Nicaragua v. United States

The Republic of Nicaragua v. The United States of America(1986)was a case where theInternational Court of Justice(ICJ) held that the U.S. had violatedinternational lawbysupportingtheContrasin their rebellion against theSandinistasand bymining Nicaragua's harbors. The case was decided in favor ofNicaraguaand against the United States with the awarding of reparations to Nicaragua.
The Court had 15 final decisions upon which it voted. The Court found in its verdict that the United States was "in breach of its obligations under customary international law not to use force against another State", "not to intervene in its affairs", "not to violate itssovereignty", "not to interrupt peaceful maritime commerce", and "in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the Parties signed atManaguaon 21 January 1956." In Statement 9, the Court stated that while the U.S. encouragedhuman rightsviolations by the Contras by the manual entitledPsychological Operations in Guerrilla Warfare, this did not make such acts attributable to the U.S.
The United States refused to participate in the proceedings, arguing that the ICJ lacked jurisdiction to hear the case. The U.S. also blocked enforcement of the judgment by theUnited Nations Security Counciland thereby prevented Nicaragua from obtaining any compensation.Nicaragua, under the later, post-FSLNgovernment ofVioleta Chamorro, withdrew the complaint from the court in September 1992 following a repeal of the law which had required the country to seek compensation.
The first armed intervention by the United States in Nicaragua occurred under PresidentTaft. In 1909, he ordered the overthrow of Nicaraguan PresidentJosé Santos Zelaya. During August and September 1912, a contingent of 2,300 U.S. Marines landed at the port ofCorintoand occupiedLeónand the railway line toGranada.  A pro-U.S. government was formed under the occupation.  The 1914Bryan–Chamorro Treatygranted perpetual canal rights to the U.S. in Nicaragua and was signed ten days before the U.S.-operated Panama Canal opened for use, thus preventing anyone from building a competing canal in Nicaragua without U.S. permission.
In 1927, underAugusto César Sandino, a major peasant uprising was launched against both the U.S. occupation and the Nicaraguan establishment.  In 1933, the Marines withdrew and left theNicaraguan National Guardin charge of internal security and elections.  In 1934,Anastasio Somoza García, the head of the  National Guard, ordered his forces to capture and murder Sandino.  In 1937, Somoza assumed the presidency, while still in control of the National Guard, and established a dictatorship that his family controlled until 1979.
The downfall of the regime is attributed to its embezzlement of millions of dollars in foreign aid that was given to the country in response to the devastating1972 earthquake.  Many moderate supporters of the dictatorship began abandoning it in the face of growing revolutionary sentiment.  TheSandinista(FSLN) movement organized relief, began to expand its influence and assumed the leadership of the revolution.A popular uprising brought the FSLN to power in 1979.  The United States had long been opposed to the socialist FSLN, and after the revolution theCarter administrationmoved quickly to support theSomocistaswith financial and material aid.  WhenRonald Reagantook office, he augmented the direct support to an anti-Sandinista group, called theContras, which included factions loyal to the former dictatorship.  When Congress prohibited further funding to the Contras,Oliver Northcontinued the funding througharms sales that were also prohibited by Congress.
Nicaragua charged:
Nicaragua demanded that all such actions cease and that the United States had an obligation to pay reparations to the government for damage to their people, property, and economy.
It is noteworthy that the United States, the respondent party, was the only member that put forward arguments against the validity of the judgment of the court, arguing that it passed a decision that it "had neither the jurisdiction nor the competence to render."  Members that sided with the United States in opposing Nicaragua's claims did not challenge the court's jurisdiction, its findings, nor the substantive merits of the case.
The lengthy judgment first listed 291 points, among them that the United States had been involved in the "unlawful use of force". The violations included attacks on Nicaraguan facilities and naval vessels, the mining of Nicaraguan ports, the invasion of Nicaraguan air space, and the training, arming, equipping, financing and supplying of forces (the "Contras") and seeking to overthrow Nicaragua's Sandinista government. This was followed by the statements that the judges voted on.
The court found evidence of an arms flow between Nicaragua and insurgents in El Salvador between 1979 and 1981. However, there was not enough evidence to show that the Nicaraguan government was imputable for this or that the US response was proportional. The court also found that certain transborder incursions into the territory of Guatemala and Costa Rica, in 1982, 1983 and 1984, were imputable to the Government of Nicaragua. However, neither Guatemala nor Costa Rica had made any request for US intervention; El Salvador did in 1984, well after the US had intervened unilaterally.[1]Archived2006-08-25 at theWayback Machine
"As regards El Salvador, the Court considers that incustomary international lawthe provision of arms to the opposition in another State does not constitute an armed attack on that State. As regards Honduras and Costa Rica, the Court states that, in the absence of sufficient information as to the transborder incursions into the territory of those two States from Nicaragua, it is difficult to decide whether they amount, singly or collectively, to an armed attack by Nicaragua. The Court finds that neither these incursions nor the alleged supply of arms may be relied on as justifying the exercise of theright of collective self-defence."
Regarding human rights violations by the Contras, "The Court has to determine whether the relationship of the contras to the United States Government was such 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. The Court considers that the evidence available to it is insufficient to demonstrate the total dependence of the Contras on United States aid. A partial dependency, the exact extent of which the Court cannot establish, may be inferred from the fact that the leaders were selected by the United States, and from other factors such as the organisation, training and equipping of the force, planning of operations, the choosing of targets and the operational support provided. There is no clear evidence that the United States actually exercised such a degree of control as to justify treating the contras as acting on its behalf... Having reached the above conclusion, the Court takes the view that the Contras remain responsible for their acts, in particular the alleged violations by them of humanitarian law. For the United States to be legally responsible, it would have to be proved that that State had effective control of the operations in the course of which the alleged violations were committed."
The Court concluded that the United States, despite its objections, was subject to the Court's jurisdiction. The Court had ruled on November 26, 1984 by 11 votes to one that it had jurisdiction in the case on the basis of either Article 36 of the Statute of the International Court of Justice (i.e. compulsory jurisdiction) or the 1956 Treaty of Friendship, Commerce and Navigation between the United States and Nicaragua. The Charter provides that, in case of doubt, it is for the Court itself to decide whether it has jurisdiction, and that each member of the United Nations undertakes to comply with the decision of the Court. The Court also ruled by unanimity that the present case was admissible.The United States then announced that it had "decided not to participate in further proceedings in this case." About a year after the Court's jurisdictional decision, the United States took the further, radical step of withdrawing its consent to the Court's compulsory jurisdiction, ending its previous 40 year legal commitment to binding international adjudication. The Declaration of acceptance of the general compulsory jurisdiction of the International Court of Justice terminated after a 6-month notice of termination delivered by the Secretary of State to the United Nations on October 7, 1985.
Although the Court called on the United States to "cease and to refrain" from the unlawful use of force against Nicaragua and stated that the US was "in breach of its obligation under customary international law not to use force against another state" and ordered it to pay reparations, the United States refused to comply.As a permanent member of the Security Council, the U.S. has been able to block any enforcement mechanism attempted by Nicaragua.On November 3, 1986 theUnited Nations General Assemblypassed, by a vote of 94-3 (El Salvador, Israel and the US voted against), a non-bindingresolution urging the US to comply.
On June 27, 1986, the Court made the following ruling:
The Court
The ruling did in many ways clarify issues surrounding prohibition of the use of force and the right of self-defence.Arming and training the Contra was found to be in breach with principles of non-intervention and prohibition of use of force, as was laying mines in Nicaraguan territorial waters.
Nicaragua's dealings with the armed opposition in El Salvador, although it might be considered a breach with the principle of non-intervention and the prohibition of use of force, did not constitute "an armed attack", which is the wording in article 51 justifying the right of self-defence.
The Court considered also the United States claim to be acting in collective self-defence of El Salvador and found the conditions for this not reached as El Salvador never requested the assistance of the United States on the grounds of self-defence.
In regards to laying mines, "...the laying of mines in the waters of another State without any warning or notification is not only an unlawful act but also a breach of the principles of humanitarian law underlying theHague Convention No. VIII of 1907."
Votes of Judges – Nicaragua v. United States
Judge Schwebel argued that the Sandinista government came to power with support of foreign intervention similar to what it was now complaining about. He argued that the Sandinista government achieved international recognition and received large amounts of foreign aid in exchange for commitments they subsequently violated. He cited evidence that the Sandinista government had supported the rebels in El Salvador and wrote that Nicaragua's own CIA witness contradicted their assertions that they had never at any point supported the rebels in El Salvador. The CIA witness said that there was no evidence of weapon shipments since early 1981, but Schwebel argued that he could not credibly explain why opponents of Contra aid such asCongressman Boland, who also saw the evidence, believed that weapon shipments were ongoing. He further wrote thatDaniel Ortegapublicly admitted such shipments in statements in 1985 and 1986. He said there was no dispute that the leadership of the rebels operated in Nicaragua from time to time.
He stated that in August 1981 the U.S. offered to resume aid to Nicaragua and to not support regime change in exchange for Nicaraguan commitments to not support the rebels in El Salvador. These proposals were rejected by the Sandinistas, and Schwebel argued that the U.S. was entitled to take action in collective self-defense with El Salvador by authorizing Contra aid in December 1981. He stated that further U.S. proposals to resolve the issue made in early 1982 were also ignored by the Sandinistas. The Sandinista government in 1983 began advancing proposals in which it would undertake not to support the rebels. Schwebel said that these were coupled with demands that the U.S. cease supporting the lawful government of El Salvador.
He wrote that since early 1985 the U.S. had increasingly made regime change a primary objective but that this was not inconsistent with self-defense because it was reasonable to believe that Nicaragua would not maintain any commitments unless Sandinista power was diluted.
The judge said that both sides of the wars in Nicaragua and El Salvador had committed atrocities. He said the U.S. mining of Nicaraguan harbors was unlawful in regard to third parties, but not Nicaragua.
The first witness called by Nicaragua was Nicaragua's first Vice Minister of the Interior, CommanderLuis Carrion. Commander Carrion had overall responsibility for state security and was in charge of all government operations in the "principal war zone". He was responsible for monitoring United States involvement in military and paramilitary activities against Nicaragua, directing Nicaragua's military and intelligence efforts against the contra guerrillas.
Commander Carrion began by explaining the condition of the contras prior to United States' aid in December 1981. Commander Carrion stated that the contras consisted of insignificant bands of poorly armed and poorly organized members of Somoza's National Guard, who carried out uncoordinated border raids and rustled cattle (presumably for food).
In December 1981, the U.S. Congress authorized an initial appropriation of 19 million dollars to finance paramilitary operations in Nicaragua and elsewhere in Central America. Because of this aid, Commander Carrion stated that the contras began to become centralized and received both training and weapons from the CIA. During 1982 the contra guerrillas engaged the Sandinista armed forces in a series of hit and run border raids and carried out a number of sabotage operations including:
The United StatesCentral Intelligence Agency, andArgentine militaryofficers financed by the CIA, were engaged in the training of the contra forces. The guerrillas received both basic infantry training as well as training in specialized sabotage and demolition for "special operation groups".
The U.S. Congress apportioned new funds for the contras to the amount of $30 million at the end of 1982. This made it possible for the contra forces to launch a military offensive against Nicaragua. According to Commander Carrion, the offensive known as "C Plan" had the objective of capturing the Nicaraguan border town ofJalapain order to install a provisional government, which could receive international recognition.  This plan failed.
After the failure of the Jalapa offensive the contras changed their tactics from frontal assaults to economic warfare against State farms, coffee plantations, grain storage centers, road junctions, etc.
The CIA began to support the contras by setting up and coordinating a communications and logistical system. The CIA supplied aircraft and the construction of airfields in the Honduran border area next to Nicaragua.  This allowed the contras to carry out deep penetration raids into the more developed and populated areas of the Nicaraguan interior. U.S. Army engineers created this airfield. The purpose of these deep penetration attacks upon economic targets was to weaken the Nicaraguan economy, causing a shortages of goods.
As a part of its training program for the contras, the CIA prepared and distributed a manual entitledPsychological Operations in Guerrilla Warfare. This manual included instructions in the "use of implicit and explicit terror", and in the "selective use of violence for propaganda effects". Commander Carrion explained that the manual was given to the Contras, "All of these terrorist instructions have the main purpose of alienating the population from the Government through creating a climate of terror and fear, so that nobody would dare support the Government". The manual calls for the "neutralization" (i.e. assassination) of Sandinista local government officials, judges, etc. for purposes of intimidation. It was openly admitted by the President Reagan in a press conference that the manual had been prepared by a CIA contract employee.
After the United States Congress approved an additional $24 million aid to the contras in December 1983, a new offensive was launched, namedPlan Sierra. This offensive involved approximately 7000 members of the contra forces. As in earlier attacks, the initial objective of this offensive was to capture the border town ofJalapato install a provisional government, which the CIA informed the contras would be immediately recognized by the United States Government. But this contra offensive was also repulsed by the Nicaraguan government forces.
In the beginning of 1984, the contras made a major effort to prevent the harvesting of the coffee crop, which is one of Nicaragua's most important export products. Coffee plantations and state farms where coffee is grown were attacked, vehicles were destroyed, and coffee farmers were killed.
Commander Carrion testified that the ability of the contras to carry out military operations was completely dependent upon United States funding, training and logistical support. Carrion  stated that the U.S. Government supplied the contras with uniforms, weapons, communications equipment, intelligence, training, and coordination in using this material aid.
In September 1983, CIA operatives blew up Nicaragua's only oil pipeline, which was used to transport oil from off-loading facilities to storage tanks on shore.  The United States was also directly involved in a large scale sabotage operation directed against Nicaragua's oil storage facilities.  This last attack was carried out by CIA contract employees termed by that organization as "Unilaterally Controlled Latin Assets" (UCLAs). The CIA personnel were also directly involved in a helicopter attack on a Nicaraguan army training camp. One of the helicopters was shot down by Nicaraguan ground fire resulting in the death of two U.S. citizens.
Commander Carrion testified that the United States was involved in the mining of Nicaragua's ports between February – April 1984. The mining operation was carried out by CIA ships directing the operation from international waters, while the actual mining was carried out by CIA employees on board speedboats operating inshore. After the mine-laying was completed the speedboats returned to the mother vessel.
Carrion stated that 3,886 people had been killed and 4,731 wounded in the four years since the contras began their attacks. Carrion estimated property damage at $375 million.
Commander Carrion stated if the United States stopped aid, support and training, this would result in the end of the contras military activities within three months. Asked why he was so sure of this, Commander Carrion answered, "Well, because the contras are an artificial force, artificially set up by the United States, that exists only because it counts on United States direction, on United States training, on United States assistance, on United States weapons, on United States everything...Without that kind of support and direction the contras would simply disband, disorganize, and thus lose their military capacity in a very short time".
David MacMichaelwas an expert on counter-insurgency, guerrilla warfare, and Latin American affairs, he was also a witness because he was closely involved with U.S. intelligence activities as a contract employee from March 1981 – April 1983. MacMichael worked for Stanford Research Institute, which was contracted by the U.S. Department of Defense. After this he worked two years for the CIA as a "senior estimates officer", preparing theNational Intelligence Estimate. Dr. MacMichael's responsibility was centered upon Central America. He had top-secret clearance. He was qualified and authorized to have access to all relevant U.S. intelligence concerning Central America, including intelligence relating to alleged Nicaraguan support for, and arms shipments to the anti-Government insurgents in El Salvador. He took part in high level meetings of the Latin American affairs office of the CIA. Including a fall 1981 meeting, which submitted the initial plan to set up a 1500-man covert force on the Nicaraguan border, shipping arms from Nicaragua to the El Salvador insurgents. This plan was approved by President Reagan.
"The overall purpose (for the creation of the contras) was to weaken, even destabilize the Nicaraguan Government and thus reduce the menace it allegedly posed to the United States' interests in Central America..."
Contra paramilitary actions would "hopefully provoke cross-border attacks by Nicaraguan forces and thus serve to demonstrate Nicaragua's aggressive nature and possibly call into play the Organization of American States' provisions (regarding collective self-defense). It was hoped that the Nicaraguan Government would clamp down on civil liberties within Nicaragua itself, arresting its opposition, so demonstrating its allegedly inherent totalitarian nature and thus increase domestic dissent within the country, and further that there would be reaction against United States citizens, particularly against United States diplomatic personnel within Nicaragua and thus to demonstrate the hostility of Nicaragua towards the United States".
Mr. Glennon testified about a fact-finding mission he had conducted in Nicaragua to investigate alleged human rights violations committed by the Contra guerrillas, sponsored by theInternational Human Rights Law Group, and theWashington Office on Latin America. Glennon conducted the investigation with Mr. Donald T. Fox who is a New York attorney and a member of theInternational Commission of Jurists.
They traveled to Nicaragua, visiting the northern region where the majority of contra military operations took place. The two lawyers interviewed around 36 northern frontier residents who had direct experience with the contras. They also spoke with the U.S. Ambassador to Nicaragua, and with senior officials of the U.S. Department of State in Washington after returning to the United States.
No hearsay evidence was accepted. Professor Glennon stated that those interviewed were closely questioned, and their evidence was carefully cross-checked with available documentary evidence. Doubtful "testimonies" were rejected, and the results were published in April 1985.
The conclusions of the report were summarized by Glennon in Court:
In talks with U.S. State Department officials, at those inManaguaU.S. Embassy, and with officials in Washington, Professor Glennon had inquired whether the U.S. Government had ever investigated human rights abuses by the contras. Professor Glennon testified that no such investigation had ever been conducted, because in the words of a ranking State Department official who he could not name, the U.S. Government maintained a policy of "intentional ignorance" on the matter. State Department officials in Washington- had admitted to Glennon that "it was clear that the level of atrocities was enormous". Those words "enormous" and "atrocities" were the ranking State Department official's words.
Father Jean Loison was a French priest who worked as a nurse in a hospital in the northern frontier region close to Honduras.
Asked whether the contras engaged in acts of violence directed against the civilian population, Father Loison answered:
About contra kidnappings:
Father Loison described many examples of violence, mostly indiscriminate, directed at the civilian population in the region where he resides. The picture that emerges from his testimony is that the contras engage in brutal violation of minimum standards of humanity. He described murders of unarmed civilians, including women and children, rape followed in many instances by torture or murder, and indiscriminate terror designed to coerce the civilian population. His testimony was similar to various reports including theInternational Human Rights Law Group,Amnesty International, and others.
William Hüper was Nicaragua's Minister of Finance. He testified about Nicaragua economic damage, including the loss of fuel as a result of the attack in the oil storage facilities atCorinto, the damage to Nicaragua's commerce as a result of the mining of its ports, and other economic damage.
After five vetoes in the Security Council between 1982 and 1985 of resolutions concerning the situation in Nicaragua,the United States made one final veto on 28 October 1986(France, Thailand, and United Kingdom abstaining) of a resolution calling for full and immediate compliance with the judgment.
Nicaragua brought the matter to the U.N. Security Council, where the United States vetoed a resolution (11 to 1, 3 abstentions) calling on all states to observe international law. Nicaragua also turned to the General Assembly, which passed a resolution 94 to 3 calling for compliance with the World Court ruling. Two states, Israel and El Salvador, joined the United States in opposition. At that time, El Salvador was receiving substantial funding and military advice from the U.S., which was aiming to crush a Sandinista-like revolutionary movement by theFMLN. At the same session, Nicaragua called upon the U.N. to send an independent fact-finding mission to the border to secure international monitoring of the borders after a conflict there; the proposal was rejected by Honduras with U.S. backing. A year later, on November 12, 1987, the General Assembly again called for "full and immediate compliance" with the World Court decision. This time only Israel joined the United States in opposing adherence to the ruling.
The United States refused to participate in the merits phase of the proceedings, but the Court found that the US refusal did not prevent it from deciding the case. The Court also rejected the United States defense that its action constituted collective self-defense.
The United States argued that the Court did not have jurisdiction, with U.S. ambassador to theUnited NationsJeane Kirkpatrickdismissing the Court as a "semi-legal, semi-juridical, semi-political body, which nations sometimes accept and sometimes don't."
The United States had signed the treaty accepting the Court's decision as binding, but with the exception that the court would not have the power to hear cases based on multilateral treaty obligations unless it involved all parties to the treaty affected by that decision or the United States specially agreed to jurisdiction. The court found that it was obliged to apply this exception and refused to take on claims by Nicaragua based on theUnited Nations CharterandOrganization of American Statescharter, but concluded that it could still decide the case based oncustomary international lawobligations with 11-4 majority.
When a similar but crucially non-binding resolution was brought before theUnited Nations General Assemblyon 3 November it was passed.OnlyEl SalvadorandIsraelvoted with the U.S. against it.  El Salvador's rulingjuntawas at that time receiving substantial funding and military advisement from the U.S., which was aiming to crush a Sandinista-like revolutionary movement by theFMLN. In spite of this resolution, the U.S. still chose not to pay the fine.
Professor of International Law, Anthony D'Amato, writing for theAmerican Journal of International Law(Vol. 80, 1986),commented on this case, stating that "law would collapse if defendants could only be sued when they agreed to be sued, and the proper measurement of that collapse would be not just the drastically diminished number of cases but also the necessary restructuring of a vast system of legal transactions and relations predicated on the availability of courts as a last resort. There would be talk of a return to the law of the jungle." The author also notes that the case resulted in an unusual candor. A month after the announced withdrawal, Secretary of State Shultz suggested, and President Reagan later confirmed in a press conference, that the goal of U.S. policy was to overthrow the Sandinista Government of Nicaragua.Although this was what Nicaragua had alleged to be the U.S. goal, while the case was actively pending, the United States could not concede that goal without serious risk of undermining its litigating position.