Wednesday, April 9, 2014

Nicaragua v. United States

Questions1. Under what circumstances can a rebel organization in one state be considered an organ of another state?

2. Under what circumstances can the actions of a rebel organization in one state be legally attributed to another state?

3. Under what circumstances can it be said that a state has created a rebel organization in another state?

This case investigates the relationship between the United States and the contras, a multifaceted Nicaraguan insurgent movement operating in the 1980s. The Court is tasked with ruling on whether the United States was legally responsible for the actions of the contras. The Court holds that based on the evidence available, it could not reach such a conclusion. In assessing this matter, the Court applies a rather strict standard of relational authority (control) and dependence.

While the case is obviously confined to an insurgent movement as such rather than one that has developed into a government or breakaway government, it is only reasonable to hold that the standard applied here is no less applicable when a rebellion has shifted from the armed phase to the governing phase. The Court applies general principles of relationships in this regard rather than principles confined to the relationship between a state and an insurgent movement.

Summary of Relevant Paragraphs
Paragraph 102
Nicaragua claims that the United States devised the strategy and directed the tactics of the contras.

Paragraph 103
Nicaragua supports the above claim by noting that every contra offensive was preceded by an infusion of funds from the United States and that without such funds, the offensives could not have been launched. The Court holds that even if this were true, it only shows a correlation. It does not show that each provision of funding was provided to launch a particular offensive nor does it show that the United States planned the offensive.

Paragraph 104
Former contra leader Edgar Chamorro, a witness for Nicaragua, attributes a power of command to the CIA, referring to them as having ordered and instructed the main contra organization to take various actions such as launching offensives and destroying livestock. Nicaragua also notes that United States support impacted the tactics of the contras due to the availability of intelligence and materials.

Paragraph 105
Nicaragua holds that in 1983, a new strategy for the contras was adopted at the highest levels of the United States government. The Court is only able to conclude, however, that there was a change in contra strategy and a change in the way the United States supported the contras.

Paragraph 106
The Court is unable to determine that all contra operations launched at every stage of the conflict reflected strategy and tactics wholly devised by the United States. The Court nonetheless accepts that a number of operations were decided and planned by the United States or in close collaboration with the United States.

Paragraph 107
The Court finds it as established that the United States gave the contras practical and financial assistance.

Paragraph 108
The United States did not create the contras; it merely took advantage of a pre-existing albeit disorganized movement.

Paragraph 109
In order to determine that the contras were an organ of the United States or acted on their behalf, the Court must examine the degree of control utilized by the United States and the degree of dependence of the contras. On the basis of the evidence, it cannot be said that the United States had sufficient control in all fields to hold that the contras acted on their behalf.

Prior to U.S. intervention, there existed a continuation of armed opposition from the civil war against the newly installed regime. The United States took advantage of this already existing opposition but did not create it.

Paragraph 110
It cannot be concluded that the contras were completely dependent on the United States, even if they were for a set period of time. When aid was cut off, for example, the contras remained operational. The Court returns to the matter of devising strategy and directing tactics, seeing it as a function of the United States translating its potential control into actual control. The Court cannot draw this conclusion. Consequently, the Court holds that the contras cannot be equated with a force of the United States.

Paragraph 111 
At one period, the contras were so dependent on the United States that it could not conduct its most significant activities without such support. The evidence, however, does not allow for the conclusion that all or even a majority of contra activity received or required such support.

Paragraph 112
To demonstrate the substantial control of the United States, Nicaragua notes that the United States chose the name of the main contra organization (FDN) and selected its leaders. The Court holds, however, that this is just one aspect of contra dependence while acknowledging that there were others.

Paragraph 113
The question of control is relevant to the matter of attributing the crimes of the contras to the United States.

Paragraph 114
Nicaragua maintains that the contras are nothing more than a band of mercenaries operating on behalf of the United States without autonomy. Therefore, their offenses are imputable to the United States no differently than the offenses of regular United States Forces.

Paragraph 115
Even if United States participation was preponderant or decisive in the financing, organizing, training, supplying and equipping, selecting military targets and the planning the whole of contra operations, it still does not follow that the unlawful acts of the contras can be attributed to the United States. It would have to be shown that the United States had effective control over the particular operations in which the crimes took place.

Paragraph 116
The assistance given by the United States does not render the contras subject to the United States to such an extent that any of their acts can be imputable to the United States.

Detailed Technical Analysis 

the Court is tasked with determining:

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 (para. 109).

The Court concludes that:

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 (para. 109).

After referencing this reasoning, the Court notes that:

It is a fortiori unable to determine that the contra force may be equated for legal purposes with the forces of the United States (para. 110).

The Court makes no effort to draw a distinction between acting on behalf of a state and being an organ of a state. Even if there were such a difference, the matter would be functionally irrelevant.  "Both" are subjected to an identical litmus test: control and dependence. If the dependency-control threshold is not met, then a relevant entity neither acts on behalf of nor is an organ of a foreign power.

The two are broad designations covering the duration of relationship. This is to be contrasted with a state having effective control over a rebel movement for a specific duration (see para. 115 cited below). The former supervene on the later. If a rebel movement is an organ of a state or acting on its behalf, then actions for any specific duration are attributable to the state. The Court addresses this mater rather than focusing only on the specific duration relationship as Nicaragua contends that the contras are an organ of the United States. The Court concludes:

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 (para. 116). 

The Court makes clear that control must extend unto all fields. It does not, however, explicitly address the degree of control that must be exercised in all fields. The Court's addressing the matter of dependence, however, is telling:

In sum, the evidence available to the Court indicates that the various forms of assistance provided to the contras by the United States have been crucial to the pursuit of their activities, but is insufficient to demonstrate their complete dependence on United States aid (para. 110).

In applying its litmus test, the Court uses the standard of complete dependence. This covers degree and expansiveness. The most reasonable assessment is that the Court views the necessary degree of control as on par with that of dependence. The Court views dependence and control as inherently linked, switching freely between the two in discussing matter that equally apply to both. For example, in Paragraph 112 (quoted below), the Court considers the United States' selecting contra leaders as a manifestation of dependence, although this also clearly is just as much of a matter of control.

It is important to look at examples of the considerable dependence of the contras and control on the part of the United States to understand the extent of the Court's strict standard. The Court found the following insufficient grounds for declaring the contras an organ or acting on the behalf of of the United States:

1) The United States Appears to have had Considerable Authority
Mr. Chamorro states that in 1981, former National Guardsmen in exile were offered regular salaries from the CIA, and that from then on arms (FAL and AK-47 assault rifles and mortars), ammunition, equipment and food were supplied by the CIA. When he worked for the FDN, he himself received a salary, as did the other FDN directors (para. 100).

Mr. Chamorro attributes virtually a power of command to the CIA operatives : he refers to them as having "ordered" or "instructed" the FDN to take various action. The specific instances of influence of United States agents on strategy or tactics which he gives are as follows: the CIA, he says, was at the end of 1982 "urging" the FDN to launch an offensive designed to take and hold Nicaraguan territory. After the failure of that offensive, the CIA told the FDN to move its men back into Nicaragua and keep fighting. The CIA in 1983 gave a tactical directive not to destroy farms and crops, and in 1984 gave a directive to the opposite effect. In 1983, the CIA again indicated that they wanted the FDN to launch an offensive to seize and hold Nicaraguan territory (para. 104).

According to the affidavit of Mr. Chamorro, who was directly concerned, when the FDN was formed "the name of the organization, the members of the political junta, and the members of the general staff were all chosen or approved by the CIA" ; later the CIA asked that a particular person be made head of the political directorate of the FDN, and this was done (para. 112).

2) The United States Played a Considerable Role in Deciding and Planning Operations
The Court finds it clear that a number of military and paramilitary operations by this force were decided and planned, if not actually by 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, particularly the supply aircraft provided to the contras by the United States (para. 106).

3) The contras were Completely Dependent at One Point on United States Aid for Their Most Crucial Activities
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 (para. 111).

With respect to (1), the Court notes:

the question of the selection, installation and payment of the leaders of the contra force is merely one aspect among others of the degree of dependency of that force (para. 112).

With respect to (2), the Court notes:

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 wholly devised by the United States (para. 106).

With respect to (3), the Court notes:

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 (para. 111).

The above demonstrates that the rigidness of the Court's strict standard cannot be understated. The Court summarizes its reasoning:

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 (para. 115).

Having rejected that the contras were on organ of the United States or acting on its behalf, the Court cannot derive that all specific instances of contra violations could be attributed to the United States. As a result, specific instances must be individually addressed. The threshold for attributing specific instances of violations to the United States requires that the United States "directed or enforced" these acts. The United States must have had such control. The previous paragraphs provide a comprehensive sense of how the Court defines control. In addressing the matter of whether the contras were an organ of the United States or acting on its behalf, the Court simply extends the matter of control for the duration of the relationship. When it comes to specific instances, the Court simply contracts the temporal dimension. It also stands to reason that the intertwined relationship between control and dependency does not evaporate simply because of changes to the temporal scope.

The Court provides an example of a relationship it considers meeting the effective control test by looking at those contracted by the United States to carry out attacks against Nicaragua. It will become clear that the essence of the control-dependency relationship is the matter of authority.

the Court will first deal with events which. in the submission of Nicaragua, involve the responsibility of the United States in a more direct manner...Those directly concerned in the acts were, it is claimed. not Nicaraguan nationals or other members of the FDN or ARDE, but either United States military personnel or persons of the nationality of unidentified Latin American countries, paid by, and acting on the direct instructions of United States military or intelligence personnel. (These persons were apparently referred to in the vocabulary of the CIA as "UCLAs" - "Unilaterally Controlled Latino Assets", and this acronym will be used, purely for convenience. in what follows.) Furthermore. Nicaragua contends that such United States personnel, while they may have refrained from themselves entering Nicaraguan territory or recognized territorial waters, directed the operations and gave very close logistic, intelligence and practical support (para. 75).

On this basis, 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 (para. 80).

Although it is not proved that any United States military personnel took a direct part in the operations, agents of the United States participated in the planning, direction, support and execution of the operations. The execution was the task rather of the "UCLAs", while United States nationals participated in the planning, direction and support. The imputability to the United States of these attacks appears therefore to the Court to be established (para. 86). 

The key distinction between the United States' relationship with the contras and its relationship with the UCLAs is that the former acted "under the direct instruction" of the United States. The UCLAs, and of course U.S. personnel, were agents of the United States. They were de facto organs of the United States and acting on its behalf.

How is the above relationship to be differentiated from the United States' relationship to the contras considering that the United States issued directives to the contras (see para. 104 cited above). The Court clearly considers the alleged directives to fall under the category of advice rather than authoritative directives After all, the key witness in fact uses the word "urge" (para. 104) in describing how the United States issued such directives. The required threshold of authority was not met. The contras remained an independent force, acting under their own volition even if it corresponded with that of the United States.

As for the matter of whether the United States created the contras, the Court applies an equally strict standard:

The Court must now examine in more detail the genesis, development and activities of the contra force, and the role of the United States in relation to it, in order to determine the legal significance of the conduct of the United States in this respect. According to Nicaragua, the United States "conceived, created and organized a mercenary army, the contra force". However, there is evidence to show that some armed opposition to the Government of Nicaragua existed in 1979-1980, even before any interference or support by the United States. Nicaragua dates the beginning of the activity of the United States to "shortly after" 9 March 1981... According to the testimony of Commander Carrion, who stated that the "organized military and paramilitary activities" began in December 1981, there were Nicaraguan "anti-government forces" prior to that date, consisting of "just a few small bands very poorly armed, scattered along the northern border of Nicaragua and . . . composed mainly of exmembers of the Somoza's National Guard. They did not have any military effectiveness and what they mainly did was rustling cattle and killing some civilians near the borderlines..." In the absence of evidence, the Court is unable to assess the military effectiveness of these bands at that time : but their existence is in effect admitted by the Nicaraguan Government. (para. 93). 

Despite the large quantity of documentary evidence and testimony which it has examined, the Court has not been able to satisfy itself that the respondent State "created" the contra force in Nicaragua. It seems certain that members of the former Somoza National Guard, together with civilian opponents to the Sandinista régime, withdrew from Nicaragua soon after that régime was installed in Managua, and sought to continue their struggle against it, even if in a disorganized way and with limited and ineffectual resources, before the Respondent took advantage of the existence of these opponents and incorporated this fact into its policies vis-à-vis the régime of the Applicant (para. 109). 

The Court saw the mere existence of prior armed opposition, no matter how insignificant, as precluding the assertion that the United States created the contras.