| I. | Substantive International Law - First Part |
| 8. | VIOLATIONS OF INTERNATIONAL LAW AND RESPONSIBILITY OF STATES |
| 8.6. | Participation |
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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. 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.
