terrorist acts in another State when the acts referred to involve a threat or use of force). 3. The US violated the CIL prohibition on the use of force when it laid mines in Nicaraguan ports and attacked its ports, oil installations and a naval base. If however, the force was used in collective self- defence, then the US was justified in the use of force (see below on self-defence). 4. The US violated the CIL 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 participating in acts of civil strifein another State and when these acts involved the threat or use of force. 5. The supply of funds to the contras does not violate the prohibition on the use of force.