259

DISSENTING OPINION OF JUDGE SCHWEBEL

TABLE OF CONTENTS

I. INTRODUCTION

I]. SUMMARY OF SALIENT LEGAL CONCLUSIONS

II]. FACTUAL PREMISES

A.

249

The Nicaraguan Government came to power on the back of
some of the very forms of foreign intervention of which it now
complains (Appendix, paras. 2-7)

. The new Nicaraguan Government achieved foreign recogni-

tion in exchange for international commitments concerning its
internal and external policies, commitments which it deliber-
ately has violated (Appendix, paras. 8-13)

The new Nicaraguan Government received unprecedented aid
from the international community, including the United
States (Appendix, paras. 14-15)

The Carter Administration suspended aid to Nicaragua in
January 1981 because of its support of insurgency in El Sal-
vador, support evidenced, inter alia, by documents captured
from the Salvadoran guerrillas (Appendix, paras. 16-22)
The Reagan Administration terminated aid to the Nicaraguan
Government while waiving the latter’s obligation to return aid
already extended in the hope that its support of foreign insur-
gencies would cease ; subsequently, it twice officially offered
to resume aid if Nicaragua would stop supporting insurgency
in El Salvador, offers which were not accepted (Appendix,
paras. 23-24)

The Reagan Administration made clear to the Nicaraguan
Government in 1981 that it regarded the Sandinista revolution
“as irreversible” ; its condition for co-existence was stopping
the flow of arms to El Salvador (Appendix, paras. 25-26)

Before this Court, representatives of the Government of Nica-
ragua have falsely maintained that the Nicaraguan Govern-
ment has “never” supplied arms or other material assistance to
insurgents in El Salvador, has “never” maintained Salvadoran
command and control facilities on Nicaraguan territory and
“never” permitted its territory to be used for training of Sal-
vadoran insurgents (Appendix, para. 27)

Paragraphs
1-5

6-16
17-41

17-18

19

20

21

22

23

24-27
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MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

H. The Nicaraguan Government, despite its denials, in fact has

acted as the principal conduit for the provision of arms and
munitions to the Salvadoran insurgents from 1979 to the
present day ; command and control of the Salvadoran insur-
gency has been exercised from Nicaraguan territory with the
co-operation of the Cuban and Nicaraguan Governments ;
training of Salvadoran insurgents has been carried out in Cuba
and Nicaragua ; the Salvadoran insurgents’ radio station at
one time operated from Nitaraguan territory ; and Nicara-
guan political and diplomatic support of the Salvadoran insur-
gency has been ardent, open and sustained (Appendix, paras.
28-188)

In 1979, members of the Nicaraguan National Guard escaped
to Honduras, from which they harassed Nicaragua. Officers of
the Argentine Army began training these counter-revolution-
aries in late 1980 or early in 1981 — and continued to do so
until 1984 (Appendix, paras. 189-196)

In November 1981, after Nicaragua had failed to accept
repeated United States requests to cease its material support
for Salvadoran insurgents, the United States decided to exert
military pressure upon Nicaragua in order to force it to do
what it would not agree to do (Appendix, paras. 169-170, 173,
110, 121-122, 128-129)

. The object of United States support of the contras was claimed

by the United States to be interdiction of traffic in arms to El
Salvador, though clearly that was not the purpose of the con-
tras (Appendix, paras. 156-173, and the Court’s Judgment)

By October 1983, in apparent response to United States pres-
sures, Nicaragua proposed four treaties which were inter-
preted as an offer to cease supporting rebellion in El Salvador
if the United States would cease support of the contras and of
the Government of El Salvador (Appendix, paras. 174-178)

. In 1983, the United States called upon Nicaragua to cut back

its arms build-up, to sever its ties with the USSR and Cuba,
and to carry out its pledges to the OAS and its Members for a
democratic society (Appendix, paras. 194-198)

. By the beginning of 1984, the United States undertook direct if

covert military action against Nicaragua, assaulting oil facili-
ties and mining Nicaraguan ports (Appendix, para. 199, and
the Court’s Judgment)

. Particularly since January 1985, the United States has spoken

in terms which can be interpreted as requiring comprehensive
change in the policies of, or, alternatively, overthrow of, the
Nicaraguan Government as a condition of cessation of its
support of the contras (Appendix, paras. 200-205)

Paragraphs

28-32

33

34

35

36

37

38

39
261

IV.

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MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

P. There is evidence of the commission of atrocities by the con-
tras, by Nicaraguan Government forces, and by Salvadoran
insurgents, and of advocacy by the CIA of actions contrary to
the law of war (Appendix, paras. 206-224)
Q. The Contadora process designed to re-establish peace in Cen-
tral America embraces the democratic performance internally
of the five Central American Governments (Appendix, paras.
225-227)
THE Law
A. Introduction
B. Questions of admissibility and of justiciability
1. Political questions
2. The Court’s capacity to pass upon continuing uses of
force

3. United States Diplomatic and Consular Staff in Tehran
case

4. The incapacity of the Court to judge the necessity of con-
tinuing use of force in the circumstances of this case

C. The relevance and effect of the “multilateral treaty” reserva-
tion
1. The Court was and is bound to apply the reservation
2. The relationship of customary international law to the

reservation

D. The question of jurisdiction under the Treaty of Friendship,
Commerce and Navigation

E. The effect of the absence of El Salvador

F. The effect of the absence of the United States
1. Events bearing on the absence of the United States
2. The meaning of Article 53 of the Statute

G. The Court’s treatment of the evidence
1. The title of the case
2. The failure to use the Court’s authority to find the facts
3. The Court’s articulation and application of evidential stan-

dards

H. The Nicaraguan Government’s material support of insurgency
in El Salvador is legally tantamount to an armed attack by
Nicaragua upon El Salvador

L The Court’s conclusion is inconsistent with the General
Assembly’s Definition of Aggression

J. The question of whether measures in self-defence may be
taken only in case of armed attack

K. The Court’s views on counter-intervention and its implied

support for “wars of liberation”

Paragraphs

40

4]

42-272

42
43-77

43-50
51-60
61-68
69-77

78-99
78-90

91-99

100-106
107-113
114-127

114-115
116-127

128-153

128-131
132-134

135-153

154-161
162-171
172-173

174-181
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© © OZ

MILITARY AND PARAMILITARY ACTIVITIES (DIss. OP. SCHWEBEL)

El Salvador is entitled to act in self-defence against Nicara-
guan armed attack

. The United States is entitled to act in collective self-defence

with El Salvador

1. The position of Ei Salvador

2. The position of the United States

3. The pertinence of provisions of the Inter-American Treaty
of Reciprocal Assistance

4. The position under the United Nations Charter and cus-
tomary international law

Considerations of necessity and proportionality

Measures of collective self-defence may lawfully extend to
Nicaraguan territory

The failure of the United States to notify the Security Council
of measures of self-defence

If United States reliance on a claim of self-defence is well
founded, it constitutes a complete defence to virtually all
Nicaraguan claims

The mining of Nicaraguan ports was unlawful in regard to
third States but lawful in respect to Nicaragua

The United States has not unlawfully intervened in the inter-
nal or external affairs of Nicaragua

The United States has not violated its obligations towards
Nicaragua under the Treaty of Friendship, Commerce and
Navigation

Responsibility for violations of the law of war

As the State which first used armed force in contravention of
the Charter, the aggressor is Nicaragua

. The misrepresentations of its representatives in Court must

prejudice rather than protect Nicaragua’s claims

Nicaragua’s unclean hands require the Court in any event to
reject its claims

V. FACTUAL APPENDIX

252

A.

The Sandinistas came to power on the back of some of the very
forms of intervention of which they now complain

The new Nicaraguan Government achieved foreign recogni-
tion in exchange for international pledges concerning its inter-
nal and external policies, commitments which it deliberately
has violated

The new Nicaraguan Government received unprecedented aid
from the international community, including the United
States

Paragraphs
182-184

185-200

185-191
192

193-197

198-200
201-214

215-220

221-230

231-233
234-240

241-250

251-256
257-261

262-265

266-267

268-272

Paragraphs
(Appendix)

1-227

2-7

8-13

14-15
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253

MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

Paragraphs

(Appendix)

. The Carter Administration suspended aid to Nicaragua be-

cause of its support of insurgency in El Salvador, support
evidenced, inter alia, by documents captured from Salvadoran
guerrillas

The Reagan Administration terminated aid to the Nicaraguan
Government while waiving the latter’s obligation to return aid
already extended in the hope that its support for foreign
insurgencies would cease ; subsequently, it twice officially
offered to resume aid if Nicaragua would stop supporting
insurgency in El Salvador, offers which were not accepted

The Reagan Administration made clear to the Nicaraguan
Government in 1981 that it regarded the Sandinista revolution
“as irreversible” ; its sole condition for co-existence was stop-
ping the flow of arms to El Salvador

. Before this Court, representatives of the Government of Nica-

ragua have maintained that the Nicaraguan Government has
“never” supplied arms or other material assistance to insur-
gents in El Salvador, has “never” maintained Salvadoran
command and control facilities on Nicaraguan territory and
“never” permitted its territory to be used for training of Sal-
vadoran insurgents

. The Nicaraguan Government, despite its denials, in fact has

acted as the principal conduit for the provision of arms and
munitions to the Salvadoran insurgents from 1979 to the
present day ; command and control of the Salvadoran insur-
gency has been exercised from Nicaraguan territory with the
co-operation of the Cuban and Nicaraguan Governments ;
training of Salvadoran insurgents has been carried out in Cuba
and Nicaragua ; the Salvadoran insurgents’ radio station at
one time operated from Nicaraguan territory ; and Nicara-
guan political and diplomatic support of the Salvadoran insur-
gency has been ardent, open and sustained

1. Admissions by authorities of the Nicaraguan Govern-
ment

2. Admissions by witnesses appearing on behalf of the Nica-
raguan Government

3. Admissions by Nicaraguan counsel

4. Admissions by leaders of the Salvadoran insurgency

5. Statements by defectors

6. Statements by diplomats of uninvolved countries

7. Statements by the Government of El Salvador accusing
Nicaragua of assisting insurgency in El Salvador

8. Statements by the Government of Honduras accusing
Nicaragua of subverting El Salvador as well as Hon-
duras

16-22

23-24

25-26

27

28-188

29-62
63-77
78-86
87-97

98-107
108

109-129

130-138
264

254

MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

Paragraphs

(Appendix)

9. Statements by the Government of Costa Rica accusing
Nicaragua of subversive acts

10. Statements by the Congress of the United States and by
Congressmen opposed to United States support of the
contras

ll. The transcript of conversation between Assistant Secre-
tary of State Enders and Co-ordinator Ortega

12. Further early United States attempts at peaceful settle-
ment

13. The four treaties proposed by Nicaragua in 1983

14. Details of Nicaraguan subversion of El Salvador provided
in “Revolution Beyond Our Borders” and in earlier publi-
cations duly submitted to the Court — and Nicaragua’s

reply

In 1979, members of the Nicaraguan National Guard escaped
to Honduras, from which they harassed Nicaragua. Officers of
the Argentine Army began training these counter-revolution-
aries apparently early in 1981 — and continued to do so until
1984

In November 1981, after Nicaragua had failed to accept
repeated United States requests to cease its material support
for Salvadoran insurgents, the United States decided to exert
military pressure upon Nicaragua in order to force it to do
what it would not agree to do

. The object of United States support of the contras was claimed

by the United States to be interdiction of traffic in arms to El
Salvador, though clearly that was not the purpose of the con-
tras

By October 1983, in apparent response to United States pres-
sures, Nicaragua proposed four treaties which were inter-
preted as an offer to cease supporting rebellion in El Salvador
if the United States would cease support of the contras and of
the Government of El Salvador

. In 1983, the United States called upon Nicaragua to cut back

its arms build-up, to sever its ties with the USSR and Cuba,
and to carry out its pledges to the OAS and its Members for a
democratic society

. By the beginning of 1984, the United States undertook direct if

covert military action against Nicaragua, assaulting oil facili-
ties and mining Nicaraguan ports

. Particularly since January 1985, the United States has spoken

in terms which can be interpreted as requiring comprehensive
change in the policies of, or, alternatively, overthrow of, the
Nicaraguan Government as a condition of cessation of its
support of the contras

139

140-155
156-170

171-173
174-178

179-188

189-190

191

192

193

194-198

199

200-205
265  MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

Paragraphs
(Appendix)
P. There is evidence of the commission of atrocities by the con-
tras, by Nicaraguan Government forces, and of advocacy by
the CIA of actions contrary to the law of war 206-224

Q. The Contadora process designed to re-establish peace in Cen-

tral America embraces the democratic performance internally
of the five Central American Governments 225-227

255
266

I. INTRODUCTION

1. To say that I dissent from the Court’s Judgment is to understate the
depth of my differences with it. I agree with the Court’s finding that the
United States, by failing to make known the existence and location of the
mines laid by it, acted in violation of customary international law (in
relation to the shipping of third States) ; I agree that the CIA’s causing
publication of a manual advocating acts in violation of the law of war is
indefensible ; and I agree with some other elements of the Judgment as
well. Nevertheless, in my view the Judgment misperceives and miscon-
strues essential facts — not so much the facts concerning the actions of the
United States of which Nicaragua complains as the facts concerning the
actions of Nicaragua of which the United States complains. It miscon-
ceives and misapplies the law — not in all respects, on some of which the
whole Court is agreed, but in paramount respects : particularly in its
interpretation of what is an “armed attack” within the meaning of the
United Nations Charter and customary international law ; in its appearing
to justify foreign intervention in furtherance of “the process of decoloni-
zation” ; and in nearly all of its holdings as to which Party to this case has
acted in violation of its international responsibilities and which, because it
has acted defensively, has not. For reasons which, because of its further
examination of questions of jurisdiction, are even clearer today than when
it rendered its Judgment of 26 November 1984, this Judgment asserts a
Jurisdiction which in my view the Court properly lacks, and it adjudges a
vital question which, I believe, is not justiciable. And, I am profoundly
pained to say, I dissent from this Judgment because I believe that, in effect,
it adopts the false testimony of representatives of the Government of the
Republic of Nicaragua on a matter which, in my view, is essential to the
disposition of this case and which, on any view, is material to its dispo-
sition. The effect of the Court’s treatment of that false testimony upon the
validity of the Judgment is a question which only others can decide.

2. These are uncommonly critical words in a Court which rightly enjoys
very great respect. Coming as they do from a Judge who is a national of a
Party to the case, I am conscious of the fact that the justification for these
conclusions must be full. This opinion accordingly is long, not only for that
reason but because the differences between the Court’s views and mine
turn particularly on the facts. The facts are in fundamental controversy. I
find the Court’s statement of the facts to be inadequate, in that it suffi-
ciently sets out the facts which have led it to reach conclusions of law

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adverse to the United States, while it insufficiently sets out the facts which
should have led it to reach conclusions of law adverse to Nicaragua. In such
a situation, where the Parties differ profoundly on what the facts are, and
where the Court has arrived at one evaluation of them and I another, I
believe that it is my obligation to present the factual support for the
conclusions which I have reached. That cannot be done in a few pages.

3. This opinion accordingly is cast in the following form. First, it pre-
sents a summary of its salient legal conclusions. Second, it states, in
abbreviated terms, the factual premises on which it is based — premises
whose support is appended. Third, it analyses the principal legal questions
which the case — and the Court’s Judgment — pose, some of which are
preliminary in character, others of which are central to the merits. Fourth
and finally, it contains an appendix, in which a detailed exposition and
analysis of the facts inadequately stated in the Court’s Judgment is placed.
The facts are relegated to an appendix not because they are secondary in
importance. On the contrary, they are primary. Nevertheless I believe that
ease of evaluation of this dissenting opinion will be promoted by this
approach.

4. In embarking on so lengthy an opinion, it may be appropriate to
recall what that late distinguished Judge of the Court, Philip C. Jessup,
wrote, as he began a dissent to the Judgment in the South West Africa cases
which ran to 117 printed pages :

“This full examination is the more necessary because I dissent not
only from the legal reasoning and factual interpretations in the
Court’s Judgment but also from its entire disposition of the case. In
regard to the nature and value of dissenting opinions, I am in com-
plete agreement with the views of a great judge, a former member of
this Court — the late Sir Hersch Lauterpacht — who so often and so
brilliantly contributed to the cause of international law and justice his
own concurring or dissenting opinions ; I refer to section 23 of his
book, The Development of International Law by the International
Court, 1958. He quotes, with evident approval (in note 10 on p. 66), the
‘clear expression’ of Charles Evans Hughes who was a member of the
Permanent Court of International Justice and later Chief Justice of
the United States :

‘A dissent in a court of last resort is an appeal to the brooding
spirit of the law, to the intelligence of a future day, when a later
decision may possibly correct the error into which the dissenting
judge believes the court to have been betrayed,

It is not out of disrespect for the Court, but out of respect for one of its

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great and important traditions, that, when necessary, I express my
disagreement with its conclusions.” (/.C.J. Reports 1966, pp. 325-
326.)

5. I should add that, in setting out my views on the facts and law of this
case, I take no position on the politics of it. 1 have views about the
desirability and feasibility of the policies which the United States, Nica-
ragua, El Salvador and other States concerned have pursued and are
pursuing in respect of questions at issue in this case. But I have endeav-
oured to separate those views from the exposition of the facts and evalu-
ation of the law which this opinion contains. If, as is the case, on most of
those questions I have concluded that, by reason of Nicaragua’s prior and
continuing violations of international law, responsive actions of the Uni-
ted States are not in violation of international law, that is by no means to
infer that I believe that the pertinent policies and practices of the United
States — and Nicaragua — are desirable or undesirable, workable or
unworkable, politic or impolitic, sensible or insensible, humane or inhu-
mane. I do not suggest that law and policy are divorced ; far from it.
Obviously law is meant to promote and does promote community policies,
and conformity with the law must be measured in the light of that fun-
damental truth. Nevertheless, States and men are not obliged to do, or
necessarily are well advised to do, all that the law permits. In my view, the
proper function of a judge of this Court is limited to an appraisal of what
the law permits or requires, and does not extend to passing judgment on the
merits of policies which are pursued within those confines.

II. SUMMARY OF SALIENT LEGAL CONCLUSIONS

6. Without any pretence, still less actuality, of provocation, Nicaragua
since 1979 has assisted and persisted in efforts to overthrow the Govern-
ment of El Salvador by providing large-scale, significant and sustained
assistance to the rebellion in El Salvador — a rebellion which, before the
rendering of Nicaraguan and other foreign assistance, was ill-organized,
ill-equipped and ineffective. The delictual acts of the Nicaraguan Gov-
ernment have not been confined to provision of very large quantities of
arms, munitions and supplies (an act which of itself might be viewed as not
tantamount to an armed attack) ; Nicaragua (and Cuba) have joined with
the Salvadoran rebels in the organization, planning and training for their
acts of insurgency ; and Nicaragua has provided the Salvadoran insurgents
with command-and-control facilities, bases, communications and sanctu-
ary, which have enabled the leadership of the Salvadoran insurgency to
operate from Nicaraguan territory. Under both customary and conven-
tional international law, that scale of Nicaraguan subversive activity not
only constitutes unlawful intervention in the affairs of El Salvador ; it is

258
269  MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

cumulatively tantamount to an armed attack upon El Salvador. (It is
striking that both Nicaragua and the United States, in their pleadings
before the Court, agree that significant material support-by a State of
foreign armed irregulars who endeavour forcibly to overthrow the Gov-
ernment of another State is tantamount to armed attack upon the latter
State by the former State.) Not only is El Salvador entitled to defend itself
against this armed attack ; it can, and has, called upon the United States to
assist it in the exercise of collective self-defence. The United States is
legally entitled to respond. It can lawfully respond to Nicaragua’s covert
attempt to overthrow the Government of El Salvador by overt or covert
pressures, military and other, upon the Government of Nicaragua, which
are exerted either directly upon the Government, territory and people of
Nicaragua by the United States, or indirectly through the actions of
Nicaraguan rebels — the “contras” — supported by the United States.

7. While United States pressure upon Nicaragua is essentially lawful,
nevertheless questions about the legality of aspects of United States con-
duct remain. In my view, the fundamental question is this. Granting that
the United States can join El Salvador in measures of collective self-
defence (even if, contrary to Article 51 of the United Nations Charter, they
were not reported to the United Nations Security Council, as, by their
nature, covert defensive measures will not be), those measures must be
necessary, and proportionate to the delicts — the actions tantamount to
armed attack — of Nicaragua. And they must in their nature be funda-
mentally measures of self-defence.

8. By these standards, the unannounced mining by the United States of
Nicaraguan ports was a violation of international Jaw. That mining could
affect and did affect third States as against whom no rationale of self-
defence could apply in these circumstances. As against Nicaragua, how-
ever, the mining was no less lawful than other measures of pressure.

9. Are United States support of the contras and direct United States
assaults on Nicaraguan oil tanks, ports and pipelines, as well as other
measures such as intelligence overflights, military and naval manoeuvres,
and a trade embargo, unnecessary and disproportionate acts of self-
defence ? I do not believe so. Their necessity is, or arguably is, indicated by
recurrent, persistent Nicaraguan failure to cease armed subversion of El
Salvador. To the extent that proportionality of defensive measures is
required — a question examined below — in their nature, far from being
disproportionate to the acts against which they are a defence, the actions of

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270 = MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

the United States are strikingly proportionate. The Salvadoran rebels,
vitally supported by Nicaragua, conduct a rebellion in El Salvador ; in
collective self-defence, the United States symmetrically supports rebels
who conduct a rebellion in Nicaragua. The rebels in El Salvador perva-
sively attack economic targets of importance in El Salvador ; the United
States selectively attacks economic targets of military importance, such as
ports and oil stocks, in Nicaragua. Even if it be accepted, arguendo, that the
current object of United States policy is to overthrow the Nicaraguan
Government — and that is by no means established — that is not necessarily
disproportionate to the obvious object of Nicaragua in supporting the
Salvadoran rebels who seek overthrow of the Government of El Salvador.
To say, as did Nicaraguan counsel, that action designed to overthrow a
government cannot be defensive, is evident error, which would have come
as a surprise to Roosevelt and Churchill (and Stalin), who insisted on the
unconditional surrender of the Axis Powers. In the largest-scale interna-
tional hostilities currently in progress, one State, which maintains that it is
the victim of armed attack, proclaims as its essential condition for peace
that the government of the alleged aggressor be overthrown — a condition
which some may find extreme, others not, but which in any event has not
aroused the legal condemnation of the international community. More-
over, I agree with the Court that, if Nicaragua has been giving support to
the armed opposition in El Salvador, and if this constitutes an armed
attack upon El Salvador, collective self-defence may be legally invoked by
the United States, even though the United States may possibly have an
additional and perhaps more decisive motive drawn from the political
orientation of the Nicaraguan Government.

10. Nevertheless, it could be maintained that the necessity of United
States actions claimed to be in collective self-defence has been open to
question, particularly since that time in 1983 when Nicaragua began to
indicate that it was prepared to cease its support for the armed subversion
of El Salvador’s Government if the United States would cease both its
direct support for El Salvador’s Government and its pressures upon Nica-
ragua’s. It may be maintained that, at any rate since that time, there have
been peaceful means of resolving the dispute which were open and should
have been exploited before the continued application of armed pressure
was pursued. Whether that question of the necessity of the continued use of
force is justiciable is doubtful, for reasons explained below.

11. The Court has concluded that it can adjudge the necessity of United
States pressures against Nicaragua. It has further concluded that it need
not make that judgment, on the ground that the pressures of the United
States upon Nicaragua — the measures which the United States has taken
in alleged exercise of its right of collective self-defence — cannot be in

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271  MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

response to a prior armed attack by Nicaragua upon El Salvador, for the
reason that there has been no such armed attack. Nevertheless, the Court
holds that the measures taken by the United States against Nicaragua
cannot in any event be justified on grounds of necessity.

12. I share none of these conclusions. The Court’s statement of, and
apparent understanding of, the facts that underlie its conclusion that there
has been no armed attack by Nicaragua upon El Salvador essentially turn
upon its conclusions that it has not been proven that the Nicaraguan
Government itself was engaged in the shipment of arms to Salvadoran
insurgents, still less in any related subversive acts, such as training of
Salvadoran insurgents and provision of headquarters for their leadership
on Nicaraguan territory, to which allegations the Court pays scant atten-
tion ; that such arms shipments as there may have been through Nicara-
guan territory to Salvadoran insurgents appear largely or entirely to have
ended in early 1981; and that, accordingly, United States measures
launched some months and maintained for some years thereafter could not
have been a timely, necessary and proportionate response to such arms
trafficking, if indeed there were any. These conclusions, in turn, reflect
rules of evidence which the Court has articulated for this case and pur-
ported to apply, whose application will be shown below to be inappro-
priate. In my view, for reasons fully expounded in the appendix to this
opinion, the Court’s finding of the facts on the critical question of the
reality and extent of the intervention of the Nicaraguan Government in El
Salvador in support of the insurgency in that country — which goes far
beyond the shipment of arms — cannot be objectively sustained.

13. As to the law, the Court holds that, even if the shipment of arms
through Nicaragua to Salvadoran insurgents could be imputed to the
Nicaraguan Government, such shipment would not be legally tantamount
to an armed attack upon El Salvador. In the absence of armed attack, the
Court holds, El Salvador is not entitled to react in self-defence — and did
not — and the United States is not entitled to react in collective self-defence
— and did not. I find the Court’s interpretation of what is tantamount to an
armed attack, and of the consequential law, inconsonant with accepted
international law and with the realities of international relations. And I
find its holdings as to what El Salvador and the United States actually did
inconsistent with the facts.

14. The truth is that the State which first intervened with the use of force
in the affairs of another State in the dispute before the Court was Nica-
ragua, which initiated and has maintained its efforts to subvert or over-
throw the governments of its neighbours, particularly of El Salvador. In

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contemporary international law, the State which first undertakes specified
unprovoked, unlawful uses of force against another State — such as sub-
stantial involvement in the sending of armed bands onto its territory — is,
prima facie, the aggressor. On examination, Nicaragua’s status as the
prima facie aggressor can only be definitively confirmed. Moreover, Nica-
ragua has compounded its delictual behaviour by pressing false testimony
on the Court in a deliberate effort to conceal it. Accordingly, on both
grounds, Nicaragua does not come before the Court with clean hands.
Judgment in its favour is thus unwarranted, and would be unwarranted
even if it should be concluded — as it should not be — that the responsive
actions of the United States were unnecessary or disproportionate.

15. The Court has arrived at very different conclusions. While I disagree
with its legal conclusions — particularly as they turn on its holding that
there has been no action by Nicaragua tantamount to an armed attack
upon El Salvador to which the United States may respond in collective
self-defence — I recognize that there is room for the Court’s construction of
the legal meaning of an armed attack, as well as for some of its other
conclusions of law. The Court could have produced a plausible judgment —
unsound in its ultimate conclusions, in my view, but not implausible —
which would have recognized not only the facts of United States inter-
vention in Nicaragua but the facts of Nicaragua’s prior and continuing
intervention in El Salvador ; which would have treated Nicaragua’s inter-
vention as unlawful (as it undeniably ts) ; but which would also have held
that it nevertheless was not tantamount to an armed attack upon El
Salvador or that, even if it were, the response of the United States was
unnecessary, ill-timed or disproportionate. Such a judgment could plau-
sibly have held against the United States on other points as well, among
them, its failure to report its actions to the United Nations Security
Council and its failure to have adequate recourse to the multilateral
institutions for peaceful settlement and collective security constituted by
the Charters of the United Nations and the Organization of American
States.

16. But the Court has proceeded otherwise. It has excluded, discounted
and excused the unanswerable evidence of Nicaragua’s major and main-
tained intervention in the Salvadoran insurgency, an intervention which
has consisted not only in provision of great quantities of small arms until
early 1981, but provision of arms, ammunition, munitions and supplies
thereafter and provision of command-and-control centres, training and
communications facilities and other support before and after 1981. The
facts, and the law, demanded condemnation of these Nicaraguan actions
which, even if not tantamount to armed attack, must constitute unlawful
intervention. For reasons that neither judicial nor judicious considerations
sustain, the Court has chosen to depreciate these facts, to omit any con-
sequential statement of the law, and even, in effect, to appear to lend its

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good name to Nicaragua’s misrepresentation of the facts. The Court may
thereby have thrown into question the validity of a Judgment which is
bound to its factual predicates. By so doing, Nicaragua’s credibility has not
been established, but that of the Court has been strained. Moreover, the
Court has in my view further compromised its Judgment by its inference
that there may be a double standard in the law governing the use of force in
international relations : intervention is debarred, except, it appears, in
“the process of decolonization”. I deeply regret to be obliged to say that, in
my submission, far from the Court, in pursuance of the requirements of its
Statute, satisfying itself as to the facts and the law, it has stultified
itself.

[IT FACTUAL PREMISES

A. The Nicaraguan Government Came to Power on the Back of Some of
the Very Forms of Foreign Intervention of Which it now Complains
(Appendix, Paras. 2-7)

17. The overthrow in 1979 of the Government of President Somoza by a
widespread and popularly supported rebellion, led by the fighting forces of
the Sandinistas, was vitally assisted by foreign governments. President
Castro had united diverse factions of the Sandinista leadership into the
nine-member directorate of comandantes which today governs Nicaragua,
and Cuba supplied the united Sandinista forces with large quantities of
arms, with training, and advisers in the field. Venezuela provided the
Sandinistas with arms, money and logistical support. Costa Rica provided
safe haven for large numbers of Sandinista forces based in its territory and
was the prime channel for the extensive shipments of arms provided by
third States to the Sandinistas. Panama also served as such a channel and
deployed members of the Panamanian National Guard who joined in
fighting against the Somoza régime. For its part, Honduras was unable or
unwilling to take effective measures against the Sandinista forces which
operated from Honduran territory. Thus the Sandinistas, who today com-
plain of foreign intervention, particularly the sending of irregulars on to
their territory from safe havens of neighbouring States who are financed,
trained and provisioned by a foreign State, actually came to power with the
aid of these very forms of foreign intervention against the Government
which they then were battling.

18. Moreover, the fall of President Somoza was facilitated by the exer-
tion of other foreign pressures upon his Government. The United States
brought its influence to bear to withhold international credits from the

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Nicaraguan Government. It cut off military assistance and sales to the
Nicaraguan Government and persuaded other major governmental sup-
pliers to stop selling ammunition to the Nicaraguan Government. In the
Organization of American States, strong pressures were exerted upon
President Somoza to step down, culminating in a resolution of the Seven-
teenth Meeting of Consultation of Ministers of Foreign Affairs of 23
June 1979 which called for “Immediate and definitive replacement of the
Somoza régime”.

B. The New Nicaraguan Government Achieved Foreign Recognition in

Exchange for International Commitments concerning its Internal and

External Policies, Commitments Which it Deliberately Has Violated
(Appendix, Paras. 8-13)

19. In response to the foregoing resolution — which also called for
installation of a democratic government in Nicaragua which would guar-
antee the human rights of all Nicaraguans and hold free elections — the
Junta of the Government of National Reconstruction of Nicaragua on
12 July 1979 sent to the OAS and “to the Ministers of Foreign Affairs of
the Member States of the Organization” its written statement of plans for
Somoza’s resignation and its assumption of power. The Junta pledged that,
upon the recognition by the member States of the OAS of the Government
of National Reconstruction as the legitimate Government of Nicaragua,
that Government when in power would immediately proceed to enact into
law and implement provisions which would meet the prescriptions of the
OAS. The States Members of the OAS carried out their part of this
international understanding, individually as well as collectively extending
promptly the recognition which the Junta solicited. But the Sandinistas —
who soon asserted and maintained exclusive control of the Junta and
subsequent formations of the Nicaraguan Government — did not carry out
their part. On the contrary, they violated important elements of the Junta’s
assurances to the OAS and its Members, and did so, as a matter of
deliberate governmental policy, well before there could be any justification
for such derogations on grounds of national emergency provoked by
armed attacks upon the revolutionary government.

C. The New Nicaraguan Government Received Unprecedented Aid from
the International Community, including the United States
(Appendix, Paras. 14-15)

20. The advent of the revolutionary Government in Nicaragua was
welcomed virtually throughout the world. Assistance to it poured in, from
East, West and Latin America. West included not only Europe but the
United States which, in the first 18 months of Sandinista rule, gave more

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economic aid to Nicaragua than did any other country and more than it
had given in total in 20 previous years of Somoza family rule. The Carter
Administration exerted itself to establish friendly relations with the new
Nicaraguan Government which, for its part, adopted a national anthem
which proclaims the Yankees to be “the enemy of mankind”. The United
States attached a critical condition to its aid, namely, that Nicaragua not
assist violence or terrorism in other countries, a provision which was
designed to discourage support of insurrection in El Salvador which, when
the Sandinistas came to power in Nicaragua, was smouldering rather than
flaring.

D. The Carter Administration Suspended Aid to Nicaragua in January 1981

Because of its Support of Insurgency in El Salvador, Support Evidenced, inter

alia, by Documents Captured from the Salvadoran Guerrillas (Appendix,
Paras. 16-22)

21. Confronted with convincing evidence of large-scale supply of arms
by the Nicaraguan Government to the insurgents in El Salvador, culmi-
nating in their “final offensive” of January 1981, the Carter Administra-
tion in its closing days suspended economic aid to the Government of
Nicaragua and resumed military aid to the Government of El Salvador.
That evidence included captured documents demonstrating the involve-
ment of Communist States, particularly Cuba, and Nicaragua in the uni-
fication, planning, training, arming and provisioning of a Salvadoran
insurgency which would have its command-and-control facilities in Nica-
ragua.

E. The Reagan Administration Terminated Aid to the Nicaraguan

Government while Waiving the Latter’s Obligation to Repay Aid already

Extended in the Hope that its Support of Foreign Insurgencies Would Cease ;

Subsequently, it Twice Officially Offered to Resume Aid if Nicaragua Would

Stop Supporting Insurgency in El Salvador, Offers Which Were not Accepted
(Appendix, Paras, 23-24)

22. The Reagan Administration in April 1981 terminated the sus-
pended aid to the Nicaraguan Government because of the evidence of its
support of insurgency in El Salvador. Because the suspension of that aid in
January by the Carter Administration and urgent United States diploma-
tic representations, buttressed with detailed intelligence reports, had had
some success in persuading the Nicaraguan Government to interrupt its
provision of arms to the Salvadoran insurgents, the Reagan Administra-
tion waived repayment for which United States law provided. In August
1981, the United States officially offered to resume aid to the Nicaraguan
Government provided that it cease its by then resumed support for the

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rebels in El Salvador, an offer which the United States repeated in April
1982. Nicaragua accepted neither offer. Nicaragua denied that it was
extending such support.

F. The Reagan Administration Made Clear to the Nicaraguan Government

in 1981 that it Regarded the Sandinista Revolution “As Irreversible” ; its

Condition for Co-existence Was Stopping the Flow of Arms to El Salvador
(Appendix, Paras. 25-26)

23. Nicaragua’s evidence shows that, in 1981, the United States sent
then Assistant Secretary of State Thomas O. Enders to Managua where, in
conversations at the highest levels of the Nicaraguan Government, he gave
assurances — according to the transcript of conversation supplied by
Nicaragua — that the United States Government was prepared to accept
the Nicaraguan revolution “as irreversible” provided that Nicaragua
stopped the flow of arms to El Salvador.

G. Before this Court, Representatives of the Government of Nicaragua Have
Falsely Maintained that the Nicaraguan Government Has “Never” Supplied
Arms or Other Material Assistance to Insurgents in El Salvador, Has
“Never” Maintained Salvadoran Command-and-Control Facilities on
Nicaraguan Territory and “Never” Permitted its Territory to Be Used for
Training of Salvadoran Insurgents (Appendix, Para. 27)

24. The Foreign Minister of Nicaragua submitted an affidavit to the
Court, repeatedly relied upon by Nicaragua, which avers that : “In truth,
my government is not engaged, and has not been engaged, tn the provision
of arms or other supplies to either of the factions engaged in the civil war in
El Salvador.” Another Minister, as a principal witness in Court for Nica-
ragua, testified that his Government “never” had a policy of sending arms
to opposition forces in Central America. And, in the final word of the
Nicaraguan Government to the Court on this vital question, the Agent of
Nicaragua on 26 November 1985 wrote to the Court as follows :

“As the Government of Nicaragua has consistently stated, it has
never supplied arms or other material assistance to insurgents in E]
Salvador or sanctioned the use of its territory for such purpose, it has
never permitted Salvadoran insurgents to establish a headquarters or
operations base or command and control facility in Nicaraguan ter-
ritory and has never permitted its territory to be used for training of
Salvadoran insurgents.”

25. It is my studied conclusion that these statements are untrue. In my

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view, they are demonstrably false, and, in the factual appendix to this
opinion, are demonstrated to be false.

26. It is of course a commonplace that government officials dissemble.
Reasons of State are often thought to justify statements which are incom-
plete, misleading or contrary to fact. Covert operations, by their nature, are
intended to provide cover, to lend credibility to “deniability”. In this very
case, certain statements of representatives of the United States in the
United Nations Security Council have been less than candid and have been
shown to be inconsistent with other statements of the most senior repre-
sentatives of the United States. Moreover, the Government of the United
States has made some allegations against the Government of Nicaragua
which appear to be erroneous or exaggerated or in any event unsubstan-
tiated by evidence made public.

27. Nevertheless, there can be no equation between governmental
statements made in this Court and governmental statements made outside
of it. The foundation of judicial decision is the establishment of the truth.
Deliberate misrepresentations by the representatives of a government
party to a case before this Court cannot be accepted because they under-
mine the essence of the judicial function. This is particularly true where, as
here, such misrepresentations are of facts that arguably are essential, and
incontestably are material, to the Court’s Judgment.

H. The Nicaraguan Government, Despite its Denials, in Fact Has Acted as
the Principal Conduit for the Provision of Arms and Munitions to the
Salvadoran Insurgents from 1979 to the Present Day ; Command and Control
of the Salvadoran Insurgency Has Been Exercised from Nicaraguan
Territory with the Co-operation of the Cuban and Nicaraguan Governments ;
Training of Salvadoran Insurgents Has Been Carried out in Cuba and
Nicaragua ; the Salvadoran Insurgents’ Radio Station at One Time Operated
from Nicaraguan Territory; and Nicaraguan Political and Diplomatic
Support of the Salvadoran Insurgency Has Been Ardent, Open and Sustained
(Appendix, Paras. 28-188)

28. The fact that the Government of Nicaragua, soon after the time the
Sandinistas took power to the present day (and certainly to the period of
the currency of this case before the Court), has extended material assis-
tance to the insurgency in El Salvador is, in my view, beyond objective
dispute. As the extensive exposition of the factual appendix establishes,
Nicaragua has acted as the convinced conduit for the shipment of very
large quantities of arms, and continuing supplies of ammunition, muni-
tions and medicines, from Cuba, Viet Nam, Ethiopia, and certain States of
Eastern Europe, to the Salvadoran insurgents. Provision of arms appears
to have been on a large-scale in preparation for the January 1981 “final

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offensive” of the Salvadoran insurgents, to have declined markedly there-
after, revived in 1982, and been irregular but not insignificant since ; an
important, perhaps vital, supply of ammunition, explosives and medicines
appears to have been maintained relatively continuously. Nicaragua has
facilitated the training of Salvadoran insurgents in Cuba and in Nicaragua.
The command-and-control centres for the military operations of the Sal-
vadoran insurgents have operated from Nicaraguan territory and may still
do so. Military as well as political leaders of the Salvadoran insurgency
were based in Nicaragua, indisputably until the well-publicized murder in
1983 in Managua of a resident leading member of the Salvadoran insur-
gency by revolutionary rivals and the reputed suicide of a still more
prominent Salvadoran insurgent leader in Managua in response to that
murder. For some time after the Sandinistas took power, the radio station
of the Salvadoran insurgency operated from Nicaraguan territory. Nica-
raguan political and diplomatic support for the overthrow of the Govern-
ment of El Salvador by Salvadoran insurgents has been ardent, open and
sustained.

29. That these are the facts has been recognized in significant measure
by statements of authorities of the Nicaraguan Government. In 1985,
President Ortega was publicly and authoritatively quoted as stating (and
has never denied stating) that :

“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 only one
thing : that they don’t attack us...”

President Ortega’s admission is even more probative in his original Span-
ish words : “estamos dispuestos . . . a suspender todo transito por nuestro
territorio de ayuda militar u otra a los salvadorenos . . .”. Nicaragua can
only “suspend” what is in progress. (The Court discounts President Or-
tega’s words on grounds that are patently unpersuasive ; see below,
para. 149. The full text of President Ortega’s remarks is found in the
appendix to this opinion, paras. 30-31.) Moreover, as recently as April
1986, President Ortega gave another press interview in which he reportedly
declared that Nicaragua is ready to agree to halt aid to “irregular forces” in
the region in exchange for ending by the United States of its military
pressure upon Nicaragua ; this President Ortega is quoted as saying, would
be “a reciprocal arrangement” (ibid, para. 33).

30. These facts of Nicaragua’s material support of the insurgency in Fl
Salvador find further substantiation in admissions by leaders of the Sal-
vadoran insurgency, and much more explicit and emphatic support in

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declarations of defectors from that insurgency and from the Sandinistas.
These facts are confirmed by the appraisals of diplomats from third States.
They are strongly maintained by the Governments of El Salvador and
Honduras, the primary current objectives of Nicaraguan policies of sup-
port of foreign insurrection and subversion. Statements of the Govern-
ment of Costa Rica, and the diplomatic positions which it has taken from
the time of the accession of the Sandinistas to power, comport with this
evaluation of the facts.

31. The Government of the United States has consistently maintained
that these are the facts, and it has provided considerable evidence in
support of its contentions, virtually all of which has not been specifically or
adequately refuted by Nicaragua — or the Court — in this case. That
evidence includes shipments of arms en route to El Salvador seized in
transit from Nicaragua through Honduras, and in Costa Rica ; captured
documents of Salvadoran insurgents which reveal Nicaragua to be the
immediate source of their arms ; and arms, verified by their serial numbers,
abandoned by the United States forces in Viet Nam, which were captured
from Salvadoran insurgents, after having been shipped from Viet Nam to
Cuba to Nicaragua before being passed on to the Salvadoran insurgents.
Moreover, the Congress of the United States, which has not been fully
supportive of the policies of the United States Government towards Nica-
ragua, has repeatedly gone on record in full support of this finding of the
facts. No less probative is that leading members of the Congress of the
United States who oppose support by the United States of the contras and
who oppose exertion of armed pressures upon Nicaragua, and who have at
their disposal the intelligence resources of the United States Government
on the issue, such as Congressman Boland, have concluded that the insur-
gency in El Salvador :

“depends for its life-blood — arms, ammunition, financing, logistics
and command-and-control facilities — upon outside assistance from
Nicaragua and Cuba... contrary to the repeated denials of Nicara-
guan officials, that country is thoroughly involved in supporting the
Salvadoran insurgency”.

32. Equally, informed critics of United States policy in Central
America, such as Christopher Dickey, author of With the Contras, A Re-
porter in the Wilds of Nicaragua, 1985, conclude that :

“as the election results came in, with Reagan and his Republican
platform the obvious winners, the Sandinistas opened the floodgates
for the Salvadoran rebels. By the middle of November the Salvado-
rans were complaining they couldn’t distribute so much matériel.

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You couldn’t hide that many arms. Some were caught. Others were
tracked through radio intercepts. And from that point on, the new
Reagan administration could present proof that... the battle for El
Salvador and the battle for Nicaragua were one and the same.” (At
p. 75.)

As to whether the flow of arms stopped in 1981, Dickey concludes that in
1982 : “In fact arms to the Salvadorans . . . had not stopped. They had
increased.” (Ibid. p. 133.)

L In 1979, Members of the Nicaraguan National Guard Escaped to

Honduras, from which they Harassed Nicaragua. Officers of the Argentine

Army Began Training these Counter-Revolutionaries in Late 1980 or Early in
1981 — and Continued to Do So until 1984 (Appendix, Paras. 189-190)

33. At the fall of President Somoza in July 1979, numbers of former
members of the Nicaraguan National Guard escaped to Honduras, from
which they mounted small-scale raids on Nicaragua. At a time which is not
precisely established, but apparently late in 1980 or early in 1981, Argen-
tine officers, dispatched by the then military Government of Argentina,
began to train these counter-revolutionaries — contras — in Honduras and
in Argentina. These Argentine officers were not withdrawn until early
1984, months after the fall of the military Government of Argentina. Thus
the first State to intervene against the Nicaraguan Government was not the
United States but Argentina (apparently with the support of the Govern-
ment of Honduras). It is not clear whether the initial Argentine interven-
tion was carried out with United States support. It is clear that, when the
United States itself began to lend support to the contras (the very end of
1981 or early 1982), its agents co-operated with and apparently financed
those of Argentina. Training of the contras appears to have remained
largely in Argentine hands into early 1984.

J. In November 1981, after Nicaragua Had Failed to Accept Repeated
United States Requests to Cease its Material Support for Salvadoran
Insurgents, the United States Decided to Exert Military Pressure upon
Nicaragua in Order to Force it to Do what it Would not Agree to Do
(Appendix, Paras. 169-170, 173, 110, 121-122, 128-129)

34. In November 1981, eight months after the United States had ter-
minated aid to Nicaragua, and three months after Nicaragua had failed to
respond positively to a clear, high-level, urgent United States demand (by
the Enders mission) to put an end to its material support for the Salva-

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doran insurgency in return for the resumption of United States aid and
other inducements, the United States decided to exert military pressure
upon Nicaragua in order to force it to do what it would not agree to do. The
exertion of that pressure was welcomed by the Government of El Salvador,
to which the United States by then was rendering large-scale material
assistance to fend off rebel attacks and sustain a wounded economy. El
Salvador made it clear that it regarded, and continues to regard, United
States pressure upon Nicaragua as action in legitimate defence against
Nicaraguan aggression and intervention against it.

K. The Object of United States Support of the Contras Was Claimed by the

United States to Be Interdiction of Traffic in Arms to El Salvador, though

Clearly that Was not the Purpose of the Contras (Appendix, Paras. 156-173,
and the Court’s Judgment)

35. The object of the United States programme was said to be inter-
diction of the traffic in arms and termination of the other material support
rendered by Nicaragua to the Salvadoran rebels. That this was the object of
United States policy at that initial stage (at least if interdiction is under-
stood to mean cessation) is supported not only by the thrust of the Enders
mission of 1981 but by the fact that, in 1982, the United States offered to
cease support of the contras if Nicaragua would cease supporting rebellion
in El Salvador. Nicaragua refused, and fundamentally prejudiced United
States official opinion against it by continuing to deny — in the teeth of the
facts — that it was assisting the Salvadoran rebellion. However, the contras,
whose forces quickly grew to embrace disillusioned Sandinistas and dis-
content as well as dragooned campesinos, clearly had another objective,
namely, overthrow of Sandinista authority.

L. By October 1983, in Apparent Response to United States Pressures,

Nicaragua Proposed Four Treaties which Were Interpreted as an Offer to

Cease Supporting Rebellion in El Salvador if the United States Would Cease

Support of the Contras and of the Government of El Salvador (Appendix,
Paras. 174-178)

36. By October 1983, in apparent response to United States pressures,
Nicaragua came forward with four draft treaties which were widely inter-
preted as an offer to cease support of rebellion in El Salvador in return not
only for United States termination of support for the contras but support
for the Government of El Salvador as well. The United States refused.

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M. In 1983, the United States Called upon Nicaragua to Cut Back its Arms

Build-up, to Sever its Ties with the USSR and Cuba, and to Carry out its

Pledges to the OAS and its Members for a Democratic Society (Appendix,
Paras. 194-198)

37. Immediately upon taking power, and well before there was any
military threat to Nicaragua, the Sandinistas began a military build-up
unprecedented in Central America. Very large numbers of military ad-
visers from Cuba, and much lesser but not insubstantial numbers from the
USSR and other States of Eastern Europe, as well as Libya and the PLO,
quickly established themselves in Nicaragua, and Cuban and other foreign
Communist functionaries were placed in influential positions in Nicara-
guan Government ministries. The substantial elements of Nicaraguan
society which had opposed the Somoza régime and joined in initial support
of the Junta of the Government of National Reconstruction were forced
out, and elections, which the Sandinistas characterized as a “bourgeois . . .
nuisance”, were postponed until late 1984. By 1983, the United States no
longer only demanded cessation of Nicaraguan support of subversion of its
neighbours and for Nicaragua to “look inwards”. It called as well upon
Nicaragua to cut back its arms build-up, to sever its ties to Cuba and the
USSR, and tocarry out its pledges to the OAS and its Members to establish
a pluralistic and democratic society in which the government would be
freely elected by the whole of the voting population, including the oppo-
sition forces represented by the contras and their political allies (who grew
to include some of the leading democratic figures of Nicaragua).

N. By the Beginning of 1984, the United States Undertook Direct if Covert
Military Action against Nicaragua, Assaulting Oil Facilities and Mining
Nicaraguan Ports (Appendix, Para. 199, and the Court’s Judgment)

38. By the beginning of 1984. in order to increase pressure upon Nica-
ragua, the United States launched direct if covert military action against
Nicaragua. Latin American commandos in the service of the CIA carried
out assaults on Nicaraguan oil storage tanks and pipelines, and port
facilities, and United States agents mined Nicaraguan ports and waters.
While mining and other direct armed actions of the United States against
Nicaragua ceased by the time of the Court’s indication of provisional
measures in May 1984, United States support of the contras has been
maintained, though subjected since mid-1984 to Congressionally-imposed
interruption and limitation. Military training of contra forces by United
States advisers apparently has ceased, and aid has been limited to so-called
“humanitarian” (non-lethal) forms.

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O. Particularly Since January 1985, the United States Has Spoken in Terms

which Can Be Interpreted as Requiring Comprehensive Change in the Policies

of, or, Alternatively, Overthrow of, the Nicaraguan Government as a

Condition of Cessation of its Support of the Contras (Appendix, Paras.
200-205)

39. Particularly since January 1985, when it withdrew from participa-
tion in the case before the Court, the United States has spoken in terms
which can be interpreted as requiring substantial change in the policies and
composition of, or, alternatively, overthrow of, the Nicaraguan Govern-
ment as a condition of its cessation of support for the contras. The view of
the United States appears to be that, if Sandinista authority is not diluted
by processes leading to a sharing of power with the opposition, the Nica-
raguan Government cannot be trusted to carry out any assurances it might
give to stop subverting its neighbours. The United States has pressed for
negotiations between the Nicaraguan Government and the contras, which
the Nicaraguan Government has refused.

P. There Is Evidence of the Commission of Atrocities by the Contras, by

Nicaraguan Government Forces, and by Salvadoran Insurgents, and of

Advocacy by the CIA of Actions Contrary to the Law of War (Appendix,
Paras. 206-224)

40. There is evidence of the commission of atrocities in Nicaragua by
the contras and, to some extent, by Nicaraguan Government forces and
agents. The CIA prepared and caused publication of a manual which
advocates actions by the contras in violation of the law of war. In El
Salvador, atrocities have been committed by the insurgents supported by
Nicaragua and by right-wing death squads.

Q. The Contadora Process Designed to Re-establish Peace in Central
America Embraces the Democratic Performance Internally of the Five
Central American Governments (Appendix, Paras. 225-227)

41. The Latin American States of the Contadora Group have made,
since January 1983, a sustained and intricate effort to re-establish peaceful
and co-operative relations among Nicaragua, El Salvador, Honduras,
Costa Rica and Guatemala. This effort is concerned not solely with issues
of support of irregulars, arms trafficking, military manoeuvres, foreign
bases, foreign military advisers, the levels of armed forces, and external
economic pressures. It is also concerned with the democratic performance
internally of the five Central American Governments. The Contadora
process, in which Nicaragua participates, assumes that certain political
processes of the Central American States in dispute are matters of inter-
national concern, and the Contadora proposals reflect that concern.

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IV. THE Law

A. Introduction

42. This case admits of more than one appreciation of the law on many
points, as the Court’s Judgment, and the several opinions of judges
including this dissenting opinion, demonstrate. I shall initially treat certain
preliminary and procedural questions, namely, admissibility and justicia-
bility ; outstanding questions of jurisdiction as they arise under the mul-
tilateral treaty (Vandenberg) reservation to the United States acceptance
of the Optional Clause and under the bilateral Treaty of Friendship,
Commerce and Navigation ; questions pertaining to the absence of a party
to a case and of a State seeking to intervene ; and last, matters of evidence.
Then I shall turn to the multiple legal questions of the merits, above all,
whether Nicaraguan material support of the overthrow of the Government
of El Salvador is tantamount to an armed attack upon El Salvador against
which the United States has justifiably joined El Salvador in reacting in
collective self-defence.

B. Questions of Admissibility and of Justiciability
1. Political questions

43. In its Judgment of 26 November 1984, the Court declined to accede
to arguments advanced by the United States purporting to demonstrate
that the instant case is inadmissible (1. C.J. Reports 1984, pp. 429-441). In
my dissent to the Court’s Judgment, I stated :

“While I do not agree with all of the Court’s holdings on admis-
sibility, at the present stage I do not find the contentions of the United
States concerning the inadmissibility of the case to be convincing.
Accordingly, I have joined the Court in voting that the Application is
admissible . . . without prejudice to any questions of admissibility
which may arise at the stage of the merits of the case.” (Jbid,
p. 562.)

44. That stage having been reached, it is right that I amplify my views. I
may summarize them by saying that I remain largely unconvinced about
the merit of United States contentions on admissibility. However, in view
of the facts of the case as they have been developed during the argument of
the merits, I have concluded that the better view is that one, critical element
of the case is not justiciable.

45. Icannot subscribe to the contention — which the United States does
not advance — that the use by a State of force in self-defence, or alleged
self-defence, is a “political” and hence non-justiciable question. That

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contention is unpersuasive, both in customary international law and under
the law of the United Nations Charter.

46. Article 51 of the Charter prescribes that: “Nothing in the
present Charter shall impair the inherent right of individual or collec-
tive self-defence if an armed attack occurs against a Member of the United
Nations...” But that provision cannot reasonably be interpreted to mean
that only the State exercising a claimed right of self-defence is the judge of
the legality of its actions. The Charter expressly authorizes the Security
Council to “determine the existence of any threat to the peace, breach of
the peace, or act of aggression .. .”. Clearly the Security Council is entitled
to adjudge the legality of a State’s resort to self-defence and to decide
whether such recourse is legitimate or, on the contrary, an act of aggres-
sion. The United States fully recognizes that, and indeed does not argue
that the use of force by States in self-defence is a political act unsubjected
to legal appraisal by others. It rather argues that the collective responsi-
bility for making such judgments is accorded primarily to the Security
Council, and secondarily and less definitively to the General Assembly and
regional organizations acting in accordance with the Security Council’s
authorization, but is not an authority entrusted to the Court.

47. Nevertheless, it has been and still is argued by distinguished inter-
national lawyers that the use of force in self-defence is a political question
which no court, including the International Court of Justice, should
adjudge. Analogies have been drawn to exercise of judicial discretion by
national courts which decline to pass upon certain questions — such as the
legality of the State’s use of its armed forces internationally — on the
ground that they are political questions entrusted to other branches of
government, and it is urged that the International Court of Justice is bound
to exercise, or should exercise, a like discretion.

48. Thus two distinct questions are raised by these contentions. One is
whether a State’s use of force in self-defence, or alleged self-defence. is, as a
political question, inherently non-justiciable. The other is whether. if a
State’s use of force in self-defence is subject to legal judgment, the capacity
to make that judgment has been entrusted to the Security Council and
withheld from the Court.

49. The theoretical foundations of the first contention were subjected to
searching scrutiny in the work by Hersch Lauterpacht which has never
been surpassed in its fundamental field: The Function of Law in the
International Community (1933). Lauterpacht recognized that :

“It is of the essence of the legal conception of self-defence that
recourse to it must, in the first instance, be a matter for the judgement

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of the State concerned. For if recourse to it were conditioned by a
previous authorization of a law-administering agency, then it would
no longer be self-defence ; it would be execution of a legal decision.”
(Op. cit., p. 179.)

However, Lauterpacht pointed out, the doctrine that the legitimacy of the
exercise of the right of self-defence :

“is incapable of judicial determination . . . cannot be admitted as
juridically sound. If the conception of self-defence is a legal concep-
tion... then any action undertaken under it must be capable of legal
appreciation... The right of self-defence is a general principle of law,
and as such it is necessarily recognized to its full extent in interna-
tional law. But it is not a right fundamentally different from the
corresponding right possessed by individuals under municipal law. In
both cases it is an absolute right, inasmuch as no law can disregard it ;
in both cases it is a relative right, inasmuch as it is recognized and
regulated by law. It is recognized to the extent — but no more — that
recourse to it is not in itself illegal. It is regulated to the extent that it is
the business of the Courts to determine whether, how far, and for how
long, there was a necessity to have recourse to it. There is not the
slightest relation between the content of the right to self-defence and
the claim that it is above the law and not amenable to evaluation by
law. Such a claim is self-contradictory, inasmuch as it purports to be
based on legal right, and as, at the same time, it dissociates itself from
regulation and evaluation by the law. Like any other dispute involving
important issues, so also the question of the right of recourse to war in
self-defence is in itself capable of judicial decision, and it is only the
determination of States not to have questions of this nature decided
by a foreign tribunal which may make it non-justiciable.” (/bid.,
pp. 179-180.)

50. At the Nuremberg Trials in which Lauterpacht played such a semi-
nal role — both in the conception and composition of the Tribunal’s
material jurisdiction and in the arguments advanced before it by the
distinguished counsel of the United Kingdom — Lauterpacht, while suf-
fering the marshalling of the evidence of organized bestialities of unspeak-
able horror, nevertheless had the privilege of seeing an historic court place
its jural imprimatur on the analysis which he had so cogently made :

“It was further argued that Germany alone could decide, in accor-
dance with the reservations made by many of the Signatory Powers at
the time of the conclusion of the Briand-Kellogg Pact, whether pre-
ventive action was a necessity, and that in making her decision her
judgment was conclusive. But whether action taken under the claim of

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self-defence was in fact aggressive or defensive must ultimately be
subject to investigation and adjudication if international law is ever to
be enforced.” (Judgment of the International Military Tribunal for
the Trial of German Major War Criminals, Nuremberg, 1946, His
Majesty’s Stationery Office, Cmd. 6964, p. 30.)

2. The Court’s capacity to pass upon continuing uses of force

51. As to the second contention, namely, that judgment of the legality of
a State’s resort to self-defence is essentially entrusted to the Security
Council and exceptionally withheld from the Court, it is both theoretically
tenable and politically plausible. There is no inherent reason why States
could not have reconstructed a contemporary international organization,
of which the Court is a principal organ, so as to have placed that judgmental
authority only in the hands of the Security Council, or of it and other
political organs such as the General Assembly and regional organizations
acting under the authority of the Security Council. The question which a
judge of the Court must decide is whether the authors of the Charter of the
United Nations and the Statute of the Court did so.

52. At the stage of the case dealing with jurisdiction and admissibility,
the United States advanced an acute analysis in support of the position
that, by the terms and intent of the Charter, the design was to leave the
judgment of aggression entirely to the Security Council. The United States
pointed out that the essence of Nicaragua’s Application to the Court is the
assertion that there is currently taking place an unlawful use of force by the
United States against Nicaragua’s territorial integrity and political inde-
pendence. Nicaragua itself unsuccessfully had sought to obtain in the
Security Council days before its resort to the Court a determination that
these alleged actions of the United States constituted aggression against it.
(Nicaragua’s communication to the Security Council of 29 March 1984
called upon it to consider “the escalation of acts of aggression currently
being perpetrated against” Nicaragua (S/16449). The acts complained of
in the Security Council by Nicaragua — which it denominated “further acts
of aggression” (S/PV.2525, pp. 6, 16, 18, 23, 63, 68-70, and S/PV.2529,
pp. 95-96) — were the very acts of which Nicaragua’s Application in the
case before the Court complains. That Application itself acknowledges
that Nicaragua has called the attention of the Security Council and the
General Assembly “to these activities of the United States, in their
character as threats to or breaches of the peace, and acts of aggression”
(para. 12).) The United States observed that the fact that the Security
Council had not granted relief to Nicaragua in the terms in which Nica-
ragua sought it was of no matter ; the Court has neither the competence to
reverse decisions of the Security Council nor the power to engage in
functions expressly allocated to the Council.

53. The United States maintained that a complaint of “an ongoing use
of unlawful armed force, was never intended by the drafters of the Charter

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of the United Nations to be encompassed by Article 36 (2) of the Statute of
the Court”. (Hearing of 16 October 1984, morning). It argued that, while
Article 24 of the Charter confers only “primary” responsibility for the
maintenance of international peace and security on the Security Council,
complementary responsibilities were conferred on the General Assembly
and regional organizations — but not upon the Court. The Court has an
express, clearly defined role under Chapter VI of the Charter with respect
to the pacific settlement of international disputes. But when the case rather
involves “action with respect to threats to the peace, breaches of the peace,
and acts of aggression” under Chapter VII of the Charter, not a word of the
Charter or the Statute suggests a role for the Court. On the contrary, as the
records of the San Francisco Conference declare, it was decided “to leave
to the Council the entire decision, and also the entire responsibility for that
decision, as to what constitutes a threat to the peace, a breach of the peace,
or an act of aggression” (United Nations Conference on International
Organization, Vol. 11, p. 17). It was the understanding of the United States
in ratifying the Charter and Statute that the Statute does not “permit the
Court to interfere with the functions of the Security Council or the General
Assembly”. (Report of the Committee on Foreign Relations, “The Charter of
the United Nations”, 79th Congress, Ist Session, 1945, p. 14.)

54. The United States recognized that Article 12, paragraph 1, of the
Charter provides that, while the Security Council is exercising the func-
tions assigned to it in respect of a particular dispute, the General Assembly
shall not make any recommendation upon it, whereas the Court is not
subject to any such express debarral; but it argued that that is
because :

“the framers of the Charter intended that, among the organs of the
United Nations, only the General Assembly would have a role sup-
plementary to that of the Security Council in the maintenance of
international peace and security. It simply was never considered at the
San Francisco Conference that the Court would, or should, have the
competence to engage in such matters.” (Hearing of 16 October 1984,
afternoon.)

55. As to earlier cases involving the use of armed force in which there
had been resort to the Court, such as the Corfu Channel and Aerial Incident
cases, the United States pointed out that, in all those cases, the action
complained of had already taken place.

“In each case, the Court was called upon to adjudicate the rights
and duties of the Parties with respect to a matter that was fully in the
past, that was not ongoing, that was not merely one element of a
continuing stream of actions.” (Ibid.}

56. Despite the force of these arguments and of passages in the records
of the San Francisco Conference in support of them on which the United

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States relies, I find myself unable to agree that it was the design of the
drafters of the Charter and the Statute to exclude the Court from adju-
dicating disputes falling within the scope of Chapter VII of the United
Nations Charter, and unable to agree that the practice of States in inter-
preting the Charter and the Statute confirms such a design.

57. It may well be, as counsel of the United States argued, that, “It was
simply never considered at the San Francisco Conference that the Court
would, or should, have the competence to engage in such matters”. It may
well be that, had that question been squarely and searchingly engaged,
there would have been a decision to exclude from the competence of the
Court the authority to give judgment on matters which were before the
Security Council under Chapter VII, or which involved the continuing use
of armed force in international relations. Certainly the argument is plau-
sible that no Power enjoying the veto right in the Security Council con-
templated that, whereas the exercise of that right could block adoption of
any charge of aggression against it in the Security Council, it held itself
open to a judgment of the Court branding it as the aggressor in the very
same case and on the very same facts in respect of which it had so exercised
its Security Council veto.

58. But while that argument is perfectly plausible, it is, in my view,
insufficient. It is insufficient because nowhere in the text of the Statute of
the Court is there any indication that disputes involving the continuing use
of armed force are excluded from its jurisdiction. On the contrary, Article
36 of the Statute is cast in comprehensive terms. Article 36, paragraph 1.
provides that the jurisdiction of the Court “comprises all cases” which the
parties refer to it and “all matters specially provided for in the Charter of
the United Nations or in treaties and conventions in force”. Article 36,
paragraph 2, provides that States may recognize the jurisdiction of the
Court “in all legal disputes” concerning :

“{a) the interpretation of a treaty ;
(b) any question of international law ;
(c) the existence of any fact which, if established, would constitute a
breach of an international obligation ;
(d) the nature or extent of the reparation to be made for the breach of
an international obligation.”

These capacious terms do not exclude disputes over the continuing use of
force from the Court’s jurisdiction. To be sure, a State recognizing the
jurisdiction of the Court under Article 36, paragraph 2, could exclude
disputes involving the use of armed force, and some States have. The
United States was not among them. (Nevertheless, whether the term “all
legal disputes”, as used in the United States adherence to the Optional
Clause, was meant to embrace disputes involving the use of force may be
open to question, for reasons which Judge Oda’s opinion in this case sets
forth.)

59. Now if one turns to the text of the Charter, of which the Court’s

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Statute is an integral part, the picture is not so clear. There is support for
the United States contentions, in the Charter’s structure and terms and its
travaux préparatoires. But the support is ambivalent, as the contrasting
interpretations currently placed by the United States and the Court on the
implications of Article 12, paragraph 1, of the Charter illustrate. | am not
disposed to conclude that so far-reaching a restriction on the competence
of the Court can be held to be implied by such ambiguous indications.

60. Moreover, while the Security Council is invested by the Charter with
the authority to determine the existence of an act of aggression, it does not
act as a court in making such a determination. It may arrive at a deter-
mination of aggression — or, as more often is the case, fail to arrive at a
determination of aggression — for political rather than legal reasons.
However compelling the facts which could give rise to a determination of
aggression, the Security Council acts within its rights when it decides that
to make such a determination will set back the cause of peace rather than
advance it. In short, the Security Council is a political organ which acts for
political reasons. It may take legal considerations into account but, unlike
a court, it is not bound to apply them.

3. United States Diplomatic and Consular Staff in Tehran case

61. These conclusions are confirmed by the arguments which the Uni-
ted States itself advanced in the United States Diplomatic and Consular
Staff in Tehran case. It should be recalled that, promptly after the seizure of
the hostages in Iran, the United States sought the assistance of the Security
Council in freeing them. By letter of 9 November 1979, the United States
requested the Security Council urgently to consider what might be done to
secure the release of the hostages. On 25 November 1979, the Secretary-
General of the United Nations, in exercise of his exceptional authority
under Article 99 of the United Nations Charter to bring to the attention of
the Security Council any matter which in his opinion may threaten inter-
national peace and security, requested that the Security Council be ur-
gently convened in an effort to seek a peaceful solution to the hostage
crisis. In his address to the Council on 27 November 1979, the Secretary-
General declared that the situation in Iran “threatens the peace and
security of the region and could well have very grave consequences for the
entire world” (S/PV.2172). On 29 November 1979, the United States filed
an Application in the International Court of Justice instituting proceed-
ings against Iran. On 4 December 1979, the Security Council unanimously
adopted a resolution calling upon the Government of Iran to release the
detained personnel immediately. When hearings before the Court on the
concurrent request of the United States for the indication of provisional
measures took place on 10 December, the President of the Court concluded
his statement opening the hearings by addressing to the Agent of the
United States the following question: “What significance should be
attached by the Court, for the purpose of the present proceedings, to

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resolution 457 adopted by the Security Council on 4 December 1979 ?”
(C.J. Pleadings, United States Diplomatic and Consular Staff in Tehran,
p. 19.)

62. The answer to that question of the then Legal Adviser of the
Department of State, Roberts Owen, is illuminating :

“At this point, in response to a question raised by the President of
the Court, I should make one final comment on the Court’s jurisdic-
tion. As the Court is aware, the Security Council of the United
Nations has addressed the present dispute, and in resolution No. 457,
adopted six days ago, the Council calied upon the Government of Iran
to bring about the immediate release of the hostages. In such circum-
stances it might conceivably be suggested that this Court should not
exercise jurisdiction over the same dispute.

I respectfully submit that any such suggestion would be untenable.
It is, of course, an impressive fact that the 15 countries represented in
the Security Council — 15 countries of very diverse views and phi-
losophies — have voted unanimously — 15 to nothing — in favour of
the resolution to which I have referred. The fact remains, however,
that the Security Council is a political organ which has responsibility
for seeking solutions to international problems through political
means. By contrast, this Court is a judicial body with the responsi-
bility to employ judicial methods in order to resolve those problems
which lie within its jurisdiction. There is absolutely nothing in the
United Nations Charter or in this Court’s Statute to suggest that
action by the Security Council excludes action by the Court, even if
the two actions might in some respects be parallel. By contrast,
Article 12 of the United Nations Charter provides that, while the
Security Council is exercising its functions respecting a dispute, the
General Assembly shall not make any recommendation on that dis-
pute — but the Charter places no corresponding restriction on the
Court. As Rosenne has observed at page 87 of his treatise, The Law
and Practice of the International Court of Justice, the fact that one of
the political organs of the United Nations is dealing with a particular
dispute does not militate against the Court’s taking action on those
aspects of the same dispute which fall within its jurisdiction.

To sum up on this point, the United States has brought to the Court
a dispute which plainly falls within the Court’s compulsory jurisdic-
tion, and I respectfully submit that. if we can satisfy the Court that an
indication of provisional measures is justified and needed in a manner
consistent with Article 41 of the Court’s Statute. the Court will have a
duty to indicate such measures, quite without regard to any parallel
action which may have been taken by the Security Council of the
United Nations.” (/bid., pp. 28-29. See also pp. 33-34.)

63. At the request of the United States, the Security Council met again
in late December, after it had become clear that Iran had no intention of

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complying with the Court’s indication of provisional measures of 15 De-
cember 1979 which principally called for the immediate release of the
hostages. On 31 December 1979, the Council adopted a resolution which
recorded its concern over the situation “which could have grave conse-
quences for international peace and security”, recalled the view of the
Secretary-General that the present crisis between Iran and the United
States “poses a serious threat to international peace and security”, ex-
pressly took into account the terms of the Court’s Order of 15 December
1979, recalled the terms of Article 2, paragraphs 3 and 4, of the Charter,
deplored the detention of the hostages contrary to the Court’s Order,
urgently called on Iran immediately to release the hostages, and decided to
meet on 7 January 1980 “in order to review the situation and, in the event
of non-compliance with this resolution, to adopt effective measures under
Articles 39 and 41 of the Charter of the United Nations”.

64. Thus, in a case then actively being pursued before the Court, the
Security Council found it perfectly proper to take, and to contemplate
taking further, action under Chapter VII of the Charter. In the event, such
further action was blocked by the exercise of the power of the veto.
Nevertheless, I do not believe that this history of concurrent action of the
Security Council and the Court, initiated in both forums by the United
States, on a question which was seen to fall under Chapter VII of the
Charter, can be reconciled with the contention of the United States in the
current case that the jurisdiction of the Court cannot comprehend a case
involving the continuing use of armed force because the Charter allots the
entire responsibility of such cases to the Organization’s political organs. As
the Court held in its Judgment of 24 May 1980:

“it does not seem to have occurred to any member of the Council that
there was or could be anything irregular in the simultaneous exercise
of their respective functions by the Court and the Security Council.
Nor is there in this any cause for surprise.” (United States Diplomatic
and Consular Staff in Tehran, I.C.J. Reports 1980, pp. 21-22, para. 40.)

The Court then cited the terms of Article 12 of the Charter.

65. It is of course true that the United States Diplomatic and Consular
Staff in Tehran case did not involve a continuing use of force in interna-
tional relations of the kinds at issue in the current case. But it should be
recalled that the United States treated its aborted rescue mission of the
hostages as “in exercise of its inherent right of self-defence with the aim of
extricating American nationals who have been and remain the victims of
the Iranian armed attack on our Embassy”, and reported that exercise to
the Security Council “Pursuant to Article 51 of the Charter of the United
Nations” (.C.J. Pleadings, United States Diplomatic and Consular Staff in
Tehran, p. 486). That was, in my view, a sound legal evaluation of the
rescue attempt ; there had been an armed attack upon the United States
Embassy, and American hostages were being held by force of arms in

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conditions which the United States reasonably viewed as dangerous. In its
Judgment of 24 May 1980, the Court itself, while not adjudging the legality
of the rescue mission, spoke of “the armed attack on the United States
Embassy by militants on 4 November 1979” (Z.CJ. Reports 1980, p. 29).
The situation was not, at the time of the Court’s Judgment, one which, like
the Corfu Channel case, was wholly in the past ; the use of force against the
hostages was continuing, and the threat to the peace — the Chapter VII
situation — to which their detention gave rise was continuing.

66. But, while I believe that the United States Diplomatic and Consular
Staff in Tehran case demonstrates that the Court can adjudge the legal
aspects of a case the subject-matter of which at the same time is under the
active consideration of the Security Council under Chapter VII of the
Charter, there is a critical distinction between the factual complexities of
the United States Diplomatic and Consular Staff in Tehran case and the case
now before the Court.

67. In the former case, there was no consequential dispute about the
essential facts surrounding the seizure and detention of the hostages. They
were proclaimed by Iran as they were condemned by the United States and
the international community. Essentially uncontested, they were demon-
strated by quantities of unchallenged data filed by the United States with
the Court.

68. In the instant case, the situation is very different. The factual con-
tentions of the Parties vitally differ. It is true that some allegations of
Nicaragua against the United States are sustained by official admissions of
the United States. But the allegations of the United States against Nica-
ragua are vehemently denied by Nicaragua — even if, as is shown in the
appendix to this opinion, Nicaragua’s denials are contradicted by its
admissions and other evidence. The essential truth of United States
charges against Nicaragua has been demonstrated in so far as the facts
show that it was Nicaragua which initiated armed subversion of the Gov-
ernment of El Salvador before the United States took responsive action in
support of El Salvador against Nicaragua, and further show that Nicara-
gua has maintained its material support for the violent overthrow of the
Government of El Salvador. Nevertheless, a critical question is left in a
measure of uncertainty.

4. The incapacity of the Court to judge the necessity of continuing use of force
in the circumstances of this case

69. For the United States response to Nicaragua’s aggressive behaviour
to be lawful, that response must be necessary. Is the Court in a position to
adjudge the necessity of continued United States recourse to measures of

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collective self-defence ? I doubt that it is, essentially because such a judg-
ment of necessity requires the Court to pass upon whether or not the
United States acts reasonably in refusing the belated professions of the
Nicaraguan Government’s willingness to refrain from undermining the
governments of its neighbours if the United States will cease undermining
it. Such a judgment, involving as it does an appraisal of the motives and
good faith of Nicaragua and the United States, is exceedingly difficult for
this Court now to make.

70. One may say that the United States was justified, on grounds of
necessity, in exerting pressure upon Nicaragua from the end of 1981 until
at least mid-1983, when it appears that Nicaragua was prepared to affirm
that it would not support rebellion in El Salvador (notably but not exclu-
sively, by its proposal of the four treaties described in the appendix,
paras. 174-178), in return for United States cessation of its support for the
contras and for the Government of El Salvador. Nicaragua’s acceptance of
the Contadora Group’s Document of Objectives of 9 September 1983 may
be read as embodying a similar affirmation by it. But, if these apparent
facts are true, can this Court really judge, by legal criteria, whether the
United States was right or wrong to reject this belated approach of Nica-
ragua ? If the prior unlawful and prevaricating behaviour of Nicaragua
had convinced the United States that Nicaragua’s change of tune or tactics
could not be trusted, can the United States be blamed for rejecting Nica-
ragua’s four treaties and like subsequent Nicaraguan professions, made
bilaterally and in the Contadora context, in the apprehension that, once
the contras were abandoned or disbanded, and in its own good time,
Nicaragua would resume its armed subversion of its neighbours ? After all,
the Nicaraguan Government has affirmed (in an address of one of the nine
governing comandantes) that its policy of “interventionism” — this is the
word Commander Bayardo Arce chose — “cannot cease”. (“Commander
Bayardo Arce’s Secret Speech before the Nicaraguan Socialist Party
(PSN)”, Department of State Publication 9422, 1985, p. 4.)

71. This is a reasonable question, but I doubt that it is a justiciable
question. I say this not because of what the United States has characterized
as the “ongoing” character of the case and the “fluid” nature of its
changing facts. The Statute of the Court rightly contemplates that the
Court may deal with cases of an “ongoing” nature; if it did not, the
provisions of the Statute for the indication of “any provisional measures
which ought to be taken to preserve the respective rights of either party”
would not make sense. Nor do I believe that the answer to the question is
beyond the Court’s capacity because, or essentially because, of the unwill-
ingness of the United States to take part in the proceedings of the Court on
the merits of the case. It would be difficult for the Court to establish the
true motives, and the reasonableness, of the policy of a Party on a question
such as this, even if it were present in Court. The Court is not in a position

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to subpoena the files of the Central Intelligence Agency and the White
House — or the files of the Nicaraguan Government, not to speak of the
files of the Government of Cuba and of other supporters of the subversion
of El Salvador. It is one thing for the Nuremberg Tribunal “ultimately” (to
use its term) to have arrived at a judgment of necessity after the fact and
having before it as part of the evidence offered by the prosecution the
captured files of the defendant. It is another for this Court to reach a
confident judgment on the policies — and motives — of the States imme-
diately concerned, the more so when not only is one Party absent and, in
any event, unwilling, for security reasons, to reveal information it treats as
secret, but when other States inextricably concerned also are not in Court,
and apparently no more willing. The difficulties of the Court adjudicating
the validity of a plea of collective self-defence in the absence not only of the
United States, a Party to the case, but in the absence of others of the
“collective”, namely El Salvador and Honduras, which are not parties to
the case, are considerable. Nor, as shown below, can El Salvador be blamed
for not intervening at the stage of the merits ; contrary to Nicaragua’s
contention, inferences against the allegations El Salvador makes cannot be
drawn by its failure to appear in Court to sustain those allegations.

72. As for the Government of Nicaragua, whose Congress is not con-
trolled by the opposition, which has no need to adopt an Intelligence
Authorization Act, which is not subject to the oversight of a Select Com-
mittee on Intelligence or the revelations of an uncensored press, whose
ministries act with the assistance of advisers from authoritarian régimes,
whose ideology is not liberal, and whose Ministers misrepresent the facts
before this Court, the difficulties of arriving at the truth in respect of its
actions and, a fortiori, its motives, are compounded.

73. Moreover, if a fuller finding of the facts might arguably have put the
Court in a better position to pass upon the question of the necessity of
United States action in alleged self-defence, the Court has not troubled to
find those facts, as pointed out below. The fact is that, if its fact-finding
powers could, if used, perhaps have enabled the Court to make a more
informed judgment of the necessity or lack of necessity of United States
actions in collective self-defence, the Court has refrained from exercising
those powers.

74. In view of all these considerations, the Court would have done well
to have prudentially held that a core issue of this case — whether the United
States plea of self-defence is justified — is not now justiciable. However, the
Court has decided to reach a judgment on this question on the basis of such
facts as have come to light, as it has found those facts.

75. In my view, the finding of facts by the Court is not only inadequate

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because of the singular character of the case and, perhaps, because it has
failed to exert its fact-finding powers ; the Court, partially because of its
misapplication of the rules of evidence which it has articulated for this
case, has even failed adequately to recognize and appraise the facts which
do appear in the record of the proceedings and in this dissenting opinion,
including the fact of the purposeful prevarication of the Nicaraguan
Government. It has also failed to draw the correct legal conclusions from
those facts which it gives some sign of recognizing, as by failing to apply
against Nicaragua that fundamental general principle of law so graphically
phrased in the term, “clean hands”.

76. In these circumstances, in which I do not share the view of the Court
that the question of the necessity of United States actions is now justici-
able, I feel bound to express a judgment — as has the Court — on the basis
of the facts which are before the Court and in the public domain, inade-
quate as they may be. For reasons which are set out in subsequent para-
graphs of this opinion, my conclusion is that the United States has acted
and does act reasonably — at any rate, not unreasonably — in deciding that
its continuing exertion of armed and other pressures upon Nicaragua is
necessary to constrain Nicaragua’s continuing exertion of armed and other
pressures upon El Salvador. If United States action is necessary, then, as a
matter of law, it is proper.

77. That is not to say that — as pointed out in paragraph 5 of this
opinion — I approve or disapprove of the policies which the United States
is pursuing vis-a-vis Nicaragua, El Salvador or other Central American
countries. My conclusion simply is that, as a matter of international law,
the United States acts legally in exerting armed and other pressures upon
Nicaragua with the object of inducing it to desist definitively from its
armed subversion of the Government of El Salvador and of other of its
neighbours.

C. The Relevance and Effect of the “Multilateral Treaty”
Reservation

1. The Court was and is bound to apply the reservation

78. In my view, one of the several unfounded elements of the Court’s
decision on jurisdiction was its treatment of the “multilateral treaty”
(Vandenberg) reservation of the United States to the compulsory jurisdic-
tion of the Court, which withholds from the Court’s jurisdiction

“disputes arising under a multilateral treaty, unless (1) all the 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”.

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For the reasons set out in my dissent, I remain convinced that the
Court evaded application of that reservation (see Z.CJ. Reports 1984,
pp. 602-613).

79. The Court’s failure to give the multilateral treaty reservation effect
at the stage at which it was intended to have effect — in the jurisdictional
phase — has had regrettable results. The United States cited that failure as
a reason for withdrawing from the case. It also cited that failure as a reason
for withdrawing from the Court’s compulsory jurisdiction. In testimony
before the Senate Foreign Relations Committee on 4 December 1985,
the Legal Adviser of the State Department, Judge Abraham D. Sofaer,
declared :

“We carefully considered modifying our 1946 declaration as an
alternative to its termination, but we concluded that modification
would not meet our concerns. No limiting language that we could
draft would prevent the Court from asserting jurisdiction if it wanted
to take a particular case, as the Court’s treatment of our multilateral
treaty reservation in the Nicaragua case demonstrates. That reserva-
tion excludes disputes arising under a multilateral treaty unless all
treaty partners affected by the Court’s decision are before the Court.
Despite Nicaragua’s own written and oral pleadings before the Court
— which expressly implicated El Salvador, Honduras, and Costa Rica
in the alleged violations of the UN and OAS [Organization of Ameri-
can States] Charters and prayed for a termination of U.S. assistance
to them — and statements received directly from those countries, a
majority of the Court refused to recognize that those countries would
be affected by its decision and refused to give effect to the reserva-
tion.” (“The United States and the World Court”, Department of
State Current Policy No. 769, p. 3.)

Not only has this argument carried the day in Washington ; there may be
reason to apprehend that other States which have made declarations under
the Optional Clause with reservations may withdraw their declarations
because of alike perception that the Court may not apply their reservations
should occasion for their application arise. One State already has with-
drawn its adherence, perhaps in this apprehension.

80. But while the Court avoided application of the multilateral treaty
reservation at the jurisdictional stage, it did join application of the reser-
vation to the merits in holding that “it is only when the general lines of the
judgment to be given become clear that the States ‘affected’ could be
identified” (1.C.J. Reports 1984, p. 425, para. 75). Thus, as the general lines
of today’s Judgment became clear, the Court decided whether any States
party to the four treaties relied upon by Nicaragua — most notably, the
United Nations Charter and OAS Charter — will be affected by the
Judgment. It has reached the conclusion that El Salvador will be affected —

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a correct conclusion, which, however, was no less plain at the jurisdictional
stage than it is today.

81. That, indeed, it was perfectly plain at the jurisdictional stage that El
Salvador (and Honduras and Costa Rica) would ineluctably be affected by
the Court’s Judgment, whatever its content, was, in my view, not only
demonstrable in 1984 but demonstrated (see Z.C.J. Reports 1984, pp. 604-
608). It is demonstrated anew by the Court’s endeavour in today’s Judg-
ment to explain why it is that it is apparent now that El Salvador will be
affected but was not in 1984. The Court maintains that, generally speaking,
if the relevant claim is rejected on the facts, a third party could not be
affected by the Court’s judgment. It continues :

“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.”

82. That explanation is patently unpersuasive. In the first place, it was
no less obvious in 1984 than it is today that the United States had used
force against Nicaragua. By 26 November 1984, such use of force against it
not only had been charged by Nicaragua ; by its legislation and otherwise,
the United States had officially and repeatedly acknowledged the use of
force and it was obvious to all the world. For the Court to suggest otherwise
is implausible in the extreme. In the second place, as 1 observed in
1984 :

“Nor is it persuasive to argue, as the Court does, that if it should
reject Nicaragua’s Application, there would be no third States that
could claim to be affected by the judgment in the case. That is like
saying that, if in a national court, citizen ‘A’ is indicted on charges of
terrorism involving the smuggling of narcotics and arms, and foreign-
ers ‘B’, ‘C’ and ‘D’, who are situated abroad, are named in the charges
as unindicted co-conspirators, and if the court finds citizen ‘A’ not
guilty, then foreigners *B’,‘C’ and ‘D’ are not affected by the judgment
— not affected legally, economically, morally or otherwise.”

83. The Court has rightly concluded in today’s Judgment that applica-
tion of the multilateral treaty reservation cannot be avoided on the ground
that the United States was not present in the proceedings on the merits so
as to raise that objection at the stage when the Court apparently held that it
could be raised. Since the Court itself had held that, when the general lines
of the judgment to be given have become clear, the States “affected” can be
identified, that implied that, at that stage, the Court would address the
issue. For its part, the United States had formally raised and fully argued
an objection based on the multilateral treaty reservation and had never

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withdrawn or waived that objection ; it remained before the Court, post-
poned by it to the merits. But, more than this, for the Court to have avoided
application of the reservation on the ground that the United States was not
here to press it would have conflicted with the letter and spirit of Article 53
of the Statute. By reason of that mandatory provision, the Court “must”,
before deciding upon the claim, “satisfy itself, not only that it has juris-
diction .. . but also that the claim is well founded in fact and law”. Having
put off a preliminary objection of a jurisdictional character on the ground
that it is not of an exclusively preliminary character, the Court remained
bound to examine that objection at the stage to which it had removed it,
whether or not the Party which raised the objection was present to argue it.
To have held the contrary would have deprived Article 53 of the Statute of
its effect. It would also have run counter to what the Court held in the
United States Diplomatic and Consular Staff in Tehran case in interpreta-
tion of Article 53 :

“33. It is to be regretted that the Iranian Government has not
appeared before the Court in order to put forward its arguments on
the questions of law and of fact which arise in the present case ; and
that, in consequence, the Court has not had the assistance it might
have derived from such arguments or from any evidence adduced in
support of them. Nevertheless, in accordance with its settled juris-
prudence, the Court, in applying Article 53 of its Statute, must first
take up, proprio motu, any preliminary question, whether of admissi-
bility or of jurisdiction, that appears from the information before it to
arise in the case and the decision of which might constitute a bar to
any further examination of the merits of the Applicant’s case.”
(United States Diplomatic and Consular Staff in Tehran, Judgment,
1 CJ. Reports 1980, p. 18.)

84. Nicaragua’s essential contention against application of the multi-
lateral treaty reservation at this stage is that the argument of the United
States that El Salvador, Honduras and Costa Rica will be affected by the
decision in this case has been vitiated by the United States admission that it
seeks overthrow of the Nicaraguan Government. Nicaragua contends that
overthrow is incompatible with self-defence ; hence the United States
argument “simply evaporates” (Memorial of Nicaragua, para. 355).

85. This simple argument is unduly simplistic. In the first place, it is by
no means established that the United States seeks the overthrow of the
Nicaraguan Government (appendix to this opinion, paras. 23-26, 157-159,
200-205). Second, if, arguendo, one assumes that the purpose of United
States military and paramilitary activities in and against Nicaragua is the
overthrow of its Government, it does not follow that that necessarily is
incompatible with, and constitutes an abandonment of, the argument of
self-defence. In some, indeed most, instances, overthrow of the aggressor

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government might be an unnecessary and disproportionate act of self-
defence, but in others it may be necessary and proportionate. It depends on
the facts (if they can be found).

86. The official position of the United States has been and remains that
it does not seek the overthrow of the Government of Nicaragua, and that
the pressures which it continues to exert upon that Government are lawful
measures of collective self-defence taken in support of El Salvador. Con-
trary to the contentions of Nicaragua before the Court, the United States
has abandoned neither of these positions. While Nicaragua maintains that,
with its withdrawal from the case, the United States no longer spoke of
collective self-defence as the legal justification for its exertion of pressures
upon Nicaragua, “Revolution Beyond Our Borders”, published by the
Department of State in September 1985, some nine months after the
announcement of United States withdrawal from the Court’s proceedings,
re-affirms that justification. As recently as 15 January 1986, Secretary of
State Shultz, in a public address entitled, “Low-Intensity Warfare : the
Challenge of Ambiguity”, maintained that the Nicaraguans :

“have committed aggression against their neighbors and provided
arms to terrorists like the M-19 group in Colombia, but cynically used
the International Court of Justice to accuse us of aggression because
we joined with El Salvador in its defense” (Department of State,
Current Policy No. 783, p. 1).

87. Since the multilateral treaty reservation is a reservation in force
which limits the extent of United States submission to the Court’s juris-
diction, the Court is bound to apply it and thus to revert to the question
which it postponed in its Judgment of 26 November 1984 : will El Sal-
vador, Honduras and Costa Rica, or any of them, be affected by the
Judgment of the Court in this phase of the case ?

88. It is plain that the Court’s Judgment, which holds in favour of
Nicaragua’s essential claims and against the essential defence of the Uni-
ted States, must affect El Salvador, Honduras and Costa Rica. They are
affected not only legally, but politically, militarily, economically and
morally (it will be observed that the multilateral treaty reservation does not
specify “legally affected”). The very pleadings of Nicaragua reinforce that
conclusion. As I pointed out in my dissent to the Judgment of 26 Novem-
ber 1984 :

“The very first numbered paragraph of its Application claims that
the United States has installed more than ‘10,000 mercenaries... in
more than ten base camps in Honduras along the border with Nica-
ragua...’... Nicaragua has also alleged that there are 2,000 United
States-supported ‘mercenaries’ operating against it from Costa
Rica... and that the Government of Costa Rica is acting in concert

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with the United States . .. Moreover, in the recent oral argument in
this phase of the proceedings, the Agent of Nicaragua alleged that, in
this dispute, ‘the United States has bases, radar stations, spy planes,
spy ships — the armies of El Salvador and Honduras at its service...’ ;
that is to say, Nicaragua has alleged that the United States acts in
concert with Honduras and El Salvador. It is accordingly plain that, if
the pleadings of Nicaragua are to be accepted for these purposes as
accurate, and if Nicaragua were in a decision of the Court to be
accorded the remedies which it seeks, Honduras, Costa Rica and El
Salvador necessarily would be ‘affected’ by the Court’s decision. Point
(g) of what Nicaragua in its Application . . . requests the Court to
adjudge and declare makes this particularly clear. Nicaragua requests
that the Court hold that the United States

‘is under a particular duty to cease and desist immediately . . . 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... engaged or planning to engage
in military or paramilitary actions in or against Nicaragua . . ?

It is a fact that the United States is heavily engaged in supporting
Honduras and El Salvador with training, arms, finances, etc. Nica-
ragua itself in its Application and pleadings alleges that Honduras
and El Salvador are engaged in military or paramilitary actions in or
against Nicaragua, in concert with the United States. Honduras and
El Salvador, in their communications to the Court, maintain that
actually it is Nicaragua which has engaged and is engaging in a variety
of acts of direct and indirect aggression against them, including armed
attacks .. . In short, Nicaragua seeks a judgment from the Court
requiring the United States to cease and desist from actions which
Nicaragua claims are unlawfully directed against Nicaragua, with the
assistance of Honduras, Costa Rica and El Salvador, whereas the
United States, Honduras and El Salvador claim that these very
actions are conducted in collective self-defence against Nicaraguan
acts of aggression. The judgment which the Court reaches on this
critical point accordingly must ‘affect’ not only the United States but
Honduras and El Salvador, and — in view of Nicaragua’s allegations
— Costa Rica as well.”

89. While the final submissions of Nicaragua in the case are cast in
general terms, they do not derogate from the foregoing analysis. The Court
is requested to adjudge and declare that :

291

“the United States has violated the obligations of international law
indicated in the Memorial . . . and to state in clear terms the obliga-
tions which the United States bears to bring to an end the aforesaid
breaches of international law . . .” (Hearing of 20 September 1985).
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The Court has responded positively to the substance of Nicaragua’s
request. The essence of the contentions of Nicaragua is to brand the United
States as in violation of its obligations not to use force against and not to
intervene against Nicaragua, and, correspondingly and necessarily, the
essence of Nicaraguan contentions entails rejection of the United States
defence that it acts in collective self-defence. But El Salvador and Hon-
duras support the claim that the United States acts in collective self-
defence, not only verbally, but by their actions in the field. El Salvador and
Honduras necessarily are affected by the Court’s treatment of the United
States claim to act in collective self-defence, and would be whether the
Court rejected — or upheld — that claim. To have held otherwise, on the
ground that the only Parties to the instant case are the United States and
Nicaragua and that the Court’s Judgment will be directed to and bind them
alone, would have been patently unconvincing. It not only would have
vitiated the multilateral treaty reservation but run counter to the sense of
Articles 62 and 63 of the Statute, which recognize and provide for the
possibility that States not parties to a case “may be affected” by the
decision in the case.

90. Nicaragua further argues that neither El Salvador nor Costa Rica
nor Honduras could be “affected” by a decision in this case, since “no
legitimate” rights or interests of those States would be prejudiced by an
adjudication of Nicaragua’s claims against the United States. That is a
question-begging argument. Perhaps it is Nicaragua’s view that neighbour-
ing States have no right or interest in resisting Sandinista-supported
insurgencies ; that their best interests lie in submitting to the imposition of
what Commander Bayardo Arce proclaims to be “the dictatorship of the
proletariat” (Arce, loc. cit., p. 4). But clearly that is not a view shared by the
Governments of El Salvador, Honduras and Costa Rica ; they appear to
believe that it is right to resist Nicaragua’s support of subversion. Whether
they may “legitimately” do so depends on the facts characterizing and the
law governing the actions of Nicaragua and the facts and law involved in
responsive actions of the United States, El Salvador, Honduras and Costa
Rica. It does not depend upon a preclusive or conclusory determination of
what is legitimate.

2. The relationship of customary international law to the reservation

91. The substantial Nicaraguan argument in respect of the multilateral
treaty reservation is that claims based on customary and general inter-
national law, and on bilateral treaties, are not covered by the proviso
and so are before the Court for determination. While the matter is by
no means that simple — as my dissent to the Judgment of 26 November
1984 indicated in paragraphs 85-90 — Nicaragua is correct in pointing

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out that the Court held in paragraph 73 of that Judgment that principles
such as

“the non-use of force, non-intervention, respect for the independence
and territorial integrity of States, and 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”.

92. Having given further consideration to the problem of the relation-
ship between the principles and provisions of the United Nations Charter
and the OAS Charter, on the one hand, and of customary international
law, on the other — as to which I expressly reserved my position in
paragraph 90 of my dissent to the Court’s Judgment of 26 November 1984
— I have reached the following conclusions.

93. This is a case in which the Parties, the United States and Nicaragua,
both are Members of the United Nations and of the Organization of
American States. They are bound by the Charters of those Organizations.
The cardinal principles of international law which today govern the use of
force in international relations are found in the United Nations Charter,
and, in so far as States of the Americas are concerned, the cardinal prin-
ciples of international law binding them which govern intervention in the
affairs of other American States are found in the Charter of the Organi-
zation of American States. The multilateral treaty reservation withholds
from the jurisdiction of the Court disputes arising under a multilateral
treaty unless all parties to the treaty affected by the decision are also
parties to the case before the Court. It has been shown that El Salvador,
Honduras and Costa Rica must be affected by the decision of the Court, a
conclusion which the Court itself in substance belatedly has accepted, and
those States are not parties to the case. It follows that the Court cannot, in
adjudicating the claims of Nicaragua, rely upon and apply the principles
and provisions of the United Nations and OAS Charters. Can the Court
nevertheless give genuine effect to the multilateral treaty reservation by
applying those very principles and provisions, by finding that those prin-
ciples and provisions, or some of them, form part of customary interna-
tional law ?

94. The argument that the principles if not the provisions of the United
Nations Charter governing the use of force in international relations have
been incorporated into the body of customary international law is widely
and authoritatively accepted, despite the fact that the practice of States
manifests such irregular support for the principles of law which the Charter
proclaims. Indeed, it could even be argued that the practice, in contrast to
the preachment, of States indicates that the restrictions on the use of force
in international relations found in the Charter are not part of customary
international law.

95. However, even if the argument is accepted — and it is generally

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accepted — that Charter restrictions on the use of force have been incor-
porated into the body of customary international law, so that such States as
Switzerland, the Koreas, and diminutive States are bound by the principles
of Article 2 of the Charter even though they are non-members, the fact
remains that Nicaragua and the United States are Members of the United
Nations (and the OAS as well). Since they are bound by their Charters, it
would be an artificial application of the law to treat them as if they were not
bound, but bound only by customary international law, which, however, is
essentially the same — not, presumably, in embracing a procedural proviso
such as reporting to the Security Council under Article 51, but the same in
so far as the content of Article 2, paragraph 4, is concerned. That would be
an application of the law of this case — which includes the multilateral
treaty reservation — which would avoid rather than apply that reservation.
Since Article 2, paragraph 4, and Article 51 (and comparable provisions of
the OAS Charter as well as those dealing with intervention) are the specific
and governing legal standards to which the Parties in this case have agreed,
and since the multilateral treaty reservation debars the Court from apply-
ing to the dispute those standards as expressed in those treaties, I conclude
that the Court lacks jurisdiction to apply both those treaties and their
standards to this dispute.

96. I so conclude whether or not it is correct to hold that these principles
also form what is contemporary customary international law on the use of
force in international relations. If, as the International Law Commission
has put it, “The principles regarding the threat or use of force laid down in
the Charter are... rules of general international law which are today of
universal application”, and “Article 2, paragraph 4, together with other
provisions of the Charter, authoritatively declares the modern customary
law regarding the threat or use of force” (Yearbook of the International Law
Commission, 1966, Vol. IL, pp. 246, 247), and if, as counsel for Nicaragua
argued, these provisions of Article 2, paragraph 4, are the “embodiment of
general principles of international law” (Hearing of 25 April 1984), then
there is little ground for the Court considering the dispute before it apart
from the terms of Article 2, paragraph 4. It is of course true that the same
provision of law may be found in customary international law and in a
treaty. Codification of a customary norm in a treaty does not necessarily
displace the custom, and certainly the incorporation of a provision of a
universal treaty into the body of customary international law does not
displace the treaty. But in the case before the Court, the Court is con-
fronted with a reservation to its jurisdiction which, by the weight of its
jurisprudence of more than 60 years, it is bound to apply so as to give it
effect rather than deprive it of effect. As Judge Sir Hersch Lauterpacht put
it in respect of the Court’s jurisdiction :

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“the established practice of the Court — which, in turn, is in accor-
dance with a fundamental principle of international judicial settle-
ment — [is] that the Court will not uphold its jurisdiction unless the
intention to confer it has been proved beyond reasonable doubt” (case
of Certain Norwegian Loans, Judgment, I.C.J. Reports 1957, p. 58).

Thus the Court is bound to give substantive effect to the multilateral treaty
reservation. It is not free to avoid its application by an argument which, if
technically defensible, in real terms would vitiate a limitation which the
United States has imposed upon the jurisdiction of the Court. Accordingly,
while recognizing that there is room for the contrary conclusion which the
Court has reached, I conclude that the generally accepted essential, even if
incomplete, identity of Charter principles and principles of customary
international law on the use of force in international relations, rather than
authorizing the Court to apply those customary principles to the central
issues of this case, precludes the Court from doing so by reason of the
limitations imposed upon the Court’s jurisdiction by the multilateral treaty
reservation.

97. Such a preclusion does not, however, extend to questions of freedom
of navigation, as to which customary international law long antedates the
Charter and has not been subsumed by it.

98. Nor can it be persuasively argued that the sweeping provisions of
the OAS Charter concerning intervention constitute customary and gen-
eral international law. There is no universal treaty which has incorporated
those provisions into the body of general international law. There is hardly
sign of custom — of the practice of States — which suggests, still less
demonstrates, a practice accepted as law which equates with the standards
of non-intervention prescribed by the OAS Charter. State practice in the
Americas — by States of Latin America as by others — does not begin to
form a customary rule of non-intervention which is as categoric and
comprehensive as are the provisions of the OAS Charter. Thus it may be
contended that, in this case, the Court can apply such customary inter-
national law of non-intervention as there is, a customary international law
which is much narrower than that which the OAS Charter enacts for the
parties to it. The essence of that law long has been recognized to prohibit
the dictatorial interference by one State in the affairs of the other. It
accordingly may be argued that the Court is not debarred by the thrust of
the multilateral treaty reservation from considering whether the measures
taken by the United States against Nicaragua, direct and indirect, consti-
tute dictatorial interference in the affairs of Nicaragua.

99. But it may be argued to the contrary that, where, as here, the United
States and Nicaragua (and the “affected” States) are bound by the terms of
the OAS Charter, and where the provisions of that Charter embrace not

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only dictatorial interference but much more pervasive proscription of
intervention, the greater includes the lesser ; that, since the OAS Charter
sets out between the Parties, and as among them and the States affected,
the specific and governing legal standards, and since the multilateral treaty
reservation debars the Court from application of those standards, it with-
holds from the Court jurisdiction to pass upon complaints of intervention
in this case, all of which must fall within the capacious terms of the OAS
Charter. In my view, the latter argument, while open to challenge, is the
stronger. Moreover, the complaints of intervention in this case are so
intimately involved with the complaints of the unlawful use of force — the
facts that underlie both causes of action correspond so closely — that the
artificiality of treating the Court as having jurisdiction to deal with charges
of intervention and not having jurisdiction to deal with charges of the
unlawful use of force reinforces this conclusion.

D. The Question of Jurisdiction under the Treaty of Friendship,
Commerce and Navigation

100. In its Judgment of 26 November 1984, the Court held that, in
addition to its having jurisdiction under the Optional Clause of the Court’s
Statute, it had jurisdiction, “limited as it is”, by reason of the terms of the
1956 Treaty of Friendship, Commerce and Navigation between Nicaragua
and the United States (/.C./. Reports 1984, p. 426). The Court noted that
that Treaty contains a compromissory clause providing that :

“Any dispute between the Parties as to the interpretation or appli-
cation of the present Treaty, not satisfactorily adjusted by diplomacy,
shall be submitted to the International Court of Justice, unless the
Parties agree to settlement by some other pacific means.”

The Court observed that Nicaragua claimed that certain provisions of the
Treaty had been violated by the United States and it concluded :

“Taking into account these Articles of the Treaty of 1956, parti-
cularly the provision . . . for the freedom of commerce and navigation,
and the references in the Preamble to peace and friendship, there can
be no doubt that, in the circumstances in which Nicaragua brought its
Application to the Court, and on the basis of the facts there asserted,
there is a dispute between the Parties . . . as to the ‘interpretation or
application’ of the Treaty... Accordingly, the Court finds that, to the
extent that the claims in Nicaragua’s Application constitute a dispute
as to the interpretation or application of the Articles of the Treaty of
1956 ... the Court has jurisdiction under that Treaty to entertain such
claims.”

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101. Quite apart from the failure of Nicaragua and the Court at that
stage sufficiently to relate Nicaragua’s claims against the United States for
the unlawful use of force to the terms of this commercial treaty, this
apparently plausible holding of the Court was plausible only because the
Court failed to refer to the terms of Article XXI (1) (a) of the Treaty, which
provides that :

“1. The present Treaty shall not preclude the application of mea-
sures :
(d) necessary to fulfill the obligations of a Party for the maintenance
or restoration of international peace and security, or necessary to
protect its essential security interests...”

In this regard, my dissent to the Court’s Judgment of 26 November 1984
concluded :

“Now it cannot be argued — and Nicaragua did not argue, nor does
the Court hold — that, since the Treaty ‘shall not preclude the appli-
cation of measures’... which are necessary to fulfil the obligations of a
Party for the maintenance of international peace and security or to
protect its essential security interests, these very exclusions entitle the
Court to assume jurisdiction over claims based on the Treaty that
relate to... the maintenance of international peace and security or
essential security interests. It is clear that, where a treaty excludes
from its regulated reach certain areas, those areas do not fall within
the jurisdictional scope of the treaty. That this preclusion clause is
indeed an exclusion clause is demonstrated not only by its terms but
by its travaux préparatoires, which were appended to the United States
pleadings in the case of United States Diplomatic and Consular Staff in
Tehran (1.C.J. Pleadings, Ann. 50, p. 233). A list of a score of Treaties
of Friendship, Commerce and Navigation, including that with Nica-
ragua, is found at page 233, which is followed by a ‘Memorandum on
Dispute Settlement Clause in Treaty of Friendship, Commerce and
Navigation with China’ which contains the following paragraph :

‘The compromissory clause . . . is limited to questions of the
interpretation or application of this treaty ; 1.e., it is a special not a
general compromissory clause. It applies to a treaty on the nego-
tiation of which there is voluminous documentation indicating the
intent of the parties. This treaty deals with subjects which are
common to a large number of treaties, concluded over a long period
of time by nearly all nations. Much of the general subject-matter —
and in some cases almost identical language — has been adjudicated

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in the courts of this and other countries. The authorities for the
interpretation of this treaty are, therefore, to a considerable extent
established and well known. Furthermore, certain important sub-
jects, notably immigration, traffic in military supplies, and the
“essential interests of the country in time of national emergency”,
are specifically excepted from the purview of the treaty. In view of the
above, it is difficult to conceive how Article XXVIII could result in
this Government’s being impleaded in a matter in which it might be
embarrassed.’ (At p. 235 ; emphasis supplied.)

A second memorandum, entitled ‘Department of State Memorandum
on Provisions in Commercial Treaties relating to the International
Court of Justice’, similarly concludes, first with respect to the scope of
the jurisdiction accorded to the Court under FCN treaties, and second
with respect to national security clauses :

‘This paper {of the Department of State] . .. points out a num-
ber of the features which in its view make the provision satisfactory
... These include the fact that the provision is limited to differences
arising immediately from the specific treaty concerned, that such
treaties deal with familiar subject-matter and are thoroughly
documented in the records of the negotiation, that an established
body of interpretation already exists for much of the subject-matter
of such treaties, and that such purely domestic matters as immigra-
tion policy and military security are placed outside the scope of such
treaties by specific exceptions.’ (Ibid., p. 237 ; emphasis supplied.)

Article XXI of the Treaty thus serves to indicate that the parties to the
Treaty acted to exclude from its scope the kind of claim (‘restoration
of international peace and security’ and protection of ‘essential secu-
rity interests’) which Nicaragua seeks to base upon it.” (1. C.J. Reports
1984, pp. 635-637, para. 128.)

102. Nicaragua’s Memorial on the merits, and Nicaragua’s counsel in
extensive and detailed oral argument on various provisions of the Treaty,
had remarkably little to say about Article XXI (1) (d). Not a word was said
about the travaux préparatoires just quoted. As for the Treaty provision
itself, Nicaragua’s Memorial submits :

“One party to a treaty, however, cannot absolve itself of all respon-

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sibility for violations of the provisions of the treaty by simply in-
voking an exculpatory provision. It is for the Court and not for the
Parties to determine the validity of such assertions.

Article XXI (1) (d) cannot be invoked to justify the activities of the
United States. This provision refers implicitly to the provisions in the
United Nations Charter relating to the maintenance of international
peace and security. Nicaragua has shown . . . that the military and
paramilitary activities conducted by the United States in and against
Nicaragua are completely incompatible with these provisions of the
Charter.” (Memorial of Nicaragua, paras. 430 and 432.)

103. In oral argument, Nicaraguan counsel dismissed the significance
of Article XXI (1) (d). As to whether the measures which the United States
has pursued against Nicaragua are necessary to fulfil its obligations for the
maintenance of international peace and security, Nicaraguan counsel said
that the preconditions of application of that provision “are obviously not
met in this case”. As to whether the measures which the United States has
pursued against Nicaragua are necessary for the United States to protect
its essential security interests, counsel professed to deal with this question
by translating “essential security interests” as “vital interests” and then by
claiming that this provision deals with a “state of necessity” (ignoring the
fact that another provision of the Treaty deals with the right of the Parties
“to apply measures that are necessary to maintain public order and protect
the public health, morals and safety”). Nicaraguan counsel gave no weight
to the contentions of the United States that the policies of Nicaragua
towards its neighbours and Nicaragua’s intensifying integration with
Soviet-led States constitutes, in the view of the United States, a challenge
to its “essential security interests”. For its part, the Court considers that
United States mining of Nicaraguan ports, and its direct attacks on Nica-
raguan ports and oil installations as well as its trade embargo, “cannot
possibly” be justified as “necessary” to protect the essential security
interests of the United States. The Court also holds that a State — in this
case, the United States acting under Article XXI (1) (d) of the Treaty — can
have no “obligations” to act in collective self-defence, apart from obliga-
tions imposed by decisions of the Security Council taken on the basis of
Chapter VII of the United Nations Charter or required by the OAS under
Articles 3 and 20 of the Inter-American Treaty of Reciprocal Assistance
(Rio Treaty).

104. There is room for dispute over whether the measures taken by the
United States against Nicaragua which are at issue in this case are mea-
sures “necessary to fulfil the obligations of a Party for the maintenance or

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American Journal of International Law, vol. 80, 1986, p. 130-131.) Que la
clause en question constitue en fait une clause d’exclusion ressort non
seulement de ses termes mais aussi des travaux préparatoires cités. Ainsi —
abstraction faite du but essentiellement commercial du traité — je persiste a
penser que celui-ci ne fournit aucune base de compétence à la Cour dans la
présente espèce, en tout cas pour les questions cruciales qu’elle soulève, à
moins que l’on ne considère d’emblée que les Etats-Unis ne sont pas fondés
à invoquer l’articie XXI, paragraphe 1, alinéa d).

106. Or la Cour est parvenue à une autre conclusion, pour la principale
raison qu’un différend sur le point de savoir si les Etats-Unis peuvent
valablement qualifier les mesures qu’ils ont prises de mesures relevant de
l’article XXI, paragraphe 1, alinéa d), est un différend sur « l'interprétation
ou l’application du présent traité » et ressortit, en tant que tel, à la com-
pétence de la Cour. Si l’on admet l'exactitude de cette thèse on se retrouve
aux prises avec le grand problème de la présente affaire : les mesures prises
par les Etats-Unis contre le Nicaragua se justifient-elles par la légitime
défense collective ou comme mesures nécessaires à la protection des inté-
rêts essentiels de sécurité des Etats-Unis ? Cette question, à son tour, ne
peut être tranchée que conformément aux dispositions pertinentes de la
Charte des Nations Unies. La réserve relative aux traités mutilatéraux
apportée à la compétence de la Cour en vertu de l’article 36, paragraphe 2,
du Statut est sans incidence sur sa compétence pour régler un différend
découlant d’un traité bilatéral invoqué par une partie conformément à
l’article 36, paragraphe 1, du Statut. Mais le traité de commerce ne contient
aucune disposition analogue à celles de l’article 2, paragraphe 4, ou de
Particle 51 dela Charte et il ne fournit lui-même aucune base à la Cour pour
rendre un arrêt sur l'emploi de la force et de l’intervention dans les rela-
tions internationales. En conséquence, la Cour n’est investie d’aucune
compétence pour connaître des questions qui sont au cœur de la présente
espèce, en vertu du traité bilatéral d'amitié, de commerce et de navigation.
Tout au plus le traité offre-t-il à la Cour une base de compétence — « aussi
limitée soit-elle », selon les termes de la Cour ou selon ceux qu’elle a
employés en 1984 — pour connaître de la légitimité de mesures se rappor-
tant aux termes du traité telles que, éventuellement, le minage des ports du
Nicaragua et l'imposition d’un embargo commercial par les Etats-Unis.
Cependant, pour se prononcer à cet égard, la Cour est tenue d’appliquer les
dispositions de la Charte pour décider si les Etats-Unis peuvent être absous
de l’accusation d’avoir violé le traité attendu que celui-ci ne fait pas
obstacle à l'application de mesures « nécessaires à l’exécution » de leurs
« obligations relatives au maintien ou au rétablissement de la paix et de la
sécurité internationales » ou à la « protection » de leurs « intérêts vitaux en
ce qui concerne [leur] sécurité ». Je pense, comme je l’ai indiqué ailleurs
dans la présente opinion, que les actions des Etats-Unis vis-à-vis du
Nicaragua s'accordent pour l'essentiel avec les obligations qu'ils ont con-
tractées en vertu du traité de Rio en ce qui concerne le maintien ou le
rétablissement de la paix et de la sécurité internationales, ainsi qu’avec les
dispositions de la Charte.

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restoration of international peace and security, or necessary to protect its
essential security interests”. That question, in so far as it relates to such
obligations, is examined in a later section of this opinion. It may be
observed at this juncture, however, that the Court’s holding that the only
obligations to act in collective self-defence are those required by the
United Nations Security Council or the OAS not only derives from a
misreading of the relevant treaty law. If the Court were correct — and it is
not — then the obligations of the Parties to the NATO and Warsaw
Treaties, among others, would be illusory. Under Article 5 of the North
Atlantic Treaty, for example :

“The Parties agree that an armed attack against one or more of
them in Europe or North America shall be considered an attack
against them all ; and consequently they agree that, if such an armed
attack occurs, each of them, in exercise of the right of individual or
collective self-defence recognized by Article 51 of the Charter of the
United Nations, will assist the Party or Parties so attacked by taking
forthwith, individually and in concert with the other Parties, such
action as it deems necessary, including the use of armed force, to
restore and maintain the security of the North Atlantic area.”

(To like effect, see Article 4 of the Treaty of Friendship, Co-operation and
Mutual Assistance signed at Warsaw on 14 May 1955.) As for the Court’s
conclusion that direct United States pressures against Nicaragua “cannot
possibly” be justified as “necessary” to protect essential security interests
of the United States, it may be said that, in so far as the Court, or any court,
is suited to make such a judgment, this Court’s judgment appears to have
been made in disregard of Nicaragua’s subversion of its neighbours which
surely affects essential security interests of the United States (see Z.CJ.
Reports 1984, pp. 195-199). (It may be recalled that Lauterpacht, in The
Function of Law in the International Community, concluded that it is
“doubtful whether any tribunal acting judicially can override the assertion
of a State that a dispute affects its security...” (At p. 188.))

105. What is in any event clear is that Article XXI of the Treaty provides
that “the present Treaty shall not preclude the application of [such] mea-
sures”. The application of such measures is not regulated by the Treaty ;
the preclusion clause is an exclusion clause. In my view, where a treaty
excludes from its regulated reach certain areas, those areas do not fall
within the jurisdictional scope of the Treaty. “In the face of such explicit
language, it is difficult to see how any tribunal could use the Treaty to
subject to its own jurisdiction matters that had been expressly excluded.”
(W. Michael Reisman, “Has the International Court Exceeded its Juris-

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diction ?”, American Journal of International Law, Vol. 80, 1986, pp. 130-
131.) That this Treaty’s preclusion clause is indeed an exclusion clause is
indicated not only by its terms but by the quoted travaux préparatoires.
Thus — apart from the Treaty’s essentially commercial concerns — I
remain of the view that the Treaty fails to provide a basis of jurisdiction for
the Court in this case, certainly for the central questions posed by it, unless,
at any rate, United States reliance upon Article XXI (1) (d) is, on its face,
without basis.

106. However, the Court has reached another conclusion, essentially
founded in the position that a dispute over the validity of United States
characterization of the measures it has taken as measures falling within the
scope of Article XXI (1) (d) is a dispute over “the interpretation or
application of the present Treaty” and, as such, falls within the Court’s
jurisdiction. If one accepts that position as correct, then one is brought
back to the paramount problem of the case : are the measures taken by the
United States against Nicaragua justifiable as measures of collective self-
defence or as measures necessary to protect its essential security interests ?
That question, in turn, can only be decided in accordance with the gov-
ering provisions of the United Nations Charter. The multilateral treaty
reservation to the Court’s jurisdiction under Article 36, paragraph 2, of the
Statute has no effect upon the Court’s jurisdiction to decide a dispute
arising under a bilateral treaty on which a party relies pursuant to Article
36, paragraph 1, of the Statute. This commercial Treaty contains no pro-
visions like Article 2, paragraph 4, or Article 51 of the Charter ; the Treaty
itself provides no basis for the Court’s making a judgment on the use of
force and of intervention in international relations. The Court accordingly
is not invested with jurisdiction to pass upon the issues at the core of this
case by the terms of the bilateral Treaty of Friendship, Commerce and
Navigation. At most, the Treaty provides a basis for the Court’s jurisdic-
tion — “limited as it is”, in the Court’s words (or what were the Court’s
words in 1984) — to pass upon the legality of measures relating to the terms
of the treaty, such, arguably, as the United States mining of Nicaraguan
ports and the imposition of the trade embargo. However, in reaching such
judgments, the Court will be bound to apply Charter provisions to the
determination of the question of whether the United States is absolved of
breach of the Treaty by reason of the Treaty’s not precluding the appli-
cation of measures “necessary to fulfill” its “obligations for the mainte-
nance or restoration of international peace and security” or to “protect its
essential security interests”. As indicated elsewhere in this opinion, in my
view the actions of the United States vis-a-vis Nicaragua are in essential
accord with the obligations which it has undertaken under the Rio Treaty
for the maintenance or restoration of international peace and security, and
consistent with the Charter as well.

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case to address the interpretation and application of the conventions to
which it is a party which had been invoked by Nicaragua.

108. This was only the second time in the history of the Court in which a
State sought to intervene under Article 63 of the Statute and the first in
which it sought to do so at the jurisdictional stage of the proceedings. El
Salvador’s request was significant and substantial, but it posed a number
of questions, which the Court would have done well to have elucidated at
the oral hearings which were contemplated under Article 84 of the Rules of
Court, which provides that, if “an objection is filed to... the admissibility
of a declaration of intervention, the Court shall hear the State seeking to
intervene and the parties before deciding”.

109. However, the then President of the Court caused to be issued, on
27 September 1984, a press release which in effect indicated that El Sal-
vador’s request to intervene would be denied. That release was issued even
before the Court had met to deliberate on the request. (See in this regard
Judge Oda’s separate opinion, 1.C.J. Reports 1984, p. 221, and my dis-
senting opinion, ibid., pp. 232-233.)

110. When the Court met, it promptly issued an Order denying El
Salvador’s request to intervene. It failed to accord El Salvador a hearing on
its request, despite the terms of Article 84 (and despite El Salvador’s
request for a heating). While Nicaragua had voiced objections to El Sal-
vador’s request, it purported not to have filed “an objection”, a view which
the Court in effect appears to have adopted. (See Z.C.J. Reports 1984,
pp. 227-233.) In denying El Salvador a hearing and summarily dismissing
its request, the Court’s conclusory Order provided the barest statement
of reasons — so bare that the Order may be regarded as virtually un-
reasoned.

111. These proceedings have been the subject of extensive analysis by
an authority on the Court’s procedures, Jerzy Sztucki, Professor of Inter-
national Law at the University of Uppsala. He not only finds the failure to
accord E] Salvador a hearing and indeed to permit it to intervene at the
stage of jurisdiction procedurally and legally unfounded. Professor Sztucki
has felt constrained to record his conclusion that

“the Court’s decision might reinforce the suspicion — noticeable in
other aspects of the Nicaragua case — of politicization of judicial
proceedings and anti-Western bias”. (“Intervention under Article 63
of the I.C.J. Statute in the Phase of Preliminary Proceedings : The
‘Salvadoran Incident’”, American Journal of International Law,
Vol. 79, October 1985, p. 1036.)

112. It may reasonably be assumed that the procedures of the Court’s
treatment of El Salvador’s Declaration of Intervention influenced El Sal-
vador’s decision not to exercise its right of intervention at the stage of the
merits — a decision which necessarily had great impact on the content and
tenor of the proceedings on the merits, and which may have had like impact

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on the shaping of the Court’s Judgment (as surely has the absence of the
United States).

113. Nicaragua has contended that, by reason of El Salvador’s failure to
intervene at the stage of the merits, an inference should be drawn against
the truth of the facts which El Salvador alleges in its Declaration of
Intervention. In my view no such inference can reasonably be drawn,
particularly because of the manner in which the Court treated El Salva-
dor’s Declaration. In the circumstances, for this and other reasons — no-
tably, the withdrawal of the United States — it would have been surprising
if El Salvador had chosen to intervene at the stage of the merits. In any
event, it was legally free to intervene or not to intervene. But it does not
follow from El Salvador’s choosing not to intervene that its factual and
legal contentions must be discounted. But, as will be shown, not only does
Nicaragua contend that they should be discounted ; in the course of the
Court’s Judgment, El Salvador’s factual and legal contentions are dis-
counted.

F. The Effect of the Absence of the United States

1. Events bearing on the absence of the United States

114. In its statement of 18 January 1985 withdrawing from these pro-
ceedings — a statement which itself attracts the criticism expressed in the
opinions accompanying today’s Judgment of Judges Jennings and Lachs —
the United States, in addition to rejecting the Court’s holdings on juris-
diction and admissibility, cited as a cause of its withdrawal the Court’s
having “summarily” rejected El Salvador’s application “without giving
reasons and without even granting El Salvador a hearing, in violation of El
Salvador’s right and in disregard of the Court’s own rules” (/nternational
Legal Materials, Vol. XXIV, No. 1, January 1985, p. 248). As another cause
of its withdrawal, the United States statement more generally criticized,
“The haste with which the Court proceeded to judgment on these issues —
noted in several of the separate and dissenting opinions . . .” (/bid. See
LCJ. Reports 1984, pp. 207, 474, 616.) In a letter of 19 April 1984, the
United States earlier expressed its concern at the convoking of the oral
hearings on provisional measures at a date which did not afford it suffi-
cient opportunity, within the meaning of Rule 74, paragraph 3, of the Rules
of Court, to be fairly “represented” at the hearing “since there is manifestly
inadequate time to develop fully its presentation . . .”.

115. On 27 December 1984, some three weeks before a decision by the
United States to withdraw from the case was announced, the then Presi-
dent of the Court gave an interview to the Associated Press in The Hague,
in which President Elias is reported to have stated, with respect to the
United States 1984 notification relating to its 1946 adherence to the
compulsory jurisdiction of the Court : “It is not acceptable in a civilized

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system of international law that any nation withdraws without notice from
a solemn undertaking like that.” President Elias continued, according to
the Associated Press report : “If a State withdraws its acceptance of our
jurisdiction without notice, that leads to anarchy and disorder.” He is
quoted as adding : “A State that defies the Court will not get away with it.
Although some States try to show that they do not care, they do in reality.”
The report continues that, although President Elias conceded that the
potential politicization of the Court “is a very, very important issue”, the
Court was not being used as a propaganda forum in the Nicaragua-United
States case :

“It is often said that the current dispute between the United States
and Nicaragua is a purely political affair. But it is a question of
aggression ; a breach of legal rights and duties between States. Nica-
ragua was entitled to bring the case before the Court, and that has
been our ruling. If it had been a purely political case, without legal
matters we can deal with, we would have thrown it out imme-
diately.”

The then President is also quoted by Associated Press as stating that, while
the Court has no enforcement powers, it “can help develop a world public
order and make that a real force” through its rulings. He is reported to have
discounted the United States claim that proceedings in Court would jeo-
pardize the Contadora process, pointing out that the United States
obtained a World Court ruling on United States hostages in Tehran while
bilateral negotiations were being conducted. “We sided with the Ameri-
cans that time”, he said, according to the Associated Press story. “And that
is one of the reasons we declared the Nicaraguan complaint admissible. We
cannot rule blatantly against ourselves.” President Elias is reported also to
have stated that the United States-led invasion of Grenada was “contrary”
to “behaving according to the rule of law”. “Smaller nations wonder what
happened to the rule of law when the United States can behave like this”,
commented President Elias on the 1983 Grenada invasion, the Associated
Press story reports. He is quoted as continuing : “Modern international
law will not tolerate the gunboat diplomacy of the past centuries.”
Dr. Shabtai Rosenne has written :

“Public comment on a pending case by any judge, let alone the
President, is absolutely unprecedented and contrary to all standards
of judicial propriety . .. That interview, which was given before the
United States announced its intention not to participate in further
proceedings . .. and indeed may have precipitated it, was reported in
the Press.” (“The Changing Role of the International Court”, Israel
Law Review, Vol. 20, 1985, p. 196 (note 33).)

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2. The meaning of Article 53 of the Statute

116. Article 53 of the Court’s Statute provides :

“1. 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.

2. The Court must, before doing so, satisfy itself, not only that it has
jurisdiction in accordance with Articles 36 and 37, but also that the
claim is well founded in fact and law.”

117. What is the proper meaning and interpretation of Article 53 ? It is
clear that the Court can render a judgment in the absence of a party. Before
doing so, it must “satisfy itself” — indeed, it “doit s’assurer” — not only
that it has jurisdiction “but also that the claim is well founded in fact and
law”. As the Court held in the Corfu Channel case, it must “convince itself”?
that the appearing party’s submissions are well founded (/.C.J. Reports
1949, p.248). To say (as did Nicaragua’s counsel) that an objection to those
submissions must be proved by the party that raises it is beside the point ;
the real point is that the Court must be convinced. If, as in the current case,
the Defendant has raised objections, the Applicant, if it is to succeed, must
convince the Court of the inadequacy of those objections.

118. Itis equally true that, if a claim is to be held to be well founded in
fact and law, it can be so only if a sufficient affirmative defence to the claim
is not well founded in fact and law. If such an affirmative defence is well
founded in fact and law, then the claim must fail, however compelling it
may be in the absence of that affirmative defence. That is elementary. If a
claim by A is that B assaulted him, but B pleads by way of affirmative
defence that he caught A in the act of assaulting their neighbour, C, and
came to C’s defence in the course of which he struck A no harder than
necessary to stop A from assaulting C, it cannot be held that A’s claim is
well founded in fact and law unless B’s affirmative defence is shown not to
be well founded. That, in my view, is an ineluctable interpretation of
Article 53. It is one which is critical for the disposition of the current
case.

119. The fact that the United States has chosen (to my particular regret)
not to take part in the proceedings on the merits does not alter the
foregoing conclusions. However regrettable its absence may be, a party
does not transgress the Statute by absenting itself from the Court’s pro-
ceedings (see H. W. A. Thirlway, Non-appearance before the International
Court of Justice, 1985, pp. 64-82). In abstaining from taking part in these
proceedings on the merits, the United States is doing what Article 53
contemplates that a party might : it has not appeared before the Court, and
has failed to defend its case — not the whole of its case, but part of its case,
in that, while in previous phases of the case it has advanced an affirmative
defence on the merits, it has not submitted written or oral pleadings to the

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Court in this phase which fully support that defence. These are the very
circumstances in which the Court must discharge its burden of satisfying
itself that the claim is well founded in fact and law.

120. In order to satisfy itself both as to the validity of the claim and the
defence to the claim, the Court need not content itself with the pleadings of
the appearing party. Indeed, if it is not satisfied by those pleadings, it is not
entitled to content itself with those pleadings. In the current case, there is a
good deal in the pleadings of both Parties that bears on contested issues of
the merits, for the reason that the United States did participate in previous
phases of the case and submitted extensive pleadings and annexes, among
which is much factual and legal material supporting its charges of aggres-
sive intervention by Nicaragua against its neighbours (in particular
Annexes to the Counter-Memorial [on jurisdiction and admissibility] sub-
mitted by the United States of America, Nos. 42-105, 110, especially Ann. 50.
See also two important documents submitted in 1984 by the United States
pursuant to Art. 50 of the Rules of Court : Department of State, Com-
munist Interference in El Salvador, Documents Demonstrating Commu-
nist Support of the Salvadoran Insurgency, 1981 ; and Department of
State and Department of Defense, Background Paper : Nicaragua’s Mili-
tary Build-Up and Support for Central American Subversion, 1984. The
annexes and documents just referred to contain much of the data later
restated in the State Department’s September 1985 publication entitled
“Revolution Beyond Our Borders” — Sandinista Intervention in Central
America). Furthermore, in the pleadings of Nicaragua there is much that
runs counter to its claims. That is to say, Nicaragua has submitted
hundreds of articles from the press and extensive excerpts from the laws
and Congressional debates and executive statements of the United States,
elements of which contradict the contentions of Nicaragua. [t is not
apparent why this material should not have been given appropriate weight
by the Court together with passages in the very same material which are
supportive of Nicaragua’s contentions. But, quite apart from what the
United States and Nicaragua have pleaded, there is material which Nica-
ragua has not pleaded but which is of the same character as that which it
has, that is to say, still other articles from the press and still other passages
from Congressional debates, etc. It would have been implausible for the
Court to be prepared to consider the evidentiary weight, such as it is, of
Article A from the New York Times, because it is one of hundreds of
clippings submitted by Nicaragua, but exclude the evidentiary weight of
article B, such as it is, from the New York Times, because it was not
submitted by Nicaragua, or, for that matter, by the United States.

121. Rather, if the Court, in order to “satisfy itself”, finds it necessary to
have recourse to United Nations documents, newspaper articles, Congres-
sional debates, books and articles of scholars, and other material in the
public domain — including publications of and documents released by the
United States Government — that bear on the facts and law of the case, it is
not only entitled but required to do so, whether or not they are found in the

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pleadings of the Parties. Equally, if the Court or judges of the Court are not
satisfied with the pleadings of the appearing Party on questions of fact and
law, they are entitled — if not obliged — to put questions to the Agent,
counsel or witnesses as may be appropriate.

122. What about the status of “Revolution Beyond Our Borders” ? The
foregoing analysis suggests and the practice of the Court indicates that the
Court is entitled to take account of such a publication even though it is not
an official pleading of the Government of the United States duly submit-
ted to the Court. It would, again, have been implausible for the Court to
weigh the quantities of the evidence submitted by Nicaragua, embracing as
it does, among other items, newspaper articles which recount activities of
governments and policies of governments, but exclude an official and
highly pertinent statement of a government Party to the case. The implau-
sibility of such a course would have been heightened by the fact that that
publication has appeared in the form of a United Nations document, to
which Nicaragua has issued an official rebuttal.

123. Moreover, the practice of the Court demonstrates repeated
reliance on irregular communications from States parties to a case and
reliance even on documents and statements of a non-appearing State
which are not addressed to the Court and which are published after the
closure of oral hearings. No less than 15 judgments and orders of the Court
have referred to communications and material emanating from a non-
appearing State. In addition, many separate and dissenting opinions refer
to communications and material of non-appearing States.

124. In the Nuclear Tests cases, the Court not only took account in its
Judgment of statements emanating from a non-appearing State ; those
statements were not addressed to the Court, and some of them — those that
were crucial — were issued after the closure of oral argument. The Court
there held that it

“is bound to take note of further developments, both prior to and
subsequent to the close of oral proceedings. In view of the non-
appearance of the Respondent, it is especially incumbent upon the
Court to satisfy itself that it is in possession of all of the available
facts.”

And the Court referred to and critically relied upon public statements of
French authorities concerning future nuclear tests, even though “It is true
that these statements have not been made before the Court, but they are in
the public domain . . . It will clearly be necessary to consider all these
statements...” The Court continued that, while conscious of the impor-
tance of the principle expressed in the maxim audi alteram partem, “it does
not consider that this principle precludes the Court from taking account of
statements made subsequently to the oral proceedings...” (.C.J. Reports
1974, pp. 263-265).

125. Thirlway’s study, Non-appearance before the International Court of

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Justice, sets out the travaux préparatoires of Article 53 in extenso. They in
fact are not extensive (/oc. cit., pp. 22-26). They emphasize the purport of
Article 53, namely that judgment can be given for the claimant in the
absence of the defendant only when the plaintiff produces “the most
proofs” and establishes his case “most completely” (p. 24). Thirlway
records that the United States member of the Advisory Committee of
Jurists which drafted the Statute of the Permanent Court, the eminent
statesman, Elihu Root, was accompanied by James Brown Scott, the
distinguished international lawyer who was the Secretary of the Carnegie
Endowment for International Peace. Scott apparently sat at the table of
the Committee as if he were a member and assisted Root throughout the
sessions (see Philip C. Jessup, Elihu Root, 1939, Vol. IT, pp. 419, 426). Scott
wrote a report for the Board of Trustees of the Endowment published in
1920, which contains the following passage about the exercise of jurisdic-
tion by the Court under Article 53 of the Statute, which Thirlway’s book
quotes :

“The essential condition for the exercise of jurisdiction in such a
case is and must be, that the plaintiff, although proceeding ex parte,
should present its case as fully as if the defendant were present, and
that the court be especially mindful of the interests of the absent
defendant. This does not mean that the court shall take sides. It does
mean, however, that the court, without espousing the cause of the
defendant, shall, nevertheless, act as its counsel. There is an apt
French phrase to the effect that ‘the absent are always wrong’. The
Court must go on the assumption that the absent party is right, not
wrong until the plaintiff has proven him to be wrong.” (At p. 25.)

Now, if the Court is to be “fully mindful of the interests of the absent
defendant” and indeed to “go on the assumption that the absent party is
right, not wrong until the plaintiff has proven him to be wrong”, it follows
that, in the instant case, the Court cannot hold for Nicaragua unless it
proves that the affirmative defence advanced by the United States is
unfounded. For the reasons submitted above, that follows even if one does
not accept Scott’s interpretation of Article 53 ; however, Scott’s interpre-
tation reinforces that conclusion. But Scott’s interpretation goes further,
because it places on the appearing State the burden of proof — it is the
appearing State which must prove the absent party wrong and the Court is
to assume “that the absent party is right, not wrong until the plaintiff has
proved him to be wrong”.

126. However accurately Scott may be presumed to have expressed the
intent of the drafters of Article 53 of the Statute, there is room for hesi-
tation in accepting his apparent conclusion that Article 53 shifts the
burden of proof. Such a conclusion might operate as an inducement to
States to absent themselves from Court, in the belief that they would find
themselves in a more advantageous position if absent than present. The
practice of defendants absenting themselves from the Court which has

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particularly and repeatedly obtained since Iceland did not appear in the
Fisheries Jurisdiction case in 1972 cannot conduce to the Court’s standing
and effectiveness, and indeed represents one of the most disturbing de-
velopments in the history of the Court. Moreover, as suggested at the
outset of this section, considerations of burden of proof are beside the
point, because the real point is that, where objections are raised to the
appearing party’s contentions, that party must convince the Court that
those objections are unfounded if the Court is to meet the standard which
Article 53 imposes.

127. In my view, the correct interpretation of Article 53 is that it affords
the appearing State no advantage beyond that which it enjoys by reason of
the non-appearing State’s absence. If, in a given case, such as the one
before the Court, the non-appearing party (or the Court or a judge) raise an
affirmative defence to the claim, the appearing party must demonstrate
that the defence is not good in order to prevail. The absence of the
non-appearing party sometimes will, and sometimes will not, tend to make
such a showing easier rather than more difficult. It is significant that
Nicaragua has made just such an effort to show that the affirmative
defence of the United States is not well founded on the facts and in law ;
the issue has been engaged, and rightly engaged. Quite another question is
whether Nicaragua’s effort has succeeded.

G. The Court’s Treatment of the Evidence

1. The title of the case

128. The very title of the case suggests that, from the outset, the case has
been misperceived by the Court. That misperception, in my view, has
impregnated its evaluation of the evidence ; it sheds light on the approach
of the Court to the case, which has been one which, in my perception, has
concentrated on the apparent delicts of the United States while depre-
ciating the alleged delicts of Nicaragua. The title of the case embraces the
essential thesis of Nicaragua (and the essential words of its Application :
cf. paras. 26 (a) and 26 (gj): that it concerns, and exclusively concerns :
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America). However, equally at the outset, the United
States informed the Court of its contrary thesis, namely, that the substan-
tive focus of the Court’s concern — if it were to engage the substance of the
case, which the United States contested — should be the activities by
Nicaragua in supporting Salvadoran and other rebels in and against El
Salvador and other neighbouring States. While concentrating on challeng-
ing the Court’s jurisdiction and the admissibility of the claims, the United
States consistently pleaded, by way of an affirmative defence, that its
activities in and against Nicaragua were and are justified as acts of col-
lective self-defence undertaken in support of El Salvador. It is accordingly
remarkable that the Court should have adopted, and persisted in main-

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taining, a title of the case which so obviously and exclusively reflects the
focus of Nicaragua. Such a stance by the Court is unprecedented.

129. Thus if one looks at the list of titles of all the cases which have
previously been dealt with by this Court, conveniently found in the Court’s
Yearbooks, one cannot find a listing which is comparable. Take, for
example, the first case, entitled : Corfu Channel (United Kingdom v. Al-
bania). If that case had been entitled as the current case is, it would have
read something like : Mining activities in the Corfu Channel against the
United Kingdom. But the Court chose a neutral formula, which recognized
implicitly that Albania might have had a defence to the claim of the United
Kingdom. It did so in the case which, perhaps more than any other of this
Court, has elements in common with the substance of the current case,
concerning as it did uses of force and questions of intervention. In the list
of the 70-odd cases of this Court, none is entitled so as to embrace only the
contentions of the claimant and inferentially exclude those of the defen-
dant — apart from the instant case.

130. In its traditional approach, this Court has acted as courts custom-
arily do. Cases are normally entitled, “Jones v. Smith”, not “Smith’s Tres-
pass on Jones’s Property”. Indeed, the objectivity and restraint of some
legal systems are so marked that the names of the parties to a case are not
revealed in the report, the case being known by its number or pagination in
the particular volume of the reports.

131. Ina letter to the Registrar of 27 April 1984, the Agent of the United
States referred to the title of the case and stated “that the United States
regards the title given to the case as prejudicial”. He requested that “the
title be replaced by one that is neutral”. He elaborated these contentions in
a letter of 2 May 1984. The Court took no positive action in response to his
request, despite the obvious infirmities of the ttle.

2. The failure to use the Court’s authority to find the facts

132. In the Nuclear Tests cases, the Court rightly held that : “In view of
the non-appearance of the Respondent, it is especially incumbent upon the
Court to satisfy itself that it is in possession of all the available facts.”
(CJ. Reports 1974, p. 263.) In the instant case, the Court, in its Judgment
on jurisdiction and admissibility of 26 November 1984, observed in
response to contentions of the United States about the difficulties of
finding the facts in a situation of the ongoing use of force in which security
considerations are constraining, that the Court “enjoys considerable pow-
ers in the obtaining of evidence” (1. C.J. Reports 1984, p. 437). Under its
Statute, the Court does enjoy such powers, as is illustrated by the terms of

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Article 49 and Article 50. Given the controversy that surrounded charges
by the United States of Nicaragua’s support of foreign insurrection and
Nicaragua’s adamant denial of those charges — despite the evidence in
support of those charges that came to light in the oral hearings — it might
have been thought that the Court would have chosen to make use of those
considerable powers in the obtaining of evidence to which it drew attention
at the jurisdictional stage. It could, for example, under Article 50 of the
Statute, have entrusted an appropriate commission of judges or another
organization with the task of carrying out a fact-finding enquiry in the
territories of Nicaragua, the United States, El Salvador, Honduras, Costa
Rica, Guatemala and Cuba, an enquiry which could have sought access to
probative data which certain governments claimed to possess, and which
could have examined knowledgeable persons who were unable or unwill-
ing otherwise to appear before the Court.

133. It may particularly be recalled in this regard that the Government
of the Republic of El Salvador, in its 1984 Declaration of Intervention,
affirmed that it had “positive proof” of the passage by Nicaragua of arms
to Salvadoran subversives which earlier had been delivered to the San-
dinistas (Declaration of Intervention, para. VIII (D)). In a press con-
ference, President Duarte also spoke of evidence which he was prepared to
submit to the International Court of Justice. Referring to “tangible evi-
dence... that Nicaragua is sending weapons to El Salvador. ..”, President
Duarte maintained that “the evidence does exist... We are going to submit
all this evidence to the court at The Hague when the time comes” (Press
conference of 30 July 1984, Foreign Broadcast Information Service
(FBIS), Daily Report, Latin America, reproduced in Annexes to the
Counter-Memorial submitted by the United States of America [on jurisdic-
tion and admissibility], Ann. 54, pp. 1, 5). El Salvador’s Declaration of
Intervention also maintains that, “The general headquarters” of the Sal-
vadoran rebels “near Managua is the command centre which directs
guerrilla operations and co-ordinates the logistical support, including the
provision of munitions, clothes and money .. .” (at para. V), that Nica-
ragua “provides houses and hideouts to the subversives of the FMLN, and
communications facilities of the same group are located in northwest
Nicaragua. These facilities are used to pass instructions and messages to
subversive units in El Salvador.” (At para. VI.) Moreover :

“since mid-1980 the Sandinista National Liberation Front has made
available to the Salvadorian guerrillas training sites in Nicaraguan
territory ... managed by Cuban and Nicaraguan military personnel
... located in El Paraiso, Jocote Dulce, Bosques de Jilao, and at
Kilometre 14 on the South Highway. The first two locations are
situated in the southern suburbs of Managua ; the second two are
outside the city.” (Ibid.)

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El Salvador’s Declaration makes a number of specific allegations of this
kind (at paras. IIJ-VII, IX, X). Furthermore, the Declaration of Interven-
tion maintains that El Salvador not only repeated in 1984 its requests to the
United States to assist it in collective acts of self-defence, but that such
requests were earlier made by El Salvador’s Revolutionary Junta of Gov-
ernment and the Government of President Magaña, that is to say, perhaps
as early as October 1979 (at para. XII).

134. Not only did the Court fail to decide to carry out an enquiry
pursuant to Article 50, for reasons, particularly related to the posture of the
United States, which may have had some justification. Quite without
justification, it even failed to request El Salvador to transmit the “positive
proof” of Nicaraguan subversion which El Salvador claimed to possess.
The Court goes so far as to hold that there is no evidence that El Salvador
ever requested, before Nicaragua brought these proceedings, that the
United States give it assistance in collective self-defence. But it failed to
invite El Salvador to transmit evidence in support of its official claim to the
Court that it had made such requests years earlier. Just as, in its adoption of
a title of the case, the Court seemed essentially to concern itself with
Nicaragua’s allegations rather than with the defence of the United States to
those allegations, so the Court displayed little interest in taking the steps it
might have taken to establish or disestablish the facts bearing upon the
allegations of the United States and El Salvador — and this despite its
obligation under Article 53 of the Statute to “satisfy itself” that the claim is
well founded in fact.

3. The Court’s articulation and application of evidential standards

135. As the Court rightly observes in today’s Judgment, one of its chief
difficulties has been the determination of the facts relevant to the dispute.
Those difficulties have been compounded by the absence of the United
States from the proceedings on the merits. In so far as evidential problems
have prejudiced the establishment of the factual contentions of the United
States, it has been the United States which has exacerbated its — and the
Court’s — difficulties by absenting itself. At the same time, there is ground
for concluding that the United States withdrew from the proceedings not
only because of its unwillingness to accept the Court’s holdings on juris-
diction and admissibility but because of its reaction to certain procedural
actions of the Court (see its statement of 18 January 1985, loc. cit, and
paragraph 114 of this opinion). For its part, the Court in today’s Judgment
affirms that, when equality between the parties to a case “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 par-
ties”.

136. That affirmation must be measured against the performance of the

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Court. The Court in today’s Judgment has set out rules of evidence which,
while appearing reasonable, on reflection are, in my view, open to ques-
tion. More than this, I find that the Court’s treatment in practice of
evidential problems has not been such as to produce “as perfect equality as
possible between the parties”.

137. The Court refers to the fact that it has before it documentary
information of various kinds from various sources. It states that it will treat
press articles and extracts from books “with great caution”, that, “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 never-
theless contribute, in some circumstances, to corroborating the existence
of a fact, i.e., as illustrative material additional to other sources of evi-
dence”. Nevertheless, “public knowledge of a fact may . . . be established
by means of these sources of information, and the Court can attach a
certain amount of weight to such public knowledge”.

138. As to statements emanating from high-ranking official political
figures, they “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.” The
Judgment maintains that “neither Article 53 of the Statute, nor any other
ground, could justify a selective approach”, in view of the elementary duty
to ensure equality between the Parties. However, the Court cannot treat
such sources as having the same value irrespective of whether the text is
found in an official or unofficial publication and irrespective of whether it
has been translated. The Court also holds that it is the facts occurring up to
the close of the oral proceedings on the merits of the case on which its
Judgment shall be based.

139. But while these criteria appear to be reasonable enough, and
indeed calculated to produce perfect equality between the Parties, are they
what they appear to be ? It is the fact that these rules of evidence when
applied will cut in favour of a government of the nature of that of the
Government of Nicaragua and against a government of the nature of that
of the Government of the United States. Given the relatively open, demo-
cratic character of administrative, Congressional and public processes in
the United States, it is not difficult to find official acts and admissions of
that Government, signed, sealed and delivered. Correspondingly, given the
relatively closed and authoritarian character of the Government of Nica-
ragua, such certified governmental acts are not to be found and any such
admissions are not reported in the pages of Nicaragua’s controlled and
censored press. To be sure, the Court is not well positioned to take account
of such considerations. But that does not detract from the fact that they
exist.

140. As for the Court’s choice of the date of the oral hearings as the date
for excluding further facts on which its Judgment shall be based, it may be
noted that what appears to be the most pertinent Court precedent is
precisely to the contrary (Nuclear Tests cases, 1.C.J. Reports 1974, pp. 263-
265 ; see para. 124 of this opinion).

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141. In view of the inherent constraints to which this Court is subject,
however, one might view its evidential approach as appropriate or at any
rate inescapable, if in practice it were applied in ways which produced, in
so far as possible, that perfect equality between the parties at which the
Court aims. In fact, the concrete application of the rules of evidence which
the Court has enunciated for this case has been prejudicial to the confir-
mation of the contentions of the United States. I have regretted to arrive at
this unhappy conclusion, for the reasons set out in the following para-
graphs.

142. There is a large quantity of probative documentary material which
the United States duly filed with the Court in 1984 in support of its claims
of Nicaraguan material support of the armed insurgency in El Salvador.
Some of that material is contained in Communist Interference in El
Salvador, Documents Demonstrating Communist Support of the Salva-
doran Insurgency, a selection of documents claimed to have been cap-
tured from Salvadoran insurgents summarized in paragraphs 16-20 of
the appendix to this opinion. While there is room for challenge of some
details of a White Paper of the United States analysing these documents
(Annex 50 to the United States Counter-Memorial), the documents them-
selves have been recognized as genuine by informed critics of United States
policy in Central America (appendix to this opinion, paras. 19, 151). No
question about their authenticity has been raised in Court or by the Court.
In its pleadings and oral argument, Nicaragua apparently made no specific
reference to these documents. The Court in today’s Judgment makes no
more than passing reference to them, principally observing that, since
these documents almost invariably use code-names (such as “Lagos” —
lakes — for Nicaragua), the Court cannot draw judgments from these
documents without further assistance from United States experts who
might have been called as witnesses had the United States appeared in the
proceedings. The Court fails to note that the collection of documents is
prefaced by chronological and organizational keys, and that each docu-
ment is prefaced by a glossary of explanation of its coded words. Glossary
A which introduces document A, for example, as its first item, reveals that
“Fidel” is “Fidel Castro”. Moreover, an appendix to Nicaragua’s plead-
ings — i.e., Nicaragua’s evidence — contains an explanation of the code-
words as weil as a revealing commentary on the documents themselves by
Congressman C. W. Bill Young ; see the Nicaraguan Memorial, Annex E,
Attachment |, pages 37 ff. In my view, with exertion of modest effort, the
meaning of these documents is readily apparent. They profoundly incul-
pate Nicaragua. The United States also filed with the Court in 1984 a
Background Paper : Nicaragua’s Military Build-Up and Support for Central
American Subversion, loc. cit., a compilation of factual data and analysis
referred to in paragraphs 77, 168 of the appendix. The Court fails to deal
seriously with this data and its analysis as well. The sole fact that the Court
finds it appropriate to establish in drawing upon this latter publication is
that the United States conducted overflights of Nicaraguan territory, a fact
shown by the aerial photographs of Nicaraguan installations which the

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Background Paper contains. The Court does not find it suggestive, still less
probative, to observe that one of those photographs of the Rio Blanco
Military Camp in Nicaragua shows the Salvadoran “FMLN” logo embla-
zoned on the grounds. The Court also omits to refer to photographs in that
publication of weapons and documents said to have been captured in
March 1983 from a group of Salvadoran guerrillas intercepted in Hon-
duras, including a photograph of a document on which “FSLN” and
“FMLN” are clearly inscribed (loc. cit.).

143. These documents are important for what they reveal. They are also
important in the framework of the Court’s evidential approach. The Court
excludes large quantities of data which confirm United States charges of
Nicaraguan material support of the insurgency in El Salvador, apparently
on the ground that such press reports, books, etc., can be introduced only
in so far as they corroborate other evidence. These press articles, books,
Congressional reports — and published admissions of the President and
other officials of Nicaragua — do corroborate the contents of these docu-
ments, which are such other evidence. But since the Court discounts those
documents, it apparently feels justified in excluding data which otherwise,
under its rules of evidence, could be admitted in corroboration of facts
established by those documents.

144. The Court’s Judgment, in so professing “great caution” in treating
press reports and extracts from books, maintains that they can do no more
than contribute, “in some circumstances”, to corroborating the existence
of a fact. Which circumstances ? In practice, it turns out, very largely the
circumstances of corroboration of contentions of Nicaragua. The Judg-
ment more than once finds it appropriate to cite press sources to this end.
How is it that so little of the very large body of newspaper, Congressional
and other reports which sustain contentions of the United States — many
of which reports were introduced into evidence by Nicaragua — are used by
the Court to corroborate contentions of the United States ? Presumably,
by the criteria which the Court advances, because they do not corroborate
facts independently established. But such a presumption is just that — a
presumption, and one quite unfounded in this case.

145. Consider not only the documentary data referred to above which is
corroborated by these press and Congressional and other reports. Con-
sider the dossier of data assembled and attached in the appendix to this
opinion which shows, in so many ways, with such richness of detail, from
so many sources — some adverse to the interests of the United States
Government in this case — that the Nicaraguan Government has been
engaged since 1979 in a sustained effort to overthrow the Government of
El Salvador through material assistance to armed insurgency in that

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country. That data corroborates facts independently established ; it
demonstrates the reality, actuality and extent of that Nicaraguan effort.
That cornucopia of corroboration can best be appreciated by a reading
of the appendix. But what salient facts independently established — in ad-
dition to facts found in the two United States documents referred to above
— does that data corroborate ?

146. Nicaragua’s premier witness — who counsel for Nicaragua treated
more as an expert than a witness — on the issue of whether Nicaragua had
been engaged in sending arms to the Salvadoran insurgents, Mr. David
MacMichael, admitted in Court in response to my questions 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 Salvadoran insur-
gency” (appendix, para. 76). He acknowledged that, when the former
Democratic Secretary of State, Edmund Muskie, declared in January 1981
that the arms and supplies being flown into El Salvador for the use of the
Salvadoran insurgents were sent with the knowledge and help of the
Nicaraguan authorities, Mr. Muskie spoke the truth (ibid). He acknow-
ledged that military leaders of the Salvadoran insurgency are based in
Nicaragua (ibid., para. 73). He testified to all this and more, and did so on
the basis of his own examination of the evidence. He did not offer hearsay
evidence. Mr. MacMichael claimed to have examined all the data, raw and
finished, that the intelligence resources of the United States had collected
on the question of Nicaraguan support for the Salvadoran insurgency for
the 1979-1983 period (until he left the CIA’s employ early in 1983). It is
true that he could do no more than offer his own opinion of that material,
and the Court is correct in its apparent allusion to that effect. But his
opinion for the period from the accession of the Sandinistas to power in
July 1979 to the Spring of 1981 is corroborated by a variety of probative
sources, as the appendix to this opinion establishes. Moreover, the con-
clusions of Mr. MacMichael to which reference has just been made were
shaken neither by Nicaragua nor by any Member of the Court. Indeed,
after these admissions were elicited, Nicaraguan counsel, who had earlier
directly examined Mr. MacMichael at length, were conspicuous in their
failure to recall him for further questioning in an effort to regain the
ground which he had so dramatically cut out from under Nicaragua’s
case.

147. Mr. MacMichael also testified that, after early 1981, it could not be
shown that Nicaragua had shipped arms to the Salvadoran insurgency (a
conclusion arguably qualified by his affirmation that a shipment of arms
destined to transit Nicaragua had been seized in Costa Rica in 1982). While
the masses of material collected in the appendix to this opinion do show
that the flow of arms was suspended in the Spring of 1981, they also show
that it revived, most sharply in 1982, and was sustained, apparently in
irregular and lesser measure, thereafter. That is to say, that material does
not corroborate Mr. MacMichael’s opinion for the post-Spring 1981

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period. That is hardly reason to exclude material which does corroborate
his testimony for the pre-Spring 1981 period. Nor is it reason to exclude
material for the post-1981 period, which is significant in so strongly indi-
cating that Nicaragua’s contentions for the post-1981 period also are false,
not least because that material, while it does not corroborate Mr. Mac-
Michael’s opinion for the post-1981 period, otherwise has substantial
corroboration — including corroboration by the admissions of the Presi-
dent of Nicaragua. It will be recalled that the Court holds that admissions
by high-ranking political figures are of “particular probative value”.

148. It is important to recall what the Court’s Judgment omits to
observe, namely, that these “solemn declarations” of Nicaragua’s witness,
Mr. MacMichael, for the pre-1981 period, squarely contradict those of the
Foreign Minister of Nicaragua, and of another star witness, Commander
Carrion, who is one of the nine governing comandantes of Nicaragua.
Indeed, Commander Carrion contradicted himself, testifying before the
Court that Nicaragua “never” had a policy of sending arms to foreign
insurgents while at the same time Nicaragua submitted his affidavit to the
Court which maintained that Nicaragua had not sent such arms to the
insurgents in El Salvador “in a good long time” (appendix, para. 55). It
should also be observed that, while Nicaragua heavily relied, and the
Court relies, on an affidavit of Mr. Edgar Chamorro, a defector from the
contras, the Court fails to point out that, not only does other evidence
(press reports) submitted by Nicaragua fail to corroborate elements of
Mr. Chamorro’s testimony, but such evidence contains statements of
Mr. Chamorro which contradict elements of his testimony.

149. While I have no doubt that the Court has endeavored to achieve a
perfect equality between the Parties in its treatment of the evidence, I
regret that I am forced to conclude that its reach has exceeded its grasp. To
take another striking example, the Court, as noted, maintains that it has
avoided “a selective approach” in treating press statements, including
those of figures of the highest political rank. Yet the Court relies upon press
statements of President Reagan, while it fails to give weight to President
Ortega’s admissions in press interviews in January 1985 and April 1986
that Nicaragua is willing to suspend its material aid to the insurgents in El
Salvador on the condition that the United States ceases its material aid to
the contras (supra, para. 29, and appendix, paras. 30-33). These reiterated
statements of President Ortega have been published in 1985 in the New
York Times and in Madrid’s 4 BC (in their original Spanish), and, in other
terms but to like effect, in 1986 in the Wall Street Journal. Not only is

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Nicaragua not known to have requested correction of these reports ; not
only have these newspapers not run such corrections ; in the case of the
New York Times, it has been confirmed that President Ortega’s admission
~ run off in more than a million copies — has not been the subject of
communication by the Nicaraguan Government. This statement of Presi-
dent Ortega published in the New York Times was quoted in the United
Nations General Assembly by the representative of El Salvador ; its
authenticity, and its import, were not denied by the representative of
Nicaragua, who otherwise took part in the debate. Nevertheless, the Court
finds the 1985 statement of President Ortega insignificant because, it
speculates, it may mean no more than that Nicaragua is willing to suspend
movement of arms through Nicaragua to the Salvadorans provided that
the United States shows Nicaragua the routes of that movement. What is
the basis for this speculation ? That a request to this effect was made by
President Ortega to Mr. Enders in 1981, more than three years earlier, a
request which Mr. Enders declined on the ground that the United States
could not share its intelligence information with Nicaragua. The Court
also concludes that President Ortega’s statement cannot mean what it says,
since it is inconsistent with the reiterated official policy of Nicaragua,
inconsistent with its firm denials that it has provided arms to the Sal-
vadoran insurgents. But the significance of any admission is its inconsis-
tency with the professed position of the party. Moreover, President Ortega
made a like admission a year later in an interview with the Wall Street
Journal. It is obvious that President Ortega’s unambiguous affirmation
that Nicaragua is willing to suspend transit through its territory of military
aid to the Salvadorans in return for cessation of attacks upon Nicaragua is,
as the representative of El Salvador pointed out to the General Assembly
of the United Nations, “an eloquent confession” (A/40/PV.90, p. 83). Has
the Court’s treatment of this confession been such as to guarantee perfect
equality between the Parties ?

150. It must be recognized that any endeavour to rescue the credibility
of Nicaragua’s case cannot have been easy. On the one hand, the Court
pronounces itself satisfied that, between July 1979 and the early months of
1981, an intermittent flow of arms was routed via the territory of Nica-
ragua to the armed opposition in Nicaragua. On the other hand, the Court
concludes :

“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

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scale, or that the Government of Nicaragua was responsible for any
flow of arms at either period”.

151. That remarkable conclusion calls for observations with which this
opinion is replete ; two will suffice at this juncture. The first is that the
evidence which the Court is prepared to consider which has led it to this
conclusion is subject to the infirmities which have just been described. In
view of all the evidence which the Court has chosen to exclude or discount,
its inability to find Nicaragua responsible for the flow of arms is somewhat
more comprehensible. Second, however, that is far from saying that this
critical conclusion of the Court is credible. I find it incredible — an exigent
evaluation which is justified even by the evidence which the Court recounts
and accepts.

152. Thus the Court acknowledges that, in the meeting between Com-
mander Ortega and Assistant Secretary of State Enders on 12 August 1981,
it emerges that the Nicaraguan authorities had 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 EI Salvador.

“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.”

This reasonable conclusion of the Court is supported by an amplitude of
evidence, in addition to that provided in the transcript of the Ortega/
Enders exchange. It is supported by detailed data about the use of the
airport at Papalonal provided by the United States in a Background Paper
duly filed with the Court in 1984 (/oc. cit., pp. 20-21) and subsequently
amplified in “Revolution Beyond Our Borders” (loc. cit, pp. 18-19). The
United States there shows how an undeveloped agricultural dirt airstrip of
800 metres on a former sugar plantation not far from Managua was
speedily turned into a lengthened, hardened, graded military facility fully
suitable for the handling of aircraft capable of carrying military cargo
(appendix to this opinion, para. 58). The United States produced aerial
photographs of the Papalonal installations and their usage (“Revolution
Beyond Our Borders”, loc. cit., pp. 28-29) — whose procurement, while so
obviously defensive, the Court finds nevertheless to be a violation of
Nicaraguan sovereignty. I read out in Court details of this evidence in
putting questions to Nicaragua’s Agent and counsel (Hearing of 19 Sep-
tember 1985, morning) ; they made no attempt to refute that evidence.
Apparently they found that evidence to be irrefutable. Nicaragua’s wit-
ness, Mr. MacMichael, earlier had agreed that Papalonal airport had been
used for the dispatch of aircraft carrying weapons to the insurgents in El

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ACTIVITÉS MILITAIRES ET PARAMILITAIRES (OP. DISS. SCHWEBEL) 330

tance appréciable, ou méme que le Gouvernement du Nicaragua soit,
pour Pune ou l’autre de ces périodes, responsable des envois d’armes ».

151. Cette remarquable conclusion appelle des observations du genre
de celles qui abondent dans la présente opinion mais il me suffira main-
tenant d’en formuler deux. Premièrement, je marquerai que les éléments de
preuve que la Cour est disposée à examiner et qui l’ont amenée à cette
conclusion présentent les faiblesses que je viens de décrire. Au vu de tous
les éléments de preuve que la Cour a choisi d’exclure ou d'ignorer, on
comprend un peu mieux qu’elle n’ait pas pu conclure que le Nicaragua était
responsable du flux d'armes. Secondement, je dirai qu’il ne s'ensuit cepen-
dant pas — tant s’en faut — que cette conclusion capitale de la Cour soit
crédible. Je ne la trouve pas crédible — jugement sévère que justifient même
les éléments de preuve que la Cour reprend et accepte.

152. La Cour admet donc qu’il ressort de la rencontre du 12 août 1981
entre le commandant Ortega et le sous-secrétaire d'Etat Enders que les
autorités nicaraguayennes avaient immédiatement pris des mesures à la
demande des Etats-Unis, pour faire cesser ou empêcher diverses formes
d'appui à l’opposition armée au Salvador :

«Il y a là, de avis de la Cour, une reconnaissance de certains faits,
tels que l’existence d’une piste d'atterrissage destinée à accueillir de
petits appareils, vraisemblablement pour le transport d'armes, avec
pour destination probable El Salvador, même si la Cour n’a pas la
preuve concrète de tels transports. L’empressement mis par les auto-
rités du Nicaragua à fermer cette voie constitue un indice sérieux que
celle-ci servait effectivement, ou avait servi à un tel usage. »

Cette conclusion raisonnable de la Cour était étayée par d’abondants
éléments de preuve, outre ceux fournis dans le compte rendu de l’entretien
qui a eu lieu entre M. Ortega et M. Enders. Elle est étayée par les indi-
cations détaillées sur l'usage de l’aéroport de Papalonal qui ont été données
par les Etats-Unis dans un Background Paper dûment déposé à la Cour en
1984 (loc. cit., p. 20-21) et développées ultérieurement dans « Revolution
Beyond Our Borders » (loc. cit, p. 18-19). Les Etats-Unis y montrent
comment une piste de terre battue non aménagée de 800 mètres de long
environ, située sur une ancienne plantation de canne à sucre à proximité de
Managua, avait été rapidement allongée, consolidée et améliorée en une
installation militaire prête à accueillir des aéronefs capables de transporter
des cargaisons militaires (appendice à la présente opinion, par. 58). Les
Etats-Unis ont produit des photographies aériennes des installations
de Papalonal montrant l'usage qui en est fait (« Revolution Beyond Our
Borders », loc. cit., p. 28-29) — photographies qui, bien qu'ayant été mani-
festement prises à des fins de défense, ont été taxées par la Cour de violation
de la souveraineté du Nicaragua. J'ai donné lecture à la Cour de passages
de ces éléments de preuve quand j’ai posé des questions à l’agent et aux
conseils du Nicaragua (audience du 19 septembre 1985, matin) ; ils n’ont pas
essayé de réfuter ces preuves. Apparemment. ils ont estimé que ces preuves

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155. As to the Court’s conclusions of law to this effect, it may be
observed that the Court has taken one position, while I have taken another,
which latter position, however, is essentially shared by (a) Nicaragua, (b)
the United States, (c) El Salvador, and (d) 40 years of progressive devel-
opment of the law and of authoritative interpretation of the governing
principles of the United Nations Charter. In my view, the Judgment of the
Court on the critical question of whether aid to irregulars may be tanta-
mount to an armed attack departs from accepted — and desirable — law.
Far from contributing, as so many of the Court’s judgments have, to the
progressive development of the law, on this question the Court’s Judgment
implies a regressive development of the law which fails to take account of
the realities of the use of force in international relations : realities which
have unfortunately plagued the world for years and give every sign of
continuing to do so — whether they are recognized by the Court or not. I
regret to say that I believe that the Court’s Judgment on this profoundly
important question may detract as much from the security of States as it
does from the state of the law.

156. In its Memorial on the merits of the case, Nicaragua set out the
accepted law on the question. It applied that law to what it sees as the facts
of United States support of the contras. But, since Nicaragua, together with
Cuba, has participated so pervasively in the organization, training, arming,
supplying and command and control of the insurgent forces in El Salvador,
its analysis is no less pertinent to the question of whether its actions are
tantamount to armed attack upon El Salvador.

157. Nicaragua concluded that the “use by a State of armed groups of

. irregulars to carry out acts of armed violence against another state
violates the prohibition on the use of force contained in Article 2 (4)...”. It
maintains that, “The writings of jurists, the actions of the United Nations
and the positions taken by the United States itself are in agreement” on this
position, and that that “position finds support, as well, in the pronoun-
cements of the Court” (Nicaraguan Memorial, para. 227). The law which
Nicaragua marshals in support of this conclusion is stated in the Nica-
raguan Memorial in the following terms, which merit extensive quota-
tion :

“228. That the direction and control of armed bands by a State is
attached to that State for purposes of determining liability, is an
elementary principle of international law. Among the many authori-
ties that could be cited for the proposition, only a few of the most
prominent are mentioned here. The principle has been codified in
draft form by the International Law Commission. Article 8 of the
draft articles on State Responsibility reads :

‘The conduct of a person or group of persons shall also be
considered as an act of the State under international law if (a) it is
established that such persons or group of persons was in fact acting

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ACTIVITÉS MILITAIRES ET PARAMILITAIRES (OP. DISS. SCHWEBEL) 332

155. S’agissant du raisonnement juridique tenu par la Cour 4 cet effet,
on peut observer que celle-ci a adopté une position et quej’en ai adopté une
autre, mais que la mienne correspond pour l’essentiel à celles a) du Nica-
ragua, b) des Etats-Unis, c) d'El Salvador, et d) qu’elle est corroborée par
quarante ans de développement progressif du droit et d’interprétation
autorisée des principes pertinents de la Charte des Nations Unies. A mon
avis, Parrét de la Cour sur la délicate question de savoir si l’aide à des
troupes irrégulières peut équivaloir à une agression armée s’écarte du droit
accepté — et souhaitable. Loin de contribuer, comme l’ont fait tant d’arrêts
de la Cour, au développement progressif du droit, l’arrêt de la Cour
marque sur ce point une régression du droit en ce qu'il refuse de tenir
compte des réalités de l'emploi de la force dans les relations internatio-
nales ; le monde subit malheureusement cet état de fait depuis des années
et il ne semble pas près de s’en affranchir — que la Cour le reconnaisse ou
non. Je suis au regret de dire qu’à mon avis l’arrêt de la Cour sur cette ques-
tion d’une importance fondamentale risque de nuire autant à la sécurité
des Etats qu’à l’évolution du droit.

156. Dans son mémoire sur le fond, le Nicaragua a exposé les règles de
droit acceptées en la matière et les a appliquées à ce qu’il considère comme
les faits constitutifs de l’appui des Etats-Unis aux contras. Mais, puisque le
Nicaragua, de concert avec Cuba, a joué un si grand rôle dans Porganisa-
tion, l'entraînement, l'armement, l'équipement ainsi que dans le comman-
dement et le contrôle des forces d’insurrection au Salvador, son analyse est
tout aussi pertinente quand il s’agit de décider si ses actions équivalent à
une agression armée contre El Salvador.

157. Le Nicaragua a conclu que « l’utilisation, par un Etat ... d’irrégu-
liers chargés de commettre des actes de violence armée contre un autre Etat
viole Pinterdiction de l'emploi de la force qui est inscrite à l’article 2,
paragraphe 4...» Selon lui «les écrits de la doctrine, la pratique des
Nations Unies et les positions prises par les Etats-Unis eux-mêmes démon-
trent tous » qu’il en est ainsi, et « cela est confirmé en outre par la juris-
prudence de la Cour » (mémoire du Nicaragua, par. 227). Les règles de
droit que le Nicaragua invoque à l'appui de cette conclusion sont énoncées
dans son mémoire, dans des termes qui méritent d’être abondamment
cités :

« 228. C’est un principe élémentaire du droit international que la
direction et le contrôle de bandes armées par un Etat soient impu-
tables audit Etat et que celui-ci en soit responsable. Nombreux sont
les textes qui pourraient être cités à l’appui de cette idée ; quelques-
uns seulement, parmi les plus importants, seront mentionnés ici. Le
principe en question a été codifié sous forme de projet par la Com-
mission du droit international. L’article 8 du projet d’articles sur la
responsabilité des Etats se lit comme suit :

« Est aussi considéré comme un fait de l’Etat d’après le droit
international le comportement d’une personne ou d’un groupe de
personnes si a) il est établi que cette personne ou ce groupe de

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MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

stitute an “armed attack” ’. (International Law and the Use of Force
by States, 1963, pp. 278-279.)

231. Rosalyn Higgins also takes the position that use of irregulars to
carry out armed attacks against another state is, ‘from a functional
point of view,’ a use of force. Higgins, “The Legal Limits to the Use of
Force by Sovereign States, United Nations Practice,’ 37 British Year
Book of International Law 269 (1961), page 278. She develops the
historical background for the growing emphasis on indirect uses of
force in U.N. practice. At San Francisco, she points out, the focus was
on conventional methods of armed attack, but ‘the unhappy events of
the last fifteen years’ necessitated a substantial reevaluation of the
concept of the use of force. (/bid., pp. 288-289.) Thus, the ‘law-making
activities’ of the General Assembly and the International Law Com-
mission defining and outlawing indirect aggression did not take place
‘in vacuo’, but arose from a combination of the continuing efforts to
define aggression, the Nuremburg principles, and the stream of inci-
dents confronting the Security Council and the General Assembly.
(bid. p. 290.)

232. Rifaat also describes this evolving recognition of the dangers
of indirect uses of force. Since 1945, he writes, states have with
growing frequency used armed bands and other covert uses of force in
an attempt to circumvent the prohibitions of Article 2 (4).

‘States, while overtly accepting the obligation not to use force in
their mutual relations, began to seek other methods of covert pres-
sure in order to pursue their national policies without direct armed
confrontation.

The incompatibility of the classical external armed aggression
with the present rules regulating international relations, led to the
development of other methods of covert or indirect aggression.’
(International Aggression, 1979, p. 217.)

These other methods include ‘subversion, fomenting of civil strife,
aiding armed bands or the sending of irregulars to assist rebel groups
in the target state’...

233. Thus, there is now a substantially unanimous modern view con-
cerning indirect use of force through armed groups of mercenaries or
irregulars. Whatever legal doubts may have existed prior to World
War II were dispelled by the events of the post-war period. If the
prohibition on the use of force in Article 2 (4) was to have any meaning, it
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MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

would have to cover this new and dangerous mode of military activity by
armed mercenaries and irregulars. As Novogrod writes, ‘to argue that
direct and indirect aggression could not equally be violations of arti-
cle 2 (4) of the Charter would be to make a fetish of literalism’.
({Indirect Aggression, p. 227.)

2. The Position of the United States

234. The United States has consistently been among the most
forceful advocates of this view that the use of armed groups by a State
to carry out military activities against another State amounts to a use
of force. Again, it is sufficient to select only a few of the most salient
among a multitude of authorities.

235. As early as 1947, U.S. Representative Austin, in a statement to
the Security Council, condemned the support provided to guerrillas in
Greece :

‘I do not think that we should interpret narrowly the “Great
Charter” of the United Nations. In modern times, there are many
ways in which force can be used by one State against the territorial
integrity of another. Invasion by organized armies is not the only
means for delivering an attack against a country’s independence.
Force is effectively used today through devious methods of infil-
tration, intimidation and subterfuge.

But this does not deceive anyone. No intelligent person in pos-
session of the facts can fail to recognize here the use of force,
however devious the subterfuge may be. We must recognize what
intelligent and informed citizens already know. Yugoslavia, Bul-
garia and Albania, in supporting guerrillas in northern Greece,
have been using force against the territorial integrity and political
independence of Greece. They have in fact been committing acts of
the very kind which the United Nations was designed to prevent,
and have violated the most important of the basic principles upon
which our Organization was founded.’ (2 U.N. SCOR (147th and
148th mtg.), pp. 1120-1121 (1947).)

236. In a study prepared for the Legal Adviser’s Office of the U.S.
State Department in 1965, Richard Baxter concluded :

‘Although the sending of volunteers might be regarded as a form
of “indirect aggression,” the conduct of the responsible state may
be so blatant that “indirect aggression” would be a misnomer.
There is a spectrum of conduct from the departure of individual
volunteers from the territory of a neutral State, which is not a
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MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

violation of the State’s duty of neutrality, to outright State parti-
cipation under the fiction of volunteers. A definition of “use of
force” would have to specify when State responsibility is engaged.’
(Study of the Principles of International Law Concerning Friendly
Relations and Co-operation among States in Accordance with the
Charter of the United Nations, 1965, pp. 1-12.)

237. Again in 1969, the same view was expressed by John Lawrence
Hargrove, U.S. Representative to the Special Committee on the
Question of Defining Aggression :

‘The Charter speaks in Article 2, paragraph 4, of the “use of
force” in international relations ; it does not differentiate among
the various kinds of illegal force, ascribing degrees of illegality
according to the nature of the techniques of force employed.
Articles 1 and 39 of the Charter speak of ‘“‘aggression” ; similarly,
they altogether fail to differentiate among kinds of aggression on
the basis of methods of violence which a particular aggressor may
favor. There is simply no provision in the Charter, from start to
finish, which suggests that a State can in any way escape or ame-
liorate the Charter’s condemnation of illegal acts of force against
another State by a judicious selection of means to its illegal ends.’
(Statement by John Lawrence Hargrove, United States Rep-
resentative to the Special Committee on the Question of Defi-
ning Aggression, 25 March 1969, Press Release USUN-32 (69),

p. 5.)

238. The same view was espoused in 1973 by Judge Schwebel, who
was the United States Representative to the Special Committee on the
Question of Defining Aggression. Writing a year before the Defini-
tion was adopted, he argued ‘that the Charter of the United Nations
makes no distinction between direct and indirect uses of force’ and
that the ‘most pervasive forms of modern aggression tend to be
indirect ones’. (‘Aggression, Intervention and Self-Defence in Modern
International Law’, 136 Collected Courses, Academy of International
Law, The Hague (1972-II), p. 458.)

3. United Nations Practice

239. The consistent practice of the United Nations confirms the
proposition that substantial involvement in the activities of armed in-
surgent groups is a violation of the prohibition on the use of force in
Article 2 (4).

240. The United Nations concerned itself almost from the begin-
ning with the definition and elaboration of the concept of ‘the use of
force’ contained in the Charter. A series of resolutions and other
actions defining or condemning the use of force and aggression show a
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MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

gradual evolution from the general characterization of support for
insurgent groups as unlawful to specific condemnations invoking
Article 2 (4). The Draft Declaration on the Rights and Duties of States,
adopted by the International Law Commission in 1949, imposed a
duty :

‘to refrain from fomenting civil strife in the territory of another state,
and to prevent the organization within its territory of activities calcu-
lated to foment such civil strife’. (Article 4, Report of the Interna-
tional) Law Commission, U.N. GAOR Supp. (No. 10), p. 10, U.N.
Doc. A/925 (1949).)

Similarly, the Commission’s Draft Code of Offences against the
Peace and Security of Mankind included among the enumerated
offenses :

‘(4) The incursion into the territory of a State from the territory
of another State by armed bands for a political purpose.

(5) The undertaking or encouragement by the authorities of a State
of activities calculated to foment civil strife in another State, or the
toleration by the authorities of a State of organised activities cal-
culated to foment civil strife in another State.’ (International Law
Commission, Report, 9 U.N. GAOR, Supp. (No. 9), p. 11, U.N. Doc.
A/2693 (1954).)

241. The General Assembly, too, has repeatedly condemned the use
of force by acting through insurgent groups. In its 1950 Peace
Through Deeds Resolution, the Assembly denounced “the interven-
tion of a state in the internal affairs of another state for the purpose of
changing its legally established government by a threat or use of
force.’ (Resolution 380 (V).)

‘Whatever the weapon used, any aggression, whether committed
openly, or by fomenting civil strife in the interest of a Foreign Power, or
otherwise, is the gravest of all crimes against peace and security
throughout the world.’

See also Essentials of Peace Resolution, G.A. Resolution 290 (IV) ;
1965 Declaration on the Inadmissibility of Intervention in the
Domestic Affairs of States and the Protection of their Independence
and Sovereignty, G.A. Resolution 2131 (XX).

242. The Assembly’s position on the use of armed insurgent groups
is further refined in the 1970 Declaration on Friendly Relations and
Cooperation between States, G.A. Resolution 2625 (XXV), adopted
without vote on 24 October 1970... .
338 MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

243. The first principle enunciated in the Declaration is the prohibition
against the use of force, cast in the language of Article 2 (4). Subsumed
under this principle are the very forms of involvement with the activities of
armed bands that appear in this case :

‘Every State has the duty to refrain from organizing or encouraging
the organization of irregular forces or armed bands, including mer-
cenaries, for incursion into the territory of another State.

Every State has the duty to refrain from organizing, instigating,
assisting or participating in acts of civil strife or terrorist acts in
another State or acquiescing in organized activities within its ter-
ritory directed towards the commission of such acts, when the acts
referred to in the present paragraph involve a threat or use of
force.’

244. According to Judge Lachs, ‘indirect means of attacking States
were barred’ by this Declaration. ‘The Development and General
Trends of International Law in Our Time’, 169 Collected Courses, The
Hague (1980-IV), page 166. Similarly, former President Jiménez de
Aréchaga asserts that the 1970 Declaration constitutes an ‘important
interstitial development of some of the implications of Article 2 (4)
He finds the origins of the 1970 Declaration in the increasing use of
methods of indirect aggression since 1945, in the sense of ‘the sending
of irregular forces or armed bands or the support or encouragement
given by a government to acts of civil strife in another State’. Recog-
nizing that ‘these acts may involve the use of force’, he argues that the
purpose of the Declaration was simply to prevent states from doing
‘indirectly what they are precluded by the Charter from doing
directly’. (159 Collected Courses, The Hague (1979-]), p. 93.)

245. The United Nations development culminated with the adoption in
1974 of Resolution 3314 (XXIX), a Definition of Aggression endorsed
by the Sixth (Legal) Committee, and adopted by the General Assembly
by consensus on December 14, 1974.

246. Article 1 of the Definition defines aggression as ‘the use of armed
force by a State against the sovereignty, territorial integrity or political
independence of another State’. Thus the Definition of Aggression is
again directly and explicitly related to the use of force prohibited by
Article 2 (4) of the Charter. Article 3 specifies certain acts that shall
‘qualify as aggression’, i.e., that constitute the use of force in violation
of Article 2 (4). Among these, and of specific application in the present
context, Article 3 (g) includes :

‘The sending by or on behalf of a State of armed bands, groups,
irregulars or mercenaries, which carry out acts of armed force against

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another State of such gravity as to amount to the acts listed above, or its
substantial involvement therein.’

247. The Soviet Union proposed including subparagraph 3 (g)
under the separate label of ‘indirect aggression’. Draft proposal sub-
mitted by the U.S.S.R., U.N. General Assembly Special Committee
on Question of Defining Aggression, U.N. Doc. A/AC.134/L.12. In
the final Definition, however, subparagraph 3 (g) was included with-
out differentiating it from other, more overt forms of aggression. The
Special Committee accepted the proposition that the U.N. Charter pro-
vides no basis for distinguishing between a state using force by acting on
its own and a State using force by acting through armed insurgent groups.
See Report of the Sixth Committee, U.N. Doc. A/8929, page 5
(1974) ; see also Stone, Conflict through Consensus, 1977, page 89. The
Definition condemns the sending of armed bands as a use of force on the
same plane as direct invasion, bombardment, blockade, and other tra-
ditional notions of armed aggression. (See ibid. p. 75 ; see also Ferencz,
‘A Proposed Definition of Aggression’, 22 International and Com-
parative Law Quarterly (1973), at p. 421 ; 1981 Declaration on the Inad-
missibility of Intervention in the Internal Affairs of States, 36 U.N.
GAOR 78, U.N. Doc. A/Res./36/103 (1981)).” (Emphasis sup-
plied.)

158. On this, as Nicaragua’s Memorial points out, Nicaragua and the
United States are in agreement. As the United States has officially
observed in connection with the current dispute :

“A striking feature of the public debate on the conflict in Central
America is the degree to which all parties concerned accept the prin-
ciple that a nation providing material, logistics support, training and
facilities to insurgent forces fighting against the government of an-
other state is engaged in a use of force legally indistinguishable from
conventional military operations by regular armed forces .. . The
critical element of the debate, therefore, is not the identification of the
applicable legal standard, but the determination of the facts to be
measured against that undisputed legal standard.” (“Revolution
Beyond Our Borders”, loc. cit., p. 1.)

159. For its part, El Salvador, in its Declaration of Intervention, main-
tains that :

“Nicaragua has been converted into a base from which the terrorists
seek the overthrow of the popularly elected Government of our
nation. They are directed, armed, supplied, and trained by Nicaragua
to destroy the economy, create social destabilization, and to keep the

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people terrorized and under armed attack by subversives directed and
headquartered in Nicaragua ... The reality is that we are the victims of
aggression and armed attack from Nicaragua and have been since at
least 1980.” (At p. 4.)

160. In today’s Judgment, the Court acknowledges that the views of the
parties to a case as to the law applicable to their dispute are very material,
particularly when their views are concordant. The Court also does not deny
that the Parties to this case agree on the definition of the acts which may
constitute an armed attack. Nevertheless, on the critical question of
whether a State’s assistance to foreign armed irregulars who seek to over-
throw the government of another State may be tantamount to an armed
attack by the former State upon the latter, the Court arrives at a conclusion
which is discordant with the agreed views of both Parties.

161. The Court's conclusion is inconsonant with generally accepted
doctrine, law and practice as well. The Court’s conclusion is inconsistent
with the views of Professor Brownlie which Nicaragua’s Memorial quotes
that a “use of force” may comprise not merely an organized armed attack
by a State’s regular forces but the giving of “aid to groups of insurgents on
the territory of another State”. It is inconsistent with his conclusion that a
general campaign by irregulars with the complicity of the government of
the State from which they operate may constitute an “armed attack”. It is
inconsistent with what Nicaragua’s Memorial describes as “a substantially
unanimous modern view concerning indirect use of force . . .”. It is
inconsistent with the position which the United States has maintained
since 1947 that one State’s support of guerrillas operating against another
is tantamount to an armed attack against the latter’s territorial integrity
and political independence. It is inconsistent with what Nicaragua rightly
observes is a consistent practice of the United Nations holding that “sub-
stantial involvement” in the activities of armed insurgent groups is a
violation of “the prohibition on the use of force in Article 2 (4)”. It is
inconsistent with repeated declarations of the United Nations expressive
of the international legal duty of States to refrain from fomenting civil
strife — a form of aggression which the General Assembly has denomi-
nated as among “the gravest of all crimes against peace and security ...”. It
is inconsistent with the terms of the “Friendly Relations” Declaration,
which the Court treats as an authoritative expression of customary inter-
national law — a declaration which, in its interpretation of Article 2,
paragraph 4, of the Charter, holds that, “Every State has the duty to refrain
from organizing, instigating, assisting or participating in acts of civil strife
or terrorist acts in another State... when the acts... involve a threat or use
of force”. It is inconsistent with the conclusion of Judge Lachs that “in-
direct means of attacking States were barred” by this Declaration. It is
inconsistent with the conclusion of Judge Jiménez de Aréchaga that this
Declaration, “an important interstitial development of some of the impli-

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cations of Article 2 (4)”, deals with indirect aggression, including the
support given by a government to acts of civil strife in another State. Such
acts, he points out, “may involve the use of force and States should not be
permitted to do indirectly what they are precluded by the Charter from
doing directly . . .”. And the Court’s conclusion is inconsistent with the
terms and intent of the United Nations Definition of Aggression on which
both Nicaragua and the Court rely.

I, The Court’s Conclusion Is Inconsistent with the General Assembly's
Definition of Aggression

162. While the conclusion which the Court has reached on this question
is inconsistent with the large and authoritative body of State practice and
United Nations interpretation to which the Nicaraguan Memorial adverts,
the Court is not the first to maintain that acts of armed subversion — of
“indirect aggression” — by one State against another cannot be tanta-
mount to armed attack. In the long debates that ultimately culminated in
the adoption by the United Nations General Assembly of the Definition of
Aggression, opinion on this question was divided. The Soviet Union, a
leading proponent of the adoption of a definition of aggression, in its draft
definition enumerated among the acts of “armed aggression (direct or
indirect)” :

“The use by a State of armed force by sending armed bands,
mercenaries, terrorists or saboteurs to the territory of another State
and engagement in other forms of subversive activity involving the use
of armed force with the aim of promoting an internal upheaval in
another State . . .” (A/8719, p. 8 ; emphasis supplied.)

Six Powers — Australia, Canada, Italy, Japan, the United Kingdom and
the United States — proposed that the use of force in international rela-
tions, “overt or covert, direct or indirect” by a State against the territorial
integrity or political independence of another State may constitute aggres-
sion when effected by means including :

“(6) Organizing, supporting or directing armed bands or irregular
or volunteer forces that make incursions or infiltrate into another
State ;

(7) Organizing, supporting or directing violent civil strife or acts of
terrorism in another State ; or

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(8) Organizing, supporting or directing subversive activities aimed
at the violent overthrow of the Government of another State.”
(A/8719, pp. 11-12.)

163. In marked contrast to these approaches of “East” and “West”, 13
small and middle Powers put forward a draft definition of aggression
which did not include indirect as well as direct uses of force. Their defi-
nition spoke only of “the use of armed force by a State against another
State”. Their list of acts of aggression conspicuously failed to include acts
of force effected by indirect means. The Thirteen-Power draft further
specified, in a section which did not list acts of aggression, that :

“When a State is a victim in its own territory of subversive and/or
terrorist acts by irregular, volunteer or armed bands organized or
supported by another State, it may take all reasonable and adequate
steps to safeguard its existence and its institutions, without having
recourse to the right of individual or collective self-defence against the
other State under Article 51 of the Charter.” ({bid, p. 10.)

That provision was complementary to a further proviso that :

“The inherent right of individual or collective self-defence of a
State can be exercised only in the case of the occurrence of armed
attack (armed aggression) by another State...” (Jbid, p. 9.)

164. As Professor Julius Stone — widely recognized as one of the cen-
tury’s leading authorities on the law of the use of force in international
relations — concluded in respect of the Thirteen-Power proposals :

“to take away the right of individual and collective self-defence . . .
was, of course, the precise purpose of the Thirteen Power provision
It sought to achieve this purpose, both by withholding the stigma of
aggression, and by express statement. Acceptance of such a provision
would have been at odds with the Charter and general international
law as hitherto accepted in a number of respects.

First... international law imputed responsibility to a State know-
ingly serving as a base for such para-military activities, and gave the
victim State rather wide liberties of self-defence against them.

Second, none of the Charter provisions dealing with unlawful use of
force, whether armed or not, offers any basis for distinguishing
between force applied by the putative aggressor, or indirectly applied
by him through armed bands, irregulars and the like. . .

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Third ... the General Assembly has more than once included at
least some species of ‘indirect’ aggression within its description of
‘aggression’...

Fourth, it may be added that from at least the Spanish Civil War
onwards, the most endemic and persistent forms of resorts to armed
force... have been in contexts caught as ‘aggression’ by the Soviet and
Six Power drafts, but condoned more or less fully by the Thirteen
Power Draft.” (Conflict through Consensus, 1977, pp. 89-90.)

It will be observed that the essential legal rationale of the Judgment of the
Court in the current case appears to be well expressed by these Thirteen-
Power proposals which Professor Stone characterized as “at odds with the
Charter and general international law . . .”.

165. The Thirteen-Power proposals were not accepted by the United
Nations Special Committee on the Question of Defining Aggression. They
were not accepted by the General Assembly. On the contrary, the General
Assembly by consensus adopted a Definition of Aggression which em-
braces not all, but still the essence of, the proposals of the Six Powers and
the Soviet Union. Its list in Article 3 of the acts which shall “qualify as an
act of aggression” includes :

“(g) 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 the acts listed above, or
its substantial involvement therein.” (Emphasis supplied.)

As Professor Stone’s examination of the proceedings of the Special Com-
mittee demonstrates, on this question :

“it was the view of the Six which prevailed. This is that such activity is
a case of aggression simpliciter, giving rise like any other direct
aggression to response by self-defence under general international law
and under Article 51 of the Charter.” (Loc. cit, p. 75.)

Or, as the apparent author of Article 3 (g), Ambassador Rossides of
Cyprus, put it, Article 3 (g) included in the Definition “a form of indirect
aggression . . .in so far as such indirect aggression amounted in practice to
an armed attack” (1479th meeting of the Sixth Committee of the General
Assembly, 18 October 1974, A/C.6/SR.1479, para. 15).

166. It has been demonstrated above and in the appendix to this opin-
ion that the Nicaraguan Government is “substantially involved” in the

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sending of armed bands, groups and irregulars to El Salvador. Nicaragua
apparently has not “sent” Nicaraguan irregulars to fight in El Salvador,
but it has been “substantially involved” in the sending of leadership of the
Salvadoran insurgency back and forth. As has been shown by the admis-
sions of a principal witness of Nicaragua, Mr. MacMichael, and other
evidence (see paras. 73, 87-92, 95-96, 99-112, 105, 108, 116, 120, 124-126,
143-145, 149, 186, 188 of the appendix to this opinion), leadership of the
Salvadoran insurgency has been established in and operated from Nica-
ragua, and moved into and out of El Salvador from and to its Nicaraguan
bases with the full support of the Nicaraguan Government, a situation
which in substance equates with Nicaragua’s “sending” of that leadership
to direct the insurgency in El Salvador. As Professor Stone concludes,
while Article 3 (g) “requires there to have been a ‘sending’ into the target
State, it inculpates the host State not merely when that State did the
sending, but also when it has a ‘substantial involvement therein’ ” (/oc. cit.,
pp. 75-76). Nicaragua’s substantial involvement further takes the forms of
providing arms, munitions, other supplies, training, command-and-con-
trol facilities, sanctuary and lesser forms of assistance to the Salvadoran
insurgents. Those insurgents, in turn, carry out acts of armed force against
another State, namely, El Salvador. Those acts are of such gravity as to
amount to the other acts listed in Article 3 of the Definition of Aggression,
such as invasion, attack, bombardment and blockade. The many thou-
sands of El Salvadorans killed and wounded, and the enormous damage to
El Salvador’s infrastructure and economy, as a result of insurgent attacks
so supported by Nicaragua is ample demonstration of the gravity of the
acts of the insurgents.

167. It accordingly follows not only that the multiple acts of subversive
intervention by Nicaragua against El Salvador are acts of aggression, and
that those acts fall within the proscriptions of the Definition of Aggression.
It is also important to note that the Definition — contrary to the Thirteen-
Power proposals — designedly says nothing about prohibiting a State from
having recourse to the right of individual or collective self-defence when
that State “is a victim in its own territory of subversive and/or terrorist acts
by irregular, volunteer or armed bands organized or supported by another
State”. That prohibitive proposal proved unacceptable to the international
community. Rather, it is plain that, under the Definition, and customary
international law, and in the practice of the United Nations and of States, a
State is entitled in precisely these circumstances to act in individual and
collective self-defence. To be entitled to do so, it is not required to show
that the irregulars operating on its territory act as the agents of the foreign
State or States which support them. It is enough to show that those States
are “substantially involved” in the sending of those irregulars on to its
territory.

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168. The significance of the Definition of Aggression — or of any
definition of aggression — should not be magnified. It is not a treaty text. It
is a resolution of the General Assembly which rightly recognizes the
supervening force of the United Nations Charter and the supervening
authority in matters of aggression of the Security Council. The Definition
has its conditions, its flaws, its ambiguities and uncertainties. It is open-
ended. Any definition of aggression must be, because aggression can only
be ultimately defined and found in the particular case in the light of its
particular facts. At the same time, the Definition of Aggression is not a
resolution of the General Assembly which purports to declare principles of
customary international law not regulated by the United Nations Charter.
The legal significance of such resolutions is controversial, a controversy
which is not relevant for immediate purposes. This resolution rather is an
interpretation by the General Assembly of the meaning of the provisions of
the United Nations Charter governing the use of armed force — the use of
armed force “in contravention of the Charter”. As such, of itself it is
significant. Weighed as it should be in the light of the practice and the
doctrine which the Nicaraguan Memorial assembles — which may be
extensively amplified to the same effect — the Definition cannot be dis-
missed. In substance, however, the Court’s Judgment — while affirming
that the Definition of Aggression reflects customary international law —
does dismiss both the import of the Definition of Aggression and the State
practice and doctrine which on this paramount point is reflected by the
Definition.

169. While in effect the Court does depreciate the General Assembly’s
Definition of Aggression, it does not do so in terms. On the contrary, the
Court maintains that :

“it may be considered to be agreed that an armed attack must be
understood as including not merely action by regular armed forces
across an international border, but also ‘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 substantial involvement therein’. This description, con-
tained in Article 3, paragraph (g) of the Definition of Aggression
annexed to General Assembly resolution 3314 (XXIX) may be taken
to reflect customary international law. The Court sees no reason to
deny that, in customary law, the prohibition of armed attacks may
apply to the sending by a State of armed bands to the territory of
another State, if such an operation, because of its scale and effects,
would have been classified as an armed attack rather than as a mere
frontier incident had it been carried out by regular armed forces. But
the Court does not believe that the concept of ‘armed attack’ includes
not only acts by armed bands where such acts occur on a significant

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scale but also assistance to rebels in the form of the provision of
weapons or logistical or other support. Such assistance may be
regarded as a threat or use of force, or amount to intervention in the
internal or external affairs of other States.”

170. The Court’s reasoning is open to criticism, in terms of the Defi-
nition of Aggression and under customary international law — not to speak
of the realities of modern warfare. Article 3 (g) does not confine its
definition of acts that qualify as acts of aggression to the sending of armed
bands ; rather, it specifies as an act of aggression a State’s “substantial
involvement” in the sending of armed bands. That provision is critical to
the current case. As pointed out in paragraph 166 of this opinion, and
detailed in its appendix, Nicaragua has been pervasively, not merely sub-
stantially, involved in many aspects of the sending of armed groups of
insurgents to El Salvador — and especially involved in the sending of the
leadership of those insurgents, a leadership based in Nicaragua — even if
Nicaragua itself has not simply sent such armed bands from its territory to
that of El Salvador. It is one thing to send ; it is another to be “substantially
involved” in the sending.

171. Moreover, let us assume, arguendo, that the Court is correct in
holding that provision of weapons or logistical support to rebels of them-
selves may not be tantamount to armed attack (an assumption which I do
not share, not least because the term “logistic support” is so open-ended,
including, as it may, the transport, quartering and provisioning of armies).
It does not follow that a State’s involvement in the sending of armed bands
is not to be construed as tantamount to armed attack when, cumulatively,
it is so substantial as to embrace not only the provision of weapons and
logistical support, but also participation in the re-organization of the
rebellion ; provision of command-and-control facilities on its territory for
the overthrow of the government of its neighbour by that rebellion ;
provision of sanctuary for the foreign insurgent military and political
leadership, during which periods it is free to pursue its plans and opera-
tions for overthrow of the neighbouring government ; provision of training
facilities for those armed bands on its territory and the facilitation of
passage of the foreign insurgents to third countries for training ; and
permitting the rebels to operate broadcasting and other communication
facilities from its territory in pursuance of their subversive activities. The
fact is that this pervasive and prolonged support by the Nicaraguan Gov-
ernment of the insurgency in El Salvador has been a major, perhaps the
critical, factor in the transformation of what, before 1979, were largely
sporadic if serious acts of insurgent terrorism into an organized and

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effective army of guerrillas which to this day poses the gravest challenge to
the Government and people of El Salvador.

J. The Question of Whether Measures in Self-Defence May Be Taken
Only in Case of Armed Attack

172. The Court has found that there has been no armed attack by
Nicaragua upon El Salvador and — in my view, wrongly — no action by
Nicaragua tantamount to an armed attack upon El Salvador. The Court
rightly observes that the issue of the lawfulness of a response to the
imminent threat of armed attack has not been raised in this case, and that
the Court accordingly expresses no view on that issue. Nevertheless, its
Judgment may be open to the interpretation of inferring that a State may
react in self-defence, and that supportive States may react in collective
self-defence, only if an armed attack occurs. It should be observed that, if
that is a correct interpretation of the Court’s Judgment, such an inference
is obiter dictum. The question of whether a State may react in self-defence
to actions other than armed attack was not in issue in this case. The United
States contended that Nicaragua had intervened and continues to inter-
vene in El Salvador and other neighbouring States in order to foment and
sustain armed attacks upon the Governments of those States, and that its
subversive intervention in the governing circumstances was and is tanta-
mount to armed attack. Nicaragua denied and denies all such intervention,
while accusing the United States of direct and indirect armed attacks
against it. Both Nicaragua and the United States agree that the material
support by a State of irregulars seeking to overthrow the government of
another State amounts not only to unlawful intervention against but
armed attack upon the latter State by the former. They essentially differed
not on the law but on the facts. The question of whether a State is justified
in reacting in self-defence against acts not constituting or tantamount to an
armed attack was not engaged.

173. For my part, I have not pursued this important question because
on this I am in agreement with the Parties : the critical problem in this case,
properly viewed, essentially is not one of law but of fact ; and the highly
important question of whether a State may act in self-defence in the
absence of armed attack was not argued, and understandably so. Never-
theless, I wish, ex abundanti cautela, to make clear that, for my part, I do
not agree with a construction of the United Nations Charter which would
read Article 51 as if it were worded : “Nothing in the present Charter shall
impair the inherent right of individual or collective self-defence if, and only
if, an armed attack occurs . . .” I do not agree that the terms or intent of

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Article 51 eliminate the right of self-defence under customary inter-
national law, or confine its entire scope to the express terms of Article 51.
While I recognize that the issue is controversial and open to more than
one substantial view, I find that of Sir Humphrey Waldock more convin-
cing than contrary interpretations :

“Does Article 51 cut down the customary right and make it ap-
plicable only to the case of resistance to armed attack by another
State ? This does not seem to be the case. The right of individual
self-defence was regarded as automatically excepted from both the
Covenant and the Pact of Paris without any mention of it. The same
would have been true of the Charter, if there had been no Article 51, as
indeed there was not in the original Dumbarton Oaks proposals.
Article 51, as is well known, was not inserted for the purpose of
defining the individual right of self-defence but of clarifying the
position in regard to collective understandings for mutual self-
defence, particularly the Pan-American treaty known as the Act of
Chapultepec. These understandings are concerned with defence
against external aggression and it was natural for Article 51 to be
related to defence against ‘attack’. Article 51 also has to be read in the
light of the fact that it is part of Chapter VII. It is concerned with
defence to grave breaches of the peace which are appropriately re-
ferred to as armed attack. It would be a misreading of the whole
intention of Article 51 to interpret it by mere implication as forbid-
ding forcible self-defence in resistance to an illegal use of force not
constituting an ‘armed attack’. Thus, it would, in my view, be no
breach of the Charter if Denmark or Sweden used armed force to
prevent the illegal arrest of one of their fishing vessels on the high seas
in the Baltic. The judgment in the Corfu Channel Case is entirely
consistent with this view...” (C. H. M. Waldock, “The Regulation of
the Use of Force by Individual States in International Law”, Collected
Courses, The Hague (1952-I]), pp. 496-497. Accord : D. W. Bowett,
Self-Defence in International Law, 1958, pp. 182-193; Myres
S. McDougal and Florentino P. Feliciano, Law and Minimum World
Public Order, 1961, pp. 232-241 ; Oscar Schachter, “The Right of
States to Use Armed Force”, Michigan Law Review, 1984, Vol. 82,
pp. 1620, 1634.)

K. The Court’s Views on Counter-Intervention and its Implied Support
for “Wars of Liberation”

174. When the Court’s Judgment comes to deal with questions of
intervention, it finds that the United States has committed “a clear breach
of the principle of non-intervention” by its support of the contras. The
Court at the same time finds it possible — remarkably enough — to absolve
Nicaragua of any act of intervention in El Salvador, despite its multiple

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acts of intervention in El Salvador in support of the Salvadoran insurgents.
The Court goes on to reach the following conclusion :

“On the legal level the Court cannot regard response to an inter-
vention by Nicaragua as such a justification. 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 . .. produce any entitlement
to take collective counter-measures 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.”

175. While this conclusion may be treated as obiter dictum in view of the
fact that there is no plea of counter-intervention before the Court, it is no
more correct because it is unnecessary. In my view, its errors are con-
spicuous. The Court appears to reason this way. Efforts by State A (how-
ever insidious, sustained, substantial and effective), to overthrow the gov-
ernment of State B, if they are not or do not amount to an armed attack
upon State B, give rise to no right of self-defence by State B, and hence, to
no right of State C to join State B in measures of collective self-defence.
State B, the victim State, is entitled to take counter-measures against State
A, of a dimension the Court does not specify. But State C is not thereby
justified in taking counter-measures against State A which involve the use
of force.

176. In my view, the Court’s reasoning, certainly as it applies to the case
before the Court, is erroneous for the following reasons : (a) A State is not
necessarily and absolutely confined to responding in self-defence only if it
is the object of armed attack. (6) Armed attack in any event is not only the
movement of regular armed forces across international frontiers ; it is not
only the sending by State A of armed bands across an international frontier
to attack State B or overthrow its government ; it is, as the Definition of
Aggression puts it, “substantial involvement therein” — for example, the
very sort of substantial involvement which Nicaragua’s multifaceted
involvement in promoting and sustaining the Salvadoran insurgency illus-
trates. (c) In a case such as the case before the Court, where Nicaragua has
carried out and continues to carry out the acts of support of armed
insurgency against the Government of El Salvador which El Salvador and
the United States have charged and the appendix to this opinion estab-
lishes, the Government of El Salvador has had the choice of acting in
self-defence or capitulating. Lesser measures of counter-intervention
could not suffice. It has chosen to act in self-defence, but it lacks the power
to carry the battle to the territory of the aggressor, Nicaragua. (d) In sucha

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case, El Salvador is entitled to seek assistance in collective self-defence.
Such assistance may in any event take place on the territory of El Salvador,
as by the financing, provisioning and training of its troops by the United
States. But, as shown below, contemporary international law recognizes
that a third State is entitled to exert measures of force against the aggressor
on its own territory and against its own armed forces and military
resources.

177. I find the Court’s enunciation of what it finds to be the law of
counter-intervention as applied to this case unpersuasive for all these
reasons. More generally, I believe that it raises worrisome questions. Let us
suppose that State A’s support of the subversion of State B, while serious
and effective enough to place the political independence of State B in
jeopardy, does not amount to an armed attack upon State B. Let us further
suppose that State A acts against State B not only on its behalf but together
with a Great Power and an organized international movement with a long
and successful history of ideology and achievement in the cause of sub-
version and aggrandizement, and with the power and will to stimulate
further the progress of what that movement regards as historically deter-
mined. If the Court’s obiter dictum were to be treated as the law to which
States deferred, other Great Powers and other States would be or could be
essentially powerless to intervene effectively to preserve the political inde-
pendence of State B and all other similarly situated States, most of which
will be small. According to the Court, State B could take counter-measures
against State A, but whether they would include measures of force is not
said. What is said is that third States could not use force, whether or not the
preservation of the political independence — or territorial integrity — of
State B depended on the exertion of such measures. In short, the Court
appears to offer — quite gratuitously — a prescription for overthrow of
weaker governments by predatory governments while denying potential
victims what in some cases may be their only hope of survival.

178. The disturbing implications of the Court’s construction of the
scope of lawful counter-intervention are much magnified by another of the
Court’s apparent asides. In discussing the nature of prohibited interven-
tion, the Court, in paragraph 206 of its Judgment, notes that there have
been in recent years a number of instances of foreign intervention for the
benefit of forces opposed to the government of another State. It then
interposes : “The Court is not here concerned with the process of de-
colonization ; this question is not in issue in the present case.” The Court
goes on to consider whether States have a general right to intervene directly

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or indirectly, with or without armed force, in support of the internal
opposition of another State whose cause appears particularly worthy by
reason of the political and moral values with which it is identified. The
Court rightly observes that for such a general right to come into existence
would involve a fundamental modification of the customary law principle
of non-intervention.

179. Yet the implication, or surely a possible implication, of the juxta-
position of the Court’s statements is that the Court 1s of the view that there
is or may be not a general but a particular right of intervention provided
that it is in furtherance of “the process of decolonization”. That is to say,
by these statements, the Court may be understood as inferentially endors-
ing an exception to the prohibition against intervention, in favour of the
legality of intervention in the promotion of so-called “wars of liberation”,
or, at any rate, some such wars, while condemning intervention of another
political character.

180. In contemporary international law, the right of self-determination,
freedom and independence of peoples is universally recognized ; the right
of peoples to struggle to achieve these ends is universally accepted ; but
what is not universally recognized and what is not universally accepted is
any right of such peoples to foreign assistance or support which constitutes
intervention. That is to say, it is lawful for a foreign State or movement to
give to a people struggling for self-determination moral, political and
humanitarian assistance ; but it is not lawful for a foreign State or move-
ment to intervene in that struggle with force or to provide arms, supplies
and other logistical support in the prosecution of armed rebellion. This is
true whether the struggle is or is proclaimed to be in pursuance of the
process of decolonization or against colonial domination. Moreover, what
entities are susceptible of decolonization is a matter of dispute in many
cases. What is acolony, and who is the colonizer, are the subjects of sharply
differing views. Examples of what may be contentiously characterized —
though not necessarily unreasonably characterized — as colonies may be
readily assembled. But for present purposes, it is enough to point out that
the lack of beauty is in the eye of the beholder.

181. For reasons both of principle and practicality, leading States for
years have gone on record in support of the considerations recalled in the
previous paragraph. It is not to be expected that their view of the law, or the
content of the law, will be influenced by an acknowledged and ambiguous
dictum of the Court on a topic of which no trace can be found in the
pleadings of the Parties. Perhaps the best that can be said of this unneces-
sary statement of the Court is that it can be read as taking no position on
the legality of intervention in support of the process of decolonization, but
as merely referring to a phenomenon as to which positions in the inter-
national community differ. Even so, it is difficult to find justification for

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the Court raising so contentious a question, the more so when it acknow-
ledges that that question is not in issue in the present case.

L. El Salvador Is Entitled to Act in Self-Defence against Nicaraguan
Armed Attack

182. If, as has been shown, El Salvador not only “considers itself under
the pressure of an effective armed attack on the part of Nicaragua” (Dec-
laration of Intervention, para. I), but in actual fact — and accepted law —
is under the pressure of an effective armed attack on the part of Nicaragua,
it follows that El Salvador may invoke and implement, as against Nicara-
gua, “the inherent right of individual or collective self-defence” which it is
recognized to possess by Article 51 of the United Nations Charter. It is
entitled to do so not only in accordance with Article 51 of the United
Nations Charter but in accordance with the pertinent Inter-American
principles which are described below. It is no less so entitled under the
principles of customary international law. The existence under customary
international law of what Article 51 refers to as the “inherent right of
individual or collective self-defence” is unquestioned. As Lauterpacht
observed, “The right to use force . . . in self-defence constitutes a per-
manent limitation of the prohibition of recourse to force in any system
of law” (H. Lauterpacht, Oppenheim’s International Law, Vol. II, 7th ed.,
p. 187). “The right of self-defence is a general principle of law, and as
such it is necessarily recognized to its full extent in international law.”
(H. Lauterpacht, The Function of Law in the International Community,
pp. 179-180.)

183. This is made the clearer by a measure of supposition. Let us
suppose, arguendo, that, while Nicaragua is Nicaragua, El Salvador is a
State the size of one of the major States of Latin America — say, a State
many times the area and population and several times the armed strength
which El Salvador actually enjoys. Let us suppose further that El Salvador,
so enlarged, was the victim of the very acts of forceful intervention which it
has been shown that Nicaragua has in fact been “substantially involved” in
since 1979. Could it be supposed that such an enlarged El Salvador would
not only have, but would not itself forcefully exercise, its right of self-
defence directly against Nicaragua ? If El Salvador has seemed restrained,
if it has not protested quite as soon as and as loudly and formally as it
otherwise might have, if it has not itself attempted to attack the ware-
houses, safehouses, training sites, and command-and-control facilities
which Salvadoran insurgents have enjoyed in the territory of Nicaragua,
has not that been not because of El Salvador’s lack of legal standing but its
lack of power ? In short, any questions that may legitimately be raised
about El Salvador’s acting in self-defence against the established aggres-
sion of Nicaragua are not questions of El Salvador’s legal entitlement.

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184. Rather, the questions that should give rise to discussion are : may,
in this case, the United States lawfully act in collective self-defence with El
Salvador against Nicaragua ? If it may do so, may it do so only on the
territory of El Salvador, or may it carry the defence to the territory of
Nicaragua? If it may so carry its defence, have the measures it has
employed been necessary and proportionate to the armed attack of Nica-
ragua upon Et Salvador ? What follows from the failure of the United
States to report those measures to the Security Council ? If the United
States is found to have acted in collective self-defence, is its so doing a
sufficient defence to charges that it has violated its responsibility under
international law towards Nicaragua ?

M. The United States is entitled to act in collective self-defence with
El Salvador

1. The position of El Salvador

185. El Salvador maintains :

“our nation cannot, and must not, remain indifferent in the face of
this manifest aggression and violent destabilization of the Salva-
dorian society which oblige the State and the Government to legiti-
mately defend themselves. For that reason we have sought and con-
tinue to seek assistance from the United States of America and from
other democratic nations of the world; we need that assistance
both to defend ourselves from this foreign aggression that supports
subversive terrorism in El Salvador, and to alleviate and repair the eco-
nomic damage that this conflict has created for us.” (Declaration of
Intervention, para. III.)

It further maintains :

“Faced with this aggression, we have been called upon to defend
ourselves, but our own economic and military capability is not suf-
ficient 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 Arti-
cle 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 impor-
tance of this assistance for our defence from the United States and the
democratic nations of the world.” (/bid., para. XII.)

And El Salvador concludes :
“In the opinion of El Salvador . . . it is not possible for the Court to
adjudicate Nicaragua’s claims against the United States without

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determining the legitimacy or the legality of any armed action in
which Nicaragua claims the United States has engaged and, hence,
without determining the rights of El Salvador and the United States to
engage in collective actions of legitimate defence. Nicaragua’s claims
against the United States are directly interrelated with El Salvador’s
claims against Nicaragua...

Any case against the United States based on the aid pro-
vided by that nation at El Salvador’s express request, in order to
exercise the legitimate act of self-defence, cannot be carried out with-
out involving some adjudication, acknowledgment, or attribution
of the rights which any nation has under Article 51 of the United
Nations Charter to act collectively in legitimate defence.” (/bid,
para. XIV.)

186. Nicaragua contends in its observations of 10 September 1984 on El
Salvador’s Declaration of Intervention that that 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 that it is under armed attack
from Nicaragua.”

The Court adopts this contention of Nicaragua, and concludes that the
evidence available supports the view that no request was made to the
United States to come to the assistance of El Salvador (or Honduras or
Costa Rica), in the exercise of collective defence against a supposed armed
attack by Nicaragua, prior to El Salvador’s Declaration of Intervention of
15 August 1984.

187. The difficulty with the contention of Nicaragua and the concurring
conclusions of the Court is that they are not adequately supported by the
facts. As shown by the quotations reproduced in the appendix to this
opinion, at paragraphs 110, 116, 117, 118, 121, 128 and 129, El Salvador
repeatedly claimed to be under armed attack from Nicaragua well before it
filed its Declaration of Intervention, and it more than once gave public
indication that it accordingly sought assistance from the United States.

188. The Court in otherwise concluding fails to refer to the statements
by El Salvador quoted in the paragraphs of the appendix just cited, but it
refers to other statements in which no such declarations and requests are
found. The Court adds :

“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].’

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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.”

189. But while the Court believes that some significance should be
attached to this report, I believe that the Court has misread the terms of the
Inter-American Treaty of Reciprocal Assistance (the “Rio Treaty”) to
which Mr. Enders referred. That Treaty contains two quite distinct pro-
visions under which the United States might extend protection to El
Salvador. One is found in Article 3, paragraphs | and 2 of which pro-
vide :

“1. The High Contracting Parties agree that an armed attack by
any State against an American State shall be considered as an attack
against all the American States and, consequently, each one of the
said Contracting Parties undertakes to assist in meeting the attack in
the exercise of the inherent right of individual or collective self-
defence recognized by Article 51 of the Charter of the United
Nations.

2. On the request of the State or States directly attacked and until
the decision of the Organ of Consultation of the Inter-American
System, each one of the Contracting Parties may determine the
immediate measures which it may individually take in fulfillment of
the obligation contained in the preceding paragraph and in accor-
dance with the principle of continental solidarity. The Organ of
Consultation shall meet without delay for the purpose of examin-
ing those measures and agreeing upon the measures of a collective
character that should be taken.”

Mr. Enders’ quoted remark obviously did not refer to an armed attack
under Article 3, for he spoke at that point only of the building up of the
arms race in Central America in which Nicaragua has taken so marked a
lead. (See, in support of this conclusion, the further passage from the
Ortega/Enders transcript quoted in the appendix, para. 157.) To what
provision of the Rio Treaty then did Mr. Enders refer? Presumably, to
Article 6, which provides :

“Tf the inviolability or the integrity of the territory or the sover-
eignty or political independence of any American State should be
affected by an aggression which is not an armed attack or by an
extra-continental or intra-continental conflict, or by any other fact or
situation that might endanger the peace of America, the Organ of
Consultation shall meet immediately in order to agree on the mea-
sures which must be taken in case of aggression to assist the victim of

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the aggression or, in any case, the measures which should be taken for
the common defense and for the maintenance of the peace and secu-
rity of the Continent.”

It is plausible that, in the view of El Salvador and the United States, which
the OAS Organ of Consultation might be brought to share, an extraordi-
nary emplacement of arms in Nicaragua might be seen as a fact or situation
that might endanger the peace (as was the case in the Cuban missile crisis).
But this reference of Mr. Enders is, in my view, of no significance in
weighing the authenticity of the claims of El Salvador that it made requests
to the United States for assistance in meeting what it viewed as Nicaraguan
actions tantamount to an armed attack against it before and after 12
August 1981.

190. As observed above, if the Court had reason to doubt the accuracy
of El Salvador’s claims in this regard, it would have been perfectly possible
for the Court to request El Salvador to supply evidence in support of the
claims which its Declaration of Intervention made to the Court. The Court
rather has chosen to draw a questionable inference from a memorandum of
conversation supplied by Nicaragua, while overlooking statements in the
public domain by El Salvador which are supportive of its claims. The Court
finds it appropriate to take various claims by Nicaragua and witnesses
testifying on its call at their face value, while refusing to credit the claim of
a State, otherwise supported by some evidence in the public domain, that it
has been under armed attack for years and has requested assistance in
meeting that attack.

191. Moreover, in the Court’s view, apparently the only kind of decla-
ration that a State is under armed attack which counts is one formally and
publicly made ; and the only kind of request for assistance that appears to
count is one formally and publicly made. But where is it written that, where
one State covertly promotes the subversion of another by multiple means
tantamount to an armed attack, the latter may not informally and quietly
seek foreign assistance ? It may be answered that it is written in Article 51
of the United Nations Charter that measures taken by Members in the
exercise of the right of self-defence shall be immediately reported to the
Security Council. That answer, which is not insubstantial, nevertheless is,
in my view, insufficient, for reasons explained below (see paras. 221-227 of
this opinion).

2. The position of the United States

192. For its part, the United States, speaking through its Secretary of
State, submitted an affidavit to this Court which declares :

“T hereby affirm that the United States recognizes and respects the
prohibitions concerning the threat or use of force set forth in the
Charter of the United Nations, and that the United States considers

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its policies and activities in Central America, and with respect to
Nicaragua in particular, to be in full accord with the provisions of the
Charter of the United Nations. Pursuant to the inherent right of
collective self-defense, and in accord with its obligations under the
Inter-American Treaty of Reciprocal Assistance, the United States
has provided support for military activities against forces directed or
supported by Nicaragua as a necessary and proportionate means of
resisting and deterring Nicaraguan military and paramilitary acts
against its neighbors, pending a peaceful settlement of the conflict. I
further affirm that the overthrow of the Government of Nicaragua is
not the object nor the purpose of United States policy in the region.
Our position in this respect is clear and public. As President Reagan
stated in a published letter to Senator Baker of April 4, 1984:

‘The United States does not seek to destabilize or overthrow the
Government of Nicaragua ; nor to impose or compel any particular
form of government there.

We are trying, among other things, to bring the Sandinistas into
meaningful negotiations and constructive, verifiable agreements
with their neighbors on peace in the region.

We believe that a pre-condition to any successful negotiations in
these regards is that the Government of Nicaragua cease to involve
itself in the internal or external affairs of its neighbors, as required
of member nations of the OAS,’ ”

3. The pertinence of provisions of the Inter-American Treaty of Reciprocal
Assistance

193. Provisions of the Rio Treaty are pertinent to the answer to the
question of whether the United States is entitled to act in collective self-
defence with El Salvador. The Rio Treaty was not invoked by Nicaragua in
its Application or argument, with the result, in my view, that the dispute
has not arisen under that multilateral treaty, which accordingly is not, or
arguably is not, within the reach of the multilateral treaty reservation. In
any event, the essential consideration is that El Salvador, Nicaragua and
the United States are parties to the Rio Treaty and are bound by it.

194. While it was concluded after the entry into force of the United
Nations Charter, the Rio Treaty was negotiated in pursuance of the Act of
Chapultepec. That Act, concluded at the Inter-American Conference on
Problems of War and Peace of 1945, established the principle that an
attack against any American State would be considered an act of aggres-
sion against all other American States. Article 51 of the United Nations
Charter was drafted essentially in response to the insistence of the Latin
American States that the possibility of action in individual and collective
self-defence pursuant to the Act of Chapultepec be preserved.

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MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

“The drafting history shows that article 51 was intended to safe-
guard the Chapultepec Treaty which provided for collective defense
in case of armed attack. The relevant commission report of the San
Francisco Conference declared ‘the use of arms in legitimate self-
defense remains admitted and unimpaired’. . . . When article 51 was
adopted in 1945, it was intended to legitimize the security arrange-
ment of the Chapultepec Act... That treaty declared, in effect, that
aggression against one American state shall be considered an act of
aggression against all. This was expressly referred to at the San
Francisco Conference as the reason for collective self-defense in
article 51... When a state comes to the aid of another, the legal issue is
not whether the assisting state has a right of individual defense but
only whether the state receiving aid is the victim of an external
attack.” (Oscar Schachter, loc. cit., pp. 1633-1634, 1639.)

Speaking for the Latin American States, the Foreign Minister of Colombia
thus placed on record at San Francisco, as an authoritative interpretation
of Article 51, the following understanding :

348

“The Latin American Countries understood, as Senator Vanden-
berg had said, that the origin of the term ‘collective self-defense’ is
identified with the necessity of preserving regional systems like the
Inter-American one. The Charter, in general terms, is a constitution,
and it legitimatizes the right of collective self-defense to be carried out
in accord with the regional pacts so long as they are not opposed to the
purposes and principles of the Organization as expressed in the
Charter. If a group of countries with regional ties declare their soli-
darity for their mutual defense, as in the case of the American states,
they will undertake such defense jointly if and when one of them is
attacked. And the right of defense is not limited to the country which
is the direct victim of aggression but extends to those countries which
have established solidarity, through regional arrangements, with the
country directly attacked. This is the typical case of the American
system. The Act of Chapultepec provides for the collective defense of
the hemisphere and establishes that if an American nation is attacked
all the rest consider themselves attacked. Consequently, such action
as they may take to repel aggression, authorized by the article which
was discussed in the subcommittee yesterday, is legitimate for all of
them. Such action would be in accord with the Charter, by the
approval of the article, and a regional arrangement may take action,
provided it does not have improper purposes as, for example, joint
aggression against another state. From this, it may be deduced that
the approval of this article implies that the Act of Chapultepec is not
in contravention of the Charter.” (UNCIO docs., Vol. 12, pp. 680-
681.)
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195. The Rio Treaty thus concluded pursuant to the Act of Chapultepec
and in accordance with the United Nations Charter contains the provi-
sions quoted in paragraph 189 of this opinion. It will be observed that,
under Article 3, on the request of the attacked State, “each one of the
Contracting Parties may determine the immediate measures which it may
individually take in fulfillment of the obligation” arising from treating an
attack against an American State as an attack on all the American States.
It may do so until the Organ of Consultation of the OAS or the United
Nations Security Council has taken the measures necessary to maintain
international peace and security. By way of contrast, if an American State
is affected by “an aggression which is not an armed attack .. . the Organ of
Consultation shall meet immediately in order to agree on the measures
which must be taken in case of aggression to assist the victim. . .”
(Art. 6).

196. In implementation of the Rio Treaty, as well as its inherent right
recognized by Article 51 of the United Nations Charter, El Salvador has
resisted Nicaragua’s armed attack by acting in self-defence, and, equally,
the United States has determined “the immediate measures which it may
individually take in fulfillment of the obligation” it has undertaken to treat
an attack on any American State as an attack on all (including itself). By
the terms and intent of the Rio Pact, the United States is entitled indi-
vidually to determine such measures until the OAS and the United Nations
Security Council have acted ; it does not require the prior authorization
either of the OAS or of the Security Council. In so doing, the United States
fulfils an obligation which it has undertaken to act in collective self-
defence (contrary to the Court’s untenable view). As the former Director of
the Legal Department of the OAS has written :

“While under the United Nations Charter self-defense is only a
right, under article 3 of the Treaty self-defense is both a right and an
obligation. The reason for the difference is that the Treaty is based on
a commitment to reciprocal assistance.” (Francisco V. Garcia
Amador, “The Rio de Janeiro Treaty : Genesis, Development, and
Decline of a Regional System of Collective Security”, Inter-American
Law Review, Vol. 17, 1985, pp. 11-12.)

197. While, as Dr. Garcia Amador’s analysis shows, the OAS system of
collective security has a mixed record, and while the Rio Treaty itself is the
subject of significant revisions which have not yet come into force, it
should be observed that the OAS has interpreted and applied the Rio
Treaty on related occasion in ways that are supportive of the current
interpretation of its legal obligations which the United States advances. In
response to Cuba’s repeated efforts to overturn certain governments of
Latin America during the 1960s, the Organ of Consultation of the Inter-
American System met and adopted resolutions which recognized that such

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subversive activities could give rise to exercise of the right of individual and
collective self-defence. Thus Resolution I of the Ninth Meeting of Con-
sultation of 1964 reads in part as follows :

“The Ninth Meeting of Consultation of Ministers of Foreign
Affairs, Serving as Organ of Consultation in Application of the Inter-
American Treaty of Reciprocal Assistance,

Having seen the report of the Investigating Committee designated
on December 3, 1963, by the Council of the Organization of American
States, acting provisionally as Organ of Consultation, and

Considering :

That the said report establishes among its conclusions that ‘the
Republic of Venezuela has been the target of a series of actions
sponsored and directed by the Government of Cuba, openly intended
to subvert Venezuelan institutions and to overthrow the democratic
Government of Venezuela through terrorism, sabotage, assault, and
guerrilla warfare’ ; and

That the aforementioned acts, like all acts of intervention and
aggression, conflict with the principles and aims of the inter-Ameri-
can system,

Resolves :

1. To declare that the acts verified by the Investigating Committee
constitute an aggression and an intervention on the part of the Gov-
ernment of Cuba in the internal affairs of Venezuela, which affects all
of the member states.

2. To condemn emphatically the present Government of Cuba for
its acts of aggression and of intervention against the territorial invio-
lability, the sovereignty, and the political independence of Vene-
zuela.

5. To warn the Government of Cuba that if it should persist in
carrying out acts that possess characteristics of aggression and inter-
vention against one or more of the member states of the Organization,
the member states shall preserve their essential rights as sovereign
states by the use of self-defense in either individual or collective form,
which could go so far as resort to armed force, until such time as the
Organ of Consultation takes measures to guarantee the peace and se-
curity of the hemisphere.” (Inter-American Institute of International
Legal Studies, The Inter-American System, 1966, pp. 168-169.)

Paragraph 5 of the foregoing resolution is a clear holding that, under the
law in force among the Members of the OAS, the very kind of actions of

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Nicaragua at issue in this case justify the use of armed force in individual or
collective self-defence.

4. The position under the United Nations Charter and customary inter-
national law

198. United States action is as clearly in essential conformity with
Article 51 of the United Nations Charter as it is in essential conformity
with the Rio Treaty — except that it has failed to report immediately to the
Security Council the measures taken in exercise of its right of collective
self-defence. (The Rio Treaty also recognizes the supervening authority of
the Security Council.) The implications of that failure will be considered
below. But before leaving the Inter-American System, it should also be
noted that the Charter of the Organization of American States, as revised,
provides that, “An act of aggression against one American State is an act of
aggression against all the other American States” (Art. 3). And Article 27
provides :

“Every act of aggression by a State against the territorial integrity
or the inviolability of the territory or against the sovereignty or
political independence of an American State shall be considered an
act of aggression against the other American States.”

199, Lauterpacht, in observing that the right “of self-defence against
physical attack must be regarded as a natural right both of individuals and
of States”, referred to Article 51 of the Charter and continued :

“It will be noted that, in a sense, Article 51 enlarges the right of
self-defence as usually understood — and the corresponding right of
recourse to force — by authorising both individual and collective
self-defence. This means that a Member of the United Nations is
permitted to have recourse to action in self-defence not only when it is
itself the object of armed attack, but also when such attack is directed
against any other State or States whose safety and independence are
deemed vital to the safety and independence of the State thus resisting
— or participating in forcible resistance to — the aggressor. Such
extension of the notion of self-defence is a proper expression of the
ultimate identity of interest of the international community in the
preservation of peace. It is also a practical recognition of the fact that
— in the absence of an effective machinery of the United Nations for
the suppression of acts of aggression — unless such right of collective
self-defence is recognised the door is open for piecemeal annihilation
of victims of aggression by a State or States intent upon the domi-
nation of the world. In that sense collective self-defence is no more
than rationally conceived individual self-defence.” (Oppenheim’s
International Law, Vol. IT, 7th ed. (1952), pp. 155-156.)

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The United States has officially declared itself to be of the view 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 . . .” (Executive Order of the President of 1 May 1985
(Nicaraguan Supplemental Annex B, Attachment 1)). In his address of
16 March 1986, President Reagan spoke of :

“a mounting danger in Central America that threatens the security of
the United States . . . | am speaking of Nicaragua . . . It is not
Nicaragua alone that threatens us, but those using Nicaragua as a
privileged sanctuary for their struggle against the United States. Their
first target is Nicaragua’s neighbors.”

200. If the United States (and El Salvador) were to be adjudged not
under the Charters of the United Nations and the OAS and the pertinent
Inter-American Treaties, but under customary international law, it is
equally clear that the United States and El Salvador are entitled to join
together in exercising their inherent right of collective self-defence, and to
do so without the prior authorization of international organizations, uni-
versal or regional. In the pre-United Nations Charter era — or, at any rate,
in the pre-Pact of Paris and pre-League of Nations era — States were free to
employ force and go to war for any reason or no reason. When the use of
force could be initiated so unrestrainedly, it was not conceivable that the
use of force in self-defence was constrained. Particularly where a State was
the victim of armed attack, it and its allies were perfectly free to respond in
self-defence. (It should be recalled that the narrow criteria of the Caroline
case concerned anticipatory self-defence, not response to armed attack or
to actions tantamount to an armed attack.) As for the state of international
law in the years 1920-1939, the judgments of the International Military
Tribunals of Nuremberg and Tokyo took the view that the general ban on
the use of armed force was indefeasibly subject to an exception permitting
lawful recourse to armed force for self-defence, provided that the condi-
tions justifying action in self-defence obtained.

N. Considerations of Necessity and Proportionality

201. Considerations of the necessity and proportionality of United
States measures against Nicaragua have been initially examined in para-
graph 9 of this opinion. It has been concluded, for reasons set forth above
in paragraphs 69-77, that the better view is that the question of the
necessity of those measures currently is not justiciable. The Court has
taken another view, and concluded that both the direct and indirect actions
of the United States against Nicaragua cannot be justified as necessary
measures of collective self-defence. If the question is to be adjudged, and

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the Court has adjudged it, the question of necessity essentially turns on
whether there were available to the United States peaceful means of
realizing the ends which it has sought to achieve by forceful measures. As
Judge Ago put it in a report to the International Law Commission :

“The reason for stressing that action taken in self-defence must be
necessary is that the State attacked . . . must not, in the particular
circumstances, have had any means of halting the attack other than
recourse to armed force. In other words, had it been able to achieve the
same result by measures not involving the use of armed force, it would
have no justification for adopting conduct which contravened the
general prohibition against the use of armed force. The point is
self-evident and is generally recognized ; hence it requires no further
discussion . . .” (“Addendum to the eighth report on State responsi-
bility”, Yearbook of the International Law Commission, 1980, Vol. II,
Part One, p. 69.)

202. The Salvadoran rebels in early 1979 were relatively weak ; as
Annex 50, page 2, to the Counter-Memorial of the United States indicates,
before 1980 the diverse guerrilla groups in El Salvador were ill-co-ordi-
nated and ill-equipped ; they were armed with pistols, hunting rifles and
shotguns. (Nicaragua offered no evidence to rebut these contentions.) By
January 1981, with the benefit of a larger measure of unity achieved with
the particular assistance of Cuba, and with the aid of a massive infusion of
arms, mainly channelled through Nicaragua, as well as training in Cuba
and Nicaragua and co-ordination and command exercised from Nicara-
gua, the insurgents were able to mount their “final offensive”. They have
been able to maintain a significant, well-supplied level of hostilities since.
It is obvious that the Government of El Salvador, faced with a large-scale
insurgency continuously so fuelled by foreign intervention, particularly of
Nicaragua and Cuba, had no means of dealing with the internal and
external attack upon it other than recourse to armed force. If the Gov-
ernment of El Salvador had declined to fight the insurgents, and if it had
confined itself to a readiness to negotiate with them, that Government
would have been overthrown years ago. The Government of El Salvador
also found that it was unable to resist foreign-supported insurgents effec-
tively without foreign assistance ; it requested the assistance of the United
States. The United States responded in January 1981 by resuming the
provision of arms and training to the forces of the Government of El
Salvador and by provision of increased economic and financial aid. Sub-
sequently, about a year later, the United States further responded by
exerting armed pressure upon the source of much of El Salvador’s travail,
Nicaragua. Were the measures applied by the United States against Nica-
ragua necessary ? El Salvador itself was not strong enough to apply them,
but it welcomed those measures as measures which would diminish the

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effectiveness of Nicaraguan intervention against it (see the appendix to
this opinion, paras. 121, 128-129).

203. In my view, the decision of the United States in late 1981 that the
exertion of armed pressures upon Nicaragua was necessary was not un-
reasonable. For more than a year, the United States had endeavoured to
assist El Salvador in suppressing insurgency and Nicaraguan intervention
in support of that insurgency by assistance to El Salvador confined to El
Salvador, and by diplomatic representations to the Government of Nica-
ragua. Both courses of action had proved insufficient. The insurgency in El
Salvador was contained but not suppressed ; the human and material
damage inflicted by it continued to be unacceptably severe. Nicaragua had
not sufficiently responded, positively and definitively, to United States
requests, warnings or inducements (such as the prospect of resumed eco-
nomic assistance). On the basis of many months of unhappy experience,
the United States could reasonably have reached the conclusion late in
1981 that there was no prospect of winding down the insurgency in El
Salvador without cutting off foreign intervention in support of it, and no
prospect of Nicaragua’s terminating its intervention unless it were forced
to do so. In circumstances where an aggressor State cannot be persuaded to
cease its aggressive intervention, it is not unreasonable to seek to force the
aggressor State to cease its aggressive intervention.

204. However, it could be argued that the United States, after the failure
of the Enders mission and its other diplomatic representations, should,
before embarking on measures of force, have had recourse to multilateral
means of peaceful settlement, notably those of the Organization of Ameri-
can States and the United Nations. That is a substantial argument. Pre-
sumably the judgment of the United States was that such recourse would
have been ineffective. However plausible such a judgment might have
been, it may nevertheless be maintained that it should have exhausted
those multilateral remedies. But its failure to do so is mitigated by several
factors.

205. In the first place, the United States has maintained diplomatic
relations with the Nicaraguan Government and a readiness to negotiate
with it (see, for example, the proposals for peaceful settlement it made to
Nicaragua in 1982, even after its support for the contras was underway ;
appendix to this opinion, para. 171). There have been recurrent rounds of
bilateral negotiations between the United States and Nicaragua since the
United States undertook measures of force. In the second place, the United
States took part in a substantial multilateral effort at peaceful settlement
which Nicaragua rebuffed (appendix, para. 172). Third, the United States
gave active support from its launching in 1983 to the Contadora process —
or maintained that it did so (opinions differ on the genuineness of United
States — and Nicaraguan — support of Contadora). The Contadora pro-

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cess, which has been emphatically endorsed by the OAS and the United
Nations, has been treated by both Organizations as the preferred, priority
route of settlement, to which they should both defer. In the fourth place,
the United Nations Security Council has been recurrently seized by Nica-
ragua of what it claims to be a bilateral dispute with the United States, and
the United States has taken an active part in the Security Council’s hand-
ling of the matter. To be sure, it has more than once exercised its power of
veto to block resolutions desired by Nicaragua (and, at other times, it has
voted for relevant resolutions). But the failure of the Security Council to
adopt a resolution is not to be equated with the failure of the Security
Council to take up a dispute or situation or to consider a charge of a threat
to the peace, breach of thé peace or act of aggression.

206. There remains room for challenging the necessity of the measures
involving the use of force undertaken by the United States. But given the
difficulties that beset adjudging that question at this juncture, which have
been described above, and in view of the foregoing considerations, I do not
find that it can be concluded that those measures have, as a matter of law,
been unnecessary.

207. The Court’s holding that United States measures against Nicara-
gua cannot be justified as necessary is particularly based on the following
consideration. The Court observes that these United States measures were
only taken, and began to produce their effects, several months after the
major offensive (of January 1981) against the Government of El Salvador
by the insurgents had been completely repulsed. The Court concludes that
it was possible to “eliminate” the main danger to the Government of El
Salvador without the United States embarking on activities in and against
Nicaragua. Thus the Court concludes that “it cannot be held that these
activities were undertaken in the light of necessity”.

208. In my view, this conclusion of the Court is as simplistic as it is terse.
It fails to take sufficient account of the facts. It is true that the results of the
conspiracy among Cuba, Nicaragua and other States to arm and support
the Salvadoran insurgency in order to overthrow the Government of El
Salvador reached its initial material peak in preparation for the “final
offensive” of January 1981, and that that offensive failed. It is true that,
thereafter, in early 1981, after the Nicaraguan Government had been
caught, so to speak, red-handed in its massive shipment of arms and other
support of the Salvadoran insurgency, it suspended shipment of arms — for
a time. But it is also true that, by the time in August 1981, that Mr. Enders
demanded of Commander Ortega that Nicaragua definitively cut off its
material support of the Salvadoran insurgency, the flow of arms, ammu-
nition, explosives, etc., through Nicaragua to the El Salvadoran insurgency
had resumed, and that Nicaraguan provision to that insurgency of com-
mand-and-control facilities, training facilities and other support con-

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tinued unabated. It is also the fact that, in 1982, shipment of arms through
Nicaragua to the insurgents rose again very sharply, and has irregularly
continued at varying, apparently lower, levels since. For its part, the
Government of El Salvador continued to be hard pressed by well-armed
and supplied insurgent assaults, in 1981, and 1982 and in subsequent years,
and is to this day. Thus the apparent inference of the Court — that there
was no continuing need by El Salvador for United States assistance which
took the form of its activities in and against Nicaragua — is open to the
most profound question. The Court may opine that the main danger to El
Salvador had been “eliminated” before the United States intervened, but
the Government of El Salvador, and the thousands of Salvadorans who
have suffered and died since January 1981 as a direct and indirect result of
civil strife fuelled by foreign intervention, may be presumed to have
another view. The Court’s assumption appears to be that El Salvador may
be indefinitely bled by an insurgency provisioned by Nicaragua, and that
neither El Salvador nor an ally acting in its support may exert responsive
measures directly upon the primary immediate and continuing conduit for
that insurgency’s arms, ammunition, explosives and medicines, Nicaragua.
The Court appears to be open to the argument that, when the insurgents
can, with the use of such Nicaraguan-supplied material, mount a massive
“final offensive”, there might be ground for treating such a United States
response against Nicaragua as necessary, but not otherwise. But whether
any such excursion into military analysis really reflects the Court’s belief is
not clear — or more compelling than its reasoning in support of its con-
clusion that United States activities cannot be sustained in the light of
necessity.

209. Indeed, the imputation of the Court’s opinion is that, while argu-
ably the United States might have been justified in responding promptly
and overtly to Nicaragua’s support of the January 1981 “final offensive” of
the Salvadoran insurgents by the use of force against Nicaragua, it cannot
possibly be justified in the covert application of force a year later. In my
view, that is an especially curious conclusion for the Court to reach. In the
period between January 1981 and the authorization by President Reagan
of the application of armed pressures against Nicaragua towards the end of
that year, the United States mounted a serious effort to settle its dispute
with Nicaragua through peaceful means. It tried, notably through the
Enders mission, to persuade Nicaragua to cease its activities in support of
the overthrow of El Salvador’s Government. Only when that effort failed,
did the United States have recourse to forceful measures. Is the United
States really to be faulted for taking the time to pursue prior recourse to
measures of peaceful settlement ?

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210. Moreover, where is it prescribed that, in response to covert mea-
sures of aggression, defensive measures must be overt ? The implausibility
of such a position — which seems to be that of the Court — is the greater
when one recalls that covert measures may in some circumstances be more
modest, and more readily terminated, than overt applications of the use of
force. Would the loss of life in Nicaragua really have been less, and the
strength of the United States legal case greater, if, rather than resorting to
support of the contras and the covert mining of Nicaraguan ports and
attacks on oil stocks, the United States Air Force, in January 1981, had
carried out air attacks on Nicaraguan military (and Salvadoran insurgent)
bases in Nicaragua, on Nicaraguan airports and sea ports and had en-
deavoured to interdict the flow of certain ground and sea and air trans-
port from Nicaragua ?

211. It is even clearer that the measures of the United States have not
been disproportionate. It was concluded at the outset of this opinion that,
on their face, the measures taken by the United States, in their object and
character, appear to be proportional to those of Nicaragua’s intervention
in El Salvador. For its part, the Court holds that United States mining of
Nicaraguan ports and attacks on ports, oil installations, etc., do not satisfy
the criterion of proportionality. “Whatever uncertainty may exist as to the
exact scale of the aid received by the Salvadorian armed opposition from
Nicaragua, it is clear that these latter United States activities in question
could not have been proportionate to that aid.” That may be clear to the
Court, but, for the reasons set out in paragraph 9 of this opinion, it is not
clear to me. On the contrary, these United States measures appear to be
patently proportionate to the very similar measures of depredation in El
Salvador of the Salvadoran insurgents to which these United States mea-
sures were a response.

212. Moreover, for the test of proportionality to be met, there by no
means must be perfect proportionality. As Judge Ago has rightly writ-
ten :

“The requirement of the proportionality of the action taken in self-
defence, . . . concerns the relationship between that action and its
purpose, namely .. . that of halting and repelling the attack .. . It
would be mistaken, however, to think that there must be proportion-
ality between the conduct constituting the armed attack and the
opposing conduct. The action needed to halt and repulse the attack
may well have to assume dimensions disproportionate to those of the
attack suffered. What matters in this respect is the result to be
achieved by the ‘defensive’ action, and not the forms, substance and
strength of the action itself. A limited use of armed force may some-
times be sufficient for the victim State to resist a likewise limited use of

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armed force by the attacking State, but this is not always certain.
Above all, one must guard against any tendency in this connection to
consider, even unwittingly, that self-defence is actually a form of
sanction, such as reprisals. There must of course be some proportion
between the wrongful infringement by one State of the right of
another State and the infringement by the latter of a right of the
former through reprisals. In the case of conduct adopted for punitive
purposes, of specifically retributive action taken against the perpe-
trator of a particular wrong, it is self-evident that the punitive action
and the wrong should be commensurate with each other. But in the
case of action taken for the specific purpose of halting and repelling
an armed attack, this does not mean that the action should be more or
less commensurate with the attack. Its lawfulness cannot be measured
except by its capacity for achieving the desired result. In fact, the
requirements of the ‘necessity’ and ‘proportionality’ of the action
taken in self-defence can simply be described as two sides of the same
coin. Self-defence will be valid as a circumstance precluding the
wrongfulness of the conduct of the State only if that State was unable
to achieve the desired result by different conduct involving either no
use of armed force at all or merely its use on a lesser scale.

Within these limits and in this sense, the requirement of propor-
tionality is definitely confirmed by State practice. The occasional
objections and doubts expressed about it have been due solely to the
mistaken idea of a need for some kind of identity of content and
strength between the attack and the action taken in self-defence. It
must be emphasized once again that, without the necessary flexibility,
the requirement would be unacceptable. As indicated at the beginning
of this paragraph, a State which is the victim of an attack cannot really
be expected to adopt measures that in no way exceed the limits of what
might just suffice to prevent the attack from succeeding and bring it to
an end.” (Loc. cit., p. 69.)

213. Judge Ago adds :

358

“There remains the third requirement, namely that armed resis-
tance to armed attack should take place immediately, 1.e., while the
attack is still going on, and not after it has ended. A State can no
longer claim to be acting in self-defence if, for example, it drops
bombs on a country which has made an armed raid into its territory
after the raid has ended and the troops have withdrawn beyond the
frontier. If, however, the attack in question consisted of a number of
successive acts, the requirement of the immediacy of the self-defensive
action would have to be looked at in the light of those acts as a whole.
At all events, practice and doctrine seem to endorse this requirement
ACTIVITÉS MILITAIRES ET PARAMILITAIRES (OP. DISS. SCHWEBEL) 368

résister à un emploi également limité de ladite force par l’Etat agres-
seur ; mais cela n’est pas toujours sûr. Il faut surtout se garder, à cet
effet, de toute tendance, même inconsciente, à considérer la légitime
défense comme une forme de sanction proprement dite, telles des
représailles. Une proportion doit sûrement exister entre l'atteinte
illicitement portée par un Etat à un droit d’un autre Etat et l'atteinte
causée par ce dernier à un droit du premier à titre de représailles. Dans
le cas d’un comportement adopté à des fins de répression, d’une action
spécifiquement exécutée pour des finalités afflictives contre l’auteur
d’une infraction déterminée, l’équilibre de proportions entre l’action
punitive et l'infraction est d’une évidence logique. Mais dans le cas
d’une action dont le but spécifique est d'arrêter et de repousser une
agression armée, il n’est nullement dit que cette action doive avoir des
proportions plus ou moins égales à l’action agressive. Sa licéité ne doit
donc se mesurer qu’à son aptitude à atteindre le résultat recherché. On
peut d’ailleurs dire que les exigences de la « nécessité » et de la
« proportionnalité » de l’action menée en légitime défense ne sont que
les deux faces d’une même médaille. L’état de légitime défense ne
vaudra comme raison d’exclusion de lillicéité du comportement de
l'Etat que si ce dernier ne pouvait pas atteindre le résultat visé par un
comportement différent, n’impliquant aucun emploi de la force armée
ou pouvant se réduire à un emploi plus restreint de cette force.

A l’intérieur de ces limites et dans ce sens, l'exigence mentionnée est
certainement confirmée par la pratique des Etats. Les oppositions et
les perplexités parfois manifestées à son égard ne tenaient qu’à l’idée
erronée que ce que l’on requérait était une sorte d’identité de contenu
et d’intensité entre l’action agressive et l’action commise à titre de
légitime défense. Il faut d’ailleurs souligner une fois de plus que cette
exigence n’aurait droit de cité qu’à la condition de la concevoir avec la
souplesse nécessaire. Comme on l’a dit au début de ce paragraphe, on
ne peut finalement pas demander à l'Etat victime d’une agression
d’adopter des mesures ne dépassant sous aucun aspect les limites de ce
qui pourrait à la rigueur suffire à empêcher l'agression de réussir et à y
mettre fin. » (Loc. cit., p. 67-68.)

213. Et M. Ago poursuit :

« Reste la troisième exigence, à savoir que la résistance par les
armes contre une agression armée intervienne immédiatement, c’est-
à-dire lorsque l’action agressive est encore en cours, et non après
qu’elle soit terminée. Ce n’est plus à titre et en état de légitime défense
que l’Etat peut prétendre agir lorsqu'il effectue par exemple un bom-
bardement aérien du pays dont l'Etat a exécuté une incursion armée
sur son territoire, à un moment où l’incursion a pris fin et où les
troupes se sont retirées au-delà de la frontière. Mais si l’action agres-
sive dont il est question se traduisait par une pluralité d’agissements
successifs, ce serait par rapport à l’ensemble que l’exigence du carac-

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abandoned by the United States in so far as its ‘counter-intervention’
on the side of the El Salvador régime has extended to support of
anti-Sandinista forces fighting on Nicaraguan soil. The United States
had justified this action under the collective self-defense provision of
article 51, presumably on the ground that Nicaragua has engaged in
an armed attack on El Salvador. The United States also ‘counter-
intervened’ against Nicaragua by mining approaches to Nicaraguan
ports.” (Loc. cit., p. 1643.)

Professor Moore replies :

360

“This ‘proposed rule’ is not international law and should not be. As
has been seen, most scholars have long supported the proposition that
intensive ‘indirect’ aggression is an armed attack permitting a defen-
sive response under Article 51 of the UN Charter and customary
international law. Since the traditional rule has long been that assis-
tance to a government at its request within its own boundaries is
lawful even in the absence of an armed attack, the very purpose of the
determination of an armed attack is to permit proportional defensive
measures against the attacking state. There is no evidence that its
draftsmen intended to limit Article 51 as suggested by this proposed
rule or that states party to the Charter have adopted any such rule.
Contrary to Professor Schachter’s suggestion that this proposed limi-
tation ‘has been observed in nearly all recent civil wars’, the United
States specifically rejected it in the Vietnam War when the argument
was made that it was impermissible to respond against North Vietnam
as a defense to its ‘indirect’ aggression against South Vietnam. It
seems also to be rejected widely elsewhere, including in French,
Soviet, Chinese and Israeli state practice.

As a policy matter, the only purpose of such a rule would be to seek
to reduce conflict by reducing the potential for territorial expansion.
The rule might be more likely, however, to encourage conflict and
‘indirect’ aggression by convincing states that such aggression is free
from substantial risk : if it works, they will win ; if it fails, there is no
significant risk and they can try again. As this possibility suggests, the
right of defense under customary international law and the Charter is
a right of effective defense ; that is, a right to take such actions as are
reasonably necessary to end the attack promptly and protect the
threatened values. Why should El Salvador and other Central
American states be required to accept an endless secret war against
them ?... The real check, when the proper scope of the defensive right
is in issue, is the well-established requirement of necessity and pro-
portionality.” (“The Secret War in Central America and the Future of
371  MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

World Order”, American Journal of International Law, January 1986,
Vol. 80, pp. 190-194.)

218. As I read State practice since the United Nations Charter came
into force, it indicates that self-defence, individual and collective, may
carry the combat to the source of the aggression, whether direct or indirect.
Thus in the Korean War, 1950-1953, the United Nations was not of the
view that international law confined its response to North Korean aggres-
sion against the Republic of Korea to the territory of the Republic of
Korea. On the contrary, United Nations forces advanced into the territory
of the Democratic People’s Republic of Korea ; and, to this day, a sliver of
territory of what had been North Korea remains under the control of the
Republic of Korea. In repeated instances since the mid-1950s, Israel has
responded to foreign support of irregular forces operating against it by
striking at what it claims to have been the foreign bases of those forces.
Clearly Israel has not been of the view that international law confined it to
responsive action within its territory or within territory under its control.
In 1958, during the Algerian War, France was not of the view that inter-
national law confined its response to support for Algerian insurgents to the
territory of French Algeria. On the contrary, it acted against what it
maintained was a rebel base at Sakiet-Sidi- Youssef in Tunisia. In 1964, the
United Kingdom, in bombing Harib Fort in the territory of the Yemen
Arab Republic, maintained that it acted lawfully in doing so, in view of
prior acts of aggression against the Federation of South Arabia for whose
defence and foreign relations the United Kingdom then was responsible.
The United Kingdom was not of the view that it was confined to a
defensive response within the territory of the Federation. During the
decade of intense American involvement in the Viet Nam War, the United
States was not of the view that international law confined its response to
North Viet Nam’s support for Vietnamese insurgents to the territory of the
Republic of Viet Nam. On the contrary, it carried out bombing and mining
in the territory and waters of the Democratic Republic of Viet Nam.
Subsequently, the People’s Republic of China, in responding to Vietna-
mese assistance to a faction which took power in Democratic Kampuchea
— that is, to what China saw as the Vietnamese invasion of Kampuchea —
was not of the view that international law confined its response to the
territory of Kampuchea. On the contrary, China took action against the
territory and armed forces of the Socialist Republic of Viet Nam in Viet
Nam. Equally, Viet Nam, in the prosecution of its suppression of Kam-
puchean resistance, has not been of the view that it was restricted to the
territory of Kampuchea. On the contrary, it has penetrated the territory of
Thailand, where Kampuchean resistance forces have taken refuge. In
taking armed action against Iran in 1979, Iraq proffered as one justifica-
tion alleged Iranian support for subversion in Iraqi territory. But Iraq did
not confine itself to repelling such subversion within its territory. Nor has
Iran confined its reaction against Iraq to its own territory ; on the contrary,

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it has pushed into Iraqi territory. The Soviet Union and Afghanistan, in
responding during the last few years to alleged assistance from the territory
of Pakistan to resistance forces in Afghanistan, have not been of the view
that international law confined their response to the territory of Afgha-
nistan ; there have been air raids on the territory of Pakistan. Nicaragua
itself has not confined its response to contra attacks to the Nicaraguan
territory where they have occurred ; it has carried the battle to Honduran
territory where contras reportedly are based. It has not confined itself to
hot pursuit, but apparently has launched pre-emptive strikes against contra
bases in Honduras.

219. What matters in this context is not whether one agrees or disagrees
with the legality of the cited acts of the United Nations, Israel, France, the
United Kingdom, the United States, China, Viet Nam, Iraq, the Soviet
Union, Afghanistan and Nicaragua. It is by no means suggested that all of
these actions are of the same legal value ; some were clearly lawful, others
clearly not. But what is significant is that these actions, whose legality has
been affirmed by those carrying them out, provide ample and significant
State practice indicating that what is proposed as a limitation upon self-
defence and counter-intervention is not today applied as a rule of inter-
national jaw. It is not generally accepted State practice.

220. Nevertheless, if the proposed rule is not the accepted rule, should it
be ? Should the response of a victim of direct or indirect aggression, and a
State or States lending it support in its resistance to that aggression, be
confined to the territory of the victim ? The purpose of such a principle
would be to constrict conflict by reducing the actuality of and potential for
its territorial expansion. That is an appealing purpose. But the drawbacks
of implementing such a principle appear to outweigh its attractions. For a
result of confining hostilities to the territory of the victim would be to
encourage victimization ; potential aggressors would be the likelier to
estimate that their aggression will be free of significant cost. The potential
aggressor might reason that it has little to lose in launching covert aggres-
sion, as by concealed support of insurgents operating against the govern-
ment of a neighbouring State. If the aggression succeeds, the aggressor’s
purposes are achieved ; if not, the aggressor cannot suffer in its territory. If
it has done no more than lend substantial support to foreign insurgents, it
is those insurgents alone who will take the punishment. The aggressor may
lose its material investment in the foreign insurgency but no more ; it will
not suffer deterrence of its forces, on its territory, with incidental damage
to its people and possessions. Thus if one attempt at foreign armed sub-
version fails, another can be attempted at a more propitious time. Or,
indeed, the aggressor can carry on its support of a foreign insurgency
continuously, relatively secure in the “rule” of international law that it is
immune from a defensive response on its territory directed at its forces. In
short, such a rule would encourage rather than deter aggression. Thus it

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would not succeed even in its purpose of confining the potential for the
territorial expansion of hostilities. International law is better left as it is,
confining the scope of permissible self-defence, individual and collective,
by the provisions of the United Nations Charter and the norms of necessity
and proportionality.

P. The Failure of the United States to Notify the Security Council of
Measures of Self-Defence

221. Article 51 provides that :

“Measures taken by Members in the exercise of this right of self-
defence shall be immediately reported to the Security Council and
shall not in any way affect the authority and responsibility of the
Security Council under the present Charter to take at any time such
action as it deems necessary in order to maintain or restore interna-
tional peace and security.”

The United States did not notify the Security Council when, in December
1981 or early 1982, it began to lend support to the contras. Nor did it notify
the Security Council of subsequent actions, such as the attack on Nica-
raguan oil facilities or the mining of Nicaraguan ports. Does this failure of
the United States import that the measures taken by it were not “measures
taken .. . in exercise of this right of self-defence” ?

222. In my view, no such imputation need necessarily be made, for a
number of reasons. In the first place, the right of self-defence is an inherent
right ; the Charter provides that nothing in the present Charter shall
impair that inherent right — and that may be said to include the require-
ment of reporting such measures to the Security Council. Second, if the
aggression in question — that of Nicaragua — is covert (as it is), and the
response to that aggression is covert (as it initially was, however imper-
fectly), it could hardly at the same time have been reported to the Security
Council. A State undertaking covert action cannot at the same time pub-
licly and officially report that action to the Security Council. Does it follow
from the reporting requirement of Article 51 that aggressors are, under the
régime of the Charter, free to act covertly, but those who defend themselves
against aggression are not ? That would be a bizarre result. A more rea-
sonable interpretation of Charter obligations is that, where a State com-
mits aggression, a profound violation of its international legal obligations,
and where it commits that aggression covertly, it cannot be heard to
complain if a State or States acting in self-defence to that aggression
respond covertly. Ex injuria jus non oritur : no legal right can spring from a
wrong.

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223. In the third place, it is by no means clear that, by the intent of the
United Nations Charter, and the inference of the reporting requirement,
covert actions in self-defence are prohibited. Defensive measures may be
overt or covert, and have been in wars fought before and after the entry
into force of the United Nations Charter. In the Korean War, United
Nations support for paramilitary and covert operations was not regarded
as illegal by the United Nations. During the covert hostilities conducted by
Indonesia against Malaysia in 1965, the United Kingdom not only pro-
vided direct assistance to Malaysia but also reportedly provided covert
assistance to guerrilla and insurgent forces operating against President
Sukarno’s forces within Indonesia. Any such measures were not reported
to the Security Council, but they would not appear to have been any the
less defensive for that. Thus it appears that, in resisting aggression, covert
measures have been and legitimately may be used, which could not, by
their nature, be reported to the Security Council without prejudicing the
security and effectiveness of those measures.

224. In the fourth place, a State acting in self-defence may choose to act
covertly not because it doubts — or necessarily doubts — the legality of its
action but for other quite respectable reasons. In the current case, for
example, it appears important to the Government of Honduras not to
admit officially what is unofficially clear : that the contras have bases in
Honduras. Apparently the Government of Honduras has not wished, and
does not wish, to commit itself openly and officially to hostile relations
with Nicaragua, despite its forthright denunciations of Nicaraguan poli-
cies. If the United States had proceeded overtly, and concurrently reported
to the Security Council, that might have created problems which Honduras
would have viewed as substantial. Or, again, in the view of the United
States, the possibilities of reaching a diplomatic accommodation with
Nicaragua might have been greater if the pressures exerted upon Nicara-
gua were covert rather than announced. The United States may also have
acted covertly rather than overtly for reasons related to Congressional
oversight or for domestic political reasons. But such considerations do not
necessarily suggest that United States motivations or measures were not
defensive. For all these reasons, the failure of the United States to report its
measures to the Security Council does not necessarily suggest that these
measures were not defensive or that its own perception of those measures
was that they were not taken in the exercise of its right of collective
self-defence.

225. It should be added that, while the United States failed to report
measures it describes as taken in collective self-defence to the Security
Council, more than once in Security Council debates flowing from com-

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plaints by Nicaragua against it, the United States indicated that it was
joining in defensive measures against Nicaragua’s prior and continuing
acts of aggression. It did so well before Nicaragua brought the instant case
to the Court. For example, as early as March 1982, shortly after heightened
contra activity assisted by the United States began, Nicaragua made a
complaint to the Security Council, at which Co-ordinator Ortega appeared
for Nicaragua. Ambassador Kirkpatrick made a detailed and vigorous
reply. The usual charges by Nicaragua and the United States, which are
now familiar, were exchanged. The United States indicated in the Security
Council debate that it had taken certain responsive action “to safeguard
our own security and that of other States which are threatened by the
Sandinista Government” (see S/PV.2335, p. 48). While that action parti-
cularly related to overflights, the United States thus inferred that this
action was in individual and collective self-defence. Since the United
States exertion of armed pressure upon Nicaragua then actually was co-
vert, it could hardly have been expected that the United States would have
explicitly enumerated its measures in support of the contras as measures of
self-defence. It spoke in general terms.

226. In further response to a complaint of Nicaragua, Ambassador
Kirkpatrick similarly stated in the Security Council on 2 April 1982 that,
while it was attached to the principle of non-interference, “None of this
means that the United States renounces the right to defend itself, nor that
we will not assist others to defend themselves . . .” (S/PV.2347, p. 7). The
context of this statement again suggests reference by the United States toa
right of collective self-defence against Nicaragua’s actions in El Salvador.
In a like vein, in the Security Council on 25 March 1983, Ambassador
Kirkpatrick maintained, in respect of Nicaragua’s renewed complaint :

“Thus it is legitimate for communist Governments to train and arm
guerrillas and make war on their non-communist neighbours. It is
illegitimate for non-communists to attempt to defend themselves or
for others to help them to do so.” (S/PV.2423, pp. 54-55.)

Again, on 9 May 1983 in the Security Council, Ambassador Kirkpatrick
asserted that :

“The Government of Nicaragua has come again to us, demanding
of the United Nations international protection while it destabilizes
its neighbours. It is claiming that a people repressed by foreign arms
of a super-Power has no right to help against that repression.”
(S/PV.2431, p. 62.)

Once more, if in guarded terms, the United States may be said to have

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recognized El Salvador’s right to ask for and for it to give it assistance in
meeting Nicaragua’s acts of aggression. Again, on 3 February 1984, the
United States in the Security Council affirmed that, “We do intend to
continue to co-operate with our friends in Central America . . . in defence
of freedom . . .” (S/PV.2513, p. 27). And on 30 March 1984, the United
States, after denouncing Nicaragua’s continued support of guerrillas in
other countries, principally El Salvador, claimed that Nicaragua came
before the Security Council “seeking to prevent its neighbours from
defending themselves against Nicaraguan-based efforts at the subversion
and overthrow of neighbouring countries” (S/PV.2525, p. 41).

227. All this said, there remains, under the Charter of the United
Nations, a literal violation of one of its terms. The term in question is a
procedural term ; of itself it does not, and by the terms of Article 51,
cannot, impair the substantive, inherent right of self-defence, individual or
collective. The measures of the United States in assisting El Salvador by,
among other means, applying force against Nicaragua, are not trans-
formed from defensive into aggressive measures by the failure to report
those measures to the Security Council. But there is nevertheless a violation
of an important provision which is designed to permit the Security Council
to exert its supervening authority in a timely way. Even if Nicaragua, by
reason of its prior and continuing acts of covert intervention and aggres-
sion, may reasonably be deemed to be debarred from complaining of
responsive covert measures of the United States, the international com-
munity at large, as represented by the Security Council, has an interest in
the maintenance of international peace and security which should not be
pre-empted by the failure of a State to report its defensive measures to the
Security Council.

228. It must be recalled, however, that, if the legality of the actions of
the United States in this case are to be adjudged not under the United
Nations Charter and the other treaties on which Nicaragua has relied, but,
by reason of the multilateral treaty reservation of the United States, under
customary international law, customary international law knows nothing
of an obligation of a State to report to the Security Council. Accordingly, in
the case before the Court, it may in any event be concluded that the United
States cannot be held in violation of an international legal obligation by
reason of having failed to report defensive measures to the Security
Council.

229. The Court’s Judgment appears to rest upon another argument in
respect of reporting under Article 51 of the United Nations Charter,
namely, that, since El Salvador never claimed that it was acting in self-
defence until it filed its Declaration of Intervention in this case in 1984,
and since the United States never claimed that it was acting in collective

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self-defence until the pendency of these proceedings, it is too late for them,
or at any rate the United States, to make such claims now. Whether the
Court is on sound factual ground in reaching this conclusion has been
challenged above (paras. 186-190).

230. In any event, does the body of international law contain such a
statute of limitations? By the terms of Article 51, measures taken by
Members of the United Nations in exercise of their right of individual or
collective self-defence “shall be immediately reported to the Security
Council”. But does it follow that, if they are not, those measures may not
later be claimed to be measures of self-defence? I do not believe so,
because such a conclusion would invest a procedural provision, however
important, with a determinative substantive significance which would be
unwarranted. A State cannot be deprived, and cannot deprive itself, of its
inherent right of individual or collective self-defence because of its failure
to report measures taken in the exercise of that right to the Security
Council.

Q. If United States Reliance on a Claim of Self-Defence Is Well
Founded, it Constitutes a Complete Defence to Virtually all
Nicaraguan Claims

231. Where a State is charged with an unlawful use of force, but actually
has employed force in self-defence, that State is absolved of any breach of
its international responsibility. In my view, that is the situation of the
current case.

232. Thus Judge Ago, in preparation of the International Law Com-
mission’s draft articles on State responsibility, proposed, under the rubric
“Circumstances precluding wrongfulness”, the following provision :

“Article 34. Self-defence

The wrongfulness of an act of a State not in conformity with an
international obligation to another State is precluded if the State
committed the act in order to defend itself or another State against
armed attack as provided for in Article 51 of the Charter of the United
Nations.” (Yearbook of the International Law Commission, 1980,
Vol. II, Part One, p. 70.)

That this provision is a correct statement of the international law of the
matter is demonstrated in Judge Ago’s detailed commentary on the article
(ibid., pp. 51-70).

233. The International Law Commission itself adopted the proposals
and reasoning of Judge Ago, its draft article reading :

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The

R.

MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

“Article 34. Self-defence

The wrongfulness of an act of a State not in conformity with an
international obligation of that State is precluded if the act constitutes
a lawful measure of self-defence taken in conformity with the Charter
of the United Nations.” ( Yearbook of the International Law Commis-
sion, 1980, Vol. II, Part Two, p. 52.)

Commission’s commentary to this article in part provides :

“(1) This article relates to self-defence only from the standpoint
and in the context of the circumstances precluding wrongfulness . . .
Its sole purpose is to indicate that, when the requisite conditions for a
situation of self-defence are fulfilled, recourse by a State to the use of
armed force with the specific aim of halting or repelling aggression by
another State cannot constitute an internationally wrongful act,
despite the existence at the present time, in the Charter of the United
Nations and in customary international law, of the general prohibi-
tion on recourse to the use of force . . . The article merely takes as its
premise the existence of a general principle admitting self-defence as a
definite exception, which cannot be renounced, to the general prohi-
bition on recourse to the use of armed force, and merely draws the
inevitable inferences regarding preclusion of the wrongfulness of acts
of the State involving such recourse under the conditions that con-
stitute a situation of self-defence.

... the effect of a situation of self-defence underlying the conduct
adopted by the State is to suspend or negate altogether, in the par-
ticular instance concerned, the duty to observe the international
obligation, which in the present case is the general obligation to
refrain from the use or threat of force in international relations.
Where there is a situation of self-defence, the objective element of the
internationally wrongful act, namely the breach of the obligation not
to use force, is absent and, consequently no wrongful act can have
taken place.” (Ibid., pp. 52, 60.)

The Mining of Nicaraguan Ports Was Unlawful in Regard to Third
States but Lawful in Respect to Nicaragua

234. It is uncontested that Nicaraguan ports or waters were the objects
of mining in 1984. Evidence refuting Nicaraguan claims that agents of the
United States Government carried out the mining has not been presented
to the Court or appeared in the public domain. On the contrary, there is
evidence of admissions by the President of the United States and other
officials of the United States Government of the involvement of the United

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States in the laying of small-scale mines in the waters of Nicaraguan
ports.

235. It is not clear whether the mine-laying was designed to interrupt
commercial shipping or whether it may have had a belligerent purpose,
such as the interruption of shipments of arms from Communist countries
to Nicaragua for trans-shipment to El Salvadoran insurgents, or both. The
mines were not designed to inflict significant damage and did not. But they
did damage the ships of a number of States. Moreover, Nicaraguan ship-
ping and personnel incurred losses in the course of sweeping the mines, and
Nicaraguan commerce was prejudiced.

236. Mines have been extensively used in warfare in the course of the
twentieth century. Under certain conditions, their use is contemplated by
the Hague Convention relative to the laying of automatic submarine
contact mines of 1907, to which Nicaragua and the United States are
parties. A belligerent is entitled, under international law, to take reason-
able measures (a fortiori, within the internal waters of the opposing bel-
ligerent) to restrict shipping, including third flag shipping, from using the
ports of its opponent. Thus the use of mines in hostilities is not of itself
unlawful. That today is so whether the hostilities are declared or unde-
clared ; a state of war or of belligerency need not exist. If the use of force by
the United States against Nicaragua is lawful, then the use of mining as a
measure of such use of force may, in principle, be lawful, provided that its
usage comports with measures taken in the exercise of the right of collec-
tive self-defence.

237. As Judge Ago pointed out in the passages from his Report to the
International Law Commission quoted in paragraph 212 of this opinion,
measures taken in self-defence, to be proportional, need not mirror offen-
sive measures of the aggressor. Moreover, it may be noted that, as Hon-
duras charged in its protest note to Nicaragua of 30 June 1983, Nicaragua
apparently has mined Honduran roads with a resultant loss of life
(Counter-Memorial of the United States, Ann. 61) ; the mining of roads in
El Salvador by Salvadoran insurgents, using land-mines and explosives
reportedly provided by or through Nicaragua, is a commonplace. The
consequential casualties far exceed those caused by the mining of Nica-
raguan ports. Thus the fact that Nicaragua may have confined itself to land
mining, or to assisting in the laying of land mines, and to no more than
threatening the mining of foreign ports (see the appendix, paras. 119, 136),
does not of itself render United States mining of Nicaraguan ports, as a
measure in the exercise of its right of collective self-defence, dispropor-
tionate, or otherwise unlawful — as against Nicaragua.

238. However, as against third States whose shipping was damaged or
whose nationals were injured by mines laid by or on behalf of the United

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States, the international responsibility of the United States may arise.
Third States were and are entitled to carry on commerce with Nicaragua
and their ships are entitled to make use of Nicaraguan ports. If the United
States were to be justified in taking blockade-like measures against Nica-
raguan ports, as by mining, it could only be so if its mining of Nicaraguan
ports were publicly and officially announced by it and if international
shipping were duly warned by it about the fact that mines would be or had
been laid in specified waters. However, no such announcement was made
by the United States in advance of or upon the laying of mines ; interna-
tional shipping was not duly warned by it in a timely, official manner. It
appears that the contras did issue warnings about the mining of Nicara-
guan ports (see “The Mining of Nicaraguan Ports and Harbors, Hearing
and Markup before the Committee on Foreign Affairs”, House of Rep-
resentatives, Ninety-eighth Congress, Second Session, on H. Con. Res.
290, pp. 31, 40). But it is questionable whether third States and their
shipping should have been expected to take seriously such warnings from
the contras. It might be argued that warnings by the contras might mitigate
the responsibility of the United States ; I do not believe that they would
erase it.

239. The obligation incumbent upon a State of notifying the existence
of a minefield laid by it or with its knowledge was affirmed by the Court in
the Corfu Channel case (1 C.J. Reports 1949, p. 22), not on the basis of
the Hague Convention of 1907:

“which is applicable in time of war, but on certain general and well
recognized principles, namely, elementary considerations of human-
ity, even more exacting in peace than in war ; the principle of the
freedom of maritime communication ; and every State’s obligation
not to allow knowingly its territory to be used for acts contrary to the
rights of other States”.

The United States did not discharge that obligation of notification vis-
a-vis third States.

240. As against Nicaragua, however, a further factor comes into play,
in addition to those specified above. Nicaragua stands in violation of
that most pertinent obligation which the Court set forth in the Corfu
Channel case, namely, its “obligation not to allow knowingly its territory
to be used for acts contrary to the rights of other States”. Since Nica-
ragua has violated and continues to violate that cardinal obligation, and
commenced its violation of that obligation years before the mining and
maintained that violation during the period of the mining and thereafter,
Nicaragua cannot be heard to complain, as against it, of the mining of
its ports. As Judge Hudson concluded in his individual opinion in the
case of Diversion of Water from the Meuse, P.C.I.J., Series A/B, No. 70,
page 77:

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381  MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

“It would seem to be an important principle of equity that where
two parties have assumed an identical or reciprocal obligation, one
party which is engaged in a continuing non-performance of that
obligation should not be permitted to take advantage of a similar
non-performance of that obligation by the other party . . . a tribunal
bound by international law ought not to shrink from applying a
principle of such obvious fairness.”

And as Judge Anzilotti in his dissenting opinion in the same case con-
cluded :

“I am convinced that the principle underlying this submission
(inadimplenti non est adimplendum) is so just, so equitable, so univer-
sally recognized, that it must be applied in international relations also.
In any case, it is one of these ‘general principles of law recognized by
civilized nations’ which the Court applies in virtue of Article 38 of its
Statute.” (P.C.IJ., Series A/B, No. 70, p. 50.)

Dr. C. Wilfred Jenks has observed that : “Judge Hudson’s view that this
principle was applicable was shared by the majority of the Court (ibid,
p. 25) and by Judge Anzilotti (ibid, p. 50).” (The Prospects of International
Adjudication, 1964, p. 326, note 30.) The Court held :

“In these circumstances, the Court finds it difficult to admit that
the Netherlands are now warranted in complaining of the construc-
tion and operation of a lock of which they themselves set an example
in the past.” (Diversion of Water from the Meuse, P.C.1.J., Series A/B,
No. 70, p. 25.)

S. The United States Has not Unlawfully Intervened in the Internal or
External Affairs of Nicaragua

241. Relying on the same factual allegations which it has advanced
against the United States in respect of the use of force against it, Nicaragua
also maintains that the United States stands in breach of its obligations
under the Charter of the Organization of American States, as contained
in Articles 18, 19, 20 and 21, and under customary international law.
The essence of its claim is that the United States has unlawfully inter-
vened in the internal and external affairs of Nicaragua by attempting to
change the policies of its Government or the Nicaraguan Government
itself.

242. In view of the comprehensive and categorical injunctions of the
OAS Charter against intervention, and the much narrower but significant
rules of non-intervention of customary international law, Nicaragua’s
prima facie case appears to be considerable. On analysis, however, it is
inadequate, and for two reasons (in addition to those posed by the mul-
tilateral treaty reservation). The first of those reasons goes a long way

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towards countering Nicaraguan contentions of unlawful intervention. The
second vitiates them.

243. It has been shown that, in order to extract from the OAS and its
Members their recognition of the Junta of National Reconstruction in
place of the Government of President Somoza, the Junta, in response to the
OAS resolution of 23 June 1979, gave undertakings to the OAS and its
Members to govern in accordance with specified democratic standards and
policies (see paras. 8-13 of the appendix to this opinion). It has also been
shown that the Nicaraguan Government has failed so to govern, and has so
failed deliberately and wilfully, as a matter of State policy (ibid.).

244. It is accepted international law that a government is liable for the
acts of successful revolutionaries — their torts and their contracts. (Cf. the
Award of William H. Taft, Sole Arbitrator, in the Tinoco case, 1923,
United Nations Reports of International Arbitral Awards, Vol. 1, p. 375.) As
F. K. Nielsen put it:

“A government is liable for acts of successful revolutionists. The
rule of responsibility applies to the redress for tortious acts as well as
to contractual obligations entered into by revolutionists, who succeed
in coming into control of a state or in throwing off the authority of an
established government.” (/nternational Law Applied to Reclamations,
1933, p. 32.)

It is equally accepted that insurgent communities may conclude treaties
(see the “Draft articles on the law of treaties with commentaries”, Report
of the International Law Commission on the work of its eighteenth session,
Yearbook of the International Law Commission, 1966, Vol. IT, pp. 188-189).
The “rule . . . found to be established in the practice of States and accepted
by writers...” by Dr. Hans Blix is that :

“A revolutionary government is competent under international law
to conclude treaties on behalf of the state it purports to represent...
provided only that it appears to wield effective authority, so that there
seems to be a high degree of likelihood that it will be able in fact to
fulfil the obligations it is prepared to undertake . . .” (Treaty-Making
Power, 1960, p. 146.)

245. The Permanent Court of International Justice in its advisory opin-
ion on Nationality Decrees Issued in Tunis and Morocco (P.C.1.J., Series B,
No. 4, p. 24) dealt with what is a matter of domestic jurisdiction in
classic terms :

“The question whether a certain matter is or is not solely within the
jurisdiction of a State is an essentially relative question ; it depends on
the development of international relations... it may well happen that,

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in a matter which . .. is not, in principle, regulated by international
law, the right of a State to use its discretion is nevertheless restricted
by obligations which it may have undertaken towards other States. In
such a case, jurisdiction which, in principle, belongs solely to the
State, is limited by the rules of international law.”

There is nothing to debar a State — or a revolutionary junta entitled to bind
the State — from undertaking obligations towards other States in respect of
matters which otherwise would be within its exclusive jurisdiction. Thus,
under the Statute of the Council of Europe, every Member of the Council
of Europe “must accept the principles of the rule of law and of the
enjoyment by all persons within its jurisdiction of human rights and
fundamental freedoms” (Art. 3). Any Member which has seriously violated
Article 3 may be suspended from its rights of representation. The history of
the Council of Europe demonstrates that these international obligations
are treated as such by the Council ; they may not be avoided by pleas of
domestic jurisdiction and non-intervention.

246. The Nicaraguan Junta of National Reconstruction, by the under-
takings it entered into not only with the OAS but with its Members, among
them, the United States (which individually and in consideration of those
undertakings treated with the Junta as the Government of the Republic of
Nicaragua), has not dissimilarly placed within the domain of Nicaragua’s
international obligations its domestic governance and foreign policy to the
extent of those undertakings. Thus, what otherwise would be “the right” of
Nicaragua “to use its discretion is nevertheless restricted by obligations”
which it has undertaken towards those States, including the United States.
It follows that, when the United States demands that Nicaragua perform
its undertakings given to the OAS and its Members, including the United
States, to observe human rights, to enforce civil justice, to call free elec-
tions : when it demands that the Junta perform its promises of “a truly
democratic government . . . with full guaranty of human rights” and
“fundamental liberties” including “free expression, reporting” and trade
union freedom and “an independent foreign policy of non-alignment”
(appendix to this opinion, paras. 8-11), the United States does not “in-
tervene” in the internal or external affairs of Nicaragua. Such demands are
not a “form of interference or attempted threat against the personality of
the State” of Nicaragua. They are legally well-grounded efforts to induce
Nicaragua to perform its international obligations.

247. The Court. however, has found that, by its 1979 communications to
the OAS and its Members, Nicaragua entered into no commitments. It
may be observed that that conclusion is inconsistent not only with the
views of the United States quoted in the Court’s Judgment. but apparently

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with the views of Nicaragua (appendix to this opinion, para. 53). In my
view, the commitment of Nicaragua is clear : essentially, in exchange for
the OAS and its Members stripping the Somoza Government of its legiti-
macy and bestowing recognition upon the Junta as the Government of
Nicaragua, the Junta extended specific pledges to the OAS and its Mem-
bers which it bound itself to “implement” (appendix, paras. 8-13, espe-
cially para. 10). I am confirmed in that conclusion by the former Director
of the Department of Legal Affairs of the OAS, Dr. F. V. Garcia Amador,
who has characterized the pledges of the Junta in question as constituting
“its formal obligation”. In his view,

“These obligations included the installation of a democratic gov-
ernment to be composed of the principal groups which had opposed
the previous régime and the guarantee to respect the human rights of
all Nicaraguans, without exception. The requirements imposed by the
Meeting [the Seventeenth Meeting of Consultation of the Ministers of
Foreign Affairs in 1979] were not unexpected, especially in view of the
Resolution of June 23, 1979 which proposed the ‘[i]mmediate and
definitive replacement of the Somoza régime’ in order to resolve the
situation in Nicaragua.” (Loc. cit., p. 40.)

248. It is of course obvious that the Junta did not, by its written
undertakings to the OAS and its Members, conclude an international
agreement in treaty form. But, as the Vienna Convention on the Law of
Treaties recognizes (Art. 3), and as the Permanent Court of International
Justice held in the Legal Status of Eastern Greenland, Judgment, 1933,
P.C.LJ., Series A/B, No. 53, page 71, an international commitment
binding upon a State need not be made in written, still less particularly
formal, form. The question is simply, did the authority of the State con-
cerned give an assurance, or extend an undertaking, which, in the parti-
cular circumstances, is to be regarded as binding upon it ? When a revo-
lutionary government, soliciting recognition, has given assurances to for-
eign governments, such assurances have repeatedly been treated by foreign
governments as binding the revolutionary government and its successors. I
do not see why the assurances of the Junta were not binding, made as they
were, not only to the OAS but to its “Member States” ; assurances which
the Junta affirmed it “ratified”, which it characterized as a “decision”,
which it intimated it took “in fulfillment of the Resolution of the XVII
Meeting of Consultation of Ministers of Foreign Affairs of the OAS
adopted on 23 June 1979”, and which it affirmed it “will immediately
proceed .. . to Decree, [which] Organic Law . . . will govern the institutions
of the State” in pursuance of a Programme which the Government of
National Reconstruction will “Implement”. As the Inter-American Com-
mission on Human Rights recognized, the OAS deprived the Somoza
Government of legitimacy. The OAS offered recognition to the Junta on

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bases which the Junta accepted. The Junta in reply indeed prescribed that,
immediately following its installation inside Nicaragua, “the Member
States of the OAS .. . will proceed to recognize it as the legitimate
Government of Nicaragua” and that it in turn “will immediately proceed”
to decree its Fundamental Statute and Organic Law and implement its
Programme (appendix, para. 10). The OAS and its Members performed ;
the Government of Nicaragua did not. Not only was the creation of an
international obligation clear ; so was its breach.

249. It does not follow, however, that the United States is entitled to use
any means whatever to persuade Nicaragua to perform its international
obligations. Under the régime of the United Nations Charter, and in
contemporary customary international law, a State is not generally entitled
to use force to require another State to carry out its international legal
obligations ; a State may use force only in response to the lawful injunc-
tions of the United Nations and of regional organizations acting in con-
formity with the Purposes and Principles of the United Nations, and in
individual or collective self-defence.

250. This brings us to the second, and dispositive, consideration. The
United States claims that the measures of force which it has exerted,
directly and indirectly, against Nicaragua, are measures of collective self-
defence. If that claim is good — and, for the reasons expounded above, I
believe that it is — it is a defence not only to Nicaraguan charges of the
unlawful use of force against it but of intervention against it. That is
demonstrated by the terms of the OAS Charter. Articles 21 and 22 pro-
vide :

“Article 21

The American States bind themselves in their international rela-
tions not to have recourse to the use of force, except in the case of
self-defence in accordance with existing treaties or in fulfillment
thereof.

Article 22

Measures adopted for the maintenance of peace and security in
accordance with existing treaties do not constitute a violation of the
principles set forth in Articles 18 and 20.”

As has been shown above, the use of force by the United States comports
not only with the United Nations Charter but with the Rio Treaty — one of
the “existing treaties” to which Articles 21 and 22 of the Charter of the
OAS refer. The “measures adopted for the maintenance of peace and
security in accordance with existing treaties” by the United States and El
Salvador, in exercise of their inherent right of collective self-defence, thus

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“do not constitute a violation of the principles set forth in Articles 18 and
20” of the OAS Charter. Nor do they transgress customary international
law. If a State charged with intervention actually acted in collective self-
defence, its measures are treated not as unlawful intervention but as
measures of justified counter-intervention or self-defence.

T. The United States Has not Violated its Obligations towards Nicaragua
under the Treaty of Friendship, Commerce and Navigation

251. If, as concluded above, the Court lacks jurisdiction to pass upon
Nicaraguan complaints brought under the bilateral Treaty of Friendship,
Commerce and Navigation (this opinion, paras. 100-106), it cannot
properly find that the United States has violated obligations under that
Treaty owing to Nicaragua. If it has jurisdiction, then it is appropriate
to consider, as the Court does, claims by Nicaragua of breach of that
Treaty. |

252. A principal theme of Nicaragua’s claims is that the Treaty is not
Just a commercial treaty, but a treaty of friendship, and that the acts of the
United States in supporting the contras, assaulting oil facilities, mining
Nicaraguan ports, etc., are hardly friendly. That latter conclusion is clearly
correct. At the same time, Nicaragua’s counsel made no reference to prior,
unfriendly acts of Nicaragua, which, if friendship really is to be understood
(contrary to my understanding) as the stuff of the Treaty, may be said to
have engaged Nicaragua’s responsibility under it.

253. Can the adoption by the Nicaraguan Government of a national
anthem, from the time of its taking power in 1979, which contains the line,
“We shall fight against the Yankee, enemy of humanity”, despite repre-
sentations by the United States, be viewed as a friendly act, consistent with
what Nicaragua maintains is of the essence of the Treaty ? (See Lawrence
E. Harrison, “The Need for a ‘Yankee Oppressor’ ”, in Mark Falcoff and
Robert Royal, editors, Crisis and Opportunity, U.S. Policy in Central
America and the Caribbean, 1984, p. 436.) Was the anti-United States
propaganda regularly printed in the official Sandinista newspapers from
the time of the revolution’s taking power, including the 18 months when
the United States was Nicaragua’s principal donor of economic aid,
friendly ? ([bid., p.437.) Were the pervasive political attacks publicly made
by Ministers of the Nicaraguan Government upon the United States from
the time the Sandinistas took power friendly ? (Jbid.) Indeed, can the
policies of open and ardent support for the overthrow of the Government
of El Salvador, an ally of the United States, which have been proclaimed
and pursued by the Nicaraguan Government be viewed as friendly ? If the
Treaty’s preambular reference to “strengthening the bonds of peace and
friendship” is to be treated as imposing upon the Parties obligations of

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friendly behaviour toward each other, as Nicaragua maintains and as the
Court appears in qualified measure to agree, how is it that the Court has
overlooked these prior and continuing violations of the Treaty by Nica-
ragua ? Perhaps on the ground of its holding that there is a distinction, even
in the case of a treaty of friendship, between the broad category of
unfriendly acts, and the narrower category of acts “tending to defeat the
object and purpose of the Treaty”. But even that narrower creative cate-
gory, in my view, constitutes an unwarranted and injudicious extension by
the Court of the jurisdiction afforded it under a treaty of this kind.

254. In any event, the conclusion that the United States is in violation of
obligations towards Nicaragua under the Treaty is unfounded, for the
reason that the Treaty does not preclude a Party’s application of measures
“necessary to fulfill the obligations of a Party for the maintenance . ..
of international peace and security, or necessary to protect its essential se-
curity interests”. It has been shown above that the United States reason-
ably maintains that its measures in support of Ei Salvador, including its
measures directed against Nicaragua, are necessary to fulfil the obligations
which the United States has under the Rio Treaty to treat an attack upon El
Salvador as an attack upon the United States. Moreover, the United States
has contended that its measures are necessary to protect its essential
security interests, a contention which cannot be dismissed in view of the
increasing integration of Nicaragua into the group of States led by the
Soviet Union, and Nicaragua’s continuing subversion of its neighbours. If
the United States is justified in invoking either the proviso relating to
measures for the maintenance of peace, or the proviso relating to essential
security interests, either of itself provides a sufficient defence to claims of
its violation of the Treaty, however plausible such claims (such as those in
respect of mining and the trade embargo) may appear to be under specific
provisions of the Treaty.

255. Yet the Court holds that the United States cannot be deemed to
have acted (in the exertion of its pressures upon Nicaragua) under the
provision of Article XXI of the Treaty which specifies that the Treaty does
not preclude measures necessary to fulfil “the obligations” of a Party for
the maintenance or restoration of international peace and security. The
Court declares :

“The Court does not believe that this provision of the 1956 Treaty
can apply to the eventuality of the exercise of the right of individual or
collective self-defence.”

The Court so states after maintaining that measures necessary “to fulfil the
obligations of a Party for the maintenance or restoration of international
peace and security” must signify measures which the State in question

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“must take in performance of an international commitment . . .”. But the
Court fails to say why such a commitment is lacking in this case. As shown
above, the United States is bound by precisely such a commitment under
the Rio Treaty.

256. It may be added that there is no principle or provision of inter-
national law or of the general principles of law which prohibits a right from
also being an obligation. A citizen may have the right to vote ; in many
countries, he also bears an obligation to vote. A citizen may have the right
to serve in his country’s armed forces ; he may also have that obligation. A
State may have the right to engage in collective self-defence if another State
is a victim of armed attack ; but it also may have assumed a treaty
obligation towards that State to undertake measures of collective self-
defence. Indeed, the very concept of collective security imports that States
have an obligation as well as a right to assist other States in resisting
aggression. In the instant case, the United States has assumed such an
undertaking vis-a-vis El Salvador by the terms of the Rio Treaty. Accord-
ingly, the United States at once both enjoys a right and bears an obligation
(a conclusion sustained by Dr. Garcia Amador’s authoritative interpreta-
tion of the Rio Treaty ; supra, para. 196). Its assistance to El Salvador to
repel Nicaragua’s support of the armed subversion of El Salvador thus falls
squarely within the terms of the Rio Treaty and of the 1956 bilateral
Treaty.

U. Responsibility for Violations of the Law of War

257. The Court has correctly concluded that international legal respon-
sibility for violations of the law of war by the contras cannot be imputed to
the Government of the United States. In my view, for like reasons, inter-
national legal responsibility for violations of the law of war by the insur-
gents in El Salvador cannot be imputed to the Government of Nicaragua.
However, Nicaragua is responsible for any violations of the law of war
committed by its forces, of which there is some evidence (appendix to this
opinion, paras. 13, 28, 206, 224, and the sources there referred to).

258. Nevertheless, the Court finds that, by publishing and dissemina-
ting to the contras the manual entitled Operaciones sicolôgicas en guerra de
guerrillas, the United States “has encouraged the commission by [persons
or groups of persons in Nicaragua] of acts contrary to general principles of
humanitarian law”.

259. Customary international law does not know the delict of “encour-
agement”. There appears to be no precedent for holding a State respon-
sible for breach of the Geneva Conventions for the Protection of War
Victims of 1949 by reason of its advocacy of violations of humanitarian
law, though it may reasonably be maintained that a State which encourages

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violations of that law fails to “ensure respect” for the Geneva Conventions,
as by their terms it is obliged to do. Judge Ago pointed out in his “Seventh
Report on State Responsibility” submitted to the International Law Com-
mission that it would be “unduly facile” to make comparisons between
incitement by a sovereign State to commit an internationally wrongful act
and the legal concept of “incitement to commit an offence” in internal
criminal law. This latter legal concept “has its origin and justification in the
psychological motives determining individual conduct, to which the
motives of State conduct in international relations cannot be assimilated”.
Judge Ago concluded that international law did not “know of any cases in
which, at the juridical level, a State has been alleged to be internationally
responsible solely by reason of such incitement” (Yearbook of the Inter-
national Law Commission, 1978, Vol. IE, Part One, p. 55, paras. 62, 63).

260. As the Court’s Judgment and examination of the manual in the
appendix to this opinion make clear, the manual advocates some acts in
conformity with the law of war and some acts in gross violation of it. While
it is not established that such advocacy was the considered policy of the
United States — on the contrary, it appears to have been the ill-considered
effort of one or a few subordinates — such advocacy is reprehensible.
Whether or not the Government of the United States may be held respon-
sible under international law for the publication of the manual on the
ground of “encouragement”, what is beyond discussion is that no govern-
ment can justify official advocacy of acts in violation of the law of war. I
have voted for the relevant operative paragraph of the Judgment for that
reason.

261. At the same time, such advocacy, such as it was, and indeed the
numerous and heinous violations of the law of war attributed to some of
the contras of which there is evidence, but not attributed to the United
States, do not transform defensive measures of the United States into
aggressive measures, and not only because of the absence of attribution.
The difference between the law governing the right to use force interna-
tionally, and the law governing the manner in which such force may be
exerted, is no less important because it is fundamental. In the Second
World War, the Governments of the States allied as the United Nations
acted in lawful individual and collective self-defence against the aggression
of the Axis Powers. But that is not to say that no violations of the law of war
were committed by United Nations forces, even if, in comparison with the
unparalleled and deliberate war crimes of Germany in particular, United
Nations violations were modest. Yet such violations of the law of war by
United Nations forces did not transform their defensive struggle into an
aggressive one.

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V. As the State which First Used Armed Force in Contravention of the
Charter, the Aggressor is Nicaragua

262. The Government of the Republic of Nicaragua has come before
the Court alleging that it is the victim of unlawful acts of the use of force
and of intervention. At the same time, it has been demonstrated that (a) the
Nicaraguan Government came to power on the back of some of the very
forms of foreign use of force and intervention of which it now complains ;
(b) since coming to power, it has violated the undertakings which it gave to
the OAS and its Members, some of whom facilitated its taking power ; (c)
the Nicaraguan Government has itself committed acts tantamount to an
armed attack upon El Salvador, and engaged in multiple acts of interven-
tion in El Salvador and other neighbouring States ; and that (d) these
aggressive acts of the Nicaraguan Government were committed “first”,
that is, they were committed before the United States undertook the
responsive actions of which Nicaragua complains. In the light of these
considerations, the boldness of the Nicaraguan case is remarkable.

263. The Definition of Aggression adopted by the General Assembly of
the United Nations on 14 December 1974 not only provides that among
the acts that qualify as acts of aggression is, “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 . . . or its substantial involvement
therein” but that, “The first use of armed force by a State in contravention
of the Charter shall constitute prima facie evidence of an act of aggres-
sion . . .”. This interpretation of Charter obligations is consistent rather
than inconsistent with customary international law.

264. It is plain in this case that the first international use of armed force
— consisting of Nicaragua’s “substantial involvement” in the “sending” of
armed bands to El Salvador which have carried out acts of armed force
against El Salvador — was committed by Nicaragua. Sandinista involve-
ment with the arming, training, and command and control of the Salva-
doran insurgents, whose leadership has frequently been “sent” from Nica-
ragua to El Salvador and back, has been shown to go back to 1979, to have
reached an early peak in January 1981, and to have fluctuated since.
Nicaragua’s own evidence establishes no exertions of force, indirect or
direct, by the United States against Nicaragua before December 1981 or
early 1982. Thus the prima facie aggressor in this case is Nicaragua.

265. It is significant that Nicaragua denies not the foregoing legal
analysis but the facts on which it is based. Nicaragua does not argue that
what appears to be prima facie aggression was not aggression because its
support of the insurgency in E] Salvador was in response to prior provo-
cation or attack, or threat of imminent attack, by El Salvador. Nicaragua
does not argue that it may legally attempt to overthrow the Government of

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El Salvador in pursuance of what some might say is a “war of liberation”.
Rather, it inferentially acknowledges that, if in fact it did engage in acts of
armed intervention against El Salvador, tantamount to armed attack,
before the United States engaged in responsive acts of armed intervention
against it, it, Nicaragua, and not the United States, is the aggressor.
Presumably that is why Nicaragua has officially denied so strenuously in
Court what its leaders, its counsel and its witnesses in effect or in terms
have admitted : that Nicaragua was substantially involved in the arming of
the Salvadoran rebels, in particular for their “final offensive” of January
1981. While it may not have fully appreciated the point while it was not
engaged in litigation over it, apparently it now fully appreciates that, to
admit its involvement as having taken place, on the scale in which it took
place, and as having taken place when it took place, is to concede that it
should have lost its case.

W. The Misrepresentations of its Representatives in Court Must
Prejudice Rather than Protect Nicaragua’s Claims

266. How has Nicaragua sought to deal with this dilemma ? By calcu-
lated, reiterated misrepresentation. On the one hand, its Ministers — who,
under international law, have authority to engage the responsibility of the
State (as does the Nicaraguan Agent) — have sworn before the Court that
Nicaragua has “never” supplied arms or other material assistance to
insurgents in El Salvador (see para. 24 of this opinion). On the other hand,
it has been shown that Nicaragua has supplied arms and other material
assistance to insurgents in El Salvador (paras. 28-32, 133, 146-153 of this
opinion and its appendix, paras. 28-188).

267. How does the Court deal with the misrepresentations of the rep-
resentatives of a party before the Court ? I regret to say, in my view by
excluding, discounting, and depreciating the facts of Nicaraguan material
support of the Salvadoran insurgency, by holding that such support as
there was cannot be imputed to the Nicaraguan Government, and by
concluding that, even if it were true that Nicaragua had, apparently some
years ago, given support to or permitted support to be given to the Sal-
vadoran insurgency, such support is not tantamount to an armed attack by
Nicaragua against El Salvador. The Court goes further, by failing even to
hold that the facts of Nicaraguan material support of the overthrow of the
Government of El Salvador constitute unlawful intervention by Nicaragua
in the internal affairs of El Salvador. Apparently, in the view of the Court,
it is unlawful for the United States to intervene in Nicaragua’s affairs with
the object of overthrowing its Government or affecting its policies, but it is
not unlawful — at any rate, it does not say it is unlawful — for Nicaragua to
intervene in El Salvador’s affairs with the object of overthrowing its

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Government or affecting its policies — and this despite the fact that
Nicaragua’s intervention antedates that of the United States. 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 intervention by the one State in the internal affairs of the
other ...”.

The Court applies that faultless conclusion to the United States (despite its
legal defences to that conclusion). It holds that the United States has
committed “a clear breach of the principle of non-intervention”. But the
Court fails to apply this principle of international law to Nicaragua,
despite the fact that Nicaragua’s support of assistance to armed bands in El
Salvador is all too obvious (and despite the fact that Nicaragua has no
defence, and has offered no defence, for its intervention other than falsely
denying its reality). How does the Court justify this remarkable application
of the law ? In effect, by adopting the purport of Nicaragua’s represen-
tations as its own. Thus, whatever the intention of the Court is, the result of
its Judgment is that, rather than prejudicing Nicaragua’s claims, the cal-
culated, critical misrepresentations of Nicaragua’s representatives have
served to protect and promote them.

X. Nicaragua’s Unclean Hands Require the Court in any Event to Reject
its Claims

268. Nicaragua has not come to Court with clean hands. On the con-
trary, as the aggressor, indirectly responsible — but ultimately responsible
— for large numbers of deaths and widespread destruction in El Salvador
apparently much exceeding that which Nicaragua has sustained, Nicara-
gua’s hands are odiously unclean. Nicaragua has compounded its sins by
misrepresenting them to the Court. Thus both on the grounds of its
unlawful armed intervention in EI Salvador, and its deliberately seeking to
mislead the Court about the facts of that intervention through false tes-
timony of its Ministers, Nicaragua’s claims against the United States
should fail.

269. As recalled in paragraph 240 of this opinion, the Permanent Court
of International Justice applied a variation of the “clean hands” doctrine
in the Diversion of Water from the Meuse case. The basis for its so doing was
affirmed by Judge Anzilotti “in a famous statement which has never been
objected to : ‘The principle . . . (inadimplenti non est adimplendum) is so
just, so equitable, so universally recognized that it must be applied in
international relations...” (Elisabeth Zoller, Peacetime Unilateral Reme-
dies : An Analysis of Countermeasures, 1984, pp.16-17). That principle was
developed at length by Judge Hudson. As Judge Hudson observed in

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reciting maxims of equity which exercised “great influence in the creative
period of the development of Anglo-American law”, “Equality is equity”,
and “He who seeks equity must do equity”. A court of equity “refuses relief
to a plaintiff whose conduct in regard to the subject-matter of the litigation
has been improper” (citing Halsbury’s Laws of England, 2nd ed.. 1934, p. 87).
Judge Hudson noted that, “A very similar principle was received into
Roman law... The exceptio non adimpleti contractus ...” He shows that it is
the basis of articles of the German Civil Code, and is indeed “a general
principle” of law. Judge Hudson was of the view that Belgium could not be
ordered to discontinue an activity while the Netherlands was left free to
continue a like activity — an enjoinder which should have been found
instructive for the current case. He held that, “The Court is asked to decree
a kind of specific performance of a reciprocal obligation which the deman-
dant is not performing. It must clearly refuse to do so.” (Loc. cit., pp. 77-78.
And see the Court’s holding, at p. 25.) Equally, in this case Nicaragua asks
the Court to decree a kind of specific performance of a reciprocal obhi-
gation which it is not performing, and, equally, the Court clearly should
have refused to do so.

270. The “clean hands” doctrine finds direct support not only in the
Diversion of Water from the Meuse case but a measure of support in the
holding of the Court in the Mavrommatis Palestine Concessions case,
P.C.LJ., Series A, No. 5, page 50, where the Court held that : “M. Mav-
rommatis was bound to perform the acts which he actually did perform in
order to preserve his contracts from lapsing as they would otherwise have
done.” (Emphasis supplied.) Still more fundamental support is found in
Judge Anzilotti’s conclusion in the Legal Status of Eastern Greenland, P.C.LJ.,
Series A/ B, No. 53, page 95, that “an unlawful act cannot serve as the basis
of an action at law”. In their dissenting opinions to the Judgment in United
States Diplomatic and Consular Staff in Tehran, 1.CJ. Reports 1980,
pages 53-55, 62-63, Judges Morozov and Tarazi invoked a like principle.
(The Court also gave the doctrine a degree of analogous support in the
Factory at Chorzôw case, P.C.1.J., Series A, No. 9, p. 31, when it held that
“one party cannot avail himself of the fact that the other has not fulfilled
some obligation . . . if the former party has, by some illegal act, prevented
the latter from fulfilling the obligation in question .. .”) The principle that
an unlawful action cannot serve as the basis of an action at law, according
to Dr. Cheng, “is generally upheld by international tribunals” (Bin Cheng,
General Principles of Law as Applied by International Courts and Tribunals,
1958, p. 155). Cheng cites, among other cases, the Clark Claim, 1862, where
the American Commissioner disallowed the claim on behalf of an Ameri-
can citizen in asking : “Can he be allowed, so far as the United States are
concerned, to profit by his own wrong ? ... A party who asks for redress
must present himself with clean hands .. .” (John Bassett Moore, History
and Digest of the International Arbitrations to which the United States Has

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Been a Party, 1898, Vol. IL, at pp. 2738, 2739). Again, in the Pelletier case,
1885, the United States Secretary of State “peremptorily and immediately”
dropped pursuit of a claim of one Pelletier against Haiti — though it had
been sustained in an arbitral award — on the ground of Pelletier’s
wrongdoing :

“Ex turpi causa non oritur : by innumerable rulings under Roman
common law, as held by nations holding Latin traditions, and under
the common law as held in England and the United States, has this
principle been applied.” (Foreign Relations of the United States, 1887,
p. 607.)

The Secretary of State further quoted Lord Mansfield as holding that :
“The principle of public policy is this : ex dolo malo non oritur actio.” (At
p. 607.)

271. More recently, Sir Gerald Fitzmaurice — then the Legal Adviser of
the Foreign Office, shortly to become a judge of this Court — recorded the
application in the international sphere of the common law maxims : “He
who seeks equity must do equity” and “He who comes to equity for relief
must come with clean hands”, and concluded :

“Thus a State which is guilty of illegal conduct may be deprived of
the necessary /ocus standi in judicio for complaining of corresponding
illegalities on the part of other States, especially if these were conse-
quential on or were embarked upon in order to counter its own
illegality — in short were provoked by it.” (“The General Principles of
International Law”, 92 Collected Courses, Academy of International
Law, The Hague, (1957-II), p. 119. For further recent support of the
authority of the Court to apply a “clean hands” doctrine, see Oscar
Schachter, “International Law in the Hostage Crisis”, American Hos-
tages in Iran, 1985, p. 344.)

272. Nicaragua is precisely such a State which is guilty of illegal con-
duct. Its conduct accordingly should have been reason enough for the
Court to hold that Nicaragua had deprived itself of the necessary /ocus
standi to complain of corresponding illegalities on the part of the United
States, especially because, if these were illegalities, they were consequential
on or were embarked upon in order to counter Nicaragua’s own illegality —
“in short were provoked by it”.

(Signed) Stephen M. SCHWEBEL.

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V. FACTUAL APPENDIX

1. This appendix provides data in support of the factual premises set
forth in Section HI of this opinion. It concentrates on the facts concerning
allegations against Nicaragua, because those allegations are in particular
controversy and have been insufficiently investigated by the Court. Thus
this appendix principally examines the facts relating to the existence,
character, duration and maintenance of material support by Nicaragua of
insurgencies in neighbouring States, notably El Salvador. To the extent
that other factual premises are generally accepted, they are not developed
in like detail.

A. The Sandinistas Came to Power on the Back of Some of the Very
Forms of Intervention of Which They Now Complain

2. The gravamen of Nicaragua’s complaint is that it is the victim of
aggression and intervention by the United States. The Government of the
Republic of Nicaragua maintains that it is the lawful, recognized Gov-
ernment of that State ; that that State is entitled. under contemporary
international law, to be free from the threat or use of force against its
territorial integrity or political independence ; and that its Government is
free to pursue the policies it adopts, without foreign intervention designed
to affect those policies or the composition and maintenance of the Gov-
ernment which adopts them. It claims that the United States is employing
the threat and use of force against its political independence and that the
United States is intervening in Nicaragua in order to overthrow its Gov-
ernment.

3. In view of these charges, it is instructive to recall that the current
Government of the Republic of Nicaragua came to power assisted by some
of the very forms of the foreign use of force and the very kinds of foreign
intervention of which it now complains. There is no ground for questioning
the right of revolution within a State. But the fact is that the Sandinista
revolution did not take place only within a State ; it was not a purely
domestic product. On the contrary, while essentially Nicaraguan in ori-
gins, fighting forces and popular support, the revolution which took power
in Nicaragua in 1979 was, in important measure, organized, trained,
armed, financed, supported and sustained by foreign States which were
antipathetic to the Government of Nicaragua then in power. That Gov-
ernment, dominated for decades by the Somoza family, was recognized
throughout the world as the Government of the Republic of Nicaragua. It
had been in power for a very long time. Its representatives were signatories
to the Charters of the United Nations and the OAS. No less than the
current Government of the Republic of Nicaragua, it was the Government

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entitled to the protection of the principles and practice of international
law. (The OAS ultimately arrived at the conclusion, a few weeks before the
downfall of the Somoza Government, that it was not so entitled, appar-
ently because of its human rights violations. Whether or not this decision
was justified in international law, it was an unprecedented decision, not in
conformity with the prior practice of States.)

4. The Sandinista National Liberation Front (Frente Sandinista de
Liberaciôn Nacional — the FSLN) was founded by three Nicaraguans in
Honduras on 23 July 1961, with the example, encouragement and support
of President Fidel Castro in evidence (see David Nolan, FSLN : The
Ideology of the Sandinistas and the Nicaraguan Revolution, 1984, pp. 22-23).
Its membership during the first 15 years of its struggle was small. During
the period of the long stay in Cuba of one of its three founders and its first
Secretary-General, Carlos Fonseca Amador, the main evidence of its
existence appears to have been an infrequent communiqué issued from
Havana. The influence of the Cuba of President Fidel Castro appears to
have been no less significant in the formative years of the FSLN than it is
today. By 1975, the FSLN had split into three factions, advocating distinct
strategies for seizing power. On 26 December 1978, it was announced in
Havana that the three factions of the Sandinista Front had agreed to merge
their forces politically and militarily, a merger in which President Fidel
Castro is reputed to have played a central role. In March 1979, Havana
Radio announced the establishment of the unified Sandinista directorate
of nine members, three from each faction (the nine Comandantes de la
Revolucién who govern Nicaragua today).

5. Meanwhile, on the ground in Nicaragua, a charismatic new leader
had suddenly emerged. On 22 August 1978, Sandinista guerrillas led by
Edén Pastora Goméz — known as “Commander Zero” — seized the
National Palace in Managua, taking some 1,500 hostages whom they
exchanged for 58 political prisoners (including FSLN co-founder and sole
survivor, Tomas Borge Martinez, today Minister of the Interior). Oppo-
sition to the Somoza Government earlier had been sparked as never before
by the murder of the editor of La Prensa, Pedro Joaquin Chamorro, on
10 January 1978. It was further energized by Edén Pastora’s exploit,
breaking out into open insurrection in September 1978. Edén Pastora,
though not one of the inner circle of nine, was named Chief of the San-
dinista Army in October 1978. His substantial forces, well armed and
based in Costa Rica and operating with the tacit support of its Govern-
ment, engaged Somoza’s troops in inconclusive battles. More significantly,
by the summer of 1979, Sandinista guerrillas were seizing towns and
battling in the main cities in north and central Nicaragua ; these relatively
small guerrilla forces had the active support of the population ; assaults
and uprisings were taking place at many points ; and Somoza’s National
Guard, much of whose forces were in the south to deal with Pastora’s, had

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difficulty in dealing with the multiplicity of recurrent Sandinista attacks
elsewhere. The United States had cut off the supply of arms, ammunition
and spare parts to President Somoza’s Government two years before and it
discouraged other governments from filling the gap. On 29 May, Pastora’s
forces launched an offensive from Costa Rica. In the face of pressure from
members of the OAS to resign, deprived of the political as well as material
support of the United States, challenged by widespread assaults in the
north and centre and Pastora’s offensive from the south, Somoza resigned
and fled the country on 17 July. His hard-pressed National Guard col-
lapsed, and the Junta of National Reconstruction in which the Sandinistas
played such a portentous part took power.

6. Numbers of the Sandinista guerrillas who fought so tenaciously to
overthrow the Somoza Government were trained in Cuba (as was acknow-
ledged in his testimony by Commander Carrion, Hearing of 13 September
1985). It is not to be expected that the leadership of the Sandinistas, some
of whom had spent long periods in Cuba, received no training during their
stays. A number of Cuban military advisers took part in the Sandinista
final offensive of mid-1979. Large quantities of arms were shipped to the
Sandinistas, at the outset primarily by Venezuela (today one of the Con-
tadora Group) and, later, by Cuba. These arms were mostly flown into
Costa Rica, where they were distributed to Sandinista forces who were
based in Costa Rica with the support of the Costa Rican Government. An
investigation subsequently conducted by the Costa Rican National
Assembly established that, from December 1978 until July 1979, there
were at least 60 flights into Costa Rica with arms, ammunition and other
supplies for the Sandinista guerrillas, largely provided by Cuba. (Asam-
blea Legislativa, San José, C.R., Comision de Asuntos Especiales, /nforme
sobre el Trafico de Armas, Epe. 8768.) That report also established that,
after the triumph of the Sandinistas, some of those same, undistributed
arms were shipped from Costa Rica to El Salvador. Panama also supplied
some arms to the Sandinistas, and members of the Panamanian National
Guard fought with the Sandinistas. These facts are well known, essentially
uncontested and recorded by various sources (e.g., Shirley Christian,
Nicaragua: Revolution in the Family, 1985, pp. 29, 32, 78-81, 88-97.) Less
well known are the details of the provisioning of Sandinista guerrillas who
operated out of Honduras. It is clear that they were a significant force
which was tolerated by Honduras even if they did not enjoy from the
Government of Honduras the positive support which the Government of
Costa Rica extended in the south (see the statement of the representative of
Honduras at the 39th Session of the United Nations General Assembly,
A/39/PV.36, p. 77, infra, para. 138). All of these foreign operations were,
like those of the United States in support of the contras, “covert”. Neither
Cuba nor Venezuela nor Panama nor Costa Rica openly announced or
justified their activities ; there were no declarations of war ; there was no

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reporting to the Security Council ; there was not even a claim that prior
aggressive acts of the Government of Nicaragua had provoked their
actions so patently designed to assist in the overthrow of the Government
of Nicaragua.

7. In his testimony, Commander Carrion estimated that, in 1979, San-
dinista forces totalled somewhere between 3,000 and 4,000 armed men
(Hearing of 13 September 1985). He acknowledged that about a third of
that total had been based in Costa Rica (ibid.). He depreciated the impact
of those forces on the outcome of the struggle, which may or may not be
correct (Christian reports that Somoza’s best troops were sent to the south
to oppose the forces led by Edén Pastora). While understandably empha-
sizing the achievements of the guerrillas in Nicaragua, who were supplied,
he maintains, by arms purchased on the weapons market, Commander
Carriôn did not say where the Sandinistas inside Nicaragua secured the
money to purchase those arms. But in any event Commander Carrién’s
testimony essentially comports with than confutes the facts, namely, that
Cuba played a key role in the creation, organization, training and supply of
the Sandinista revolution, a revolution which was also significantly aided
by Venezuela, Costa Rica and Panama. Whatever one’s views about the
relative merits and demerits of the Somoza and Sandinista Governments,
the fact remains that the Sandinista revolution was the beneficiary of some
of the very forms of intervention for which it now feels justified in indicting
the United States. This intervention was vigorously, if covertly, supported
by several Latin American Governments which are proponents of the
principles of non-intervention. Moreover, the Organization of American
States itself withdrew recognition from the Nicaraguan Government, a
Government still in power which was represented in the Organization, and
offered it to a Junta of which the FSLN was a leading element, in return for
assurances extended by the Junta — another act of intervention, though
unarmed and disclaimed as such.

B. The New Nicaraguan Government Achieved Foreign Recognition in
Exchange for International Pledges concerning its Internal and External
Policies, Commitments Which it Deliberately Has Violated

8. On 23 June 1979, the Seventeenth Meeting of Consultation of the
Ministers of Foreign Affairs of the Organization of American States
adopted an extraordinary resolution which, in the words of a Report of the
Inter-American Commission on Human Rights :

“for the first time in the history of the OAS and perhaps for the first
time in the history of any international organization, deprived an
incumbent government of a member state of the Organization of
legitimacy, based on the human rights violations committed by that

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government against its own population” (OAS, Report on the Situation
of Human Rights in the Republic of Nicaragua, 1981, p. 2).

The resolution called for a solution to the armed conflict then raging in
Nicaragua, which it described as a “serious problem. . . exclusively within

the jurisdiction of the people of Nicaragua . . .”, “on the basis of the
following” :

“1. Immediate and definitive replacement of the Somoza ré-
gime.

2. Installation in Nicaraguan territory of a democratic govern-
ment, the composition of which should include the principal repre-
sentative groups which oppose the Somoza régime 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.” (OEA/Ser.F/II.17.)

9. In response to the foregoing resolution, on 12 July 1979, while Presi-
dent Somoza remained in office, the Junta of the Government of National
Reconstruction of Nicaragua sent to the Secretary-General of the OAS
“and to the Ministers of Foreign Affairs of the Member States of the
Organization” a document containing its “Plan to Secure Peace”. The
Junta wrote :

“We have developed this Plan on the basis of the Resolution of the
XVII Meeting of Consultation on June 23, 1979, a Resolution that
was historic in every sense of the word .. . We are presenting to the
community of nations of the hemisphere in connection with our ‘Plan
to Secure Peace’ the goals that have inspired our Government ever
since it was formed . . . and we wish to ratify some of them here :

I. Our firm intention to establish full observance of human rights in
our country in accordance with the United Nations Universal
Declaration . . . and the Charter of Human Rights of the OAS...

III. Our decision to enforce civil justice in our country ...
V. The plan to call the first free elections our country has known in
this century...

It is now up to the Governments of the Hemisphere to speak, so that
the solidarity with the struggle our people has carried forward to make

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democracy and justice possible in Nicaragua can become fully effec-
tive.

We ask that you transmit the text of this letter to the Ministers of the
OAS ...” (Letter of 26 November 1985, emphasis added.)

10. The “Plan of the Government of National Reconstruction to Secure
Peace” continues that

“that hemispheric solidarity that is vital if this plan is to be carried out
will come about in fulfillment of the Resolution of the XVII Meeting of
Consultation of Ministers of Foreign Affairs of the OAS adopted on
23 June 1979” (emphasis added).

It sets out “Stages of the Plan”, including : Somoza submits his resigna-
tion ; the Government of National Reconstruction is installed ;

“Immediately following the Government of National Reconstruction’s
installation inside Nicaragua, the Member States of the OAS... will
proceed to recognize it as the legitimate Government of Nicaragua . . .
The Government of National Reconstruction will immediately proceed to
.. . Decree the Fundamental Statute by which the Government of
National Reconstruction will be provisionally governed . . . Decree the
Organic Law that will govern the institutions of the State... Implement
the Program of the Government of National Reconstruction...” (Letter
of 26 November 1985 ; emphasis supplied.)

11. Attached to this letter to the OAS of the Junta was the Junta’s
Programme, Organic Law and Law of Guarantees. The Programme, dated
9 July 1979, is both broad and detailed. It promises a “truly democratic
government of justice and social progress . . .” with “full guaranty of
human rights” and “fundamental liberties” including “free expression,
reporting and dissemination of thought”, trade union freedom, “an inde-
pendent foreign policy of non-alignment” and a great deal more (Counter-
Memorial of the United States, Ann. 67). The Organic Law or Basic Statute
(ibid, Ann. 68), enacts into Nicaraguan law that, “The immediate objective
and principal task of the Government of the Republic shall be to imple-
ment its programme of government published on 9 July 1979.” To that end,
it adopts as “Basic Principles” the rights enunciated in the Universal
Declaration of Human Rights, the International Covenant on Economic,
Social and Cultural Rights, and International Covenant on Civil and
Political Rights, and proclaims “unrestricted freedom of oral and written
expression . . .”. Among various provisions dealing with the Junta, the
Council of State, and so forth, it provides that, “As soon as National
reconstruction permits general elections shall be held for the purpose of
appointing a National Assembly”. The Statute on the Rights and Guar-
antees of the Nicaraguan People (Law of Guarantees) (ibid., Ann. 69) sets

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out a detailed statement of civil and economic rights, including abolition of
the death penalty and proscription of torture, the right to individual liberty
and personal security, the right to strike, and so forth.

12. The Members of the OAS carried out their part of this international
bargain, this international unilateral contract, extending promptly their
individual recognition to the Government of National Reconstruction as
“the legitimate Government of Nicaragua” which the Junta expressly
solicited. But the FSLN — which soon asserted and maintained exclusive
control of the Junta and subsequent formations of the Nicaraguan Gov-
ernment — did not carry out its part of the bargain it concluded with the
OAS and its Members. The governance of Nicaragua is hardly “truly
democratic” ; far from human rights and fundamental liberties being
“fully guaranteed”, there is substantial evidence of arbitrary arrest and
arbitrary trial, and indications of even graver deprivations ; there is like
evidence of commission of atrocities by the armed forces of the Nicara-
guan Government, particularly against Miskito and other Indians ; free-
dom of the press and trade union freedom are harshly curtailed in Nica-
ragua and have been since the Sandinistas took power ; far from acting as a
non-aligned State, Nicaragua has almost ritually joined Cuba in support of
the international positions of the Soviet Union ; and elections were put off
until 1984 and then were held under conditions which apparently assured
that the rule of the Sandinistas could not be chailenged whatever the
popular will.

13. It would unduly extend the length of what is in any event a regret-
tably long opinion to provide details of these conclusions and complete
documentation in support of them. It is recognized that there is room for
difference of opinion on the legal conclusions that may be derived from the
conjunction of the OAS Resolution of 23 June 1979 and its performance by
the Members of the OAS, on the one hand, and the acceptance of that
resolution by the Junta and the Nicaraguan Government’s non-perfor-
mance of the terms of its acceptance, on the other. The law of those
questions has been treated above. But what is beyond dispute, as a matter
of fact, is that the Sandinista Front, virtually from the outset of its taking
power, violated important elements of the Junta’s assurances to the OAS,
and did so well before there could be any justification for such derogations
on grounds of national emergency provoked by contra and United States
attacks. Such violations have continued to the present day, during the ebbs
and flows of contra and United States pressures ; to an extent difficult to
estimate, they may have been stimulated by those pressures. Among the
many sources that may be cited in support of these conclusions are :
“Comandante Bayardo Arce’s Secret Speech before the Nicaraguan
Socialist Party (PSN)’, published by a number of sources including
Department of State Publication 9422 of March 1985 ; Amnesty Interna-
tional, Nicaragua, The Human Rights Record, 1986; Robert S. Leiken,

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“The Battle for Nicaragua”, The New York Review of Books, 13 March
1986, Volume XXXIII, No. 4 ; Shirley Christian, Nicaragua : Revolution in
the Family, 1985 ; Douglas W. Payne, The Democratic Mask : The Con-
solidation of the Sandinista Revolution, 1985 ; David Nolan, FSLN : The
Ideology of the Sandinistas and the Nicaraguan Revolution, 1984 ; and
Department of State, Broken Promises : Sandinista Repression of Human
Rights in Nicaragua, 1984,

C. The New Nicaraguan Government Received Unprecedented Aid from
the International Community, including the United States

14. When the Sandinistas took power in July 1979, the Carter Admini-
stration extended itself to assist the Junta and establish friendly relations.
After a meeting of 15 July 1979 between a State Department representative
and Sandinista leaders in which the United States promised support, Junta
member Sergio Ramirez Mercado is reported to have said: “At this
moment I think that there is no point of disagreement between us.”
(“Nicaragua Rebels Say U.S. Is Ready to Back Régime Led by Them”, the
New York Times, 16 July 1979, p. 1.) Secretary of State Cyrus Vance
declared :

“By extending our friendship and economic assistance, we
enhance the prospects for democracy in Nicaragua. We cannot
guarantee that democracy will take hold there. But if we turn our
back on Nicaragua, we can almost guarantee that democracy will
fail.” (The Washington Post, 28 September 1979.)

15. Inthe first 18 months of post-Somoza governance, the United States
— as the largest single provider of economic assistance to Nicaragua during
that period — supplied to the Nicaraguan Government some $108 million
in direct aid, including relief supplies, particularly large quantities of food
and medicine immediately after Somoza’s fall, said to be valued at about
$25 million ; it supported $262 million in loans of the Inter-American
Development Bank and Worid Bank to the Nicaraguan Government from
mid-1979 to the end of 1980 ; it facilitated the renegotiation by United
States banks of large amounts of Nicaraguan debt ; it offered Nicaragua
the assistance of the Peace Corps ; it offered military training to Nicara-
guan forces at United States bases in Panama; and President Carter
amicably received the Co-ordinator of the Junta, Daniel Ortega, at the
White House. Other States and international organizations also extended
generous amounts of economic aid to the new Nicaraguan Government,
the total of Western aid from July 1979 to the end of 1982 exceeding
$1.6 billion. The value of military, economic and other aid extended during
this period to Nicaragua by Cuba and the Soviet Union, as well as by States
allied with the USSR such as the German Democratic Republic, Viet Nam,
Ethiopia and Bulgaria, is not easily calculated, but clearly it was substan-
tial. Nicaragua also received military assistance from Libya (the incident

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of “medical supplies” found on Libyan aircraft which landed in Brazil en
route to Nicaragua may be recalled) as well as other sources, such as the
PLO.

D. The Carter Administration Suspended Aid to Nicaragua Because of its
Support of Insurgency in El Salvador, Support Evidenced, inter alia, by
Documents Captured from Salvadoran Guerrillas

16. In the case of the United States, however, a condition was attached
to the rendering of aid, at the initiative of the United States Congress : a
requirement that the President certify that Nicaragua was not supporting
terrorism or violence in other countries before appropriated funds could
be disbursed (Special Central American Assistance Act of 1979, Section
536 (g), Public Law 96-257, approved 31 May 1980). By September 1980,
evidence of Nicaraguan aid to insurgents in El Salvador was substantial
enough to lead to representations by the United States Ambassador and to
a visit in October to Managua of Deputy Assistant Secretary of State
James Cheek. Mr. Cheek informed the Nicaraguan Government that
assistance to the Salvadoran rebels would compel the United States to
terminate its aid programme and would prejudice United States-Nicara-
guan relations ; and he apparently furnished the Nicaraguan Government
with some details of the flow of arms through Nicaragua to El Salvador.
Subsequently captured documents of Salvadoran insurgents which were
deposited with the Court by the United States in 1984 indicate that this
démarche was taken seriously by the Nicaraguan Government, which for a
time suspended shipments of arms while, it is alleged, it endeavoured to
identify and eliminate the source of United States intelligence informa-
tion.

17. Ina reply to a question of the Court, the Nicaraguan Government
denies that any such conversations with a State Department representative
took place. This appears to be one of a number of misleading statements by
Nicaragua to the Court. Among the various sources that confirm the visit
to Managua of Mr. Cheek and conversations by him and the United States
Ambassador of this substance at this time with the Nicaraguan Govern-
ment, are Christian, op. cit., page 194, as well as Department of State,
“Revolution Beyond Our Borders”, Sandinista Intervention in Central Amer-
ica (Special Report 132, US Dept. of State, September 1985) (hereafter
cited as “Revolution Beyond Our Borders”), pages 20-21, which describes
these meetings of Mr. Cheek with Co-ordinator Ortega, Foreign Minister
D’Escoto and Commanders Arce, Wheelock and Humberto Ortega.

18. The captured documents referred to, which were “recovered from

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the Communist Party of El Salvador in November 1980 and from the
Peoples’ Revolutionary Army (ERP) in January 1981” (Ann. 50 to the
Counter-Memorial [on jurisdiction and admissibility] of the United States,
p. 2), were published by the Department of State under the title, Com-
munist Interference in El Salvador : Documents Demonstrating Commu-
nist Support of the Salvadoran Insurgency, 23 February 1981. These
documents, if genuine, not only confirm Mr. Cheek’s conversations in
Managua. They also demonstrate the Salvadoran insurgents’ appreciation
of :

“a security problem beginning with a meeting . . . with one James
Cheek ... he manifested knowledge about shipments via land through
Nicaragua in small vehicles and . . . attempts by sea. They raise the
question of possible bad management of the information on the part
of personnel working on this . . . they are going to carry out an
investigation . . . and it seems very strange to us that a gringo official
would come... to practically warn about a case such as this. If it were
true that they have detected something concrete, it is logical that they
would hit us... not that they would warn us. . .” (Doc. J, p. 94.)

(It may be noted that the provision of such sensitive intelligence data to
Nicaragua provoked Congressional criticism. See the statement of Con-
gressman C. W. Bill Young reproduced in the Nicaraguan Memorial,
Ann. E, Att. 1, p. 40.)

19, The authenticity of these captured documents, and, more, the accu-
racy of a State Department White Paper construing them (see Ann. 50, loc.
cit.), generated controversy in the press soon after their publication in
1981. The United States Government refuted that criticism in detail and
maintains that the documents are authentic (Department of State, “Re-
sponse to Stories Published in the Wall Street Journal and the Washington
Post about Special Report No. 80”, 17 June 1981, and “Revolution Beyond
Our Borders”, p. 5, note 2, which maintains that : “The authenticity of
these documents . . . have since been corroborated by new intelligence
sources and defectors”). That conclusion is sustained by informed critics
and supporters alike of United States Administration policy towards
Nicaragua. Christopher Dickey, whose critical book, With the Contras : A
Reporter in the Wilds of Nicaragua, 1985, evidences an intimate knowledge
of elements of the facts at issue in the current case, concludes that “the
source documents themselves appear very much in line with what Sal-
vadoran insurgent leaders and representatives as well as Sandinistas told
me privately in Managua in October 1983 and May 1984” and treats the
documents as genuine (pp. 281-282, 73-74). Former United States Ambas-
sador to El Salvador Robert E. White, a vigorous critic of the policies of
President Reagan towards Nicaragua and El Salvador, has declared the
captured documents to be genuine (infra, para. 151). A supporter of United
States policy towards Nicaragua, who has produced a detailed, docu-
mented study of the extent of what he views as aggression by the Nica-

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raguan Government against El Salvador, Honduras and Costa Rica, treats
the captured documents as genuine and draws much illuminating detail
from them showing the pervasive involvement of the Nicaraguan Govern-
ment in the arming, supply, training and direction of the insurgency in El
Salvador (Robert F. Turner, Nicaragua v. United States : A Look at the
Facts, in press. Mr. Turner’s study is stated to be based in part upon
research done under contract to the Department of State and indicates
access to diplomatic communications). Turner’s study contains a wealth of
additional factual data in support of his conclusions, among them that the
Nicaraguan Government has played and continues to play the pivotal role
in sustaining the Salvadoran insurgency, acting as the chief conduit for
funds, ammunition, and supplies as well as a training and command
centre.

20. In the written and oral proceedings, Nicaragua did not refute or
specifically refer to these captured documents. The Judgment of the Court
appears to take no account of them. They provide graphic and substantial
support for United States allegations concerning Nicaraguan, Cuban,
Vietnamese, Ethiopian and other provision of arms and ammunition in
great quantities to the Salvadoran insurgents, “which all would pass
through Nicaragua” (doc. G, p. 8). The documents describe the role of
President Fidel Castro in unifying the Salvadoran insurgency (doc. A) ;
recount the “magnificent” support by the “socialist camp” of that insur-
gency (doc. C, p. 2); record assurances by the Sandinista leadership of
provision of headquarters in Nicaragua for the Salvadoran insurgency
“with all measures of security” (doc. D, p. 4) ; record as well the assump-
tion by Nicaragua of “the cause of E.S. [El Salvador] as its own” (doc. D,
p. 5); provide details about Vietnamese, Ethiopian and other “socialist”
assurances of shipment of many tons of arms to the Salvadoran insurgency
(docs. E, F) ; show that Nicaragua agreed to absorb arms of Communist
manufacture and to provide the Salvadoran insurgents with Western-
manufactured arms from its own stocks in their place (doc. G) ; recount
that 130 tons of arms and other material (a fraction of the total) had arrived
in Nicaragua for shipment to El Salvador (doc. D) ; indicate suspension of
Nicaraguan weapons deliveries to El Salvador in September 1980 in
response to United States protests (doc. J) ; and record provision by the
Sandinista National Liberation Front to the Salvadoran guerrillas of a
schedule for resumed shipments of arms (doc. K). As the documents
recount :

“Tt is impressive how all countries in the socialist bloc fully com-
mitted themselves to meet our every request and some have even
doubled their promised aid. This is the first revolution in Latin

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America to which they have committed themselves unconditionally
with assistance before the seizure of power.” (Doc. K, p. 4; see the
translation provided in “Revolution Beyond Our Borders”, at p. 7, as
well as other references therein to these captured documents, at pp. 5-
7.)

These documents are striking in their demonstration of the influence of the
Nicaraguan Government over the Salvadoran insurgency, not only in
matters of provision of arms but of strategy and tactics (see docs. K, R). As
will be shown below, the contents of these documents have received cor-
roboration from a number of sources.

21. The aid agreement between the United States and Nicaragua was
not signed until 17 October 1980, although much of the funds had been
disbursed by that time. The Nicaraguan Government claimed in the Cheek
conversations which took place before signature that it was not sending
arms to the insurgents in El Salvador. On 12 September 1980, in an effort to
maintain good relations with the Nicaraguan Government, to give it the
benefit of its growing doubts, and despite the disturbing intelligence
reports which were the basis of the Cheek mission, President Carter cer-
tified to Congress that there was not evidence of aid and support by the
Nicaraguan Government of terrorism and violence in other countries. This
decision is said to have been taken on the basis that the information then
available was not “conclusive” in respect of Nicaraguan Government
involvement in terrorist activities (see Presidential Determination No, 80-
26 of 12 September 1980, reproduced in the Weekly Compilation of Presi-
dential Documents, Vol. 16, No. 37, p. 1712, quoted in its letter to the Court
of 26 November 1985 and “Revolution Beyond Our Borders”, op. cit., p. 20).
But, contrary to the inference drawn by Nicaragua in the letter of 26 No-
vember 1985, to which the Court’s Judgment appears to give credence, this
does not convey the true picture of “the views of the United States Gov-
ernment at the end of 1980 concerning supposed support by Nicaragua to
EI Salvadoran opposition forces . . .” (emphasis added). “Not until late
December or early January”, Shirley Christian reports then United States
Ambassador Pezzullo informed her, “did the United States get a fuller
picture of how much Nicaragua was helping the Salvadoran guerrillas” (op.
cit., p. 194).

22. In January 1981, in the light of that fuller picture, the Carter
Administration suspended certain aid deliveries. As the New York Times
put it:

“The United States suspended payments to Nicaragua from a
$75 million economic support fund last week because of evidence that
left-wing guerrillas in El Salvador have been supplied with arms from
Nicaragua, an official source said today.” (“The U.S. Halts Nicaragua
Aid Over Help for Guerrillas”, the New York Times, 23 January 1981,
p. A3.)

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Nevertheless, the withholding of arms shipments from Nicaragua to Sal-
vadoran insurgents in September 1980 served the Sandinistas well, for it
enabled them to extract the great bulk of the economic aid which had been
authorized by the United States Congress. Their resumption of arms
shipments on a very large scale for the Salvadoran insurgents’ “final
offensive” lost them a remaining tranche but, more important, prejudiced
the possibilities of future direct United States aid (which had already been
programmed) as well as United States support in multilateral institutions.
It was later to prove far more broadly prejudicial still.

E. The Reagan Administration Terminated Aid to the Nicaraguan

Government while Waiving the Latter’s Obligation to Return Aid already

Extended in the Hope that its Support for Foreign Insurgencies Would

Cease ; Subsequently, it Twice Officially Offered to Resume Aid if Nicaragua

Would Stop Supporting Insurgency in El Salvador, Offers Which Were not
Accepted

23. In view of the evidence of Nicaraguan support for the Salvadoran
insurgency, President Reagan made a determination on 1 April 1981
terminating assistance to Nicaragua. The statement then issued by the
Department of State nevertheless declared :

“This Administration has made strong representations to the Nica-
raguans to cease military support to the Salvadoran guerrillas. Their
response has been positive. We have no hard evidence of arms move-
ments through Nicaragua during the past few weeks, and propaganda
and some other support activities have been curtailed. We remain
concerned however that some arms traffic may be continuing and that
other support very probably continues.

Important U.S. security interests are at stake in the region. We want
to encourage a continuation of recent favorable trends with regard to
Nicaraguan support for the Salvadoran guerrillas. We also want to
continue to assist moderate forces in Nicaragua which are resisting
Marxist domination, working toward a democratic alternative and
keeping alive the private sector.

Recognizing the Nicaraguan response to date and taking into
account our national security interests in the region the President has
decided to use his special authority under section 614 (a) (1) of the
FAA to maintain outstanding fully disbursed ESF loans to the Gov-
ernment of Nicaragua — that is, not to call for their immediate
repayment.

Weare considering a resumption of P.L.-480 and later development
assistance if the favorable trends there continue. We do not rule out
the eventual resumption of ESF assistance at a later time should the

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situation in Nicaragua improve.” (Documents on American Foreign
Policy, 1981, doc. 687, p. 1298.)

That is to say, in view of the fact that the Nicaraguan Government had
made a “positive response” to United States representations, apparently
by again suspending arms shipments to the Salvadoran guerrillas, Presi-
dent Reagan waived the provision of United States law that required
immediate repayment of economic support loans made to Nicaragua
because of the violation of the conditions of their extension, and he held
out the possibility of resumed economic assistance to Nicaragua should
recent favourable trends continue. This hardly appears to have been the
policy determination of a President who, from the outset, as Nicaragua
claims, had designed the pretext of Nicaraguan support of Salvadoran
guerrillas in order to justify overthrow of the Nicaraguan Government.

24. Thus, at that time, and subsequently, the United States informed
Nicaragua that it would be prepared to resume aid if the Nicaraguan
Government stopped its efforts to subvert other States in the region and
limited its already exceptional military build-up. On 12 August 1981, then
Assistant Secretary of State Thomas O. Enders informed the most senior
leaders of the Nicaraguan Government in Managua that the United States
would be prepared to resume aid to it if it would cease support of insur-
gency in neighbouring States. The offer was not accepted.

F. The Reagan Administration Made Clear to the Nicaraguan Government

in 1981 that it Regarded the Sandinista Revolution “as Irreversible” ;

its Sole Condition for Co-existence Was Stopping the Flow of Arms to
El Salvador

25. The Nicaraguan Government has provided on its own initiative a
record of one of several conversations with Mr. Enders in Managua in
August 1981, and its own interpretation of that important exchange
(letter of 26 November 1985). It may be useful initially to quote the impres-
sions of that exchange received by the then Ambassador of Nicaragua in
Washington :

“During my first days in my new post, I received the impression
that the United States would not tolerate a leftist military victory in El
Salvador. In addition, some remarks by the U.S. Ambassador to
Nicaragua, Lawrence Pezzullo, hammered persistently on my mind.
Ambassador Pezzullo, I venture to say, had developed sincere feelings
of sympathy for my country. It was one day in the spring of 1981 —
some time after the failure of the Salvadoran guerrillas’ January ‘final
offensive’ — when he pleaded, amicably and candidly, that the
government in Managua refrain from aiding insurrection in the
neighboring nations. The Ambassador stressed that this was impor-
tant for Nicaragua’s own wellbeing.

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MILITARY AND PARAMILITARY ACTIVITIES (DIss. OP. SCHWEBEL)

In August of 1981, the Assistant Secretary of State for Inter-
American Affairs, Thomas Enders, met with my superiors in Mana-
gua, at the highest level. His message was clear: in exchange for
non-exportation of insurrection and a reduction in Nicaragua’s
armed forces, the United States pledged to support Nicaragua
through mutual regional security arrangements as well as continuing
economic aid. His government did not intend to interfere in our
internal affairs. However, ‘you should realize that if you behave in a
totalitarian fashion, your neighbors might see you as potential aggres-
sors’. My perception was that, despite its peremptory nature, the U.S.
position vis-à-vis Nicaragua was defined by Mr. Enders with frank-
ness, but also with respect for Nicaragua’s right to choose its own
destiny. He indicated that there was a fork in the road : one way
leading to friendship between the United States and Nicaragua ; the
other to separation between the two countries. Maybe, he said, Nica-
ragua had already advanced along this second route. However, it was
not too late to discuss an understanding.” (Arturo J. Cruz, “Nicara-
gua’s Imperiled Revolution”, Foreign Affairs, Summer 1983,
pp. 1041-1042.)

26. Another, less diplomatic perspective on the Enders’ conversation is
given by Edén Pastora :

“When Daniel Ortega told Fidel Castro of the FSLN talks with
Thomas Enders, .. . he said that Enders had confided privately that as
a US. representative, he had come to Managua not to defend the
rights of the democratic opposition, but rather to insist that the FSLN
meddling in El Salvador must stop . . . Enders had come to Nicaragua
as President Reagan’s representative to say that Nicaragua had been
given up as lost — that it was the problem of the Democratic Party in
the U.S., and that the Republicans’ problem was not Nicaragua, but
El Salvador, which they had no intention of losing. Furthermore,
Enders had told Daniel that the Nicaraguans could do whatever they
wished — that they could impose communism, they could take over La
Prensa, they could expropriate private property, they could suit
themselves — but they must not continue meddling in El Salvador,
dragging Nicaragua into an East-West confrontation, and if they
continued along these lines, Enders said, they would be smashed.”
(Edén Pastora Goméz, “Nicaragua 1983-1985 : Two Years Struggle
Against Soviet Intervention”, Journal of Contemporary Studies,
Spring/Summer 1985, pp. 10-11.)

So much again for the central Nicaraguan contention in this case that the
object of the United States from the outset of the Reagan Administration
has been the overthrow of the Government of Nicaragua ! Whether or not

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Edén Pastora’s recollection of what Daniel Ortega told Fidel Castro about
what Mr. Enders said privately to Commander Ortega is accurate, the
record of the Ortega/ Enders conversation supplied by Nicaragua confirms
the essential point. The second sentence of Mr. Enders’ exchange with
Commander Ortega quotes Mr. Enders as flatly declaring that the United
States sees the Sandinista revolution “as irreversible” (see below paras.
156-168, especially para. 157).

G. Before this Court, Representatives of the Government of Nicaragua Have

Maintained that the Nicaraguan Government Has “Never” Supplied Arms or

Other Material Assistance to Insurgents in El Salvador, Has “Never”

Maintained Salvadoran Command and Control Facilities on Nicaraguan

Territory and “Never” Permitted its Territory to Be Used for Training of
Salvadoran Insurgents

27. As observed in the body of this opinion, the Nicaraguan Govern-
ment has repeatedly, comprehensively and categorically denied that it, asa
Government, has sent arms and other material support to the insurgency in
El Salvador, or supported insurgency in other countries of Central
America. The denials contained in testimony given to the Court, and in
official communications of the Nicaraguan Government to the Court, are
of the greatest importance to these proceedings. These leading examples
of Nicaragua’s multiple, unqualified denials will suffice :

(a) The affidavit of Miguel D’Escoto Brockmann, Foreign Minister of
Nicaragua, of 21 April 1984, annexed to the Nicaraguan Application
and subsequently repeatedly reaffirmed in Court by the Nicaraguan
Government, attests :

“[ am aware of the allegations made by the government of the
United States that my government is sending arms, ammunition,
communications equipment and medical supplies to rebels conduct-
ing a civil war against the government of El Salvador. Such allegations
are false, and constitute nothing more than a pretext for the U.S. to
continue its unlawful military and paramilitary activities against
Nicaragua intended to overthrow my government. In truth, my gov-
ernment 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.” (Nicaraguan Application, Ann. B.)

(b) In sworn testimony before the Court, Commander Carrion declared :
“My Government has never had a policy of sending arms to opposition
forces in Central America.” (Hearing of 13 September 1985.)

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(c) In answer to questions, the Agent of Nicaragua affirmed in a letter to
the Registrar of 26 November 1985 :

“As the Government of Nicaragua has consistently stated, it has
never supplied arms or other material assistance to insurgents in El
Salvador or sanctioned the use of its territory for such purpose, it has
never permitted Salvadoran insurgents to establish a headquarters or
operations base or command and control facility in Nicaraguan ter-
ritory and has never permitted its territory to be used for training of
Salvadoran insurgents.”

H. The Nicaraguan Government, Despite its Denials, in Fact Has Acted as
the Principal Conduit for the Provision of Arms and Munitions to the
Salvadoran Insurgents from 1979 to the Present Day ; Command and Control
of the Salvadoran Insurgency Has Been Exercised from Nicaraguan
Territory with the Co-operation of the Cuban and Nicaraguan Governments ;
Training of Salvadoran Insurgents Has Been Carried out in Cuba and
Nicaragua ; the Salvadoran Insurgents’ Radio Station at One Time Operated
from Nicaraguan Territory; and Nicaraguan Political and Diplomatic
Support of the Salvadoran Insurgency Has Been Ardent, Open and
Sustained

28. Evidence tending to show, and in some cases showing, material
support by the Nicaraguan Government of the insurgency in El Salvador is
substantial. No one bit of it, of itself, is conclusive. In view of the situation
obtaining in Nicaragua, that is not surprising. Nicaragua is not democra-
tically governed ; the opposition is not in control of the Congress ; there is
no Select Committee on Intelligence, no Boland Amendment restricting
the objects of Nicaraguan activity in El Salvador, no Freedom of Infor-
mation Act which obliges the Nicaraguan Government to release reports
of its activities, no uncensored press which prints reports revealing infor-
mation which the Government wishes to conceal. The Nicaraguan Gov-
ernment does not need to adopt legislation authorizing covert activities in
El Salvador and other Central American States ; and far from issuing a
public Executive Order prohibiting political assassination, there are
charges that it has issued a secret Order authorizing political assassination,
which is alleged to have been implemented hundreds of times. (See, /nside
the Sandinista Régime : A Special Investigator’s Perspective, published by
the Department of State, 1985. It contains detailed allegations by Alvaro
José Baldizon Aviles, until recently Lieutenant, Nicaraguan Ministry of
the Interior, attached to the Ministry’s Special Investigations Commission,
who defected from Nicaragua carrying allegedly official documents which
support his allegations, the most vital of which is reproduced in the fore-
going publication. An article about Mr. Baldizon Aviles’ charges was
published in the Washington Post, 19 September 1985, p. A26. See also
Robert S. Leiken’s article, /oc. cit., p. 52, which reports his interview with

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Baldizon and the comments on Baldizon’s charges by the director of
Americas Watch. The assassination on 17 November 1980 by Sandinista
agents of Jorge Salazar, Acting President of the Nicaraguan Superior
Council of Private Enterprise (COSEP), has been charged by COSEP. See
The Nicaraguan Revolutionary Process, a study made by COSEP in 1983,
revised, translated and updated by the Nicaraguan Information Centre in
January, 1985, pp. 3-4. That charge is accepted as accurate by informed
students of the Nicaraguan revolution. See Christian, op. cit., pp. 181-184,
and Dickey, op. cit., pp. 80-82.) In the nature of the governmental system in
power in Nicaragua, and in view of the many advisers occupying positions
in Nicaraguan Government ministries who come from foreign totalitarian
régimes, it may be expected that evidence of acts which its Government has
reason to conceal will not easily come to light. Nevertheless, despite these
considerations, evidence of what the Nicaraguan Government denies is
considerable — and sufficient.

1. Admissions by authorities of the Nicaraguan Government

29. The Court rightly gives particular weight to admissions of fact by a
party to a case which are contrary to its interests. It is the more striking
that, in this case, a Party which has denied a critical fact so categorically
and comprehensively as Nicaragua has nevertheless made a number of
significant admissions. While those admissions do not take the form of acts
of Congress, signed by the President and printed in Nicaragua’s equivalent
of the Congressional Record, they are, in the governing circumstances, more
than suggestive.

30. The President of Nicaragua, Commander Daniel Ortega Saavedra,
granted an interview in January 1985 to a distinguished Peruvian novelist,
Mario Vargas Llosa, who subsequently published an account of his
month’s stay and many interviews in and conclusions about Nicaragua,
“In Nicaragua”, the New York Times Magazine, 28 April 1985. In the
interview, President Ortega is quoted as assuring Mr. Vargas that “our
internal tensions will be resolved. That’s not the hard part.” President
Ortega continued :

“The hard part is negotiation with the United States. There’s the
root of all our problems. President Reagan has not renounced the idea
of destroying us. He seems to negotiate, but then he pulls back... He
wants us to surrender.

We’ve said that we’re willing to send home the Cubans, the Rus-
sians, 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 only 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

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resources into war when we desperately need them for development.”
(At p. 17; emphasis supplied.)

Now President Ortega was not writing a State paper, he was talking — just
as President Reagan, at his famous press conference, did not write a State
paper about the modalities of Nicaragua’s adjustment of its policies but
spoke of Nicaragua’s saying “uncle”. That was a revealing remark ; no less
is President Ortega’s. And what does President Ortega say ? He is quoted —
not reported, but quoted — by a writer of high reputation in a newspaper of
unexcelled reputation as stating the following :

“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 only one
thing : ... that the United States stop arming and financing .. . the
gangs that kill our people . . ”

Now President Ortega would not speak of stopping the movement of
military aid through Nicaragua to El Salvador if such movement were not
in progress. One cannot stop what has not started. One cannot stop what
does not continue. The United States indubitably is arming the contras ;
that must stop ; “in return”, President Ortega says, Nicaragua is willing
“to stop” the movement of its military aid through’ Nicaragua to El Sal-
vador. How truly all that rings !

31. Of course, if one is intent on minimizing any admissions of Nica-
ragua, while maximizing admissions of the United States, one may find
reason to minimize this admission. President Ortega and Mr. Vargas spoke
in Spanish ; the whole of Vargas’ article is translated from Spanish. One
may suggest that there was an error in translation. Such a speculation,
however, is laid to rest by President Ortega’s words in the original Spanish,
which were :

“Lo dificil es la negociaciôn con Estados Unidos. De alli viene
todo el problema. El presidente Reagan no renuncia a acabar con
nosotros y, por eso, aparenta negociar, pero luego da marcha atras,
como en Manzanillo. No quiere negociaciôn. Quiere que nos rinda-
mos. Hemos dicho que estamos dispuestos a sacar a los cubanos,
soviéticos y demas asesores ; a suspender todo tränsito por nuestro
territorio de ayuda militar u otra a los salvadoreños, bajo verificacion
internacional. Hemos dicho que lo ünico que pedimos es que no nos
agredan y que Estados Unidos no arme y financie, jactandose de ello
ante el mundo, a las bandas que entran a matarnos, a quemar las
cosechas, y que nos obligan a distraer enormes recursos humanos y

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econômicos que nos hacen una falta angustiosa para el desarrollo.”
(This Spanish text of the quotation of President Ortega’s original
words is found in a Spanish version of the Vargas Llosa article in
Madrid’s ABC, 12 May 1985, under the title “El Sandinista, Tran-
quilo” ; emphasis supplied.)

Or one may suggest that, since the quotation is printed in a newspaper, one
must assume that it may be in error. Or one may suggest that, since the
writer is a novelist, he made it up. Or one may suggest that, if President .
Ortega said it, he did not mean it.

32. But, if one is interested in an objective assessment of what the Chief
of a State is authoritatively quoted as having said, then it will not be
possible to pass off this admission of President Ortega. Moreover, if this
quotation as translated into English is in any measure inaccurate, there is
every reason to conclude that the Nicaraguan Government would have
required the publication of a correction, which, by standing policy of the
New York Times, would promptly have been published. No such correction
has been requested or published (letter of 31 December 1985 of Martin
Arnold, Deputy Editor, the New York Times Magazine, to me). As the
representative of El Salvador, who read out the quoted remarks of Presi-
dent Ortega, declared to the General Assembly of the United Nations,
“This is an eloquent confession” (A/40/PV.90, p. 83). President Ortega’s
words in their original Spanish are even more inculpatory, admitting as
they do that Nicaragua could “suspend” the provision of arms to the
Salvadoran insurgents. The quotations of Nicaraguan spokesmen which
follow may reasonably be appraised in the light of President Ortega’s
admission, in 1985, that military aid is moving through Nicaragua to El
Salvador — a process which, he admits, Nicaragua has not stopped but
could.

33. Those quotations will be presented in chronological order. But first,
it is of interest to note that, as recently as April 1986, President Ortega
made a second public statement which reinforces the thrust of that just
quoted. In an article by Clifford Krauss in the Wall Street Journal of 18
April 1986, at page 2, there is a report of an interview which President
Ortega granted in Managua on 16 April 1986 in which he declared that
Nicaragua is ready to negotiate and sign with the United States a mutual
security treaty that would convert Central America into “a neutral zone”
free of East-West competition. The article continues :

“In proposing a bilateral treaty with the U.S., Mr. Ortega said
Nicaragua is ready to agree to a withdrawal of all foreign military
advisors and a halt to aid for ‘irregular forces’ in the region. In
exchange, he said, the U.S. would have to end its military pressure on
Nicaragua and cease military maneuvers in the region. He called the

CET

proposed treaty ‘a reciprocal arrangement’.

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It will be observed that President Ortega affirms that Nicaragua is ready to
agree to a halt in aid for irregular forces in the region, and that this
agreement on Nicaragua’s part would be in exchange for the ending of
United States military pressure upon Nicaragua. This would be what
President Ortega called a “reciprocal arrangement”. The ineluctable impu-
tation is that Nicaragua is prepared to stop its continuing aid to irregular
forces if the United States is prepared to stop its exertion of military
pressure upon Nicaragua. If the Court is correct in concluding that there
cannot be imputed to Nicaragua the sending of military aid to Salvadoran
irregulars at any time, and certainly not after early 1981, how is it that
President Ortega in 1985 and 1986 has publicly made statements so at odds
with the Court’s conclusion ? Who may be presumed to be better informed
on this question, President Ortega or the Court ?

34. In 1969, the FSLN published the first detailed statement of its goals.
The Sandinistas declared that they stood for 15 policies, including : “14.
Struggle for a ‘true union of the Central American peoples within one
country,’ beginning with support for national liberation movements in
neighboring states.” (Quoted in Nolan, /oc. cit., p. 37.)

35. In September 1979, shortly after the Sandinistas took power, the
National Directorate of the FSLN called an assembly to enable “inter-
mediate leadership cadres” to directly exchange views with the leadership.
As a result of those exchanges, general guidelines were drawn up and a
report of the three-day meeting — the so-called “72-hour Document” —
was circulated among Sandinista membership. The report is of interest.
For example, as early as September 1979, when the United States was
sending Nicaragua more aid than any other Western State, the report states
that

“the real enemy that we would have to confront was the imperialist
power of the United States, the treachery and demagoguery of the
reactionary local bourgeoisie being less important”.

As early as September 1979, when more elements of pluralism remained
than are vital today, the “72-hour Document” asserted : “We can assert
without fear of error that Sandinism represents the sole domestic force.”
Of particular interest to the large build-up of Nicaraguan armed forces
then beginning is the report’s conclusion that “the defeated National
Guard cannot possibly organize an attack on us for the time being” and
that none of Nicaragua’s neighbours would dare to back the National
Guard ; the report indicated that there was no need for large armed forces
to deal with the non-existent prospect of armed counter-revolution. As to
foreign policy, the 72-hour Document declares :

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“The foreign policy of the Sandinist People’s Revolution is based
on... the principle of revolutionary internationalism. The goal of the
FSLN’s foreign policy is to consolidate the Nicaraguan revolution,
because this will help strengthen the Central American, Latin
American and worldwide revolution . . . our general approach to
foreign policy [is to]... help further the struggles of Latin American
nations against fascist dictatorships and for democracy and national
liberation . . . we should underscore the need to counteract the
aggressive policy of the military dictatorships in Guatemala and El
Salvador by taking proper advantage of the internal frictions there,
while stressing our differences with Honduras and the friendly con-
duct of Costa Rica and Panama.” (“Analysis of the Situation and
Tasks of the Sandinista People’s Revolution”, 5 October 1979.
English translation contained in unclassified Department of State
airgram A-103 from Managua of 26 December 1979.)

36. In January 1980, Minister of the Interior Tomas Borge, at a cere-
mony in Havana marking the 21st anniversary of the Cuban revolution,
declared :

“Nicaragua must express its solidarity with the other Latin Ameri-
can peoples struggling against or defeating imperialism or trying to
shake off the yoke of foreign masters ... That is what we must learn
from our Cuban brothers, who, despite their limitations and their
poverty, have been generous with our people. Tomorrow, if necessary,
we may have to take the food out of our mouths to express solidarity
with other Latin American brothers with the same affection, firmness,
and solidarity that the Cubans have shown.” (Panamanian News
Agency ACAN, 4 January 1980.)

37. In June 1980, Commander Borge, addressing a North Korean
audience, declared that “the Nicaraguan revolutionaries will not be
content until the imperialists have been overthrown in all parts of the
world ...” (FBIS, North Korea, 12 June 1980, p. D16).

38. On 10 January 1981, with the launching of the “final offensive” by
Salvadoran guerrillas to overthrow the Government of El Salvador, the
guerrillas, broadcasting from a clandestine radio station located in Nica-
ragua, proclaimed that “the decisive hour has come . . . for the seizure of
power” (FMLN-FDR, El Salvador on the Threshhold of a Democratic
Revolutionary Victory, pp. 82-83). Radio Managua took up the call,
broadcasting :

“A few hours after the FMLN General Command ordered a final
offensive to defeat the régime established by the military-Christian
Democratic junta, the first victories in the combat waged by our forces
began being reported.” (“Revolution Beyond Our Borders”, p. 9.)

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39. A few days before, Nicaraguan Foreign Minister D’Escoto had had
the following broadcast exchange :

“/Question] Mr. Foreign Minister, could you tell us something
about the rumors that Nicaraguan combatants are participating in the
Salvadoran people’s liberation struggle ?

[Answer] I am not in a position to deny that there are Nicaraguans
there. I would even find it very strange if there were no Nicaraguans —
Nicaraguans who have lived in El Salvador for a long time, plus others
who may have gone to El Salvador more recently.

A short time ago, however, we heard a report that referred to
Nicaraguan mercenaries. If there are any Nicaraguan mercenaries,
they would have to be national guardsmen hired by the Salvadoran
Army. The term mercenary is not applicable when referring to a
liberation group. In any event, the only thing that has been confirmed
is the presence of U.S. mercenaries, who are fighting against the
Salvadoran people.” (FBIS, Panama City Televisora Nacional,
7 January 1981.)

A few days later, the Nicaraguan Foreign Minister amplified his views. An
AFP dispatch broadcast on 14 January 1981 (FBIS, Central America,
15 January 1981, p. 17) reported :

“Nicaraguan Foreign Minister Miguel d’Escoto described here this
afternoon a report that two barges full of guerrillas from Nicaragua
had landed in El Salvador as a ‘complete invention’.

D’Escoto added that his government cannot prevent Nicaraguans
from ‘voluntarily joining the defense of the Salvadoran people’.

‘I said in Ecuador that it is not unusual for Nicaraguan guerrillas to
be in El Salvador participating in the struggle the Salvadoran people
are waging for their liberation’, d’Escoto stressed.

D’Escoto said that ‘a difference must be made between a mer-
cenary, who struggles in another country for a salary or for pay,
and a guerrilla, who struggles out of solidarity with a people pursuing

CEE

their liberation or ideals’.

40. Also in January 1981, another comandante, according to Managua
Radio Sandino (FBIS, Central America, 29 January 1981, p. 11) spoke as
follows on the theme “El Salvador Will Overcome” :

“Commander of the Revolution Carlos Nunez, member of the

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MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

National Directorate of the Sandinist National Liberation Front, has
unmasked the international reactionary press in its campaign of
falsehoods and silence regarding our revolution. He spoke at the
opening of the First International Meeting of Solidarity with Nica-
ragua, called ‘El Salvador Will Overcome’.

One of the main points of his speech was that it is an internation-
alist duty to disseminate the news of our situation. He also said the
common struggle of all the peoples for their liberation, independence
and sovereignty against the common enemy is the groundwork for
mutual solidarity and internationalism of the nations.

Regarding the Nicaraguan people’s contribution to the general
struggle of the brother countries, Nunez stressed that this is the cause
of the anxiety and desperation of Yankee imperialism.”

41. In an interview with the Caracas magazine Bohemia of 20-26 April
1981, the following exchange with Commander Borge appears :

“(Question :} The U.S. Government insists that Nicaragua has
become a bridgehead for the shipment of weapons to El Salvador by
the Cubans and Soviets.

[Answer :] They say that we are sending weapons to El Salvador but
they have not offered any real proof. But let us suppose that weapons
have reached El Salvador from here. This is possible. More than that,
it is possible that Nicaraguan combatants have gone to El Salvador,
but this cannot be blamed on any decision of ours. Our solidarity with
that country and that people are part of the consolidation of our
revolutionary process.”

42. On 19 July 1981, Commander Borge spoke at ceremonies marking
the second anniversary of the victory of the Nicaraguan revolution (FBIS.
Central America, 21 July 1981, pp. 9-10), declaring :

408

“This revolution goes beyond our borders. Our revolution was
always internationalist from the moment Sandino fought in La Sego-
via. With Sandino were internationalists from all over the world...
With Sandino was that great leader of the Salvadoran people, Fara-
bundo Marti... All the revolutionaries and particularly all the people
of Latin America know that our people’s hearts are with them and
beat with them, Latin America is within the heart of the Nicaraguan
revolution and the Nicaraguan revolution 1s also within the heart of
Latin America. This does not mean that we export our revolution. It ts
sufficient — and we cannot avoid this — that they take our example...
The revolutionary process will advance ... when we speak of mixed
419  MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

economy, pluralism and national unity, it is within the context of the
revolution and not against the revolution . . .”

43. In February 1982, at the Fifth Permanent Conference of Latin
American Political Parties (Managua Domestic Service, 21 February
1982), Commander Borge asked :

“How can a patriot be indifferent to the fate of his Latin American
brothers ? . .. How can we keep our arms folded in the face of the
crimes that are being committed in El Salvador and Guatemala ? How
can one be decent, simply decent, in this continent without showing
solidarity for the efforts of these heroic people ?... From the wounds
of only one of the Latin American peoples flows the blood of all Latin
America. This explains once again why we Sandinistas show solidarity
with all peoples who are fighting for their liberation. If we are accused
of expressing solidarity, if we are forced to sit in the dock because of
this, we say : We have shown our solidarity with all Latin American
peoples in the past, we are doing so at present and will continue to do
so in the future.”

44. The extremity of the political and diplomatic — as well as logistic —
support by the Nicaraguan Government of the insurgents in El Salvador
was illustrated in 1981 by two exceptional events in the General Assembly
of the United Nations. In addressing the General Assembly on 8 October
1981, Commander Ortega declared that he was the bearer of a specific
proposal for the solution of the crisis in El Salvador :

“conveyed to us by Salvadorian patriots. But first we should like to
say that there is among us, accompanying the delegation of Nicara-
gua, the President of the Democratic Revolutionary Front of El
Salvador and member of the Joint Political Commission for the
Farabundo Marti Front for National Liberation ... Comrade Guil-
lermo Ungo.” (A/36/PV.29, p. 27.)

Commander Ortega then read out the authorization of the Salvadoran
insurgents, addressed to him, to convey their proposals to the General
Assembly, and proceeded to read out their detailed proposals — this in the
presence of one of the leaders of that insurgency, who was at the General
Assembly accompanying the Nicaraguan delegation. Commander Ortega,
in a wide-ranging and thoroughgoing assault on the United States for its
“Acts of aggression, interference, pressure and blackmail” which “never
cease” (ibid., pp. 24-25), also affirmed, apparently in his role as spokesman
both for the revolutionaries of Nicaragua and of El Salvador :

“Our peoples are ready to respond as Sandino did to any attempt at
direct or indirect aggression, either in Nicaragua or in El Salvador. We

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420 MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

all know that the threat of invasion is directed first and foremost
against those two peoples.” (A/36/PV.29, p. 26.)

45. In response, President Duarte observed that the Nicaraguan repre-
sentative in the General Assembly :

“appeared to be more the spokesman of an armed group — whose
main activity in El Salvador has been to wage a campaign of terrorism,
sabotage, destruction and death, whose victim is not some enemy they
try in vain to create, but rather the whole Salvadorean people — than
the representative of his country’s Government.” (A/36/PV.33,
p. 112.)

President Duarte continued :

“It is a surprise to no one that the Sandinist Government was the
only one inclined to fulfil so dishonourable a mission, for from the
beginning it has been the chosen instrument, with its territory serving
as the base for arms supply, refuge and support for the armed groups
and as a sounding board for their campaigns of false propaganda.
Thus, in the tragic Salvadorean conflict, the Nicaraguan Government
can hardly be considered as a spokesman communicating a peace
proposal in good faith.” (/bid., p. 113.)

The representative of El Salvador who quoted to the General Assembly the
foregoing statement of President Duarte also observed that. for Nicaragua
“to point out publicly from this rostrum that a person who is active in the
opposition of another country is physically seated in the seats assigned to
the delegation of Nicaragua to the United Nations” invites the General
Assembly to become a “forum for chaos or a political circus” (ibid.
p. 116).

46. In 1982, Commander Borge said in a message to the Continental
Conference for Peace, Human Rights and Self-Determination of El Sal-
vador :

“The struggle of the Salvadoran people is the struggle of all honest
men and women of the continent... This ts a struggle of all those who
feel duty bound to support a brave David facing a criminal and
arrogant Goliath, it is the continuation of the struggle of Sandino,
Farabundo Marti. Che Guevara, and Salvador Allende.” (Radio San-
dino, 2} January 1982.)

47. When asked in 1983 how he would respond to Ambassador Jeane
Kirkpatrick’s statement that, since the revolution triumphed in Nicaragua.
domino-like “it will be exported to El Salvador, then Guatemala, then
Honduras, then Mexico”, Commander Borge is quoted as replying : “That
is one historical prophecy of Ronald Reagan’s that is absolutely true !”
(Claudia Dreifus, “Playboy Interview : The Sandinistas”, Playboy, Sep-
tember 1983, p. 192.)

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421 MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

48. In 1983, Commander Humberto Ortega Saavedra, Nicaraguan
Minister of Defence, was quoted as stating : “Of course we are not
ashamed of helping El Salvador. We would like to help all revolutionaries.”
(Michael Kramer, “The Not-Quite War”, New York Times, 12 September
1983, p. 39.)

49. In 1983, Commander Bayardo Arce was quoted as stating : “We will
never give up supporting our brothers in El Salvador.” (/bid.) He had as
early as 1980 promised “unconditional assistance to the revolutionary
process in Guatemala and El Salvador” (as quoted in “Revolution Beyond
Our Borders”, op. cit., p. 5).

50. In 1983, Commander Arce also declared that : “internationalism
will not bend . . . while Salvadorans are fighting to win their liberty,
Nicaragua will maintain its solidarity.” (Christopher Dickey, “Leftist
Guerrillas in El Salvador Defend Cuban Ties”, the Washington Post,
11 March 1983.)

51. According to the Declaration of Intervention of El Salvador, in July
1983, the Nicaraguan Foreign Minister admitted Nicaraguan support of
insurgency in El Salvador :

“Nicaraguan officials have publicly admitted their direct involve-
ment in waging war on us. Foreign Minister Miguel d’Escoto, when
pressed at a meeting of the Foreign Ministers of the Contadora
Group in July 1983, by our Foreign Minister, Dr. Fidel Chavez Mena,
on the issue of Nicaraguan material support for the subversion in El
Salvador, shamelessly and openly admitted such support in front of
his colleagues of the Contadora Group. That statement, made in those
particular circumstances, is significant, inasmuch as the intervention-
ist attitude of the Nicaraguan Government, in its eagerness to export
subversion, not only manifests itself in relation to El Salvador, but
also has had to do with countries such as Colombia, Costa Rica,
Honduras and other Latin American countries, with some of which it
has had serious problems. This is because Nicaragua, as Nicaragua
itself recognized officially, has been converted into the centre of
exportation of revolution to all of the countries in the area.” (At
para. IX.)

52. The Declaration of Intervention of El Salvador further affirms that
Nicaraguan Chief of State Ortega, during a recent interview by German
television, publicly stated that he “could meet with President Duarte, but
that would not impede the fact of continuing support to the Salvadorian
guerrillas”. The Declaration of Intervention construes the foregoing state-
ment by then Co-ordinator Ortega as “a self-confession of intervention”
which states “the official position in that regard of the Government of
Nicaragua .. .” (at para. XHI).

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53. In May 1984, Commander Arce made a speech before the Political
Committee of the Nicaraguan Socialist Party, the text of which was printed
in La Vanguardia, Barcelona, 31 July 1984. The speech is of particular
interest in its contemptuous treatment of the Nicaraguan elections (“a
bourgeois . .. nuisance”) and its admission that the Sandinistas never had
any intention of fulfilling their pledges to the OAS and others of political
pluralism, international non-alignment and a mixed economy. Com-
mander Arce describes as “commitments” the programme of the Nica-
raguan Government to implement these three principles. He speaks of
Nicaragua’s “dictatorship of the proletariat”. Of immediate interest to
the question of whether or not Nicaragua is pursuing a policy of interven-
tionism, Commander Arce had this to say :

“Imperialism asks three things of us : to abandon interventionism,
to abandon our strategic ties with the Soviet Union and the socialist
community, and to be democratic. We cannot cease being interna-
tionalists unless we cease being revolutionaries.

We cannot discontinue strategic relationships unless we cease being
revolutionaries. It is impossible even to consider this.

Yet the superstructure aspects, democracy as they call it, bourgeois
democracy, has an element which we can manage and even derive
advantages from for the construction of socialism in Nicaragua. What
are those advantages, what was it we explained to the party leader-
ship ? The main thing about the elections, as far as we are concerned,
is the drafting of the new constitution. That is the important thing.
The new constitution will allow us to shape the juridical and political
principles for the construction of socialism in Nicaragua.

We are using an instrument claimed by the bourgeoisie, which
disarms the international bourgeoisie, in order to move ahead in
matters that for us are strategic. On the one hand, it allows us to
neutralize the ageressiveness of imperialism, while on the other it is
going to provide us with a tool for moving ahead on substantive
aspects of our revolution

Let them vote for everything that has been done in the revolution,
for literacy, adult education, confiscations, nationalization of the
banks and foreign trade, free education, the Soviet and Cuban mili-
tary advisers, the internationalism of the revolution. Let them vote for

all that. That is the reality of our revolution and everything we have
done has that dynamic behind it.”

Thus Commander Arce affirms that Nicaragua “cannot . . . abandon
interventionism . . .”. He does not, in this speech, specify the content of

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423 MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

Nicaraguan interventionism. But he himself elsewhere said that, “while
Salvadorans are fighting . . . Nicaragua will maintain its solidarity . . .”.
And the content of Nicaraguan interventionism is elsewhere made clear
not only by Nicaraguan official statements but a good deal more evidence.
(The Arce speech was extensively reported in the international press. An
English translation of the full text of Arce’s speech was published in
Department of State Publication 9422, March 1985, which lists its press
coverage. The speech is alleged to have been tape-recorded without Com-
mander Arce’s knowledge and then published in La Vanguardia ; accord-
ing to The Economist of 23 August 1984, and the Washington Post,
12 August 1984, p. A-1, President Ortega acknowledged the authenticity of
the speech.)

54. Edén Pastora, now an opponent of the Nicaraguan Government,
was, for a time, the most famous of Nicaraguan comandantes though never
one of the nine, and he served as a Vice-Minister at the outset of post-
Somoza rule. Counsel for Nicaragua emphasized his independence from
CIA influence. His contribution to an American scholarly journal is of
special significance :

“When the Managua government, personified by the nine top
Communists, was planning the insurrection in El Salvador, I was a
participant in the meetings of the National Leadership ; 1 was in effect
the tenth member of the National Leadership without having formally
been so designated. With care and much diplomacy, I told the rest of
the leaders that 1 did not agree with the idea of launching the Sal-
vadorans into an insurrection . . .” (Edén Pastora Gomez, loc. cit.

pp. 9, 10.)

55. The Memorial of Nicaragua on the merits, Annex I, contains, as
Attachment 3, the Report of Donald Fox, Esq., and Professor Michael
J. Glennon, to the International Human Rights Law Group and the
Washington Office on Latin America concerning Abuses Against Civilians
by Counter Revolutionaries Operating in Nicaragua of April 1985.
Appended to that report are a number of statements given to Messrs. Fox
and Glennon and apparently reproduced verbatim by them. One of those
statements is by Luis Carrion, Deputy Minister of the Interior, apparently
given in early 1985 (it does not carry a date). In his statement, submitted in
evidence in this proceeding by the Government of Nicaragua, Commander
Carriôn is quoted as saying the following :

“We are giving no support to the rebels in El Salvador. I don’t know
when we last did. We haven’t sent any material aid to them in a good
long time. That’s why Reagan had said the reason for supporting the
Contras is not to stop the flow of arms — it is to overthrow the
government of Nicaragua !” (At p. 34.)

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424 MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

The contradictions between the statement just quoted of Commander
Carrion, introduced into evidence by Nicaragua, and his verbal testimony
in Court, introduced into evidence by Nicaragua, are obvious. In Court,
Commander Carrion swore that his Government “never” had a policy of
sending arms to Salvadoran insurgents. But in his statement to Messrs. Fox
and Glennon, the Commander maintains that “we” — which in context can
only mean the Government of Nicaragua — “are giving no support” to the
rebels in El Salvador, not that “we” never did; a conclusion which is
reinforced by his next sentence : “We haven't sent any material aid to them
in a good long time” (emphasis supplied). Now “any material aid” must
embrace arms, which surely is one form of material aid. That is made the
clearer in the reference to “the flow of arms” in the last sentence quoted of
the Commander’s statement. When Commander Carrion affirms that such
aid has not been sent to the Salvadoran insurgents “in a good long time”,
he imports that, at one time, aid was sent and that “we” sent it. That is to
say, he infers in this statement that any statement that aid “never” was sent
by the Nicaraguan Government to Salvadoran insurgents is false ; that, on
the contrary, at one time, the Nicaraguan Government did have a policy of
sending arms to the insurgency in El Salvador.

56. In an interview with the New York Times in Managua on 16 July
1985. President Ortega is reported to have “conceded that Nicaraguan
territory had once been used to ship weapons to guerrillas in El Salva-
dor .. .”. The report of the interview continues :

“Soon after the White House meeting President Carter criticized
the Sandinistas, after accusations arose that they were sending weap-
ons to revolutionaries in El Salvador.

Mr. Ortega said that members of the Nicaraguan armed forces had
aided such shipments but that they had done so without Government
sanction.” (The New York Times, 18 July 1985, p. A10.)

57. Quotations, apparently from this same interview of 16 July 1985
with President Ortega, were given in a subsequent dispatch of 17 Septem-
ber 1985. That report quotes President Ortega as follows :

“There were times when we were finding groups of 40 to 50 of our
army soldiers ready with knapsacks and weapons on their way to El
Salvador. but, we said, ‘we have had to detain them and to punish
them’.

Mr. Ortega said that at one point, the first United States Ambas-
sador to the Sandinista Government, Lawrence Pezzullo, presented
him with evidence that an airstrip in the western province of Leon was

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being used to transport arms to Salvadoran rebels. He said, ‘we took
necessary measures so this airstrip would not continue to be used for
this type of activities’.” (The New York Times, 17 September 1985,

p. 2.)

58. It will be noted that, in this interview, President Ortega declares, in
respect of the use of the airstrip in the Western province of Leon (see the
discussion below of the use of the airstrip at Papalonal) that : “We took
necessary measures so this airstrip would not continue to be used for this
type of activities.” (Emphasis supplied.) That is a clear admission that the
airstrip had been used for those activities. What activities ? As will be
demonstrated, the shipment by air of arms to Salvadoran insurgents.
Could the activities at Papalonal have been an excursion of free enterprise,
a caper by ardent young guerrillas acting without the knowledge and
support of the Nicaraguan Government ? The answer to that question is
self-evident, but is further elucidated by evidence of the United States
which I read into the record of the oral hearings in connection with
questions addressed by me to the Agent and counsel of Nicaragua. That
evidence (Hearing of 18 September 1985) reads as follows :

“The principal staging area came to be an airfield at Papalonal. The
pattern and speed of construction at Papalonal, which is in an isolated
area 23 nautical miles northwest of Managua, lacking adjacent com-
mercial or economic activity, made clear its military function. In late
July 1980, this airfield was an agricultural dirt airstrip approximately
800 metres long. By December, photography revealed a lengthened
and graded runway with hard dispersal areas, and storage buildings
under construction. By January 1981, the strip had been lengthened to
1,200 metres. A turnaround had been added at each end. A dispersal
parking area with three hardstands had been constructed at the west
end of the runway. Three parking aprons had been cleared, and three
hangar or storage buildings, each about 15 metres wide, had been
constructed on the aprons.

On January 2, 1981, a C-47 was observed at Papalonal for the first
time. Two C-47s were observed in February. These C-47s and DC-3s
... were used to ferry larger cargos of arms from Papalonal to areas of
guerrilla infiltration in southeastern El Salvador. Several pilots were
identified in Nicaragua who regularly flew the route into El Salvador.
Radar tracking also indicated flights from Papalonal to southeastern
EI Salvador.

On January 24, 1981, a C-47 dropped arms by parachute in the
vicinity of a small strip in southeastern El Salvador. On January 24,

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1981, a Cessna from Nicaragua crashed upon takeoff after unloading
passengers at an airfield in El Salvador close to where the C-47
airdrop occurred. A second plane, a Piper Aztec, sent to recover the
downed crew, was strafed on the ground by the Salvadoran Air Force.
The pilot and numerous weapons were captured. The pilot stated he
was an employee of the Nicaraguan National Airlines (LANICA) and
that the flight originated from Sandino International Airport in
Managua.” (Department of State, “Revolution Beyond Our Borders”,

pp. 7-8.)

59. This evidence of the reconstruction and usage of the Papalonal
airstrip was not refuted by Nicaragua, though it was placed before its
Agent and counsel in the course of the oral hearings. That evidence is
difficult to reconcile with the imputation by President Ortega in his inter-
view with the New York Times that the employment of Papalonal to supply
the Salvadoran insurgency was effected without the knowledge and sup-
port of the Nicaraguan Government. It may well be that, after the United
States Ambassador drew to Commander Ortega’s attention the knowledge
of the United States that the airstrip was being used for the ferrying of arms
to Salvadoran insurgents, the airstrip was closed down. But that hardly
supports any claim that it was not built up and employed by the Nicara-
guan Government for the purposes for which it was actually used.

60. It should also be noted that the photographs of Papalonal taken
from the air, which presumably buttressed the representations of the
United States to Commander Ortega, one of which is reproduced in “Re-
volution Beyond Our Borders”, at page 8, were taken by United States
aircraft which conducted overflights of Nicaraguan territory, about which
Nicaragua has strongly protested. The defensive — and thus legal — nature
of such overflights is indicated, however, by the fact that they were so
useful in demonstrating to Commander Ortega himself an internationally
illegal use of the territory of Nicaragua about which he professed to be
unaware.

61. The Papalonal airstrip will be further examined in connection with
the testimony of Nicaragua’s leading witness. But at this juncture, it is of
interest to quote Dickey’s conclusions :

“The Carter administration, in the last days of its term, had sus-
pended what was left of the $75 million in aid it won for the San-
dinistas a year before. There had been little choice. Certainly there
would have been no way to certify, after the Salvadoran ‘final offen-
sive, that the Sandinistas were not abetting other rebel movements.
The Nicaraguans had acted with incredible indiscretion. Years later
Salvadoran dissidents and rebel leaders who were in Managua and
Havana at the time would shake their heads when they recalled how
they even trained acrobats for the victory parade through San Sal-
vador. Edén Pastora would remember the Salvadoran guerrilla com-
manders decked out in well-pressed uniforms directing their triumph
— then watching their defeat — from a command center at the house of

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MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

Somoza’s mistress. By January 14, U.S. intelligence had picked up an
avalanche of incriminating evidence, including a truck with a roof full
of M-16s rolling through Honduras. The game was over and the chits
were being called in. ‘You people are just irresponsible,’ Ambassador
Pezzullo told Borge and Daniel Ortega when he saw them at a cocktail
party. ‘We’ve got you red-handed.’ And the Sandinistas knew it. They
began taking measures to recoup. By March they had shut down the
airfield at Pamplonas that had been used to supply the Salvadorans.
The airplanes were decommissioned, the pilots dispersed.” (Loc. cit.,
p. 105. The quotation of Ambassador Pezzullo’s remarks is drawn
from an interview with the Ambassador (p. 290). See also, for further
detailed descriptions of Nicaraguan arms shipments to Salvadoran
insurgents, p. 75. See also, Christian, op. cit., pp. 193-196.)

Dickey finds not only that the Nicaraguan Government’s supply of arms to
the Salvadoran rebels for the January 1981 offensive is incontrovertible.
He reports that, in 1982, shipments of arms to the Salvadorans “had not
stopped. They had increased” (at p. 133).

62. That Nicaraguan provision of arms to the Salvadoran insurgents,
which halted for a time after the January 1981 offensive and then resumed,
did indeed increase in 1982 is borne out by the following passage from
“Revolution Beyond Our Borders”, pages 10-11 :

417

“With Cuba as a main source, Nicaraguan supplies of arms to
FMLN units were stepped up to make possible an offensive to disrupt
a peaceful vote in the March 28, 1982, Constituent Assembly elec-
tions.

In the first 3 months of 1982, shipments of arms into El Salvador
reached the highest overall volume since the ‘final offensive’ in 1981.
The Nicaraguan-based arms flow into El Salvador utilized both sea
and overland routes through Honduras. In February 1982, for exam-
ple, a large shipment of arms arrived by sea from Nicaragua to the
Usulutan coast. Early in March 1982, a guerrilla unit in El Salvador
received several thousand sticks of TNT and detonators (five sticks of
TNT are sufficient to blow up an electrical pylon).

In addition to small arms and vitally needed ammunition, guerrilla
supply operations in 1982 provided greater quantities of heavier
weapons, including 57 mm recoilless rifles and M-72 antitank weap-
ons, thus significantly increasing guerrilla firepower.”
428 MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

2. Admissions by witnesses appearing on behalf of the Nicaraguan Govern-
ment

63. Commander Carrion’s admission in his role as witness for his Gov-
ernment has been set forth above. Two other witnesses for the Nicaraguan
Government also made significant admissions.

64. The report of Messrs. Fox and Glennon referred to above — the
report which was the basis of Professor Glennon’s testimony — reaches a
conclusion consistent with Commander Carrién’s admission which is
reproduced in that report: it states that “the Sandinista Government
maintains that it has not supplied arms to the Salvadoran guerrillas for
some time” (Memorial of Nicaragua, Ann. I, Att. 3, p. 6 ; emphasis sup-
plied). It is obvious that that statement is inconsistent with the sworn
statements of Minister D’Escoto and Vice-Minister Carrion that the Nica-
raguan Government “never” has supplied arms to the Salvadoran guer-
rillas.

65. Much more significant still were the admissions of Mr. David
MacMichael, a former intelligence analyst of the CIA called by Nicaragua
as a premier witness. On direct examination by Nicaraguan counsel, the
following, exchange took place :

“Question :] So you were familiar with the intelligence information
that the United States Government collected with respect to arms or
weapons trafficking between Nicaragua and rebels in El Salva-
dor?

[Answer :] Yes, I was.

Q. : All right. I want to direct your attention now to the period of
your employment with the Agency. Was there any credible evidence
that during that period, March 1981 to April 1983, the Government of
Nicaragua was sending arms to rebels in El Salvador ?

A. : No.

Q. : Was there any substantial evidence that during this period
arms were sent from or across Nicaraguan territory to rebels
in El Salvador with the approval, authorization, condonation or rati-
fication of the Nicaraguan Government ?

À. : No, there is no evidence that would show that.

Q.: Was there any substantial evidence that during the same
period, any significant shipments of arms were sent with the ad-
vance knowledge of the Government of Nicaragua from or across its
territory to rebels in El Salvador ?

A. : There is no such substantial evidence, no.

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Q. : Was there any substantial evidence that during that period
significant quantities of arms went to El Salvador from Nica-
ragua ?

À. : From Nicaragua, that is originating in Nicaragua, no.

Q.- Was there substantial evidence of shipments of arms from
other countries in the region to the El Salvador guerrillas ?

A. : Yes, there was.
Q. : Could you give us some examples please ?

A, : I think the best known of these is the evidence developed on
15 March 1982, when there was a raid on an arms depot in San José,
Costa Rica, at which time a considerable quantity of arms, well over a
hundred rifles, automatic weapons of various sorts, other ordnance,
mines and so forth, were captured there along with a significant
number of vehicles — more than half a dozen I believe — that were
used to transport these arms, or were designed for transporting them.
Documents were captured with the people captured there — a mul-
tinational group I would say — which indicated that certainly more
than half a dozen shipments of arms had already been made from that
depot. The reason I failed to tell you on your previous question,
Mr. Chayes, was that it would appear to me that if arms were shipped
from San José, Costa Rica, by vehicle, they must have in some way
had to get across Nicaragua.” (Hearing of 16 September 1985.)

Two observations may be made on the foregoing exchange. First, Nica-
raguan counsel’s questions contained qualifying adjectives — was there any
“credible” evidence, was there any “substantial” or “convincing” evidence
of “significant” shipments of arms — which may be taken as qualifying the
answers. More than that, on initial, direct examination, Mr. MacMichael
affirmed that “there was” substantial evidence of shipment of arms to the
El Salvador guerrillas from other countries of the region (specifically,
Costa Rica) “across Nicaragua”.

66. The comments of the United States Permanent Representative to
the United Nations made in the Security Council days after the very event
in question are of interest. Ambassador Kirkpatrick declared on 25 March
1982 :

“On 15 March 1982 the Costa Rican judicial police announced the
discovery of a house in San José with a sizable cache of arms, explo-
sives, uniforms, passports, documents, false immigration stamps from
more than 30 countries, and vehicles with hidden compartments — all
connected with an ongoing arms traffic through Costa Rican territory
to Salvadoran guerrillas. Nine people were arrested : Salvadorans,

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Nicaraguans, an Argentine, a Chilean and a Costa Rican. Costa Rican
police so far have seized 13 vehicles designed for arms smuggling.
Police confiscated some 150 to 175 weapons, from mausers to
machine-guns, TNT, fragmentation grenades, a grenade-launcher,
ammunition and 500 combat uniforms. One of the captured terrorists
told police that the arms and other goods were to have been delivered
to the Salvadoran guerrillas before 20 March, ‘for the elections’.”
(S/PV.2335, p. 46.)

67. Immediately after the foregoing exchange, the direct examination of

Mr.

420

MacMichael continued as follows :

“/Question :] 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 Salvadoran rebels
from Nicaragua at any time ?

[Answer :] Yes, I did.

Q. : When was that ?

A. : Late 1980 to very early 1981.

Q. : And what were the sources of that evidence ?

A. : There were a variety of sources : there was documentary evi-
dence, which I believe was codable, there were — and this is the most
important — actual seizures of arms shipments which could be traced
to Nicaragua and there were reports by defectors from Nicaragua that
corroborated such shipments.

Q. : Does the evidence establish that the Government of Nicaragua
was involved during this period ?

À. : No, it does not establish it, but I could not rule it out.

Q. : At that time were arms shipments going to the El Salvadoran
insurgents from other countries in the region ?

A. : Yes, they were.
Q. : Could you give us examples ?

A. : There were shipments at that time which could be traced to
Costa Rica ; there were shipments at that time that could be traced as
having come through or via Panama.

Q. : And did the evidence of arms traffic from Nicaragua, if any,
come to an end?

À. : The evidence of the type I have described disappeared. They
did not come in any more after very early 1981, February/March at
the latest.
431 MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

Q.: You say at some time, just about the time you got to the
Agency, the evidence stopped coming in : did it ever resume ?

A. : As I have testified, no.” (Hearing of 16 September 1985.)

These admissions — on direct examination — are remarkable. Nicaragua’s
own witness affirms that he saw evidence that, from “late 1980 to very early
1981”, “arms” were “going to the Salvadoran rebels from Nicaragua”. And
Mr. MacMichael relies on what to sustain that conclusion ? Documentary
evidence, actual seizures of arms, and corroborating reports of defectors.
Did that evidence “establish that the Government of Nicaragua was
involved during this period ?” Mr. MacMichael replies : “No, it does not
establish it, but I could not rule it out.”

68. Finally, on direct examination, Professor Chayes had this sum-
marizing exchange with Mr. MacMichael :

“Question :] Now to summarize your testimony. You had access to
and review, in your professional capacity and as part of your duties for
the Central Intelligence Agency between March 1981 and April 1983,
of the intelligence information on the subject of arms supply to the
Salvadoran rebels, is that correct ?

[Answer :] That is correct.

Q. : That includes intelligence information from all the sources of
intelligence that we have catalogued earlier in your testimony ?

A. : Yes, it does.

Q. : In the intelligence information you reviewed, you found no
convincing evidence of the supply of arms to the Salvadoran rebels by
the Nicaraguan Government or the complicity of the Nicaraguan
Government in such supply ?

À. : I did not find any such evidence.

Q. : I would like to ask you, in your capacity as a professional
intelligence analyst, does the absence of such evidence have any
significance in evaluating the question of Nicaraguan supply of the
Salvadoran rebels ?

À. : I would say that it casts serious doubt on the proposition that
the Nicaraguan Government is so involved.

Q. : Will you state again your overall conclusion as to the existence
of arms traffic from Nicaragua to the Salvadoran insurgents ?

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À. : I do not believe that such a traffic gues on now or has gone on for
the past four years at least, and I believe that the representations of the
United States Government to the contrary are designed to justify its
policies toward the Nicaraguan Government.” (Hearing of 16 Sep-
tember 1985 ; emphasis supplied.)

69. The subsequent comments of the Nicaraguan Agent on the purport
of Mr. MacMichael’s testimony before the Court are of interest. In his
letter of 26 November 1985, Ambassador Argiiello Gomez stated the
following :

“To briefly summarize that testimony and evidence : the Govern-
ment of Nicaragua has never supplied arms or other war materials to
EI Salvadoran insurgents or authorized the use of Nicaraguan terri-
tory for such purpose. This does not mean that persons sympathetic to
the insurgents have not, without the approval of the Nicaraguan
Government and contrary to its policy, sent small quantities of arms
from or through Nicaraguan territory to the insurgents ; however, the
Nicaraguan Government has acted diligently to prevent and stop such
arms trafficking to the best of its ability. The testimony of Mr. David
MacMichael, a former CIA official called as a witness by Nicaragua,
was that some arms shipments to El Salvadoran insurgents emanated
from Nicaraguan territory at the very beginning of 1981, but that
these shipments ceased, and did not resume, after March 1981. He saw
no evidence of any other shipments between April 1981 and April
1983, when his employment with the CIA ended. Mr. MacMichael
testified that the evidence ‘did not establish’ that the Nicaraguan
Government was responsible for the arms shipments at the very
beginning of 1981, and Nicaraguan Government witnesses have told
the Court that the Government had no involvement or responsibility
as regards those or any other shipments. See, e.g., Hearing of 16
September 1985.”

70. It may be asked whether this characterization of the testimony of
Mr. MacMichael is within the bounds of advocacy, for while it is true that
Mr. MacMichael there concluded, on direct examination, that the evidence
“did not establish” Nicaragua’s complicity, he also said that he “could not
rule it out” — and he said more. But what is extraordinary about this state-
ment of the Nicaraguan Agent is that it simply ignores Mr. MacMichael’s
answers in response to questions from the Court. As shown below,
Mr. MacMichael’s answers to those questions (a) directly contradict the
continuing contentions of Nicaragua that it has “never supplied arms or
other war material to El Salvadoran insurgents or authorized use of Nica-
raguan territory for such purpose” and (b) demonstrate that either Foreign
Minister D’Escoto and Commander Carrion misrepresented the facts in
their sworn submissions to the Court, or, alternatively, demonstrate that
Mr. MacMichael’s testimony is so fundamentally flawed as to be treated as
impeached. The Court could have chosen between treating the affirma-

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tions of Messrs. D’Escoto and Carriôn as truthful and those of Mr. Mac-
Michael as untruthful, or treating the latter as truthful and the former as
untruthful. Since, however, among many other elements of evidence,
Commander Carrion tripped himself up by also submitting an affidavit to
the Court which is consistent with Mr. MacMichael’s testimony, and
inconsistent with his own and with Foreign Minister D’Escoto’s, the cor-
rect conclusion appears to be that Mr. MacMichael spoke truthfully.
71. Now let us look at the relevant exchanges with Mr. MacMichael
referred to in the preceding paragraph. The first was as follows :

“{Judge Schwebel :] My first question is this. You stated that you
went on active duty with the CIA on 6 March 1981 and left on 3 April
1983, or about that date. Am I correct in assuming that your testimony
essentially relates to the period between March 1981 and April 1983,
at least in so far as it benefits from official service ?

[Mr. MacMichael :] That is correct ... and I have not had access
since I left to classified materials, and I have not sought access to such
material.

Q. : 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
Salvador, you would not be in a position to know that ; is that
correct ? ;

A.: I think I have testified . .. 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’ ?

À. : I prefer to stay with my answer that I could not rule it out, but to
answer you as directly as 1 can my inclination would be more towards
ruling ‘in’ than ruling ‘out’.” (Hearing of 16 September 1985.)

It will be observed that Mr. MacMichael does not squarely sustain the
opinion attributed to him by the Nicaraguan Agent that the evidence “did
not establish” Nicaragua’s complicity ; rather his “inclination would be
more towards ruling ‘in’ than ruling ‘out’ ”. It will also be observed that
Mr. MacMichael refers to facts within his own knowledge ; he avers that he
reviewed “the immediate past intelligence material” for the 1979-1981
period.

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72. I then asked Mr. MacMichael whether he could explain how it was
that Congressman Boland, who, as Mr. MacMichael acknowledged, saw
essentially the same intelligence data as Mr. MacMichael, arrived at the
conclusion that, “contrary to the repeated denials of Nicaraguan officials,
that country is thoroughly involved in supporting the Salvadoran insur-
gency” (ibid., p. 31). Mr. MacMichael hazarded explanations examined
below (paras. 146, 154-155), in answer to what he described as a “very
important question”. This exchange then ensued :

424

“/Question :} Thank you so much, Mr. MacMichael, and that raises in
my mind this question : let us suppose for a moment that your thesis is
correct and that the arms flow from Nicaragua to El Salvador in the
period of your tenure had substantially or entirely ceased. Let us
assume for the moment that there were shipments of arms from
Nicaragua to the El Salvador insurgents for the big offensive at the
beginning of 1981, that, as Commander Carrion has testified, by the
end of 1981 the CIA’s support for the contras was in place. You come
aboard I think in March 1981 and you are there until 1983, and during
at least much of this period the contra operation was being funded
actively and was in place, is it not a plausible supposition that far from
being ineffective the contras were most effective, and that the very
reason why the Nicaraguan Government stopped sending arms, if
indeed it did, was because of the pressure of the conrras ? It could see
that it was a counter-productive policy because it had produced
United States funding of the contras where United States démarches
had produced nothing. Is that plausible ?

[Answer :] T think it is plausible . . . and I would go on with my
response, if you desired me to do so. It is my proposition indeed, and
my opinion if I may say so, that the alleged flow of arms from
Nicaragua to the Salvadoran insurgents ceased, that no credible sub-
stantial evidence of such an arms flow existed in the time that I was
examining it, and you propose, if | understand your question, that an
explanation for this would be the excellent and effective interdiction
and preventive work of this contra force.

Q. : No, if I may make myself a bit clearer, I am not suggesting that
the contras were necessarily effective in interdicting arms flows. They
may have been somewhat effective, they may have been ineffective, |
frankly do not know, but my suggestion of a plausible explanation of
the events you have described is that Nicaragua had perceived that a
policy of sending arms to insurgents in El Salvador had a price, and
they feared it might have an even greater price, and therefore they
stopped sending arms, if indeed they did, on which I take no position.
I am just offering a hypothesis.
435 MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

À. : Thank you. The statement I was going to make... . is, assuming
that that is correct, it is then very difficult to explain why through the
whole period the United States Government continued to maintain
that this flow of arms went on, if indeed it had stopped as a result of
the Nicaraguan Government’s recognition of the perils it faced in
continuing to involve itself, or appeared to involve itself. It is indeed
strange to me that the United States Government continued to claim
it went on.

Q. : I quite agree, if indeed it had stopped. I said that I am speaking
in terms of a hypothesis.” (Hearing of 16 September 1985.)

It is an instructive exchange, for it confirms Mr. MacMichael’s acceptance
of the fact that Nicaragua had shipped arms to the Salvadoran insurgents
before March 1981 ; and indicates his acceptance of the hypothesis that the
reason why the arms flow might have ceased in the period March 1981-
April 1983 was because the Nicaraguan Government had come to feel the
pressures exerted upon it because of its subversion of El Salvador (such an
hypothesis would also apply to a slowing, or a more effective concealment,
of arms trafficking as it would to its cessation).

73. The exchange then resumed in these terms :

“To turn to another aspect of these facts, Mr. MacMichael, is it a
fact that leaders of the Salvadoran insurgency are based in Nicaragua
and regularly operate without apparent interference from Nicaraguan
authorities in Nicaragua ?

[Answer :] I think the response to that question would have to be a
qualified yes, in that political leaders and, from time to time, military
leaders, of the Salvadoran insurgency have reported credibly to have
operated from Nicaragua, that this was referred to frequently by the
United States Government as a command and control headquarters,
and that such an action could certainly be defined as one unfriendly
toward the Government of El Salvador recognized by the United
States. I have confined my testimony to the charge of the arms flow.”
(Ibid.)

74. An extended exchange then ensued as to the plausibility of Cuba
sending arms to the Salvadoran insurgency through Nicaragua. Mr. Mac-
Michael declined to draw conclusions, but acknowledged that such Cuban
activities were “plausible” (ibid., p. 39).

75. Thereupon there was this exchange :

“[Question :] Mr. MacMichael, have you heard of Radio Libera-
cion ?

[Answer :] | have heard of Radio Liberacion, yes.

Q. : What is it? Can you tell the Court, please ?

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A. : It was a predecessor of the basic Radio Venceremos which is
used by the FMLN in El Salvador. I believe that at one time a radio
broadcast under the title of ‘Radio Liberacion’ was supposed to have
originated from Nicaraguan soil.

Q. : Did they in fact originate from Nicaragua, to the best of your
knowledge ?

A. : To the best of my knowledge I think I would say yes, that is the
information I have.” (Hearing of 16 September 1985.)

Thus Mr. MacMichael acknowledged broadcasting from Nicaragua by the
Salvadoran insurgents. (The FBIS has published the monitorings of many
such broadcasts. For example, on 9 January 1981, Radio Liberacion,
operating out of Nicaragua, boasted that the new United States President

— the “cowboy President” — would come to office too late to stop the
guerrilla victory in El Salvador. FBIS, Central America, 12 January
1981.)

76. At that point, the following crucial exchange took place between

Mr.

426

MacMichael and myself :

“Question :] Have you heard of an airfield in Nicaragua at Papa-
lonal, or an airstrip ?

[Answer :] Yes, | have.

Q. : Are you aware of the fact that the United States Government
under the Carter Administration made representations to the Nica-
raguan Government about the use of that airfield as a principal
staging area for the airlift of arms to insurgents in El Salvador ?

A. : Yes, I recall that very well.

Q.: In an interview with the Washington Post published on
30 January 1981, the outgoing Secretary of State, Edmund Muskie,
stated that arms and supplies being used in El Salvador’s bloody civil
war were flown from Nicaragua ‘certainly with the knowledge and to
some extent the help of Nicaraguan authorities’. Now as you know the
Administration for which Mr. Muskie spoke had given more than
$100 million in aid to the Sandinista Government since it took
power.

A. : That is correct.
Q. : Do you think that Mr. Muskie was speaking the truth ?

A. : Oh yes, in that case. For example. I spoke earlier under direct
questioning from Mr. Chayes regarding information that had existed
for that period — late 1980 to very early 1981 — and when I mentioned
defectors I had in mind as a matter of fact some persons who... stated
under interrogation following their departure from Nicaragua that
they had assisted in the operations out of Papalonal in late 1980 and
437  MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

very early 1981, and as I say, | am aware of this ; there was also an
interception of an aircraft that had departed there — that had crashed
or was unable to take off again from El Salvador where it landed —
and I think that was in either very early January or late December
1980 and this was the type of evidence to which I referred, which
disappeared afterwards.

Q. : [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 Salvadoran insurgency. Is that the conclusion I can draw from
your remarks ?

A. : [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.” (Hearing of
16 September 1985.)

77. The foregoing exchange calls for the following observations. First,
Mr. MacMichael confirms that the Carter Administration made represen-
tations to Nicaragua about the use of the airstrip at Papalonal to fly arms
to Salvadoran insurgents (see in this regard, President Ortega’s statement
to the New York Times quoted in paragraph 57 of this appendix). Second,
he agrees that President Carter’s Secretary of State spoke truthfully in
accusing Nicaragua of knowing about and supporting the supply of arms
to the Salvadoran insurgency. (If Mr. Muskie spoke truthfully, then it
follows that various spokesmen of the Nicaraguan Government in this case
have spoken untruthfully in saying the opposite on that precise point.)
Third, the description of the facts surrounding the operations out of
Papalonal given by Mr. MacMichael closely corresponds with the account
given of those very operations by the United States (“Revolution Beyond
Our Borders”, pp. 18-19, 28-29) — an account, much of which was read out
in Court (see para. 58 above), which is incompatible with the reiterated
claim of the Nicaraguan Government that it “never” participated in the
shipment of arms to Salvadoran insurgents (see also, Background Paper :
Nicaragua’s Military Build-Up and Support for Central American Subver-
sion, pp. 21-22, submitted by the United States to the Court with its
Counter-Memorial, and the statement of Ambassador Kirkpatrick of
25 March 1982 in the Security Council about the role of Papalonal airstrip,
S/PV.2335, pp. 42-43). Fourth, and most important of all, Mr. Mac-
Michael agrees 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 Salvadoran insurgency”. That affirmation undermines the
bedrock assertions of the position of the Nicaraguan Government in this
case. If what Mr. MacMichael takes as the fact is the fact then it necessarily
— not possibly but necessarily — follows that Foreign Minister D’Escoto,
Commander Carrion and the Nicaraguan Agent have sworn and spoken
contrary to the fact.

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3. Admissions by Nicaraguan counsel

78. Contrary to the practice of the Court, and the import of Article 53 of
the Rules of Court, the Nicaraguan Government released the substance of
its pleadings to the press before they were made public by the Court (see
the New York Times of 7 May 1985, at p. Al6, which contains a detailed
summary of the Nicaraguan Memorial on the merits, not released by the
Court until the opening of oral argument in September). Perhaps then it
should not have been surprising that, shortly before the merits of the case
were argued in Court, Professor Chayes and Mr. Reichler gave an inter-
view to Shirley Christian of the New York Times by which readers were
informed of what “the Government of Nicaragua will try to prove in
proceedings opening at the World Court next week . . .” (the New York
Times, 8 September 1985, p. 23). That article contains the following pas-
sages :

“Addressing a longstanding United States accusation, the lawyers
for Nicaragua said they would acknowledge that the Managua
Government supplied weapons to Salvadoran guerrillas for the big
January 1981 offensive against the United States-backed Govern-
ment in El Salvador. But they will argue that there is no credible
evidence of sustained arms shipments since then.”

After some paragraphs, the article concludes :

“The lawyers said their key witness to rebut the United States
charge that the Sandinistas were aiding the Salvadoran guerrillas, the
initial reason the Administration used for backing the contras, would
be David MacMichael, a former CIA analyst. Mr. MacMichael has
previously given Congressional testimony saying the Administra-
tion’s case is weak.

American officials have said the Sandinistas tacitly acknowledged
several years ago that aid might be going from Nicaragua to the
Salvadoran guerrillas but maintained it was from individuals.

Mr. Reichler said he ‘strongly advised’ Nicaragua that it should not
undertake the court suit if it were still involved in arms traffic to El
Salvador.

‘They assured us from the beginning that they had nothing to hide’,
he said.”

79, Thus we have counsel for Nicaragua, according to this report, (a)
acknowledging that the Nicaraguan Government supplied weapons to the
Salvadoran insurgents for their January 1981 final offensive ; (6) main-
taining that there is no “credible” evidence of “sustained” arms shipments
since ; (c) stating that they advised the Nicaraguan Government not to
bring suit if it were “still” involved in such traffic ; and (d) characterizing
Mr. MacMichael as their “key witness”. It is interesting to note that when

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that key witness testified, he declared to be the fact what Nicaraguan
counsel said that they would acknowledge as the fact.

80. In a further article of 14 September 1985, also written by Shirley
Christian, the following lines are found :

“American lawyers for the Nicaraguan Government, whose suit
now being heard in The Hague charges aggression by the United
States because of its support for Nicaraguan rebels, have acknow-
ledged that weapons were shipped to El Salvador before the January
1981 guerrilla offensive there but say there is no ‘credible evidence’ of
a sustained flow since April 1981. They also say there is no proof that
the Nicaraguan Government itself was responsible for the arms that
were shipped in late 1980 and early 1981.” (The New York Times,
14 September 1985, p. 3.)

While the article of 8 September 1985 contains admissions which, if
accurately reported, contradict the position of the Nicaraguan Govern-
ment that it “never” sent arms to Salvadoran rebels, the article of 14 Sep-
tember is less damaging to Nicaraguan credibility. It reaffirms that Nica-
raguan counsel have acknowledged that weapons were shipped to El Sal-
vador for the 1981 final offensive and reiterates that there is no “credible”
evidence of a “sustained” flow thereafter. But it adds that counsel also say,
not that it is not true, but that “there is no proof” that the Nicaraguan
Government itself was responsible for the arms that were shipped in late
1980 and early 1981.

81. In his letter to the Court of 15 October 1985, the Nicaraguan Agent
stated the following :

“Nicaragua’s counsel have never stated or implied that the Gov-
ernment of Nicaragua supplied arms to rebels in El Salvador or
condoned the supply of arms by others from Nicaraguan territory.
Any newspaper article purporting to attribute such statements or
implications to Nicaragua’s counsel is inaccurate.”

No explanation is proffered of what Nicaraguan counsel actually said, or
of in what precise respects the two articles reporting their statements are
“inaccurate”.

82. In his peroration to the Court, Professor Chayes equivocated :
“Nicaragua produced concrete and credible evidence all of which shows
that it was not supplying arms to El Salvador either now or in the relevant
past” (Hearing of 19 September 1985). What, it must be asked, is “the
relevant” past ? But it must first be observed that Nicaragua presented no
evidence — apart from self-serving affirmations by the Nicaraguan For-
eign Minister, Commander Carrion and the Nicaraguan Agent — about
what it is doing “now”. It presented the evidence of Mr. MacMichael,

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which, to the extent that it is of value, can be so only for the period in which
he claims to have had access to the intelligence data, namely, mid-1979 to
April 1983. April 1983 is not “now”. And as for the past, the admissions of
Nicaraguan leaders and of its witnesses of themselves demonstrate the
falsity of any such claim unless, arguably, the period before April 1981 is
excluded as not being “relevant”. And what reason is there for concluding
that it is not relevant, except that to do so suits Nicaragua’s case ? If one
considers the motivations of the United States, the actions of Nicaragua
before April 1981 demonstrably are relevant, for they led, among other
things, not only to support of the contras, but to (a) the resumption of
United States arms aid to the Government of El Salvador, which had been
suspended ; (b) the suspension of economic aid to the Government of
Nicaragua by the Carter Administration ; and (c} the termination of eco-
nomic aid to the Government of Nicaragua by the Reagan Administration.
A number of reports indicate that a critical factor in leading the United
States to support the contras, and in persuading the United States that the
Sandinista Government cannot be trusted, was not only the shipment of
arms for the “final offensive” — an offensive which neither the Govern-
ments of El Salvador nor the United States found irrelevant — but the
persistence of the Nicaraguan Government in dissembling about what it
actually had been doing, before January 1981 and thereafter : a persistence
which the Nicaraguan Government has maintained in Court (see, e.g., Roy
Gutman, “Nicaragua: America’s Diplomatic Charade”, Foreign Policy,
Fall 1984, p. 6: “Haig’s distrust of the Nicaraguans stemmed from their
denial of furnishing aid to the Salvadoran guerrillas in early 1981.” See
also. Alexander M. Haig, Jr. Caveat, 1984, pp. 88-89, 103, 109, 122-123).

83. For his part, Professor Brownlie offered the following “hypo-
thesis” :

“The hypothesis concerns a small State and a period of five or six
years. In the first year of the five or six-year period we will assume that
there is evidence of arms moving across the frontier of that small State
into a neighbouring State. If it appeared that the Court believed that
such a set of facts justified the type of coercion brought to bear by the
United States over a period of four or five years, long after the original
hypothetical traffic in arms had ceased, and that it could justify the
massive use of a variety of forms of coercion over that period of four
or five years ; in my submission that would be virtually a return to
the concept visible in the 1930s in Europe, the diplomacy of provo-
cation, where some original event is taken as a justification for a long
sequence of coercion.” (Hearing of 20 September 1985.)

This apparently is an invitation to the Court to excuse the misrepresen-
tations of Nicaragua’s officials and to overlook the prevarication of Nica-
raguan policy, and to condone Nicaragua’s violations of international law

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in the period July 1979 to January 1981, particularly on two grounds : (a)
Nicaragua’s shipment of arms has ceased and (5) because it has ceased, and
because Nicaragua is Nicaragua and the United States is the United States,
the United States response is disproportionate, indeed it is the United
States which pursues “a diplomacy of provocation”.

84. The fact is that Professor Brownlie’s hypothesis is hypothetical ;
that arms shipments and other support by Nicaragua of insurgency in El
Salvador have not ceased. That is not to say that the question of the
proportionality of the United States response nevertheless is not a genuine
question ; clearly it is. But what Professor Brownlie’s statement adds up to
is another indication by Nicaraguan counsel of the duplicity of the position
in Court of the Government of Nicaragua. It is clearly an inferential
admission that, in the earlier period of the events in issue, the Nicaraguan
Government did send arms and other material support to the insurgency in
El Salvador.

85. Finally, in respect of the admissions of Nicaraguan counsel, let us
look to the closing statement of the Agent of Nicaragua. That statement
begins with what may be seen as a political rather than legal appeal : “The
cause of my country is also the cause of all the small nations on earth...
The cause of my country is, and has been, the cause of Latin America.”
(Hearing of 20 September 1985.) He embroiders that theme with references
to “mobilizing the force of international law” not as an impartial arbiter
between States but as “a defence against the innumerable interventions of
the United States in Latin America” (ibid). With respect to what he
recognizes to be a critical issue of the case, “the question of arms supplied
to El Salvador”, he reiterates that Nicaragua’s position “remains the same
as it was at the beginning of the case and as it always has been. We have
never varied from that position.” He quotes again the affidavit from “our
Foreign Minister, Father Miguel D’Escoto” who “swore” that, “In truth,
my Government is not engaged and has not been engaged in the provision
of arms or supplies to either of the factions engaged in the civil war in El
Salvador.” He quotes Commander Carrion’s sworn testimony that Nica-
ragua’s Government has “never” had a policy of sending arms to oppo-
sition forces in Central America. He denies that there were “several”
training facilities provided for Salvadoran guerrillas. He affirms that
Nicaraguan counsel have never said anything to the contrary. And then he
turns to Mr. MacMichael’s testimony, as “the one person who has seen ali
the evidence in the possession of the United States relating to the supply of
arms to the Salvadoran guerrillas during the period of time that is relevant
to this case”.

86. That last sentence calls for two comments. The first is that Mr. Mac-
Michael cannot conceivably be “the one person” who has seen all of such
evidence. Not only is that claim implausible on its face ; Mr. MacMichael

43]
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in Court himself conceded that Congressman Boland (and presumably
other members of the Congressional committees on intelligence) had seen
the very data he had seen : “itis my belief”, Mr. MacMichael testified, that
the evidence Congressman Boland saw “was essentially the same evidence
that I saw” (Hearing of 16 September 1985). Second, the Agent of Nica-
ragua takes refuge in the same shelter which Professor Chayes earlier dug :
that of “the period of time that is relevant to this case”. Earlier, the Agent
of Nicaragua had maintained that “it is of no relevance to discuss hap-
penings five years ago . . .” (Hearing of 19 September 1985). These
references to a “relevant period” may, again, be taken as an inferen-
tial admission that, in what Nicaragua deems the “irrelevant period”, it
did supply arms to the Salvadoran insurgents.

4. Admissions by leaders of the Salvadoran insurgency

87. Speaking in Managua on 9 April 1983 at the funeral of his murdered
Salvadoran comrade, Melida Anaya Montes, known as “Commander Ana
Maria”, at the Commander Ana Maria Revolutionary Square in Managua,
the Salvadoran insurgent chief, Cayetano Carpio (“Commander Marcial”)
gave a eulogy before the most senior officials of the Nicaraguan Govern-
ment, the FSLN. and Salvadoran insurgent groups. He proclaimed that :

“The Reagan Administration, which is an enemy of mankind and
which threatens the peoples of Central America and the world. is daily
plotting acts of political and military aggression against our
peoples.

That is why it is so profoundly moving that at a time of great
bereavement like these which our people are experiencing, the people
of Nicaragua are offering us this comforting solidarity and encour-
agement to continue the struggle against the common enemy with
much more ardor.

Imperialism is accusing Nicaragua by saying that the leaders of the
Salvadoran people are here ; the leaders of the FMLN-FDR. In my
opinion this charge was made as if one people’s solidarity with
another is something to be ashamed of. However, one thing is evident,
the members of the Directorate and all its working teams, some inside
the country and others outside the country. are steadfastly at work
fully aware of the need to unite the internal struggle with international
solidarity and with the struggle of all peoples for the liberation of
Central America and El Salvador. That is why we move from one
country to another. However, when we are in some other country, they
do not accuse that country of harboring the FDR directorate, for
example. I received the blow of this crushing news at a congress that is
currently underway in Libya. From that faraway place, from the

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MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

deserts of Africa, immediately rushed here, trying to get here on time
for the funeral services of our late companera.

However, imperialism does not accuse these other countries. It
accuses Nicaragua. Why ? Because imperialism has an overall policy
against our Central American peoples, who have already risen up
irreversibly in a revolutionary struggle until the final victory.

The Central American peoples’ struggle is one single struggle.
When he formed his rebel army in the mountains, Sandino had
companeros from ali over Central America beside him. And all of
Central America fought against imperialism in the struggles and
accomplishments of the heroic Nicaraguan guerrillas. Our revolution-
ary leader, Companero Farabundo Marti, was there alongside San-
dino.

The Salvadoran people are tirelessly struggling, but the struggles of
our two peoples are not merely the struggles of El Salvador and
Nicaragua. That is why from day to day the Reagan administration is
scheming, dealing political and military blows, aggressions and block-
ades, and making plans to escalate the aggression not only against El
Salvador but also against Nicaragua. Therefore, at a time like this, at a
time in history which is one of transition toward independence for all
our peoples, the glorious example that the Nicaraguan people have
given us, their warm solidarity in moments of grief, and I am sure also
in moments of great joy, when we achieve victory we will be arm in
arm and struggling for the total liberation of Central America.

The people of El Salvador will thank you from the bottom of their
hearts for this recognition to one of our children, one of our leaders —
today, always, at every moment — and for these expressions of soli-
darity by the people of Nicaragua. All the Central American nations
are experiencing the aggression of U.S. imperialism. We are struggling
against its intervention in every dignified way we can, but we are also
aware that all the Central American nations will become one revo-
lutionary fire if U.S. imperialism carries out its aggressive plans
against Nicaragua or El Salvador.

You can rest assured that we will fight to the end for the victory of
all Central American nations, which deserve to rule their own des-
ünies. On behalf of the FMLN and the FDR, and especially on behalf
444  MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

of the companeros of the Farabundo Marti people’s liberation forces,
I tell you dear friends, embraced in the same struggle, thank you very
much. Until the final victory ! Revolution or death ! (FBIS, Central
America, 11 April 1983, pp. 8-9.)

88. The Sandinista communiqué read out at the funeral service,
addressed to the Salvadoran insurgent forces, read :

“Brothers : The death of Commander Ana Maria, deputy com-
mander of the Salvadoran FPL and member of FMLN’s DRU, has
been a deep blow to the hearts of Nicaraguans. Commander Ana
Maria had represented the interests of her people ever since she
assumed leadership of the teachers’ struggle and joined the armed
struggle of the glorious Salvadoran people. She managed to be at the
same time voice and rifle, missionary and fighter. She represented well
the interests of the revolution and contributed remarkably to the unity
and development of the Salvadoran people’s struggle. Her death
brings mourning to the Nicaraguan flag and the hearts of Central
Americans and comes at a time when imperialism’s ferocity against El
Salvador and Nicaragua has been multiplied. Her death comes when
imperialism has launched war against our people. Ana Maria’s death,
however, is not merely another demonstration of the unlimited cruelty
of our enemies. It is also an additional powerful reason for the
peoples’ anger to turn into determination and victories.

The FSLN National Directorate, on behalf of the Nicaraguan
people, expresses its most fervent solidarity to the companeros of the
FMLN DRU, the FDR, the FPL, the Salvadoran people, and parti-
cularly to our companero, Salvador Cayetano Carpio, Marcial.

Our peoples are invincible, because they are revolutionaries. Long
live the heroic struggle of the Salvadoran people ! [Crowd answers :
Viva !] Long live the immortal memory of Commander Ana Maria !
[Crowd answers: Viva!] Free fatherland [Crowd answers: ‘Or
death’ !] [Signed] FSLN National Directorate.” ({bid, p. 11.)

89. Within a few days, Cayetano Carpio was reported to have commit-
ted suicide in Managua, apparently because of the fact that his supporters
(not the CIA as initially charged) had murdered Melida Anaya Montes,
and, it is alleged, because of pressures exerted upon him by the Nicaraguan
Government (see the account by James Le Moyne below, para. 188). His
funeral was attended by the most senior officials of the Nicaraguan
Government.

90. It may be observed that, in answer to a question put by me, the
Agent of Nicaragua transmitted to the Court the following statement in a
letter of 26 November 1985 :

“2.1. Melida Anaya Montes arrived in Nicaragua as a refugee
approximately one month before her death ; she did not establish

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residence in Nicaragua and there is no record of her occupation while
in Nicaragua. Cayetano Carpio arrived in Nicaragua after Melida
Anaya Montes’ death in order to attend her funeral; he did not
establish residence in Nicaragua and he had no occupation during the
few days he was in Nicaragua.

2.2. Melida Anaya Montes and Cayetano Carpio were associated
with the insurgency in El Salvador.”

This statement may be compared with Christopher Dickey’s account of the
murder of Melida Anaya Montes by followers of Cayetano Carpio. He
observes that “home to a frail Salvadoran lady” who was second-in-
command of the largest single faction of the Salvadoran guerrilla front was
a house in Managua ; he indicates that he interviewed her there in Novem-
ber 1981 (loc. cit., pp. 212, 304). “On April 6, [1983] Ana Maria was
murdered in her pleasant Managua bungalow.” (P. 213.) Dickey’s account
continues :

435

“When word of the killing got out, Tomas Borge and Lenin Cerna,
the head of State Security, held a press conference. Cerna himself was
named to head up the investigation. And Borge quickly deduced what
its results would be. The murder, he said, put Nicaragua in the dif-
ficult position of admitting that a member of the Salvadoran guerrilla
directorate was resident in Managua. It seemed to confirm the charges
constantly made by the Reagan administration that the Sandinistas
were supplying command and control facilities to the Salvadorans.
So, who else could have killed Ana Maria but the CIA? Who else
would be so brutal ?

‘I do not need to present specific proof’, said Borge. ‘I do not need
to say : “Here is the murderer,” because everyone knows who the
murderer is.’

But Ana Maria’s followers among the Salvadoran guerrillas were
not so sure. They knew the bitterness of Marcial. They urged Borge to
press harder on the investigation. After two days a servant in Ana
Maria’s house confessed her complicity to the Sandinista police. The
sound of the screams haunted her and would not let her sleep, she told
them. She implicated other conspirators and the path quickly led to
the closest friend and confidant of Marcial himself. And the impli-
cation, even indirect, of Marcial as the author of the murder was more
humiliating for the Sandinistas — and for Borge especially — than
anything the CIA could have devised.

But as the evidence came out, and Marcial’s lieutenant confessed
unrepentantly to doing what was necessary to save Marcial’s ideals,
Marcial not only refused to acknowledge any role in the crime, he
accused the Sandinistas — even Tomas Borge — of plotting against
him. Old and sick, he was still defiant.
446  MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

On April 12, Marcial died at his own house in Managua.” (Pp. 213,
214. The quotation of Commander Borge is from his statement at a
press conference.)

Dickey notes that Cayetano Carpio’s farewell letter to his followers was
discussed by him “with FMLN officials in Managua in June 1984” (p. 304).
He records that he “interviewed Salvadoran guerrilla and opposition
leaders obviously resident in Managua in November 1981” (p. 290).

91. The letter of the Nicaraguan Agent of 26 November 1985 states
that :

“The Government of Nicaragua has permitted, and continues to
permit, Salvadoran refugees whether or not they are associated with
the insurgency in that country. to enter Nicaraguan territory .. .
Nicaragua is not the only country that allows Salvadorans who may
be associated with the insurgency there to enter its territory . . .”

and concludes that :

“it would appear senior representatives of the Salvadoran insurgency
have spent more time, and undertaken more political activity, in the
United States than Nicaragua”.

While the accuracy of that latter statement cannot be Judged, the reiterated
contention in this letter that Nicaragua “has never permitted Salvadoran
insurgents to establish a headquarters . .. in Nicaraguan territory” may be
compared with Dickey’s reporting. If Melida Anaya Montes, resident in
Managua, was second-in-command of the largest faction of Salvadoran
guerrillas, and her effectively displacing Cayetano Carpio — whose home
also was in Managua — as commander-in-chief was a cause of her murder
(see Christopher Dickey, “Salvadoran Rebel Intrigue”, the Washington
Post, 27 June 1983, and Stephen Kinzer, “Salvador Rebels Revile Late
Chief”, the New York Times, 14 December 1983), where was the head-
quarters of the Salvadoran Popular Liberation Forces other than his or her
Managua residences or working quarters ? (See also para. 188 below.)

92. In 1982, the New York Times reported, as a result of an extensive
series of interviews with guerrilla leaders and others by one of its most
experienced Latin American correspondents, Alan Riding — whom the
representative of Nicaragua in the Security Council referred to as “the
well-known American correspondent and specialist in Latin American
affairs...” (S/PV.2423, p. 38) and as “an American source well versed in
the region” (ibid., pp. 39-40) — that :

“The five guerrilla groups that are fighting to topple El Salvador’s

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civilian-military junta are headed by Marxists . . . In scores of inter-
views in Mexico and Nicaragua, senior rebel commanders . . .
acknowledge that, in the past, they received arms from Cuba through
Nicaragua, as the Reagan Administration maintains . . . the guerrillas
now concede, Cuba agreed to supply them with the necessary arma-
ments — many of them trans-shipped through Nicaragua — to enable
them to open their ‘final offensive’ on January 10, 1981, just days
before President Reagan took office. The guerrillas say that the supply
of arms from Cuba has since been halted .. . Nicaragua has become a
useful meeting place {for guerrilla commanders], but they also appear
frequently in Mexico and Panama for talks with foreign diplomats
and politicians.” (Alan Riding, “Salvador Rebels : Five-Sided Al-
liance Searching for New, Moderate Image”, the New York Times,
18 March 1982, pp. i, 16.)

93. The Los Angeles Times contains the following account :

“EI Salvador’s leftist guerrilla movement boasted Sunday of its
close ties to Cuba and Nicaragua and declared that it sees its struggle
against the U.S.-backed government in San Salvador as part of a
wider regional conflict .. .

The broadcast, transmitted from a secret location in neighbouring
Nicaragua — whose Marxist-led Sandinista régime has allowed the
Salvadoran guerrillas to establish their headquarters in Managua —
also boasted that the rebels have imported arms ‘through all routes
that we could’ and that ‘we have used all of Central America and other
countries’ for that purpose.

The broadcast appeared to support charges made by the Reagan
Administration that the insurgency is at least encouraged and armed,
if not directed, by the Soviet Union, Cuba and Nicaragua and is aimed
at toppling one moderate government after another throughout the
region.” (“Salvadoran Rebels Brag of Cuban Ties”, Los Angeles
Times, 13 March 1983.)

94. The Washington Post of 14 March 1983 carried a similar dispatch by
Christopher Dickey from San Salvador :

437

“EI Salvador’s guerrillas, in a defiant response to President Rea-
gan’s speech last week urging an expansion of the U.S. commitment to
the government they are fighting, have reaffirmed their determination
to maintain ties in Cuba and Nicaragua.

In a broadcast last night, they also threatened ‘within the context’
an ‘open regionalization’ of their war if the Reagan administration
continued to broaden its support for the faltering Salvadoran gov-
ernment.

In a broadcast over their clandestine Radio Venceremos, the rebels
said : ‘We are and will continue being friends of the people and
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MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

governments of Cuba and Nicaragua, and it does not shame us.
Completely to the contrary, we are proud to maintain relations with
those people — bastions of the anti-imperialist struggle. The Reagan
administration is not one to tell the FMLN [Farabundo Marti
National Liberation Front] who ought to be its friends and who its
enemies.’ The statement made no effort to deny receiving Cuban and
Nicaraguan support as the rebels have in the past . . .

The rebels’ broadcast defended their ‘right’ to get arms anywhere.
While insisting that their main headquarters are inside the country,
along with their radio transmitter they admitted to having ‘important
missions’ outside El Salvador.

‘We have carried out important logistical operations of a clandes-
tine character with which we have armed and munitioned our forces
for along time. We have carried out these operations by all the courses
we could, and we have used all Central America and other countries
for them’, the broadcast said.

As Washington has raised its commitment in the region during the
past month, the Nicaraguans also have reaffirmed their close ties, if
not their concrete material support, with the Salvadoran rebels.

The Sandinista leaders in Managua feel under mounting pressure
from a rebellion that reportedly receives covert funding from Wash-
ington on the basis that such action helps ‘interdict’ arms supplies
to the Salvadoran guerrillas. Speaking March 3 at a funeral for 17
adolescent Sandinistas killed by counterrevolutionaries, Nicaraguan
Commander Bayardo Arce warned that his party’s ‘internationalism
will not bend’ and that ‘while Salvadorans are fighting to win their

Cry

liberty Nicaragua will maintain its solidarity’.

95. The New York Times of 19 May 1985 carried the following report
from E] Salvador under the title “Salvador Puts Guerrillas on the Defen-
sive”:

438

“Two weeks ago, the army ambushed and captured a senior rebel
commander, Nidia Diaz, who was reportedly carrying important
documents. Another senior commander, Napoleon Romero, who says
that he surrendered, reported in an interview last week that the
insurgents were having difficulty drumming up support. (There was a
failed rebel effort last fall to recruit new fighters forcibly.) Speaking
with a Government official present, Mr. Romero added that the
insurgents had also suffered shortages of supplies. Cuba and Nica-
ragua, he contended, provide 70 percent of the guerrillas’ bullets and
explosives. The rebels’ general staff works inside El Salvador, he said,
449  MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

but each of the five military factions maintains offices in Managua.
Mr. Romero’s senior rank in the Popular Liberation Forces has been
confirmed by other rebels, but his observations may have been
colored while in custody, a period of more than a month.”

96. The documents referred to in the foregoing article, seized when
Salvadoran Government forces captured Nidia Diaz, reportedly the most
senior rebel commander ever captured by Government forces, are the
subject of a long analysis in the New York Times of 21 May 1985, page Al 1,
by James Le Moyne. The documents, he writes, “appear to represent
virtually the entire archive of the Revolutionary Workers Party” of which
Miss Diaz is “a top official” and various details “appear to support the
authenticity of the documents”. Among the points indicated in the
documents are:

— Salvadoran rebels consider Nicaragua their closest ally ;

— Salvadoran guerrillas are attending courses in the USSR, Viet Nam and
Bulgaria ;

~ The Sandinistas appeared ready to cut off aid to the Salvadoran rebels at
the end of 1983 and may have done so, at least temporarily ;

— José Napoleon Duarte is the rebels’ “
enemy” ;

— Salvadoran rebel officials, resident in Nicaragua, briefly left Nicaragua
in November 1983 ; at that time, a document notes, and Sandinistas
were about to expel the rebels from Managua and “definitely cut off
supplies” in response to Sandinista fears of attack by the United States.
The Salvadorans sought the intercession of “Fidel” ;

principal and most dangerous

— If the United States were to invade Nicaragua, the Salvadoran rebels
would fight in the Sandinista Army ; in that event, the Nicaraguans
could no longer “be protecting supplies” to the Salvadoran rebels and
most rebel officials living in Managua would have to leave ;

— The Salvadoran guerrillas should stress their desire for unity with the
Nicaraguans, which called for “the most intimate co-ordination in a
concrete manner on all political, military, propaganda and diplomatic
fronts”.

One of the documents, from the five top Salvadoran rebel commanders
to the Sandinista National Directorate of 10 November 1983, calls on the
Directorate to provide the Salvadoran rebels “new and audacious forms of
aid ... We thank you for all the aid you offered and hope it continues

439
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because it is indispensable to defeat whatever form of invasion on Central
American soil.” These admissions of leaders of the Salvadoran insurgency
inculpating Nicaragua, which relate to 1983 and later, must be added to the
extensive and profoundly inculpatory admissions of leaders of the Sal-
vadoran insurgency and of leading Communist States reflected in the
documents captured in 1980 and 1981, from which excerpts are quoted in
paragraph 20 of this appendix.

97. The New York Times of 18 November 1985, page A15, reported a
public, 20-page proposal signed by the most senior commanders of the
Farabundo Marti National Liberation Front, which called for the end of
United States “intervention” in El Salvador, suspension of the Constitu-
tion, formation of a transitional government including the rebels, merger
of the rebel and government armies, and elections. The article con-
cludes :

“In a new twist on previous proposals, the rebel document acknow-
ledges that the guerrillas receive some outside assistance and offers to
stop this if the Government also stops receiving outside aid.”

5. Statements by defectors

98. The evidential weight to accord to the statements of defectors is
open to debate. In its arguments, Nicaragua relied heavily on the affidavit
of Edgar Chamorro, a defector from the contras, on whose affirmations the
Court also relies. Mr. MacMichael, in explaining the basis of his conclu-
sion that. in the period mid-1979 through January 1981, the Nicaraguan
Government had been sending arms to Salvadoran insurgents, gave
weight, among other things, to testimony of defectors (Hearing of 16 Sep-
tember 1985). While elsewhere, Mr. MacMichael questioned the reliability
of testimony of defectors, he readily recognized that a defector in the hands
of United States authorities had nothing to fear if his revelations ran
counter to what the United States might wish him to say (ibid).

99. The testimony of one such defector was submitted to the Court in an
Annex 46 to the Counter-Memorial of the United States. Michael Bolanos
Hunter, a former guerrilla leader and officer of the Nicaraguan Ministry of
the Interior, made a large number of revelations which, if true, show that
the Nicaraguan Government has been engaged in efforts to overturn
neighbouring governments including that of El Salvador. Thus, Mr. Bola-
nos claims in the interview published in the Washington Post which
appears as Annex 46 that:

“Planning and training for the spectacular and damaging raid by
leftist guerrillas in nearby El Salvador on the Salvadoran government

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MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

military air base at Hopango in January 1982 was centered eight miles
from Managua in a Nicaraguan facility under the supervision of a
Cuban adviser. This account, which Bolanos said he learned from the
Cuban adviser, illustrates the extensive support Bolanos said Nica-
ragua gives to the rebels fighting against the U.S.-backed government
in El Salvador.”

100. A more detailed account of Mr. Bolanos’ allegations appeared in
the Washington Post of 19 October 1983, page A15, “Defector : Salvadoran
Rebels Closely Tied to Sandinistas”. That article read as follows :

441

“Top commanders of the leftist rebels fighting the U.S.-backed
government of El Salvador are frequently in Managua, Nicaragua,
where they are in constant touch with Sandinista officials about
questions of arms supply, strategy and tactics, according to a defector
from the Nicaraguan counterintelligence agency.

Miguel Bolanos Hunter, echoing charges long made by the Reagan
administration, said Nicaragua has been providing guns, advice, co-
ordination and training to the guerrillas in El Salvador since they
began trying to overthrow the government there in 1979.

However, ‘a river’ of arms shipments from Cuba and the Soviet
Union through Nicaragua to El Salvador has all but stopped, Bolanos
said, because ‘they now have five times more than what we had against
ousted dictator General Anastasio Somoza’.

Bolanos claimed that Nicaragua has become ‘a new Cuba’ in train-
ing guerrilla forces from throughout Latin America. As a Sandinista
official charged with working against the U.S. Embassy, Bolanos said,
he met visiting guerrilla leaders from Colombia, Argentina, Chile,
Guatemala, Costa Rica and El Salvador, all of which have centers of
operation in Managua.

The Salvadorans have two houses in Managua’s residential Las
Colinas district, one a communications center and the other a ‘safe
house’ for visiting Salvadoran guerrillas and for meetings with Nica-
raguan officials, Bolanos said.

Visiting Salvadorans also use houses belonging to Nicaraguan offi-
cials, and some of the guerrilla chiefs are in Managua more than they
are in El Salvador, he continued. ‘They fly over to the mountains for a
day to boost the morale of the troops and fly out again at night
sometimes’, he said.

Nicaragua is better than Cuba as a training base for guerrillas
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MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

because it has regular commercial air transport and permeable bor-
ders, while Cuba’s island status makes it hard for guerrillas to come
and go without being spotted, he said.

Bolanos said he had fought during the 1979 Sandinista takeover of
Managua with a Salvadoran known as ‘Memo’, who then returned to
El Salvador and became second in command of the guerrilla units
fighting in Morazan province in northeastern El Salvador. Bolanos
said he encountered Memo in Managua last October, ‘and he said they
were using the same methods to get arms as we used in Nicara-
gua’.

These methods, Bolanos continued, included twice-daily airplane
flights to barricaded sections of highway in guerrilla-controlled areas.
Each plane carried 30 to 40 guns, he said, and medicine and ammu-
nition often were dropped by parachute, while other arms came
concealed in trucks or overland on mules.

His cousin, Miguel Guzman Bolanos, is in charge of arms distri-
bution in Nicaragua, Bolanos said, and told him that Luis Carrion, a
member of the Sandinista directorate. had been promised in a 1980
trip to the Soviet Union that the Soviets would provide the Nicara-
guans two AK47 machine guns for every weapon they gave the Sal-
vadoran guerrillas. Those included U.S.-made guns the Sandinistas
obtained from Cuba, which in turn got the guns from Vietnam,
Bolanos said.

Bolanos described the aftermath of the murder in Managua last
April 6 of Salvadoran guerrilla leader Melida Anaya Montes, which
he said occurred across from the house from which Bolanos’ agents
were watching the nearby residence of a U.S. Embassy political offi-
cer. Bolanos’ superior, Lenin Cerna, a director of the Interior Mini-
stry's department of state security, accused the Sandinista party’s
foreign affairs head, Julio Lopez, of having failed to guarantee the
guerrilla leader’s security and of failing to let Cerna know about the
arrangements.

Montes was betrayed to her killers by her cook and one of her
security guards, Bolanos said. and was killed for ‘political reasons —
she was just back from Cuba and wanted to have more dialogue
between the guerrillas and the Salvadoran government’.”

101. A second notable defector is “Comandante Montenegro”, a figure
whose importance Mr. MacMichael acknowledged (Hearing of 16 Sep-
tember 1985). A pertinent article from the New York Times is republished

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in Annex 48 to the United States Counter-Memorial. Arquimedes Cana-
das, known as Commander Montenegro, was one of the most successful
guerrilla leaders of the Salvadoran insurgents, most of the Salvadoran air
force having been destroyed on the ground in an operation led by him. In
an interview in Washington in 1983, Mr. Canadas said that, before 1980,
the insurgency in El Salvador was largely “nationalistic”. Since then, he
contends, Cuba has “directed the activities” of the insurgency, whose
immense destruction of the economic infrastructure of El Salvador he
describes. In respect of the destruction of the Salvadoran air force, he is
quoted as declaring :

“The seven soldiers that carried out the operation were trained for
six months in Havana’, Mr. Canadas said. ‘In October, when I was in
Managua, Villalobas had put me in charge of the mission.’ Joaquin
Villalobas leads the People’s Revolutionary Army.” (“Cuba Directs
Salvador Insurgency, Former Guerrilla Lieutenant Says”, the New
York Times, 28 July 1983, p. A10.)

Explaining his defection after his arrest, he said that he had made known
his dissatisfaction : “that the process was being transformed and mani-
pulated by other interests, the Cubans and Nicaraguans”. The report
continues :

“Mr. Canadas said he grew aware of Cuba’s involvement in mid-
1980 when the Farabundo Marti National Liberation Front was set
up as the umbrella organization for Salvador’s guerrilla groups,
including the People’s Revolutionary Army. Overseeing the front was
a supreme executive body, the Unified Revolutionary Directorate, or
D.R.U., that was formed, he said, at a secret meeting in Havana.

‘From the political and military point of view, all the dectsions that
the D.R.U. took — from the strategic sense, from the military sense —
were done in co-ordination with the Cubans’, he said.

For example, in November 1980, when guerrilla leaders met in
Havana, ‘the military plan for the final offensive in January 81 was
authorized by the Cubans’, he said.”

Mr. Canadas adds :

“By June 1980, Mr. Canadas said, after guerrilla leaders, not
including him, went to Havana, ‘arms began coming in and the
commanders after that meeting did not return to Salvador’. He said
that was then the leaders moved their operations to Nicaragua.

‘They never returned,’ he said ‘with the exception of Villalobas,
who was the last one to leave Salvador February ‘81.

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MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

‘Before that we did not have much arms coming in’, he said.
‘After that the majority of arms was given by Vietnam, American
M-l6s. The arms came from Vietnam to Havana. Havana to
Managua. Managua to Salvador.’ ”

He concludes by reporting the following about meetings in Managua :

“Three months later, in October, he said, the same group of Sal-
vadorans and Cubans met in Managua. ‘We examined everything that
had been done since July,’ he said. ‘We analyzed the taking of Villa el
Rosario in Morazan. It was a village occupied by the guerrillas. It
showed how much we had advanced. As far as the central front, they
indicated that the sabotage of the electric power and telephone lines
was not enough, not sufficient. We had to make greater efforts in these
activities.” ”

102. In 1984, Commander Montenegro gave a further interview, which
was published in the New York Times (and republished in the Counter-
Memorial of the United States, Exhibit 49). It was to this interview, given
“almost two years after his capture”, that Mr. MacMichael addressed
questioning comments at the oral hearings (Hearing of 16 September
1985). The New York Times story contains significant detail and merits
reproduction in extenso :

444

“A Former Salvadoran Rebel Chief Tells of Arms from Nicaragua

A former Salvadoran guerrilla commander who was captured in
Honduras said today that virtually all the arms received by the guer-
rilla units he led came from Nicaragua.

The former guerrilla, Arquimedes Canadas, known in the rebel
movement as Comandante Alejandro Montenegro. also bolstered the
Reagan Administration’s disputed assertions that Salvadoran guer-
rillas have their headquarters in Nicaragua by saying that he went
there secretly in 1981 and met with his top commander, the Nicara-
guan Army Chief of Staff and four Cuban advisers.

Mr. Canadas said in an interview that in 1981 and 1982 guerrilla
units under his command in San Salvador and north of the city
received ‘99.9 per cent of our arms’ from Nicaragua.

This contradicts what several guerrilla commanders. including
Mr. Canadas, said in interviews at their mountain base near Guazapa
volcano in February 1982.

Armed with American-made M-16 rifles, the Salvadoran guerrilla
commanders said their weapons were either captured from Govern-
ment forces, bought on the black market or purchased directly from
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445

MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

Salvadoran Government officers. Only one admitted having gone to
Nicaragua and none said they had been to Cuba.

Meetings in Cuba and Managua

But today, Mr. Montenegro said through an interpreter that he had
been under orders from his guerrilla commander in chief to give false
information in 1982 by saying that the arms were captured or pur-
chased when in fact they had come from Managua by truck across
Honduras into El Salvador.

In a three-hour interview Tuesday night, Mr. Canadas, who was
captured in August 1982 by Honduran Army units in Tegucigalpa
while he was en route to Nicaragua, said he had gone to Cuba once
and to Managua twice to meet with Joaquin Villalobas, commander in
chief of the People’s Revolutionary Army.

The P.R.A. is the largest of five guerrilla forces linked together
under the Farabundo Marti Liberation Front.

Monthly Arms Shipments

In the interview, Mr. Canadas said that in 1981 and 1982 urban
commandos and 200 guerrillas under his command in Guazapa
received monthly arms shipments from Nicaragua that were trucked
across Honduras, hidden in false panels and floors. He said the trucks
moved through the normal customs checkpoint of Las Manos at the
Nicaraguan border with Honduras and the checkpoint of Amantillo
at the Honduran border with El Salvador.

Each truck, he said, carried roughly 25 to 30 rifles and about 7,000
cartridges of ammunition. The rifles, he said were American-made
M-16s captured in Vietnam and FAL rifles formerly used by the
Nicaraguan Army under Somoza.

Sometimes the trucks arrived without rifles and carried just ammu-
nition and in that case, he said, a typical load would include up to
15,000 cartridges, Soviet-made grenades, and explosives like TNT for
sabotage attacks against Government installations.

Since the time of his capture, American officials have said that
Honduran authorities put on major efforts to halt the relatively open
flow of arms traffic on Honduran highways. American military offi-
cials have now contended that the outside arms flow comes from
Nicaragua on nighttime air drops or in canoes or power boats oper-
ating in the Pacific coastal waters between Nicaragua and El Salva-
dor.

Mr. Canadas said his one visit to the Salvadoran guerrilla command
456  MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

post in Nicaragua came in October 1981 when he was summoned by
Mr. Villalobas, regarded by Salvadoran Army officers as the shrew-
dest and most important guerrilla commander.

‘T don’t know exactly where it was because I was taken there
blindfolded,’ he said. ‘We went perhaps 15 minutes on the highway
south of Managua where we changed vehicles. Then we went another
10 or 15 minutes. We came to a very large private home with a very
large garden with metal benches.’

‘To the right of the main entrances was an office where Villalobas
worked’, he went on. ‘Further in the house was a large room where the
commanders of the other guerrilla groups met and where the Cubans
and Sandinistas came. There were four Cubans there.’

He added : ‘We had one meeting about two hours long one night
with the Sandinista Army Chief of Staff Joaquin Cuadra.’

‘Cuadra spoke almost entirely about the Nicaraguan situation. And
they were interested to know what kind of rebellion was taking place
in El Salvador, a peasant rebellion or all elements of the population.
In Nicaragua, they said, it had been all elements. But the meeting was
not to discuss aid. By that time, aid had reached its peak.’” (“A
Former Salvadoran Rebel Chief Tells of Arms from Nicaragua”, the
New York Times, \2 July 1984.)

103. A comparison of the text of this interview with Mr. MacMichael’s
comments on it fails to shake Commander Montenegro’s claims. First,
Mr. MacMichael confirms the truth of the capture of Montenegro in the
circumstances recounted in the press. Second, Mr. MacMichael says that,
in 1982, he had access to the results of Montenegro’s initial interrogations.
“At that time,” Mr. MacMichael says, “he made no mention of arms.” This
is Mr. MacMichael, speaking without notes, in 1985. confidently recalling
that a report he read three years before “made no mention of arms”
(Hearing of 16 September 1985). (Mr. MacMichael could not have
refreshed his three-year old recollection by reference, before the hearing, to
an account of Montenegro’s debriefing or his notes thereon, since his
retention of any such papers would be illegal.) Rather, Mr. MacMichael
recalled, “much of the object of his interrogation had to do with his
leadership of the raid” on the Salvadoran airfield (ibid.). Mr. MacMichael
confirms that, before his capture, Montenegro claimed that the guerrillas’
arms were purchased or captured (as Montenegro explained in his pub-
lished interviews), and Mr. MacMichael observes that his statement made
two years later came after a time during which he had been “in the hands of
very skilled interrogators” (Hearing of 16 September 1985). Mr. Mac-
Michael says he is not able to judge which story is correct. But he does

446
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acknowledge that, in American hands, Montenegro could speak freely with
no fear of retribution. Could the same be said of what he dared say when a
guerrilla commander in the field ?

104. A third defector whose allegations have recently been published is
Alvaro José Baldizon Aviles, referred to in paragraph 28 of this Appendix.
His contentions largely concern allegations of violations of human rights
in Nicaragua by Nicaraguan forces and by agents of the Nicaraguan
Government. Some of the objects of those alleged assassinations and other
atrocities were victimized in the course of hostilities (such as dissident
Indians). Of pertinence to the question of support by the Nicaraguan
Government of foreign insurgency (they relate to Costa Rica rather than El
Salvador) are the following passages of Baldizon’s statement :

“In March 1983, a group of approximately 45 members of the Costa
Rican Popular Vanguard Party (PVP) were training for guerrilla
warfare on the property of the African Oil Palm Cultivation Project
near El Castillo in southern Nicaragua . . . The chief of the Costa
Ricans, ‘Ramiro’, was approximately 40 years old, was about 5’ 9”
tall, had white skin, black hair, and wore a full beard. He was always
accompanied by a First Lieutenant of the Nicaraguan Army... The
rest of the Costa Ricans were located about 12 kilometers away on a
hill called El Bambu on the San Juan River, in the Costa Rican border
area. Their activities were controlled from the headquarters by two-
way radio communications.

The Costa Ricans, who justified their presence in El Castillo by
claiming to be workers on the African Palm Project and members of a
military reserve battalion comprised of project workers, were there for
six months. They were then to return to Costa Rica and be replaced by
another group for another six months. Some of the troops carried
FAL rifles with telescopic sights and were being trained as snipers to
kill the San Juan River boatmen who transport and supply the Nica-
raguan anti-Sandinista insurgents. The Sandinistas were conducting
this training because they reasoned that there are only a limited
number of boatmen who know the river well and they would be hard
for the anti-Sandinistas to replace.” (Inside the Sandinista Régime : A
Special Investigator’s Perspective, Department of State, 1985, pp. 25-
26.)

105. Revelations by a fourth defector, and from captured insurgent
documentation, are described in still another article in the Washington
Post, “New Sources Describe Aid to Salvadoran Rebels ; Defector, Cap-
tured Documents Indicate Nicaragua Has Withdrawn Some Support”, of

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MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

8 June 1985, page Al2 (the documentation apparently being the same
papers captured with Nidia Diaz described in paras. 95-96 above) :

448

“Nicaragua, Cuba and other leftist countries have played the lead-
ing roles in arming and training El Salvador’s left-wing guerrillas
since 1980 but gradually have curbed their support since 1983,
according to information gleaned from a recent defector from the
rebels, a U.S. study of captured weapons and a stash of captured rebel
documents.

U.S. pressure has led Nicaragua’s Sandinista government to with-
draw some of its backing for the Salvadoran rebels on several occa-
sions, both by suspending ammunition shipments and by restricting
the activities in Managua of the rebels’ Farabundo Marti National
Liberation Front, according to these sources.

For example, captured rebel notes and correspondence indicate
that Nicaragua cut back assistance following the U.S. invasion of
Grenada in October 1983 in an action that drew strong protests from
the Salvadoran guerrillas.

It was unclear from the documents and other information how
much aid Nicaragua has been contributing in recent months, but
ammunition shipments appear to have dropped substantially. The
defector, a former political and military commander, said he was
aware of only two deliveries this year.

The newly available sources offer a broad portrayal of the history of
external support for the Salvadoran rebel front, known by the Spanish
initials FMLN. While some have questioned the reliability of the
defector's account and of the documents, the new data tended to
confirm descriptions provided for the past two years by U.S. and
Salvadoran officials.

‘The embassy’s position is, damn it, we told you so’, a senior U.S.
official said.

The government and the U.S. Embassy said the documents were
seized April 18 with prominent rebel commander Nidia Diaz, who
was a member of the guerrilla delegation at the peace talks in the town
of La Palma last October. Salvadoran authorities have refused her
requests to meet with reporters since her capture.

The FMLN has charged that the documents are forgeries.

According to the portrayal of support for the guerrillas gleaned
from the sources, leftist nations initially contributed 6,000 to 7,000
automatic rifles plus mortars and grenade launchers from 1980 to
early 1983. These arms are described as having arrived from Nicara-
gua by clandestine means, mostly in small planes or overland through
Honduras.
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MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

Cuba, the Soviet Union, Vietnam, Bulgaria and East Germany have
trained a steady stream of guerrilla leaders in military and political
work, by this collective account. The FMLN’s general command met
regularly in Managua in the early 19805.

Since roughly two years ago, however, foreign military assistance
has consisted primarily of ammunition and explosives, and it increas-
ingly has arrived by sea.

‘Most people agree that the big arms imports stopped in 1982’, the
senior U.S. official said.

Shipments appear to have dropped off for three reasons : because
they were not needed, because of U.S. pressure on Nicaragua and
because of the Honduran armed forces’ breakup of much of the
FMLN’s clandestine support network in Honduras during 1982 and
1983.

The Sandinistas also began to pull back the welcome mat in Nica-
ragua in mid-1983, according to the defector. At that time, the
FMLN’s general command was forced to transfer its meetings to
rebel-dominated territory in El Salvador after Nicaragua was embar-
rassed by the murder of a senior Salvadoran rebel commander in
Managua in a factional dispute, he said.

The issue of Nicaraguan and other outside aid for the Salvadoran
rebels has been a central feature of the U.S. debate over Central
America. The administration repeatedly has asserted that Nicaragua
was ‘exporting revolution’, and it used this charge specifically to
justify organization and financing of the rebel force now fighting to
overthrow the revolutionary Sandinista government in Managua.

Critics of U.S. policy have said the administration lacked adequate
proof of a steady, substantial flow of military aid to the guerrillas
since their failed ‘final offensive’ in January 1981. Despite a high-
priority effort, no arms shipment in progress from Nicaragua has been
intercepted.

Salvadoran rebel leaders and Nicaraguan officials have offered
cautious and sometimes conflicting responses to the U.S. charges. The
Salvadoran rebels have admitted, for instance, that they smuggle
weapons and ammunition via Nicaragua but have said they obtained
the arms on the international market and not from the Sandinista
government. Nicaragua has acknowledged giving diplomatic and
moral support to the guerrillas while denying that it was shipping
ammunition.

The defector — whose real name is NapoleOn Romero, but who
often is known by his nom de guerre, Miguel Castellanos — said that
about 70 percent of the FMLN’s automatic rifles came from abroad
and that the rest were captured from the Salvadoran armed forces.
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450

MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

While some of the foreign-supplied weapons were purchased on the
international market, he said, most were supplied by friendly gov-
ernments.

Romero, 35, was commander of the San Salvador front for the
Popular Liberation Forces, one of the two largest of the five guerrilla
forces in the FMLN, until his defection in early April. He said in a
90-minute interview that he had become disillusioned with the revo-
lutionary movement during the past year because of its violence and
lack of accomplishments.

Romero was held by the military for several weeks before being
made available to reporters. He is now said to be living under the
protection of the military.

The guerrilla organization has charged that Romero was tortured
while in custody and is now lying.

As a defector, Romero has an interest in portraying the FMLN ina
bad light, but his articulate responses seemed frank during the inter-
view. It was conducted in an office of the armed forces’ press com-
mittee. A Salvadoran major was present for only brief portions of the
interview.

Romero’s description of the source of the weapons was bolstered by
a U.S. military intelligence survey of serial numbers of U.S.-made
M16 automatic rifles captured from the guerrillas. The survey’s
results, made available by U.S. officials, showed that just under
25 percent of the rifles originally were provided to the Salvadoran
Army and thus presumably had been captured by the rebels. Of the
remaining rifles, the bulk were said to have been left in Vietnam by
evacuating U.S. troops in 1975.

Romero said he believed Cuba was responsible for coordinating
much of the international support for the Salvadoran guerrillas.

‘Nicaragua is just the bridge for everything coming from Cuba’, he
said.

The defector also noted several areas in which leftist countries have
not been involved much with the FMLN. For instance, he said that he
believed no Cuban or Nicaraguan official advisers or instructors had
come to El Salvador to oversee the guerrillas’ fight directly.

In addition, while each of the five factions in the FMLN has its own
radio transmitter for direct communications with its representative in
Managua, Romero said, the insurgency is not ‘directed’ from Nica-
ragua on a day-to-day basis as the U.S. government has suggested.
FMLN commanders in the field plot their own strategy and tactics,
although they often solicit advice from Nicaragua and Cuba, he
said.

The captured documents that have been made public so far show
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MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

the FMLN’s dependence on Nicaraguan support mainly by revealing
the level of concern on the part of the guerrilla organization in late
1983, when the Sandinistas were pulling back their support. Minutes
of meetings, briefing papers and letters show the Salvadoran guerrilla
leadership pressing hard for continued backing.

A two-page list of names of FMLN leaders and foreign training
courses that they had undergone or were scheduled to undergo also
showed the involvement of a wide range of Soviet Bloc countries in
seeking to build a cadre of Salvadoran revolutionary leaders.”

106. “Revolution Beyond Our Borders” contains further details about
Mr. Romero’s revelations, which throw light on the continuing supply by
Nicaragua of arms and supplies to Salvadoran insurgents in 1983 :

45]

“The flow of supplies from Nicaragua continued at high levels into
1983. According to Napoleon Romero, formerly the third-ranking
member of the largest guerrilla faction in the FMLN who defected in
April 1985, his group was receiving up to 50 tons of material every
3 months from Nicaragua before the reduction in deliveries after the
U.S.-Caribbean action in Grenada. Romero gave a detailed descrip-
tion of just how the logistics network operated. The first ‘bridge’
implemented for infiltration was an air delivery system. Romero
stated that arms would leave Nicaragua, from the area of the Cosi-
guina Peninsula, for delivery to the coast of San Vicente Department
in El Salvador. He described the first such delivery as consisting of
300 weapons infiltrated at the end of 1980 in preparation for the
January 1981 ‘final offensive’. Romero claimed that air routes were
suspended when the Salvadoran Armed Forces succeeded in captur-
ing a large quantity of arms that came by air from Nicaragua. It was at
this point in 1981, he continued, that seaborne delivery became — as it
continues to be — the primary method of infiltration.

Romero described the sea route as departing from Nicaragua’s
Chinandega Department or islands (like La Concha) off its coast,
crossing the Gulf of Fonseca, and arriving at the coast of El Salvador’s
Usulutan Department. Thousands of rounds of ammunition translate
into relatively small numbers of boxes, easily transported by man,
animal, or vehicle over multiple routes. The lack of constant govern-
ment presence, and the relatively short distances from the coastline to
all major guerrilla fronts, reduce the difficulties of providing the
guerrillas with certain types of logistics support from Nicaragua.”
(Op. cit., p. 11.)
462 MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

107. Drawing on statements of Mr. Romero and other defectors, “Re-
volution Beyond Our Borders” also provides specific data about the modali-
ties of continuing delivery, as late as 1985, of arms and munitions from
Nicaragua to Salvador insurgents, largely by boat and canoe to the Sal-
vadoran coastline, where provisions are picked up and transported by
animals, persons and small vehicles. It maintains that :

“Napoleon Romero, the former FPL commander, estimated that
this supply infrastructure was able to provide some 20.000-30,000
rounds of ammunition per month for the FPL alone. Some 3,000
guerrillas could be provided 100 rounds each (the usual load carried
by a combatant), or 1,500 guerrillas could be provided with 200 rounds
for a major battle. Such a delivery would weigh about 1,300 pounds
and be packaged in about 34 metal boxes which could be easily
transported by 15-20 men, six pack animals, or one small pickup
truck. Given El Salvador’s small size and the short distances involved.
material entering along the Usulutan coastline could arrive at any of
the guerrilla fronts in about 1 week under optimal conditions.” (/bid.,
p. II. note 26.)

6. Statements by diplomats of uninvolved countries

108. To the foregoing body of admissions and charges providing evi-
dence of Nicaraguan Government support of foreign insurgency, particu-
larly in El Salvador, there may be added the opinion of diplomats stationed
in the capital of Nicaragua. When surveyed by the resident correspondent
of the New York Times in 1984, the following report resulted :

“Western European and Latin American diplomats here say the
Nicaraguan Government ts continuing to send military equipment to
the Salvadoran insurgents and to operate training camps for them
inside Nicaragua.

The United States has been making such charges since 1980. Nica-
ragua, while not explicitly denying all of the charges, says its support
is ‘moral and political’.

The diplomats, including some from countries that have criticized
United States policies in Central America, said military support to the
Salvadoran rebels had dropped over the last year. but remained sub-
stantial.

No Nicaraguan Comment

At a news conference last week, President Reagan said Nicaragua
was ‘exporting revolution to El Salvador. its neighbor. and is helping,
supporting and arming and training the guerrillas that are trying to
overthrow a duly elected government’.

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MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

A Salvadoran rebel spokesman in Costa Rica, Jorge Villacorta, said
in a telephone interview that the guerrillas had bought weapons on the
black market and from organized crime figures in the United States.
He said the arms had been delivered by way of Nicaragua as well as
through Guatemala, Costa Rica and other countries.

“We reject the allegation that Nicaragua is providing us with arms’,
he said.

But Western diplomats appear to be convinced of the general
accuracy of American intelligence reports on the military ties between
Nicaragua and the Salvadoran rebels.

‘I believe support for the revolutionaries in El Salvador ts continu-
ing and that it is very important to the Sandinistas’, a Western
European diplomat said. ‘The Sandinistas fear that if the guerrilla
movement weakens in El Salvador, their own régime will become
more isolated and more vulnerable to attack.’

Salvadoran rebel leaders have insisted that they receive only small
amounts of aid from Nicaragua, mainly communications equipment,
medicine and some ammunition. They say most supplies are bought
on the black market or captured from Salvadoran Government
troops.

A United States Embassy official in San Salvador said today that
the rebels’ ‘pressing need is not for rifles and small arms’.

Two weeks ago, Fred C. Iklé, Under-Secretary of Defense for
Policy, said that roughly half of the arms used by the rebels were
United States supplied arms taken from Salvadoran Government
troops. Later the Pentagon said the estimate was based on a limited
survey in a few rebel areas. Elsewhere, the Pentagon said, the figure is
closer to a third to a quarter.

Sources of Most Rebel Supplies

Mr. Iklé also said the United States believed that 80 per cent of the
ammunition and explosives used by the rebels are supplied from Cuba
and the Soviet Union through Nicaragua.

Administration officials in Washington said today that small
planes and boats were transporting supplies from Nicaragua at night.
The officials said that command and control of guerrilla operations
continued in Managua. In Mexico City, a member of the rebel move-
ment said little of the command structure remained in Nicaragua.

‘All the commanders are now living in Morazan’, he said, referring
to a province in eastern El Salvador.
464

MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

Several months ago, at Nicaragua’s suggestion, a number of Sal-
vadoran civilians affiliated with the rebel cause left Nicaragua in what
was described as an effort to remove a possible pretext for American-
backed military intervention. However, rebel leaders are believed to
visit Managua regularly. Visiting members of Congress have met here
with guerrilla commanders, including Ana Guadalupe Martinez of
the People’s Revolutionary Army.

Western intelligence reports suggest that aid no longer moves
overland through Honduras, but is flown daily by light planes to
makeshift airstrips in guerrilla-held areas of El Salvador.

Some supporters of the Nicaraguan Government have expressed
doubts about these allegations and challenge the United States to
produce evidence. Diplomats acknowledge that they have seen no
proof, but say they believe that military ties between Nicaragua and
the rebels remain strong.

‘Maybe not everything the Americans say is true, but logic and
commonsense support their case’, said a Hispanic diplomat. ‘The
Sandinistas’ ideology dictates that they help other countries adopt
political systems like their own.

Slogans supporting the Salvadoran rebel cause are often chanted at
Nicaraguan rallies, and the press carries almost daily reports of rebel
victories and of atrocities attributed to the Salvadoran armed
forces.

Rebels’ Communications Posts

American officials are said to believe that at least four of the five
principal rebel groups in El Salvador maintain telecommunications
posts in Nicaragua to transmit instructions to their forces inside El
Salvador. They also believe that some Salvadoran demolition teams
have been trained in Nicaragua.” (Stephen Kinzer, “Salvador Rebels
Still Said to Get Nicaraguan Aid”, the New York Times, 11 April 1984,

pp. 1, 8.)

This article appears as Annex 49 to the United States Counter-Memorial.
Nicaragua introduced no evidence in specific refutation of it.

7. Statements by the Government of El Salvador accusing Nicaragua of
assisting insurgency in El Salvador

109. Among the curious contentions of Nicaragua in this case is the
claim, found in the Affidavit of Miguel D’Escoto Brockmann, Foreign
Minister of Nicaragua, that :

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MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

“It is interesting that only the government of the United States
makes these allegations, and not the government of EI Salvador,
which is the supposed victim of the alleged arms trafficking. Full
diplomatic relations exist between Nicaragua and EI Salvador. Yet, El
Salvador has never — not once — lodged a protest with my government
accusing it of complicity in or responsibility for any traffic in arms or
other military supplies to rebel groups in that country.”

110. Accusations by El Salvador may not usually have taken the form of
diplomatic démarches, but accusations, official and unofficial, there have
been. Thus, in January 1981, during the “final offensive”, President José
Napoleon Duarte both denounced Nicaraguan and Cuban intervention
and called for the assistance of the United States in meeting it. According
to the Washington Post :

“Duarte has denounced alleged Cuban and Nicaraguan interven-
tion in El Salvador several times during the last few days . . . He
has also called on U.S. President-elect Ronald Reagan to ‘export
democracy’ to El Salvador and the world and to increase aid to the
government here, particularly economic aid.” (“Fighting Subsides
in Et Salvador ; 3 Journalists Hurt”, the Washington Post, 13 January
1981, p. 1.)

111. According to an Agence France-Presse report of 17 January 1981
(FBIS, Central America, 17 January 1981, p. 5):

455

“Salvadoran Government junta President José Napoleon Duarte
today added to the charges of Nicaraguan interference in the Salva-
doran conflict by displaying a box of rifle cartridges which, he said,
is part of the ammunition that Venezuela gave the Sandinistas to
help them overthrow Somoza ...

[T]he President . . . referred to the case of cartridges which, he
explained, before being found in the hands of the Salvadoran guer-
rillas was in the hands of the Sandinist National Liberation Front.
The president also referred to the widely commented landing of
foreign fighters on the Salvadoran coast .. .

[President Duarte said that] ‘the boats seized are of a type that
cannot sail on the open seas. With these boats one can only sail across
the Gulf of Fonseca’. The Gulf of Fonseca lies in eastern Salvador, on
the Pacific Ocean, and its waters touch the coasts of both Honduras
and Nicaragua.”
466  MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

112. According to the San Salvador Domestic Service of 28 January
1981 (FBIS, Central America, 29 January 1981, p. 8), a Nicaraguan-
registered Cessna aircraft dropped FAL rifles to a group of guerrillas
waiting below. Shortly afterwards, the aircraft was forced to land, injuring
its crew, who were rescued by guerrillas and taken to the guerrilla camp.
The Salvadoran Army, supported by helicopters, found the camp and
surrounded it, and won the ensuing battle. The Nicaraguan Cessna was
found destroyed.

113. In the United Nations General Assembly on 12 October 1981, the
representative of El Salvador set out President Duarte’s response to and
repudiation of the proposals of the Salvadoran guerrillas which had been
placed before the General Assembly by Commander Ortega (see paras.
44-45 of this appendix). President Duarte protested “the coarse, abusive
and clearly interventionist manner in which Mr. Ortega approached the
internal situation in El Salvador” (A/36/PV.33, p. 112). President Duarte
was quoted in the General Assembly as condemning the “dishonour-
able ... mission” of the Sandinist Government in lending its territory “as
the base for arms supply, refuge and support for the armed groups and asa
sounding board for their campaigns of false propaganda” (ibid. p. 113).
Observing that the present Government of Nicaragua had nothing to teach
El Salvador, President Duarte maintained that Nicaragua’s effort to “turn
itself into the arbiter of another country’s pacification” while promoting
its own “bellicose psychosis” was “a true offence to the conscience of
civilized, peace-loving countries . . .”.

114. On 25 March 1982, El Salvador addressed a letter to the President
of the Security Council (S/14727), which drew attention to “the vital need
for other States, Nicaragua in particular. to follow El Salvador’s example”
in adhering to the principle of non-interference. It claimed that Nicaragua
was the major cause of increased tenston in the area and observed that the
so-called “solidarity” of certain ideological movements could not justify
overthrowing the fundamental principles of international law.

115. In the United Nations Security Council on 30 March 1982, the
representative of El Salvador, speaking to one of the ten complaints of
aggression made to the Council by Nicaragua against the United States, all
of which allege essentially what Nicaragua alleges in the current case
before this Court, protested that :

“ET Salvador has been the victim of acts of intervention, against
the will of the Salvadoran Government, which constitute aggressive
behaviour : but in spite of those interventionist and aggressive acts
against our sovereignty, in order to maintain friendly relations with

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the countries that promote or implement those acts, we have asked
that they put a halt to them but have not presented a formal complaint
before the competent international bodies.” (S/PV.2341, pp. 41-
42.)

116. On 28 March 1983, the Foreign Minister of El Salvador, Fidel
Chavez Mena, charged before the United Nations Security Council that El
Salvador was

“the victim of — among other belligerent and hostile acts — the
continued transfer of weapons, the last link in the chain being our
neighbour republic Nicaragua, which . . . does not practice, and
respects even less, the principle of non-interference in the internal
affairs of Central American States”.

He charged :

“Everyone is aware that the armed groups operating in El Salvador
have their central headquarters in Nicaragua. It is there that decisions
are made and logistic support is channelled ~ logistic support without
which it would be impossible for them to continue in their struggle
and without which they would have joined in the democratic process.”
(S/PV.2425, 28 March 1983, p. 7.)

117. In November 1983, Ambassador Rosales Rivera, representative of
E] Salvador to the United Nations, protested before the General Assembly
that Nicaragua was following “an interventionist policy”. He declared :

“my country has been the victim, among other warlike and hostile
acts, of a continuing traffic in weapons, with Nicaragua as the last link
in the chain. From there orders are sent to armed groups of the
extreme left operating in El Salvador. These groups have their head-
quarters in Nicaragua and logistic support is channelled through
them.” (A/38/PV.49, 10 November 1983, p. 17.)

He quoted pages of detailed data in support of that charge. He added :

“It would be insane for a Government attacked from outside —
such as mine — to remain passive in the face of those whose foreign
policy is reflected in official actions and statements with regard to
propaganda, training camps, logistics and training of guerrilla groups,
as is the case with Nicaragua. We have reached the point where the
Co-ordinator of the Sandinist Junta, Commander Ortega, claimed to
represent the guerrillas in El Salvador in international forums, includ-
ing this one.

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Our country was mentioned in Nicaragua’s statement yesterday
morning, and we should like to register our protest at the fact that the
Sandinist Junta of Nicaragua has arrogated to itself the right to speak
of El Salvador. The fact that a small group of leftist radicals, trying in
vain to seize power by violence, has authorized the Sandinist Junta of
Nicaragua to act as its spokesman does not in any way mean that
Nicaragua is legally entitled to express opinions on behalf of the
people of El Salvador. The people of El Salvador is represented only
by its Government, which was freely chosen by means of suffrage on
28 March 1982 in an election witnessed by the entire world, thanks to
an extensive press coverage and the presence of many international
observers who were invited for that purpose.

Nicaragua’s aggression has therefore gone hand in hand with a
violation of the principle of non-intervention. In the face of these
clearly aggressive and hostile acts that violate the rights of the people.
we cannot fail to repeat our denunciation and condemnation. As long
as the Sandinist régime maintains as a pillar of its policy the enthrone-
ment of Marxist-Leninism as a system which should be instituted
throughout Central America, seeking to impose it first on El Salvador
and then on neighbouring countries, it will be impossible to maintain
peaceful coexistence and a minimum of harmony in the region. Once
the destabilizing factor has been removed, peace and normalcy will
return to the area.” (A/38/PV.49, pp. 23, 24-25.)

118. El Salvador President Alvaro Magaña Borga, in an interview with
the Spanish newspaper ABC (published in the United States Counter-
Memorial, Exhibit 51), had the following exchange in December 1983 :

458

“Question :] Mr. President, how do the guerrillas supply them-
selves and where from ?

{Answer :] Be sure of this : from Nicaragua, and only from Nicara-
gua. In the past two weeks we have detected 68 incursions by aircraft
which parachuted equipment, weapons and ammunition into the
Morazan area, which is where the guerrillas are most concen-
trated...

Q. : [would remind you, Mr. President, that one of Lenin’s maxims
was : ‘Against bodies, violence ; against souls, lies.’

A, : Well, they have learned the lesson very well. While Nicaragua
draws the world’s attention by claiming for the past two years that it 1s
about to be invaded, they have not ceased for one moment to invade
our country. There is only one point of departure for the armed
subversion, Nicaragua.”
469  MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

119. In renewed debate on Nicaragua’s complaints in the Security
Council on 3 April 1984, the representative of El Salvador declared :

“only last month the Government of El Salvador sent various protest
notes to Managua rejecting the disobliging statements made with
regard to the elections in our country by the President of the Council
of State and by the Minister of Defence. We made a formal protest
with regard to the statements of support for the Salvadoran guerrilla
activities made by Commander Henry Ruiz. The recent statement by
the Nicaraguan Minister of Defence with regard to the laying of
sound-activated mines in the region’s ports, from Panama to
Guatemala, by members of Central American movements has also
been met with a protest from our Government, which has once
again denounced the close linkage in co-ordination and logistics that
exists between guerrilla groups and the Sandinist Government.”
(S/PV.2528, p. 61.)

120. José Napoleon Duarte was elected President of El Salvador in May
1984. In his inaugural address of 1 June, published in the United States
Counter-Memorial, Exhibit 52, page 6, President Duarte declared :

“Salvadorans, we must bravely, frankly, and realistically acknow-
ledge the fact that our homeland is immersed in an armed conflict
that affects each and every one of us ; that this armed conflict has
gone beyond our borders and has become a focal point in the struggle
between the big world power blocs. With the aid of Marxist govern-
ments like Nicaragua, Cuba and the Soviet Union, an army has been
trained and armed and has invaded our homeland. Its actions are
directed from abroad. Armed with the most sophisticated weapons,
the Marxist forces harass our Armed Forces and constantly carry out
actions intended to destroy our economy, with the loss of countless
human lives and the suffering of hundreds of thousands of Salva-
dorans.”

121. Ata press conference of 30 July 1984 (the full text of which is found
re-printed as Exhibit 53 of the United States Counter-Memorial), Presi-
dent Duarte began by recounting a trip to Europe in which he had been
preceded by President Ortega. President Duarte charged that in Europe
President Ortega had acknowledged that “he (Ortega) had helped, is
helping and will continue to help the Salvadoran guerrillas”. Thus Presi-
dent Ortega revealed that “it is he who is openly and directly attacking and
intervening in our country” (p. 2). President Duarte continued : “I ordered
that we lodge a formal protest with Nicaragua in this regard.” (Ibid.)
Furthermore, President Duarte recounts, he ordered that studies be made
of submitting a complaint to the International Court of Justice about
Nicaragua’s intervention in El Salvador’s affairs. President Duarte con-

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tinued that : “We would not be able to survive without U.S. aid...” He
stated that,

“always provided it stopped its support for the guerrillas, stopped
using subversion and exporting revolution to the rest of Central
America, I would be willing to sign a treaty not only with Nicaragua
but with any other country in the world which shows respect, as we
do...” (United States Counter-Memorial, Exhibit 53, p. 3).

Duarte continued, in response to other questions :

“What I have said, from the Salvadoran standpoint, is that we have
a problem of aggression by a nation called Nicaragua against El Sal-
vador, that these gentlemen are sending in weapons, training people.
transporting bullets and what not, and bringing all of that to El Salva-
dor. I said that at this very minute they are using fishing boats as a dis-
guise and are introducing weapons into El Salvador in boats at night.

In view of this situation, El Salvador must stop this . .. thus, the
contras are creating a sort of barrier that prevents the Nicaraguans
from continuing to send arms to El Salvador by land. What they have
done instead is to send them by sea, and they are now getting them in
through Monte Cristo, El Coco, and EI Espino. This is because they
cannot do so overland, because the contras are in those areas, in one
way or another.

Therefore, you can see that these are two different concepts. My
position is coherent. I defend my country. J have said that I do not
want any weapons, ammunition, or supplies of any kind to reach my
country, to support guerrillas in my homeland, and that I am against
anything that supports this type of action, either here or there. That is
why I have told the Nicaraguans that I think El Salvador has always
respected them and that, therefore, they must respect El Salvador.”
(Pp. 4-5.)

Thereafter, the following exchange occurred :

“Roberto Block, from Reuter News Agency. Mr. President : You
have talked many times about Nicaragua’s supply of weapons to the
Salvadoran guerrillas, and you appeared at the Congress... to ask for
weapons, for assistance, and to ask that the contras in Nicaragua cut
off this supply. I would like to know exactly what tangible evidence
exists that Nicaragua is sending weapons to El Salvador. If such proof
exists, why did you ask that statements be sent to The Hague, instead
of the tangible evidence on these arms supplies from Nicaragua ?

[Duarte]... When a head of state confesses that he is helping
guerrillas, he is helping the guerrillas. Therefore, what better evidence
exists than a categorical statement by a head of state ? Nothing is
more powerful than the confession he made.

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I said all of this to explain that the evidence does exist. There is
evidence on all of the beaches. An overwhelming number of peasants
claim that they have seen people enter with weapons, which they load
on horses, and leave for the mountains. What you want is to see them
for yourself. Well, I invite you to go to the beaches and watch, at night,
how they unload the weapons. I am going to give you a specific place,
Montecristo Island. They are constantly unloading weapons there.
Caches have been found there. We are going to submit all of this
evidence to the court at The Hague when the time comes.

[Block] After $50 million . . . to the contras by the United States,
you are saying that the weapons are still arriving . . .

[Duarte — interrupting] . .. ] have never said that assistance should
be supplied to the contras so that they could invade Nicaragua’s
territory. I never said that. I said that someone is doing that, and that
what it does is prevent the weapons from reaching El Salvador. This is
what I have said, and I reiterate it. 1 am not opposed to the prevention
of weapons entering El Salvador. If by some action in the world, these
weapons are prevented from entering El Salvador, it is welcome,
because this will rid us of the constant problem of so many deaths,
murders, and problems in our homeland. This is what must be pre-
vented.

They have been unable to stop the flow of weapons. Doesn’t this
show you that the problem is much more profound than we imagine ?
How and from where do those weapons get here ? The scheme they use
is so sophisticated that it obviously renders the problem much more
serious.” (P. 5.)

122. The foregoing exchange illustrates how genuine is the conviction of
El Salvador that Nicaragua continues to send arms to fuel the Salvadoran
insurgency ; it provides detail in support of those charges, and a sense of
how important such activity of Nicaragua is to the insurgency ; it demon-
strates why it is that El Salvador welcomes the pressures of the contras
upon Nicaragua ; and it suggests that, had El Salvador’s Declaration of
Intervention been appropriately treated, rather than being treated in the
extraordinary ways in which it was treated, El Salvador might well have
taken part in the current case — a participation which could have trans-
formed it.

123. Nor have the protests of El Salvador, made in the United Nations
and through the media, eschewed bilateral diplomatic channels. On 20 July
1984, the Acting Minister of Foreign Relations of El Salvador sent the
following note of protest to the Nicaraguan Foreign Minister :

“T have the honor to direct myself to Your Excellency to present in
the name of my Government the most vigorous protest over the

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MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

statements made to the information media of the Federal Republic of
Germany on the twelfth of this month by the coordinator of the
revolutionary Junta of Government of Nicaragua, Daniel Ortega
Saavedra, in which he publicly recognizes and reiterates the uncon-
ditional support of your Government to the guerrilla groups of the
FDR/FMLN.

As Your Excellency is aware, the Salvadoran people have suffered
for several years an aggression armed, financed, and directed in obe-
dience to the designs of an extracontinental power, through interme-
diaries which, like Cuba and Nicaragua, provide political, logistical.
and material support to the groups which plan to install in El Salvador
a totalitarian dictatorship through terrorism and resort to all manner
of violent acts.

The interventionist attitude of Nicaragua, evidenced once again by
one of its highest political spokesmen. has converted that country into
a focus of tension and an element of destabilization in the region. That
attitude has provoked numerous protests and denunciations on the
part of my country and the other countries of the region, and therefore
constitutes a reason for concern on the part of the democratic coun-
tries of the continent and the entire international community.

Therefore, [ take the liberty of pointing out to Your Excellency that
the constitutional Government presided over by Eng. José Napoleon
Duarte, responding to the sovereign will of the Salvadoran people,
demands from the Government of Nicaragua respect of its sover-
eignty. an immediate end to interference in its internal affairs, and
respect for the self determination of the Salvadoran people, who seek
peace and justice through democracy.” (Unclassified Department of
State cable from San Salvador 08416.)

124. On 24 August 1984, El Salvador renewed its protests. A protest
note delivered to the Nicaraguan Embassy in San Salvador observed that
the Nicaraguan Government, “through its highest representatives, has
asserted on many occasions and through different means its support for
Salvadoran guerrilla groups”, and continued :

“The Government’s interventionist and openly hostile attitude
toward the Salvadoran Government, as well as the official Nicara-
guan support for the rebels in El Salvador, were demonstrated during
the funeral of Commander Ana Maria (Melida Anaya Montes) in
Managua, in April 1983.”

The Salvadoran Foreign Ministry maintained that the funeral was pre-
sided over by Commander Daniel Ortega, Interior Minister Borge, and
Junta member Rafael Cordova, and was attended by Cuban and Sal-
vadoran guerrilla representatives. The note declared that Nicaraguan
intervention in the internal affairs of El Salvador and the material and

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logistical support given to the rebel groups “represent a flagrant violation
of the most elemental norms of international law” (ACAN, Panama City
0221 GMT, FBIS unclassified cable PA 240355Z of 24 August 1984).

125. In addressing the General Assembly of the United Nations in 1984,
President Duarte declared :

“For more than four years now El Salvador has suffered from the
effects of a merciless war which has caused us bloodshed and im-
poverishment. More than 50,000 Salvadorians have been the inno-
cent victims of a fratricidal confrontation. More than half a million
persons have had to leave their homes and their property. Subver-
sive forces have engaged in a campaign of terror and systematic des-
truction, and our people is tired of it. It must end.

I should like to sign, on behalf of the democratic Government of El
Salvador, an agreement that will be in keeping with the efforts of the
Contadora Group. But such an agreement must be right and just for
El Salvador. It must strictly guarantee the application of the 21 points
which have already been accepted by all the parties. The agreement
must ensure appropriate measures for the verification and control of
everything that is agreed. We must make sure that the obligations that
we undertake will put an end to the presence of foreign military
advisers and eliminate military aid from abroad. It must provide for
strict controls and, at the same time, entail for all the commitment not
to support or continue to give assistance to terrorist activity against
our legitimate democratic Government.

I wish at this point to address some observations to the nations that
have committed themselves, in one way or another, to undermining
my country, as well as to the guerrilla leaders — not those who are
living comfortably in and giving orders from Managua or Havana, or
to other nations that claim to be democratic but in fact export violence
and murder, but to the leaders of the guerrillas who are in the
mountains of my country, those who are suffering from the elements,
unsheltered, those who are aware of the real position of the Sal-
vadorian nation when they attack the people and who are waiting — in
vain — to be welcomed as liberators when the truth is that their
purpose is to oppress those people.” (A/39/PV.24, pp. 3, 7-8, 16.)

President Duarte ended his address with an invitation to the heads of the
guerrilla movement to meet him in the village of La Palma on 15 October
1984.

126. In addressing the General Assembly in 1985, the Vice-President of
El Salvador charged that :

“the Sandinist Government of Nicaragua has turned the territory of

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its country into a sanctuary for Salvadoran subversion. There, armed
groups of the extreme left rest, resupply and train and from there
logistic support for the guerrillas is co-ordinated and sent to El Sal-
vador.” (A/40/PV.19, p. 20.)

127. The President of El Salvador in 1985 publicly accused Nicaragua
of being involved in the kidnapping of his daughter by Salvadoran insur-
gents. “Nicaragua is the Central American source for totalitarianism and
violence, and the sanctuary for terrorists”. he charged (/nternational
Herald Tribune, 2-3 November 1985). He added that :

“my daughter ... would not have been among victims of the merciless
violence of the terrorists if terrorists did not have the support, direc-
tion, approval and timely protection of the terrorist dictatorship in
Nicaragua”.

In an interview in Spain with E/ Pais, he gave details of alleged Nicaraguan
involvement in the kidnapping, maintaining that he had recordings of
conversations of the kidnappers in which they said : “That matter I have to
consult with Managua.” (E/ Pais, 6 November 1985.) He also gave details
in that interview of the location of alleged Salvadoran guerrilla bases in
Nicaragua. The kidnapping of daughters of Presidents appears to be a
speciality of Central American terrorism ; Honduras has officially charged
that the daughter of the then Honduran President was kidnapped by a
group of Nicaraguans and Salvadorans (see the address to the Security
Council of the representative of Honduras of 28 March 1983, S/PV.2425,
p. 57).

128. In respect of statements of the Government of El Salvador, it
should finally be emphasized that that Government for years has claimed
that Nicaragua has been using force against it and has been unlawfully
intervening in El Salvador’s civil strife, and it has asserted against Nica-
ragua both its right of self-defence and its need of United States assistance
in defending itself (see relevant quotations from the Declaration of Inter-
vention of El Salvador quoted in the Court’s Judgment, as well as paras.
110, 112-124 above). Thus the then President of El Salvador, Alvaro
Magaña Borga, in the course of an official visit to Washington in June
1983 — some nine months before Nicaragua instituted the present pro-
ceedings — issued the following statement :

“Foreign military intervention in domestic affairs constitutes the
main obstacle to our efforts to attain peace. The interference of
extracontinental communist countries by way of Cuba and Nicaragua
in support of armed groups against a legitimate constitutionally elec-
ted government, is a form of aggression which violates the essence of
international law, specifically the principle of non-intervention in the
internal affairs of other states.

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Faced with this situation, our armed forces have the constitutional
obligation to defend the nation’s sovereignty and to repel, in legiti-
mate self-defence, the armed subversion that has been imposed upon
us from abroad.

This external aggression has destroyed villages, forcing hundreds of
thousands of humble Salvadorans to abandon their homes. It has
subjected our productive facilities, our crops, our bridges and roads,
our communication and transportation systems and the infrastruc-
ture of all public services to systematic destruction . . .

No one can dispute a nation’s right to defend itself against external
aggression and against the destruction of the scarce assets which in a
developing country are produced at great sacrifice. For this reason, we
have the right to understanding and solidarity of all free nations of the
world. For these reasons we have the right to the understanding and
solidarity from all other free nations ; as we have had from our
Central American brothers, those with whom we share democratic
ideals, and for whom I wish to express our gratitude.” (Department of
State Bulletin, Vol. 83, No. 2077, August 1983, p. 84.)

129. In 1985, President Duarte, in a letter supporting the United States
Administration’s April 1985 proposal to provide assistance to Nicaraguan
insurgents, wrote :

“We remain concerned ... by the continuing flow of supplies and
munitions from Nicaragua to guerrilla forces . . . which are fighting
against my government and our programs of reform, democracy,
reconciliation, and peace... [W]e deeply appreciate any efforts which
your government can take to build a broad barrier to such activities —
efforts which a small country like El Salvador cannot take in its own
behalf.” (Letter to President Reagan, 4 April 1985, reproduced in
“Revolution Beyond Our Borders”, loc. cit, p. 26, note 34.)

8. Statements by the Government of Honduras accusing Nicaragua of sub-
verting El Salvador as well as Honduras

130. Accusations by the Government of Honduras of acts of interven-
tion and aggression by the Government of Nicaragua are legion. The ten
times in which Nicaragua has had recourse to the Security Council to
charge the United States with acts of aggression — the very acts at bar in the
case before the Court — have furnished occasions, among others, in which
the representatives of the Government of Honduras (accused by Nicara-
gua of acting in concert with the United States) have in their turn accused
the Government of Nicaragua.

131. Moreover, Honduras has protested not only acts of Nicaragua

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against it but acts of Nicaragua against El Salvador. Thus on 23 March
1983, the representative of Honduras declared in the Security Council :

“I have seen a large number of trucks using our territory for the
transport of armaments from across the Nicaraguan border. Evidence
of this has been submitted to the diplomatic corps and the interna-
tional press on many occasions. That is why we wish the fundamental
aspect to be recognized: that is, absolute respect for established
boundaries.” (S/PV.2420, pp. 27-30.)

At a later point in the debate, he charged not only that Honduras has
“proof that Nicaraguan guerrillas took part” in the kidnapping of 100
Honduran businessmen in San Pedro Sula, but that : “Arms go from
Nicaragua to El Salvador. That is clear.” (/bid., p. 72.)

132. In the Security Council debate of 9 May 1983, the representative of
Honduras declared :

“The Government of Nicaragua — the Sandinist Government — is
not just arming itself out of all proportion or just making aggressive
statements. It has also carried out a clearly interventionist policy in
neighbouring States by promoting the traffic in weapons. I have seen
them ; I have witnessed them ; they exist. If members would like to see
the masses of photographs we can circulate them... Interventionism
is a risky business. As well as the traffic in weapons, terrorism and
subversive movements exist in the region, and this is conducive not to
peace... but to the maintenance of a climate of tension and violence
in Central America. In this respect Honduras must declare its
readiness to exercise its sovereign and legitimate right to defend its
democratic system of life...” (S/PV.2431, p. 42.)

He added :

“This is not a bilateral problem between Honduras and Nicaragua.
The weapons that are intended to overthrow the Government of El
Salvador are moving through my territory. I do not want continually
to cite newspapers, but I am going to quote from yesterday’s New
York Times, in which there was an indication that weapons have been
moving through my country towards El Salvador by eight routes, and
that at the same time they are being routed around it through the
Strait of Jiquilisco or the Gulf of Fonseca. We believe that what is
sauce for the goose is sauce for the gander, and you know that in the
United States there are both geese and ganders in this struggle.” (/bid.,
pp. 49-50.)

133. In the Security Council debate of 25 March 1983, the respresen-
tative of Honduras again charged that: “Weapons continue moving

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through our territory with the aim of destabilizing the Government of El
Salvador.” (S/PV.2423, p. 82.)

134. In the Security Council debate of 28 March 1983, the respresen-
tative of Honduras, in speaking of Nicaraguan support of the guerrilla
movement in El Salvador, declared that the land borders of Honduras
“have been violated : we have truckloads of captured weapons, freight cars
full of weapons” (S/PV.2425, p. 81).

135. In July 1983, such Honduran contentions were elaborated in an
address by the Honduran Ambassador to the Organization of American
States, published as Annex 59 to the United States Counter-Memorial. The
Ambassador charged :

“It is important to bring to the attention of the distinguished
representatives the fact that the totalitarian Nicaraguan régime is the
main factor in the emergence of the regional crisis, because it has
unleashed actions aimed at destabilizing governments in other Cen-
tral American countries. These actions include, among others, direct
support for terrorist and subversive groups. To do this, Nicaragua has
the backing of antidemocratic groups and countries that are alien to
the Central American region.

Nicaragua has continued in its spiraling arms buildup. It has con-
tinued the trafficking of weapons from several places through its
territory, particularly to El Salvador, violating our sovereignty.

The actions for the political destabilization of the area have not
been interrupted ; on the contrary, they have been increased. The acts
of provocation and aggression against Honduras have not ceased ;
rather they have flared up .. .

All this clearly shows that Central America is experiencing a wide-
spread conflict provoked by Nicaragua, which has consequences for
all countries in the region. Therefore, this is not just a bilateral
conflict, as the Sandinist régime has tried to label it.”

After furnishing considerable detail about the build-up of the Nicaraguan
armed forces, exceeding the military forces of the rest of the Central
American countries combined, the Honduran representative con-
tinued :

“The Nicaraguan Government has been sending weapons to the
rest of Central America, especially to El Salvador, since 1980. In the
specific case of Honduras, Nicaragua has repeatedly violated our
territory in order to do this.

On 17 January 1981 Honduran Army troops and public security

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agents seized a large shipment of weapons and military supplies 16 km
from Comayagua. The shipment had been well camouflaged inside a
van that entered our territory through the Guasaule customs post.
These weapons were for Salvadoran guerrillas. We seized M-16, G-3,
and FAL rifles : M-1 carbines ; 50-cal ammunition clips ; Chinese
RPG rockets : 8l-mm mortar rounds ; ammunition clips ; (cateri-
nas) : communications equipment ; and medicines. Five Hondurans
and 12 Salvadorans were arrested for their involvement in this ship-
ment of weapons and supplies.

The arms traffic has continued through different ways and means.
On 7 April 1981 troops of the 11th Infantry Battalion stationed in
Choluteca seized another van carrying 7.62-mm and 5.56-mm ammu-
nition that had been packed in polyethylene bags and hidden in the
sides of the van. The troops also seized a large quantity of material for
the Armed People’s Revolutionary Organization, ORPA, of Guate-
mala, which was supposed to get the entire shipment. This van had left
from Nicaragua and was detained at the Guasaule customs post.

Honduran territory has also been illegally used for the passage of
troops from Nicaragua to El Salvador. On 26 March 1983 a Honduran
patrol caught a group of guerrillas by surpise in Las Cuevitas.
Nacaome Municipality, Valle Department, in southern Honduras.
They were en route to El Salvador from Nicaragua. Two of the
guerrillas were killed in a clash with the Honduran patrol. On this
occasion we seized M-16 rifles, one Czechoslovak 7.65-mm machine
gun made by FHX. M-16 clips, machine gun clips, (caterinas), a
portable radio, an FSLN flag, FMLN and FSLN manuals, as well as
two notebooks containing full information on the general route used
to move military personnel and weapons through Honduras on the
way to El Salvador.”

And Honduras provides a great deal more detail about alleged Nicaraguan
subversion and terrorism in Honduras, Costa Rica and Guatemala. None
of this evidence has been specifically refuted by the Nicaraguan Govern-
ment in the course of these proceedings, though all of it was on record in
them as long ago as 17 August 1984.

136. Honduras has made like specific charges against Nicaragua at
meetings of the United Nations, for example, the Security Council session
of 30 March 1984 (S/PV.2525). One passage from a long and detailed
statement is as follows :

“The fact that the Sandinist Government is intervening in neigh-
bouring countries is confirmed by the support it gives to the promo-
tion of subversion in Honduras. But this effort has failed. It is con-

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firmed also by its support of the guerrillas in El Salvador by supplying
them with weapons. As part of this strategy, a week ago Commander
Ortega Saavedra, Nicaragua’s Defence Minister, announced the pos-
sibility that local guerrilla fighters would mine the ports of the other
Central American countries, from Guatemala to Panama. This state-
ment is a new and very clear threat of the use of force against other
countries, in open violation of the United Nations Charter. Moreover,
it is an open admission that the subversive groups attempting to
destabilize Governments in the area are operating with the support
and under the control of the Nicaraguan Government, as Mr. Ed-
gardo Paz Barnica, the Foreign Minister, said in his firm message of
protest.” (At p. 58.)

137. In the general debate of the United Nations General Assembly of
12 October 1983, the Foreign Minister of Honduras, criticizing actions of
Nicaragua, declared :

“we see examples of open intervention in El Salvador ; attempts to
destabilize the democratic Governments of Honduras and Costa
Rica ; an alarming increase in the armed forces of the Nicaraguan
régime and statements by the Commanders that govern Nicaragua.
‘Our army is prepared to cross the borders of Honduras and Costa
Rica’, ‘El Salvador is our shield’, they have proclaimed . . .”

138. In debate in the General Assembly on 26 October 1984, the rep-
resentative of Honduras contended :

“There has been talk of the use of Honduran territory and of that of
other countries allegedly to attack the neighbouring Government. But
it has not been said that there were hundreds, if not thousands
of Sandinists — and they, themselves, have recognized this — who
travelled to the Honduran forests, to our tropic zones and tropical
jungles, to escape the repression of the Somoza army, to recuperate and
then to return to struggle until victory was achieved on 19 July 1979.”
(A/39/PV.36, p. 77.)

9. Statements by the Government of Costa Rica accusing Nicaragua of
subversive acts

139. One of the acts of terrorism attributed by Honduras to Nicaragua
by the Honduran Ambassador to the OAS was the subject of a circular note
of 28 July 1982 to diplomatic missions accredited to the Government of
Costa Rica, which is reproduced at Annex 57 of the United States Counter-
Memorial. It refers to a plan, said to be devised and directed by the
Nicaraguan Ministry of the Interior, to bomb the Honduran airline offices
in San José, a plan which Nicaraguan diplomats accredited to Costa Rica

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took steps to implement, in collaboration with a Colombian terrorist.
(Nicaraguan collaboration with Colombian terrorists was to be charged
again in 1985, when the Government of Colombia was reported to have
withdrawn its Ambassador from Managua in response to charges of San-
dinista involvement in the Palace of Justice siege in Bogota ; see The Times
(London), 23 December 1985, p. 4.) That circular note also refers to Costa
Rican protests to Nicaragua over the frequent violations of Costa Rican
territory by the Sandinista Army, as well as “constant violation” by
Nicaragua of Costa Rica’s right to free navigation on the San Juan river.
The Costa Rican note also protests overflights of Costa Rican territory by
the Nicaraguan Air Force. No refutation of these charges was made by the
Nicaraguan Government in the course of this Court’s proceedings, despite
the fact that they have been before the Court since 17 August 1984.
However, Nicaragua has felt able to press its own charges of “State ter-
rorism’”, involving, among other acts, bombing of an airline office and
overflight of its territory.

10. Statements by the Congress of the United States and by Congressmen
opposed to United States support of the contras

140. Annexes to the Nicaraguan Memorial contain extensive reproduc-
tion of debates in the Congress of the United States and of relevant United
States legislation. Two elements of the debates and the legislation stand
out. The first is that the elected representatives of the people of the United
States are profoundly divided over the policies the United States should
pursue towards Nicaragua. The second is that the elected representatives
of the people of the United States are virtually united in their appraisal of
the facts of Nicaraguan behaviour vis-a-vis El Salvador and its other
neighbours. That is to say, however acute the differences in the Congress,
and between the Administration and much of the Congress, on policy
towards Nicaragua, and even on what policy towards Nicaragua is legal,
there is remarkably little difference about the facts. The great majority of
the members of the House and Senate of the United States agree that
Nicaragua began to ship arms and otherwise assist in an effort to over-
throw the Government of El Salvador before the United States sent as
much as a bullet to the contras. Equally, they agree that Nicaragua has
maintained to this day its active policy and practice of assisting the Sal-
vadoran guerrillas to overthrow the Government of El Salvador. These
conclusions are accepted as true by the strongest and most articulate critics
of the United States policy of supporting the contras. Is it to be supposed
that they — and the Governments of El Salvador, Honduras and Costa
Rica — are all wrong, and that the Government of Nicaragua is all
right ?

141. A good deal has been made in and by the Court — quite under-

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standably — of the admissions of the United States. The Court would have
done well to have given some weight to the affirmations of the Congress of
the United States. It is not the practice of the Congress to enact falsehood
into fact. In the democratic system which the United States is fortunate
enough to enjoy, the press is too free, speech is too unhindered, leaks of
official secrets are too easily sprung, the estate of bureaucrats is too low,
and the behaviour of Congressmen is too irreverent, to make it likely that,
in a case such as this, where the facts have been aired, challenged, debated,
scrutinized and tested, the repeated legislative findings of the Congress of
the United States, adopted by vast majorities, are false, year after year.
And what are those findings ?

142. One may begin with the Permanent Select Committee on Intelli-
gence of the House of Representatives. That Committee, then under the
chairmanship of Congressman Edward Boland, rendered a report in May
1983 which counsel for Nicaragua, Professor Brownlie, described in Court
as “that remarkable public document”, a document which is “authoritative
and substantial” (Hearing of 20 September 1985). Let us look at some of
the “authoritative and substantial’ findings of that report (it appears as
Ann. E, Att. 1, to the Nicaraguan Memorial).

143. The Committee — whose majority vigorously opposed continued
United States support of the contras — began by observing that the insur-
gency in El Salvador :

“depends for its life-blood — arms, ammunition, financing, logistics
and command-and-control facilities — upon outside assistance from
Nicaragua and Cuba. The Nicaraguan-Cuban contribution to the
Salvadoran insurgency is longstanding . . . It has provided the great
bulk of the military equipment and support received by the insur-
gents.” (At p. 2.)

It declared the following under the caption “Activities of Cuba and Nica-
ragua” :

“The Committee has regularly reviewed voluminous intelligence
materials on Nicaraguan and Cuban support for leftist insurgencies
since the 1979 Sandinista victory in Nicaragua. The Committee’s
review was indicated not only because of the importance of Central
American issues for U.S. foreign policy, but because of decisions
which the Congress was called upon to make on questions of aid to
countries in the region. The Committee has encouraged and sup-
ported a full range of intelligence collection efforts in Central
America.

Full discussion of intelligence materials in public reports would
pose serious security risks to intelligence sources and methods.
Necessarily, therefore, the Committee must limit its treatment of

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Cuban and Nicaraguan aid for insurgencies to the judgments it has
reached. Such judgments nonetheless constitute a clear picture of
active promotion for ‘revolution without frontiers’ throughout Central
America by Cuba and Nicaragua.

The Committee has not come newly to its judgments. On March 4,
1982, after a major briefing concerning the situation in El Salvador,
the Chairman of the Committee made the following statement :

‘The Committee has received a briefing concerning the situation
in El Salvador, with particular emphasis on the question of foreign
support for the insurgency. The insurgents are well trained, well
equipped with modern weapons and supplies, and rely on the use of
sites in Nicaragua for command and control and for logistical
support. The intelligence supporting these judgments provided to
the Committee is convincing.

There is further persuasive evidence that the Sandinista govern-
ment of Nicaragua is helping train insurgents and is transferring
arms and financial support from and through Nicaragua to the
insurgents. They are further providing the insurgents bases of
operation in Nicaragua. Cuban involvement — especially in pro-
viding arms — 1s also evident.

What this says is that, contrary to the repeated denials of Nica-
raguan officials, that country is thoroughly involved in supporting
the Salvadoran insurgency. That support is such as to greatly aid
the insurgents in their struggle with government forces in El Sal-
vador.’ ” (Nicaraguan Memorial, Ann. E, Att. 1, p. 5.)

144. This “authoritative and substantial” report relied on by Nicaragua
further holds :

472

“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 Salvadoran insurgents transits
Nicaragua with the permission and assistance of the Sandinistas.

The Salvadoran 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.
483 MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

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 Salvadoran insurgents. Cuban
and Sandinista political support for the Salvadoran insurgents has
been unequivocable for years. The Committee concludes that simi-
larly strong military support has been the hidden complement of overt
support. As the Assistant Secretary of State for Inter-American
Affairs, Thomas O. Enders, stated (April 14, 1983) to the Committee
on Foreign Affairs :

‘In 1980 (just as in 1978 Castro had brought the three main
Sandinista factions together in Havana), Cuban agents brought five
guerrilla factions from El Salvador together in Managua, worked
out a unity pact among them, then set up a joint command and
control apparatus in the Managua area and organized logistic and
training support on Nicaraguan soil. Since that time, the great bulk
of the arms and munitions used by the insurgents in El Salvador
have flowed through Nicaragua.’ ” (At p. 6.)

145. It will be observed that the Committee affirms that it has reviewed
“voluminous intelligence materials” — materials which, Mr. MacMichael
acknowledged, are essentially the same materials that he had scrutinized
(Hearing of 16 September 1985). Its conclusions are not indefinite. As of
1983 — not 1981 but 1983 — it held that there was “‘a clear picture of active
promotion of ‘revolution without frontiers’... by Nicaragua”. It con-
cluded that, “contrary to the repeated denials of Nicaraguan officials, that
country is thoroughly involved in supporting the Salvadoran insurgency”.
It adjudged “with certainty” that arms for the Salvadoran insurgents
transit Nicaragua with Sandinista support, and that the Salvadoran insur-
gents benefit from the continued use of command facilities in Nicara-
gua.

146. If Mr. MacMichael is correct in hazarding that the intelligence
community gave misleading presentations, it appears to have made a good
job of it, in the light of the following paragraphs of the Report (which, it
must be recalled, is offered by Nicaragua in evidence, as in support of
Nicaragua’s case) :

“On September 22, 1982, the Committee released a staff report of
its Subcommittee on Oversight and Evaluation entitled ‘U.S. Intelli-
gence Performance on Central America : Achievements and Selected
Instances of Concern’. That report noted :

‘The intelligence community has contributed significantly to

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meet the needs of policymakers on Central America. Over the last
two years perhaps its greatest achievement lies in determining with
considerable accuracy the organization and activities of the Sal-
vadoran guerrillas, and in detecting the assistance given to them by
Cuba and other communist countries. Although amounts of aid
and degrees of influence are difficult to assess, intelligence has been
able to establish beyond doubt the involvement of communist
countries in the insurgency.’” (Nicaraguan Memorial, Ann. E,
Att. 1, pp. 5-6.)

147. The views of the Congress on the question of Nicaraguan support
of the Salvadoran insurgency have not changed as of 1985. The Conference
Report on the Foreign Assistance Act of 1961 as amended in 1985, to
which Nicaragua draws attention (ibid., Suppl. Ann. C, Att. 7) contains the
following passages :

— The Congress calls for :

“(B) the end to Sandinista support for insurgencies in other coun-
tries in the region, including the cessation of military supplies to the
rebel forces fighting the democratically elected government in El
Salvador.” (At p. H6720.)

— The Congress further finds that the Government of Nicaragua

“(vi) has committed and refuses to cease aggression in the form of
armed subversion against its neighbours 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 Interven-
tion.” (At p. H6721.)

148. It is of interest to note that the 1985 Conference Report also
“condemns the Government of Nicaragua for violating its solemn com-
mitments to the Nicaraguan people, the United States and the Organiza-
tion of American States” particularly because of its having failed to fulfil
“its 1979 commitment to the Organization of American States to imple-
ment genuinely democratic elections . . .” (p. H6721).

149. Congressman Boland’s views, in his capacity as Committee Chair-
man, which were read out in Court and are quoted above, elicited a
comment from Mr, MacMichael which will be examined below. Congress-
man Boland has since been succeeded as Chairman of the House Perma-
nent Select Committee on Intelligence by Congressman Lee Hamilton,
another critic of the Administration’s policies of aid to the contras. His
views on the facts of Nicaraguan support of the Salvadoran insurgency are
of like interest. As of 3 June 1985, these were his views :

“the Nicaraguan Government appears to have committed itself to a
policy of support for insurgencies in other Central American coun-

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tries. The most important example of this policy is the assistance
provided by Nicaragua to the Salvadoran guerrillas. It seems clear
that the Nicaraguan commitment to the Salvadoran guerrillas stems
from FMLN support to the Sandinistas during their efforts to
overthrow Somoza and is a matter of revolutionary pride and soli-
darity.

The flow of arms from Nicaragua to the Salvadoran guerrillas
continues. The network used for this purpose is run by Salvadorans
with Nicaraguan support. The supplies provided by the network are
thought to be mostly ammunition but also medicine and other sup-
plies. It is also thought that the Salvadoran guerrillas have enough
arms but still rely, to some significant degree, on other types of
assistance from Nicaragua.

There have been no appreciable interdiction of arms shipments by
the Salvadoran armed forces and none at the point of entry into El
Salvador. The capture of supplies of arms in the past have been in
Honduras while in transit or in safehouses.

The flow of assistance and supplies comes by water along the
southeast coast of El Salvador, by land through Guatemala and
Honduras, and possibly by air from Nicaragua. The inability of the
Salvadoran or Honduran forces to interdict shipments by water
routes alone is a factor of their corruption or lack of proficiency and of
what must either be an extremely effective guerrilla network or a very
small volume of shipments.

Nicaragua also provides communications facilities, safe haven,
training, and logistical support to the Salvadoran guerrillas. The
system employed to provide all of these types of assistance is flexible
and, apparently, very well run.

The judgments made above concerning assistance to the Salva-
doran guerrillas are inferential and based on substantial, but circum-
stantial information.” (Congressional Record, Extension of Remarks,
June 3, 1985, p. E2470.)

150. These judgments of the House of Representatives are duplicated in
the Senate. Thus in March 1984, Senator Daniel Patrick Moynihan, a
member of the Senate Intelligence Committee, said on the Senate
floor :

“It is the judgment of the Intelligence Committee that Nicaragua’s
involvement in the affairs of El Salvador and, to a lesser degree, its
other neighbors, continues . . . the Sandinista support for the insur-
gency in El Salvador has not appreciably lessened ; nor, therefore, has
their violation of the OAS Charter abated.” (Reprinted in “For the
Record”, the Washington Post, 10 April 1984.)

151. Leading, informed opponents of the Reagan Administration’s

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Central American policies who nevertheless are convinced that Nicaragua
has been subverting the Government of El Salvador are not restricted to
the Congress. For example, the last Ambassador to El Salvador under the
Carter Administration was Robert E. White, a career Foreign Service
officer who was replaced by the new Administration as “a first signal that
U.S. policy was in new hands” (Alexander M. Haig, Jr., Caveat, p. 127). He
retired “to become a vociferous public opponent of our policy in El
Salvador” (ibid.). Ambassador White, in testimony before a Congressional
committee, declared that the evidence contained in the Department of
State White Paper of 1981 was genuine and stated that the Salvadoran
guerrillas had “imported massive quantities of arms” by way of Nicaragua
(see Richard Whittle, “Reagan Weighs Military Aid to Counter Soviet,
Cuban ‘Interference’ in El Salvador”, Congressional Quarterly, 28 Febru-
ary 1981, p. 389 ; Nicaraguan Memorial, Ann. E, Att. 1, p. 37 (for the text
of Ambassador White’s letter to President Duarte transmitting an analysis
of the captured documents, as well as Congressman Young’s commentary
on those documents); and Margot Hornblower, “Ousted Envoy Hits
Arms Aid to Salvador”, the Washington Post, 26 February 1981, p. 1).

152. Against this weight of informed United States opinion, Nicara-
guan counsel have offered essentially two things. First, they have offered
the sworn and reiterated affirmations of Foreign Minister D’Escoto and
Commander Carrion, as well as of the Nicaraguan Agent ; second, the
testimony of Mr. MacMichael. It has been demonstrated above that those
former, self-interested affirmations not only conflict with the testimony of
Mr. MacMichael for the period mid-1979-April 1981, but conflict with an
affidavit of Commander Carrion himself, not to speak of the considerable
amounts of other evidence set forth in this appendix. Accordingly, I am
convinced that it is impossible to conclude that, for the pre-March 1981
period, these Nicaraguan affirmations can be regarded as true; on the
contrary, it is obvious that they are false. Now if these representatives of
the Government of Nicaragua have deliberately spoken falsely about the
pre-March 1981 period, in an attempt to mislead the Court, what reason is
there to suppose that they spoke the truth about the absence of arms
shipments to Salvadoran insurgents after March 1981 ? In short, there is
every reason to discard the affirmations of representatives of Nicaragua as
lacking in probative value. That is not to say that the Court is right simply
to discount those affirmations along with those of representatives of the
United States and absolve itself of dealing with the fact that on a vital
question the sworn factual submissions of Nicaragua are false ; that is
another matter. But as for whether the representations of Nicaraguan
representatives can offset the findings of the United States Congress, it is
clear that they cannot.

153. Of course, one can say that, no less than Nicaraguan representa-

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tives, the United States Congress is a party in interest, and that its affir-
mations carry no more weight than do those of officials of Nicaragua. One
can say that, but one cannot reasonably sustain such a conclusion. For, as
pointed out, the statements of the United States Congress and of leading
members of the House and Senate are of persons who do not fully support,
but in large or full measure oppose, the policy of the United States which is
at issue in this case. Quite apart from what one may believe or conclude
about the relative fidelity of the persons in question, there is reason not to
discount these expressions of studied Congressional conviction.

154. For his part, Nicaragua’s key witness on the question, Mr. Mac-
Michael, did not discount Congressional conclusions. On the contrary,
when asked how he could explain the discrepancy between his evaluation
of the intelligence data and Congressman Boland’s, he earnestly re-
plied :

“this is a very important question . . . I do not like to believe that my
powers of judgment are greater than those of Congressman Boland.
He certainly has seen the evidence, and it is my belief that the evidence
he saw was essentially the same evidence that I saw.” (Hearing of
16 September 1985.)

Then how does Mr. MacMichael explain such wide discrepancies between
his interpretation of the evidence and that of Congressman Boland ? First,
he says that, in 1982, it was concluded in respect of an intelligence
presentation to the House Intelligence Committee that the presentation
seemed designed more to present the Administration’s position than to
illuminate the situation. Second, he suggests that, when in 1983 Mr. Boland
made statements such as those quoted in paragraphs 140 and 141 of this
appendix, he did so in the context of a report which recommended cutting
off funding for the contras, on the ground, among others, that, since the
flow of arms to Salvadoran rebels from Nicaragua continued, the contras
obviously were ineffective in interdicting that flow. Mr. MacMichael sug-
gests that, apparently, Mr. Boland had to claim that there was a continued
flow of arms to the Salvadoran insurgents in order to justify his conclusion
that the contras were ineffective and should no longer be supported.

155. Do these explanations withstand analysis ? Hardly. If, in 1982, ina
House Intelligence Committee whose majority was opposed to the policy
conclusions to which intelligence briefings led, there was dissatisfaction
with the objectivity of those briefings, one may be sure that steps were
taken to improve the objectivity of the presentations, which, moreover,
have taken place frequently thereafter, including in 1985 when the House
of Representatives adopted the conclusions quoted above in para-
graphs 147-148. That Mr. MacMichael’s characterization does not appear
to be the House’s appreciation of the quality of such intelligence briefings
is indicated in the quotation supplied in paragraph 146 of this appendix.
Moreover, it is implausible to suggest that, in order to justify his policy of

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cutting off support to the contras, Congressman Boland had to find the
existence of a pattern of shipment of arms to El Salvador where none
existed. If in fact there were no such pattern, if in fact Nicaragua was
blameless, Congressman Boland would have been in the stronger position
simply to oppose the policy of supporting the contras. Thus the “stipula-
tion” which Mr. MacMichael attributes to Congressman Boland is con-
jecture which in no way answers the question of how it is that apparently
everyone else who has seen the same intelligence data as did Mr. Mac-
Michael arrived at a very different interpretation of it.

11. The transcript of conversation between Assistant Secretary of State
Enders and Co-ordinator Ortega

156. Reference has been made in paragraphs 25-26 of this appendix to
the transcript of conversation which records exchanges in Managua on
12 August 1981 between the then Co-ordinator of the Junta, Commander
Daniel Ortega, and the then Assistant Secretary of State for Inter-
American Affairs, Thomas O. Enders. That transcript has been offered
in evidence by Nicaragua, which contends that “the report of the meeting
between Commander Ortega and Mr. Enders corroborates and confirms
the evidence and testimony already presented to the Court by Nicaragua
on the subject of the supposed supplying of arms to El Salvadoran insur-
gents”, evidence and testimony which it then summarizes (letter of 26 No-
vember 1985). That contention merits examination, especially because the
Court appears to agree with it.

157. After having stated that, “you see your revolution as irreversible,
and so do we”, Mr. Enders went on to refer to his other conversations in
Managua, a record of which is not provided, and observed that three major
problems had emerged, two raised by the United States and the third by
Nicaragua, namely :

“1. The continued flow of arms, munitions and other forms of
military aid to El Salvador.

2. The rapid expansion of military power in Nicaragua which, if it
continues, will become a threat to its neighbours, and might give rise
to a general conflagration in which the United States could not remain
uninvolved.

3. The fear that the United States is taking steps to destabilize and
attack the revolution.” (Information and Documents Supplied by
Nicaragua.)

158. Commander Ortega’s response is interesting, not least because,
rather than initially denying Nicaraguan military aid to Salvadoran insur-
gents, he spoke of Nicaraguan National Guardsmen in camps in the
United States, of support by the United States for El Salvador, and the
circumstances which have “forced” Nicaragua to embark on an arms race.

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Mr. Enders replied that the United States and Nicaragua are at a cross-
roads.

“On your part [he said], 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.” (Information and Documents Supplied by Nica-
ragua.)

159. Mr. Enders proceeded in a diplomatic vein. “We should be glad if
attention could be paid to the question of the arms race in Central
America.” While the United States “could ourselves suggest a few ways
of resolving this problem, . . . it is for each individual country to settle the
question of the number of soldiers and the quantity of arms it should
have”. As for fear on Nicaragua’s part of United States intervention, the
United States would be prepared to investigate the possibility of “reaf-
firming” the commitment of the Rio Treaty not to resort to the threat or
use of force, “either bilaterally or by other means”. The United States is
prepared “to give somewhat closer consideration to the problem of Nica-
raguan political exiles in the United States . .. it is obvious that if you see
them as a political threat, the problem would be to see how we could
respond to this concern”. Mr. Enders continued :

“When we suspended our economic assistance, we said that it could
be resumed if Nicaragua halted the arms flow to El Salvador, and even
though the situation in the United States has since changed, this offer
remains open.” {/bid.)

He added that the United States could investigate almost immediately the
question of food and development aid, and Peace Corps assistance. He
proposed that, in the next weeks, both sides take steps to reduce the
polemics and continued :

“During this time we hope that steps will be taken to halt the arms
flow to El Salvador, and I propose to return to Nicaragua at the end of
September to review the programme which has been drawn up and see
if conditions are ripe to go on to the next stage.” (Ibid)

Mr. Enders then concluded :

“T must emphasize that we feel we are now at a crossroads, and if we
do not take these steps we will not achieve any détente. I do not think
it is necessary to go into the alternatives before us in detail, but I
should like to point to two ideas : there are only two things which
could oblige us to involve ourselves militarily in this region : (1) if this

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MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

idea of doing the utmost to halt the arms flow to El Salvador is
rejected, (2) if the arms race in Central America is built up to such a
point that some of your neighbours in Central America seek protec-
tion from us under the Inter-American Treaty. We have nothing to
gain in such a situation — the cost would be excessive — but if it is
forced upon us, the present American administration would be pre-
pared to take a decision in that situation.

How would you like us to proceed ? Should we go on explaining the
ideas which | have put forward ?” (Information and Documents
Supplied by Nicaragua.)

160. Commander Ortega’s reply was conciliatory but, on the one hand,
while admitting Nicaraguan interest in seeing the Salvadoran and Guate-
malan guerrillas triumph, on the other he gave no assurances about Nica-
raguan policy on the flow of arms to the guerrillas :

480

“We too have considered the two alternatives which you have put
forward, and we too have seen the crossroads. We have decided to
defend our revolution by force of arms, even if we are crushed, and to
take the war to the whole of Central America if that is the conse-
quence. We are aware of the military power of the United States, but
in that respect we are romantics ; however, we are not suicides, and we
have no wish for that kind of solution. I think the proposal you have
made is within rational limits . .. The basic responsibility lies not only
with the conduct of Nicaragua, but also in the conduct of the United
States, which determines our own...

We have an historical prejudice towards the United States, because
that country has shown a series of attitudes which makes us fear attack
from it, and look for all possible means of defence. We are interested
in seeing the guerrillas in El Salvador and Guatemala triumph, when
we see that there is no good will in the United States towards us. This
is why the greatest weight in this situation attaches to the policy of the
United States. This situation is not going to be resolved by the con-
duct of Nicaragua, but will depend on the conduct of the United
States. It seems to me that an effort must be made to explore these
paths which you are describing .. .

For our part, we are prepared to make every possible effort to
achieve an understanding with the United States, but this will depend
on its attitude. We have a feeling of insecurity; ...

Your return in September would be very positive and this commits
us to take practical steps. If the United States, for example, can take
action against camps of the former National Guard on its territory,
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MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

this will relieve the pressure on the arms race in Nicaragua.” (Infor-
mation and Documents Supplied by Nicaragua.)

161. Mr. Enders then made the following remarks, which were no less
conciliatory while again emphasizing the importance of Nicaragua’s cut-
ting off the flow of arms to Salvadoran insurgents :

“As regards taking responsibility, we are not trying to make you
carry responsibility for the present situation. I can understand that a
revolution which has recently triumphed will find it necessary to take
arms to defend itself and protect other revolutionary movements with
which it has affinity, and of course it is more advantageous to you if
the struggle takes place in other countries rather than your own. The
problem is that this manner of proceeding or this form of conduct may
become a challenge to the United States to which the latter has to
respond, and this is a vicious circle which we must escape from. The
proposals I wanted to make were aimed at overcoming this problem,
and I think that if we want to go on, we must reduce the polemics and
provide ourselves with a reliable channel of communication . . .

I must emphasize the importance of stopping the flow of arms to El
Salvador, for if this is not done, I could not suggest to my government
that we pursue the line we have discussed. Personally, I am certain
that we will make great efforts to exploit the ideas that I have put to
you and the proposals that you make.” (Ibid.)

162. Commander Ortega replied :

“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 Salvadoran 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.”
(Ibid.)

163. To that, Mr. Enders responded :

481

“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 [sic :
relations ?] have not yet reached the necessary level to exchange
intelligence reports.

I should like to reaffirm that we are serious people and that we are
492  MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

not setting impossible conditions or playing some diabolical game
which you cannot win.” (Information and Documents Supplied by
Nicaragua.)

164. Whereupon, Mr. Ortega concluded : “In March you transmitted
reports to us which were very valuable in halting the flow . . .” (Ibid)

165. While the elision marks of the record indicated that this was not the
end of the exchange, it is the end of the portions of the exchange which
Nicaragua saw fit to provide to the Court. Does that record support the
conclusion advanced by Nicaragua that it corroborates and confirms its
position on the flow of arms to El Salvador ? Up to a point, but not up to
the critical point. The exchange does bear out the fact that, prior to March
1981, there was a flow of arms from Nicaragua to Salvadoran insurgents :
this is a conclusion which Nicaragua concedes in its interpretation of the
Enders conversation (letter to the Court of 26 November 1985). However,
Nicaragua maintains that that flow was “small”, contrary to the policy of
the Nicaraguan Government, and that to the best of its ability the Nica-
raguan Government acted to prevent and stop it. (As has been demon-
strated, the flow between the summer of 1979 and March 1981, was not
small, and it was not only promoted but arranged by the Nicaraguan
Government. It is here that, in the above letter, Nicaragua puts forth a
remarkably misleading description of Mr. MacMichael’s actual testimony,
which ignores his acceptance as a fact that Nicaragua as a Government had
been involved in provision of quantities of arms to the Salvadoran insur-
gents before March 1981.)

166. What is key is that Mr. Enders maintained that there was a con-
tinuing or, rather, resumed flow of arms from Nicaragua to El Salvador ;
and that Mr. Ortega replied that “as far as we have been informed by you,
efforts have been made to stop it”. Commander Ortega continued : “We
would ask you to give us reports about that flow to help us control it.”
Mr. Enders’ reply was straightforward :

“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.”

167. What was Mr. Enders saying ? He was saying, it would appear,
look, when, in the autumn of 1980, Mr. Cheek told you that the arms flow
to the Salvadoran guerrillas must stop if the flow of American aid to
Nicaragua is to be sustained, he gave you some details about the arms flow,
on the theory that, conceivably, the facts were not known to Nicaraguan
Governmental authorities. The result was (as revealed by the captured

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papers of Salvadoran guerrillas, see paras. 16, 18-20, 151 above) that the
precise routes of arms supply pinpointed by United States intelligence
were closed down, and others were opened up. Again in March of 1981,
apparently there was a like experience ; the United States seems to have
transmitted specific reports ; those routes of arms flow which its intelli-
gence had located were closed down ; yet the flow had resumed. Mr. En-
ders accordingly observes that,

“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.”

168. But Commander Ortega did not give up easily. “In March you
transmitted reports to us which were very valuable in halting the flow. . ”
At this point, as noted, the record, in so far as it is supplied, is cut short, but
there is — contrary to the contention since advanced by Nicaragua in its
letter of 26 November 1985 — no evidence that “after March 1981... no
such shipments were made”. It is true that, after March 1981, Mr. Mac-
Michael found no evidence that there had been such shipments. But the
evidence that there have been such shipments, particularly of ammunition
and explosives, is considerable, as the data set out in this appendix shows.
(Moreover, additional detailed evidence showing shipment of arms
through Nicaragua and provision of other support by Nicaragua to Sal-
vadoran insurgents after 1981 is contained in Background Paper : Nica-
ragua’s Military Build-Up and Support for Central American Subversion,
submitted to the Court by the United States with its Counter-Memorial —
evidence which, apart from Mr. MacMichael’s testimony, Nicaragua has
left essentially unchallenged.) As concluded in paragraphs 58-61, 76-77 of
this appendix, it is not possible to believe that the Nicaraguan Government
actually was unaware of and uninvolved in the large-scale flights of arms
from an airfield near Managua in January 1981; a comparison of
Mr. MacMichael’s testimony on the flights from Papalonal (Hearing of
16 September 1985) and the allegations in “Revolution Beyond Our Bord-
ers” (pp. 18-19, 27-29) shows a striking correspondence between Mr. Mac-
Michael’s recollections and the United States contentions, both of which
are inconsistent with those operations not having had the sanction of the
Nicaraguan Government. If the position of Nicaragua that it was unin-
volved in the pre-March 1981 shipments is untrue — and demonstrably it is
— what remains of the current Nicaraguan contention that the Enders/
Ortega conversation confirms and corroborates its whole position ?
Indeed, if the shipments made before March 1981 were unknown to the
Nicaraguan Government, how can it be sure that, after March 1981, “no
such shipments were made” ?

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169. In the aftermath of the Enders visit, the United States put the
Enders proposals in writing, papers were exchanged, and negotiations
were carried on. By October 1981, the Nicaraguan Government rejected
the Enders approach as “sterile” (see Mr. Enders’ statement of 12 April
1983 before the Senate Committee on Foreign Relations, reprinted in
“Nicaragua : Threat to Peace in Central America”, Department of State
Current Policy Paper No. 476, p. 2). On the one hand, officially Nicaragua
continued to maintain that it was not giving material support to the
Salvadoran insurgents. On the other hand, Commander Bayardo Arce told
the United States Chargé d’Affaires that the United States “had better
realize that nothing you can say or do will ever stop us from giving our full
support to our fellow guerrillas in El Salvador” (“Revolution Beyond Our
Borders”, op. cit., pp. 57, 72 (note 23)). Where the fault lies in the break-
down of the Enders initiative is difficult to say ; opinions vary. Mr. En-
ders, in the cited Senate statement, places the blame on Nicaragua (Joc. cit.,
p. 2). President Ortega has publicly recalled Mr. Enders’ declining to
supply information on arms shipments through Nicaragua and protested
that Mr. Enders set as a condition for a dialogue “to even start — that
Nicaragua couldn’t arm itself, that Nicaragua could not permit the traf-
ficking of weapons to El Salvador, that the ‘opposition’ be part of the
régime” (Playboy, loc. cit., p. 200). Actually, the transcript of the Ortega/
Enders exchange furnished by Nicaragua indicates no demand by the
United States that “Nicaragua couldn’t arm itself”, and no demand for
admitting the opposition. But it does show a reiterated United States
requirement that “Nicaragua could not permit the trafficking of weapons
to El Salvador”. If in fact Nicaragua was not engaged in such trafficking,
why, it may be asked, could not it readily accept this condition, which the
United States made clear was the sine qua non of peaceful co-exis-
tence ?

170. In any event, whoever was at fault in the failure of the Enders
mission, it is clear that the United States mounted a high-level, candid, and
conciliatory attempt to persuade Nicaragua to cease its support for the
insurgency in El Salvador in return for inducements which would have met
Nicaragua’s professed concerns and interests, and that this attempt
embodied explicit acceptance of the Nicaraguan revolution. With the
failure of the Enders mission, with the perception by the United States of
its rejection by Nicaragua by October 1981, the United States apparently
concluded that it would have to try to force Nicaragua to do what Nica-
ragua would not genuinely agree to do : stop promoting the overthrow of
the Government of El Salvador. Accordingly, the next month, November
1981, President Reagan authorized United States support of the con-
tras.

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12. Further early United States attempts at peaceful settlement

171. Nevertheless, even after the United States embarked on the course
of contra support, it made further serious attempts at peaceful settlement.
At the suggestion of the President of Mexico, the United States, in Spring
of 1982, presented specific proposals in writing to Nicaragua : eight points
reiterating and developing the Enders proposals. “The first is the cessation
of Nicaragua’s support for insurgencies in neighbouring countries . . . we
must have results on this before any results can be achieved on other
aspects of the proposal . . .” (Transcript of a Department of State Press
Briefing, 8 April 1982, Documents on American Foreign Policy, 1982,
doc. 686, p. 1438.) The second was a proposed statement by the United
States dealing with Nicaraguan exile activities in the United States. The
third was a proposed joint United States-Nicaraguan statement on
friendly relations, “a joint statement pledging noninterference in each
other’s affairs or in the affairs of others in the region” (ibid.). The fourth
was a proposal for arms and military force limitations, which provided for
a regional ban on the importation of heavy offensive weapons and reduc-
tion of the presence of foreign military advisers. The fifth was a proposal
for international verification of these undertakings by the OAS or other
regional organizations. The sixth was a proposal for economic co-opera-
tion, including “the reestablishment of direct economic assistance” by the
United States to Nicaragua. The seventh proposal was for human and
cultural exchanges and “confidence building”. The eighth proposal was for
a reiteration of the Sandinista commitment to “the principles of political
pluralism, a mixed economy, and nonalignment” which, together with the
FSLN commitment to the OAS “concerning the holding of free elections
would be important determinants of the political context of our future
relations” (ibid.). These proposals were presented to the Nicaraguan Gov-
ernment by the United States Ambassador in Managua. Nicaragua report-
edly made no positive reply.

172. Thereafter, on 4 October 1982, the United States joined with the
Governments of the Republics of Belize, Colombia, El Salvador, Hondu-
ras, Jamaica and Costa Rica in a “Declaration on Democracy in Central
America” (Documents on American Foreign Policy, 1982, doc. 699, p. 1470).
It called for the creation and maintenance of truly democratic govern-
mental institutions in the region and respect for human rights as well as the
following prescriptions :

“(d) Respect the principle of non-intervention in the internal affairs
of states, and the right of peoples to self-determination ;

(e) Prevent the use of their territories for the support, supply,
training, or command of terrorist or subversive elements in other

485
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MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

states, end all traffic in arms and supplies, and refrain from providing
any direct or indirect assistance to terrorist, subversive, or other
activities aimed at the violent overthrow of the governments of other
states ;

(f) Limit arms and the size of military and security forces to the
levels that are strictly necessary for the maintenance of public order
and national defense ;

(g) Provide for international surveillance and supervision of all
ports of entry, borders, and other strategic areas under reciprocal and
fully verifiable arrangements ;

(h) On the basis of full and effective reciprocity, withdraw all
foreign military and security advisers and forces from the Central
American area, and ban the importation of heavy weapons of
manifest offensive capability through guaranteed means of verifica-
tion.” (Documents on American Foreign Policy, 1982, doc. 699,
p. 1472.)

The Government of Costa Rica invited the Government of Nicaragua to
enter into a dialogue on the basis of these principles. Nicaragua refused
even to receive the proposal.

173. Mr. Enders’ contemporary comments on these initiatives are of
interest. In a speech of 20 August 1982 (“Building the Peace in Central
America”, Department of State Current Policy Paper No. 414), Mr. Enders
said the following :

486

“Of all these problems, it is Nicaragua that is the most worrisome. It
was the new Sandinista government that regionalized the conflict in
Central America by backing the violence in El Salvador. Sandinista
leader Daniel Ortega once told me that the FMLN [Farabundo Marti
National Liberation Front], the Salvadoran guerrilla coalition, is
‘nuestro escudo’ ~ ‘Nicaragua’s shield.” And Sandinista support has
not lessened. The FMLN’s headquarters are in Nicaragua. It receives
sustained logistic support from Nicaragua, above all by airdrop and
sea delivery but also by land. Its training camps are in Nicara-
gua...”

“The United States has also made proposals. Beginning nearly a
year ago and more intensively since April, we have attempted to
engage Nicaragua in a dialogue. We have tried to respond to Nica-
ragua’s concerns, while meeting those of Nicaragua’s neighbors, and
our own.

The Sandinistas tell us that they fear an invasion by the United
States. So we have offered to enter into a formal nonaggression
agreement. The Sandinistas tell us that ex-Somocistas are training in
the United States to invade Nicaragua. We have assured them that we
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487

MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

are enforcing our Neutrality Act, which makes it a federal crime to
launch an attack, or to conspire to attack, another country from the
United States.

The Sandinistas tell us we are regionalizing the conflict, preparing
Honduras, El Salvador, and Costa Rica as bases for action against
them. So we have suggested that each country in Central America
agree to put a reasonable, low limit on the numbers of foreign military
and security advisers it has, and we have suggested that each country
pledge not to import any additional heavy offensive weapons. Both
commitments, of course, would have to be subject to international
verification.

Nicaragua would also have to meet the concerns that its neighbors
and we share. We asked that Nicaragua cease its involvement in the
conflict in El Salvador. The Sandinistas say that they are not aware of
any such involvement, but are willing to end it if wejust give them the
information we have. In our most recent exchanges we suggested that
removing the combined guerrilla headquarters from Nicaragua would
be a good place to start and offered to help the Sandinistas locate it.
For example, the point from which guerrilla operations in El Salvador
are being directed was recently in a Managua suburb. We are confi-
dent that although it moves around a great deal within Nicaragua it
can be found. Nicaragua has yet to respond.

Similarly, Nicaragua must cease its terrorist and other aggressive
actions against Honduras and Costa Rica.

We have raised a second issue, which also deeply concerns Nica-
ragua’s neighbors. This is the trend in the organization and use of state
power in Nicaragua. It is, of course, for Nicaragua to decide what kind
of government it has. No one challenges that. We don’t. Its neighbors
don’t.

But we believe we are all entitled to ask what assurance can any of
us have that promises of noninterference will be kept if the Nicara-
guan state remains the preserve of a small Cuban-advised elite of
Marxist-Leninists, disposing of growing military power and hostile to
all forms of social life but those they dominate ? And we are also
entitled to ask what is to become of internationally recognized human
rights under these conditions ? Such questions are not a defense,
secret or otherwise, for a return to a discredited Somocismo. They
could be answered in the fulfiliment of the Sandinistas’ own original
commitments to democracy and regional peace.”
498  MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

13. The four treaties proposed by Nicaragua in 1983

174. By the autumn of 1983, United States policy — as manifested not
only with respect to Nicaragua, but apparently with respect to Grenada —
succeeded in winning the attention of the Nicaraguan Government. While
it appears that Nicaragua was prepared to look on approvingly, indeed give
sustained support to a Salvadoran insurgency involving thousands of
deaths, thousands of wounded, and the widespread destruction of electri-
cal power grids and dams and the blowing of innumerable bridges and
roads, it protested vigorously when the contras blew up its bridges and
assaulted its militia, Sandinista activists, and innocent citizens who had
been similarly slaughtered for years in El Salvador.

175. Armed pressure accordingly apparently moved the Nicaraguan
Government to do what persuasion could not : to propose a settlement, the
essence of which appears to have been : Nicaragua will cease support of
insurgency in El Salvador, if the United States will cease not only support
of the contras but also support of the Government of El Salvador.

176. The four draft Nicaragua Accords of October 1983 contain no
express acknowledgement of the Nicaraguan policy of support of the
armed subversion of El Salvador. The “Draft Accord concerning El Sal-
vador” and the commentary with which the Nicaraguan Government
accompanied it, as well as the other three draft accords, do not give the
impression of proposals designed to lead to serious negotiation (see, Fun-
damental Commitments to Establish Peace in Central America, Official Pro-
posal submitted by Nicaragua within the Framework of the Contadora Process,
1 December 1983, Managua, Free Nicaragua ; Exhibit IX to the Nicara-
guan Application). Its Introduction maintains that :

“The sustained and ever-increasing intervention of the Govern-
ment of the United States in the internal Salvadoran struggle is the
principal factor that hampers and renders difficult the achievement of
a negotiated political solution, since it has constituted itself in fact as
the principal supplier of arms directly to the governmental forces as
well as indirectly to the revolutionary forces.” (P. 57.)

It continues :

“Conscious of this situation, and in a new effort to contribute to a
political solution, the Government of Nicaragua made public on
19 July 1983 an appeal to all nations in which it asked :

‘the absolute cessation of all supply of arms by any nation to the
forces in conflict in El Salvador, in order that this people may
resolve its problems without outside interference’.

488
499  MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

Having received no answer to this appeal, the Government of
Nicaragua has considered it necessary to formalize this proposal in
concrete and detailed terms, in the form of an accord, 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. In any
event, Nicaragua is disposed to subscribe to said accord immediately,
even though it be with the United States only, 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.)

On 19 July, Commander Ortega’s announcement of his diplomatic pro-
posal calling for cessation of all outside assistance to “the two sides” in El
Salvador may be said to have implicitly acknowledged the assistance which
his Government had been giving to the Salvadoran insurgents (see “Re-
volution Beyond Our Borders”, p. 27). The draft of the Accord itself takes
“into account that the continuation of the supplying and trafficking of
arms, munitions and military equipment . . .” greatly impedes the possi-
bilities of a peaceful negotiated settlement (p. 59 ; emphasis supplied).
The heart of the proposed Accord is found in draft Articles 1 and 2:

“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.” (At p. 60.)

177. Foreign Minister D’Escoto travelled to Washington to present the
four draft Accords ; he spoke not only with senior officials of the Depart-
ment of State, but with members of Congress and the press. The reaction of
the press was interesting, and apparently uniform. Le Monde headlined :
“Le Nicaragua cesserait d’aider le Salvador si les Etats-Unis renoncaient a
soutenir les antisandinistes.” (22 October 1983, p. 1.) It wrote that Mana-
gua had just proposed “in good and due form to abandon the Salvadoran
guerrillas to their own devices, in exchange for a guaranty that it would
have nothing to fear from Washington”. The Washington Post stated
that :

“Nicaragua yesterday submitted to the Reagan Administration a

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package of four binding treaties under which the leftist Sandinista
Government would pledge not to support guerrillas in El Salvador if
the United States would stop supporting anti-Sandinista rebels in
Nicaragua.” (21 October 1983, p. 1.)

The New York Times reported that the United States Administration
found the Nicaraguan proposals “deficient” and said that they should be
addressed to the Contadora group. But it added :

“United States officials said that they were encouraged that the
Nicaraguan Government was accepting, more explicitly than ever
before, some ‘symmetry’ in El Salvador’s demands for an end to
outside aid for Salvadoran guerrillas and Nicaragua’s demand that
the United States halt its aid to Nicaraguan rebels.” (22 October 1983,

p. 1.)

178. It could not be expected that a proposal of the substance and tenor
of the “Draft Accord concerning El Salvador” would furnish a basis for a
settlement. The United States could not be expected to agree at that stage
to cease its lawful aid to the recognized Government of El Salvador — a
cessation which could be easily monitored — in exchange for a pledge by
Nicaragua to cease its unlawful aid to the Salvadoran insurgents — a
cessation which could not be easily monitored. It could not be expected to
so agree in view of the fact that its assistance to the Government of El
Salvador was in response to prior, massive shipments of arms by Com-
munist States via Nicaragua to the Salvadoran insurgents ; while President
Carter’s Administration had suspended provision of arms to the Govern-
ments of El Salvador and Nicaragua, it was not until January 1981, in the
midst of the insurgents’ “final offensive”, that the United States resumed
arms shipments to the Government of El Salvador. Nevertheless, the
Nicaraguan proposals, and the reaction of the press to them, do not
strengthen the professions of the Nicaraguan Government that it has
“never” engaged in arms trafficking to the Salvadoran insurgents.

14. Details of Nicaraguan subversion of El Salvador provided in “Revolution
Beyond Our Borders” and in earlier publications duly submitted to the
Court — and Nicaragua’s reply

179. “Revolution Beyond Our Borders” contains a wealth of data, much
of it documented, supporting the claims of the United States that Nica-
ragua has been and is engaged in activities subverting the Government of
El Salvador, and, to a lesser extent, Honduras and Costa Rica. That data
appears to comport with the allegations of the Governments of El Salvador
and Honduras which have been set out above, and with significant facts as
they came to light in the oral hearings.

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180. The United States requested circulation of “Revolution Beyond Our
Borders” as a United Nations document (A/40/858-S/ 17612). By letter of
19 November 1985, the Permanent Representative of Nicaragua to the
United Nations responded, and characterized the report “as fabricated”’,
contending that it contains “disinformation for propaganda purposes”
(A/40/907-S/ 17639). What proof does Nicaragua offer “of the falsity of
the United States Government’s accusations” ? “As proof of the falsity of
the United States Government’s accusations, we attach the transcript of
the statement made before the Court by Mr. David MacMichael . . .”

181. The failure of Mr. MacMichael’s testimony to sustain Nicaragua’s
case has been analysed above. If all Nicaragua can say — and essentially
that is all it does say — in refutation of “Revolution Beyond Our Borders” is
what Mr. MacMichael says, then it may be recalled that :

— Mr. MacMichael’s testimony supports, rather than refutes, the validity
of the charges of the United States with respect to Nicaragua’s provision
of arms to Salvadoran insurgents until March 1981 ;

- Mr. MacMichael’s testimony establishes that he detected no “con-
vincing” or “substantial” or “significant” evidence of shipment of arms
from Nicaragua to Ei Salvador in the period March 1981-April 1983 ;
however, that conclusion is qualified by his admission of the intercep-
tion in Costa Rica of an arms shipment destined to move across Nica-
ragua to El Salvador in 1982 ; and it is qualified as well by his inability
to explain persuasively how it is that others who examined the same in-
telligence data as did he, such as Congressman Boland, are convinced
of continuing Nicaraguan support for the Salvadoran insurgents ;

— Mr. MacMichael confirms that leadership of the Salvadoran insurgents
regularly has operated out of Nicaragua, an opinion he does not con-
fine to the pre-1981 period ;

~ Mr. MacMichael confirms that the Salvadoran rebel radio station has
broadcast from Nicaragua.

182. It is Important that the Court has had the benefit of a reply by the
Nicaraguan Government to “Revolution Beyond Our Borders”, inadequate
as that reply is. There is every reason to suppose that, if Nicaragua were
able to make a more effective reply, it would. As it is, it seems fair to take
Nicaragua’s reply, if not as an acknowledgement of the truth of United
States allegations, and it is hardly that, then as an unconvincing refutation
of them. Moreover, much of the content of “Revolution Beyond Our Bor-
ders” was duly pleaded by the United States in its Counter-Memorial and
the annexes and documents filed with it. Nicaragua’s refutation of the
evidence there set out consisted essentially of Mr. MacMichael’s testi-
mony. For the reasons indicated in paragraph 181 of this appendix, that

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refutation is no more adequate in respect of such duly pleaded evidence
than it is in respect of “Revolution Beyond Our Borders”.

183. For example, Nicaraguan evidence and argument — and the
Court’s Judgment — do not begin to explain how it is that so many of the
arms with which the Salvadoran rebels were supplied, and which were
captured from them by the Salvadoran Army, reportedly have been traced
by serial number to shipments originally made by the United States to Viet
Nam and abandoned there (see Background Paper : Nicaragua’s Military
Build-Up and Support for Central American Subversion, pp. 21-22, and
“Revolution Beyond Our Borders”, p. 46). In that regard, it is significant
that, in 1981, a spokesman for Viet Nam acknowledged that weapons left
by the Americans in Viet Nam had been sent to insurgents in El Salvador
(see William Shawcross, “In Vietnam Now”, The New York Review of
Books, 24 September 1981, Vol. XXVIII, No. 14, p. 4). It is also suggestive
that, in March 1981, the Nicaraguan Minister of Defence, Commander
Humberto Ortega, stated in a speech in Hanoi that :

“We sincerely thank the Vietnamese people and highly value their
support for the heroic Salvadoran people . . . the fierce and bloody
struggle in El Salvador requires the support of all progressive nations
and forces through the world.” (FBIS, Vol. IV, Asia and Pacific,
12 March 1981, p. K8.)

184. Nor does the Court’s Judgment meet other points made in “Re-
volution Beyond Our Borders”, despite the fact that the Judgment acknow-
ledges that that publication may be taken into account by the Court. For
example, “Revolution Beyond Our Borders” maintains that, as a direct
result of support by Nicaragua and other States using Nicaragua as a
conduit, the Salvadoran guerrillas were transformed from terrorist fac-
tions that had been limited to robberies, kidnappings and occasional street
violence into an organized armed force able to mount a co-ordinated,
nationwide offensive. “Before the Sandinista Directorate took power in
Managua, there were guerrillas in El Salvador but no guerrilla war.” (At
pp. 2, 5.) But the Court’s Judgment gives no sense of appreciating the
impact on the character of the Salvadoran insurgency of Nicaragua’s
intervention, which has by no means been limited to the provision of arms
(even though that is the element of Nicaragua’s intervention which the
Court chooses to notice).

185. The Court’s Judgment does refer to the “final offensive” mounted
by the Salvadoran insurgents in January 1981. It notes that that offensive
failed, and maintains that any United States response to it which arguably
might have been justified if prompt surely could not be justified months
later. The weakness of that argument has been considered in the body of
this opinion. But it should be added that the Court’s Judgment takes no
account not only of the great damage wrought by that offensive (see the

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“FMLN Evaluation of the 1981 Offensive” reprinted in “Revolution
Beyond Our Borders”, p. 47) but of the “prolonged war” strategy of the
Salvadoran guerrillas which followed it, which has inflicted immense eco-
nomic and human losses upon El Salvador (ibid. p. 10). That prolonged
war could not have been sustained, at any rate with comparable effect,
without the prolongation of the Nicaraguan supply line. That FMLN
Evaluation, by the way, contains some revealing lines of Salvadoran
insurgent thinking about their Sandinista allies, among them :

“The people of Sandino, who opened the future of Central
America, will not kneel before the imperialists. The people of Cen-
tral America . . . will close ranks . . . Each new step that imperialism
takes in its military escalation against the Salvadorean people, in-
creases the threat against the Nicaraguan revolution . . .” (/bid, p. 48.)

186. Furthermore, the Court’s Judgment has nothing to say about the
considerable evidence in “Revolution Beyond Our Borders” of Nicaraguan
and Cuban training of Salvadoran insurgents, not merely for the 1981
offensive but for subsequent, continuing operations (ibid. pp. 11-12).
Equally, the Court’s Judgment is silent about the evidence of the presence
in Nicaragua of a general staff of Salvadoran guerrillas exercising com-
mand and control of their revolution from Nicaraguan territory (ibid.,
p. 12). That silence is the more remarkable in view of the acknowledgment
of such presence by Nicaragua’s witness, Mr. MacMichael, and the more
powerful acknowledgment still represented by the deaths in Managua of
the most senior of all Salvadoran revolutionary commanders, Salvador
Cayetano Carpio (“Commander Marcial”) and his deputy.

187. Nor do Nicaraguan denials, and the Court’s inferential acceptance
of them, adequately explain an occurrence such as that recounted in an
article in the New York Times of 20 December 1985, page AÏS, reporting an
automobile crash in Honduras in December 1985 which, it is claimed,
provided fresh evidence of continuing shipment of munitions and money
from Nicaragua to Salvadoran insurgents.

“The Reagan Administration said today that a recent traffic acci-
dent in Honduras had turned up strong evidence that cars with secret
compartments were being used to move military supplies from Nica-
ragua to Salvadoran guerrillas.

Elliott Abrams, Assistant Secretary of State for Inter-American
Affairs, displayed photographs and a videotape that the Honduran
authorities said they took when they dismantled a car after it was in an
accident on the Pan American Highway near La Leona on Dec. 7.

He said the bright green Lada car, which is built in the Soviet Union
under Fiat license, was carrying 7,000 rounds of ammunition, 86

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electric blasting caps, 20 fragmentation grenades, 17 grenade fuses,
radios and walkie-talkies, computer-made coding and de-coding
material and $27,400 in $100 bills.

The Nicaraguan Embassy in Washington said the authorities in
Managua had told them that they knew nothing about the car crash.
The embassy repeated previous assertions that the Sandinista Gov-
ernment was not involved in providing arms and ammunition to the
Farabundo Marti National Liberation Front in El Salvador. An
embassy spokesman, Miriam Hooker, called on the United States to
take its accusations to the International Court of Justice in The
Hague.

A Tire Blew Out

Mr. Abrams said the car, which had Costa Rican license plates, had
been driven from Costa Rica to Nicaragua, where it was loaded. It was
then driven across a corner of Honduras toward El Salvador, he said,
when a tire blew out and caused a crash.

When the Honduran police inspected it, he said, they found wires
protruding from what was an air conditioning duct. The wires, he said,
turned out to be parts of blasting caps. As a result, he said, the car was
taken to Tegucigalpa and dismantled. The ammunition and other
items were found in six concealed compartments, he said.

The driver of the car, identified as Elias Solis Gonzalez, a member
of Costa Rica’s Communist party, was arrested by Honduras,
Mr. Abrams said.

The dismantling operation was videotaped, he said, as a result of a
suggestion the United States made to the Honduran military several
years ago.

Mr. Abrams said three things led to the conclusion that the vehicle
had been loaded in Nicaragua. First, he said, the packing material
around the items in the secret compartments consisted of pages of the
official Sandinista newspaper Barricada. Second, the driver, a Costa
Rican, told the authorities that he was coming from Nicaragua.
Finally, he said, the communications gear and coding booklets were
clearly marked as coming from a guerrilla headquarters that ‘we know
for a fact is in Managua’.

Discounting suggestions made in the past that munitions shipments
from Nicaragua to the Salvadoran guerrillas might be the work of
people not affiliated with the Government or the Sandinista Front,
the ruling party, Mr. Abrams said it would be equally plausible to
suggest that the ‘tooth fairy’ was responsible.

‘It is impossible in a country with the degree of control that exists in
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MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

Nicaragua for there to be shops that build this kind of car, for there to
be ways of filling it with explosives, with letters from the Soviet Union
and Cuba, with code material which is generated by pretty sophisti-
cated computers,’ he said. ‘It is impossible that all that should take
place in Managua without the involvement of the Sandinistas.’

All of the shipment, he said, came from the Managua headquarters
of the Armed Liberation Forces and was intended for its fighters in El
Salvador. The Liberation Forces is the military wing of the Commu-
nist Party of El Salvador and one of five guerrilla groups in the
Farabundo Marti Front.

Mr. Abrams said that the Administration had previously accumu-
lated bits and pieces of evidence of such an arms route to El Salvador
but that this was the most conclusive evidence that Nicaragua con-
tinued to supply arms to the Salvadorans. Other such vehicles with
hidden compartments were found in Costa Rica and Honduras in
1980 and 1981, he said.”

For a similar account, see the Washington Post, 20 December 1985,
page A49.

188. Finally, Nicaraguan denials of its pervasive support of the Sal-
vadoran insurgency are belied by another, most recent survey on the scene,
by James Le Moyne, chief of the New York Times bureau in San Salvador.
In an article entitled, “The Guerrilla Network”, published in the New York
Times Magazine of 6 April 1986, Mr. Le Moyne comments on “the
revealing information” which “came to light a year ago with the capture of
Nidia Diaz” (supra, paras. 95-96, 105) and observes that :

495

“Recent months have also seen an increasing willingness of former
guerrilla officials to divulge details of their shadowy past. Several
high-level Sandinistas have left the Nicaraguan Government because
of what they describe as their unhappiness with the Sandinistas’
dependence on the Cubans and the Russians and their failure to
establish a pluralistic society. In the case of the Salvadorans, a few
commanders have been captured and been persuaded to give up the
fight ; others have been ousted over differences on how the revolution
is to proceed.

From interviews with these current and former guerrillas (con-
ducted separately over a six-month period), a clearer picture emerges
of the connections between the various leftist Central American rebel
factions — a picture that reveals a guerrilla movement that is anything
but monolithic. Details were offered, for instance, on the arms ship-
ments from Nicaragua to El Salvador, on the role of Cuba in the
planning of the abortive ‘final offensive’ in El Salvador in 1981, and
on the events leading up to the almost Shakespearean murder-suicide
506 = MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

of two prominent leaders of the Salvadoran guerrilla movement three
years ago.

The story behind the brutal killing of Melida Anaya Montes and the
suicide of the man implicated in her murder, Salvador Cayetano
Carpio, offers a rare glimpse of the frequently fractious society of
revolutionary leaders in Central America. In this instance, Mr. Car-
pio’s fiercely Stalinist stance pitted him against many within his own
group who sought greater unity among rebel factions as well as a
negotiated end to the fighting, a position that was strongly supported
by Cuba and Nicaragua.” (At p. 18.)

On the basis of his interviews with Salvadoran and other rebels, Mr. Le
Moyne recounts that Salvadoran guerrillas with leadership potential — and
their counterparts in other Central American countries ~ first were offered
basic military training at hidden camps in their own countries, and “Most
of them later appeared to receive more specialized training abroad — in
Cuba, various Eastern European countries and Vietnam” (p. 20). He
continues :

“Rebels say that Cuban embassies serve as refuges and bankers for
Central American leftists traveling abroad. In addition, say several
former rebels, almost all the top Sandinista commanders and most of
the very senior rebel officials in El Salvador and Guatemala have
received advanced guerrilla training in Cuba. The courses given range
from intelligence gathering to instructions in rural and urban guerrilla
warfare.” (P. 20.)

Mr. Le Moyne describes in some detail the training of senior Sandinista
and other Central American revolutionaries at Patrice Lumumba Univer-
sity in Moscow, in Cuba, and North Korea, as well as the hard and
dedicated life a guerrilla leads in the field. He continues :

“Several senior Sandinista officials have admitted they offered to
help the Salvadoran rebels with their revolution soon after Anastasio
Somoza was ousted. According to a number of former Sandinista
guerrilla commanders, the Nicaraguans were paying off a debt they
had incurred in 1978. At that time, the Salvadorans had managed to
amass a remarkable war chest estimated at more than $80 million
from kidnappings, and they decided to invest $10 million in the
Sandinista revolution. The money was handed over in Costa Rica, in
cash.

After the Sandinistas came to power, they allowed the five rebel
groups in the Salvadoran guerrilla front to set up their propaganda,
communications, financial and logistics offices in Managua. Men
who had worked for three leading Sandinistas — Julio Lopez, chief of

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MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

the Sandinista Directorate of International Relations ; Bayardo Arce
Castano, then the head of the political commission of the National
Directorate, and Tomas Borge — say that these officials helped over-
see several arms shipments to the Salvadorans. Mr. Borge denies
playing such a role. (Several former Sandinistas say that Mr. Lopez’s
directorate, which is modeled after Cuba’s Department of the Ameri-
cas, serves as the foreign ministry of the Sandinista Front, charged
with maintaining ties to other guerrilla groups.)

The Sandinistas offered other assistance as well. According to two
former Sandinista officials, a Central American — who had previously
worked in the United States as a Cuban agent specializing in the
workings of Congress and the American press — moved to Managua
where he carried out the same task for the Sandinistas. He briefed at
least one high-level Salvadoran rebel delegation that was sent to lobby
in the United States. ‘He told them how to approach a particular
Congressman, what illusions to appeal to, what his likes and dislikes
were’, says one of the former Sandinistas. ‘He also advised them on
how to talk to the American press.”

There was also cooperation closer to home. A Sandinista official
who worked in the Nicaraguan Embassy in Honduras in the early
1980’s says he secretly met Salvadoran rebels there to exchange intel-
ligence about the Honduran and Salvadoran armies and to arrange
arms shipments to El Salvador. The Salvadorans, he says, bribed
Honduran Army officers to let the weapons pass overland to El
Salvador.

As El Salvador slid to the edge of full-scale revolt, Cuba became an
important source of weapons and advice. According to a number of
former senior Salvadoran and Sandinista officials, Cuba helped
arrange for the supply of at least 60 percent of the weapons that
enabled the Salvadoran guerrillas to equip an army in record time.
American military officials, who say they have checked the serial
numbers of captured rifles, report that many are guns the United
States left behind in Vietnam.

Few of the arms shipments to El Salvador by way of Nicaragua
have been intercepted by Salvadoran or Honduran troops. A former
Sandinista official who says he helped arrange such shipments
describes one method of eluding detection. Rebel accomplices in
Panama, Costa Rica and Nicaragua placed guns in sealed trucks with
a manifest describing the cargo as industrial goods bound for Mexico
or Guatemala. When the truck crossed into El Salvador, rebel units
508  MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

there ‘hijacked’ the cargo by previous arrangement and removed the
hidden weapons.

When the time appeared ripe for the ‘final offensive’, recall two
former Sandinista officials, top Cuban officials — including Fidel
Castro and Manuel Pineiro — took part in strategy sessions with
Sandinista and Salvadoran commanders. The Cubans and most of the
Nicaraguans and the Salvadoran rebel command believed that the
Sandinista-style insurrection could be repeated in El Salvador, and
that it was important to act before Ronald Reagan became President.
Edén Pastora Gomez, then the Sandinista Deputy Minister of
Defense, disagreed.

He argued that conditions in El Salvador were very different from
those in Nicaragua. In a manner that has since been duplicated in the
Philippines, the Sandinistas had led a largely middle-class insurrec-
tion against a family dictatorship. In El Salvador, however, not only
were the guerrillas waging a war against a military dictatorship and
having to reckon with a potent Salvadoran Army, but they could not
count on the support of the middle class. Mr. Pastora predicted
disaster. The offensive was launched in January 1981. Mr. Pastora
proved correct.” (“The Guerrilla Network”, New York Times Maga-
zine, 6 April 1986, pp. 70-71.)

Mr. Le Moyne’s research into the Carpio affair is also of interest. He
depicts Mr. Carpio as a hard-line Stalinist, and states that several rebels
indicated that American pressure not only blunted the rebellion in El
Salvador but caused Cuba and Nicaragua to become concerned that “the
Reagan Administration was on the verge of retaliating against them. They
counseled that it was time to consider a negotiated end to the fighting.”
(P. 73.) But Mr. Carpio resisted that advice and apparently believed that
his chief opponent inclined to accept it was the second-highest-ranking
official in his group, Melida Montes. “On April 6, 1983, she was found
brutally murdered in her safe house in Managua . . . Miss Montes had just
returned from a visit to Cuba, en route to a party congress in El Salvador
and a final showdown with Mr. Carpio.” (Ibid.) He describes Mr. Carpio’s
involvement in her murder, the resultant pressures exerted upon
Mr. Carpio by the Nicaraguans, the orders issued to him by Nicaragua
to divulge information on the network which he had built which was
relatively independent of the Cubans and Sandinistas, and concludes :
“Rather than comply, Mr. Carpio went home and shot himself in the
heart.” (P. 75.) Home was in Nicaragua. Mr. Le Moyne further states :

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“After the United States invaded Grenada in late 1983, the San-
dinistas asked most Salvadoran rebels to leave Managua. These rebels
have now been allowed to return, but the Sandinistas also outraged
the Salvadorans by temporarily cutting arms supplies to them,
according to captured rebel documents.” (P. 79.)

I, In 1979, Members of the Nicaraguan National Guard Escaped to Hondu-

ras, from which they Harassed Nicaragua. Officers of the Argentine Army

Began Training these Counter-Revolutionaries apparently Late in 1980 or
Early 1981 — and Continued to Do so until Early 1984

189. Training of the contras who collected in Honduras was initially
undertaken by Argentine officers, provided by the Argentine Government,
beginning, it appears, sometime late in 1980 or early in 1981, well before
the United States support of the contras began. This is indicated by evi-
dence submitted by Nicaragua. For example, the Nicaraguan Memorial,
Annex F, Attachment 12, page 19 (“U.S. Backing Raids Against Nicara-
gua”, the New York Times, 2 November 1982), states that Argentina “had
organized anti-Sandinist paramilitary forces in Honduras 18 months ago,
before the American involvement”. That article further reports that, “Ini-
tially, Argentina did take the lead in supplying and directing the units” of
the contras. In a Security Council debate on 25 March 1982, Commander
Ortega claimed that the contras were being trained and advised “by active
and retired military personnel from Argentina and other South American
countries” (S/PV.2335, p. 31). What is not clear is whether such Argentine
assistance to the contras was undertaken initially with the support or
financing of the United States, or whether collaboration in such training
came about only at a later stage ; in view of indications that Argentine
training of the contras began as early as 1980, it is likely that the United
States then was not involved (see Christian, op. cit., p. 197, and para. 210
below). For some considerable time, it in any event appears that CIA
involvement was largely limited to financing the training of the contras
(and their Argentine trainers). An article introduced into evidence by
Nicaragua states :

“The program got off to a bad start when the CIA turned to a
surrogate, the right-wing military dictatorship in Argentina, to orga-
nize and train the Contras. The Argentines already had a small
training program for the Contras in Honduras, and by working with
them the U.S. shielded its own involvement. But the heavyhanded
Argentine approach tainted the movement in the eyes of many Nica-

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MILITARY AND PARAMILITARY ACTIVITIES (DISS. OP. SCHWEBEL)

raguans. The U.S. had few alternatives, since the CIA at the time
didn’t have any reliable paramilitary capability of its own.

The structure of the program was known as La Tripartita. The idea
was to combine American money, Argentine trainers and Honduran
territory to create a guerrilla army known as the Fuerza Democratica
Nicaragiiense, or FDN. Later, the U.S. financed other guerrilla
groups operating from Costa Rica.

The FDN embodied the political tensions that have plagued the
Contras from the beginning. Founded in August 1981, the group
combined a rightist military leadership, directed mostly by people
who had been loyal to deposed Nicaraguan dictator Anastasio
Somoza, with a moderate political leadership. It wasn’t a comfortable
marriage.

The head of the Argentine training mission in Honduras was Col.
Osvaldo Ribeiro, known as Ballita, or the Little Bullet. He became a
prominent figure in Tegucigalpa, living in a large house, distributing
American money and dispensing what CIA officials viewed as
unsound military advice. For example, since his own experience was
in urban rather than rural combat, he advised the Contras to mount a
program of urban terrorism. The CIA wanted to cultivate a popular
insurgency in the countryside.

The Argentines also apparently tolerated a practice of killing pris-
oners. A former Contra official describes the informal rule for dealing
with captives : If a prisoner has ammunition when captured, let him
live, since he hasn’t fought to the last bullet : if a prisoner hasn’t any
ammunition, kill him. (To stop the killing, CIA officers ordered in
mid-1982 that all prisoners be brought back to base for interroga-
tion.)’ (The Wall Street Journal, 5 March 1985, pp. 1, 24, reproduced
in the Nicaraguan Memorial, Ann. F, No. 191.)

This piece of Nicaraguan evidence also refers to the fast-deteriorating
situation in 1981 “as Nicaragua rushed weapons into El Salvador by the
truckload”. It concluded that the contra programme “has also reduced the
flow of arms in El Salvador”.

190. Dickey’s book With the Contras provides considerable detail about
Argentina’s relations with Nicaragua. He reports that, before Somoza’s

fall,

Argentina’s military government had placed an intelligence unit of

Argentine officers in Nicaragua in an effort to sustain Somoza, at the same
time as opponents of the Argentine Government, the montoneros, had

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fighters assisting the Sandinistas in Somoza’s overthrow. He indicates that
close relations between the Sandinista Government and the montoneros
were maintained thereafter, the montoneros serving in Sandinista intelli-
gence work. He reports that Somoza was murdered in Paraguay in 1980 by
an Argentine ERP guerrilla leader.

“The Argentine killers of the left and right, of the revolution and of
the government, who had stalked each other for so long, now began to
strike the enemies of their friends and the friends of their enemies.”
(Loc. cit., p. 89.)

According to Dickey, Argentina took the initiative as early as January 1981
in extending material support to the contras (that is, about a year before the
CIA appeared on the scene in Honduras) ; as noted, Christian puts the
beginnings of Argentine involvement with the contras a few months earlier.
Contras were taken to Argentina for training, and Argentine officers
undertook the training of the contras in Honduras. Training of the contras
appears to have been largely in Argentine hands into 1983 or 1984. While
Argentine relations with the United States became strained in the wake of
United States support for the United Kingdom after Argentina’s taking of
the Falklands (Malvinas) Islands in 1982, it appears that Argentine officers
remained in Honduras until as late as the beginning of 1984 (Dickey, loc.
cit., pp. 30-31, 54-55, 89-92, 113-119, 123-124, 145-146, 153, 156, 230, 251).
In his testimony before the Court, Commander Carrion stated that, “In
1982 up to the beginning of 1984 the main part of the training was given by
Argentine mercenaries...” (Hearing of 12 September 1985) ; CIA officers
were also employed, according to Commander Carrion, “particularly in
the area of sabotage and demolition”.

J. In November 1981, after Nicaragua Had Failed to Accept Repeated United

States Requests to Cease its Material Support for Salvadoran Insurgents, the

United States Decided to Exert Military Pressure upon Nicaragua in Order to
Force it to Do what it Would not Agree to Do

191. See paragraph 33 of this opinion, and paragraphs 169-170, 173,
110, 121-122, 128-129 of this appendix.

K. The Object of United States Support of the Contras Was Claimed by the
United States to Be Interdiction of Traffic in Arms to El Salvador, though
Clearly that Was not the Purpose of the Contras

192. See paragraphs 156-173 of this appendix.
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L. By October 1983, in Apparent Response to United States Pressures,

Nicaragua Proposed Four Treaties which Were Interpreted as an Offer to

Cease Supporting Rebellion in El Salvador if the United States Would Cease
Support of the Contras and of the Government of El Salvador

193. See paragraphs 174-178 of this appendix.

M. In 1983, the United States Called upon Nicaragua to Cut Back its Arms
Build-up, to Sever Its Ties With the USSR and Cuba, and to Carry Out its
Pledges to the OAS and its Members for a Democratic Society

194. Itis clear that, beginning in 1983, the United States expanded its
demands upon Nicaragua. Until some time in 1983, they were — actually or
ostensibly — essentially limited to Nicaragua’s cessation of its support for
the overthrow of El Salvador’s Government and the subversion of other
Central American States. Thereafter, they were widened to embrace not
only a cutback of Nicaragua’s military build-up (very large relative to
anything else in Central America, and so large by Latin American stan-
dards as to be exceeded only by Cuba and Brazil), but severance of its ties
to Cuba and the USSR and performance of its pledges for the establish-
ment of a democratic society.

195. In respect of Nicaragua’s military expansion, it is the fact that it
was undertaken on a large-scale when the Carter Administration was in
power and well before Nicaragua could have had colourable reason to
claim security concerns. It has continued at an intensive pace since, during
a period when Nicaragua can reasonably claim security concerns. An
essential element of the Contadora process is to introduce a better balance
in the military postures of the Central American States.

196. Contadora also calls for the withdrawal of foreign military advis-
ers, which appears to be the essential thrust of United States demands that
Nicaragua sever its ties with Cuba and the USSR and like-minded States. It
is the fact that, from the first days of Sandinista rule, very large numbers of
Cuban advisers, military and civilian, have been emplaced in Nicaragua
and in its governmental ministries, and that considerable numbers of
military, secret police or other advisers have been sent to Nicaragua by the
USSR, the German Democratic Republic, Bulgaria and other Communist
States, as well as the PLO and Libya.

197. Moreover, there are recurrent reports of the haven which various
terrorist elements allegedly have gained in Nicaragua. The United States
has publicly and officially made such charges ; there are reports that other
governments have made representations to Nicaragua through diplomatic
channels ; for its part, Nicaragua has denied such charges. It is claimed
that the Argentine montoneros, the Colombian M-19, the Italian Red
Brigades, and Peru’s Shining Path are among such elements (see Juan

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A. Tamayo, “Sandinistas Attract a Who’s Who of Terrorists”, and
“World’s Leftists find a Haven in Nicaragua”, the Miami Herald, 3 March
1985, pp. 1A, 22A. Mr. Tamayo indicates that his reports are based on
considerable interviewing in Managua.) Dickey’s reporting of collabora-
tion between the Argentine montoneros and the Sandinistas has been noted
above, as have charges of Nicaraguan support of the Colombian M-19.
Collaboration between the Sandinistas and the PLO and PFLP is said to go
back to at least 1970. For example, Sandinista Patrick Arguello Ryan,
according to an official United States report, was killed in the hijacking of
an El Al airliner en route from Tel Aviv to London on 6 September 1970.
He reportedly had been trained at a PLO camp. It is claimed that Arguello
is now treated by the Nicaraguan Government as a hero and that a large
dam under construction has been named in his honour (Department of
State, The Sandinistas and Middle East Radicals, 1985, p. 2.)

198. United States demands that the Nicaraguan Government nego-
tiate with the contras, and hold elections which will genuinely test San-
dinista governance, are controversial. For the reasons set out in Section V
of this opinion, and in the light of the commitments undertaken on behalf
of Nicaragua vis-a-vis the OAS and its Members in 1979 (App., paras. 8-
13), calls upon Nicaragua, to conduct itself in accordance with those
commitments are lawful. They are also consonant with the terms and
substance of the Contadora Document of Objectives.

N. By the Beginning of 1984, the United States Undertook Direct if Covert
Military Action against Nicaragua, Assaulting Oil Facilities and Mining
Nicaraguan Ports

199. The facts of this heading, which are developed in the Court’s
Judgment, are essentially uncontroverted.

O. Particularly Since January 1985, the United States Has Spoken in Terms

which Can Be Interpreted as Requiring Comprehensive Change in the Policies

of, or, Alternatively, Overthrow of, the Nicaraguan Government as a Condi-
tion of Cessation of its Support of the Contras

200. It is demonstrated by evidence volunteered by Nicaragua — the
transcript of the conversation between Messrs. Ortega and Enders — that
the United States made it clear that it accepted the Nicaraguan revolution
as “irreversible”. Such a policy is incompatible with the contention of
Nicaragua that the policy and actions of the United States Government
were, “from the beginning”, designed to overthrow the Nicaraguan Gov-
ernment. Moreover, the facts demonstrate that the United States extended
significant financial and other support to the Nicaraguan Government

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from the time it seized power until January 1981. The facts on both counts
show that United States policy at least into 1981 could not have been
designed or implemented with a view towards the overthrow of the Nica-
raguan Government.

201. As for the situation from 1982, when the contras began operations
(on any noticeable scale, in March 1982), and thereafter, the facts are not
so clear. My own reading of them is that the purpose of United States
support of the contras probably was not overthrow of the Nicaraguan
Government but rather the exertion of pressure upon it, initially designed
essentially to compel it to cease its support of insurgency in neighbouring
States. Later, in 1983, other purposes came into play, but these purposes
did not, and do not, necessarily imply overthrow of the Nicaraguan Gov-
ernment, for two reasons. First, the purposes as stated do not require
overthrow of the Nicaraguan Government, but rather changes in its inter-
nal and external conduct and representative character. Second, the size,
armament and training of contra forces, relative to those of the Nicaraguan
Government, have been so modest — the resources applied by the United
States in support of its Nicaraguan policy, comparatively so small — that it
is most improbable that the contras could overthrow the Nicaraguan
Government. Absolutely, the aid given to the contras has not been so small,
but relative to that which Communist and other States have given to
Nicaragua, and in relation to Nicaragua’s military strength, it is small. Nor
can the short-lived and limited direct United States attacks on Nicaraguan
oil facilities and ports and the mining of Nicaraguan ports be seen as
measures which were likely to lead to the overthrow of the Nicaraguan
Government.

202. Of course, the capacities of the contra forces, and the extent of
United States involvement in activities directed against Nicaragua, have
been and remain open to change. The ambitions of United States policy
apparently have evolved with time. As noted above, by 1983, the United
States was seeking a good deal more than the cessation of Nicaraguan
support of foreign insurgencies ; and the manual of psychological warfare
prepared by the CIA for distribution to contra forces in 1983 — which has
been repudiated as an authoritative statement of policy of the United
States Government — openly spoke of the overthrow of Sandinista author-
ity. By 1985, statements of President Reagan and Secretary of State Shultz
were open to the interpretation — they do not require the interpretation,
but they are open to the interpretation — of demanding and seeking
overthrow of the Nicaraguan Government. Some statements may so sug-
gest ; others affirm that the objects of United States policy are less far-
reaching. Both President Reagan and Secretary of State Shultz have
expressly affirmed that “the overthrow of the government of Nicaragua is
not the object nor the purpose of United States policy . . .” (United States
Counter-Memorial, Ann. 1, pp. 3-4). While the goal of Nicaragua’s policy
— the overthrow of the Government of El Salvador, if not of the Govern-

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ments of Honduras, Costa Rica and Guatemala — seems clear, the goal of
United States policy is more difficult to establish.

203. Thus one may contrast a written statement of United States policy
with President Reagan’s use of the expression, “say, ‘Uncle’ ”. Annex 95 to
the United States Counter-Memorial reproduces the text of a report to the
Congress by Secretary Shultz on 15 March 1984 pursuant to Section 109 (f)
of the Intelligence Authorization Act of 1984. At page 6, it is stated that, in
direct meetings in Managua with officials of the Nicaraguan Government,
a special Ambassador of the United States “made clear to the Sandinistas
our four policy objectives vis-a-vis Nicaragua” :

“(1) Implementation of the Sandinistas’ democratic commitments
to the OAS;

(2) Termination of Nicaragua’s support for subversion in neigh-
boring states ;

(3) Removal of Soviet/Cuban military personnel and termination
of their military and security involvement in Nicaragua ; and

(4) The reduction of Nicaragua’s recently expanded military appa-
ratus to restore military equilibrium among the Central American
states.”

It may be observed that these objectives are altogether consonant with the
Document of Objectives of the Contadora process. Such objectives are
expressed in relevant United States legislation, and repeated in very recent,
official statements of the United States.

204. Now let us look at the “say, ‘Uncle’ ” exchange. This is how it
ran :

“{Question :] Mr. President, on Capitol Hill .. . the other day, Sec-
retary Shultz suggested that a goal of your policy now is to remove the
Sandinista government in Nicaragua. Is that your goal ?

[The President :] Well, removed in the sense of its present structure,
in which it is a communist totalitarian state, and it is not a government
chosen by the people. So, you wonder sometimes about those who
make such claims as to its legitimacy. We believe, ... that we have an
obligation to be of help where we can to freedom fighters and lovers
of freedom and democracy, from Afghanistan to Nicaragua and
wherever there are people of that kind who are striving for that
freedom.

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[Question :] Well, sir, when you say remove it in the sense of its
present structure, aren’t you then saying that you advocate the over-
throw of the present Government of Nicaragua ?

[Answer :] Well, what ’'m saying is that this present government
was one element of the revolution against Somoza. The freedom
fighters are other elements of that revolution. And once victory was
attained, the Sandinistas .. . ousted and managed to rid themselves of
the other elements of the revolution and violated their own promise to
the Organization of American States, and as a result of which they had
received support from the Organization, . . . their revolutionary goal
was for democracy, free press, free speech, free labor unions, and
elections, and so forth, and they have violated that.

And... the freedom fighters opposing them, are Nicaraguan people
who want the goals of the revolution restored. And we’re going to try
to help.

Q. : Is the answer yes, sir ? Is the answer yes, then ?

A. : To what ?

Q. : To the question, aren’t you advocating the overthrow of the
present government ? If...

À. : Not if the present...

. 2... you substitute another form of what you say was the
revolution ?

A. : Not if the present government would turn around and say, all
right, if they’d say, ‘Uncle’. All right, come on back into the revolu-
tionary government and let’s straighten this out and institute the
goals.” (Memorial of Nicaragua, Ann. C, Att. I-14, pp. 5-6.)

205. Does President Reagan’s statement affirm — as Nicaragua trum-
pets — that United States policy is overthrow of the Government of
Nicaragua ? It is open to that interpretation. But the direct meaning of it is,
first, that the President declined to agree that the purpose of United States
policy is “the overthrow of the present government” and second, that the
President meant no more than that the present Nicaraguan Government
should re-admit the disaffected opposition and “institute the goals” of the
revolution, namely, genuinely free elections, a pluralistic system, respect
for human rights, and a foreign policy of non-alignment. Now it is per-
fectly true that, for the current Nicaraguan Government to make such
changes — for it to conduct free elections, to encourage a pluralistic society,
to respect human rights, and conduct a non-aligned foreign policy — would
require profound changes in the actual policies it pursues. It may be that

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the current Nicaraguan Government is incapable of such changes — and it
may not be. But the President’s statement does not necessarily equate with
overthrow of the Nicaraguan Government.

P. There Is Evidence of the Commission of Atrocities by the Contras, by
Nicaraguan Government Forces, and by Salvadoran Insurgents, and of Advo-
cacy by the CIA of Actions Contrary to the Law of War

206. There is substantial — and horrifying — evidence in the record, and
in the public domain, of violations of the law of war in the Nicaraguan
struggle, particularly by the contras based in Honduras and, apparently to
a lesser extent, by the Nicaraguan Government (see, e.g.. An Americas
Watch Report by Robert K. Goldman et al., Violations of the Law of War by
Both Sides in Nicaragua, 1981-1985, and ibid., First Supplement June 1985 ;
Amnesty International, Nicaragua: The Human Rights Record, 1986 ;
Leiken, loc. cit. p. 52). Contra atrocities are well documented (see, in
addition to the sources in the record and cited above, Dickey’s book, /oc.
cit., especially pp. 180-182, 186, 193-195, 224-227, 246-250). But there is
also substantial evidence in the public domain indicating that the Nica-
raguan Government has gone to considerable lengths to publicize actual or
alleged violations of the law of war by the contras, to influence the reports
of investigators of such violations, and to even more extreme lengths to
conceal and suppress evidence of its own violations (see, e.g., the detailed
statements supportive of these conclusions in Alvaro José Baldizon Aviles,
Inside the Sandinista Régime : A Special Investigator’s Perspective, Depart-
ment of State, 1985, especially pp. 10-16, and Mateo José Guerrero, Inside
the Sandinista Régime : Revelations by the Executive Director of the Gov-
ernment’s Human Rights Commission, Department of State, 1985, pp. 2-3,
and the comments by Leiken, /oc. cit., as well as the comments he quotes of
the director of Americas Watch on their allegations. See also, Inside
Communist Nicaragua : The Miguel Bolanos Transcripts, Heritage Foun-
dation, 1983, pp. 6-8). Moreover, there is substantial evidence in the public
domain of violation of the law of war by Salvadoran guerrillas, such as
shooting of non-combatants, abduction of civilians (mayors, the daughter
of the Salvadoran President), indiscriminate mining of roads, and other
such acts, evidence which is essentially uncontroverted. There is also in the
public domain a great deal of uncontroverted evidence of atrocities com-
mitted by right-wing death squads in El Salvador. Charges of indiscrimi-
nate bombing have been made against forces of the Government of El
Salvador, but these charges are controverted and controversial.

207. In proceedings before the Court, the Nicaraguan Government and

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its witnesses have submitted not only graphic evidence of atrocities alleged
to have been committed by the contras but claims that such atrocities have
been committed at the instigation of the United States. In support of those
latter claims, Nicaragua has submitted essentially three items of evidence :
an affidavit by Edgar Chamorro, a former contra official who now resides
in Florida ; the manual prepared by a CIA contractor entitled Psycho-
logical Operations in Guerrilla Warfare; and testimony by Professor
Glennon.

208. Nicaragua placed great reliance on the affidavit of Mr. Chamorro,
in this regard and in an effort to show that the United States organized, and
directed the military strategies and tactics of, the contra force and chose its
leadership. Mr. Chamorro did not appear in Court and was not subjected
to examination. His affidavit may be entitled to weight, but not necessarily
more weight than the affirmations of various defectors from the Sandin-
istas and Salvadoran guerrillas, such as Miguel Bolanos, a former Sandin-
ista State Security officer, paragraphs 99-100 of this appendix and Annex
46 to the United States Counter-Memorial ; “Commander Montenegro”, a
former Salvadoran guerrilla leader, paragraphs 101-103 of this appendix
and Annexes 48 and 49 to the United States Counter-Memorial ; Alvaro
José Baldizon Aviles, formerly Chief Investigator of the Special Investi-
gations Commission of the Nicaraguan Ministry of the Interior, some of
whose contentions have been quoted or referred to in paragraphs 28 and
104 of this appendix ; and still another Sandinista defector, Mateo José
Guerrero, who was the Executive Director of the Nicaraguan Govern-
ment’s official National Commission for the Promotion and Protection of
Human Rights until his defection in March 1985 (Inside the Sandinista
Régime : Revelations by the Executive Director of the Government’s Human
Rights Commission, loc. cit.). Their statements are in the public domain ;
they have been widely reported in the press ; some of those press articles
appear as Annexes duly submitted to the Court by the United States ; and
such reports are exactly of the same value as evidence as the hundreds of
articles annexed by Nicaragua to its pleadings. It is difficult to see why, if
the Court is justified in giving weight to Mr. Chamorro’s attestations, it
should give no weight to those of defectors from the Sandinistas such as
those just referred to, at any rate, those whose contentions were duly
submitted to the Court with the United States Counter-Memorial on
jurisdiction and admissibility.

209. Mr. Chamorro’s affidavit, which contains much of interest, has
passages which give one pause. Moreover, Mr. Chamorro, speaking in this
affidavit, says one thing ; but speaking in other contexts, also in evidence
proffered by Nicaragua, he says another.

210. Thus if we turn to the Nicaraguan Memorial, Annex F, Attach-
ment 163, pages 254-255, we find “Edgar Chamorro, an insurgent leader
expelled from the organization last month in a dispute with his colleagues”,
stating, according to this article, the following : contra commanders had

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the benefit of “training in Argentina in 1981, before CIA advisers took a
direct hand in running the rebellion” ; and José Francisco Cardenal, a
former Vice-President of the Council of State under the Sandinistas and a
leader of the contras until December 1982, “was dropped at the insistence
of Argentine advisers who were directing the insurgents in Honduras .. .
The dispute revolved around Cardenal’s efforts to act as leader, with
Argentine officers insisting on retaining control of the insurgency, Edgar
Chamorro recalled.” Chamorro is reported to have added : “At that time,
CIA advisers were playing a secondary role in Honduras and were rarely
seen there before guerrilla ranks began to grow in 1983.” (The Washington
Post, 17 December 1984, p. 2.) It may be asked whether these statements
attributed to Mr. Chamorro comport with the indications in his affidavit
(e.g., para. 10) that, in 1982, the whole enterprise was being run by the
CIA.

211. Mr. Chamorro affirms in his affidavit that it “was standard FDN
practice to kill prisoners and suspected Sandinista collaborators . . . The
CIA did not discourage such tactics. To the contrary...” (Para. 27.) But in
other evidence proffered by Nicaragua (Nicaraguan Memorial, Ann. F,
Ait. 188, p. 286), Mr. Chamorro is quoted as saying — in 1985 — that : “The
Americans were very strong on human rights. [Contra commander] Ber-
mudez was critical of some of them on that. He felt that they were trying to
find out too much.” (The Los Angeles Times, 4 March 1985, p. 12.) How can
Mr. Chamorro maintain that, on the one hand, the CIA did not discourage
the killing of prisoners and on the other that, “The Americans were very
strong on human rights” ? How could he say this in the same year, speaking
both times when he was well free of his connections with the contras ?

212. In respect of the quotation just given from his affidavit concerning
“standard FDN practice to kill prisoners and suspected Sandinista col-
laborators” (para. 27), which, Mr. Chamorro alleges, were “tactics
reflected in an operations manual prepared for our forces by a CIA
agent...” (para. 28), Mr. Chamorro proceeds to claim that, “In fact the
practices advocated in the manual were employed by FDN troops” (para.
28). But, in other evidence proffered by Nicaragua (Nicaraguan Memorial,
Ann. F, Att. 165, p. 257), Mr. Chamorro is quoted as giving another
impression. The practice of some rebel commanders executing their pris-
oners, which, he says, contra leaders found “sickening and disgusting”, was
“common but it definitely was not our policy” (“Nicaragua Rebels
Accused of Abuses”, the New York Times, 27 December 1984, p. 1). If it
was definitely not “our policy”, how could it have been the policy which
the CIA “did not discourage” ? Yet again, Mr. Chamorro is quoted as
saying : “Frankly, I admit we have killed people in cold blood when we
found them guilty of crimes. We do believe in the assassination of tyrants.
Some of the Sandinistas are tyrants in the small villages.” (Joel Brinkley,
“Legislators Ask if Reagan Knew of C.1.A.’s Role”, the New York Times,

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21 October 1984, p. 1.) This statement was promptly denied by a spokes-
man for the Nicaraguan Democratic Force, who maintained that : “We
have condemned any form of terrorism, including assassinations.”
(“Reagan to Dismiss Officials Responsible for Guerrilla Primer”, the New
York Times, 22 October 1984, pp. 1, 10.)

213. In his affidavit, Mr. Chamorro recounts that he had cut out pages
from the manual which recommended hiring professional criminals and
creating martyrs for the cause. “About 2,000 copies of the manual, with
only those two passages changed, were then distributed to FDN troops.”
(Para. 28.) These passages imply that the manual was read by FDN troops
and was a factor in the perpetration of their atrocities (an impression which
Mr. Chamorro’s affidavit and Nicaraguan counsel seem anxious to con-
vey). But what did Mr. Chamorro otherwise say on that very point ?
According to evidence offered by Nicaragua (Nicaraguan Memorial,
Ann. F, Att. 139, p. 229), Mr. Chamorro said of the manual : “I know that
people did not read it.” (“Alleged Author of CIA Manual Said to Be
Ex-GI”, the Washington Post, 20 October 1984.)

214. Since I have read the whole of Psychological Operations in Guerrilla
Warfare by “Tacayan” (Memorial of Nicaragua, Ann. G), I too believe
that people did not read it. It is difficult to suppose that the generality of
the contra fighters, many of whom are poorly educated campesinos, or even
their commanders, read some 90 pages of turgid prose, replete with
references to Aristotle, the HUK guerrilla movement of the Philippines,
and the “Socrates dialectic”. Those who might have read it, or parts of
it — Dickey reports that the manual was used in classes of a Nicara-
guan instructor of the contras (loc. cit., p. 256) — would have read a con-
fusing mixture. On the one hand, the manual counsels that the guerrillas
are to achieve :

“a Close identification with the people... working together with them
on their crops . . . in fishing, etc. . . . as long as explicit coercion is
avoided, positive attitudes can be achieved with respect to the pre-
sence of armed guerrillas within the population” (p. 2).

The importance of “Showing each guerrilla the need for good behaviour to
win the support of the population” is stressed (p. 6).

“(T]hese principles should be followed :

— Respect for human rights and others’ property.

— Helping the people in community work.

— Protecting the people from Communist. aggressions.

— Teaching the people environmental hygiene, to read, etc., in
order to win their trust, which will lead to a better democratic
ideological preparation.

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This attitude will foster the sympathy of the peasants for our
movement, and they will immediately become one of us, through lo-
gistical support, coverage and intelligence information on the enemy
or participation in combat. The guerrillas should be persuasive
through the word and not dictatorial with weapons. If they behave in
this way, the people will feel respected, will be more inclined to accept
our message and will consolidate into popular support.” (At p. 9.)

Thus each guerrilla “should be respectful and courteous with the
people...” (p. 10). The manual is full of homilies of this kind, apparently
designed to discourage abuses of human rights. Indeed, the origins of the
manual indicate that it was an attempt to curb abuses of human rights
which had been committed by groups of contras who had had some, largely
Argentine training but no effective control (see Dickey, op. cit., pp. 249-
257).

215. At the same time, the manual contains a section on “Implicit and
Explicit Terror” which advocates some acts within the bounds of the law of
war and some acts in violation of the law of war. Euphemistic terms in
some instances are used to describe such acts : e.g., Sandinista informants
will be “removed” (p. 13). On the one hand, this passage is found :

“_ The fact that the ‘enemies of the people’ — the officials or
Sandinista agents, must not be mistreated in spite of their criminal
acts, although the guerrilla force may have suffered casualties...” (At

p. 13.)

On the other hand, this passage is found, under the caption, “Selective Use
of Violence for Propagandistic Effects” :

“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.” (P. 14.)

Mr. Chamorro, in explaining why he had pages ripped out of the copies of
the manual which spoke of hiring criminals and making martyrs, but left
sections dealing with “neutralizing” selected officials intact, reportedly
stated : “To the rebels, Mr. Chamorro said, the word ‘neutralize’ did not
necessarily mean assassinate.” (“Legislators Ask if Reagan Knew of CIA’s
Role”, the New York Times, 21 October 1984, pp. 1, 13.)

216. “Psychological Operations in Guerrilla Warfare” was a low-level,
inadequately supervised and edited, haphazardly published product (if

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Mr. Chamorro’s affidavit is to be credited ; see para. 28). It appears to have
been composed in Honduras by a single CIA contractor, working with
Mr. Chamorro and a few other Nicaraguans, who seems to have drawn on
training documents for guerrilla warfare prepared in 1968 by the United
States Army, which he revised and elaborated (Psychological Operations in
Guerrilla Warfare, With Essays by Joanne Omang and Aryeh Neier, 1985,
pp. 27-28). Those training documents, in turn, allegedly were modelled on
Communist terror techniques (see “C.I.A. Manual Is Linked to Vietnam
War Guide”, the New York Times, 29 October 1984). Evidence introduced
by Nicaragua states that : “Mr. Chamorro was in charge of editing. . .”
(“CIA Aides Dispute Reagan on Primer”, the New York Times, 23 October
1984, Nicaraguan Memorial, Ann. F, Att. 141, p. 231.) “What the Agency
higher-ups thought of the manual nobody knew, and nobody seems to have
asked. The administration at Langley never bothered to read it.” The CIA
operations chief in charge of Nicaraguan affairs “could not. He didn’t
know Spanish.” (Dickey, loc. cit., p. 256.) There are indications that the
manual may have been cleared (even edited) by some middle-level CIA
officials (“C.I.A. Chief Defends Manual for Nicaraguan Rebels”, the New
York Times, 2 November 1984, p. A3) ; at any rate, after its existence was
made public, a half-dozen CIA officials were officially reprimanded in
regard to it, but whether for malfeasance or non-feasance is unclear.
Mr. Chamorro states in his affidavit that he complained to the CIA station
chief about the manual “and no action was ever taken in response to my
complaints” (at para. 28). However, in other evidence submitted by Nica-
ragua, Mr. Chamorro is reported to have said the following : “After he had
made his objections known, Chamorro said, several boxes of the manual
were picked up from his offices by U.S. personnel and he did not know
where they were taken.” (Christopher Dickey and Joanne Omang, “Al-
leged Author of CIA Manual Said to Be Ex-GI’”, the Washington Post,
20 October 1984, Nicaraguan Memorial, Ann. F, Att. 139, p. 229.) It has
been claimed by the United States Government that release of the manual
was never authorized (ibid.). Copies were, however, used in contra instruc-
tion (Dickey, /oc. cit., pp. 256, 310). In all, it may be concluded, as did a
Congressional investigation of the manual’s production which is quoted in
the Court’s Judgment, that : “Negligence, not intent to violate the law,
marked the manual’s history.” The fact remains that the manual says what
it says.

217. It is difficult to appraise the influence, if any, on the contras of the
manual, and of an accompanying “picture book” showing the reader how
to puncture tires, leave the lights burning, call in sick to work, make
Molotov cocktails and otherwise sabotage Sandinista rule. It is not pos-
sible to establish or disestablish that these documents were generally read
by the contras and had a genuine influence on their conduct. To the extent

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that they did have an influence, in some respects it might have been
beneficent, in others, vicious.

218. What is clear, however, is that passages of the manual advocate, or
in the least are open to being understood as advocating, gross violations of
the law of war, among them, and most reprehensibly, assassination of
those “carefully selected and planned targets” who are to be “neutralized”.
The text of the manual in the terms in which it was prepared by the CIA’s
contractor cannot be reconciled with the terms of the United States Army’s
The Law of Land Warfare and similar field manuals, nor with the terms of
the relevant Geneva Conventions and customary international law.

219. It is equally clear that it is not the proper function of the Gov-
ernment of the United States, or any government, to promote the publi-
cation of manuals which advocate acts in violation of the basic rules of the
law of war and of humanity. Acts such as assassination of non-combatants
are in gross violation of the Geneva Conventions, whether hostilities are
international or not. Does it follow that, by reason of its part, such as it
was, in the production of the manual, “Psychological Operations in Guer-
rilla Warfare”, the United States has violated its responsibility under
international law “to respect and ensure respect” for the provisions of the
Geneva Conventions for the Protection of War Victims to which it is a
Party (the quotation is from the text of common Article 1 of the Geneva
Conventions of 1949)? As pointed out in the body of this opinion, the
Geneva Conventions have not in the past been construed to treat advocacy
by a State of violations of the Geneva Conventions as a breach by that
State of its obligations under the Conventions. Nor is the delict of “in-
citement” known to customary international law. But whether or not the
United States role in the drafting and publication of the manual is a
violation of its obligations under the Geneva Conventions or customary
international law — and it does not appear to be — it can only be char-
acterized as an act which, in the least, is incompatible with their spirit and
with the conduct expected of responsible governmental authorities.

220. A second profoundly troubling question is whether the United
States, for the period and to the extent in which its agents trained contra
forces, can be said to have adequately instructed the contras on their
obligations under the law of war and, if not, what follows. The training of
the contras into 1984 appears to have been largely but certainly not entirely
conducted by Argentine officers and, since Congressional limitations were
imposed in 1984, there appears to have been no United States military
training ; the evidence of what United States trainers did is mixed ; but
production of the manual, of itself, suggests dereliction on the part of the
United States. The results, in terms of contra behaviour, certainly do not
show sufficient diligence of Argentine and United States trainers in

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instruction on the law of war. However, since the contras were and are not
under United States command, it does not follow that contra atrocities are
to be legally imputed to the United States. Many States train foreign
military forces, but it is not maintained that such States are, by reason of
such training, responsible for violations of the law of war committed by
such forces not under the command of those States.

221. In the circumstances of this case, I agree with the Court that
international responsibility for acts of the contras in violation of the law of
war cannot be imputed to the United States. No proof has been placed
before the Court which shows that the United States bears a direct
responsibility for such acts of the contras. United States forces have not
acted in the field together with the contras ; the contras are not led by
United States officers or reinforced with United States troops. As evidence
introduced by Nicaragua indicates (Nicaraguan Memorial, Ann. E, Ait. |,
p. 11), in the words of Congressman Boland speaking of the contras :
“These groups are not controlled by the United States. They constitute an
independent force .. .” (To the same effect, see Congressman Hamilton as
quoted by Nicaragua, ibid., pp. HS724-H5725.) For further indication in
evidence introduced by Nicaragua that American advisers do not control
ground operations conducted inside Nicaragua by rebel forces, see
Memorial of Nicaragua, Annex F, Attachment 72, page 125 : “Ameri-
cans on Ship Said to Supervise Nicaraguan Mining”, the New York Times,
8 April 1984, where it is stated :

“that unlike ground operations inside Nicaragua conducted by rebel
forces, which American advisers monitor from Honduras but do not
control, the planting of mines in Nicaraguan waters directly involves
Americans and is under their immediate control”.

222. It may further be recalled that the principal witness called by
Nicaragua on the question of the alleged responsibility of the United States
for atrocities committed by the contras was Professor Glennon. When ques-
tioned about matters of imputability, the following exchange occurred :

“fAnswer :] Judge Schwebel, we did not include in our study an
analysis of the issues of state responsibility and imputability as part of
our mission. Ours was a fact-finding mission and I really would prefer
not to comment beyond that.

[Question :] May I ask how you can conclude, if you have not con-
sidered questions of imputability, that the United States is responsi-
ble for violations of human rights by the contras ?

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[Answer :] Because the sponsors of our mission asked us to study
moral imputability as well as legal imputability. We set out Article 3
of the 1949 Geneva Convention in our report, but as you can see from
our report we did not get into the legal issues. I stand fully behind my
conclusion that the United States is responsible for the actions of the
contras and I think we meant that primarily in a moral sense, but as I
say our mission was directed to finding facts and I am convinced that
those facts are solid.” (Hearing of 16 September 1985.)

223. The conclusion that the acts of the contras in violation of the law of
war may not be legally imputed to the United States nevertheless does not
answer the question of whether the United States, if it is unable to exercise
adequate control over the conduct of the contras, should maintain support
of them — a question which understandably has provoked acute con-
troversy in the United States.

224. It should be added that, if the United States were to be held, as
Nicaragua maintains that it should be held, responsible for the atrocities of
the contras, then it would appear, by parity of reasoning, that Nicaragua
should be held responsible for the atrocities of the Salvadoran insurgents.
Those atrocities are incontrovertible. It has been established that the
Salvadoran insurgents have been armed, supplied, and in some measure
trained by the Nicaraguan Government and that command and control
facilities on Nicaraguan territory have been used by the Salvadoran insur-
gents, much of whose leadership has been and perhaps still is situated in
Nicaragua. Just as it does not appear that the contras have been under
United States command and it does not appear that United States officers
and troops have been in the field with the contras, so it does not appear that
the Salvadoran insurgents have been under Nicaraguan command and that
Nicaraguan officers and troops have been in the field with Salvadoran
forces. If these appearances are correct, then it would follow that Nica-
ragua is no more — but no less — responsible for the violations of the law of
war by the Salvadoran insurgents than is the United States responsible for
the violations of the law of war by the contras. However, Nicaragua is
responsible for any violations of the law of war directly attributable to its
forces, of which there is some evidence (see, inter alia, the sources cited in
paras. 13, 28, of this appendix). In any case, the responsibility or lack of
responsibility of one government or collection of insurgent authorities for
violations of the law of war cannot excuse the responsibility of another for
its violations.

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Q. The Contadora Process Designed to Re-establish Peace in Central
America Embraces the Democratic Performance Internally of the Five Cen-
tral American Governments

225. Question has been raised about the legality of United States
demands upon Nicaragua to reform its internal political processes so as to
promote democracy, pluralism, and observance of human rights, as well as
national reconciliation with opposition forces. The conclusion that Nica-
raguan commitments to the OAS and its Members place such subjects
within the sphere of international concern has been expounded in the body
of this opinion and in this appendix, in paragraphs 8-13.

226. Moreover, it is pertinent to recall that the Contadora Document of
Objectives, adopted on 9 September 1983 by the States participating in the
Contadora process including Nicaragua, includes the following provi-
sions :

“Considering :

The situation prevailing in Central America, which is characterized
by an atmosphere of tension that threatens security and peaceful
coexistence in the region, and which requires, for its solution, obser-
vance of the principles of international law governing the actions of
States, especially :

The self-determination of peoples . . .

Pluralism in its various manifestations ;

Full support for democratic institutions ;

The promotion of social justice...

Respect for and promotion of human rights; . . .

The undertaking to establish, promote or revitalize representative,
democratic systems in all the countries of the region; ...

Declare their intention of achieving the following objectives :

To ensure strict compliance with the aforementioned principles of
international law, whose violators will be held accountable ;

To respect and ensure the exercise of human, political, civil, eco-
nomic, social, religious and cultural rights ;

To adopt measures conducive to the establishment and, where
appropriate, improvement of democratic, representative and plural-
istic systems that will guarantee effective popular participation in the
decision-making process and ensure that the various currents of
opinion have free access to fair and regular elections based on the full
observance of citizens’ rights ;

To promote national reconciliation efforts wherever deep divisions
have taken place within society, with a view to fostering participation
in democratic political processes in accordance with the law; .. .”

227. It will be observed that calls upon Nicaragua to promote pluralism,

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full support for democratic institutions, human rights and a representative
and democratic system fall within the very terms of the Contadora
Document of Objectives to which it has agreed. The Contadora Docu-
ment of Objectives indeed describes these as “principles of international
law governing the actions of States”, from which it follows that, in Central
America, they can hardly be matters within the exclusive domestic juris-
diction and determination of those States, including Nicaragua. The States
concerned declare their intention of achieving the named objectives, which
embrace compliance with these principles of international law, and include
ensuring the exercise of human, political, civil, economic, social, religious
and cultural rights. They further include adoption of measures for the
establishment and improvement of democratic and pluralistic systems and
the promotion of national reconciliation. In view of the agreement by the
Government of Nicaragua to these principles — as “principles of interna-
tional law” — and to these objectives, there appears to be little legal ground
for its objecting to calls upon it to observe what it has pledged itself to
observe, in the Contadora context and otherwise. It may further be recalled
that the Charter of the Organization of American States provides that :

“The solidarity of the American States and the high aims which are
sought through it require the political organization of those States
on the basis of the effective exercise of representative democracy.”
(Art. 3, para. (d).)

(Initialled) S.MS.

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