I. | Substantive International Law - First Part |
8. | VIOLATIONS OF INTERNATIONAL LAW AND RESPONSIBILITY OF STATES |
8.4. | Imputability |
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Military and Paramilitary Activities
(Nicaragua/United States of America)
Merits. J. 27.6.1986
I.C.J. Reports 1986, p. 14
[p. 62] What the Court has to determine at this point is whether or
not the relationship of the contras to the United States Government was
so much one of dependence on the one side and control on the other 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. Here it is
relevant to note that in May 1983 the assessment of the Intelligence Committee,
in the Report referred to in paragraph 95 above, was that the contras "constitute[d]
an independent force" and that the "only element of control that could
be exercised by the United States" was "cessation of aid".
Paradoxically this assessment serves to underline, a contrario, the
potential for control inherent in the degree of the contras' dependence
on aid. Yet despite the heavy subsidies and other support provided to them by
the United States, there is no clear evidence of the United States having
actually exercised such a degree of control in all fields as to justify treating
the contras as acting on its behalf.
[p. 63] In the view of the Court it is established that the contra
force has, at least at one period, been so dependent on the United States that
it could not conduct its crucial or most significant military and paramilitary
activities without the multi-faceted support of the United States. This finding
is fundamental in the present case. Nevertheless, adequate direct proof that all
or the great majority of contra activities during that period received this
support has not been, and indeed probably could not be, advanced in every
respect. It will suffice the Court to stress that a degree of control by the
United States Government, as described above, is inherent in the position in
which the contra force finds itself in relation to that Government.
[pp. 64-65] The Court has taken the view (paragraph 110 above) that
United States participation, even if preponderant or decisive, in the financing,
organizing, training, supplying and equipping of the contras, the
selection of its military or paramilitary targets, and the planning of the whole
of its operation, is still insufficient in itself, on the basis of the evidence
in the possession of the Court, for the purpose of attributing to the United
States the acts committed by the contras in the course of their military
or paramilitary operations in Nicaragua. All the forms of United States
participation mentioned above, and even the general control by the respondent
State over a force with a high degree of dependency on it, would not in
themselves mean, without further evidence, that the United States directed or
enforced the perpetration of the acts contrary to human rights and humanitarian
law alleged by the applicant State. Such acts could well be committed by members
of the contras without the control of the United States. For this
conduct to give rise to legal responsibility of the United States, it would in
principle have to be proved that that State had effective control of the
military or paramilitary operations in the course of which the alleged
violations were committed.
The Court does not consider that the assistance given by the United States
to the contras warrants the conclusion that these forces are subject to
the United States to such an extent that any acts they have committed are
imputable to that State. It takes the view that the contras remain
responsible for their acts, and that the United States is not responsible for
the acts of the contras, but for its own conduct vis-à-vis
Nicaragua, including conduct related to the acts of the contras. What
the Court has to investigate is not the complaints relating to alleged
violations of humanitarian law by the contras, regarded by Nicaragua as
imputable to the United States, but rather unlawful acts for which the United
States may be responsible directly in connection with the activities of the contras.
The lawfulness or otherwise of such acts of the United States is a question
different from the violations of humanitarian law of which the contras
may or may not have been guilty. It is for this reason that the Court does not
have to determine whether the violations of humanitarian law attributed to the
contras were in fact committed by them. At the same time, the question
whether the United States Government was, or must have been, aware at the
relevant time that allegations of breaches of humanitarian law were being made
against the contras is relevant to an assessment of the lawfulness of
the action of the United States. In this respect the material facts are
primarily those connected with the issue in 1983 of a manual of psychological
operations.
[pp. 83-84] Secondly, even supposing it well established that
military aid is reaching the armed opposition in El Salvador from the territory
of Nicaragua, it still remains to be proved that this aid is imputable to the
authorities of the latter country. Indeed, the applicant State has in no way
sought to conceal the possibility of weapons en route to the armed opposition in
El Salvador crossing its territory but it denies that this is the result of any
deliberate official policy on its part. As the Court observed in 1949:
"it cannot be concluded from the mere fact of the control exercised by
a State over its territory and waters that that State necessarily knew, or ought
to have known, of any unlawful act perpetrated therein, nor yet that it
necessarily knew, or should have known, the authors. This fact, by itself and
apart from other circumstances, neither involves prima facie
responsibility nor shifts the burden of proof." (Corfu Channel, I.C.J.
Reports 1949, p. 18.)
[p 85] ... if the flow of arms is in fact reaching El Salvador
without either Honduras or El Salvador or the United States succeeding in
preventing it, it would clearly be unreasonable to demand of the Government of
Nicaragua a higher degree of diligence than is achieved by even the combined
efforts of the other three States. In particular, when Nicaragua is blamed for
allowing consignments of arms to cross its territory, this is tantamount, where
El Salvador is concerned, to an admission of its inability to stem the flow.
This is revealing as to the predicament of any government, including that of
Nicaragua, faced with this arms traffic: its determination to put a stop to it
would be likely to fail. More especially, to the extent that some of this aid is
said to be successfully routed through Honduras, this accusation against
Nicaragua would also signify that Honduras, which is not suspected of seeking to
assist the armed opposition in El Salvador, is providing involuntary proof that
it is by no means certain that Nicaragua can combat this clandestine traffic any
better than Honduras. As the means at the disposal of the governments in the
region are roughly comparable, the geographical obstacles, and the intrinsic
character of any clandestine arms traffic, simply show that this traffic may be
carried on successfully without any complicity from governmental authorities,
and even when they seek to put a stop to it. Finally, if it is true that the
exceptionally extensive resources deployed by the United States have been
powerless to prevent this traffic from keeping the Salvadorian armed opposition
supplied, this suggests even more clearly how powerless Nicaragua must be with
the much smaller resources at its disposal for subduing this traffic if it takes
place on its territory and the authorities endeavour to put a stop to it.
Confining itself to the regional States concerned, the Court accordingly
considers that it is scarcely possible for Nicaragua's responsibility for an
arms traffic taking place on its territory to be automatically assumed while the
opposite assumption is adopted with regard to its neighbours in respect of
similar traffic. Having regard to the circumstances characterizing this part of
Central America, the Court considers it more realistic, and consistent with the
probabilities, to recognize that an activity of that nature, if on a limited
scale, may very well be pursued unbeknown to the territorial government.
[pp. 188-189 S.O. Ago] On the other hand, the negative answer
returned by the Court to the Applicant's suggestion that the misdeeds committed
by some members of the contra forces should be considered as acts imputable to
the United States of America is likewise in conformity with the provisions of
the International Law Commission's draft 1. It would indeed be inconsistent
with the principles governing the question to regard members of the contra
forces as persons or groups acting in the name and on behalf of the United
States of America. Only in cases where certain members of those forces happened
to have been specifically charged by United States authorities to commit a
particular act, or carry out a particular task of some kind on behalf of the
United States, would it be possible so to regard them. Only in such instances
does international law recognize, as a rare exception to the rule, that the
conduct of persons or groups which are neither agents nor organs of a State, nor
members of its apparatus even in the broadest acceptation of that term, may be
held to be acts of that State.
1 | I refer to Articles 11 (Conduct of persons not acting on behalf of the State) and 8 (Attribution to the State of the conduct of persons acting in fact on behalf of the State), read together. |