|II. ||Substantive International Law - Second Part|
|10. ||LAW OF ARMED CONFLICTS|
Military and Paramilitary Activities
(Nicaragua/United States of America)
Merits. J. 27.6.1986
I.C.J. Reports 1986, p. 14
[p. 112] The Court has noted above (paragraph 77 in fine)
that the United States did not issue any warning or notification of the presence
of the mines which had been laid in or near the ports of Nicaragua. Yet even in
time of war, the Convention relative to the laying of automatic submarine
contact mines of 18 October 1907 (the Hague Convention No. VIII) provides that "every
possible precaution must be taken for the security of peaceful shipping"
and belligerents are bound
"to notify the danger zones as soon as military exigencies permit, by a
notice addressed to ship owners, which must also be communicated to the
Governments through the diplomatic channel" (Art. 3).
Neutral Powers which lay mines off their own coasts must issue a similar
notification, in advance (Art. 4). It has already been made clear above that in
peacetime for one State to lay mines in the internal or territorial waters of
another is an unlawful act; but in addition, if a State lays mines in any waters
whatever in which the vessels of another State have rights of access or passage,
and fails to give any warning or notification whatsoever, in disregard of the
security of peaceful shipping, it commits a breach of the principles of
humanitarian law underlying the specific provisions of Convention No. VIII of
1907. Those principles were expressed by the Court in the Corfu Channel
case as follows:
"certain general and well recognized principles, namely: elementary
considerations of humanity, even more exacting in peace than in war" (I.C.J.
Reports 1949, p. 22).
[pp. 113-114] ... the conduct of the United States may be judged
according to the fundamental general principles of humanitarian law; in its
view, the Geneva Conventions are in some respects a development, and in other
respects no more than the expression, of such principles. It is significant in
this respect that, according to the terms of the Conventions, the denunciation
of one of them
"shall in no way impair the obligations which the Parties to the
conflict shall remain bound to fulfil by virtue of the principles of the law of
nations, as they result from the usages established among civilized peoples,
from the laws of humanity and the dictates of the public conscience"
(Convention I, Art. 63; Convention II, Art. 62; Convention III, Art. 142;
Convention IV, Art. 158).
Article 3 which is common to all four Geneva Conventions of 12 August 1949
defines certain rules to be applied in the armed conflicts of a
non-international character. There is no doubt that, in the event of
international armed conflicts, these rules also constitute a minimum yardstick,
in addition to the more elaborate rules which are also to apply to international
conflicts; and they are rules which, in the Court's opinion, reflect what the
Court in 1949 called "elementary considerations of humanity" (Corfu
Channel, Merits, I.C.J. Reports 1949, p. 22; paragraph 215 above). The Court
may therefore find them applicable to the present dispute, and is thus not
required to decide what role the United States multilateral treaty reservation
might otherwise play in regard to the treaties in question.
The conflict between the contras' forces and those of the Government
of Nicaragua is an armed conflict which is "not of an international
character". The acts of the contras towards the Nicaraguan
Government are therefore governed by the law applicable to conflicts of that
character; whereas the actions of the United States in and against Nicaragua
fall under the legal rules relating to international conflicts. Because the
minimum rules applicable to international and to non-international conflicts are
identical, there is no need to address the question whether those actions must
be looked at in the context of the rules which operate for the one or for the
other category of conflict. The relevant principles are to be looked for in the
provisions of Article 3 of each of the four Conventions of 12 August 1949, the
text of which, identical in each Convention, expressly refers to conflicts not
having an international character.
The Court considers that there is an obligation on the United States
Government, in the terms of Article 1 of the Geneva Conventions, to "respect"
the Conventions and even "to ensure respect" for them "in all
circumstances", since such an obligation does not derive only from the
Conventions themselves, but from the general principles of humanitarian law to
which the Conventions merely give specific expression. The United States is thus
under an obligation not to encourage persons or groups engaged in the conflict
in Nicaragua to act in violation of the provisions of Article 3 common to the
four 1949 Geneva Conventions.
[pp. 124-125] There can be no doubt that the provision of strictly
humanitarian aid to persons or forces in another country, whatever their
political affiliations or objectives, cannot be regarded as unlawful
intervention, or as in any other way contrary to international law. The
characteristics of such aid were indicated in the first and second of the
fundamental principles declared by the Twentieth International Conference of the
Red Cross, that
"The Red Cross, born of a desire to bring assistance without
discrimination to the wounded on the battlefield, endeavours - in its
international and national capacity - to prevent and alleviate human suffering
wherever it may be found. Its purpose is to protect life and health and to
ensure respect for the human being. It promotes mutual understanding,
friendship, cooperation and lasting peace amongst all peoples"
"It makes no discrimination as to nationality, race, religious beliefs,
class or political opinions. It endeavours only to relieve suffering, giving
priority to the most urgent cases of distress."
[p. 125] An essential feature of truly humanitarian aid is that it
is given "without discrimination" of any kind. In the view of the
Court, if the provision of "humanitarian assistance" is to escape
condemnation as an intervention in the internal affairs of Nicaragua, not only
must it be limited to the purposes hallowed in the practice of the Red Cross,
namely "to prevent and alleviate human suffering", and "to
protect life and health and to ensure respect for the human being"; it must
also, and above all, be given without discrimination to all in need in
Nicaragua, not merely to the contras and their dependents.