Nicaragua v. United States

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The Republic of Nicaragua v. The United States of America^[1] was a case heard in 1986 by the International Court of Justice that found that the United States had violated international law by supporting Contra guerrillas in their war against the Nicaraguan government and by mining Nicaragua's harbors. The Court ruled in Nicaragua's favor, but the United States refused to abide by the Court's decision, on the basis that the court erred in finding that it had jurisdiction to hear the case,^[2] The court stated that the United States had been involved in the "unlawful use of force".^[3]

Contents 1 U.S. defense and response 2 Witnesses 2.1 First witness: Commander Luis Carrion 2.2 Second witness: Dr. David MacMichael 2.3 Third witness: Professor Michael Glennon 2.4 Fourth witness: Father Jean Loison 2.5 Fifth witness: William Hupper 3 The ruling 4 Legal clarification and importance 4.1 How the judges voted 5 See also 6 Notes 7 External links 8 References

[edit] U.S. defense and response

The United States refused to participate in the merits phase of the proceedings, but the Court found that the US refusal did not prevent it from deciding the case. The Court also rejected the United States defense that its action constituted collective self-defense. The United States argued that the Court did not have jurisdiction, with U.S. ambassador to the United Nations Jeane Kirkpatrick dismissing the Court as a "semi-legal, semi-juridical, semi-political body, which nations sometimes accept and sometimes don't." ^[4]

The United States had signed the treaty accepting the Court's decision as binding, but with the exception that the court would not have the power to hear cases based on multilateral treaty obligations unless it involved all parties to the treaty or United States specially agrees to jurisdiction. The court found that it was obliged to apply this exception and refused to take on claims by Nicaragua based on the United Nations Charter and Organization of American States charter, but concluded that it could still decide the case based on customary international law obligations with 11-4 majority.

On November 3, 1986 the United Nations General Assembly passed a non-binding resolution in order to pressure the U.S. to pay the fine. Only El Salvador, which also had disputes with Nicaragua, and Israel voted with the U.S. In spite of this resolution, the U.S. still chose not to pay the fine.

[edit] Witnesses

[edit] First witness: Commander Luis Carrion

The first witness called by Nicaragua was Nicaragua's first Vice Minister of the Interior, Commander Luis Carrion. Commander Carrion had overall responsibility for state security and was in charge of all government operations in the "principal war zone". He was responsible for monitoring United States involvement in military and paramilitary activities against Nicaragua, directing Nicaragua's military and intelligence efforts against the contra guerrillas.

Commander Carrion began by explaining the condition of the contras prior to United States' aid in December 1981. Commander Carrion stated that the contras consisted of insignificant bands of poorly armed and poorly organized members of Somoza's National Guard, who carried out uncoordinated border raids and rustled cattle (presumably for food).

In December 1981, the U.S. Congress authorized an initial appropriation of 19 million dollars to finance paramilitary operations in Nicaragua and elsewhere in Central America. Because of this aid, Commander Carrion stated that the contras began to become centralized and received both training and weapons from the CIA. During 1982 the contra guerrillas engaged the Sandinista armed forces in a series of hit and run border raids and carried out a number of sabotage operations including:

1. the destruction of two key bridges in the northern part of Nicaragua, and
2. the planting of bombs in Nicaraguan civil aircraft in Mexico and in the baggage area of a Nicaraguan port.

The United States Central Intelligence Agency, and Argentinean military officers financed by the CIA, were engaged in the training of the contra forces. The guerrillas received both basic infantry training as well as training in specialized sabotage and demolition for "special operation groups".

The U.S. Congress apportioned new funds for the contras to the amount of $30 million at the end of 1982. This made it possible for the contra forces to launch a military offensive against Nicaragua. According to Commander Carrion, the offensive known as "C Plan" had the objective of capturing the Nicaraguan border town of Jalapa in order to install a provisional government, which could receive international recognition. This plan failed.

After the failure of the Jalapa offensive the contras changed their tactics from frontal assaults to economic warfare against State farms, coffee plantations, grain storage centers, road junctions, etc.

The CIA began to support the contras by setting up and coordinating a communications and logistical system. The CIA supplied aircraft and the construction of airfields in the Honduran border area next to Nicaragua. This allowed the contras to carry out deep penetration raids into the more developed and populated areas of the Nicaraguan interior. U.S. Army engineers created this airfield. The purpose of these deep penetration attacks upon economic targets was to weaken the Nicaraguan economy, causing a shortages of goods.

As a part of its training program for the contras, the CIA prepared and distributed a manual entitled Psychological Operations in Guerrilla Warfare. This manual included instructions in the "use of implicit and explicit terror", and in the "selective use of violence for propaganda effects". Commander Carrion explained that the manual was given to the Contras, "All of these terrorist instructions have the main purpose of alienating the population from the Government through creating a climate of terror and fear, so that nobody would dare support the Government". The manual calls for the "neutralization" (i.e. assassination) of Sandinista local government officials, judges, etc. for purposes of intimidation. It was openly admitted by the President Reagan in a press conference that the manual had been prepared by a CIA contract employee.

After the United States Congress approved an additional $24 million aid to the contras in December 1983, a new offensive was launched, named Plan Sierra. This offensive involved approximately 7000 members of the contra forces. As in earlier attacks, the initial objective of this offensive was to capture the border town of Jalapa to install a provisional government, which the CIA informed the contras would be immediately recognized by the United States Government. But this contra offensive was also repulsed by the Nicaraguan government forces.

In the beginning of 1984, the contras made a major effort to prevent the harvesting of the coffee crop, which is one of Nicaragua's most important export products. Coffee plantations and state farms where coffee is grown were attacked, vehicles were destroyed, and coffee farmers were killed.

Commander Carrion testified that the ability of the contras to carry out military operations was completely dependent upon United States funding, training and logistical support. Carrion stated that the U.S. Government supplied the contras with uniforms, weapons, communications equipment, intelligence, training, and coordination in using this material aid.

In September 1983, CIA operatives blew up Nicaragua's only oil pipeline, which was used to transport oil from off-loading facilities to storage tanks on shore. The United States was also directly involved in a large scale sabotage operation directed against Nicaragua's oil storage facilities. This last attack was carried out by CIA contract employees termed by that organization as "Unilaterally Controlled Latin Assets" (UCLAs). The CIA personnel were also directly involved in a helicopter attack on a Nicaraguan army training camp. One of the helicopters was shot down by Nicaraguan ground fire resulting in the death of two U.S. citizens.

Commander Carrion testified that the United States was involved in the mining of Nicaragua's ports between February - April 1984. The mining operation was carried out by CIA ships directing the operation from international waters, while the actual mining was carried out by CIA employees on board speedboats operating inshore. After the mine-laying was completed the speedboats returned to the mother vessel.^[5][6]

Carrion stated that 3,886 people had been killed and 4,731 wounded in the four years since the contras began their attacks. Carrion estimated property damage at $375 million.^[7]

Commander Carrion stated if the United States stopped aid, support and training, this would result in the end of the contras military activities within three months. Asked why he was so sure of this, Commander Carrion answered, "Well, because the contras are an artificial force, artificially set up by the United States, that exists only because it counts on United States direction, on United States training, on United States assistance, on United States weapons, on United States everything...Without that kind of support and direction the contras would simply disband, disorganize, and thus lose their military capacity in a very short time".^[5]

[edit] Second witness: Dr. David MacMichael

David MacMichael was an expert on counter-insurgency, guerrilla warfare, and Latin American affairs, he was also a witness because he was closely involved with U.S. intelligence activities as a contract employee from March 1981 - April 1983. MacMichael worked for Stanford Research Institute, which was contracted by the U.S. Department of Defense. After this he worked two years for the CIA as a "senior estimates officer", preparing the National Intelligence Estimate. Dr. MacMichael's responsibility was centered upon Central America. He had top-secret clearance. He was qualified and authorized to have access to all relevant U.S. intelligence concerning Central America, including intelligence relating to alleged Nicaraguan support for, and arms shipments to the anti-Government insurgents in El Salvador. He took part in high level meetings of the Latin American affairs office of the CIA. Including a fall 1981 meeting, which submitted the initial plan to set up a 1500 man covert force on the Nicaraguan border, shipping arms from Nicaragua to the El Salvador insurgents. This plan was approved by President Reagan.^[8][7]

"The overall purpose (for the creation of the contras) was to weaken, even destabilize the Nicaraguan Government and thus reduce the menace it allegedly posed to the United States' interests in Central America..."

Contra paramilitary actions would "hopefully provoke cross-border attacks by Nicaraguan forces and thus serve to demonstrate Nicaragua's aggressive nature and possibly call into play the Organization of American States' provisions (regarding collective self-defense). It was hoped that the Nicaraguan Government would clamp down on civil liberties within Nicaragua itself, arresting its opposition, so demonstrating its allegedly inherent totalitarian nature and thus increase domestic dissent within the country, and further that there would be reaction against United States citizens, particularly against United States diplomatic personnel within Nicaragua and thus to demonstrate the hostility of Nicaragua towards the United States".

In response to repeated questions as to whether there was any substantial evidence of the supply of weapons to the guerrilla movement in El Salvador- either directly by the Nicaraguan Government itself-or with the knowledge, approval or authorization of the Nicaraguan Government of either non-official Nicaraguan sources, or by third country nationals inside or outside Nicaragua, using Nicaraguan territory for this purpose, Dr. MacMichael answered that there was no such evidence. In the opinion of the witness it would not have been possible for Nicaragua to send arms to the insurgents in El Salvador in significant amounts (as alleged by the U.S. Government) and over a prolonged period, without this being detected by the U.S. intelligence network in the area...Counsel for Nicaragua, asked the witness several times whether any detection of arms shipments by or through Nicaragua had taken place during the period he was employed by the CIA. (MacMichael) answered repeatedly that there was no such evidence. He also stated that after his employment had terminated, nothing had occurred that would cause him to change his opinion. He termed the evidence that had been publicly disclosed by the U.S. Government concerning Nicaraguan arms deliveries to the El Salvadoran insurgents as both "scanty" and "unreliable". The witness did however state that based on evidence, which had been gathered immediately prior to his employment with the CIA, evidence he had already actually seen, there was substantial evidence that arms shipments were reaching El Salvador from Nicaragua - with the probable involvement and complicity of the Nicaraguan Government - through late 1980 up until the spring of 1981....But this evidence, which most importantly had included actual seizures of weapons, which could be traced to Nicaragua, as well as documentary evidence and other sources, had completely ceased by early 1981. Since then, no evidence linking Nicaragua to shipments of arms in any substantial quantities had resumed coming in.^[8]

[edit] Third witness: Professor Michael Glennon

Mr. Glennon testified about a fact-finding mission he had conducted in Nicaragua to investigate alleged human rights violations committed by the contra guerrillas, sponsored by the International Human Rights Law Group, and the Washington Office on Latin America. Glennon conducted the investigation with Mr. Donald T. Fox who is a New York attorney and a member of the International Commission of Jurists.

They traveled to Nicaragua, visiting the northern region where the majority of contra military operations took place. The two lawyers interviewed around 36 northern frontier residents who had direct experience with the contras. They also spoke with the U.S. Ambassador to Nicaragua, and with senior officials of the U.S. Department of State in Washington after returning to the United States.

No hearsay evidence was accepted. Professor Glennon stated that those interviewed were closely questioned and their evidence was carefully cross-checked with available documentary evidence. Doubtful "testimonies" were rejected, and the results were published in April l985. The conclusions of the report were summarized by Glennon in Court:

"We found that there is substantial credible evidence that the contras were engaged with some frequency in acts of terroristic violence directed at Nicaraguan civilians. These are individuals who have no connection with the war effort-persons with no economic, political or military significance. These are Individuals who are not caught in the cross-fire between Government and contra forces, but rather individuals who are deliberately targeted by the contras for acts of terror. "Terror" was used in the same sense as in recently enacted United States law, i.e. "an activity that involves a violent act or an act dangerous to human life that Is a violation or the criminal law, and appears to be intended to intimidate or coerce a civilian population, to Influence the policy of a government by intimidation or coercion, or to affect the conduct of a government by assassination or kidnapping".

In talks with U.S. State Department officials, at those in Managua U.S. Embassy, and with officials in Washington, Professor Glennon had inquired whether the U.S. Government had ever investigated human rights abuses by the contras. Professor Glennon testified that no such investigation had ever been conducted, because in the words of a ranking State Department official who he could not name, the U.S. Government maintained a policy of "intentional ignorance" on the matter. State Department officials in Washington- had admitted to Glennon that "it was clear that the level of atrocities was enormous". Those words "enormous" and "atrocities" were the ranking State Department official's words.^[9]

[edit] Fourth witness: Father Jean Loison

Father Jean Loison was a French priest who worked as a nurse in a hospital in the northern frontier region close to Honduras.

Asked whether the contras engaged in acts of violence directed against the civilian population, Father Loison answered:

"Yes, I could give you several examples. Near Quilali, at about 30 kilometers east of Quilali, there was a little village called El Coco. The contras arrived, they devastated it, they destroyed and burned everything. They arrived in front of a little house and turned their machinegun fire on it, without bothering to check if there were any people inside. Two children, who had taken fright and hidden under a bed, were hit. I could say the same thing of a man and woman who were hit, this was in the little co-operative of Sacadias Olivas. It was just the same. They too had taken fright and got into bed. Unlike El Coco, the contras had just been on the attack, they had encountered resistance and were now in flight. During their flight they went into a house, and seeing that there were people there, they threw grenade. The man and the woman were killed and one of the children was injured."

About contra kidnappings:

"I would say that kidnappings are one of the reasons why some of the peasants have formed themselves into groups. Here (indicates a point on the map) is Quilali. Between Quilali and Uilili, in this region to the north, there are hardly any peasants left of any age to bear arms, because they have all been carried off"."

Father Loison described many examples of violence, mostly indiscriminate, directed at the civilian population in the region where he resides. The picture that emerges from his testimony is that the contras engage in brutal violation of minimum standards of humanity. He described murders of unarmed civilians, including women and children, rape followed in many instances by torture or murder, and indiscriminate terror designed to coerce the civilian population. His testimony was similar to various reports including the International Human Rights Law Group, Amnesty International, and others.^[10]

[edit] Fifth witness: William Hupper

William Hupper was Nicaragua's Minister of Finance. He testified about Nicaragua economic damage, including the loss of fuel as a result of the attack in the oil storage facilities at Corinto, the damage to Nicaragua's commerce as a result of the mining of its ports, and other economic damage.^[11]

[edit] The ruling

On June 27, 1986, the Court found that:

• The United States of America, by training, arming, equipping, financing and supplying the Contra forces or otherwise encouraging, supporting and aiding military and paramilitary activities in and against Nicaragua, has acted, against the Republic of Nicaragua, in breach of its obligation under customary international law not to intervene in the affairs of another State.
• The United States of America, by certain attacks on Nicaraguan territory in 1983-1984, namely attacks on Puerto Sandino on September 13 and October 14 1983, an attack on Corinto on October 10 1983; an attack on Potosi Naval Base on January 4 and 5 1984, an attack on San Juan del Sur on March 7 1984; attacks on patrol boats at Puerto Sandino on March 28 and 30 1984; and an attack on San Juan del Norte on April 9, 1984; and further by those acts of intervention referred to [above], which involve the use of force, has acted, against the Republic of Nicaragua, in breach of its obligation under customary international law not to use force against another State.
• The United States of America, by directing or authorizing over Rights of Nicaraguan territory, and by the acts imputable to the United States referred to [above], has acted, against the Republic of Nicaragua, in breach of its obligation under customary international law not to violate the sovereignty of another State.
• By laying mines in the internal or territorial waters of the Republic of Nicaragua during the first months of 1984, the United States of America has acted, against the Republic of Nicaragua, in breach of its obligations under customary international law not to use force against another State, not to intervene in its affairs, not to violate its sovereignty and not to interrupt peaceful maritime commerce.
• The United States of America, by the attacks on Nicaraguan territory referred to [above], and by declaring a general embargo on trade with Nicaragua on May 1, 1985, has acted in breach of its obligations under Article XIX of the Treaty of Friendship, Commerce and Navigation between the Parties signed at Managua on January 21, 1956.
• The United States of America, by producing in 1983 a manual entitled 'Operaciones sicológicas en guerra de guerrillas' ("Psychological Operations in Guerrilla Warfare")^[12], and disseminating it to Contra forces, has encouraged the commission by them of acts contrary to general principles of humanitarian law; but [the Court] did not find a basis for concluding that any such acts that may have been committed were imputable to the United States of America as acts of the United States of America.
• The United States of America had to pay reparations for the damage.

[edit] Legal clarification and importance

The ruling did in many ways clarify issues surrounding prohibition of the use of force and the right of self-defence. ^[13] Arming and training the Contra was found to be in breach with principles of non-intervention and prohibition of use of force, as was laying mines in Nicaraguan territorial waters.

Nicaragua's dealings with the armed opposition in El Salvador, although it might be considered a breach with the principle of non-intervention and the prohibition of use of force, did not constitute "an armed attack," which is the wording in article 51 justifying the right of self-defence.

The Court considered also the United States claim to be acting in collective self-defence of El Salvador and found the conditions for this not reached as El Salvador never requested the assistance of the United States on the grounds of self-defence.

[edit] How the judges voted

Votes of Judges - Nicaragua v. United States

Judge

Operative Paragraph

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

President Nagendra Singh (India)

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Vice-President de Lacharrière (France)

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Judge Ago (Italy)

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Judge Bedjaoui (Algeria)

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Judge Elias (Nigeria)

N

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Judge Lachs (Poland)

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Judge Mbaye (Senegal)

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Judge Ni (People's Republic of China)

N

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Judge Oda (Japan)

Y

N

N

N

N

N

Y

N

N

N

N

N

N

Y

Y

Y

Judge Ruda (Argentina)

N

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Judge Schwebel (United States)

Y

N

N

N

N

N

N

Y

Y

N

N

N

N

N

N

Y

Judge Sette-Camara (Brazil)

N

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Judge Sir Robert Jennings (United Kingdom)

Y

N

N

N

N

N

Y

Y

Y

N

N

N

N

Y

Y

Y

Judge ad hoc Colliard (France)

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

[edit] See also

• Iran-Contra Affair
• Psychological Operations in Guerrilla Warfare

[edit] Notes

[edit] External links

• Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States Of America). International Court of Justice. Retrieved on February 12, 2006.

[edit] References