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World Court Digest

I. Substantive International Law - First Part
8.6. Participation

¤ Military and Paramilitary Activities
(Nicaragua/United States of America)
Merits. J. 27.6.1986
I.C.J. Reports 1986, p. 14

[p. 130] It is also appropriate to recall the circumstances in which the manual of psychological operations was issued. When considering whether the publication of such a manual, encouraging the commission of acts contrary to general principles of humanitarian law, is unlawful, it is material to consider whether that encouragement was offered to persons in circumstances where the commission of such acts was likely or foreseeable. The Court has however found (paragraph 121) that at the relevant time those responsible for the issue of the manual were aware of, at the least, allegations that the behaviour of the contras in the field was not consistent with humanitarian law; it was in fact even claimed by the CIA that the purpose of the manual was to "moderate" such behaviour. The publication and dissemination of a manual in fact containing the advice quoted above must therefore be regarded as an encouragement, which was likely to be effective, to commit acts contrary to general principles of international humanitarian law reflected in treaties.
[pp. 388-389 D.O. Schwebel] Customary international law does not know the delict of "encouragement". There appears to be no precedent for holding a State responsible 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 violations of that law fails to "ensure respect" for the Geneva Conventions, as by their terms it is obliged to do.