Public International Law: Nicaragua v. US (1986)

 Public International Law | Act of State Organs

 

IV. Establishment of the facts: evidence and methods employed by the Court.

The Court has had to determine the facts relevant to the dispute. 
The difficulty of its task derived from the marked disagreement between the Parties, the non-appearance of the Respondent, the secrecy surrounding certain conduct, and the fact that the conflict is continuing. On this last point, the Court takes the view, in accordance with the general principles as to the judicial process, that the facts to be taken into account should be those occurring up to the close of the oral proceedings on the merits of the case (end of September 1985).

With regard to the production of evidence, the Court indicates how the requirements of its Statute in particular Article 53 and the Rules of Court have to be met in the case, on the basis that the Court has freedom in estimating the value of the various elements of evidence. It has not seen fit to order an enquiry under Article 50 of the Statute. 

With regard to certain documentary material (press articles and various books), the Court has treated these with caution. It regards than not as evidence capable of proving facts, but as material which can nevertheless contribute to corroborating the existence of a fact and be taken into account to show whether certain facts are matters of public knowledge. 

With regard to statements by representatives of States, sometimes at the highest level, the Court takes the view that such statements are of particular probative value when they acknowledge facts or conduct unfavourable to the State represented by the person who made them. 

With regard to the evidence of witnesses presented by Nicaragua; five witnesses gave oral evidence and another a written affidavit-one consequence of the absence of the Respondent was that the evidence of the witnesses was not tested by crossexamination. The Court has not treated as evidence any part of the testimony which was a mere expression of opinion as to the probability or otherwise of the existence of a fact not directly known to the witness. With regard in particular to affidavits and sworn statements made by members of a Government, the Court considers that it can certainly retain such parts of this evidence as may be regarded as contrary to the interests or contentions of the State to which the witness has allegiance; for the rest such evidence has to be treated with great reserve.

The Court is also aware of a publication of the United States State Department entitled “Revolution Beyond Our Borders, Sandinista Intervention in Central America” which was not submitted to the Court in any form or manner contemplated by the Statute and Rules of Court. The Court considers that, in view of the special circumstances of this case, it may, within limits, make use of information in that publication.

VII. The facts imputable to the United States

1. The Court examines the allegations of Nicaragua that the mining of Nicaraguan ports or waters was carried out by United States military personnel or persons of the nationality of Latin American countries in the pay of the United States. After examining the facts, the Court finds it established that, on a date in late 1983 or early 1984, the President of the United States authorized a United States Government agency to lay mines in Nicaraguan ports, that in early 1984 mines were laid in or close to the ports of El Bluff, Corinto and Puerto Sandino, either in Nicaraguan internal waters or in its territorial sea or both, by persons in the pay and acting on the instructions of that agency, under the supervision and with the logistic support of United States agents; that neither before the laying of the mines, nor subsequently, did the United States Government issue any public and official warning to international shipping of the existence and location of the mines; and that personal and material injury was caused by the explosion of the mines, which also created risks causing a rise in marine insurance rates.
2. Nicaragua attributes to the direct action of United States personnel, or persons in its pay, operations against oil installations, a naval base, etc., listed in paragraph 81 of the Judgment. The Court finds all these incidents, except three, to be established. Although it is not proved that any United States military personnel took a direct part in the operations, United States agents participated in the planning, direction and support. The imputability to the United States of these attacks appears therefore to the Court to be established.
3. Nicaragua complains of infringement of its air space by United States military aircraft. After indicating the evidence available, the Court finds that the only violations of Nicaraguan air space imputable to the United States on the basis of the evidence are high altitude reconnaissance flights and low altitude flights on 7 to 11 November 1984 causing “sonic booms.” With regard to joint military manoeuvres with Honduras carried out by the United States on Honduran territory near the Honduras/Nicaragua frontier, the Court considers that they may be treated as public knowledge and thus sufficiently established.
4. The Court then examines the genesis, development and activities of the contra force, and the role of the United States in relation to it. According to Nicaragua, the United States “conceived, created and organized a mercenary army, the contra force.” On the basis of the available information, the Court is not able to satisfy itself that the Respondent State “created” the contra force in Nicaragua, but holds it established that it largely financed, trained, equipped, armed and organized the FDN, one element of the force.
• It is claimed by Nicaragua that the United States Government devised the strategy and directed the tactics of the contra force, and provided direct combat support for its military operations. In the light of the evidence and material available to it, the Court is not satisfied that all the operations launched by the contra force, at every stage of the conflict, reflected strategy and tactics solely devised by the United States. It therefore cannot uphold the contention of Nicaragua on this point. The Court however finds it clear that a number of operations were decided and planned, if not actually by the United States advisers, then at least in close collaboration with them, and on the basis of the intelligence and logistic support which the United States was able to offer. It is also established in the Court’s view that the support of the United States for the activities of the contras took various forms over the years, such as logistic support the supply of information on the location and movements of the Sandinista troops, the use of sophisticated methods of communication, etc. The evidence does not however warrant a finding that the United States gave direct combat support, if that is taken to mean direct intervention by United States combat forces.
• The Court has to determine whether the relationship of the contras to the United States Government was such that it would be right to equate the contras, for legal purposes, with an organ of the United States Government, or as acting on behalf of that Government. The Court considers that the evidence available to it is insufficient to demonstrate the total dependence of the contras on United States aid. A partial dependency, the exact extent of which the Court cannot establish, may be inferred from the fact that the leaders were selected by the United States, and from other factors such as the organization, training and equipping of the force, planning of operations, the choosing of targets and the operational support provided. There is no clear evidence that the United States actually exercised such a degree of control as to justify treating the contras as acting on its behalf.
5. Having reached the above conclusion, the Court takes the view that the contras remain responsible for their acts, in particular the alleged violations by them of humanitarian law. For the United States to be legally responsible, it would have to be proved that that State had effective control of the operations in the course of which the alleged violations were committed.