Abbreviated referençe:
L C.J. Pleudings, Militriry und Paramilitary Activitirs in und against Nicaru.pu
(Nicarugua v. United States uf Arnericu), Vol. V
Référenceabrégée :
C.I.J. Mémoires,ActivitSs militaires et parumilituirrs uu Nicaragua
er contre celui-ci (Niraragc.Etats-Unis (i'AmCriqueJ,VolV
Salesnumber
[SSN 0074-4433 Nn de vente:
[SEN 92-1-070828-8 INTERNATIONAL COURT OF JUSTICE
PLEADINGS,ORAL ARGUMENTS, DOCUMENTS
CASECONCERNING MILITARY AND
PARAMILITARYACTIVITIES IN AND
AGAINST NICARAGUA
(NICARAGUv.UNITED STATESOF AMERICA)
VOLUMEV
COUR 1NTERNATlONALEDE JUSTICE
MEMOIRES.PLAIDOIRIESET DOCUMENTS
AFFAIRE DES ACTIVITÉSMILITAIRES
ET PARAMILITAIRESAU NICARAGUA
ET CONTRE CELUI-CI
(NICARAGUA c. ÉTATS-UNISD'AMÉRIQUE)
VOLUME V The case concerning Military and Purarnilitury Actirities in and against
Nicuruguu (Nicaraguu v. United States of' Am~ricu), entered on the Court's
General List on 9 April 1984 under number 70, was the subject of Judgrnents
delivered on26 November 1984(Militury and ParumilitaryActivities ittandagainsi
Nicurugua (Nicaruguu v. UnitedStates of Americu), JurisdictionundAclmissibility,
Judgtnent, I.C.J. Reports 1984, p. 392) and 27 June 1986 (Militury und
Paramilitury Activities in and against Nicaragua (Nicuruguu v. United States r$
Americu). Jntdgment, L C.J. Reports 1986, p. 14). Following the discontinuance
by the applicant Government, the case was removed from the List by an Order
cif the Court on 26 September 1991(Military and Purumilitury Activities in und
aguinstNicaraguu (Nicaraguuv. UnitedSiutes of Americu), Orderof26 September
1991, 1.C.J.Reports 1991, p. 47).
The pleadings and oral arguments in the case are being published in the follow-
ing order :
Volume 1.Application instituting proceedings; request for the indication of pro-
visional measures and consequent proceedings; Mernorial of Nicaragua
(Jurisdiction and Admissibility).
Volume II. Counter-Memorial of the United States of America (lurisdiction and
Admissibility) ;Declaration of Intervention by El Salvador and observations
thereon by Nicaragua and the United States of America.
Volume III. Oral arguments on jurisdiction and admissibility; exhibits and docu-
ments submitted by Nicaragua and the United States of America in connection
with the oral procedure on jurisdiction and admissibility.
Volume IV. Mernorial of Nicaragua (Merits); supplemental documents.
Volume V. Oral arguments on the merits; Mernorial of Nicaragua (Compensa-
tion); correspondence.
In interna1 references bold Roman numerals refer to volumes of this edition;
if they are immediately followed by a page reference, this refates to the new
pagination ofthe volume in question. On the other hand, the page numbers which
are preceded or followed by a reference to one of the pleadings only relate to
the original pagination of the document in question, which, if appropriate, is
represented in this edition by figures within square brackets on the inner margin
of the relevant pages.
Neither the typography nor the presentation may be used for the purpose of
interpreting the texts reproduced.
L'affaire des Activitésmilitairesetparumilitaires ail Nicaruguu et confie celui-
ci (Nicurugua c. Etuts-Unis d'AmPrique),inscrite au rôle généralde la Cour sous
le numiro 70 le 9 avril 1984, a fait l'objet d'arrsts rendus le 29 novembre 1984
{Activitésmilitaireset purumi/ituiws ou Nicuruguu rt contre cehi-ci (Nic'icurugz~.a
Etuts-Unis (l'Amérique),campttence et recevabilité,rirrt?t,C.I.J. Recueil 1984,
p. 392) et le 27 juin 1986 (Activitbs militaires et purcimilitairesani Nicarczginupt
cwntre celui-ci (Nicurugua c Etats-Unis d'Amérique),arrêt,C.I.J. Recueil 1986,
p. 14). A la suite du désistementdu gouvernement demandeur! elle a étérayée
du rôle par ordonnance de la Cour du 6 septembre 1991 (Activitésmilituires etpurumilitairesau Nicaragua et contre celui-ci (,Vicaraguac. Etats-Unis d'Amé-
rique), ordonnancedu 26 septembre1991, C.1.J. Recueil 1991, p. 47).
Les piècesde procédureécriteet les plaidoiries relativesB cette affaire sont
publiéesdans l'ordre suivant:
Volume 1. Requêteintroductive d'instance; demande de mesures conservatoires
et procédurey relative; mémoiredu Nicaragua (compétenceet recevabilité).
Volume II. Contre-mémoire des Etats-Unis d'Amérique (compétenceet
recevabilité); déclaration d'intervention d'El Salvador et observations du
Nicaragua et des Etats-Unis d'Amérique sur cette déclaration.
VolumeIII.Procédureorale sur lesquestions de compétenceet recevabilité;docu-
ments déposés par le Nicaragua et les Etats-Unis d'Amériqueaux fins de la
procédureorale relative a la compétenceet a la recevabilité.
Volume IV. Mémoiredu Nicaragua (fond); documents additionnels.
Volume V. Procéduresur le fond; mémoiredu Nicaragua (réparation);corres-
pondance.
S'agissant desrenvois, les chiffresromainsras indiquent le volume de la pré-
sente édition: s'ils sont immédiatementsuivis par une référencede page, cette
référence renvoiei la nouvelle pagination du volume concerné. En revanche,les
numérosde page qui ne sont précédéosu suivisque de la seule indication d'une
piècede procédurevisent la pagination originale du document en question, qui,
en tant que de besoin*est reproduite entre crochets sur bord intérieurdes pages
concernées.
Ni la typographie ni la présentation ne sauraient êtreutiliséesaux fins de
l'interprétationdes textes reproduits. Pugc
Oral Argumentson theMerits. Plaidoiriessur le fond
OPENING OF THEORAL PROCEEDING S............ 4
STATEMEN BTMR. ARG~ELLO GOMEZ (NICARAGUA .)...... 7
Introduction to Nicaragua's ca............. 7
EV~UENC OFCOMMANDE CRARRION(WITNESS .......... 12
Examination by Professor Brownli............ 12
QUESTION PUT TOCOMMANDE CRARRIONBY THEPRESIUENT ..... 26
QUESTION PSUTTO COMMANDE CARRIONBY THE PRESIDENJT. DGELACHS.
THE VICE-PRESIDENAND JUUGES SCHWEBEL S.IRROBERJTENNING ASD
COLLIARD .....................
Question put by the President............
Question put by Judge Lachs..............
Question putby the Vice-President...........
Questions put by Judge Schwebel............
Question put by Judge Sir Robert Jennings......
Questions put by Judge Colliar.............
EVIDENC EFMR .MACMICHAE(L WITNESS) ...........
Examination by Professor Chayes............
QUEST~ON PS~TTO COMMANDE CARRION RYJUDGB SCHWEBEL ....
EVIDENC EFMR. MACMICHAE conf.)............
Examination by Professor Chay(cont.) ..........
QUESTION PSUTTO MR. MACMICHAE BY JUDGESNI AND SCHWEBEL . . 59
Questions put by Judge Ni............... 59
Questions put by Judge Schwebe............. 59
EVIIIENC EFPROFESSO GRLENNON (WITNESS) .......... 69
Examination by Mr.Reichler .............. 69
QUESTION PSUTTO PROFESSO GLENNON BYJUDGESCHWERE .L... 78
EVIDENC EFFATHER LOISON(WITNESS)............ 80
Interrogatoire par.Pellet ............... 80
QUESTION PSUT70 FATHER LOISONBY JUDGE SCHWEBEL ...... 91
EVII)ENC EPMR .HUPER(WITNESS)............. 93
Examination by Mr. Argüello Gbme............ 93
QUESTION PSUTTO MR. HUPER BY JUDGESCHWEBE L....... 99
STATEMEN BYTMR. ARG~ELLO GOMEZ (NICAKAGUA .)...... 103
Introduction to the facts: eight central pro.......ns 104X CONTENTS - TABLEDES MATIÈRES
The first four propositions . . . . . . .
1. The Government of the United States conceived and created
thecontraforce . . . . . . . . . . . . . . . .
II. The Government of the United States has armed, equipped and
trained thecontraforce . . . . . . . . . . . . . .
Ill. The Government of the United States has devised and directed
the military strategies andactiçs of thcontra force . . . .
IV. The Government of the United States has provided direct
and çritical combat support for the military operations of the
contras . . .. . . . . .. . . . . . . . . .
ARGUMEN OFTPROFESS COHRAYE(SNICARAGU(A ro)nt.).
The last four propositions . . . . . . .. . . . . . . . .
V. The political leadership ofthe confruswas hand-picked, installed
and paid by the United States. both to ensure control and to
generate Congressional and public support for the üdrninis-
tration's policy . . .. . . . . .. . . . . ..
VI. United States military and intelligence personnel conducted
direct. attacks against Nicaragua, including the destruction of
its oil supplies and supply facilities and the mining of its
harbours . . . . . . . . . . . .. . . . . ..
VII. The activities ofthe United States reflect policy decisions and
prioritiesstablished at the highest levelsof the current adrninis-
tration and executed under its supervision. In no sense can they
be reearded as an aberration or as the unauthorized activities
ofsubvordinates . . . . . . . . . . . . . . . .
VIII. The purpose of the pcilicy and the action against Nicaragua
undertaken in pursuance of it was. from the beginning, to
overthrow the Government of Nicaragua . . . . . . . .
A. Presidential statements . . . . . . . . . . . . .
B. Statements by other high administration officials . . . .
C. Congressional statements . . . . . . . . . . . .
D. Statements made to the contra leaders . . . . . . .
E. Strategy, tactics and targets of the field operations. . .
F. The evidence in the record provides no support for the
proposition that Nicaragua is supplying arms to the insur-
gents in El Salvador . . . . . . . . . . . . . .
The principles of evidence in international law, . . . . , , , .
Express admissions by responsible officials. . . . . .. . . .
A system or consistent pattern of intentions and activity . . . . .
Evidential significance of the reference to collective self-defence by the
United States in the previous proceedings . . . . . . . . .
Acceptance or recognition of responsibility by the United States . . . Some examples ..................
Acceptance and recognition: the Iegalargument
.......
Application of the principle of acceptance ..........
Confirmatory or corroborative material ..........
Particular episodes constituting confirmatory evidence .....
The attack on Corinto .................
The mining of Nicaraguan hürbours ...........
The viewsof third States ...............
Bases of responsibility ................
The acceptance or recognition of responsibitity ........
Consequential issues .................
The standard of proof ................
(ri) The effect of Article 53 .............
(h) Absence of any denial of the facts ..........
(cl Express indication of illeglil purpose and responsibility for
illegalactions .................
System. policy and resulting breaches of international law: evidential
connections ....................
Summary of principal conctusions .............
Article 2 (4) ....................
The Organization of American States Charter .........
The Multilateral Treaty Reservation ............
Article 51 .....................
Les violations par les Etats-Unis du traité d'amitiéd . e commerce et de
navigation du 21 janvier 1956 .............
a) Une base de compétencevalide ............
b) L'absencede toute circonstance excluant I'illicéité ......
c) Une contre-épreuveriche d'enseignements ........
1. Les Etats-Unis ont privéle traitéde 1956de son objet et de son but
A. Le traitéde 1956a une portéegénérale ........
a) Un traitéde commerce au sens le plus large du terme
b) Un traitéd'amitiéau sens plein du terme ....
c) L'interdépendancedes dispositions du traité ...
B. Les Etats-Unis ont vidé letraitéde 1956 de sa substance
II. Les Etats-Unis ont violéde nombreusesdispositionsdu traitéde 1956
A. Les violations de l'articlepremier ...........
B. Les violations des «clauses d'amitié»du traitéde 1956 ...
C. La violation du jus cornrnunicutioni.c~onventionnel .....
L'intervention des Etats-Unis dans les affaires intérieuresdu Nicaragua
A. Le principe de non-intervention est un principe coutumier de
caractèreautonome ...............
B. Les Etats-Unis ont. dans la présenteespèce. violéde manière
manifeste le principe de l'interdiction de l'intervention dans les
affaires intérieuresdes Etats ............XII CONTENTS . TABLE IIEMATI~RES
C. Les violations du principe de non-intervention pour les Etats-
Unis ne peuvent êtredissociéesde manquements graves a d'autres
principes du droit international qui en sont la conséquence .
D. Les violations du principe de non-intervention par les Etats-Unis
n'ont aucune justificatioii.............
The role of the customary law claims in the present case.....
The causes of action .................
(a) Violations of the sovereignty of Nicaragua ........
(6) Breaches ofthe obligation not to use force or the threat of force
(c) seas or to interrupt peaceful maritime commerce......the high
(d) Bof Nicaraguah..................o kill. wound or kidnap citizens
(el Breaches of the principte of non-intervention .......
The relation between the causes of action based upon customary law
Submissions ....................
Memorial of Nicaragua (Compensatio n) MémoireduNicaragua(répara-
tion)
A . Prior proceedings in the case .............
B. Overview of the Mernorial ..............
Introduction ....................
A . The general principle of State responsibilit.........
B . The principle of effectivereparation...........
C. The United StatesGovernment has adopted the principle ofeffective
reparation ....................
D . The governing principlesinsummary ..........
CHAPTER2 . THE UNLAWFUC LONDUCT OF THE UNITEDSTATES UNDER
FINDING 3SAND 4: THEMODALITIE OF COMPENSATION ......
Introduction ............
Section A. The general significanceof subparagraph 3 of the dispositif
Section B. The mode of com~ensation for death and versonal injuries
Section C. The mode of compensation for material damage to p<operty
(a) The modus operurtrli:replacement value ...
(b) Other forms of economic loss ...... Section D. The methodology employed in the calculation of compen-
sation forinjury to persons and property in the relevant perio. .
(i) The period from the beginning of United States military and
paramilitary activity through April 1983 . . . . . . .
(ii) The computerized system installed after May 1983 . . . . .
Seis obligated to paynas measured by the darnages to persons andtates
property resulting from the military and paramilitary activiti. .
CHAPTER 4. THESECURITY AND DEFENCECOSTS RESULTIN FROM THE
UNLAWPU CLONDUC TF THE UNITELS)TATES. . . . . . . . .
A. Introduction: the principle . . . . .. . . . . . . . .
B. The period for which reparation must be calculated. . . . . .
C. Calculation of the quantumof reparation . . . . . . . . .
Section A. General characteristics of the Nicaraguan economy . . .
Section B. United States economic aggressions .. . . . . . . .
Section C. The general trade embargo -the legal considerations . .
Section D. Reparation due to Nicaragua . . . . . . . . . . .
(0) General principlesapplicable to the evaluation of damagescaused
by the embargo on Nicaragua . . . . . . . .. . . .
(i) General considerations on the extent of the damage . . .
(ii) General rules for the evaluation of the damage sustained by
Nicaragua . . . . . . . . . . . . . . . . .
(b) Adverse consequences of the embargo for Nicaragua's exports
(i) General considerations . . . . . . . . .. . . .
(ii) Evaluation of harm to exports . . . . . .. . . .
jc) The harrnful effectsof the embargo on Nicaragua's imports
(i) General considerations . . . . . . . . . . . . .
(ii) Evaluation of damages to imports . . . . . . . . .
(d) Losses of production and medium-term effect of the embargo .
(e) Conclusion . . . . . . . . . . . . . .. . . .
Introduction . . . . . . . . . . . . . . .. . . . .
Section A. The obligation to make reparation . . . . . . . . .
(uj In accordance with traditional principles of international law the
United States is required to make reparation of the damage
caused to Nicaragua's development potential . . . . . . .
(i) The nature ofthe damage causedto Nicaragua's development
potential is such as to require a reparati.n. . . . .
(ii) The question of causality. . . . . . . . . . . . (h) The legal relevance of contemporary economic and social trends
and emergent principles of international law......
(i) The interaction of contemporary economies......
(ii) The impact of international law of development and the
requirements of the new international economic order . .
Section B Reparation due to Nicaragua ...........
(a) The general principles applicable to the evaluation of damage
caused to Nicaragua's development potential .......
(i) General considerations on the extent of the darnage..
(ii) General rules for the evaluation of the prejudice caused to
Nicaragua .................
(b) The calculation of the amount of con~pensation......
(i) GDP loss .................
(ii) Social losses................
Conclusion .....................
CHAPTER 7.REPARATIO FONR THE V~OLATIO ONS THE SOVEREICNT OF
NICARAGUA ....................
A .Introduction: the relevant findings ............
B. The mode of reparation ...............
C. The daim for the four forms of violation of the sovereignty of
Nicaragua ...................
CHAPTER 8. MORAL DAMAGET :HEGENERAL CLAIM FOR ACCESSORY
COMPENSATIO N..................
A . Introduction ...................
B. Accessory compensation for moral damage: the principle ....
C. Acceptance of the prinçiple of compensation for moral damage by
the United States Government .............
D . The connection between the findings on the merits, obligatiergu
omnes, and norms ofjus co~cns.............
E .The particular elements of affront to international public or.er
(i) The connection between the activities of the United States and
norms of jus cngens ..............
(ii) The overall intention and policy of the United States
Government .................
(iii) The seriousness of the breaches..........
(iv) Cynical disregard of the obligations of theTreaty of Friendship.
Commerce and Navigation of 1956 .........
(v) Intimidationas an instrument of national policy....
(vi) The callous indifference to elementary considerations of
humanity ..................
(vii) Hardship caused to the people of Nicaragua ......
(viii) The Court's Order of IOMay 1984as a circumstance relevant
to moral damage ...............
(ix) The disregard of the Court's injunctive declaration as a circum-
stance relevant to moral damage ..........
(x) The infringement of the freedom of communications and of
maritime commerce ...............
F. Compensation for moral damage: the claim ........CHAPTB9 R.THEPERIOD FOR WHICHREPARATIM ONUST BE CALCULATEU
(i) The date from which reparütionshould becalculated .....
(ii) The date to which reparation should be calculated ......
(a) Evidence of events occurring before the close of the oral
hearings in September 1985 ............
(b) Evidence of events occurring after the close ofthe oral hearings
/cJ Damage resulting from unlawful United States actions since
the close of the oral hearin............
(d) Conclusion ..................
CONCLUSION .....................
A .Article 53 of the Statute...............
B .Informal presentation of material on the part of the respondent
State ......................
C. The scope of the present proceedings...........
D. The calculation of the present value...........
E .Costs .....................
F .Post-judgment interest................
List rfannexes ...................
Correspondence . Correspondance ............ ORALARGUMENTSON THEMERITS
MINUTESOF THE PUBLlC SlTTINGS
helclut thePencePalace,The Hugue,from 12 to20 Sept1985er
undon27June 1986Prrsidet~tNagendraSinghprrsiding
PLAIDOIRIESSUR LE FOND
PROCES-VERBAUXDESAUDIENCES PUBLIQUES
tenuesuuPuluiLielu PaiÙ~La Huye,
du 12au20 seplembr1985rt le27juin 1986,
soiis 10pri.sidenrcde M. NugendruSingh, Pr2sidenl SEVENTEENTH PUBLIC SITTING (12 IX 85, 10a.m.)
Pr.%ent:Prrsidcnt NAGENDRS AUNC HVice-PresidcnDE LACHAKKIE RJU~~PS
LACHS R,UDA,ELIAS O,DA,AGO,SETTE-CAMAR SAC,HWEBES Li,r Robert JENNINGS,
M~AYE ,EDJAOUI, NI, EVENSE ;NJudge ad hoc COLLIAR ;DRegistrur TORRES
BERNARDEZ.
Alsrpresent:
Forthe Gov~rnmrnot fNicaraguar
H.E. Mr. Carlos Argüello Gomez, Ambassadoras Agentand Counsel;
ProfessorIan Brownlie, Q.C., F.B.A., Chichele Professor of Public Interna-
tional Law inthe University ofOxford; Fellowof Al1Souls College,Oxford,
Hon. Abram Chayes, Felix Frankfurter Professor of Law, Harvard Law
School; Fellow,American Academy of Artsand Sciences,
Professor Alain Pellet,Professor of Law, Universitéde Paris-Nord,
Mi- .aul S. Reichler, Reichler and Appelbaum, Washington, Du.~Counscl
und Advocutt);and
Mr. Augusto Zamora Rodriguez, LegalAdviser to the Ministry.of the Exterior,
Managua, Nicaragua,
Miss Judith C. Appelbaum, Reichler and Appelbaum, Washington, D.C.,
Mr. David Wippman, Reichler and Appelbaum, Washington, D.C.asCoimsel. OPENINGOFTHE ORALPRCICEEDINGS
The PRESIDENT: Before turning to the judicial business of today's sitting,1
have first the melancholy duty of recording the passing of two eminent former
members, both of them aIso Presidents?of this Court.
Sir Percy Spender, who died on 3 May 1985,served as a Member of the Court
from 1958 to 1967, and was elected President for the period 1964 to 1967. He
had previously combined a career as a practising lawyer in his native Australia
with active participation in politics; he was for 14 years a member of the
House of Representatives of the Commonwealth of Australia. He held numerous
ministerial posts, including the Ministry for External AFairs and Ministry of
External Territories, and thereafter served for seven years as Australian
Ambassador to the United States of America. On the international level,he took
an active part in the United Nations General Assembly, of which he was Vice-
President at the Fifth Session, as well as the International Monetary Fund and
numerous international conferences. He was an active and energetic Member of
the Court, and a vigorous President. In that capacity, he found himself charged
with the delicate duty of using the President's casting vote in the controversial
circumstances of the South WesrAfrica case, a responsibility which heaccepted
with characteristic courage. His attentive concern for the special problems and
duties of the presidential function also found expression in an article in a legal
journal which is almost the only authoritative published study of the subject.
On 1 September 1985, Sir Muhammad Zafrulla Khan died at the age of 88.
He began the practice of law as long ago as 1914, but soon began what was to
become a very distinguished political career, first in British India, and then, after
independence and partition, in Pakistan, of which he was Foreign Minister for
seven years. His judiciül career in the Court was unusual in that it fell into two
distinct phases.He was elected a Member of the Court in 1954,and served as
its Vice-President from 1958to 1961. He then piirsued his distinguished career
in the politicalorgans of the United Nations, servingasPermanent Representative
of Pakistan to the Organization and as President of the Seventeenth Session of
the General Assembly in 1962-1963.He was then re-elected to the Court from
February 1964,and the respect and confidence of his colleagues was marked by
his election as President of the Court for the period 1970 to 1973. He willbe
remembered as a judge who happily blended legal insight with shrewd political
acumen; and as a President, he was gifted with a courteous authority which
did much to ensure the efficient fiinctioning of the Court, as it had also of the
General Assembly.
1invite al1 those present to stand for one minute's silence in memory of the
late Sir Percy Spender and Sir Muhammad Zafrulla Khan.
1have also to record with regret the resignation ofa Member of the Court.
On 23 August 1985, Judge Platon Morozov, who had been a Member of the
Court since 6 February 1970, addressed to me his resignation as a Member of
the Court in view of continued deterioration in the state of his health. His
colleagues, who have greatly admired the fortitude with which he has devoted
himself to the discharge of his duties despite continued and increasing ill-health
over recent months, will shareJudge Morozov's own disappointment that he has
not been able to complete his mandate, and feel the greatest sympathy for him OPENING OP THE ORAL PROCEEDINGS 5
in his illness. He has been for us a stimulating and hardworking colleague,
admired for his vigour in debate and his tenacity in advancing the view which
he has believed to be right. We wish him a speedyreturn to health and a long
and happy retirement.
The Court meets today to hear oral argument on the merits in the case
concerning Military and Puramilitary Activifies in and agoinst Nicaragua
(Nicaragi~av. Unitrd States of America). The proceedings wereinstituted by an
Application filed on 9 April 1984,accompanied by a request for the indication
of provisional measures under Article 41 of the Statute of the Court. By an
Order dated 10 May 1984,the Court indicated, pending its final decision in the
proceedings, certain provisional measures, and decided that, until the Court
deliversits finaljudgment in the mse, it would keep the matters covered by that
Order continuously under review.
The United States having contended that the Court was without jurisdiction
to deal with the Application, and that it was inadmissible, the Court further
decided that the written proceedings in the case should first be addressed to the
questions of jurisdiction and admissibiiity. Following the filing of a Memorial
and Counter-Memorial on thesequestions, and oral proceedings held in October
1984, the Court, by a Judgment dated 26 November 1984 found that it had
jurisdiction to entertain the Application on the basis of Article, paragraphs 2
and 5, of the Statute of the Court. At the same time. on one aspect ofthe case,
the relevanceand effectof a reservation attached to the United States Declaration
of acceptance of jurisdiction of the Coiirt, the Court referred to Article 79,
paragraph 7, of the Rules of Court, and declared that the objection by the
United States to jurisdiction based on that reservation did not possess, in the
circumstancesof the case, an exclusivelypreliminary character, and consequently
did not constitute an obstaclefor the Court to entertain the proceedings instituted
by Nicaragua. The Court further decided that it had jurisdiction, so far as the
Application relates to a dispute concerning the interpretation or application of
the Treaty of Friendship, Commerce and Navigation between the United States
and Nicaragua, on the basis of Article 24 of that Treaty. It thus found that
accordingly it had jurisdiction to entertain the case, and found also that the
Application was admissible.
On 18January 1985,a letter from the Agent of the United States of America
was received inthe Registry, stating that the United Stateshad given the deepest
and most careful consideration of the Judgment of 26 November 1984,to the
findings reachedby the Court, and to the reasons given by the Court in support
of those findings. The letter continued:
"On the basis of that examination, the United States is constrained to
conclude that the Judgment of the Court waç clearly and manifestly
erroneous as to both fact and law. The United States remains firmlyof the
view, for the reasons given in its written and oral pleadings that the Court
is without jurisdiction to entertain the dispute, and that the Nicaraguan
Application of 9 April 1984 is inadmissible. Accordingly, it is my duty to
inform you that the United States intends not to participate in any further
proceedings in connection with this case, and reserves its rights in respect
of any decision by the Court regarding Nicaragua's claims."
On 22 January 1985,the President of the Court made an Order, referring to
the United States Ietter, and noting that the Agent of Nicaragua had informed
the Court that his Government maintained its application and availed itself of
the rights provided for in Article53 of the Statute whenever one of the Parties
does not appear before the Court or fails to defend its case. By that Order time-6 MILITARYAND PARAMILITARYACTIVITIES
limits were fixed for the writteii proceedings on the merits of the case. The
Memorial of Nicaragua on the merits was filedon 29April 1985,but no Counter-
Mernorial was filed by the United States of America within the time-Iimit fixed
therefore (31 May 1985), nor did the United States seek any extension of that
time-limit. Accordingly, the case became ready for hearing on 1June 1985.
1note the presence in Court of the Agent, coiinsel and other representatives
of the Republic of Nicaragua ; 1note further that no representative of the United
States of Arnerica is present in Court.
In accordance with its usual practice, and pursuant to Article 53 of the Rules
of Court, the Court has decided, after ascertaining the views of the Parties, that
copies of the pleadings and documents annexed shall be made accessible to the
public with effect from the opening of the present proceedings.
TIZP Coiut adjourned from 10.20 a.nl.to 10.40a.m. STATEMENTBYMR.ARG~ELLOGOMEZ
AGENT FOR THE GOVERNMENT OF NICARAGUA
Mr. ARGUËLLO GOMEZ: Mr. President, Members of the Court, today we
face empty chairs on the side of the Respondent State. This is not the first time
this hasoccurred. Just fiveyears ago this Courtand the United StatesGovernment
under President Carter faced the same empty chairs when Iran failed to appear
before this tribunal.
But the real novelty of the situation is that for the first time in the history of
this Court and that of its predecessor, a Respondent State fails to appear ufter
the Court has found that it has jurisdiction.
Once jurisdiction has been found, there is no shadow of a doubt as to the
obligatory nature of a country's appearance. That is why the decision of the
United States Government to disobey thistribunal has sent shudders throughout
the international legal çommunity and, yes, throughout the legal community in
the United States itself.
Nonetheless, the distortion of reaiity by the present Administration of the
United States is such that the fact that they appearedin the jurisdiction and
interim rneasures phases of this case has been attempted to be portrayed as an
exarnple of good faith and respect for international lawAs if the fact of accepting
an invitation only to insult the host were a sign of good manners. as if the fact
of being in contempt of court were a sign of obedience of the law.
When the present Administration of the United Statesannounced that it would
not participate further in these proceedings, it made a public statement that its
principal reason for doing so was that this Court is a biased tribunal and that
the United States could not hope to receive impartial treatment by the Court.
Although it is generally in bad taste to recall the bad manners of others, 1feel
impelled to mention this fact because it sheds light on the character and actions
of the accused Government and is useful inanalysing in abseritiltthe justifications
this Government has for its itlegal actions against Nicaragua.
In püssing, it is useful to point out the obvious contradiction in affirming as
reasons for non-appearance that the Court has no jurisdiction and in the same
breath uttering contemptuous remarks on the impartiality of a Court before
which the United States has been or has attempted to be a party to, many times
in the past.
In passing, it rnight be useful to recall that in April of last year when Nicaragua
initiated this case, this Court in view of the urgency had to suspend hearings
that were at that moment going on in a case concerning the United States and
Canada.
Nicaragua has confidence in the justice of its causein the fairness and juridical
impartiality ofthis highestof world tribunals and, yes, Nicaragua isalso confident
that some time in thefuture a law-abiding Government in the United States will
honour the judgment rendered by this Court and accept the moral necessity of
the rule of law.
Article 53 of the Statute States:
"1. Whenever one of the parties does not appear before the Court, or
fails to defend its case, the other party may cal1 upon the Court to decide
in favour of its clairn. MILITARY AND PARAMlLlTARY ACTlVITlES
2. The Court rnust, before doing so, satisfy itself, not only that it has
jurisdiction in accordance with Articles 36 and 37, but also that the claim
is well founded in fact and law."
In the present instance, for the first time we have a situation in which the
Court has satisfied itself thatit has jurisdiction. This finding of the Court was
taken after hearing lengthy arguments of al1the legal talent that a world power
could muster. No new arguments or facts have been presented sincethat decision
was taken that could - if that were possible- modify that findingof the Court.
Another particularity of the present proceedings is that in the initial phase of
the interim measures ofprotection. al1the salient facts of this case werepresented.
The United States participated in full in that phase with an impressive array of
tegaladvisers; they had adequate opportunity to dispute the facts and their legal
significance. Inother words, this is not a case in which the absent party has not
had legal opportunity to dispute the facts or the law, and that therefore
the Court has to supply arguments the other party might have made in order
to fully satisfy itself. This is very clearly a case in which the United States
Government and its formidable legal team ran out of arguments and preferred
to contemptuously disregard these proceedings, this tribunal and the rule of law.
The facts in this case are a matter of public knowiedge. No one in the world
has seriouslydisputed their veracity. They are backed by ample admissions made
at different periods by the highest authorities in the United States Government.
The original argument put forward by the United States Government before
this Court, alleging some purported right of collective self-defence, in itself,is
an admission that the facts before the Court are true but that they were
supposedlyjustified by this right of collective self-defence.
Professor Brownlie will address the legal consequences of this admission. At
this point 1will only emphasize that even this pretence of collective self-defence
has been publicly abandoned by the United States Government.
As soon as the United States announced its intention of not participating
further in these proceedings, the hypocritical excuse of self-defencewas imrnedi-
ately dropped, and President Reagan stated on 21 February of this year that it
was United States policy to seek to remove the Nicaraguan Government. He
emphasized this policy inthe most incredibfyarrogant fashion by stating that it
would only change if the Nicaraguan Government cried "Uncle".
In late April of this year, Nicaragua's legalteam had a meeting in Washington,
D.C., to put the finishingtouches to our Mernorial on the merits of this case.
Our meeting coincided with debates in the Senate and the House of Rep-
resentativesofthe United Stateson PresidentReagan'srequest forfurther funding
for the mercenary army.
Mr. President, Members of the Court, my persona1impression on seeingthese
debates on public television channels is very difficultto describe. There we were
preparing a very careful legal argument backed by nearly 1,500pieces of docu-
mentation to prove to this Court that the United States Government was doing
preciselywhat was being publicly discussedby the United States Congress.
The facts are very clear, they are in the main in the public domain and
certainly the thousands of documents we have already introduced to this Court,
prove the obvious.
Nonetheless, for the purpose of this hearing we have brought up to date the
documentary evidence and have proposcd to this Court the testimony of very
qualified witnesses.Thesedocuments and witnessestogether withal1thedocumen-
tation previously introduced will certainly satisfji the Court that Nicaragua's
claims are well-founded in fact and in law. On June 19 of this year several United States marines were killed in El
Salvador. A month later, a letter was delivered to my Government by the United
States Ambassador in Nicaragua, throwing responsibility for that incident on
Nicaragua and threatening the use of force if"acts of terrorism against United
States citizens. . . (occurred) . . . in other countries of Central America, or
elsewhere".
ln effect, the United States Government was making Nicaragua responsible
for any itcts against its citizens anywhere in the world. President Reagan went
so far as to include Nicaragua in a list of five purported terrorist nations.
In its answer Nicaragua recalled that the United States actions against
Nicaragua constituted acts of State terrorism and that these activities were
precisely the subject-matter before this Court and invited the United States
Government to defend itself before this tribunal and further invited the United
States to present any evidence it ciaimed to have against Nicaragua before
this tribunal.
The same offer was publicly made by President Ortega of Nicaragua before a
concentration of more than 500,000people that gathered this past July 19 to
celebrate the sixth anniversaryof Nicaragua's revolution. In effect,the President's
speech centred on these proceedings and the hope for peace they represented for
Nicaragua.
The invitation made by President Ortega to President Reagan is answered
today with an empty chair. The seat of justice is definitely empty in the
United States.
Nicaragua's claim that the United States is responsible of practising State
terrorism is based on the facts before this Court.
It may be recalled that the methods and actions employed in the policy of the
United States against Nicaragua include among others the following:
(u) the mining of Nicaraguan ports;
(bj the attack against fuel storage facilities at the port of Corinto, which
rendered necessary general evacuation ofthe population of that port;
(c) the systematic murder and abduction of peasants, elderly persons, women
and children bymercenary bands financed by the United States Government ;
((1) the criminal assault on a passenger aircraft belonging to a Nicaraguan State
airline in Mexico;
(e) the explosion in the baggage claim area of Our international airport which
caused the death of four airport workers;
(f) the manual entitled Psychological Operutions in GrrerrillaWarfareproduced
and distributed by the Central Intelligence Agency, which is an instruction
and a guide to commit acts of terrorism.
Mr. President, Members of the Court, on 19July 1979the Nicaraguan people
overthrew the Somoza dictatorship that had received the political, military and
financial baçking of the United States Government during nearly five decades.
In that period, United States companies made large profits in gold, mining,
banana production, lumber and other businesses. These companies were seen by
the Nicaraguan people as partners of the Somozas in the rape and exploitation
of Nicaragua.
After similar social changes in other countries, the anger of the people was
manifested many times by acts against the lives and property of United States
citizens and businesses.
Nothing like that happended or has happened to this day in Nicaragua. No
American liveswere threatened or hurt. No American businesses were confiscated.10 MILITARYAND MRAMILITARY ACTIVITIES
As a matter of fact there are thousands of United States citizens living inside
Nicaragua, and hundreds of American citizens visit Nicaragua every month with
no danger to their lives except that coming from the activity of the mercenary
forces to which every living being is subject to in Nicaragua.
This point serves to emphasize the incredible distortion of reality portrayed
by the United States Government in pretending to justify aggressions against
Nicaragua, the same distortion of reality that the United States perpetrated when
it publicly açcused this most respected international tribunal of bias.
The normal consequence of State responsibility isthe payment ofcompensation
and in the circumstances of this case this aspect of the matter looms large. As
the Court will recognize, this is inevitable for not only have heavy losses, both
human and material, been caused as a direct result of United States action but
a major tactic of the United States Government has been to create critical
weaknesses in Nicaragua's economy and infrastructure in order to achieve its
publicly statedpurpose of overthrowing the lawful Government of Nicaragua.
For practical and technical reasons, on behalf of my Government, 1 am
requesting the Court to reserve the issue of compensation for a separate phase
of these proceedings, and there are, of course, precedents for this course. This
request will be forrnally renewed when I present submissions at the conclusion
of the oral argument.
In my submission the separation of the question of compensation is justified
by considerations of logic and convenience and this proposa! underlines the
importance of the question ForNicaragua. The significance of the question will
also be evident when Mr. Huper, the Minister of Finance in my Government,
gives his oral testirnony. While the process of the assessment of the compensation
due to Nicaragua must lie in the future, 1 would like to make a suggestion
concerning the methods of assessment, particularly with reference to direct
damage caused to the economy of my country by the military and pararnilitary
operations directed by the United States. 1 would propose that the assessrnent
of compensation be the subject of a report by an independent specialized
organization to be appointed by the Court such as the World Bank, the
International Monetary Fund or the United States Economic Commission for
Latin America. The proposal is offered in a coiistructive spirit and with full
appreciation of the fact that theCourt will control al1matters of procedure as it
sees fit.
On this year of the 40th anniversary of the creation of the new world
organization after the tragedy of the Second World War, on your shoulders rests
the responsibility of making international law into an effective instrument for
world peace.
Your authority is being challenged by a superpower that wishes to set law
aside in order to have a free hand for destroying a small nation.
This challenge started when you gave your Order in May of last year that
Nicaragua's sovereignty should be respected by the United States. That Order
was blatently disregarded by that Government.
The attacks against Nicaragua have increased since that Order was given.
Since then thousands of Nicaraguans have been killed, maimed and left horneless.
Every diiy the newspapers announce new instances of atrocities committed by
the rnercenary forces.
Three of our witnesses, Commander Carrion, I'rofessor Glennon and Father
Loison, will attest to the human suffering this has caused in Nicaragua.
While this continues, recent revelations prove beyond a doubt that the National
Security Council of the United States is responsible for the direction of the
mercenary forces. This Council, headed by the President of the United States,directs the strategy and even selectsthe targets to be destroyed by the mercenary
forces. In effect, the commander-in-chief of the United States armed forces is
also commander-in-chief of the contm forces. Whether this violates American
taw, as is now being debated in the United States Congress, is irrelevant to these
proceedings.
It certainly violates international law and converts the United States
Government into a terrorist State.
St. Augustin wrote "set justice aside, and what are kingdoms but robber-bands
writ large?". In these proceedings we will prove beyond adoubt that the United
States Government has setjustice aside and isguiltyof State terrorism. Nicaragua
challenges the United States Government to defend itself before this tribunal
and the world.
Mr. President, Members of the Court, in accordance with the instructions
received, Nicaragua will present its arguments after the production of the evi-
dence. For this reason the witnesses, whom Nicaragua has comrnunicated it
intends to call, will be examined first. The order in which they willbe called will
follow the order listed in the communication addressed to the Court, unless the
time remaining for the examination of the following witnesses in the order
mentioned makes it more expedient to alter the order given. This of course will
be communicated as soon as possible to the Court. The first witness Nicaragua
requests the Court to cal1is Commander Luis Carrion, who will be examined by
Professor Brownlie. WlTNESS CALLEO BY THE GOVERNMEN'T OF NICARAGUA
The PRESIDENT: 1cal1on the witness, Commander Luis Carrien, to make
his solemn declaration and then to give his testimony.
Commander CARRION: 1solernnlydeclare upon my honour and conscience
that 1will speak the truth, the whole truth and nothing but the truth.
Professor BROWNLIE: With your permission Mr. President, Members of the
Court, 1shail conduct the examiniition of this witness.
Question :Piease state your full name.
Answer: My name is Luis Carriiin.
Q.: When and where were you born?
A. :1was born in Nicaragua on 18November 1952.
Q.: Where did you receive your eduçation?
A. :Well, 1 received my primary and secondary education in Nicaragua, then
1 went to university for two years in the United States and then back to
Nicaragua.
Q. :You are an officialof the Government of Nicaragua?
A. :Yes: 1 am an officialof the Government of Nicaragua.
Q.: What position do you presently hold and what positions have you
previously held in that Government ?
A. :1am presently Vice-Minister ofthe Interior, but 1 was, until the beginning
of 1980,Vice-Minister of Defence.
Q. :Would you please describe the responsibilities involved?
A.: Yes, 1 am in charge of al1 State security matters. That inciudes the
searching,collecting and keeping ofal1the information related to any subversive
activities against my country, and it also includes taking the necessary and legal
steps to prevent or stop those activities. I have also been appointed by the
President as a specialcommissioner - an extraordinary commissioner - of the
Government to the northern provinces of my country - these ones over here
(indicates on map) - to co-ordinate al1government activities, be these civilian
or military. 1have to mention that these provinces represent the main war zone
at the present moment.
Q. :Could you describe your military responsibilities inmore detail?
A. :1 have the responsibility, within my responsibilities, to supervise military
operations in the area.In carrying on these responsibilities 1 have to go into the
field, talk to the field comrnanders and 1 sometinies have to interview prisoners
directly, corroborate personally some of the most important information? and
inspect weapons and other military equipment that might be captured by Our
troops.
Q. :In carrying out your responsibilities, do you normally Weara uniform?
A. :Yes, 1normally Weara uniform.
Q. : Referring to your special responsibilities as First Vice-Minister of the Interior, is it one of your responsibilitiesto be aware of and to monitor rnilitary
and paramilitary activities against Nicaragua?
A. : Yes, that is within my frame of responsibility.
Q. : How do you monitor these activities?
A. : Weil there are Ministry of lnterior officersal1 around the country on a
territorial basis. Whenever a mifitary or pararnilitary activity occurs within their
territory of responsibility they have been instructed by me to prepare a detailed
report on the events that occur. These reports are sent to regional officesand to
a national office.This iast officeis directly under my responsibility.
Q.: Could you tell the Court how long it takes from the time an attack occurs
until the information is passed through the reporting system to you?
A. :Yes,1usually receivethe information within 24 hours, but certainly before
48 hours after the events occur.
Q. :Are there other sources of information which you use?
A. :Yes, as normal procedure we use several sources of information and we
cross-check them in order to arrive at conclusions. Some of these sources are the
CO-ordination with the Nicaraguan army, Our intelligence services, persona1
interviews,statements from people who accept the amnesty law. 1have to inform
you that rny country, my Government, put into effectan amnesty law by which
every person who is involved in military activities against the Government can
conduct and live a normal iifejust by surrendering his weapons. We also have
information from people we have infiftrated into the contra groups. These I
would say are the main sources of information for us.
Q. :In what form are records kept?
A.: Records of military and paramilitary activities are a part of the whole re-
porting system we have. They include exact information of date, place, parti-
cipating forces, civilian and military casualties on the Government side, verified
contrus casualties and also a summary of the material destruction that occurred
as a result of the attack or combat.
Q. :Would you tell the Court when the organized military and paramilitary
activities against Nicaragua began?
A.: Organized activities beganby December 1981.
&. : In what condition were the anti-government forces prior to December
1981?
A.: They werejust a few small bands very poorty armed, scattered along the
northern border of Nicaragua and they werecomposed mainly of ex-members
of the Somoza's National Guard. They did not have any military effectiveness
and what they mainly did was ruçtling cattle and killing some civilians near the
border lines.
Q.: What differences did you notice in those activities in that period of
December 1981and thereafter?
A.: After December 1981we began to observe that conrrus started to act on
the basis of their centralized plans, military training camps were set up in
Honduras and in the United States for training the contras,new weapons were
delivered to the contra forces and the centralized command was set up in which
most of the contra forces were put since December 1981.
Q.: TOwhat do you attribute these differences whichyou noticed?
A. : These differences weredue to a direct involvement of the United States
Central IntelligenceAgency,CIA, with the contrrisin the firstevent, and secondly,14 MILITARY ANI) PARAMILITARYACTIVITIES
they were due to the approval of $19 million by the United States Congress for
the CIA to carry on paramilitary activities against Nicaragua in December 1981.
Q.: When did the CIA-trained and equipped forces launch their first attacks
against Nicaragua and what form did those attacks take?
A.: The first organized attack nccurred at the end of 1981. For the first time
the contra offensive would mean the code word "navidad roja", which means
Red Christmas time. By this plan, the purpose of it was to launch simultaneous
attacks on border posts in the north eastern part of the country, which isa very
isolated part of the country, and at the same time try to introduce a larger force
in order to take hold of a territory and then ask for international support. The
co~ztrascould not achieve their purposes, they were rejected back to the camps
in Honduras, but there was a rise in civilian and military casualties.
Q.: To your knowledge, was Red Christmas the first plan with a specificname?
A.: Yes, it was the first plan with a specific name. Before that the contras did
not even act under a plan.
Q.: You have used the term "ron~ras"to describe the anti-government forces.
Can you tell the Court whether that was the terni usually employed to describe
those forces ?
A.: Yes, "con~rus" is one of the terms usually employed to describe those
forces. They are also called "mercenaries", among other names they receive.
Q.: You have referred to the Red Christmas plan and the attacks associated
with that. What other attacks did the contras make against Nicaragua at this
particular period ?
A.: During the year 1982 we saw a gradua1 rise in hit-and-run attacks across
the border, which were increasingly deadly and aggressive. By the beginning of
1982, the end of the first quarter, there were some bombs that exploded - one
in a commercial Nicaraguan airline, in a plane, in Mexico airport - and the
second exploded in Nicaragua airport. Also, thcre were blown up, sabotaged,
two bridges - one over the Rio Negro river and the second nver the Ocotal
river.These two bridges are very near the Honduran border, one about here and
the second is about here (indicates on map), on the Panamerican highway, which
is the main road for Central American international traffic.
Q.: Apart from the hit-and-run raids across the border and the sabotage,
what other steps did the contras take against Nicaragua in 1982?
A. : By the end of 1982they launched another major offensive against Nica-
ragua.
Q.: Surely, if the conrruswere organized only late in 1981,why did they not
launch a major military offensive for almost a full year?
A.: This is because the CIA needed some time to transform the small and
badly-trained groups which constituted al1 anti-government forces prior to the
end of 1981into a well-equipped army capable of launching CO-ordinatedattacks.
They needed time to recruit new men, to train them, to arm them, to instruct
them in the use of new communications equipment, and organize them.
Q.: At the end of the first major military offensive at the end of 1982, how
many forces did the confrtishave?
A.: There were approximately 3.500men.
Q.: Would you tell the Court where these men were recruited?
A. : Yes, these men were recruited from two main sources. One was the
ex-members of the Somoza's National Guard, who were scattered in refugee
camps in different countries of Central America and also in the United States.The second source for recruitment was the peasants, especiaily those who lived
near the northern border. These peasants were recruited forcibly by the contras.
Q. :What was the role of the ex-members of the National Guard?
A.: The ex-members of the National Guard formed the core of the conlru
army the CIA was setting up. They al1 were prornised and received regular
salaries, which ranged from 300 dollars a month for the common soldier, let's
Say,up to 1,500dollars a month for the higher oficers. These officerswere also
put as leaders and commanders of the commanding structure and the operational
military units.
Q.: Would you please describe the method of peasant recruitment in more
detail?
A.: The way that the contras used to recruit the peasants was the following.
They usually came to a peasant community very well armed, and then they
would go about killing those persons who were most conspicuously identified
with the Government, whether they be Government workers or not. These
killings would create in the peasant community a clirnate of terror and fear, after
which they would take forcibly the rest of the peasants into the contra unit. As
a matter of fact, as this way of recruiting was extended, many communities and
small villages were practically depopulated because the peasants had to fleefrom
the cnntros.
Q. :Were al1the peasant recruitments accomplished by means of force'?
A.: No, not al1 of them were recruited by force, but the majority of them
were. Up to now there are a little over 1,500 persons that have accepted
Governrnent amnesty law, and most of them have declared that they were
forcibly recruited by contra units.
Q. :Where did the contras obtain their weapons?
A. :Prior to the end of 1981the contras had some weapons that the ex-mernbers
of the National Guard had taken with them when they fied from the country
after the triumph of the revolution. But as the contra forces began to grow as a
result of the CIA's recruiting policies, they needed more and more effective
weapons so the CIA gave them FAL rifles. The FAL rifle is a modern assault
rifle which many modern armies currently use and from then on, that is from
the end of 1981on! the CIA has supplied the contrus with al1the weapons they
have needed.
Q.: Would you tell the Court how the contruswere trained, and by whom?
A. : Yes, there were several military training camps set up in Honduras and in
the United States. Here in these camps the contrtlsreceived a general military
training which included shooting, tactics, physical exercisesand the basicsotdier's
training. 'Theyalso were trained in the use of sorne other weapons like mortars,
rocket launchers, grenade launchers and heavy machine guns. Apart from the
training camps, there were some training sites for specialized training for special
operation groups. They received a training in sabotage, demolition and the use
of explosives. in 1982,up to the beginning of 1984,the main part of the training
was given by Argentinian mercenaries hired by the CIA from which they received
a monetary payment. But since the end of 1981, there were also CIA officers
directly involved in the training of the contras, specially or particularly in the
areü of sabotage and demolition - specialized training for special operation
groups.
Q. : In your professional opinion, were there any other significant factors that
set the stage for the beginning of thecontms' major rnilitary offensive at the end
of 1982?16 MILITARYAND PARAMILITARYACTIVITIES
A.: Yes. At the end of 1982,the conirasreceived new funds from the United
States amounting to $30 million. From this date on, we started to notice that a
more or less regular pattern was emerging and that was that after every infusion
of funds, the contras would launch a new major ofTensiveagainst my country.
The offensive would gradually diminish as the funds were being used up until
the new infusion came, when the pattern would repeat itself,
Q. :Would you please describe the confras'military offensiveat the end of 1982 '?
A. : Yes.The contras'military offensiveat the end of 1982was called "C Plan"
or "strategy of terror". The purpose of this offensivewas, as in the Red Christmas
plan, to take over the town called Jalapaand then installa provisional governrnent
and cati forinternational recognition. For carrying out this plan they concentrated
the troops around Jalapa right on the border line and from there they did rnany
attacks with artillery support, as they were not able to take over Jalapa, but as
a result of this offensive many towns were put under artillery fire and there were
rnany civilian casualties as well as military casualties.
Q. :After this offensive of 1982was defeated, what were the next steps taken
by the contras?
A.: Well, after the 1982 offensivewas defeated the contras changed their way
of operating. They started to infiltrate groups, snlall groups at first, deeper into
Nicaraguan territory where they would have more objectives within reach, let's
say - State farms, CO-operatives.grain stores, health centres and so on - and
it is during this period when the contrus were developing in a regular manner,
that ambushes occurred on the road against any vehicle, civilian or military.
Q. :Can you tell the Court what circumstances made this possible?
A. :This was made possible mainly becriusethe CIAhad perfected their logistic
systems, especially because they had given the contrus several aeroplanes which
they could now use to resupply the rnilitary uiiits operating deep within the
country.
Q. :Could you say anything more about the way in which the provision of
military aeroplanes to the contras affected their tactics?
A.i Prior to the confras receiving the aeroplanes, contras'military units could
only operüte within Nicaraguan territory for very short periods of time, because
they would run out of ammunition and would use up other equipment: then
they had to go out again to the camps in Honduras to be resupplied in order to
be abIe to continue operating. But after they received the aeroplanes they now
were able to remain for longer periods of time, and do more damage as a
consequence within the territory, because the planes would come right to the
place where they were and drop their suppties for them, so that they did not
need to go brick to Honduras to resupply.
Q.: What evidence did you have of the involvement of the United States
Government in these air supply operations'?
A. : United States involvement in these air supply operations is very clear.
First of all, the planes were provided by the United States; but not only that,
the main base from which these planes operate in Honduras - which is called
El Aguacüte and is somewhere around here (indicates on rnap), 80 kilometres
from the Nicaraguan border line - was improved and enlarged from 3.000 feet
to 5,500 feet, by United States Army engineers. This was done in the course of
1983 under the cover of military exercises that were being crirried on by the
United Statesin Honduras at that time. The exercises were called Big Pine 1 and
Big Pine II, but there are other ways of United States involvement in the air
supply operations. We know this from several sources: one of those sources is arnember of the crew of a contra aeroplane that the Nicaraguan army brought
down in September 1982, and he declared that the chief of the Aguacate base
was a United States officercalled, or known as, Major West - we do not know
if thisis a real or a false name, probably it is a false name. This Major West
was in charge of co-ordinating the whofe operation - the air supplyoperation -
he directed the planes when they were going to drop the supplies and there was
another American officer there who was known as Sergeant Mark. He was in
charge of packing the supplies in such a way that they wouldn't break when
dropped by the plane. Now, they used to parachute the supplies and this was
rieeded because the guardsmen did not know how to pack these supplies.
Q.: Can you tell the Court what effect these new tactics - these new
sophisticated air supply operations - what effect these new tactics had?
A. :The main result of these new tactics was an increased number of civilian
victims as a result of contra attacks and a greater degree of material destruction.
The contras would cornet organizing ambushes against any vehicle going into the
rural areas. There were several passenger vehiclesambushed and sometimes every
single passenger has been killed. The guerrillas would increaçe their attacks
against civiljan objectives, like farms, either State farms or co-operative farms,
or individual owners' farms.They attacked and destroyed schools, health centres,
grain stores and every pieçe of economic infrastructure they could attack.
Q, :Were thcse attacks on the civilian population isolated episodes by certain
elements in the contra forces, or did they show some systematic pattern?
A. :Yes, they clearly showed a systematic pattern and these attacks against
civilians and civilian objectives took place wherever the different contru military
units were operating. no matter how far apart they were from one another. They
consistently acted in this manner. We also know from prisoners and some contrcr
leaders' statements that they received specificinstructions so as to carry out these
types of operation and this is made very clear in the manual the CIA prepared
for the contras and which is called Psychokogir,ulOperations in Gi,errillu Worfnre.
Q. :The manual in fact is part of the evidence already submitted to the Court,
but perhaps I could ask you to remind the Court what the purposes of that CIA
rnanual were?
A.: Yes, this manual was prepared by the CIA and, by the way, the Spanish
version is a very poor translation from English. It was prepared with the main
purpose of instructing the contras on how they should use terror tactics with
great effectiveness. 1 would like to cal1 your attention to Chapter 3, heading
No. 3, also, which is called "Implicit and Explicit Terror" and another heading,
No. 5, which is called "Seleçtive use of violence for propaganda effects". Under
this heading, but also under other headings, the manual clearly instructs the
c.onlrrrsin killing justices of peace, police members, prominent leaders, and,
etc.,- that means everybody else. They also sliggest and give the contru.~some
tiints on how to fabricate martyrs for their cause. Al1of these terrorist instructions
have the main purpose of alienating the population from the Government
through creating a clirnate of terror and fear. so that nobody would dare to
support the Government.
Q.: How widely distributed, to your knowledge, was this CIA manual?
A.: It was very widely distributed. We know this because we have captured
many copies of the manuiil in combats we have had with different contru military
units operating in different parts of the country. But also we know from the
statement of a contras leader who defected that about 2?000copies were dis-
tributed among the different military units of the contrus, and that every member18 MlLITAKYAND PARAMILITARY ACTIVITIES
of the contros was obligated to study the manual, and the commanders of the
different forces guaranteed that this would be done effectively.
Q.: Were the methods and tactics described in this manual actuaily put into
operation ?
A. : Yes. They were put into operation. There are hundreds of examples of
contru activities following the manual's instructions.1willgivejust some examples
in order to illustrate to you how this was done.
On 13 May 1984 in the eastern department of Saslaya, a peasant community
was taken over by the contras, and they murdered 34 people, al1of them civilian.
Amongst the 34 people killed there were five women and nine children who
happened to be relatives of some militia men and some of them were members
of a peasants' organization which is supportive of the Government.
On 5 October 1984the contrrrsassassinated the president of a workers' union
in La Sorpresa, Jinotega? which is about here (indicates on map),
On I September of that same year, in a road that goes from Puerto Cabezas
here to the mining district here (indicates on map), a truck belonging to a
religious organization, a protestant religious organization, was ambushed, and
there were seven civilian workers killed and two civilians wounded, a woman
and her little child, only 45 days old.
These are just a very few exarnples of how the tactics recommended by the
CIA manual have been very well applied by the cumras.
Q.: Would you please tell the Court whether the contras launched any major
offensives in 1983?
A.: Yes. the contrus launched a new major offensive by the end of 1983.This
offensive was calted Plan Sierra - sierra means achain of mountains.
Q.: ln addition to what you have already mentioned, what were the other
factors which prepared the way for that particular offensive?
A.: Once again in December 1983 there were funds approved by the United
States for the contrus.This time they were $24 niillion.
Q.: What was the number of men in the contru forces at this time?
A.: There were somewhere around 7,000 people.
Q.: And how did this offensive at the end of 1983evotve?
A.: The first objective of Plan Sierra was again to take over Jalapa - over
here (indicates on map) - and install a provisional government who the ClA
informed the conirus would be immediately recognized by the United States
Government.
To achieve this objective they concentrated most of the forces again around
Jalapa but also introduced some diverting forces into the interior of the territory.
When they couldn't take over Jalapa and the main forces were repelled back to
Honduras they changed the main objectives at that point and what was at the
beginning a diverting effort changed into the main effort, so they took - Iiim
talking about the first quarter of 1984 - the forces which were defeated around
Jalapa and introduced them in this direction with the main purpose of disrupting
the economy as much as possible; so they were directed to hit al1 economic
targets possible. And it is of this year, 1984,that material destruction rose very
steeply. At the end of the year and the beginning of the year, in Nicaragua we
are picking the coffee crop and one specificobjective of the r'ontruforces was to
make it impossible for Nicaragua to pick the crop. In order to do this they
attacked coffee plantations. they killed some cofièepickers, they also threatened
coffee growers in order that they would not take the crop from the field, and to
make them know that this threat was for real they set afire, destroyed completely, EVlDENCE OF COMMANDER CARKION 19
eight farms and killed three cofTeegrowers, 1 mean 1 am talking about private
proprietors who used to grow coffee. So this was the main effort in the first half
of 1984after the take-over of Jalapa hüd failed.
Q. : Can you describe the type of military organization which the contras had
up to this point?
A. :Up to this point, the main contra forces wereal1under a singleand unified
command. The head of this command was something called a joint staff major;
thisjoint staff majorwas çonformed by a CIA officerknown as Colonel Raymond
and by Enrique Bermudez who is in charge of the military operations on the
part of the contras. Under this joint command, there is a complex system of
different services for the military combat units. They have a medical service, a
public communications service; they have what they cal1 civilian services, a
supply centre and what they cal1the strategic command which is the operational
head structure. Under the strategic command there is a logistic section, a school
section, that is a training section, a special forces section - what they cal1
interna1 forces, air force section, and what is known as the tactical operations
command. Under this tactical operations command are the operational rnilitary
units which are called regional commands. The regional commands have perfectly
well-definedoperational areas where they normally act and they are the superior
structure under which are the so-called task forces. Each regional command has
under its command three or four task forces which are then subdivided into
smaller units.
This is then the structure corresponding to a fairly well-developed army and
up to this point, that is what the contm is, a very well-equipped and organized
army.
Q. : in your professionai opinion did the United States play a role in this
organizational structure?
A. :Yes, this structure was designed by the CIA and was implemented by the
CIA and the CIA controls its day-to-day operations. Sometimes they even Say
which forceshould attack which objective, and this influenceof the United States
in constructing this complex organization shows even in the use of words. For
instance, the phrase "Task Force"whichinSpanish, the Spanish literal translation
is Fuerze de Tarea, does not exist as a phrase in Spanish. It isjust a translation
of an English phrase. As far as I know that phrase is not regularly used by Latin
American armies. That isjust one little example of how even the language shows
up the United States influence in setting up this whole structure.
Q.: Werethere other waysin which the United States assisted the contra forces?
A.: Yes, the United States assisted the contra forces in other fields, mainly by
funds. intelligence, communications, weapons and logistics. 1 would Say these
were the main areas in which United States assistance to the contras has occurred.
Q.: First of al11would like to ask how did the United States assist the cotitrus
in relation to weapons?
A.: As 1 said before, prior to the end of 1981 the contras had the weapons
they had taken from Nicaragua when the National Guards abandoned and fied
to other Central American countries. But when the CIA needed new weapons
for the increasing contra force, the CIA just got the weapons, FAL rifles as 1
said before, and delivered these weapons to thern. That was in the beginning.
Afterwards CIA AK 47 rifles - whicli are also very modern assault rifles -
were given to the contras. The contras never had to buy weapons in the market.
The CIA has always supplied them. And recently the CIA is supplying the
contras with a G 3 rifle,which is the German equivalent to the FAL rifle, and it20 MILtTARY AND PARAMtLITARY ACTIVITIES
i~ the one that they are supplying right now. They supply not only rifles, but
other types of weapons too. They supply them with a disposable rocket launcher
called a light offensive weapon or LOW with a grenade launcher called M 79
grenade launcher, they supply them with mortars of 60 millimetres and 81
millimetres - the last one is considered as medium range, in the practical sense,
an artillery weapon. They also supply them with hcavy machine guns, rnostly
M 60. Al1 of these are made in the United States and came directly from the
United States to the contrcrsin Honduras. They also supplied the crintraswith
al1sorts of high-powered explosives, mainly the plastic explosive known as C 4
and mines of al1sorts, anti-personnel mines, antj-carrier mines, of different sizes
and types and TNT and other explosive devices for sabotage.
Q.: Did the assistance in relation to weüpons go beyond the mere supply of
weapons? Were other facilities provided?
A.: 1do not understand the question. Would you please repeat it?
Q. :Were other facilities provided such as training in the use of weapons made
available, or was it simply a case of the supply of the weapons themselves'?
A. : said earlierin my declaration that the CIA set up a full training structure
with specialized training officersto teach the contrashow to use these weapons.
Many of them never had anything to do with weapons, specially the sophisticated
weapons, like some of the mines given to the cuntras,or the military explosives.
The United States provided the contras with the complementary necessary
military training, or specialized training, inorder that the contrus will be able to
use these weapons.
Q. :Now 1 would like to ask about United States assistance to the confrasin
relation to intelligence.
A.: This is a very important field of assistance from the United States to the
contras. The United States makes a regular overflight of Nicaragua with spe-
cialized surveillance planes of different sorts. They are very well equipped with
photographic and electronic equipment. The United States has some satel-
lites and surveillance functions over Nicaragua. They also have stationed for
periods of time specially electronically-equipped ships just off the Nicaraguan
coasts and they have installed radar and communications interception centres in
Honduras. They also try to get the services of some Nicaraguans who are in the
army or some sensitive structure by paying them and from al1 this array of
intelligence gathering systems they collect very exact information about the
Nicaraguan army - where the troops are, where they are moving and so on,
and all this information is delivered to the contrusfor their use. This happens
every day. The United States gives al1the information it can collect and that is
of interest to the contras - they give it to them. The United States has also
assisted the conIrusin setting up an intelligence organization. This is another
field of assistance for thecontrasin the intelligence area.
Q. :Was there also assistance in relation to communications?
A. :Yes. There was much assistance in the communications area. In the first
place the United States provided the crintrriswith very modern and eHective
military communications systems. They gave them different types of equipment -
equipment that is used for communications between the regional commands and
the tactical operations command, or strategic comrnand, those are usually
PRC-77 back radios which can be carried on the back. Also the use of a
shortwave radio, South Quartz is the name of it, and they also give the contrus
small walkie-talkies for communications among the smatl units within a task
force orregional command. But 1 would say that the most important assistance in the communications field has been the preparing of some sophisticated codes
for the contrus to cover their communications. They also prepare for them
conversational tables whichare simplercodes for lessimportant communications.
The contras had no capacity at al1for preparing or manufacturing these types of
codes. In the past Somoza's National Guard did not use code - never had
codes in useextensively.
Q. :1would liketo pursue the question of assistanceeven further and try your
patiencemore. How did the United States assistthe contrasinrelation to Logistics'!
A. :In relation to logistics,the United States through the CIA would calculate
what the contras needs werein al1sorts of equipment, personnel equipment and
then deliver those suppliesto the contras in Honduras. This flowsupply included
from a pair of boots up to mosquito repellent. They gave them everything they
needed - uniforms, canteens, Sam Brownes, light packs, special caps with a
mosquito net and also ammunition for the weapons.
Q.: Apart from the United States involvement with the coniras, did United
States military or intelligencepersonnel themselvesparticipate in attacks against
Nicaragua ?
A.: Yes. on many occasions United States military or CIA personnel partici-
pated in direct attacks against Nicaragua.
Q. :Can you say when this began?
A.: This began in September 1983.
Q.: Would you please give the Court, if you can. some examples of direct
attacks by United States military or intelligenceForces?
A.: In September 1983,a special team from the CIA blew up a pipeline,just
out of Puerto Sandino, which goesinto the sea,where shipspick up and discharge
oil; they used undenvater high explosivesto do this. They came from a mother
ship which wasstationed some distance from our coast.
In October of that same year several speedboats armed with 20-millimetre
cannons attacked oil storage facilities in the port of Corinto, which is here
(indicütes on map) and is the main port of Nicaragua. As a result ofthe attack
the three big oil-storage tanks were set on fire.This fire was a very big one and
put in peril the whole Corinto population, which is around 20,000 people, and
they had to be evacuated from the town to some place else. Many millions of
gallons of oil were lost, and the oil storage tanks were completely destroyed.
Another exampte occurredin September 1984when severalplanes and modern
attack helicopters made an aerial attack against a military training camp of the
Nicaraguan army in aplace called Santa Clara, here near the Honduran border
(indicates on map). In this last attack there were two United States citizens who
participated directly and they got killed when the helicopter from which they
were attacking was brought down by ground fire from the Nicaraguan army.
They happened to be members of one of the United States states'national guard.
1think these three examples may illustrate to you the direct participation of
United States personnel in actions against Nicaragua.
Q.: What were the purposes of these attacks?
A. : The main purpose was to destroy al1capabilities of my country for storing
or receiving oil. That is why most of the attacks centred on the Puerto Sandino
pipeline. That pipeline wüs blownup several times, not only once, or at least, it
was intended to blow it up several times - three times. That is why they also
attacked oil storage tanks, in order to completely cripple and paralyse the
Nicaraguan economy, and make it impossible for the Nicaraguan Government22 MILITARY AND PARAMILITARYACTIVlTIES
to carry on their defensive war against the military régime by the confras
supported by the ClA. That was the main purpose.
Q.: Apart from these air and naval attacks against Nicaragua by United
States forces, were there any other measures by United States forces against
Nicaragua ?
A.: Yes, there were other measures against Nicaragua. I will mention some
just as an example. For instance, at the end of 1983two United States aircraft-
carrier ships, the S.S. Ranger and the S.S. Coral Sea, along with the destroyer
known as New Jersey, with escort ships were stationed just off the Nicaraguan
coasts in an obvious threat of the use of rnilitary force. I have to say that this
show of force occurred shortly before the 1983offensive of the contrasbegan.
On the other side, since the beginning of 1983, the United States has been
carrying on continuous military exercises in Honduras, thus stationing there
permanently several United States military units, especially intelligenceunits and
supply and service units. Also, the United States made overflightswith the most
sophisticated surveillance plane that exists in the world up to now, the SR-71,
nicknamed "the Blackbird". These overflights were made in such a way that the
whole population could hear the sonic boom that this plane makes, creating a
sense of fear and unrest among the population. But the rnost important action
that the United States took against my country was the mining of the ports.
Q. :How extensive was the mining of Nicaragua's ports?
A.: The mining was very extelisive. Except for minor ports that represented
less than 2 per cent of the total commerce of Nicaragua, al1commercial ports
were mined.
Q. :What was the impact on Nicaragua of the rnining of ports?
A.: Well, the mining of the ports first of al1 had a psychological impact on
the whole population because it wüs tactically a naval blockade or a maritime
blockade, not with ships but with mines; people had a feeling of being shut off
from the world. But there were cither direct effects of the mining of the ports;
there were 12 vessels or fishing boats damaged by mines in different ports of
Nicaragua, there was a Dutch vessel. a Soviet vessel, a Pananlanian vessel, a
Nicaraguan vessel, a Japanese vesse1and an English vessel among those which
received damage. There were also 14people woiinded and 2 people died. There
were many vessels which did not arrive finally in port and left the merchandise
they were bringing to Nicaragua in the ports of other countries, mainly in Costa
Rica's Puntarenas from where we had to bring it to Nicaragua by truck at higher
costs. Those were the main impacts of the mining of the ports.
Q. :Did the activities of the contrascontinue consistently throughout 1984or
were there vüriations in those activities?
A. : Well, the activities of the contras continued throughout 1984 but they
started to decline towards the end of the year and into the first months of 1985.
This was in sffect a consequence of having used up the last funds they had
received in December 1983 and that resulted in a shortage of supplies that
determined a decrease in the military activities of the conims.
Q. :How do you know of the interaction between those two things, how could
you tell that theabsence of additional financial support from the United States
resulted in a faIl off of activ'?y
A. :WeH,first the decrease in the level of military activity showed up in the
daily report wehave in my country, Nicaragua; but atsofrom personal interviews
and interception of contras' communications we know that there were many
contws leaders who were complaining about the lack of supplies. We captured many contrasvery poorly equipped, uniforms worn out and with verySewrounds
of ammunition, etc., that make it evident that they were not receiving at least as
rnuch supplies as they usedto receiveyears before, but there araseven demorali-
zation among the contrasforces. And we know also that the main leaders told
the commands, that is how they cal1the base member of the contrascommand,
not to worry that they were sure that the United States would give the backing
to them and that the hefp would come back again soon.
Q. : To what extent did United States control over the ronfrusforces continue
during this period?
A. : Yes, the United States continued holding the direction and control of al1
the contrasforces during this period.
Q.: Were there other changes in the United States methods of channelling
assistance to the contrasduring this same period?
A.: Yes, there were some changes. As official funds had not been approved,
the United States used some civilian façade organizations to channel the funds
to the contras; one of these organizations is the so-called civilian military
assistance to which the two CIA mercenaries killed inSanta Clara in September
1984 belonged. But the United States also promoted fund-raising campaigns in
the United States and very high government oficers and President Reagan
himself assisted in different activities related to this Sund-raising campaign. 1
would say that these were the two main changes which made it possible for the
cnnrrusto keep receiving some funds although in a lesser qiiantity, but they
always could receivesome support from the United States even during the period
when the officialaid was suspended.
Q. :Earlier you referred to a decrease in activity by the contrasforces early in
1985. Did there come a time when the contrus increased the level of activity
once again?
A.: Yes, it happened in'June this year, 1985.The coniras launched another
major offensive.
Q. :In your opinion, did anything happen to prepare the way for this renewal
of contraactivity?
A.: Once again, the pattern repeats itself. At the beginning of June there was
approval by the United States Congress of $27million more for the contras.
Q. :And roughly how soon thereafter did the activities increüse?
A. :Within two weeks.
Q. :What did the contrasdo when the activities increased? What was their
new action and what was the objective of that action?
A.: The new offensiveof the contras is called Plm Repunte. This means a
come-back plan. The main purpose of this plan was to infiltrate large contra
military units more deeply within the territory, trying to operate near the main
highway, where there is a greater density of population coming out of their
traditional areas which are very sparsely populated and without any - or very
few, or a very small - economic infrastructure, with the purpose of increasing
the sabotage in areas where they could hit more important targets - for instance,
in this area there is one of the most important electric generating plants of the
country - but, also, to have an impact in areas which were for the whole
country more sensitive politically in order to create an impression of political
crisis and to portray the Governrnent as incapable of holding control of the
situation. This action was complementary to the economic boycott - the24 MILITARYAND PARAMILITARY ACTIVITIES
commercial embargo - established by the United States earlier this year. Those
were the main purposes of this last come-back offensive,as they cal1 it.
Q.: In connection with this new offensive, what was the extent of the
operational dependence of the contrusupon the United States?
A. : This new offensiveagain made evident the dependence of the contrason
United States assistance. 1 have to say that they wouldn't have dared at al1to
be involved in this kind of operation without very strong and clear support from
the United States. They decided ihis time to operate in areas where the military
manŒuvring capabilitiesof the Nicaraguan army had been increased. There are
more roads, the terrain is a little bit less hilly, there is a small population which
meansthat our counter-intelligence servicesand the Nicaraguan army can receive
more information more rapidly from the population. So the contrus - to corne
into that type of zone - to try to operate in those zones needed, indispensably,
first ofal1assistance in the intelligencearea: they need to receive,with accuracy,
what the Nicaraguan army troops are doing, where they are, where are they
going, how many they are, what plans they have - everything - in order for
the contrus to keep the initiative. Otherwise they would lose the initiative, the
rnilitary initiative, very soon. On the other hand, this being a more favourable
terrain for the Nicaraguan army operations, it was expected that coinbat was
going to be more extended and more continuous. That means that ammunition
and other military supplies would get used up very rapidly, so the contras also
needed to have a very well-assured, steady flow of supplies during the course of
these operations. Those are two things that again show how in this offensive
they are dependent on the United States assistance to carry on their offensive.
Q. :Can you tell the Court what the impact of this offensivehas been so far?
A.: The contras could not carry on with their plans and they were repelled to
their traditional operational areas from the new areas they were trying to open.
But in the course of the offensive there were three towns along important
highways that were attacked by the contras.There were two bridges sabotaged
also, on the Panarnerican highway - around here - and where the combats
were more intense there was also an increase in the number of casualties, both
military and civilian. Some economic objectives, some tobacco houses and
co-operative installations were also destroyed during the course of this attack
and many civilianswere murdured by the contraforces.
Q. :What have been the human costs to Nicaragua since the attacks began in
December 1981 ?
A. :1have some figureshere. Sincethe end of December 1981to August 1985,
there have been 3,886people killed on the Nicaraguan side, on the Governrnent
side. 1 make this distinction because as 1 said before a good majority of the
contrasare forced recruited peasants and they also die in this war, and they are
not included in this figure. And we had 4,731 wounded people, many of whom
wiil remain crippled for the rest of their lives. And to the crippled and the
wounded I would add that more than 40,000people have beenforced to abandon
their houses because of the contrusand they are fleeingfrorn rural areas to the
cities, and this is another human tragedy that is the direct effect of the military
aggression.
Q. ;In your opinion,what would happen ifthe United States were to terminate
its support for the contrus, for exampfe, tomorrow, what in your opinion would
be the result?
A. :Without any doubt the warwould be over in a matter of a few months,
not more than two or three months. Q.: How can you be so certain?
A. : Well, because the contras are an artificial force, artificially set up by the
United States, that exists only because it counts on United States direction, on
United States training, on United States assistance, on United States weapons,
on United States everything. Without that kind of support and direction the
conlrus would simply disband, disorganized, and thus lose their military capacity
in a very short time.
Professor BROWNLIE: Mr. President, this examination has been conducted
under the rules and under your direction. 1 have now completed my examination,
but of course, the witness remains at the disposal of the Court. The PRESIDENT: I have one question to ask, which is fresh in my memory,
1would like to put it to the witness.
In answer to the question of the counsel, Professor Brownlie, the witness
stated, on citingexamples of direct attacks on Nicaragua, that in September
1983there was a special team of CIA that blew up the pipeline with under-water
high explosives.Now could this not be sabotage and therefore the responsibility
could not be fixedon anyone?
Mr. CARRION:This can be called sabotage, but as far 1can see that does
not mean that the responsibility cannot be fixedon anyone, because it is known
even through an interna1CIA report, which inpart was made public, that the
CIA organized and executed that sabotage.
The PRESIDENT: Would you have any documentary proof of that fact?
Mr. CARRION: The document is inthe Mernorial subrnitted by Nicaragua.
The Cour!rose ut 1.10p.m. EiCHTEENTH PUBLIC SITTING (13 IX 85,lO a.m.)
Present:[See sitting of 12IX 85.1
QUESTIONSPUT TOCOMMANDER CARRIONBYTHEPRESIDENT,
JUDGE LACHS,THEVICE-PRESIDENT AND JUDGES SCHWEBEL, SIR
ROBERTJENNINGS AND COLLIARD
The PRESIDENT: 1will finish my last question, and then request the other
judges to ask questions.
The witness deposed before the Court yesterday that Argentine mercenaries,
hired by the CIA, had given training toconfiasfrom 1982 to 1984. How many
Argentinian mercenaries were operating with the contrasand what proof was
there that they were mercenaries and not volunteers motivated by ideological
considerations, or sent by some organization in Argentins with no CIA link?
Furthermore, whichnationalities are working wicontrrrsand inwhat numbers
and in which capacity? What proof was there that they were paid by the CIA?
Was a regular salary visuülized or some lump-sum remuneration was paidand
if so, how much per person? What was the strength of the contrasoperating in
1981and today? How many CIA officerswere directly involvedand what proof
was there of their identity as CIA?
Commander CARRION: 1would like to answer the questions part by part.
The PRESIDENT: You woutd like to have a copyof these questions?
Commander CARRION :Please.
The PRESIDENT: If you would need time to collect the facts and figures. 1
would have no objection if you gave the answers in writing within one week.
Would you prefer that, or would you like to answer'!
Commander CARRION: Let mego over the questions.
The PRESIDENT :Yes, verygood.
Commander CARRION: 1would fike to answer most of the questions now,
but for some exact figuresthat are askedor here, 1would like to givethem later
to the Court.
The PRESIDENT: You can do so.
Commander CARRION: 1 know that there were more than ten Argentinians
operating with the conrras from 1982 to the beginning of 1984. It is rather
difficult to give the exact number, because they operated under false identities
and they tried to hide their relationship with contras.There are at least two
names though that we could get. Those were the names of Santiago Villegasand
Oswaldo Valitas. Those are the real names of Argentinians who used to be
rnembers of the iirrny intelligence ofArgentina. They were discharged from the
army and after that they went to Central America to work and operate with
the contras.
About the proof of their being hired by the CIA, of course we do not have areceipt signed by any one of them, that sort of thing just does not happen in
these kinds of operations. Nevertheless, there are some fairly accurate and
believable pieces of information in this sense. First of all, there was a video
cassette that was made public by one of these Argentinians. called Hector
Francis, wherehe stated that they receivedthe money for paying al1Argentinians
working with the contrasfrom the CIA - United States - and he said that the
money was usuallyhanded to them in Panama, to one of the Argentinian group
in Panama, and he would take the money and go over and give it to the rest of
them. On the other hand we have some inside information from people who are
infiltrators into the contra groups and who have had many conversations with
different Argentinian trainers and in those conversations on several occasions it
came up that they were receiving :dollar payment which used to come from the
United States. Those are two main sources of information for me to assert that
the Argentinians were being paid by the CIA.
About other nationalities working with the contras, we have only identified
American citizens and some people from Cuban origin about which we do not
know exactly if they were American citizens or not. 1 have some specific
information about that to give you.
Up to now from different sources. mainly prisoners' interviews, 1am talking
about prisoners who spent some time in Honduras training camps and hold
certain medium-level responsibilitieswithin the contragroups. From the public
statements by some very important conlm leaders in this case the most important
public statement comes from a person whose name is José EfrenMondragon,
who used to be the second in command of a regional command and this was
publicly and directly acknowledged by the contras.From other sources we know
that we have identified at least 11 United States citizens directly working with
the contrasin different matters. All Il we have identifiedas being United States
citizens and as being oflicers of the United States Government, the one known
as Colonel Raymond used to be. until a few weeksago, the chief of the team of
Americans working with the r.ontru.s.
In conversations with the prisoners we later caught, other people like
Mondragon, they made it very clear that they were CIA officers. But not only
that, some of these people had interviews with confruswho were later captured
or defected from the contrasin the United States, and they presented themselves
as being CIA representatives - in some cases they even talked in the name of
the President of the United States. So we considered this and added it up with
many other pieces of evidence, like the approving of funds for the CIA carrying
on covert operations against Nicaragua as being very reasonable evidence that
these people were effectivelymembers of the CIA. We know there was at least
one citizen of Cuban background and there is a document in this case signed by
a very large group of contra leaders and which is a letter sent to the Embassy of
the United States of America in Ifonduras, channelled through someone whose
name is Colonel Raymond, asking the United States Ambassador to intervene
so that this Cuban, who was assistingthe contrason behrilfof the United States
Government, could remain for a longer period of time because he was helping
them a lot. This document was handed to my Government by somebody who
later defected from the conirasand which 1think is in the Nicaraguan Memorial
presented to the Court, as illustrative proof.
Was a regular salary visualized or some lump-sum remuneration paid and if
so how much per person'! Does this refer to the contras themselves or to other
nationalities working with the contras,in this question?
The PRESIDENT: The other nationalities. QUESTIONS PUT BY JUDGES 29
Commander CARRION: Those who used to be regular CIA officersreceived
a regular salary, but when it cornes to agents,aythe Argentine mercenaries who
were not regular CIA officersbut people hired outside the United States, outside
the agency, todo somejobs for the agency, we could not cal1what they received
a regular salary: it was more like they were working on a contract basis. They
received periodically some money which they would distribute among themselves,
but within the Argentinian group it was clearly established how muçh each one
was going to receive from the whole amount of money that the CIA handed to
them. As to other CTAagents, like some of the people in the so-called political
directory of the contrus'main organization who happened to be CIA agents paid
by the CIA, the money they received cannot be strictly called a salary, because
it is not stable. The agency might give them directly some money or might put
it ina bank so that when the agent has finished his work he can collect al1the
money he has receivedfrom the CIA which has been deposited in a bank. usually
in the United States. People like Adolfo Calero who appears as being the chief
leader of the contru organizütion has received money in this manner.
The PRESIDENT: May 1just interrupt you to ask a question? Would you
then Saythat there was a possibiiity of a nationality other than the rontru group
to have joined because of ideological intensity and feeling rather than for the
sake of money, and the money was merely pocket-money which was given for
out-of-pocket expenses: that they were really fired by zeal because of ideological
considerations, and therefore they were not war mercenaries?
Commander CARRION: 1would not have any doubt that some people might
have come out of ideological convictions. Some people in different places ofthe
world might feel that they have a right to go down to Central America and fight
there. 1think that this has happened in some cases, but by no way are they a
majority. The majority of them are there because they are being paid salaries
like the Argentinians were, because there was a contra and the CIA officersare
there because that is their job: that is what they are paid for. Many Nicaraguans
are there just because they are receiving a salary also. There has been public
information about mercenaries of other nationalities recently - mercenaries
from the United Kingdom, from France and the United States were captured in
Costa Rica by Costa Rican authorities and they publicly declared that they had
come because they were offered a salary, a regular payment, and also they were
ofered a life insurance for their relatives in casethey got killed.
About the strength of the contras: at the end of 1981there were between 1,000
and 1,200people. Today there might be between 10,000and 11,000,in the contra
groups. And the last question about the ClA officersdirectly involved: 1talked
about that earlier when 1 said that we had identified üt least 11 United States
citizens who were working officiallywith the contrasfollowing instructions from
their Government, That is al11have to say, Mr. President.
The PRESIDENT :Judge Lachs has a subsidiary question arising out of your
reply, so 1will give the floor to him.
Judge LACHS: You mentioned yesterday the figure of 7,000 in connection
with the estimated force of thecontras. So how do you arrive at these figures?
Commander CARRION: Yesterday 1 referred, if 1 recall rightly, to the end
of 1983.Now 1 am talking about the present figure,iip to this moment.
The PRESIDENT: 1now give the floor to the Vice-President.
Le VICE-PRESIDENT: Monsieur le Vice-Ministre, hier,vous vous êtesréféré
plusieurs foià la datede décembre1981comme correspondant à un changement30 MILITARY AND PARAMILITARY AÇTIVIT1ES
dans l'action des conzras et dans l'assistance que ceux-ci recevaient des Etats-
Unis. Cela signifie-t-il, selon vous,que les activitésdes Etats-Unis, Faisantl'objet
de la plainte du Nicaragua, auraient débutéen décembre1981 ?
The PRESIDENT: Would you like to have a Spanish translation of this
question 7
Commander CARRION: No, 1 think 1 understand. Well, the date of late
December 1981 refers to the first time we have evidence of a direct CIA
involvement with the conlras. That does not mean that the CIA or other United
States Government agencies were not having any activities against my
Government prior to that date, but as far as we are concerned (as far as we can
Say with any certainty) the direct involvement with the armed groups (let 11sput
it that way) began at the end of 1981.That is al11have to Say.
The PRESIDENT: Judge Schwebelwould like to put his question now.
Judge SCHWEBEL: Mr. President, 1 have three series of questions 1should
like to ask of Commander Carribn. Commander Carrion: Let us go back please
to the days when the revolution against the Somoza Government was in progress
but when the Somoza Government was still inpower.
1. My first question is: would you be good enciughbrieAyto describe the part
you played in the revolution?
Commander CARR~ON: 1 came to the FSLN, which is the leading political
party inNicaragua and the one which ledthe revolution, in 1972.From then on
1worked as an organiser of the rank and fileof the FSLN in the city of Managua
mainly where 1stayed most of my militant life as a mernber of the FSLN party.
My organizational activities wererelated to forming FSLN groups within various
sectors of the population; we uscd to work with the industrial workers in the
city of Managua and also within the vicinity. We did two types of thing - we
helped them to set up their own organizations, for instance we helped them to
organize the labour unions and most of the Nicaiaguan workers at that time did
not have any organized work because of the ferocious repression that Somoza
maintained against the workers. You might say that some of the popular
organizations that presently exist in Nicaragua were born before the revolution
because they were organizations that dealt with the immediate interests of the
people and simultaneously with that we tried to form (or 1 tried to form with
other members of my party), FSLN groups wherewecould, to make our political
programme known to more and more people al1over the country so that they
would support it. We also started organizing activities again against Somoza's
Government; this happened because there was no other way in Nicaragua at
that time to change the government. The Somoza dictatorship lasted more than
45 years, from the father Somoza to sons who inherited political power from
him and this military action against the Somoza National Guard and Somoza's
dictatorship started to gain support from the people until an insurrection occurred
first in September 1978; people took to the streets with everybject that could
be considered a weapon to fight the Somoza armg. The insurrection was defeated
at that time but then another insurrection came by June of 1979when people
took to the streets again in practically al1 cities and main rural areas of the
country. By this time, Somoza's army could not resist;Somoza fled the country
and the whole structure fell apart, then the FSLN took over political power.
Q.: Thank you. My second question is: during the revolution, but before the
overthrow of the Somoza Government, did Sandinista forces receive assistance
from foreign States? QUESTIONS PUT BY JUOGES
A. :We received some support from other States.
Q. : Did such support include any or al1of the following :
Were arms supplied by any foreign States to the Sandinista forces?
A. :We received a small ürnount of weapons from other States, but we also
got weapons by taking them from the Somoza army and by buying from the
clandestine weapons market.
Q.: Did the Sandinista forces have the benefit of the use of bases in foreign
territory. as forexample Costa Rica?
A. : Not exactly. the great majority of the Sandinista forces always remained
within Nicaraguan territory and the revolutionary process came into existence
through two insurrections from within the country and especially from within
thecities, by the people who were there and had been fighting there for a long
time. I can say, however. that we were not being put under pressure from the
Government of Costa Rica, and we could stay there for some short periods
of time.
Q. :Did such foreign assistance include the training of Sandinista fighters?
A. :A very small part of the people who took part in the revolution received
some training offered by other States.
Q. :Would you please name those States?
A. :Yes, wereceived training in Cuba.
Q. :Was there participation of foreign volunteer forces in the Sandinista forces
or did such foreign soldiers, for example Panamanian soldiers, conduct allied
operations with them?
A. :There were some non-Nicliraguans with the FSLN forces.
Q.: Thank you very much. May 1 now turn to my second series of questions
and to the period since the revolution has been in power. You indicated Com-
mander, your officialresponsibilities, particularly in Nicaragua's northern regions.
1wish to ask :
Are you aware of any shipment of arms since the coming to power of the
revolution in July 1979 from the territory of Nicaragua to insurgents in El
Salvador ?
A.: My Government has never had a policy of sending arms to opposition
forces in Central America. That does not mean that this did not happen.
especially in the first years üfter the revolution in 1979and 1980,weapons might
have been carried through Nicaraguün territory, weapons that might have the
Savadoran insurgents, as you said. as their final recipientAs a matter of fact in
those firstyears there were several Nicaraguan citizens who went by themselves
to El Salvador to join the Salvadoran revolutionaries there because they felt it
wüs a fight like ours. Our fight was very recent and many people were willing to
go down to El Salvador and help in their fight. But this was never an official
policy and many of them could have been stopped before they left Nicaragua
because rnost of the tirne they did this illegally. At one time we ctiught a "tica-
bus" which is a commercial passenger bus line which travels through Central
America. We caught this bus which hüd a double bottom and that double bottom
contained arms, weapons. and those were going to El Salvador. So we suppose
that there might have been other loads of arms going through Nicaragua that
we did not catch.
Q.: My final series of questions is this, and it complements the line of
questioning of the President. You stated yesterday, in respect of the training of
the conIrus,"ln 1982up to the beginning of 1984,the main part of the training32 MlLlTARYAND PARAMILITARY ACTIVITIES
was given by Argentine mercenaries hired by the CIA for which they received a
monetary payment."
Nicaragua has introduced, as Annex F, Number 191, to its Memorial. as
evidence, an article from the WallStreet Journulof 5 March 1985,which states
the following :
"The program got off to a bad start when the CIA turned to a surrogate,
the right wing military dictatorship in Argentina, to organize and train the
Contras. The Argentines already had a small training program for the
Contrus in Honduras and by working with them the U.S. shielded its own
involvement. But the heavyhanded Argentine approach tainted the move-
ment in the eyes of many Nicaraguans. The U.S. had few alternatives. since
the CIA at the time didn't have any reliable paramilitary capability of its
own."
The article in the Wu11Street Jourtiu!further states thlit,
"The Argentines also apparenily tolerated a practice of killing prison-
ers . . (To stop the killing, CIA-officers ordered in mid-1982 that al1pri-
soners be brought back to base for interrogation.)"
The impression given by this evidence introduced by Nicaragua is
(a) that the first Government to assist the contrus was not that of the United
States but that of the then Government of Argentin~i;
(hj that the Argentine Government provided personnel from its armed forces
to trainthe contrlis;and
(c) that the Argentine advisers tolerated a practice of killing prisoners which.
when CiA advisers came on the scene, they endeavoured to stop.
Woutd you please comment on the foregoing impressions and also on whether
a characterization ofArgentine personnel, provided by the then existing Argentine
Government for training of the contras, can correctly be characterized as
"mercenaries" ?
Commander CARRION: First of al], 1believe that the newspaper article you
have just read expresses the writer's point of view. You did not say if those
assertions were direct quotations from CIA officers or CIA chiefs, so what 1
think the article makes evident is that there was an involvement of Argentinians,
that there was an involvement of the United States in CO-operation - in ctose
relationships - with some Argentinian people. Whenever we turned to the
Argentinian Government to ask them about these people, they presented us with
documents of their forrnal discharge from the army - the Argentinian army.
So, we are not in a position toassert that in the participation of these Argentinian
ex-military it was a governmental decision on the part of the Argentinian
Government at that time. We know that some talks were held by United States
officers - among some United States officers - and some military of the
Argentinian army. That is as far as we know. This rneans that the first foreign
involvement with the r:ontrusalready relied upon the participation of the United
States of America and it is very clear that they took the initiative to involve
people from other nationalities - that is in reply to your question as to whether
another government was the first to get involved with the contms.
Would you please repeat the other two questions'?
Judge SCHWEBEL :My second impression, on which 1invited your comment.
was that the Argentine Government had provided personnel from its armed
forces to train the rofrtras; 1 think actually~OLL have responded to that. The QUESTIONS PUT BY JUDGES 33
third was that, according to this articlc introduced in an annex to the Nicaraguan
Memorial, Argentine advisers tolerated the practice of killing prisoners which
the CIA endeavoured to stop.
Commander CARRION: 1think that it was very clear yesterday how a CIA
document, which is the Psychological Operutions in GuerrillclWurfire manuat,
clearly instructs the contras in killing some civilian people. They list some of
[hem and leave it open with an etcetera at the end of the list for the contras to
decide who would be viçtims of these murders, so 1 believe that in the essence
of the terrorist tüctics of the conlrilsthere was not any variation when the
Argentinians were the major trainers but not the sole trainers and when the CIA
directly took over the training. 1have to say that from the beginning, from 1981
up to now. the CIA has held firmly in its hand the direction and control of ail
contra operations, So they have been directly involved at al1 stages of the
organizational process of the contras and they directly hold responsibility for
things the wrrtrusare doing.
Judge SCHWEBEL: 1 have completed my questions. 1 think you earlier
responded to my last one about whether the Argentine officers could correctly
be characterized as mercenaries.
The PRESIDENT: May 1now have Sir Robert Jennings please'!
Judge Sir Robert JENNINGS: One very short question on the minings of the
ports. Presumably after the mining it was necessaryto sweep the mines or deal
with the mines in some other way and 1 remember at the time there was even
talk of an international operation to do that. In the event,was the Nicaraguan
Government able to deal with the mines from its own resources and can you tell
us roughly what time elapsed between the discovery of the mines and the
restoration of the ports to normal use by shipping?
Commander CARRION: Nicaragua could not deal with the mines with its
own resources. We do not have a mine-searching ship of any kind. Weeven had
to try to sweep the mines away with a fishingboat and a net hanging down and
going over the channel in order to try to sweep them away. As you may suppose
this was a very ineffectiveway of dealing with underwater mines that were the
ones that the CIA had put there.
In relationto your second question. we never discovered a mine before it
exploded. We did not have the means to discover them, so during the whofe
period when our ports weremined, there wasan abnormal situation in Nicaraguan
ports. Every vesse1thar came to Our ports could be hit at any moment by an
underwater mine so we could talk about a permanent state of abnormality for
several months during which our ports were mined.
Judge Sir Robert JENNINGS: Still, could you tell us roughly how long -
days, weeks - this situation obtained, because presumably this is al1right now.
Presumably the mines are not operating at the moment and 1would liketo know
about how long this situation that you have just described lasted'?
commander CARRION: When a mine exploded normal operations in the
port would be stopped for between two and three days and then resume. not in
a normal way, but trying to look normal. Concerning how long a period the .
mines were being put in our ports - it was approximately two months.
The PKESIDENT: May 1now ask Mr. Colliard to put his question please.
M. COLLIARD: Monsieur te Vice-Ministre, j'aurais trois questions à vous
poser, Peut-être,pour certaines d'entre elles, ne pourrez-vous pas répondre34 MILITARY AND PARAhllLITARYACTlVITlES
immédiatement et,avec la permission du Président,je suis prêt P recevoir vos
rkponses la semaine prochaine. dans un délaique pourrait fixer lePrésident.
Première question. Des indications ont-elles étéfournies par l'examen des
mines repêchéecsoncernant leur fabrication et leur provenance?
Commander CARRION: As 1said before, the Nicaraguan Government had
no possibility of discovering the mines before they exploded, much lesscapturing
them. So we did no1actually see a mine, we did riot have any in our hands and
in any case the origin of the manufacture of the weapons or other military
explosive devices that are used by intelligence agenciesdoes not mean anything
because the first thing that an intelligence agency would do is to acquire the
equipment in some place other than in its own country. This is why it is very
significant that in the case of Nicaragua the CIA has not taken any care, in
many cases, to cover up the origin of most of the equipment they used.
M. COLLIARD : La seconde question est la suivante. Hier, parlant de navire
endommagé par des mines, vous avez indiqué quatorze personnes blesséeset
deux tuées.Pouvez-vous préciserà bord de quel navire ces accidents ont eu lieu?
Commander CARRION: Yes, 1 have that information here. The two killed
were Nicaraguan and it happened when a mine blew up a fishing boat Pesaca
No. 22. Also, three people were wounded at that time in that same boat. From
the Soviet vesselfivemembers of the crew were wounded, from the Panamanian
vesselthere were three crew members wounded and there were three Nicaraguans
wounded in another ship, which makes up a total of 14 wounded people as 1
mentioned yesterday.
M. COLLIARD: Enfin, troisième question. S'agissant de navires étrangers,
autres que navires du Nicaragua, pourrait-on avoir le nom des compagnies
auxquelles appartenaient les navires endommagés.La réponsepeut etre différée
parce que vous n'avez peut-êtrepas les élémentsicimême.
Commander CARR~ON: 1do not have that information with me. 1 would
have to ask for it socould not answer irnrnediately.
The PRESIDENT: Would you then be able to answer in about a week'stime?
Commander CARRION : ln a week's time? Yes, 1could.
The PRESIDENT: Very well,tlien do so please.
The PRESIDENT: There is one more question for the first witness, if
Commander Carrion is still available.
Mr. ARGÜELLO GOMEZ: Mr. President, Commander Carrion has already
left. When we were told that he nlight be needed again he had already left the
premises, but çertainly if the Registry would like to locate 1should imagine
that he has returned to his hotel. Otherwise he could be called after the witness
we are going to introduce next, by which time we could probably have him
back here.
The PRESIDENT: Very well.
Mr. ARGÙELLO GOMEZ :In that case, Mr. President1request the Court
to cal1 Our next witness, Mr. David MacMichael. who will be examined by
Professor Chayes.
The PRESIDENT: 1would first ask the Judgt: to put his question, to get it QUESTIONS PUT BY JUDGES 35
on record, and when the Commander cornes he can answer it. If not, he will
answer it subsequently.1 will summon the second witness afterJudge Schwebel
has taken the floor.
Judge SCHWEBEL: May 1 submit, MT. President, that since itis believed
that Commander Carrion can return, it would Save the time of the Court if 1
simply stated the question when he appears. EVlDENCEOF MR. MAcMICHAEL
WlTNESS CALLED Bi''THEGOVERNMENTOF NICAR4C;UA
Professor CHAYES :Beforethe witness makes his solemn declaration 1would
like to make a statement for him and for the Court. Mr. MacMichael at the
outset and before you have made your solemn declaration, 1 want to admonish
you and assure the Court that in the testimony you are about to give you will
not make any unauthorized disclosure of information that is classified under
United States security procedures, nor disclose any information in violation of
any laws or regulations of the United States or of the terms of any employment
contract you may have with any ;igency of the United States Government. If 1
ask you a question that you cannot answer truthfully under those limitations,
you should simplysay "1cannot answer that question". Do you uiiderstand that?
Mr. MACMICHAEL: Yes. 1do.
Professor CHAYES: And do you agree to comply with those limitations to
the best of your knowledge and ability '?
Mr. MAcMICHAEL: 1do agree.
Professor CHAYES :Would you now make the sotemn declaration.
Mr. MAcMICHAEL: 1 solemnly declare, upon my honour and conscience,
that 1will speak the truth, the whole truth and nothing but the truth.
Q.: Pfease state your full name and current address for the record.
A. : My name is David MacMichael. My current address is 11442Orchard
Lane, Reston, Virginia, United States.
Q.: When and where were you born?
A. : 1was born on 5 June 1928 inAlbany, New York.
Q.: And what is your current employment?
A. : Currently 1am a senior associate with the Council on Hemispheric AiTairs
in Washington, D.C.
Q.: 1 am now going to develop in some detail those aspects of Mr.
MacMichael's background and experience that bear on his qualifications as an
expert witness in the field of intelligence analysis,guerrilla warfare and counter-
insurgency, with specificreference to Latin America and Central America.
Mr. MacMichael, please summarize your educational background.
A.: 1hold a Bachelor'sDegree in Liberal Arts from Hampden-Sidney College
in Virginia and a Master's Degree and a Doctor of Philosophy in History from
the University of Oregon.
Q.: Could you summarize your military experience, please?
A. :1 spent almost ten years on regular service in the United States Marine
Corps, first as a private from 1946to 1948,and 1 returned to the Servicein 1952
commissioned as a second-lieutenant in the United States Marine Corps and
served thereafter until late 1959, when 1 resigned. 1 was an infantry officer: I
performed duties typically in amphibious reconiiaissance and infantry assign-
ments, and 1 was wounded in action in Korea, EVIDENCE OF MR. MAcMICHAEL 37
Q. :What did you do after you finished your graduate studies?
A.: I taught history at the Dominican College of San Raphael in California
and at the University of Oregon.
Q. :What course did you teach?
A. :Primarily Itaught Latin American historyand coursesin American history.
Q.: Were you at that time already specializing to some degree in Latin
Arnerican afhirs?
A.: Yes, 1was. My dissertation topic dealt with United States relations with
the Dominican Republic and on Caribbean diplomacy.
Q. :So what did you do after 1965 ?
A.: In 1965 1was invited to join the Stanford Research Institute, now known
as SRI International, in Menlo Park, California.
Q. :What kind of organization was it?
A.: Stanford Research Institute, or SRI International. is a large independent
contract research organization : it is one of the largest institutions of its type in
the United States. Ttdoes contract research for a variety of governmental and
private clientsin a wholerange of fieldsfrom hard scienceto socialsciencestudies.
Q. :And what kinds of contracts did you work on?
A. : 1was employed originally to work on Department of Defense contracts,
first in Central and South America.
Q.: Could you describe in general the kind of study that you were working
on'! By that [ mean the subject-rnatter, the kinds of data that you developed,
and so on.
A. :The initial study that 1dealt with was one contracted with the Advanced
Research Projects Agencyof the Department of Defense of the United States. It
was directed at the military assistance programme in Latin America which at
that time was being revised from previous concentration on external defence
towards internal security matters and it was one of a series of studies designed
to assist the Department of Defense in reshaping its military assistance pro-
grammes on that basis.
Q.: Can you Saywhat countries your study dealt with?
A. : Yes,the two countries which we studied were Honduras and Peru.
Q.: And how did you go about this studyY
A.: A team was formed at SRI consisting of myself, a retired United States
Arrny colonel who was chief of the team, and a former relatively high-ranking
Central IntelligenceAgency oficial who was then an employeeof SRI and some
supporting personnel. We did some background within the area dealing with
outside consultants, experts from the Stanford community. We travelled to
Panama to the Southern Command Headquarters, where we conferred with the
officers in charge of the military assistance programme, examined their files,
traveiled to the countries in question, dealt there with United States advisory
personnel, with local military and internal security personnel? discussing the
general problem, and on the basis of several months of this activity produced
a report.
Q.: 1 have been informed that both of us are speaking a little too fast for the
interpreters to followso let us both try to do better on the subsequent questions.
To resume our consideration of these studies, in the course of this work did you
have accessto classifiedinformation?
A. : Yes, 1did.38 MILITARY AND PARAMILITAKY ACTIVITIES
Q. : And to what degree of classification?
A. : At that time 1had clearance for secret material.
Q.: Sir, you said that at the end of the study your team prepared a written
report ;when was that ?
A. : That was in February 1966.
Q.: To whom was that report transmitted?
A. : To the contractor, the Advanced Research Projects Agency.
Q..- Did the report receive other distribution, so faras you know, rvithin the
Defense Department or other government departments and agencies?
A.: Yes, it was rather widely distributed; we received comments ftom a
number of United States governinent agencieson that report.
Q.: Was the report itself classiRed?
A. : Yes, it was.
Q.: As 1said before, 1do not want to ask you to reveal classifiedinformation,
but within that limitation could you summarizein any way the recommendations
of the report?
A. : Yes, 1think that in general the report provided the Department of Defense
with what we thought were the critical features of the internal security situation
within each country, addressed ourselves to the posture and organization of the
internal security forces of each country and in light of the situation as we had
defined it, made certain recommendations as to procedures the Department of
Defense might follow in its military assistance programmes thereafter.
Q.: Now sometime later you joined the Office of the Special Assistant for
counter-insurgency in the United States Mission in Bangkok in Thailand. Could
you please state the circumstances under which that occurred?
A.: Yes. Following the completion of the study we have discussed, 1 was
invited to join the SR1 (the Stünford Research Team) that was then working
under contract, again with the Advanced Research Projects Agency of the
Department of Defense, in Bangkok, Thailand. My initial tasks there were to
conduct studies on the Thai-Malayan border with a viewto determining whether
certain internal security devices and programmes that had been used by the
United Kingdom in Malaysia - a çlosely related area- would be suitable for
implementation in that area. While 1 was engaged in that, after having been in
Thailand for some rnonths the United States Government, which was at that
time funding and supporting a great number of internal security activities within
Thailand and assistance to the Royal Thai Government being carried out by a
large number of United States Government agencies, found it necessary better
to co-ordinate those activities and established within the United States Embassy
an ofliceto do that whichwas calledthe SpecialAssistant for counter-insurgency.
A senior United States intelligenceofficer was assigned to head that oflice, and
as 1mentioned earlier in my work on Central and South America our team had
included a former CIA officerwho recommended meto this Special Assistantas
someone who could give hirn qualified assistance in that officeand he asked me
tojoin the ofice; the SRI contract with the Department of Defense was arranged
so that my services could be employed in that ofice within the United States
Embassy.
Q.: When you joined that officewas your status as employee of the SRI or of
the United States Government?
A. : 1rernained an employee of SRI.
Q.: What was your relationship to the office? EYlDENCE OP MR. MAcMICHAEL 39
A. : I was one of about half a dozen staff members in the office, this in-
cluded representatives from the Agency for lnternational Devetopment, from
the Intelligence Agency, from the United States Information Agency, from the
Department of Defense - with a military representative as well - and our task
as a staff was to assist the Special Assistant in, as 1 said, CO-ordinatingthe
activities of these various United States Government Agencies.
Q. :And you were a full-time member of that staff?
A. :That was my full-time employment for almost two years, yes.
Q. : Now could you describe some of the subjects of study that you worked
on when you were attached to the staff of that office?
A. : One of the principal tasks, aside from the administrative functions of
CO-ordinationof the activities of other agencies, was to study the nature of the
interna1security situation within Thailand at that time - a rather vexedquestion
if 1may Sayso - to determine whether these several programmes of the United
States Government were being most effective and directed towards the actual
situation.
Q. :And did you concentrate your study in any particular areas of Thailand?
A.: The principal area of concern at that time was the northeastern part of
Thailand wherethe largest and supposedly most critical ofthe severalinsurgencies
was then raging.
Q. :And in relation to that insurgency in northeast Thailand what parts of
the counter-insurgency programme were you specificallyconcerned with?
A. :The specificconcern assigned to me waçthe extent to which this insurgency
was purely indigenous and the extent to which it was being directed and sup-
ported from outside the,country. This obviously was a matter of concern in
terms of how one organized a system for dealing with insurgency.
Q. :And how did you obtain the data for that study ?
A.: This involved a study of the existing intelligence files on the subject,
consultations with both United States Government and Royal Thai Government
personnel who were dealing with the subject ; field trips, organization of certain
technical aspects, that is to monitor and report on, for example, alleged air
intrusion into Thailand and general matters of that type.
Q.: And did this information include classifiedmaterials?
A. :Almost ail the material was classified, yes.
Q.: And, what were you seeking to determine - if you can describe that in a
few sentences?
A. :To ascertain the extent to which the problem was an indigcnous one or
one that relied essentially on irnport of ams and trained personnel from outside
the country; in this case the concern was with North Vietnam.
Q.: And for that purpose did you have to identify and define the supply
network and logistic system of the insurgents?
A. : Yes, we attempted to do that.
Q.: Now, to whom did you report?
A. : Well. the report was given directly to my superior, the Special Assistant
for counter-insurgency.
Q.: And was that report classified?
A. : Yes, it was.
Q.: Did the reports circulate back in Washington?
A. : ?es, it formed a basis for a very long cable, which was transmitted to the40 MlLITARY AND PARAMILITARY ACTIVITIES
Secretary of State, maki~igcertain recommendations about the nature of the
northeastern insurgency and the manner in which the United States should
organize its programmes of support for the Royal Thai Government.
Q. : Having regard to the restriction already mentioned about revealing
classifiedinformation, could you summarize the conclusions of this final report?
A.: With regard to its central matter, the basic conclusion was that this was
very largely an indigenous matter that receivedsome, but not critical, support in
the form of training and supplies from outside the country.
Q.: Did your recommendations or analysis become the basis for, or influence,
United States policy in this area?
A.: 1believe that they did.
Q.: Now is there any other particular area in Thailand that became a subject
of your concern?
A. : 1carried out several studies for which 1was directly responsibleto that
officeand later to the Ambassador, dealing with, once again, the Thai-Malaysian
border area; 1 also conducted a study for the Ambassador of the United States
programme for providing certain types of aircraft to the Thai security forces,
with a view to their suitability, or the suitability of the programme, for the
overall effort.1also assisted SR1again in one of its major projects, whichwas a
surveillance systemalong the Mekong River.
p.: Looking for a moment to the Thai-Malaysian border insurgency problem,
could you describe that work more fully?
A. : Well, to a certain extent, as 1have already explained, an early project for
SRI there was to examine very closely - and this was a very detailed study, it
attempted to find the supply and support system for the nearly 2,000 guerrillas,
these were people essentialfyleft over from the sci-calledMalayan emergency -
to determine how they supported themselvesin the jungle areas and to assist the
Royal Thai Governrnent and co-operating Malaysian forcesin devising a system
to disrupt and interrupt that supply system. 1also later carried out more general
studies with regard to the overall social and economic system in which these
people existed.
Q. : Now you said that after you concluded your work in the officeof the
Special Assistant for counter-insurgency, you did some work directly for the
Ambassador. Who was the Ambassador at that time - that is the United States
Ambassador, 1assume?
A.: At that time it was Mr. Leonard Unger.
Q.: And in this capacity, were you still paid by the SRI?
A. :Yes, I was.
Q. :You have already given us the main subjects ofthose studies, perhaps you
could recapitulate very briefly ?
A.: The two - as 1 Say1 performed at his direction - included the exami-
nation of the social and economic system or circumstances, conditions along
the Thai-Malaysian border and the second, which was more highly focussed
because the question had become an important one, had to do with the United
States programme for providing airçraft for use in Thai counter-insurgent
operations.
Q. :When did you leave Thailand?
A.: I lefitn August of 1969.
Q. :And did you continue for SRI? EVIDENCEOF MR. MhcMICHAEL
A. :Yes, 1did, until the end of 1976.
Q. :What kinds of projects did you work on during that period?
A.: On my return to the United States 1 began to work on projects; 1
did several for the law enforcement assistance administration of the Justice
Department and then joined a group that was under contract to the then Office
of Education, later the Department of Education in the United States Govern-
ment.
Q.: Was there any particular reason why you stopped working on defence-
related studies at this time?
A.: In the years around 1970and after that the interests of the United States
Government, which had been the primary funder for the studies 1had performed
previously, beganto shift away from the type of counter-insurgencyand defence-
related study. To put it frankly, there were fewer contracts coming to SRI in
that field and in order to remain ernployed 1shifted overto other work.
Q.: You left SRI you said in 1976?
A.: Yes, 1 did.
Q.: What did you do then?
A.: 1went to work as a private consultant.
Q.: When you were working as a private consultant, did you work on any
projects for the United States Government in the political, military area?
A. :Yes, 1did.
Q.: Could you describe the project that you worked on?
A.: That particular project 1cannot describe.
Q.: All right. Now, after some timeas a private consultant, you were ernployed
by the CIA - is that correct?
A.: That is correct.
Q.: State the dates during which you were so employed.
A.: 1 went on active duty with the Central Intelligence Agencyon 6 March
1981and left them on - 1 believethe date was 3 April 1983.
Q.: Could you state the nature of the employment relationship between you
and the Agency ?
A. : Yes, I entered as a full-tirne, fully integrated employee of the Central
Intelligence Agency. 1was cleared in the manner of a full-timeemployee, 1went
through the samesecurity procedures, the same required polygraph examinations,
was integrated into the retirement system, but 1was in on a two-year contract.
Q.: Tell us the exact title of your position with the Agency.
A. : 1 was designated a Senior Estimates Officerwith the Analytic Group of
the National IntelligenceCouncil.
p.: 1 would like to break down that impressive title alittle bit. First, what is
the National IntelligenceCouncil, and what are its functions?
A.: The National IntelligenceCouncil is the senior staff of the Central intel-
ligence Agency, it works directly under and in support of the Director, it is
not a part of the two main divisions of the Central Intelligence Agency.II is
cornposedof a group of seniorofficiaiswhoare designatedas National Intelligence
officers,who work under a chairman of the National IntelligenceCouncil. Each
one of the National Intelligence officershas assignedto him an assistant National
Intelligenceofficer.The main function of the National IntelligenceCouncil is to
serve as a senior advisory body to the Director of Intelligence, its rnostcritical
function is defined as the warning function - that is, it is supposed to report42 MILITARYAND PARAMILITARY ACTIVITIES
irnmediately to the Director any developments globally that could seriously
and adversely affect the interests of the United States. The National Intelligence
officersin their individual capacity have responsibility for regional or functional
areas within the world - that is to say, there will be a National Intelligence
officer,Say,for Latin American afyairs.Functionally there would be a National
Intelligenceofficerfor world economic afïairs. In their individual capacities these
National Intelligence officers are charged with CO-ordinatingthe activities, in
their areas of responsibility, ofthe whole intelligencecornmuoity of the United
States, that is, al1the agencies which have intelligence responsibilitiesin these
areas.
Q.: Are al1of these members of the National IntelligenceCouncil CIA oficers?
A.: No. They are drawn from within the intelligence community. 1 should
mention there is also a senior advisorygroup of retired and distinguished officiais
attached to this, who are brought back to serveas a more or lessin-house Board
of Directors.
Q.: Can you name any of these National Intelligence officers?
A.: No. 1 cannot name anyone with whom 1 worked in the Central Intel-
ligence Agency.
Q.: What are the principal reports and analyses that the Council is respon-
sible for?
A.: The Council is responsible for the preparation of inter-agency intelligence
documents and these have three principal forms, one is entitled the "National
Intelligence Estimate", these are broad general purpose documents prepared
either periodically or at the pleasure and direction of the Director of Intelligence
to serveas the basic information papers on a region, or a country, or a functional
area, for the use of decision-makers within theUnited StatesGovernment, within
the context and with relation to the United States policy in those areas: the
second type of document prepared, for which this group is responsible, are
special National Intelligence Estimates, which are similar in purpose and form
but generally shorter and directed towards a more immediate problem or to a
region which has suddenly become of more interest and concerii to the United
States.
Q.: Are those special National Intelligence Estimates performed by special
commissions so to speak?
A.: These estimates are essentially drawn up in the following manner : the
National Intelligence officer responsible calls a meeting of interested involved
agencies within the intelligencecommunity to determine the general focus and
scope of such a special estirnateor a National Intelligence Estimate, there will
be general agreement on terms of reference for the paper and usuülly a drafter
willbe selected.At a later meeting the drafter will present the terms of reference,
the general scope and outline of the study, a schedule will bedecided upon, the
drafter willset to work and meet periodicallywith representativesofthe interested
agencie asnd eventually a paper is produced.
Q. :We have been talking so Far about the National Intelligence Council. 1
now want to turn to the Analytic Group. That is the Group of which you were
a member. What is the nature and function of that Group, who are its members,
how large is it, please provide information of that kind?
A...The Analytic Group was formed around 1979or 1980to meet a long-felt
need of the National IntelligenceCouncil to have an immediate body of qualified
perçons responsible to it, to conduct analyses, toadvise it and to serveas drafters
of estimates and other inter-agencypapers. The Group wascomposed of members EVlUENCE OF MR. MacMICHAEL 43
drawn from throughout the intelligence community and a few people like myself
taken from academia, research institutions and so forth from outside. One of
the basic principles upon which this Group was founded was to provide the
Intelligence Council with fresh new points. not tied to any demands of any
specific agency. Its members only serve with the Council for two years and then
they returned to where they had corne from.
Q. :What are the duties of a Senior Estimates Officer inthe Analytic Group?
A.: The Estimates Officers - there is no real rank or gradation, I may Say -
as a Senior Estimates Oficer one was responsible for carrying out studies and
analyses, drafting papers at the direction of the National Intelligence Council.
Members were also expected to carry out independent research tests of their own
and report on these to the Chairman of the National Intelligence Council.
p.: In your capacity as Senior Estimates Officer did you attend regularly
scheduled meetings of boards or cornmittees within the agency or constituted on
an inter-agency basis?
A.: Yes, I did. We had regular weekly meetings as part of the National
Intelligence Council in a body with the Chairman. The Analytic Group met
separately with the Chairman on a weekly basis. As a representative of the
Analytic Group 1 attended meetings of interest to the Group and myself
personally throughoutthe Central Intelligence Agencyand other Agencies as well.
Q.: To whom did you report?
A.: We had a National Intelligence Officer at large, a senior officialwho was
generally responsible for the functioning of our Group. Technically we reported
directly to theChairman of the National Intelligence Council.
Q.: When you were called upon to prepare or review an intelligence paper
what did you do to prepare yourself for that task?
A. : The hope was that one was generally quülified to do this initially, but
immediately the process of what was called reading into the problem begün, one
would examine the existing files on the topic, would confer with the analyst and
other persons within the intelligence community who had special knowledge of
that problem, and would, through the system, cal1up current intelligence material
to gain further knowledge on it.
Q.: And did this involve the review of classified intelligence information?
A. : Yes, it did.
Q.: Can you tell us the precise type of clearance that you had at this time?
A. : 1 had a top secret clearance with an additional type of clearance which
enabled me to go out of the boundaries of what is known as "special compart-
mented intelligence". Due to the global nature of the duties of the National
Intelligence Council its members were not confined to a narrow need to know
an area in one special function or region.
Q.: And is top secret the highest form of clearance category in the United
States classification system?
A.: Formally', yes.
Q. : Now 1want to take you back to the time when you joined the agency in
1981 and 1 want to ask you whether. as a Senior Estimates Officer with the
Analytic Group of the National lntelligence Council, your work was concentrated
in anyone area?
'See p. 59infra /~Voïehy ïhpRegisiry./44 MILITARY AND PAMMILITARYACTIVITIES
A.: Technically, 1and the other members of the group were in general support
to the National Intelligence Council. In practice, we found ourselves as individual
members concentrating on one area in which we had more expertise. In my case,
1 spent the vast majority of my time working on inter-American, that is western
hemisphere, affairs.
Q.: Now, as part of your officialduties at that time in 1981,were you advised
of a plan prepared for submission to the President of the United States calling
for covert activities against Nicaragua'?
A.: Yes, i was.
Q. :Can you tell us when and how you were advised of the plan?
A. : The plan was discussed at a meeeting of the Latin American Affairs Office
which 1attended in my capacity as a member of the analytic group early in the
Fall of 1981.
Q.: When you say Latin American Affairs Office, is that the Latin American
Affairs Officeof the Central Intelligence Agency?
A. :Yes, it is.
Q.: Do you know if the President ultimately approved this plan?
A. :Yes, he did.
Q.: Was that the plan submitted to the House and Senate Intelligence Com-
mittees in November 1981 ?
A.; Yes, it was.
Q. :You say you first heard of this plan at a meeting in the Latin American
Affairs Office of the Agency in the Fall of 1981,could you tell us generally the
outline of the plan as discussed in that meeting?
A.: Well, as discussed, the general premise of the plan was that Nicaragua
was considered a menace to the security of the Central American region and
that a covert force of approximately 1,500men was to be organized to carry out
military and paramilitary actions in Nicaragua.
Q.: Now at that meeting, was the possibie response of the Government of
Nicaragua to these military and paramilitary activities considered?
A. :Yes, it was.
Q. :Could you say what responses were anticipated ?
A.: In general the appreciation üt that tiine was that the Nicaraguan
Government leadership was immature. impulsive, possessed, in the phrase used,
of a "guerrilla" mentality and it was presumed that in response to the actions of
this covert force that in al1likelihood the Nicaraguan Government would engage
in hot pursuit of this covert paramilitary force, ncross international boundaries
within Central America, it was assumed that in response to the state of emergency
generated by these attacks that the Nicaraguan Ciovernment would clamp down
and eliminate civil liberties, to exile or confine its political opponents, and finally
that diplomatic relations between the United States and Nicaragua probably
would be exacerbated and that United States diplomatic personnel within
Nicaragua could expect to be harassed or otherwise restricted or affected.
w, what was the attitude within this Committee to these anticipated
responses .
A.: 1do not know exactly how to respond in terms of attitude. Certainly this
was put forward as a programme which would destabilize or certainly reduce
the presumed menace that the Nicaraguan Government presented to the region.
Q. :Why, for example, was it expected that if Nicaragua took actions in hot EVIDENCE OF MR. MAÇMLCHAEL 45
pursuit of this paramilitary force across international boundaries, why was that
a development that the group looked forward to?
A.: It would serve to demonstrate what was believed, which was that the
Nicaraguan Government was inherently agressive and a danger to its neighbours
in theregion and that such crossing of territorial boundaries would demonstrate
this and possibly allow for the use of sanctions or other actions under the
Organization of American States' Charter.
Q.: And why did the group anticipate or look forward to the further repressive
activities by the Nicaraguan Government 7
A. :It wasassumed that the Nicaraguan Governmentwas inherently totalitarian
and repressive and that it had rather successfullyportrayeditself as an open and
democratic Society and thus gained a good deal of support in world public
opinion and that by causing its true nature as a repressive and totalitarian
government to be displayed it would lose this support.
Q.: Why did they look forward to the possibility that Nicaragua would take
harsh action against United States diplomats?
A.: 1 think the purpose here was to be able to demonstrate the essential
hostility of the Nicaraguan Government toward the United States and thus help
to justify in United States public opinion actions whiçh the United States might
take against Nicaragua.
Q.: What would you Say was the overall purpose of the plan?
The PRESIDENT: WouId this be a convenient place to stop and have
Commander Carribn, the first witness, answer the question posed to him earlier?
Professor CHAYES: Yes, this would be perfectly al1 right. 1 think
Mr. MacMichael ought to retire at thispoint sothat hedoes not hear Commander
Carrion's answer, but this would be a perfeçtly appropriate time to do that. QUESTIONSPUTTO COMMANDERCARRLO I'BYJUDCE SCHWEBEL
Judge SCHWEBEL: Commander, 1 regret the inconvenience of your being
recalled.1 have two questions following from your earlier testimony.
First, what would you estimate wlis approximately the total of the armed
strength of the Sandinista fightiiig forces by about June 1979 shortly before
Somoza's collapse? 1ask for just a rough estimate, not a precise figure.
Commander CARRION: The Sandinista forces by the end of 1979 - the
Sandinista armed forces - were somewhere in between 3,000 and 4,000 armed
men. There was a much greater number of Sandinista sympathizers, but the
armed men werearound 3,000or a littte bit more.
Q.: Thank you. My second question is this: you stated in response to the
questions 1 put to you earlier that the amount of arms furnished by foreign
States to Sandinista forces was smaIl - that 1 believe is the word you used.
smalt - and you have responded to my question about the use of foreign bases
by Sandinista forces in terms which 1 believe gave the impression that such
foreign basingwas not very important to the cause of the Sandinista revolution,
if1understood you correctly. 1smy recollection ofyour answers correct?
A. : Yes, but 1 think that concerning the arms question 1 said that a part of
the arms were provided by some other States.
Q.: Yes. Now, if you will permit me and if the Court will permit me, 1 am
going to read a few excerpts from a book, NicaruguanRev~~l~rtiu inthe Firnilj~,
by Shirley Christian, tiPulitzer prize-winningjournalist, now a reporter for Tlzp
~Vew Yi~rkTtwes. It is a detailed eye-witness account of the fa11of Somoza,
rimong other things.
First quotation:
". . . the rebet supply-line was growing and becoming more efficient.From
December 1978to July 1979there were at least 60 flights intoCosta Rica
with arms, ammunition and other war supplies. This was confirmed . . .
by the subsequent investigation conducted by the Costa Rican National
Assembly. Exceptfor the flights that brought the Venezuelan offering and
one carried items supplied by Panama. . . . al1 the flights carried material
supplied by Cuba . . ." (At p. 90.)
Second quotation :
"In addition to the preparations in Costa Rica, a srnaller number of
Sandinistas was organizing and arming in Fionduras in early 1979to push
into Nicaragua from the north." (At p. 91.)
Third quotation :
"In Costa Rica an estimated 1,500men and women were preparing for
an all-out invasion oftheir homeland."
Fourth quotation :
"As the time for the southern offensive,planned for late May, grew close, QUESTIONSPUT DY JUIIGE SCHWEBEL 47
it was decided to eliminate the Panamanian town . ..as the transshipment
point for weapons and ammunition. Instead, everything would be flown
direct from Cuba to Costa Rica . . ." (At p. 95.)
Fifth quotation :
"To make the fiightsdirect from Cuba to Costa Rica, EdénPastora struck
a deal with Costa Rica . . . The airport manager . . .calçulated there were
23 flightsto and from Cuba between then and the end of the war in mid-
July . . Costa Rican National Assembly investigators later estimated that
at least one million pounds of war material entered Costa Rica from Cuba
during that period of six to eight weeks, a figure that did not include what
had been shipped earlier . . ." (At p. 96.)
Now, in the light of this data, Commander, would you please amplify your
earlier statement or inference that provision of arms by foreign States to
Sandinista forces was "small", and that the reliance on foreign bases of more
than 1,500of the 3,000 or 4,000 of the Sandinista armed forces' bases in Costa
Rica and Honduras was not important'?
A.: Yes. 1 said that weapons received at that time from other States were a
part of the total weapons the Sandinistas used at that time. 1 would like to
remind the Court that the Sandinistas were fighting agiiinst Somoza since 1963-
i mean involved in military action against Somoza's dictatorship - and the
quotes you just read from that book refer to some assistance received beginning,
1 believe, at the end of 19781can assure you that during al1that time practically
al1 weapons that the Sandinistas used and a part of the weapons that the
Sandinistas used after the end of 1978were bought in the clandestine weapons
market. 1 was personally involved in purchasing $500.000 worth of arms from
European suppliers. 1 know that there were other purchases like that? and we
also received weapons and assistance from other States, as it is put there. 1am
not in a position to confirm the figures mentioned by Miss Christian in the book,
because 1 was not, except for a very short period of time, in Costa Rica or
Honduras at that time.
Secondly, 1 believe that there were not somewhere close to 1,200, as you
said?
Q.: Miss Christian says there were 1,500 Sandinistas in Costa Rica.
A. : 1do not believethe figurewas so large. As Faras 1know, it was sornewhere
around 800 to 1,000 men and women, and 1 am not sure if al1 of them were
directly involved incombat actions. Nevertheless this does not affect thejudgment
I made and the fact that people coming from outside had a very minor effect on
the outcome of the war. 1 would like to mention that in a period of a few days,
that is three to four days. the Sandinistas forces were holding combat in
practically every major city of the country and that could only be achieved by
forces that were already in the cities or very near the cities, and 1 am talking
first of al1 about the city of Managua, which is the capital, Léon, Masaya,
Juigalpa, Matagalpa, Esteli, which 1 believe were the main cities at that moment
attacked by Sandinista forces, and the forces rittacking these cities constituted
the greatest part of the Sandinista forces acting at that time. But not only that.
also the Sandinista forces acting within the cities, the armed forces, were not so
large, because we had a shortage of weapons. But what made it possible for
them to achieve a victory was the fact that practically the great majority of the
population in different ways insurrected to support the relatively small armed48 MILlTARY ANI) PARAMILITARYACTIVITIES
Sandinista groups that were acting within the cities. This is clearly,and thisais
historical fact, by large thmost important factortowards the overthrowing of
the Somoza dictatorship. That is al11have to say.
The Court rose ut 1p.m. NINETEENTH PUBLIC SITTING (16 IX 85,3 p.m.)
Present:[Seesitting of 12IX 85,Judge Lachs absent.]
EVIDENCEOF MR. MAcMICHAEL(cont.)
The PRESIDENT: Before proceeding with the hearing I have to announce
that Judge Lachs, for relisons which he lias disclosed to me, is unable to be
present this afternoon.
You may now resume the testimony of Mr. MacMichael, the second witness.
1give the floor to the counsel for Nicaragua, Professor Chayes.
Professor CHAYES: Mr. MacMichael, before we proceed may 1 remind you
that at the beginning of your testimony you made a solemn declaration, upon
your honour and conscience, to speak the truth, the whole truth and nothing
but the truth, and your testimony today issubject to the same declaration.
Let me recall to the Court that when Commander Carrion came back to the
stand last Friday, Mr. MacMichael was testifying about a plan prepared by the
CIA for submission to the Yresjdent of the United States. calling for covert
activities against Nicaragua. He identified the plan as the onethat was submitted
for presidentialapproval and reported to the House and Senate Intelligence
Cornmittees in November 1981. He testified that he had participated in a
discussion of the plan within the Central intelligence Agency in thell of 1981,
and he outtined the general elements of the plan and the ways in which it was
antiçipated that theicaraguan Government would respond. 1shall now proceed
with this line of questioning.
Mr. MacMichael, you have described the plan in general terms, 1would now
like to read from a newspaper account in the Wushingto Post purporting to
contain excerpts from the actual CIA proposal to the President. It is reprinted
in Annex F, submitted with the Memorial (Item 4, pp. 6-7).
The newspaper account reads:
"According to highly classified NSC records the initial CIA proposal in
November called for 'support and conduct of political and paramilitary
operations against the Cuban presence and Cuban Sandinista support
structures in Nicaragua and elsewhere in Central America'. The CfA in
seeking presidential authorization for the $19 million paramilitary force
emphasized thut 'the programme should not be confined to that funding
level or to the 500-man force described' the records show. Covert operations
under the CIA proposal, according to the NSC records are intended to:
'build popular support in Central America and Nicaragua for an opposition
front that would benationalistic anti-Cuban and anti-Somoza' [the quotation
continues :]'support for the opposition front through formation and training
of action teams to collect intelligence and engage in paramilitary and poli-
tical operations in Nicaragua and elsewhere' 'work primarily through non-
Americans' to achieve these covert objectives. but in some cases the CIA
nlight take unilateral paramilitary action- possibly using United States
personnel- against special Cuban targets."50 MILITARYAND YA'ARAMILITAR AYCTIVITIBS
p.: To your re~ollection~does that accurately describe the plan that was
discussed at the meeting you attended?
A.: Yes, it does, 1do not inal1honesty recall the emphasis or any discussion
there of the possible unilateral use of United States forces or personnel against
Cuban targets, but the rest of it squares very weil with my recollection.
Q. :What was the overall purpose of the plan according to the discussion?
A.: The overall purpose, as I think 1 stated previously. was to weaken, even
destabilize the Nicaraguan Government and thus reduce the menace it allegedly
posed to the United States interests in Central America.
Q. :How was it supposed that the plan would accomptish these objectives?
A. :As 1 recall, and as 1believe 1stated the other day, the principal actions
to be undertaken were paramilitary which hopefully would provoke cross-border
attacks by Nicaraguanforces and thus serve tu dernonstrate Nicaragua's aggres-
sive nature and possibly cal1into play the Organization of American States pro-
visions. It was hoped that the Nicaraguan Government would clamp down on
civil liberties within Nicaragua itself, arresting its opposition. demonstrating
its allegedly inherent totalitarian nature and thus increase domestic dissent within
the country. and further that there would be reaction against United States
citizens, particularly against United States diplomatic personnel within Nicaragua
and thus serve to demonstrate the hostility of Nicaragua towards the United
States.
Q. :In the plan itself, was there any reference to the use of paramilitary forces
to interdict a supposed flow of arms from Nicaragua to rebels in El Salvador?
A.: This was the stated purpose of the armed force to be organized. Yes, they
were to interdict the alleged flow of arms.
Q. :Did the plan itself, or any supporting documents, refer to any evidence of
such an arrns flow?
A.: The plan merely stated in the discussions that such arms flow existed and
no supporting documents were presented.
Q. :Wrisany other evidence of this type discussed at the meeting you attended '?
A. :No. It was merely assumed that it went on.
Q. :You have testified that in Bangkok you examined problems of supplying
guerrilla bands in the field with a view to verifying whether such supplies hüd
come from outside sources and, if so, with a view to considering what measures
rnight be taken to interdict those supplies. 1ssuch a study ordinarily conducted
as a matter of good professional practice as a preliminary to deciding on and
designing a çounter-insurgency arms interdiction programme?
A.: In my experience, 1 believe that would be the professional practice to
determine, as best one could, what was the system one hoped to disrupt, and
design a force as part of a counter-insurgency system to do that.
Q. :ln your judgment as a professional, is it possible without sucli an analysis
to design an effectiveprogramme to interdict arms supply to guerrilla forces?
A.: Well. 1do not believe it would be, and I will state that this is what first
clrused me concern in this matter simply as a result of professional background
that these studies and analyses fiilly describing the arms supply system - other
parts of the supply system - for the insurgent forces in El Salvador were not
being conducted and that a force was being put into the field for the purpose of
disrupting that systeni without, it appeared to me, the proper anülysis behind it.
Q. :And was such an analysis ever undertaken while you were at the Agency '! EVIDENCEOF MR. Mnt:MICHAEL 51
A.: Not to rny knowledge, and 1 believe Iwould have known if it had been.
Q.: Now you stated earlier that the stated purpose of the plan was arms
interdiction. In the light of your answers to these last few questions, would you
elaborate on what you meant by your earlier characterization of "arms interdic-
tion" as the stated purpose of the plan.
A.: Well, 1think you will understand that this was a covert operation, and
that in designing any covert operation was built into it - what is known as -
plausible denial, that is you set it ~ipso that if you are detected, or if the plan is
detected, the operation's being uncovered, you have some justification either for
denying participation or for making it clear that you had a reason for doing
what you were doing. Now, in this case, 1 believe that part of the justification
\vas the need to convince the intelligence committees of the United States
(Iongress to authorize the plan and approve it and arms interdiction, 1 think,
was a reason that they would approve because as the passage of the Boland
amendment the following year demonstrated that such purposes as provoking
hostilities between Nicaragua and any of its neighbours, or the destabilization
of the Nicaraguan Government through this programme were prohibited
purposes.
Q. :To your knowledge was the plan ever put into etTect Y
A...Yes, it was.
Q. :Can you tell us anything about the CIA involvement in the execution of
this plan after itwas approved by the President and put into effectY
A. :No. 1 cannot talk about any operational details.
Q. :Now, 1want to talk about the rest of your employment, not only that but
this period too, with the CIA, You were employed by the CIA, the Court will
recall, from March 1981until April 1983; is that correct '!
A.: That is correct.
Q. :During that entire period was it part of your responsibility to be familiar
with and analyse the intelligence collected by the United States Government on
the subject of delivery of arms or other war materials from Nicaragua to rebels
in El Salvador?
A. :Yes, it was.
Q. :Now, how did that come about that that was part of your responsibility?
A.: Well, as 1 testified previously on the structure of the National Intelligence
Council and the way in which the analytic group, of which 1 was part, worked
in the Council, as a matter of practice members of the analytic group tended to
specialize on one area as 1 did on the western hemisphere (Latin America, if you
will) and as 1 also said we were responsible as individuals to report to the
National Intelligence Council on matters of interest and concern; we were
expected to show initiative, to develop subjects independently - we were, after
all, a supposedly high level and qualified group - and as the work 1 was doing
involved me first in a review of the special National Intelligence estimate of the
nature of the Salvadoran insurgency, the work 1 did relative to Nicaragua, my
awareness of the covert operation ongoing or under way, and the justification of
it on the grounds of the arms flow, my concern, as I have expressed was about
the proper design of an arms interdiction system which led me as a matter of
rny professional responsibility, and working with the approval of the National
Intelligence oficer ai large who controlled our actions, to continue to make a
close study of intelligence relating to the alleged arms flow from Nicaragua to
131Salvador.52 MILiTARY AND PARAMILITARYACTIVITIES
Q.: in the course of that work did you have access to original intelligence
materials, for example, photographs, records of communications, intercepts,
reports of interrogations, and the like?
A. : Yes, 1did.
Q.: And did you examine them personally ?
A.: Yes, 1did.
Q.: Did you have accessto so-called "finished"intelligence - summaries and
reports based otior atialysing the original raw niaterial?
A. : Yes, 1 did.
Q.: Did you have occasion to discuss these issues of arms flow personally in
debriefingintelligenceofficers who rvere,or had been, operating in the field?
A. : On various occasions, 1did that, yes.
pl: Did you ever rnake a request to see or review any intelligence material
pertaining to this subject that was denied?
A. : No.
p.: So you were familiar with the intelligence information that the United
StatesGovernment collected with respectto arms or weapons trüffickingbetween
Nicaragua and rebels in El Salvador?
A. :Yes, 1 was.
Q.: AI1 right. 1 want to direct your attention now to the period of your
ernployment with the Agency; was there any credible evidence that during that
period, March 1981to April 1983,the Government of Nicaragua was sending
arrns to rebels in El Salvador?
A. : No.
Q.: Was there any substantial evidence that during this period arms were sent
from or across Nicaraguan territory to rebels in El Salvador with the approval,
authorization, condonation or ratification of the Nicaraguan Governrnent?
A. : No, there is no evidencethat would show that.
Q.: Was there any substantial evidence that during the sarne period, any
significant shipments of arms were sent with the advance knowledge of the
Government of Nicaragua from or across its territory to rebels in El Salvador?
A. :There is no such substantial evidence, no.
Q.: Was there any substantial evidence that during that period significant
quantities of arms went to El Salvador from Nicaragua'?
A.: From Nicaragua, that is originating in Nicaragua, no.
Q.: Was there substantial evidence ofshipments of arms from other countries
in the region to the El Salvador guerrillas?
A.: Yes, there was.
Q.: Could you give us some examples, please?
A.: 1 think the best known of these is the evidence developed on 15 March
1982,when there was a raid on an arms depot in San José,Costa Rica, at which
time a considerable quantity of arms, well over a hundred rifles, automatic
weapons of various sorts, other ordnance, mines and so forth, were captured
there along with a significant number of vehicles - more than half a dozen
1 believe - that were used to transport these arms, or were designed for
transporting them. Documents were captured with the people captured there -
a multinational group 1would say - which indicated that certainly more than
half a dozen shipments of arms had already been made from that depot. The EVIDENCEOF MR. MAcMICHAEL 53
reason 1failed to tell you on your previous question, Professor Chayes, wasthat
it would appear to me that if arms were shipped from San José,Costa Rica, by
vehicle, they must have in some wayhad to get across Nicaragua.
Q. :Now, you are familiarwiththe differentmethods and sourcesof intelligence
that the United States ernploys?
A. :Yes. 1am.
Q.: 1 am going to ask you a number of questions, based on information
publicly available in the press and scholarly publications, about methods and
sources of intelligencethat are said to be employed by the United States. As to
each one, 1 am going to ask you if you know whether or not that method or
source was employed in an effort to obtain evidence of the delivery of arms or
other war materials from Nicaragua to rebels in El Salvador. As 1said before, 1
do not want you to say anything in responding to these questions that would
involve unauthorized disclosure of information.
Let us begin with satellitephotography. 1sit a method of intetligence-gathering
that was employed in an effort to obtain evidenceof arms deliveriesfrom Nica-
ragua to rebels in El Salvador?
A.: Now 1 don't recali that satelIite photography or surveillance was used
specificallyfor this purpose. 1think it was used for gathering information about
supposed or suspected shipments of arms and other materials from other places
in the world to Nicaragua, but not for the shipment of arms to El Salvador.
Q. :What about aerial photography ?
A.: Yes, this was used.
Q.: Were special surveillanceaircraft used ?
A.: Yes, they were.
Q.; Can you tell us about eiectronic interception of radio, telephonic and
other communications?
A. : Yes, interceptions of radio communications were used.
Q.: There have been reports in the newspapers about a United States radar
facility on Tiger Island in the Gulf of Fonseca between Nicaragua and El
Salvador. Perhaps you could say how wide that Gulf is?
A.: 1 think from the furthest point of Nicar~iguanterritory to the nearest
point of Salvadoran territory there is a stretch of something over 30 kilometres
of water. The area iç right here (indicates on map).
Q.: If the judges wish to locate it on their maps? Can you say whether there
issuch a Facilityon Tiger Island?
A. : 1know there was, and 1believethere still is there.
Q. :By what agency of the United States Government is it operated?
A.: That facilitywas manned by the United States Marine Corps.
Q.: Would the CIA have access to the information gathered by this facility?
A. : Oh yes.
Q. : What is the principal function of this facility7
A. : It was a radar facility that was designed to survey air and water traffic in
the Gulf and surrounding areas - coastal areas.
Q. : Did United States naval vessels operate in conjunction with the Tiger
Island facility?
A. : Yes. this was part of a surveillance, you know the electronic radar
surveillance system whichgave coverage, not only of the Gulf of Fonseca but
for a considerable distance, a very long distance - 1 do not recall the exact54 MILITARYAND PARAMILITARYACTIVITIES
mileage, but it is a very long distance - up and down the Pacific Coast of
Central America.
Q.: And was this system able to locate and triick boats moving through
the area ?
A. : Yes.
Q.: There have also been piiblished reports about the use of United States
Navy SEAL teams on surveillance missions in and around the Gulf of Fonseca.
Do you have any knowledge about that?
A.: Yes,the SEALteams wereemployed for some time there - yes, theywere.
p.: What is a SEAL team exactly and what do they do in the Gulf of Fonseca?
A.: The acronym stands for sea, air, land. These are veryhighly trüined special
operütions forces of the United States armed forces. They are naval personnel
trained in underwater demolition: parachuting and other techniques. Their major
purpose is to conduct a variety of special operations, including reconnaissance
and surveillance in coastal waters and near inshore areas. They are capable of
carrying out raids, reconnaissance, small boat operations. they are considered
really as the most highly trained and best equipped of the United States special
operations forces.
Q. :Another sourceof intelligence information is agents. Did the CIA employ
such agents in an effort to obtain evidence of arms deliveries from Nicaragua to
rebels in El Salvador?
A.: Yes, it did.
Q.: How about reports from United States diplomatic and military personnel
in the area?
A.: Yes, reporting from these sources is al1part of the information flow that
is going on.
Q. :Were foreign diplomats and military personnel used as sources of intelli-
gence in this effort?
A. :Yes. 1 should explain this a little bit. This does not mean that such per-
sonnel were in the employ of the United States Ciovernment or controlled by the
Central intelligence Agency or any other agency of the United States. It is just
that in the course of their work, not only Central Intelligence Agencypersonnel
but other United States personnel operating in a foreign country will routinely
report on germane conversations that they have with their fellows operating in
the same country. And 1 think 1 should alsci say. since you use the term
intelligence here, that intelligence really has to be considered merely as infor-
mation that is gathered and handled in a specificway. I think one could Saythat
when reduced to paper intelligenceis merely information that has a classification
stamp placed on it, and to speâk of intelligence is in no way to give a higher
reliability to information; and rhis is what we were talking about, Professor
Chayes. is simply that this information is coming from a variety of sources.
Q. :Were defectors a source of intelligenceinformation in the effort to obtain
evidence of arms deliveries?
A...Oh yes, they were.
Q. :How about prisoners, captured rebels and the others?
A. :These are standard and usual sources of information.
Q. :Captured documents?
A. :Yes, those too.
Q. :Were there any significant sources and merhods of intelligence gathering EVIDENCE OF MR. MAcMICHAEL
55
that the United States normally uses that were not employed in ils effort to
obtain evidence of arms deliveries from Nicaragua to rebels in El Salvador?
A. iNo, 1would say al1usual means were employed.
Q. :Now, 1am going to ask you to evaluate, or to turn your attention to, the
United States intelligence capability in the area, and my question is this:
considering al1 of the sources and methods of intelligence used by the United
States that we have just catalogued. and your knowledge of the extent of their
lise with respect to Nicaragua, please describe in general terms the nature and
scope of United States intelligence capabilities with respect to Nicaragua.
A.: Technically, in so far as 1 can judge, they were of a very high order.
Certainly there were a great number of resources concentrated there in a very
small area, so 1 would have to say that the capabilities of the United States
intelligence in the area were very high indeed.
Q.: Can you say from your own knowledge based on your service in the
Central Intelligence Agency whether Nicaragua has been a high priority target
of United States intelligence-gathering efforts?
A.: I would Saythat it has been a high priority.
Q. : In your opinion, if the Government of Nicaragua was sending arms
to rebels in El Salvador, could it do so without detection by United States
intelligence-gathering-cap-bilities?
A.: In any significant manner over this long period of time 1 do not believe
they could have done so.
Q. :And there was in fact no such detection during the period that you served
in the Central Intelligence Agency ?
A.: No.
Q.: In your opinion, if arms in significant quantities were being sent from
Nicaraguan territory to the rebels in El Salvador - with or without the
Government's knowledge or consent - could these shipments have been ac-
complished without detection by United States intelligence capabilities?
A. :If you say in significant quantities over any reasonable period of time, no
1do not believe so.
Q.: And there was in fact no such detection during your period of service
with the Agency ?
A. :No.
Q.: Mr. MacMichael, up to this point we have been talking about the period
when you were employed by the CIA - 6 March 1981to 3 April 1983.Now let
me ask you without limit of time : did you see any evidence of arms going to the
Salvadoran rebels ïrom Nicaragua at any time?
A. : Yes, 1did.
Q.r When was that ?
A. : Late 1980to very early 1981.
Q.: And what were the sources of that evidence?
A. : There were a variety of sources: there was documentary evidence, which
1 believe was çredible; there were - and this is the most important - actual
seizures of arms shipments which could be traced to Nicaragua and there were
reports by defectors from Nicaragua that corroborated such shipments.
Q.: Does the evidence establish that the Government of Nicaragua was in-
volved during this period?
A. : No, it does not establish it, but 1could not rule it out.56 MILITARY AND PARAMILITARY ACTIVITIES
Q.: At that time were arms shipments going to the El Salvadoran insurgents
from other countries in the region?
A. : Yes, they were.
Q.: Could you give us examples?
A.: There were shipments at that time which could be traced to Costa Rica;
there were shipments at that time that could be traced as having come through
or via Panama.
Q. : And did the evidence of ams trafic from Nicaragua, if any, come to
an end ?
A. : The evidence ofthe type 1 have described disappeared. It did not come in
any more after very early 1981, February/March at the latest.
Q.; You say at some time, just about the time you got to the Agency, the
evidencestopped coming in :did it ever resume :'
A. : As 1have testified, no.
Q.: Now 1direct your attention to the period after you left the CIA in April
1983.Did you follow the public statements by United States officialsas to the
existenceof an arms flow from Nicaragua to rehels in El Salvador?
A. : Yes, 1did.
Q. : And how did that happen ?
A. : 1had developed what you might describe as an interest in the subject and
1 did not relinquish that interest when 1 left the employ of the CIA, so 1
continued to follow it.
Q.: Have you analysed the purported evidence put forth publicly by the
United StatesGovernment to support itsallegationsthat such anarms Aowexists?
A. : Yes. 1have. .
Q.: What is your expert opinion of the evidence that the United States has
publicly disclosed?
A. : 1would describe that evidence whichhas been publicly disclosed by the
United States in various publications and statements by United States officials
as very scanty. 1 would say miich of it is unreliable, some of it is suspect and
1 believe it has been presented in a deliberately misleading fashion on many
occasions.
Q.: Could you tell us what you mean by unreliable or suspect?
A.: There are a couple of things which strike me in looking at some of this
information.There isa veryheavy reliance inthe presentation of this information,
or its documentation, on statements, on press accounts, and especially upon
accounts appearing in the foreign press, for example statements made in
newspapers in Central America. Part of any covert operation as 1 hinted at, or
even explained, a little earlier incorporates an element of disinformation. One of
the primary means for doing this is the planting of articles in the press, and
under some circumstances 1think an informed person would suspect that some
of the articles cited in support of the United States Government's position as
evidence whenit refers to press articles, as 1 say, allows the suspicion - and 1
said that the information was suspect - that thesewerearticlesoriginallyplanted
by United States intelligence agencies,and for that reason 1have some problems
accepting them at face value,
A second aspect of the information presented is a very heavy reliance on
defectors or captives, which 1cannot certainly impeach directly. But the hct is
that some of these statements are made by people who are or have been in the EVIDENCEOF MR. MACMICHML 57
custody of the United States or other foreign governments for considerable
periods and still are when they make the statements. As you know, on one
famous occasion the United States Government was seriouslyembarrassed when
a captive was brought before an audience in Washington, D.C. - a Mr.
TardensiIlas - to testify to his involvement in the Salvadoran insurgency as a
representative of the Nicaraguan Government and recanted the statements he
had previousfy made while under captivity in El Salvador and stated flatly that
he only said those things becauseof the pressures he faced in hiscaptivity. These
are reasons why 1tend to suspect certain information coming in certain ways.
Q.: Does any of this publicly disclosed material cause you to alter your
opinion in any way as to the shipment of arms from Nicaragua to rebels in El
Salvador ?
A. :No, it does not cause me to alter my opinion.
Q. :The United States has stated that it has evidence that it cannot reveal for
fear of compromising sensitive intelligencesources. 1 am going to ask you some
questions to assist in analysing that claim. In this situation - surveillance of
supposed arms trade betweenNicaragua and the Salvadoran insurgents - would
there be particularly sensitive intelligencesources or methods that we would not
want to disclose'?
A.: 1would think the answer to that is yes, obviously.
Q. :What would they be?
A,: The ones that would occur to me particularly would be the protection of
the identity of agents, obviously - human sources. One would be concerned for
cryptographic security and possibly having implanted listening or other surveil-
lance devicesin important places one would not wish to reveal information that
would cause the discovery of these.
Q.: Perthaps you could tell the Court what you rnean by cryptographic
security?
A. :In the simplest sensehere, is that if you were deriving information because
you had broken your opponent's code, you would not wish to refer to particular
communications, encoded communications that you had intercepted, which
would then tell your opponent that you had broken his code because he would
then change his codes, and you would be faced with the task of decifering
another one.
Q.: Let usassume that undercover agents or coded communications intercepts
were providing accurate and reliable information concerning large-scale arms
shipments from Nicaragua to the rebels in El Salvador. Would there be any way
of revealing such evidence publiclywithout jeopardizing those sources?
A.: In the context of your question, and presuming that these intercepts or
sources were providing accurate information over any significant periodof time,
then you wouId be able to use this information in order actually to intercept
shipments of arms.
Q.: And then you could make public the intercept?
A.: That would be my opinion, yes.
Q.: But there have been no such intercepts?
A. : No, there have not.
Q.: Do you have a professional opinion on the United States Government's
statements that concern for protection of its sources and methods of gathering
intelligence prevents it from making public evidence of the alleged Nicaraguan
arms trafic? A.: 1simply do not accept that statement at face value, 1am very suspicious
of it.
Q.: Now to summarize your testimony. You had access to and reviewed, in
your professional capacity and as part of your duties for the Central Intelligence
Agency betweenMarch 1981and April 1983,the intelligenceinformation on the
subject of arms supply to the Salvadoran rebels, is that correct?
A. : That is correct.
(2.: That includes intelligenceinformation from al1the sources of intelligence
that we have catalogued earlier in your testimony?
A. : Yes, it does,
Q. : In the intelligence information you reviewed, you found no convincing
evidence of the supply of arms to the Salvadoran rebels by the Nicaraguan
Government or the compliçity of the Nicaraguan Government in such supply?
A. : 1did not find any such evidence.
Q.: 1 would like to ask you, in your capacity as a professional intelligence
analyst. does the absence of such evidence have any significancein evaluating
the question of Nicarüguan supply of the Salvadoran rebels?
A.: 1 would say that it casts serious doubt on the proposition that the
Nicaraguan Government is so involved.
Q.: Wiii you state again your overall conclusion as to the existence ofarms
traffic from Nicaragua to the Salvadoran insurgents?
A.: 1do not believe that suçh a traffic goes on now or has gone on for the
past four years at least, and I believe that the representations of the United
States Government to the contrary are designed to justify its poliçiestoward the
Nicaraguan Government.
Professor CHAYES: That concludes the direct examination of Mt. Mac-
Michael. QUESTIONS PUT TO MR, MAcMICHAEL BYJUDGES NI
ANDSCHWEBEL
The PRESIDENT: Two Judges have asked for the floor in order to put a
question. Judge Ni and Judge Schwebel in that order. Judge Ni has the floor, he
will ask his question. Would you like to have a copy of the question'?
Mr. MAcMICHAEL :Yes please.
Judge NI : 1have two questions to ask the witness. The first one is, during the
examination last Friday you were asked by Professor Chayes, is "Top Secret"
the highest form of the clearance categories in the United States classification
system. Your answer was, "Formeriy, yes". You did not elaborate whether it
was no longer the case now or what the place of top secret is now in the
classification systern.Can you explain further on this point?
Mr. MAcMICHAEL: Your Honour, 1must apologizefor mypoor enunciation.
What 1intended to say was formally, that is in form, yes that this is the highest
classification recognizedby the system, but there areeans of close-holding and
distributing certain intelligence only to selected persons. This is designated by
types of letter designations that follow the clearance listing, there are directories
that handle this and 1 do apologize for confusing you on the issue. 1 am
sometimes confused myself.
Judge NI: Mr. President, 1 want to apologize to you. This should be struck
from the records because it stands as "forrnerly" and now you are saying it was
"formally" ?
A. :Yes, your Honour.
Q.: My second question is, you were asked last Friday to tell the Court
generally the outline of the plan which was discussedat a meeting of the Latin
American AKairs Office inthe Fall of 1981.You made a very succinct statement
of the plan, that a covert force of approximately1,500men was to be organized
to carry out militaryand paramilitary action in Nicaragua. Can you describe it
inore specifically.such as how this force was to be recruited and what instructions
were to be givento the cornrnanders of the force, et1believeyou have described
to some extent, in more detail today, but 1wish that these two points, which 1
raised, as to how were they to be recruited and what instructions were to be
given be answered more specificaiiy.
A. : To the best of my recollection, your Honour. reference at this meeting
was made to existing anti-Sandinista forces who were currently operating in the
ares and that thesegroups were to be organized and givensuppliesand assistance.
I do not recall, and 1do not believe,that at the meeting to which 1referred that
1heard rinything about the instructions that were to be given to the comrnanders
of those forces. I am sorry1cannot give you any more details than that but that
is to the best of my recollection.
Judge SCHWEBEL: Mr. MacMichael, you were not present in Court when
the Agent of Nicaragua read out Article 53 of the Court's Statute; it indicates
ihat while the Court can render judgment in the absence of a State party, it
cannot render a dehult judgment. Before deciding in favour of a claim, the60 MILITARYANI) PARAMILITARY ACTIVITIES
Court "must satisfy itself that the daim is weil-founded in fact and law", that is
to Say,that a sufficientdefenceto the claim isnat well-founded in fact and law.
Now 1take it that your testimony has been essentiallydirected to this question
of whether there is a defence to the clairn, and you will appreciate that the
purpose of the questions 1am about to ask you are directed towards that same
matter. My first question is this. You stated that you went on active duty with
the CIA on 6 March 1981and left on 3 April 1983,or about that date. Am 1
correct in assuming that your testimony essentiallyrelates to the period between
March 1981and April 1983,at least in so far as it benefits from officialservice?
Mr. MAcMICHAEL: That iscorrect, your Honour, and 1 have not had access
since 1left to classifiedmaterials, and 1have not sought access to such material.
Q.: Thus, if theGovernment of Nicaragua had shipped arrns to El Salvador
before March 1981,for exarnple in 1980and early 1981,in order to arm the big
January offensiveof the insurgents in El Salvador, you would not be in a position
to know that ;is that correct?
A. : 1think I have testified, your Honour, that I reviewedthe immediate past
intelligencematerial at that time, that dealt with that period, and 1 have stated
today that there was credible evidence and that on the basis of my reading of it
1 could not rule out a findingthat the Nicaraguan Government had been involved
during that period.
Q.: Would you rule it "in"?
A. : 1prefer to stay with my answer that 1could not rule it out, but to answer
you as directly as 1can my inclination would be more towards ruling "in" than
ruling "out".
Q.: Are you aware, Mr. MacMichael, of the fact that the Nuit. FhrkTimesof
8 September 1985published a report of an interviewwith Professor Chayes and
Mr. Reichter, which saysthat "the lawyers for Nicaragua said that they would
acknowledge that the Managua Government supplied arms to Salvadoran
guerrillas for the big January offensive against the United States-backed
Government in El Salvador"? And that "Mr. Reichler said that he strongly
advised Nicaragua that it should not undertake the Court suit if it were still
involved in arms traffic to El Salvador; have yoii seen that story?
A. : 1was not in the United States when that story appeared so 1 don't recall
seeing it.
Q.: Mr. MacMichael, is it correct to characterize Congressman Edward
P. Boland, Chairman of the House Permanent Select Committee on In-
telligence,as a leading opponent of United States policy in respect of support of
the conrras?
A.: 1think it would be fair so to characterize him, yes, your Honour.
Q. :Would he have been briefedby intelligenceoficials on evidencesupporting
the United States claiin that Nicaragua has been sending arms and lending other
support to the insurgents in El Salvador?
A.: Yes,certainly in hiscapacity as the then Chairman ofthe House Intelligence
Committee he received those briefings.
Q. :Now if your analysis of the force of intelligence collectedin the period of
your service is correct, how can you explain that Congressman Boland would
have stated the following, as he did :
"There is . . . persuasive evidencethat the Sandinista Government of
Nicaragua is helping train insurgents and is transferring arms and financial
support from and through Nicaragua to the insurgents. They are Surther QUESTIONSPUT BY JUUGES 61
providing the insurgents bases of operations in Nicaragua . . What this
says is that, contrary to the repeated denials of Nicaraguan officials,that
country is thoroughly involved in supporting the Salvadoran insurgency.
That support is such as to greatly aid the insurgents in their struggle with
government forces in El Salvador."
This was the view of Congressman Boland to which he has, as far as 1 know,
adhered to this day. How do you explain that?
A.: Your Honour, this is a very important question and certainly one that 1
have attempted to deal with myself. 1do not like to believe that my powers of
judgment are greater than those of Congressman Boland. He has certainly seen
the evidence, and it is rny beliefthat the evidence that he sawwas essentiallythe
same evidence that 1saw. 1 think, your Honour, 1can refer you to a criticism
that Congressman Boland's committee made on 17 September 1982 of the
evidence that had been presented to them on the situation in Central America
which 1presurne included thatdealing with Nicaragua and its allegedrelationship
to an arms flow to El Salvador.
In a report issued, if 1 recall correctly, on 17 September 1982 by the House
IntelligenceCommittee's subcommittee on evaluation of intelligence, reference
was made to the presentation to that Committee of intelligence on Central
America by the Central Intelligence Agencyand other spokespersons for the
Administration, and it was concluded, amongst other things, but1 think this is
the most relevant portion of the statement, that those presentations by the
Administration seemed designed, and 1 am quoting here 1 think very closely,
more to present the Administration's positionthan to illuminate the situation.
1 am also aware that in May 1983Mr. Boland's House Committee issued a
report to which 1 believe al1 the rnembers subscribed, both Democrat and
Republican, and 1do not know if that is the source from which you drew your
statement, but it certainly represents a close approximation of Mr. Boland's
statement as you read it to me, in which they found- and 1believethe adjective
used was "overwhelming" - the evidence that Nicaragua was involved in the
suppfy of arrns to the rebels in ElSalvador and that without such provision of
arms the Salvadoran insurgency would not exist. Naturally, 1 took that very
seriously, because i have the greatest respect for Mr. Boland as I do for the
others of that Committee, and 1 was interested to note as 1 read that report
carefully that it wasa report supporting House resolution, 1believethe nurnber
is 2760. which called for an end to the funding for the contras. The reasoning
employed by the Committee in reaçhing that recommendation was essentially
that if the flowof arms from Nicaragua to El Salvador continued at such a high
rate over such a period oftime as the Administration claimed it did, obviously
the contras - if 1 may use that general term as the force that was being
provided - that force was obviously not serving the purpose for which it had
been funded, and itshould therefore be abolished. 1do not know, and certainly
could not demonstrate, 1 am sure, to anyone's complete satisfactionthat the
method employed in reaching that, both the proposition and then the conclusion
. following it, had something of the nature of a stipulation and it was not. I raise
that question with you, your Honour, in what 1 hope is a response to your
question.
Q.: Thank you so much, Mr, MacMichael, and that raises in my mind this
question: let us suppose for a moment that your thesis is correct and that the
arms flow frorn Nicaragua to El Salvador in the period of your tenure had
substantially or entirely ceased. Let usassume for the moment that there were
shipments of arms from Nicaragua to the El Salvador insurgents for the big62 ~IILITARY ANI) PARAMILITARY ACTIVITIES
offensive at the beginning of 1981,that? as Commander Carrion has testitied, by
the end of 1981, the CIA's support for the contms was in place. You come
aboard 1 think in March 1981and you are there until 1983,and during at least
much of this period the contra operation was being funded actively and was in
place. 1sit not a plausible supposition that, far from being ineffectivethe cotrtras
were most eflective, and that the very reason why the Nicaraguan Government
stopped sending arms, if indeed it did, was because of the pressure of the contrcls?
lt could see that it was a counter-productive policy because it had produced
United States funding of the contr(rswhere United Statesdémarcheshad produced
nothing. 1sthat plausible?
A. : 1think it is plausible, your Honour, and I would go on with my response,
if you desired me to do so. It is my proposition indeed, and my opinion if 1
may Say so, that the alleged flow of arms from Nicaragua to the Salvadoran
insurgents ceased, that no credible substantial evidence of such an arms flow
existed in the time that 1 was examining it.and you propose, if 1 understand
your question, that an explanation for this would be the excellent and effective
interdiction and preventive work of this conrraforce.
Q.: No, if 1 may make myself a bit clearer. 1 am not suggesting that the
contrtlswere necessarily effectivein interdicting arms flows. They may have been
somewhat effective, they may have been ineffective, 1 frankly do not know, but
my suggestion of a plausible explanation of the events you have described is
that Nicaragua had perceived, that a policy of sending arms to insurgents in El
Salvador had a price. and they feared it might have an even greater price, and
therefore they stopped sending arms, if indeed they did, on which 1 take no
position. 1am just offering a hypothesis.
A. : The statement 1 was going to make there is, assuming that that is correct,
itis then very diffiçultto explain why through the whole period ttie United States
Government continued to maintain that this flow of arms went on, if indeed it
had stopped as a result of the Nicaraguan Goveriiment's recognition of the perils
it faced in continuing to involve itself, or appeared to involve itself. It is indeed
strange to me that the United StatesGovernment continued to claim it went on.
Q.: 1quite agree, if indeed it had stopped. 1said that 1am speaking in terms
of a hypothesis.
To turn to another aspect of these facts, Mr. MacMichael, is it a fact that
leaders of the El Salvadoran insurgency are based in Nicaragua and regularly
operate without apparent interference from Nicaraguan authorities in Nicaragua?
A.: 1think the response to that question would have to be a qualified yes, in
that political leaders and, from time to time, military leaders, of the Salvadoran
insurgency have been reported credibly to have operated from Nicaragua, that
this was referred to frequently by the United States Government as a conlmand
and control headquarters, and that such an action could certainly be defined as
one unfriendly toward the Government of El Salvador recognized by the United
States. 1 have confined my testiinony to the charge of the arms flow. To my
knowledge, the United States Government did not justify or attempt to justify
its support for this covert force on the grounds that a directing group of the
Salvadoran rebels, either habitually or from time to time, made its headquarters
in Nicaragua.
Q.: May 1ask if you have read the Declaration of Intervention of the Republic
of El Salvador filed in this case on 15August 1984?
A. : 1have not.
Q.: May 1 reçall that that Declaration contains detailed accounts of the ship- QUESTIONS PUT BY JUUGES 63
ment of arms from Nicaragua to insurgents in El Salvador; maintains that the
general headquarters of the Farabundo Marti National Liberation Front is
lociited near Managua; and claims that :
"ln addition to the entire terrorist training operation established in Cuba,
since mid-1980 the Sandinista National Liberation Front has made available
to Salvadoran guerrillas training sites in Nicarüguan territory."
What in particular is your view of this charge of the existence of training sites
in Nicaragua?
A. :1have no direct or current knowledge of those. 1am not trying to avoid
your question, your Honour, it is just a thing that 1 have heard charged. 1 do
not want to trivialize this response, but let me say tliis because it may help to
put it in perspective, 1have seenaerial photographs, provided through intelligence
systems, of places in Nicaragua identified as. FMLN training camps and some
places where, for exarnple, white-washed Stones are put out with the initials
FMLN. 1could not help but notice as 1took the tram to Delft yesterday that a
large wall in Rijswijk is pliinted with the letters FMLN. As 1Say1do not wish
to trivialize it, but there is, and 1 accept this fully, l believe, as Nicaragua has
stated, there is diplomatic, political and moral support for the FMLN. There is
also a considerable Salvadoran population which residestechnically as refugees,
within Nicaragua. These people are not confined to camps as they are elsewhere
in Central America. They live within the economy there, and go about their
business freely.1am more than willing to believe, as a matter of fact, as a rnatter
of experience, 1assume that just as is believed, for example that Irish-Americans,
resident in New York City and Boston, occasionally do make the odd lot of
arms and other assistance, monetary and otherwise, available to the Irish
Republican Army in Ulster, that this Salvadoran population whose symphathies,
1 assure you from some contact with them, are basically with the FMLN.
find meiins to get support to their brethren in El Salvador. Now whether the
Nicaraguan Government should be more diligent in policing the activities of
these people is another question, and one to which 1 cannot meaningfully
respond. 1 hope that in responding, your Honour, 1 have not trivialized your
question.
Q.: No, not at ail, and it is a real question whether or not the Nicaraguan
Government is doing what it can to prevent such activities, if that is its policy.
But, a second question is:is the policy of the Nicaraguan Government not to
prevent, but to iissist such activities, which 1do not think is the policy of the
United States Government, in any event, vis-Li-visinsurgent operations in
Northern Ireland.
Now, Mr. MacMichael, it was acknowledged in Court last week on behalf of
Nicaragua that, before Somoza's overthrow, the Sandinistashad received foreign
assistance - arms and training - and that among the States giving such
assistance was Cuba. Do you have reason to believe that, whereas Cuba gave
such assistance to Sandinistas, it denies such assistance to the insurgents of El
Salvador'?
A.: Denies. in what sense, your Honour?
Q.: Refuses to give it, declines to give it, fails to give it.
A. : 1think 1have reason to believe that the Cuban Government is supportive
of the FMLN.
Q.: If Cuba does give such assistance, not simply morül support. but arms,
training and so on, would it not be plausible for it to channel some of that64 MILITARYANI) PARAMI1,ITARYACTIVITIES
assistance through Nicaragua, tu whose Government Cuba has given such mas-
sive assistancesince the Sandinistas took power?
A. : 1 would like to answer in this way: first of al], as a general proposition 1
do not see any reason that the fact that if Cuba provides massive economiç
support to Nicaragua or any economic support to Nicaragua, it would necessarily
follow that it wouldchünnel itsassistance, if any, to the FMLN through
Nicaragua. It might choose, as a matter of reason. to protect its investment in
Nicaragua by channelling it in some other place. But, 1 would say that my
opinions about the nature and type of Cuban support to the FMLN would not,
and 1am trying to use good judgment here in saying this, would not necessarily,
or needfully mean that Cuba was going to require, if that is what you intended
in your question, that Nicaragua also involve itself directly in its support.
Q.: Thank you. No, that was not the purport of my question. The purport of
it was this, that since Cuba issending very large quantities of armsto Nicaragua,
while co-operating with the Soviet Union in the sending of such arms, is it not
plausible that it would, being an ardent supporter of the rebellion inl Salvador,
çhoose to channel some of those arms through Nicaragua'?
A.: 1 can only sayit might. 1cannot speak for it. But let mejust go a little bit
further. 1am speaking now of my experience within the CIA, within the intelli-
gence community, trying to deal with these questions and get down to hard evi-
dence, and as 1explained to the Court previouçly, my training has unhappily
been as a historian and 1 have a penchant for re-examining evidence perhaps too
closely,1do not know, but the question of assurnptions cornes up al1the time.
For example, at one period 1 recall, when there were a considerable number of
messages intercepted, we have talked about intercepts, so 1 think 1can mention
this, in which Cuban aircraft, at the tirne when Cuba was providing a great
number of teachers in Nicaragua, had cargoes described as notebooks and
penciis, there was an assumption by a certain number of my fellow analysts that
these were jargon terms referring to rifles and bullets. Now, that is my feeling
about assumptions, it may be that you are absoliitely correct, l just cannot draw
the assumption clearly myself.
Q.: 1am not drawing conclusions either. Mr. MacMichael, 1am just asking
you would it be plausible?
A. :Plausible, yes.
Q.: Mr. MacMichael, have you heard of Radio Liberacion?
A. : 1have heard of Radio Liberacion, yes.
Q.: What is it? Can you tell the Court, please?
A. : Itwas a predecessor of the present Radio Venceremos which is used by
the FMLN in El Salvador. 1 believe that at one time a radio broadcast under
the title of "Radio Liberaçion" was supposed to have originated from Nica-
raguan soil.
Q.: Did they in fact originate from Nicaragua, to the best of your knowledge?
A. :To the best of my knowledge 1 think 1would say yes?that is the infor-
mation I have.
Q.: Have you heard of an airfield in Nicaragua at Papalonal, or an airstrip?
A.i Yes. I have.
Q.: Are you aware of the Bct that the United States Government under the
Carter Administration made representations to the Nicaraguan Government QUESTIONS PUT BY JUDGES 65
about the use of that airfield as a principal staging area for the airlift of arms to
insurgents in El Salvador?
A. :Yes, 1recall that very well.
Q. : In an interview with the Washington Post published on 30 January 1981,
the outgoing Secretriryof State, Edmund Muskie, stated that arms and supplies
being usedin El Salvador's bloodycivil war wereflownfrom Nicaragua "certainly
with the knowledge and to some extent the help of Nicaraguan authorities".
Now as you know the Administration for which Mr. Muskie spoke had given
more than $100 million in aid to the Sandinista Government sinceit took power.
A. :That is correct.
Q. :More than the United States had given Nicaragua under the Somozas in
more than 40 years. Do you think that Mr. Muskie was speaking the truth?
A. :Oh yes, in that case. For example, 1spoke earlier under direct questioning
from Professor Chayes regarding information that had existed for that period -
late 1980to very early 1981 - and when 1mentioned defectors 1 had in mind
as a matter of fact some persons who testified under interrogation - 1 should
not say testifiedbut who stated under interrogation following their departure
from Nicaragua that they had assisted in the operations out of Papalonal in late
1980and very early 1981, and as 1Say, 1am aware of this; there was also an
interception of an aircraft that had departed there - that had crashed or was
unable to take off again from El Salvador where it landed - and 1think that
was in either very early January or late December 1980and this was the type of
evidence to which 1referred, which disappeared afterwards.
Q. :1understand you to be saying, Mr. MacMichael, that you believe that it
could be taken as a fact that at least in late 1980or early 1981the Nicaraguan
Government was involved in the supply of arms to the Salvadoran insurgency.
1sthat the conclusion 1can draw from your remarks?
A.; 1 hate to have it appear that you are drawing this from me like a nail out
of a bloçk of wood but, yes, that is my opinion.
Q,: Now let us turn to 1982because you referred to an episode a little white
ago in that regard, namely, that arms were found in - 1believeyou said - San
José.Costa Rica, on 15March 1982 - rifles, etc., and the multinational group
tending to this arms cache was found. Now as 1 believe you know, Cuba sent
large quantities of arms to the Sandinistas when they were fighting Somoza
through, and to, Costa Rica, and the Costa Rican National Assembly made an
investigation of that arms traffic and reported that quantities of those arms had
been left behind in Costa Rica after the overthrow of Somoza. Do you believe
that this arms cache indeed was of Cuban origin, destined for the Sandinistas,
and in fact, perhaps with the aid of Costa Rican collaborators, meant to move
on to El Salvador now that Somoza had been overthrown and it was not so
much needed by the Sandinistas?
A.: 1çould allow for the possibility of that. 1do not know it and 1do not
know that the investigation carried out in Costa Rica at that time or the infor-
mation developed from that arms seizure made any connection with Nica-
ragua at ail.1 believethat one or two of the persons of this multinational group,
which included a Chilean, an Argentine, severalCosta Ricans, someSalvadorans,
etc.- that one or two of these was of Nicaraguan nationality.
Q,: Yes. 1 think that that is correct. Let us turn to 1983,Mr. MacMichael, 1
think this is atso in the period of your service. A United States reporter named
Sam Dillon visited a small Nicaraguan port, called Lü Concha, located about 60
kilometres across the Gulf of Fonseca from El Salvador. In his story in the66 MILITAKY AND PARAMILITAKYi\CTIVITIES
IVa.~hhigto Post - a newspaper, 1 might note, which is known for its frequent
criticism of the Reagan Administration - which appeared on 21 September
1983,at page A29, he recorded that:
"A radio-equipped warehouse and boat facifity, disguised as a fishing
co-operative on an island in northwestern Nicaragua, has served for three
years as a transshipment point for smuggling arms to El Salvador, numerous
residents here say."
Do you think. Mr. Dillon reported false information?
A.: No, 1 would have no quarrel with the information that Mr. Dillon
reported, 1have read that article. 1could comment upon it: 1would reply to it
more accurately if I had a copy in front of me but if that is not possible 1will
point out a number of things about it. One that raises a great many questions,
as a careful reading of the article will indicate - one of these is raised merely
by the headline, but even before 1 go into that, what 1will say is that it always
surprises me to some extent when the United States Government, in attempting
to make its case on this point, su flagrantly delivers as evidence statements in
the public press, when one would hope they would have something more
substantial to put forward. This is not at al1to impeach the WushingtonPost or
Mr. Sam Dillon or newspapers. The headline of course is misleading :because it
simply states as a fact that an arms çhipment point has been raided. It states
that it was raided by forces of the Nicaraguan Democratic Front, the FDN,
when subsequent evidence has informed us that it was carried out by agents
working directly for the Central Intelligence Agency,that is, sa-called unilaterally
controlled Latin assets. Reference in this story isalso made to the press statement
issued by the FDN about this. In my own conversations several months ago
with Mr. Edgar Chamorro we talked about this: he pointed out that the press
statement, which allegedly came from the FDN, was one that had been prepared
within the Central Intelligence Agency and handed to him to present as if it were
supposed to have been -and 1willmake a general observation here. if 1 may -
as if this was supposed to have been a major transshipment point for arms within
Nicaragua and going to El Salvador, and had been identified by the competent
intelligence authorities of the United States. Given the scepticism that had been
raised for some time and the demand for hard evidence. in the form of arms
seizures, within the United States to support this case, it seems to me - as it
seemed to me when 1 first became aware of that - that the goal would have
been to gain as much presentable evidence in the form of photographs, in the
form of tracking boats leaving that place to El Salvador, of seizing arms
shipments. of taking prisoners, and so forth. Not to send a force in to destroy
the entire facility, leaving behind the following items - if 1 recall the article
correctly - a Nicaraguan army banner - 1 believe is described there - which
if it werea clandestine installationl is a surprising item to have there.
Secondly. a target which had been fired at and shell casings which presumably
came from the weapons which had fired at the target. the remains of three long
wooden crates, was the entire physical evidence left behind. lf this was indeed a
super-secret i'acility,it is also puzzling, although it may simply indicate a great
deal of confusion with the Nicaraguan Government. that western reporters were
allowed free access to this site immediately, that they spoke without hindrance
to people living in the area and that there was only present one person described
as a shotgun-toting guard, who does not appear to have been a member of the
Nicaraguan armed forces. There isa further statement within the article that on,
at least, the basis of conversations with local residents, some years previously,
shortly after the events of July 1979. that militüry men not further desçribed QUESTIONS PUT BY JUDGES 67
came to the area seekingthe services of experiencedsmugglersandthe experienced
smuggler was named in the article. 1cannot unfortunately recall the name now.
Al1this, to me, raises a great deal of questions - what was this facility? The
statements made by people living in the surrounding ares! such as "1 don't mix
in politics but everybody knows" - this is what they said - may, or may not,
be valid statements. And I do not want to be in a position, your Hono~ir, of
trying to explain away everything 1see, but that is my job, to examine this sort
of thing, and Say why there are so many questions coming out of this. That is
the only response 1can make to your bringing this article up at this time.
Judge SCHWEBEL: 1 might read out what was said in the Declaration of
intervention of El Salvador on this point, with particular regard to it being a
super-secret facility of any sophistication.
"In late 1983 a United States reporter named Sam Dillon visited a srnaII
Nicaraguan port, called La Concha, located about 60 kilometres across the
Gulf of Fonseca. from El Salvador. Mr. Dillon reworted that the residents
of theso-called fishingco-operative had, astraditional smugglers,introduced,
since 1979.larne auantities of weanons into El Salvador under instructions
of the Nicaraguan Government."
That is the perception of the Government of El Salvador of these events.
Mr. MncMICHAEL: That is their perception, yes.
Judge SCHWEBEL: Mr. MacMichael, the Neiv York Times of 13 July 1984
carried ilstory of an interview with a former Salvadorün guerrilla commander
who was captured in Honduras, who stated that virtually al1the arms received
by rebel units he led came from Nicaragua, and that Salvadoran guerrillas have
their headquarters in Nicaragua. The narne of the former guerrilla is Arquimedes
Canadas also known as Commander Alejündro Montenegro. Have you any
comment on that story?
Mr. MAcMICHAEL: Yes, your Honour. 1do. 1 would like to point out that
as in the case of any staternent made by a prisoner or defector 1 am not in any
way in a position to directly impeach the statement. 1simply want to point out,
as 1 did earlier in my testimony, that a heavy reliance on the sort of testimony
of people being held, as in the case of Arquimedes Canadas. better known as
Commander Alejandro Montenegro, who, incidentally, was a very successful
FMLN commander, - he led an attack on the Ilopango airfield in 1982 and
destroyed much of what wüs then the Salvadoran air force. He was captured in
August 1982 in a safe house in Tegucigalpa in Honduras. 1wiis aware of his
capture and had access to the results of his initial interrogations. At that time
he made no mention of arms. Indeed, 1 could Say certainly that the object of
much of his interrogation had to do with his leadership of the raid on the
Ilopango airfield; where he received histraining, and so forth.
Q.: Where was that ? Where did he reçeive histraining?
A. : He testified that he received it inCuba. Earlier in 1982this gentleman had
met with western reporters in the field in El Salvador and stated, at that time,
that the vast majority of the arms used by his force were arms that were either
purchased on the black market or captured in combat in El Salvador. When he
made his statements reported in July 1984,almost two years after his capture,
during which time he had been inthe hands of very skilledinterrogators, he told
a very different story. NOW,which story is correct 1am in no way able to judge,
and I have testified to a certain point and I am raising questions that will tend68 MILITARY ANU PARAMILITARY ,\CTIVITIES
to support my point of view, and 1 am not trying to explain away everything
you advance.
Q. : Fair enough. Now you spoke before of that famous incident in which the
United States came forward with a defector who was introduced as someone
who would testify to Nicaraguan support for the Salvadoran insurgency and, in
fact, he did not, and he testified, in fact, that it was not so, and that he was put
up to saying so, and soon. 1sthat correct?
A. : That is true.
Q. : What became of that gentleman may 1ask?
A.: He is, to my knowledge, iii Nicaragua today.
Q. : 1 see. He wasn't shot on the spot? He showed no signs of torture? He
walked auTayas a free man? He was in Nicaragua, welcomed as a hero. 1sthat
not correct?
A.: 1 do not know, your Honour, as to whether he showed any signs of
torture. 1had no chance to examine him physicnlly. 1will accept and glory in
the fact, as you do too, that people who appear in the custody of the United
States Government, in the United States of America, under guarantees given by
that Government, find those guarantees respected and in his case they were.
Q. : Righi, now given his example, do you see any reason why a defector from
the Salvadoran insurgency should fear to speak the truth? They can well see
that if they come out with a story contrary to that which one would suppose
the United States would want to hear, a hero's welcomewould await them in
Nicaragua. So why wouldn't they speak thetruth?
A. : Well, we haven't referred to any other Nicaraguan captives or defectors
here. The persons about whom wehave been talking were, 1thought, Salvadorans
who had left the PMLN.
Q.: Yes. But as you know there are a large number of such defectors both
from Salvadoran and Nicaraguan sources whose testimony is similar to that of
the nature 1 have cited to you. J could go on and on giving you examples like
this, but1 do not think we can take the time of the Court. My point is simply,
that, is not this single example of the treatment of that single captive suggestive
of the fact that persons in the custody of the United States need not fear to
speak the truth as they know it? Would that not be the Iesson you would draw
if you were in a similar situation?
A.: 1 certainly believe that is the case.
Judge SCHWEBEL: That concludes my questions, Mr. President.
The PRESIDENT: At the moment there are no questions to be put to you.
After the coffeebreak, if there are any questions, 1hope you will be available to
the Court to answer questions.
Mr. MAcMICHAEL :1am, Sirl available to the Court as long as it wants me,
your Honour.
The Court a+trrnedjirnin 4.40 to 4.55p.m. EVlDENCEOFPROFESSORGLENNON
WITNESS CALLED RYTHE GOVERNMENTOF NICARAGUA
The PRESIDENT: For the moment there are no further questions for the
second witness so we may summon the third witness, that is Professor Glennon.
Mr. ARGÜELLO GOMEZ: Yes, Mr. President, the next witness will be
Professor Michael Glennon. He will be examined by Mr. Paul Reichler.
Mr. REICHLER: Mr. President, Members of the Court, may it please the
Court, my task is to ask the questions of this witness. 1would like to ask the
witness first if he will please makehe solemn declaration.
Professor GLENNON: 1 solemnly declare upon my honour and conscience
that 1 will speak the truth, the whole truth and nothing but the truth.
Q.: Would you please state your full name?
A. :My name is Michael John Glennon.
Q.: Where do you reside?
A. : live at 3455Cornell Place, Cincinnati, Ohio.
Q.: What is your nationality?
A. :1am a citizen of the United States of America.
Q.: How are you presently employed?
A. : am an adjunct professor of law at the New York University Law Sçhool
and a full professor of law at the University of Cincinnati College of Law.
Q.: When did you become a professor of law'?
A. : 1became an adjunct professor at the New York University Law School
in 1977. 1 became a professor at the University of Cincinnati College of Law
in 1981.
Q.: When and where did you obtain your law degree?
A. : 1was graduated from the University of Minnesota Law School in 1973.
Q.: In your academic work, do you specialize in any particular area or areas
of the law?
A.: 1teach international law and constitutional law. My speciality is the con-
stitutional aspects of the United States foreign relations power; specifically,the
distribution of power between the Presiderit and the Congress in areas such as
treaty-making and the war power.
Q.: Have you published books or articles or received honours in this area?
A. : 1have published a number of articles in these fields. 1 have also received
several honours; in 1981, 1CO-authoreda five-volumework entitled UnitedStates
Foreign Relations Law with Professor Thomas M. Franck of the New York
University Law School. That work was awarded the Certificate of Merit by the
American Society of International Law. In Spring of this year, 1985, 1 was
awarded the Deak Prize by the American Society of International Law for the
best article by a younger author to appear in the AmericanJournuIofInternu~ional
LUFV over the previous year. The article concerned the war-powers resolution
and the effectiveness and constitutionality of statutory limitations on the
President's war-making power.70 MILII'ARY AND PARAMILITAKY ACTIVITIES
Q.: Are you active in any professional organizations'?
A.: Yes, I am active in the American Society of International Law. 1 was
appointed to a committee of the American Societyof International Law to study
the jurisdiction of the International Court of Justice, specifically whether the
United Statesshould modifyor terminate itsdeclaiation acceptingICJjurisdiction
and, if so, how constitutionaIly that is required to be done. 1am also a member
of a panel of the International Law Association (the American branch) set up
to study the use of force in relations among States.
Q.: What previous professional employmenthave you had and what were the
time periods?
A. : From 1973to 19771was assistant counsel in the officeof the Legislative
Counsel of the United States Senate. From 1977to 1980, 1 was the LegalCounsel
to the Committee on Foreign Relations of the United States Senate. From 1980
to 1981,1was associated with a law firm inWashington, D.C., which practised
international law, and from 1981 until the present 1 have been a professor of
law at the University of Cincinnati College of Law.
Q.: When you worked in the United States Senate LegislativeCounsel'soffice,
whüt were your responsibilities?
A.: The office of the Legislative Counsel is something of the nature of an
in-house law firm. It does legal work for the Senate, Senators and Senate
cornmittees. 1 was assigned to the Senate Foreign Relations Cornmittee, which
had no counsel on its staff at the time. All of its legal work was given to the
office of the Legislative Counsel and assigned to me. That work included
answering the Committee's inquirieson matters of international law, consti-
tutional law, statutory interpretation and particularly statutory drafting.
Q.: What were your responsibilities when y011were the legal counsel to the
Committee on Foreign Relations of the United States Senate?
A. :While 1 was the Committee's legal counsel 1 was responsible as the prin-
cipal lawyer for the Committee for matters involving international law. consti-
tutional lawand statutory interpretation. 1did such things as help set up hearings
for the Committee; 1 put togcther lists of witnesses; 1 suggested ques-
tions for the senators to ask witnesses; 1 drafted legislation that the Commit-
tee requested concerning matters on which the committee concluded that some
new law was necessary: and in general 1 was responsible for answering the
Committee's questions on all the legal matters before it. In addition to my
responsibilitiesas the legal counsel to the full Committee, 1was also assigned to
the staff of the Committee's Subcommitteeon International Operations. The
Subcommittee on International Operations was charged expresslywith oversight
of the State Department. As a member of that subcommittee staff 1 was
responsible for deterrnining whether the Department of State was operating
within the bounds of the law and in that capacity met regulariy with State
Department officiais and frequenlly interviewed them with a transcriber present.
1reported my findingsto the subcommittee and made recommendations concern-
ing how the law needed to be changed in instances where it did.
Q.: Did you have occasion in the early part of this year to conduct a fact-
finding mission in Nicaragua ?
A. : 1did, yes.
Q. :On whose behalfdid you cunduct this hct-finding mission?
A.: The mission was sponsored by the lnternational Wumün Rights Law
Group and the Washington Officeon Latin America.72 MILllARY AND PARAMILITARYACTIVlTIES
of the responsibility, if ariy,of the United States Government for the activities
of the contras.
Q.; Who decided on what methodology your delegation would use in con-
ducting its investigation in Nicaragua?
A. : The methodology was determinedexclusivelyby Donald Fox and myself.
Q.: Would you describe to the Court in general terms how you did conduct
your inquires into the activities of the contras and the responsibility, if any, of
the United States?
A.: Yes, with respect to the contras, we went to Nicaragua. We interviewed
about 36 people who were located in the area of northern Nicaragua, along the
border of Honduras, where the contras had been active and where a number of
the alleged incidents were said to have occurred. In investigating these incidents
we visited the towns of Esteli, La Estancia, Condega, Matagalpa and the capital
city of Manuagua, ofcourse. With respect to the responsibility ofthe Department
of State, we met with oficials from the Department of State in Washington
before we left for Nicaragua. While we were in Nicaragua we met in Managua
with the United StatesAmbassador to Nicaragua, Mr. Harry Burgold, and when
wereturned to Washington we met again with officialsof the Department of State.
Q.: Who determined your itinerary in Nicaragua?
A. : Donald Fox and 1determined our itinerary.
Q.: How did you decide on that itinerary?
A.: We asked the recommendations of a number of people before we left
including officialsof the Department of State and members of different human
rights organizations, including Americas Watch. We also adjusted our itinerary
along the way based on information that we gathered in the interviews.
Q.: Was the Nicaraguan Government involved in any way in planning or
approving your itinerary ?
A. :Absolutely not.
Q. :Did the Nicaraguan Government participüte in or influence your inquiry
in any way ?
A.: It did not.
Q.: Did you receive any assistance from the Nicaraguan Government in the
course of your investigations?
A.: Yes,we did. Wedetermined that it was necessaryto interviewthe captured
head of contra intelligencefrom the Department ofNuevo Segovia who was at
the time that wewere inNicaragua incarcerated in the Modelo prison in Tipitapa.
We requested and received the permission of the Nicaraguan Government to
interview this individual in the prison. 1 might add that we interviewed himby
ourselves, without any representative of the Government being present. Second,
we hired at market rates a car and a driver froni the Nicaraguan Government,
which we concluded, while wewere in Washington, was the only practical means
of getting about the country safely and seeing the people that we needed to see.
Q. :Who determined which people you would see and interview?
-
A.: Donald Fox and 1 determined whom wewould seeexclusivelyby ourselves.
Q.: Was the Nicaraguan Government involved in any way in your selection
of these people?
A.: Absolutely not. As a matter of fact, we discovered at one point that an
over-zealous contact person had sought and received the assistance of a local
government officialin locating the person that we wanted to talk to and because EVIOENCE OF PROFESSOR GLENNON 73
of this involvement of the Government we concluded that it would be best to
exclude that individual'sstatement from our report.
Q.: How did you select the people whom you interviewed in the places you
visited in Nicaragua?
A. :We selected the persons to be interviewed in several different ways.First,
when we went to the different citieswe frequently spoke to the priests who had
parishes in those cities and we asked the priests whether any of their parishioners
had had any experiences with the confrus and, if so, whether these individuals
would be credible. Second,we spoke to Americans who were living or had lived
in Nicaragua and asked them whom we should talk to: these were frequently
members of religious groups, such as Witnesses for Peace. Third, some of the
interviews that we conducted created teads that led to other individuals that we
believed we should interview. Finally, a number of people simply came to see
us, having heard that we were in town, and having something to tell us.
Q. :Can you generally describe the people whom you interviewed?
A.: Yes,the people that we interviewedcame from al1walks of life.They were
generally aged from about 20 to about 60. They were from a variety of different
occupations - truck drivers, bus drivers, telephone technicians, coffee pickers,
housewives.Many of them seemedto be Government supporters; some did not;
most appeared apolitical. Most were devout Catholics.
Q.: Who actually conducted the interviews?
A. :Donald Fox and 1 conducted al1 the interviews ourselves. Normally we
conducted the interviews together, although occasionally in the interest of time
we split up and conducted the interviews separately.
Q. :Where were the interviews conducted?
A.: Generally theinterviews wereconducted in the houses, or more accurately,
the huts of the people that we were interviewing.
Q.: Did any representative of the Nicaraguan Government participate in any
of these inverviews?
A. :No.
Q,: How did you determine the veracity of the persons you interviewed?
A.; In severalways. Wecross-examined peoplequite closely.Weasked probing
questions; we compared notes afterwards on our assessmentsof their demeanour
and credibility. We asked the individuals if there were other witnesses to the
events they described, and if possible we interviewed those persons. Finally, we
cross-checkedtheir stories, where possible, against whatever documentary sources
were available.
Q.: Did you rely on any statements that were not first-hand accounts?
A. :Wedid not. We accepted only first-hand accounts and sought generally to
adhere to American standards of evidence, whichpreclude the admission of hear-
say.
Q.: Were there any witnesses whoseveracity you doubted?
A.: Yes, there were two witnesses whose veracity we doubted. One was a
middle-aged man who seemed to recall events in arnazing detail. His story was
plausible, but we thought that to be safe we should probably exclude it. Second,
an 18-year-oldgirl described events in terms that we thought were exaggerated,
and we therefore excluded her statement from our report as well.
Q.: So a report of your fact-finding mission wasprepared?
A. : That is correct.74 MILITARY ANI) PARAMILITARY ACTIVlTlES
Q.: Who prepared the report ?
A. : Donald Fox and 1.
Q.: Was the report ever published?
A. : Yes, the report was published in April 1985 by our two sponsors.
Q.: And does your report have a title?
A. : Yes, it does.
Q.: Would you read it to us?
A. : The title is "Report of Donald T. Fox, Esquire, and Michael J. Glennon,
to the International Human Rights Law Group in the Washington Office on
Latin America concerning Abuses against Civilians by Counter-revolutionaries
operating in Nicaragua, April 1985".
Q.: Sincethe report isalready in evidencein this case at Annex 1to Nicaragua's
Mernorial of 30 April 1985, I would like to ask you if you could very briefly
recall for the Court your findings and conclusions as to the activities of the
contras ?
A. : With respect to the contras, our conclusions were as folfows. We found
that there is substantial credible evidence that the contrusare engaged with some
frequency in acts of terroristic violence directed at Nicaraguan civilians. These
are individuals who have no connection with the war effort - persons with no
economic, political or military significance. These are individuats who are not
caught in cross-firebetweenGovernment and contruforces, but rather individuals
who are deliberately targeted by the contras for acts of terror. We found that
the contrasdo in addition target economic institutions such as coffee processing
plants, lumber-yards, radio stations and the like, but we found, as 1 Say, that
there is substantial credible evidence that the contraswith some frequency direct
terroristic violence at Nicaraguan civilians.
Q.: You said that the contras engage in terroristic violence, in acts of terror.
Can you tell the Court what you mean by terror?
A.: I use the term "terror" in the same sense in which it is used in the United
States law, and 1 refer the Court's attention to Public Law 98-533, which was
enacted only this year. It defines an act of terrorism as an activity that involves
a violent act or an act dangerous to human life that is a violation of the crirninal
laws, and appears to be intended to intimidate or coerce a civilian population,
to influencethe policy of a government by intimidation or coercion, or to affect
the conduct of a government by assassination or kidnapping. We found that
those are preciselythe kinds of activities in whichthe contrasdeliberately engage.
Q.: 1know that your report makes reference to a number of incidents of what
you have defined as acts of terror. Could you give the Court some very brief
exampEesto illustrate what you mean?
A.: Yes, 1 would like to read for the Court the statements that we took from
three individuats. These statements were made in their own words.
The first is Maria-Julia Ortiz, aged 28, whoni we interviewed in Jalapa on
25 February 1985.
"lt was 24 October 1984 at Pied de la Cuesta, where 1 lived at the time.
The contras came about 4.30a.m. They banged on the door and said 'Get
up you rabid dog'. My husband did not want to open the door. They broke
it down with the butts of their rifles.My husband said '1am ill'.The contras
said 'Thut's not what we'reasking you. If you don't get up we'regoing to
throw a grenade in your house.' He was frightened. He knew what they
were going to do to him because they had broken down the door. He had EVIDENCE OF PROFESSORGLENNON 75
run into the other room. They hit him on the neck with a gun, knocking
him unconscious. Then they took hirn into the corridor and tied him up.
Then, while he was lying on the ground, they hit him on the eye. My
children could see what was happening. 1have three - four with the one
now because 1am pregnant. Then they took bayonets and slit his throat. 1
saw al1of this from under the bed. After they slit his throat they said 'Where
is this guy's wife?'While he tay there bleeding to death, my little girl said
'What's happening to daddy?' The contra then grabbed me and said 'Come
with us', and tried to pull me from the children. When 1resisted they hit
me and 1fell unconscious. When 1 woke up on my cot the contras were
going through our belongings, taking what they wanted. When they finished,
a contra who had been giving instructions from outside asked those inside
'Did yo~ido what you were supposed to do?'"
We asked this woman why her husband had been killed. She did not know.
"He never got involved in anything," she said, "he was a carpenter. He was not
in adult education or anything like that."easked whether he was a communist.
"1 don't know what they are," she said, "1 am a Catholic. We went to mass
every Sunday together."
Second is the statement of Maria Ramirez Mateo whom we interviewed in
La Estancia,
"1 live in the CO-operative Augusto Cesar Sandino, in Quilali in the
municipality of Nueva Segovia. It's about three to four hours frorn here.
On 18 December 1983at about 9 o'clock inthe rnorning, 1wüs feeding my
children? al1six. .I rounded them up when 1 heard shots. We took our kids
to a shelter,1 couldn't get al1the other kids out. One woman was at the
river washing and her two kids were killed. The contras killed them in their
house. My mother was taking care of them and she was hit in the arm. The
contras shot up the whole village and al1the houses. They were inside one
of the houses. The conIrus took a girl of about 15. They grabbed the 15
year old girl. The contrus were shouting slogans - 'you rabid dogs, why
are you running away?'. The girl was a militia, they grabbed her and took
away her gun. She was in a special area that had been dug up. She was on
one sideand 1 was on the other side, about 30 yards away. She was
screaming. She was raped by one of 50 men. There were about 800 contras
there, in otherreas. The same person then cut her throat with the bayonet
that he had in his hand. When 1saw her throat cut. 1decided 1should run
away because they would do the same to me. 1 left for another co-operative.
They shot at us but we went down into a gully and escaped. As we did,
they began burning houses. About 17of the 23 houses were burned. Twelve
militia were killed, and two little girls. Among the 12were my two brothers
and my father. 1 rernember it as if it happened yesterday.1 have only one
brother left. My brothers left their wivesand children 3 and 4 children-
and they are now orphans. One feelsgreat gratitude when people come and
visit us.want to thank you."
The next person whose statement 1 will read to the Court is that of Gustavo
Adolpho Palaciss Reyes who is 25 years old. We interviewed hirn in La Estancia
on 27 February 1985 :
"1 am a day labourer. On 26 December 1984we were in Sompopera. We
were on the road about 6 o'clock in the morning in a Ford pick-up truck,
aprivate pick-up truck. In it were my mother, wifeand three family members
of my wife'sfamily. None had guns. Weheard machine gun fire.Westopped.76 MILITARYAND PARAMILITARY ACTIVITIES
It continued for 15 to 20 minutes. 1t was aimed at the truck. We couldn't
seewho it nas. We aliducked down. When the shooting stopped, they came
up to the vehicle.They had a badge on their uniforms that said 'FDN', the
uniforms were blue.There were 50 to 80 men. They sawwe were six women
and four men. They said nothing, they just looked at the bodies. Six had
been killed.Of the wounded, one later died. They said nothing. Then they
left. My mother and my wifewere killed.After the actions of these freedom
fighters we got out of the vehicleand found a farm worker to get help. The
car had no markings on it. It was a private vehicle of transportation. 1
just want to say that al1 this is a product of the help the United States
Administration is giving to the ccintrus.1 am not a communist, 1 am a
catholic. 1 hope these words will do something back in the United States.
Wejust want to live in peace."
Q.: What conclusions did yo~idraw about the extent or frequency of acts of
terror by the conrras'?
A. : We concluded that acts of terror occur with some frequency, that they are
not isolated incidents. In the period of aboutone weekthat wewere in Nicaragua,
we heard related to us incidents involving 16 murders. 3 cases of torture, 44
kidnappings and one rape. We had the distinct sense that had we stayed longer
and sought further evidence,we could have gathered subsiantial further evidence
with little difficulty.In addition, it appeared reasonable to infer that the contras
were operating pursuant to a command structure. The contrasmoved about the
couniryside frequently in groups of up to several hundred. The individuals who
committed acts of terror against civilians were not acting, it seemed to us, as
free agents, they were not acting beyond the course and sçope of their duties;
rather they appeared to be acting pursuant to direction and supervision. Finatly,
we interviewed a cross-sample of the individuals who had given statements to
other investigators,such as Mr. Reid Brody, and those statements checked out,
from which we thought it reasonable to infer that, had we interviewed others of
the individuals who also had been interviewedby these persons, those statements
would likely have cheçked out. Consequently, our finding was that acts of terror
are not isolated incidents but rather occur with some frequency.
Q.: In your interviews withofficialsof the State Department and with United
States Ambassador Harry Bergold in Managua, did you inquire whether the
United States Government had ever conducted itsown investigation of the
contms' activities?
A.: Yes we did and we were told that no such investigation had ever been
conducted.
Q.: Did you find out why not?
A.: Yes we did. One of the individuals from the Department of State with
whom we spoke, a high-ranking State Department official,spoke with us on the
condition that his name not be made public; he asked us not to identify him.
He was quite candid with us, 1think. He said that the intelligencecommunity
had not been tasked to look into these activities, whiçh is to say that the Central
intelligence Agency and other American intelligence services had not been
affirmatively directed to undertake to assess the validity of any or al1 of the
allegations that we were referring to.
Q.: Did this senior oRiçialtell you anything about the posture or position of
the United States Government with respectto these activities?
A.: Yes, he summarized the position of the United States Government quite EVIDENCEOF PROFESSORGLENNON 77
pithily. He said that the United States Government maintained a posture of
"intentional ignorance" - those are his exact words.
Q.: Nolwithstanding that posture, did you neverthelessin your meetings with
State Department oficials in Washington and with United States Ambassador
Harry Burgold in Managua find that the United States was in Factaware of acts
of terrorism committed by the contrus?
A. : Yes, we found that the United States, specificallyState Department offi-
cials, were üware of acts of terrorism by the conîms. This same high ranking
State Department officialtold us that it was çlear that the levelof atrocities was
enormous. Those words "enormous" and "atrocities" were hiswords.
Q.: Frorn this do you condude anything about the responsibility of the United
States Government for these acts?
A. : Yes, 1conclude that the United StatesGovernment is responsiblefor these
acts; ifthe United StatesGovernment provides assistanceto the cnntrus knowing
full well what acts the cniztruJwill perform, my conclusion is that the United
States Government is responsible. Tt is like giving a loaded pistol to a person
whom you know intends to commit murder.
Mr. REICHLER : Mr. President, that concludesmy questioningofthewitness;
the witness, of course, remains at the disposition of the Court. QUESTIONSPUTTO PROFESSORGLENNON BYJUDGE SCHWEBEL
Judge SCHWEBEL: Professor Glennon, 1 take it that in Nicaragua you
were free to travel where you pleased and speak to whomever you wished.'
1sthat correct?
Mr. GLENNON: That is correct, your Honour.
Q.: Did you speak to figures who have been critical of Sandinistas, such as
the Roman Catholic Cardinal'?
A.; We did.
Q.: Did your group investigate alleged violation of human rights by the
Sandinistas such as the forced relocation of the Miskito Indians, the assassination
by State security officials of opposition officials, notably Jorgé Salazar, and the
murder of Somoza's supporters m~hohad been taken prisoner '?
A. : Justice Schwebel,we regularly asked those persons we interviewed whether
they were aware of human rights violations by the Government of Nicaragua
and we received no statement that would not constitute hearsay concerning
human rights abuses by the Sandinista Government. 1 would like to say that our
sponsors defined the scope of ciurmission for us; tliey indicated to us that our
primary focus was to be on hunian rights abuses by the contrusand both Donald
Fox and 1 believed that that focus was justified for several reasons. First, a
number of groups including the Department of State and Americas Watch, had
already studied human rights violations by the Government of Nicaragua ;there
was a fair amount of literature that already existed on that point. Second, the
United States Government was not considering at the time giving assistance to
the Government of Nicaragua; the President had requested the Congress again
to fund the mntrus, and the question was the question that our sponsors asked
us to look into - what was the responsibility of the United States by virtue of
that funding? So 1 thought thar our focus on violations by the corrlruswas
entirelyjustified.
Q.: Wouldn't it be fair to say, Professor Glennon, that you were not tasked,
to use the word you used before? to investigate human rights violations of the
Sandinistas ?
A.: Well, no, our sponsors did tell us to find out what we could about liuman
rights violations by the Sandinistas but it was not the principal purpose of
our visit.
Q.: May 1ask, Professor Glennon, did you interview officialsof the Permanent
Commission on Human Rights - 1refer now not to the Commission set-up in
mid-1980 by the Nicüraguan Government, but to the Commission which was
founded in 1977and which 1 understand has a distinguished record of protest
of alleged violations of human rights, both by the Somoza régime and the
Sandinista Government ?
A. :Yes, we did.
Q.: Now, 1understand that you impute to the United States responsibility for
violations of humanitarian Iaw by the cnntrns?
A.: That isright. 1view the United States as responsible for the acts that are
being carried out by the conims. QUESTIONSPUT BY JUUGE SCHWEBEL 79
Q. :You will have heard news reports about the kidnapping of the daughter
of President Duarte of El Salvador after the murder of one of her guards; it was
reported that she was pulled away by the hair. Presumably, you have also heard
reports of the policy of the insurgents in El Salvador of kidnapping, or
assassinating mayors of cities, some 20 of whom have indeed been kidnapped:
and there have also been indications of murder of prisoners by El Salvador
insurgents - not early in the insurgency but later- and, of course, there is the
attlick on United States Marines and Salvadoran citizens at an outdoor café
which has been referred to in these hearings. Now a leading figure of the
insurgents in El Salvador, Mr. Ruben Zamora, is quoted in the Internuti[~nul
HeruMTriburieof 14/15September on page 3, as denying any knowledge of who
had carried out the kidnapping of the Duarte daughter; a denial, incidentally,
which he issued from Managua. But, as far as 1know, there is no dispute about
the attribution of these other actions to El Salvadoran insurgents. Now let us
put aside for the time being the question of what is, or has been, the policy or
practice of the Nicaraguan Government in regard to support of the insurgency
in El Salvador; and let us assume, for the purpose of this question. two facts.
First, that the leadership of the El Salvadoran insurgents operates from
Nicaragua; and second, that arms have been shipped through Nicaragua to
Salvadoran insurgents. If these fiicts are assumed, wouldn't it follow that
Nicaragua is responsible for the viol?tions of humanitarian law to which 1
have referred ?
A. :I really do not feel competent to answer that question. 1have no specific
first-hand knowledge of events in El Salvador; the knowledge that 1 possess,
which has brought me here to this Court, is as a result of a visit to Nicaragua.
1 would be glad to answer any questions you may have about information we
Foundin Nicaragua, but 1really do not feelcompetent to answer questions about
El Salvador.
Q.: Well, 1guess 1am questioning you in your capacity as a professor of law,
and assuming - as 1 am sure is the correct assumption - that yo~i have
knowledge of the principles of State responsibility and imputability. 1am asking
you not to speak of the facts of what has occurred in El Salvador: 1 recognize
that isnot within the focus of your mission. But 1am rather asking you, on the
assumption of certain facts, would it follow that, by reason of Nicaragua's
aiding - and that is the assumption - of the insurgents in El Salvador, it is
responsible for their violation of human rights? Would that follow?
A. : Judge Schwebel, we did not include in our study an analysis of the issiies
of State responsibility and imputability as part of Our mission. Ours was a fact-
finding mission and 1 really would prefer not to cornnient beyond that.
Q.: May 1ask you how you can conclude, if you have not considered questions
of imputability, that the United States is responsible for violations of human
rights by the contras?
A. : Because the sponsors of our mission asked us to study moral imputability
as wellas legafirnputability. Weset out Article 3ofthe 1949Geneva Conventions
in Our report. but as you can see from our report we did not get into the legal
issues. 1stand fiilly behind my conclusion that the United States is responsible
for the actions of the contrus; 1think we meünt that primarily in a moral sense,
but as 1 say our mission was directed to finding fiicts and 1am convinced that
those facts are solid.
The Court rose ut 5.45p.m. TWENTTETH PUBLIC SITTING (17 IX 85,IO a.m.)
Presmt :[Seesitting of 121X 85.1
EViDENCEOF FATHERLOISON
WITNESS CALLEI)BY THE GOVERNMENT OF NICARAGUA
The PRESIDENT: We continue this morning with the examination of
further witnesses, and 1 have asked the Agent of Nicaragua to have the fourth
witness examined.
Mr. ARGÜELLO GOMEZ: ln that case, Mr. President, 1would request we
cal1Father Jean Loison, the next witness, and he will be examined by Professor
Pellet.
The PRESIDENT :Please summon the fourth witness, Father Jean Loison
M. PELLET: Avant de poser quelques questions au témoin avec votre
autorisation, je pense qu'il doit faire Iü déclaration prévue i l'article 64 du
Règlement.
PèreLOISON :Je déclare solennellementen tout honneur et en toute confiance
que je dirai la vérité,toute la véritéet rien que la vérité.
Q.: Monsieur, auriez-vous l'obligeanced'indiquer a la Cour votre nom. votre
prénom, votre nationalité,la date et le lieu de votre naissance?
R.: Je m'appelle Jean Loison. Je suis français, néle 19janvier 1931à Orléans,
en France.
-.: Q-elles sont les fonctions que vous exercez actuellement?
R.: Les fonctions que j'exerce actuellement: depuis bientôt trente ans je suis
prêtre catholique,et depuis une quinzaine d'annéesje suis égalementinfirmier.
Pour préciser,depuis deux ans je suis professeur dans une écolequi forme des
infirmières etdes infirmiers.
(S.:Quand avez-vous étéordonnéprëtre de l'églisecatholique?
R,: En 1956 à Orléans.
Q.: Vous avez aussi des diplônies d'infirmier?
R.: Oui. J'ai le diplôme d'infirmier que j'ai passéd'abord en Argentine?
ensuite. en Argentine aussi, j'ai passé lalicence de soins infirmiers. Ensuite j'ai
passé enFrance lediplôme d'infirmier et ensuite fait l'écoledescadres infirmiers.
Q.: Pourriez-vous indiquer à la Cour? Monsieur l'abbé,ce que vous avez fait
après votre ordination?
R.: Après mon ordination, j'ai étédans un coHègecatholique de la ville
d'Orléans.
Q. :Et combien de temps êtes-vousrestédans cette institution religieuse?
R.: J'y suis resté neufans.
Q. :Et qu'avez-vous fait apres Orléans?
R.: Ce que j'ai fait aussitôt apres ces neuf ans?Ce n'est pas i Orléans,c'est EVIDENCEOF FATHERLOISON 81
a Lyon. Je suis parti un an faire une sorte de stage - année passéedans la
sociétédes prêtresdu Prado, C'est un groupe de prêtres.Je suis du clergé séculier,
mais à l'intérieur du clergéséculier il y a certaines familles au point de vue
affinités,et moi j'appartiens à la société desprêtresdu Prado. C'est une famille
sacerdotale qui est plutôt orientée vers les milieux plus défavorisés,vers les
milieux pauvres.
Q. :Après ce séjourpassé iiLyon, qu'avez-vous fait?
R.i Aprèsce séjour-la,je suis parti en Amérique latine,en Argentine.
Q. :Quellessont lesraisons qui vous ont poussé à vous expatrier en Argentine'?
R.: Les raisons? C'est un peu long. J'üvais déji 35-36 ans, j'avais donc dix
ans de sacerdoce et j'étaisassez attiré par cette phrase de I'Evangile, ce texte de
saint Matthieu au chapitre 25,qui dit que nous serons jugéssur l'amour, l'amour
que nous aurons les uns envers les autres. 11y a une phrase qui dit: J'ai eu
faim, vous m'avezdonné à manger. )>C'est Jésusqui dit cela :«J'étaismalade et
vous vous êtes occupésde moi. J'étais prisonnieret vous êtesvenus me visiter. >)
J'ai étéattiré par cette phrase-la et je me suis dit: «Cela fait dé$ dix ans que je
suis prêtre etj'ai beaucoup parlémais peu agi. ))A ce mêmemoment j'étaisdans
un collège.comme je l'ai dit, et mes élèvesme disaient :«Ah, vous nous parlez
toujours du tiers monde, vous nous parlez toujours des pays sous-développés,
mais pourquoi vous n'y allez pas vous-même?» Alors, cela a étépour moi
comme une incitation : «ce que je pense déji est dans I'Evangile; c'est la même
chose. Mes élèvesme voient partir. Pourquoi ne mettrais-je pas en pratique ce
que je pense?» Dans les mêmesmoments, le pape Jean XXllI avait demandé
qu'il y ait des prêtres occidentauxd'Italie. d'Espagne, de France qui partent en
Amérique latinepour aider le clergéqui était insuffisant. Je me souviens tres bien
avoir vu dans lejournal La Croi.~cet appel de Jean XXIll; je suis allé quelques
heures plus tard voir mon évêque,l'évêque d'Orléans, et je lui ai dit: ((C'est
comme vous voulez. Si vous voulez répondre B cet appel de Jean XXITI, si vous
voulez envoyer des prêtresen Amérique latine,je suis volontaire.)) It m'a dit:
<(D'accord.dans deux anst à cette époque-lit,je vous y enverrai. »
Q.: Y avait-il des raisons particulières pour que vous alliez en Amériquelatine,
d'une part. et en Argentine plus particulièrement'?
R.: En Amérique latine. C'est simplement parce que le pape Jean XXIll le
demandait. EnArgentine !J'étais volontairepour n'importe quel pays d'Amérique
latine et c'est mon évëque qui m'a dit: ((C'est bien de partir mais il faut aussi
penser au côté humain. Ce ne serait pas normal que vous partiez dans n'importe
quel pays. II y a déjà un prêtrede votre diocèse qui est, depuis deux ans, en
Argentine. Ce serait mieux d'aller faire équipe avec lui.» Et c'est pourquoi cela
a étél'Argentine.
Q.: Monsieur l'abbéc,ombien de temps êtes-vousresté enArgentine et qu'avez-
vous fait pendant cette période?
R.: J'y suis resté dix ans. J'étais prêtred'abord dans une pai-oisse de la
banlieue de Buenos Aires. Trèsrapidement, je me suis aperçu que le clergédans
cette banlieue de Buenos Aires, une banlieue où tout le monde était baptisé mais
oii il y avait beaucoup de déchristiiinisation,étaittres coupé decette population.
Je suis allé voir l'évêqued'Avellaneda, dans la banlieue mêmede Buenos Aires,
et lui ai demandé lapermission d'apprendre un métierpour pouvoir m'approcher
davantage des gens. 11m'a dit: «Oui, si vous le voulez. > ,e suis alléalors li
l'université de Buenos Aires où j'ai passéle diplôme d'infirmier. Après avoir
obtenu le diplôme d'infirmier,j'ai continuéd'être pretre dans une paroisse et, en
mêmetemps, je travaillais de sept heures du matin jusqu'à deux heures de I'après-82 MILITARY AND PARAMILITARY ACTIVITIES
midi. J'étaisinfirmier dans un hopital de Buenos Aires. L'après-midi j'allaisa la
paroisse, de mêmeque pendant lesjours où je ne travaillais pas.
Q.: Vous nous avez dit que vous étiez restédix ans en Argentine, quand avez-
vous quittéce pays?
R.: J'ai quittéle pays à la fin du mois de février1976.
Q.: Pour quelle raison?
R.: Parce que mon père t'taitgravement malade, mais ilhut dire que mon
pèren'avait jamais été d'accordpour que je parte en Amérique latine. IIm'avait
dit: «Tu ne serasjamais la'je suis sûr que tu ne seras pas là pour mes derniers
moments)), alors je me suis dit que je voulais absolument être là au moment où
la maladie pourrait s'aggraver. Aussi quand ma famille m'a téléphonéet m'a
demandéde revenir, ou tout au moins m'a proposéde revenir, j'ai dit oui tout
de suite. Malheureusement je suis arrivé quelques heures après sa mort. Et puis,
les prêtres françaisqui partaient en Amérique latine avaient descontrats de cinq
ans, et pour moi ça faisait dix ans, donc j'étais à la fin du deuxièmecontrat de
cinq ans et, iiquelques mois prés,c'était l'époque iilaquelle je devais revenir.
Q.: Donc vous êtesresté enFrance?
R.: Oui, je suis reste en France.
Q.: Combien de temps êtes-vous restéen France après votre retour
d'Argentine ?
R.: Aprèsmon retour d'Argentine, je suis restésept ans en +'rance.
Q.: Bien, qu'avez-vous fait pendant cette période de sept années que vous
avez passée enFrance?
R.: Exactement la mêmechose qu'en Argentine, c'est-à-dire que j'étaisprêtre
dans une paroisse, la paroisse de Briare ii 70 kilomètres i l'est d'Orléans, et
j'allais cinq jours par semaine, huit heures par jour à l'hôpital de Gien, ri
10 kilomètresde li, ou j'étais infirmier.
Q.: Bien, vous avez de nouveau quittéla Fraiice après sept ans. Où vous êtes-
vous installé?
R.: Je me suis installéau Nicaragua.
Q.: Pourquoi avez-vous choisi le Nicaragua'?
R.: C'est parce que j'étaisen France quand est revenu un prêtrede Blois que
je connaissais. un pretre qui revenait du Nicaragua où il travaillait; il étaiti ce
moment-là en vacances et c'est comme cela que je l'ai rencontré. II m'a dit:
«Après une expériencede dix ans en Amérique latine,comment toi qui es prêtre
et infirmier, qui as des diplômes. comment! tu vas rester en France alors que tu
sais bien qu'en Europe il n'y a pas tellement de besoins, pendant qu'en Amérique
latine il y a beaucoup de besoins?et moi, qui suis au Nicaragua, je peux t'affirmer
qu'on a besoin de cadreset certainement de cadres infirmiers dans ta profession. »
Alors à ce moment-là. j'ai dit: <<Jevais voir. O C'étaiten février.Je n'ai pas
donné de réponse,je n'avais pas de réponse riIiidonner mais je lui ai dit qu'au
mois d'aoùt. pendant mes vacances, j'iraiau Nicaragua pendant trois semaines
pour voir si ça vaut le coup, pour tâter un peu le terriiin, je n'avais pas envie de
m'embarquer comme ça i l'aveuglette. Alors c'est comme ça que j'ai passé trois
semaines au Nicaragua au mois d'août 1982.
Q. :Lorsque vous êtes partiau Nicaragua était-ceavec l'accord des autorités
ecclésiastiquesfrançaises?
R.: Bien sûr, oui. J'avais l'accord de mon évêque, MonseigneurPicündet,
l'évêqua ectuel d'Orléans.J'avais l'accord ausside mes supérieurset de mes amis
de la sociétédes prêtresdu Prado de Lyon. J'avais également l'accord de
Monseigneur Deroubaix, l'actuel évêque de Saint-Denis prèsde Paris, et c'est lui EVIDENCEOF FATHCRLOISON 83
qui est le déléguéde la conférence épiscopale françaisepour tous les prêtreset
toutes les religieusesqui travaillent en Amériquelatine.
Q. : Monsieur l'abbé, appartenez-vous ii une organisation politique?
R. :Non.
Q.: Monsieur l'abbé,lorsque vous ètes parti au Nicaragua, à quel endroit
vous êtes-vousprécisémentfixédans ce pays'?
R. :Je me suis fix éLa Trinidad, c'est une petite ville i 25 kilomètresd'Esteli.
M. PELLET: Peut-êtreque le plus commode serait que vous indiquiez ii la
Cour où se trouve Esteli; sur la carte qui est derrière vous.
Père LOISON: Là c'est tout le Nicaragua; ici c'est la capitale Managua;
Esteli est ici sur la route de Managua à Esteli,ri25 kilomètresavant d'y arriver
se trouve La Trinidad, ici.
Q. :Pourquoi vous êtes-vous fixédans cette ville de La Trinidad?
R. :C'est tout simplement parce que j'y avais passétrois semaines en 1982,au
mois d'août. Pendant que je parcourais le pays, je suis alléà Esteli et comme
j'étais infirmier je me suis rendu iila DASS, commeiit dire, le ministère de la
santéau point de vue régional,et làj'ai rencontréla responsable infirmièrepour
toute la région. Ellem'a dit un peu la mêmechose que mon ami que j'avais vu
un an auparavant ou quelques mois auparavant: «IIy a des gens comme vous,
vous avez la licence en Argentine, vous ètesen train de ?dire l'écoledes cadres
en France, eh bien, ce serait dommage que vous ne reveniez pas ici dans cette
région ! A La Trinidad il y a une écolequi forme des infirmiers et infirmièresdits
universitaires et donc votre place est tout fait 1i.n Alors cela m'a fait réfléchir,
et puis je luiai dit oui. Après je suis parti en France pendant un an mais je me
suis préparé à cette fonction à laquelle j'étaisdestiné.
Q. :Pourriez-vous décrire iila Cour les activitésqui sont les vôtres à l'heure
actuelle au Nicaragua '!
R.: Je suis donc dans une école ri La Trinidad qui forme des infirmièreset des
infirmiers. Je donne des cours théoriques. si on peut dire, j'enseigne l'anatomie,
1;iphysiologie, la nutrition, la pharmacologie: ça c'est la partie théorique. Au
point de vue pratique, je vais aussi I'hopital, qui est touA côté,pour m'occuper
des élèves.Je ne soigne pas directement, si, un petit peu si vous voulez, mais
principalement mon rôle c'est de former les élèveset donc plutôt de faire soigner
que de soigner.
Q.: Combien d'étudiants formez-vous chaque année'?
R : Je n1'occupecette annéedes ((premièreannée)),ils sont entre vingt et vin@-
cinq. Je m'occupe de la théorieet de la pratique pour les premièreannée et, pour
Icsdeuxièmeannée,un groupe de vingt-cinqenviron, siniplementde la théorie.
Q.: L'écoled'infirmiers dans laquelle vous exercez est rattachée i un hôpital,
pourriez-vous nous indiquer quelle est la nature des soins qui sont dispensés
dans cet hopita1 et le genre de patients que vous êtesamené à soigner?
R : C'est un hbpital chirurgical. Donc, ce sont tous des patients qui ont besoin
d'être opéres. Ou tout au moins qui sont opérables. Je crois qu'on y voit des
opérations d'appendicite ou de vésicule biliaire, si vous voulez. toutes les
opérations banales. Et puis toutes les opérations qui relèvent de la guerre, alors
là, je pourrais citer des cas infinis?des cas d'amputation, par exemple des mains,
des jambes; la michoire éclatée;aussi, il n'y a pas très longtemps, un monsieur
qui avait les testicules éclatés; unedame dont on voyait tout l'abdomen et qui
était enceinte d'un certain nombre de semaines et j'ai vu l'enfant déchiqueté.
Alors ce sont des blessures de guerre sur ce genre de patients; il faudrait ajouter84 MILITARYAND PARAMILITARYACTlVITIES
aussi que ce genre de patients ce sont tous ceux qui n'ont rien à voir avec la
guerre mais il y a aussi tous ceux qui ont à voir quelque chose avec la guerre, li
je pense aux militaires, aux civils qui défendent leur coopérative, leurlieu de
travail. Je croismêmeque ce sont les plus touchés,les plus viséspar la çontre-
révolution. Et puis, il y a aussi tous ceux qui sont sans défense.Je me souviens,
ily a quinze jours (je suis sûr qu'elle est encore a l'hôpital), d'une petite Martha
de sept ans qui a reçu une balle dans le coude gauche. Je pense aussi iiMaria
Lucia, une petite fillede cinq ans: la pauvre étaità l'hôpital avec sa mère;je me
souviens que mes élèvesavaient fait la quêtepour cette petite Maria Lucia et
pour sa mère,qui avait perdu ses quatre frèreset sŒursqui avaient ététuésdans
une attaque ti San Gregorio i 20 kilomètresde Quilali. Si vous voulez, Esteli est
ici et j'ai eu l'occasion de parcourir la régionqui est la, a I'est et au nord-est
d'Esteli. C'est dans cette régionque la petite Maria Lucia a étéblessée.Je me
souviens aussi d'une dame d'une quarantaine d'années, du côté d'ocotal: elle
marchait dans un chemin et quelqu'un a sautésur une mine, et elle-même,qui
étaità quelques mètresde la, a reçu des éclatsd'obus sur tout le côtégauche du
corps et dans la vessie; je me souviens l'avoir soignée.
Q.: Monsieur l'abbé,en dehors de votre travail d'infirmier, d'une part, et de
professeur, d'autre part, avez-voiis l'occasion de vous déplacerdans la régionde
La Trinidad?
R.: Oui, je me suis déplacédans la régionde La Trinidad.
Q.: En quelles occasions ?
R.: j'habite La Trinidad et je connais un peu les alentours de La Trinidad. Je
gravis la montagne de temps en temps. J'aime bien le sport et il y a quelques
communautés qui sont là, toutà côtéde La Trinidad. Mais je suis alléà Ocotal
aussi. Et a Esteli- j'habite Esteli , le samedi et le dimanche, je vais voir des
amis. Autour d'Esteli,j'ai eu l'occasion de voyager. comme autour de La Trinidad
et un peu plus loin, ici,a Ocotal, j'ai passétoute une semaine avec un prêtrede
mes amis, je l'aidais. Et puis dans cette région,ici. du côtéde San Juan del Rio
Coco, j'ai passéplusieurs semaines à la cueillette du café.Et plus loin, ici, la
régionde Quilali est la régiondans laquelle je suis alléplusieurs fois parce qu'au
Nicaragua il y a des campagnes de vaccination trois fois par an et, comme je
suis au Nicaragua depuis deux ans, j'ai participé six fois a des campagnes de
vaccination; chaque fois nous partons avec les élèvespendant deux ou trois
jours. Six fois donc,je suis allédeux ou trois jours dans toute Iü régiondlEsteli,
en particulier dans la régionde Quilaii que, finalement,je commence à connaître.
Q. :Bien. Cette régionque vous commencez a connaître, auriez-vous, Mon-
sieur I'abbé.l'obligeance d'indiquer à la Cour quelles sont ses caractéristiques
du point de vue a la fois géographique, économique et en ce qui concerne son
peuplement ?
R : Oui. D'un point de vue géographique,c'est une rkgion montagneuse, avec
de belles vallées.Mais il faut dire aussi que ç'est une région,comme on peut le
voir sur la carte, tout près du Honduras. J'ai calculéplusieurs fois: Esteli est a
peu près à 50 kilomètres du Honduras à vol d'oiseau ; par la route, elle esii80
ou 90 kilomètres. Maintenant, d'un point de vue économique, un peu avant
d'arriver à Ocotal, ç'est la plaine de Sébaco,une plaine trèsfertile ou l'on cultive
du riz. A partir de La Trinidad, et plus au nord a Esteli, et à l'est, on trouve de
belles cultures de maïs. des cultures de haricots rouges; à l'est, dans la région
d'Est&, beaucoup de cultures de pommes de terre aussi. Puis, surtout, comme
je l'ai évoquétout à l'heure, on trouve dans le nord beaucoup de café:c'est une
régionimportante pour la culture du café. II y a aussi beaucoup de bétail. EVlDENCE OF FATHER LOISON 85
Q. : En ce qui concerne le peuplement?
R. : La ville où j'habite, La Trinidad, compte 8000 habitants environ, un peu
comme la ville de Quilali que j'ai citée.La ville d'ocotal, peut-être20000
habitants, et la capitale,steli, 40000 habitants environ. II faut parler aussi des
paysans. Une partie est dispersée. mais,depuis quelques années,une autre partie
est regroupée car.à cause de toutes les incursions de la contra, le gouvernement
a voulu les protéger. Il y a donc maintenant un certain nombre de paysans
regroupésdans des petits villages.
Q.: Monsieur I'abbé, pourriez-vous décrire cette zonecomme une zone
d'opérations descnnirus?
R. :Du côtéde La Trinidad, je ne peux pas dire que le danger est permanent
ni dans la villemêmed'Esteli,mais a I'estd'Esteliet au nord, c'est unezone qui
est pour ainsi dire une zone permanente de danger.
Q. :Monsieur l'abbé, pensez-vouê s treen mesure de répondre a des questions
concernant les méthodesde combat de la contru?
R. :Oui, j'ai certains élémentsqui me permettent de répondre.
Q. : Quels sont ces élémentsou plus précisémenq t uelle connaissance avez-
vous de ces méthodes?
R.: J'ai des connaissances par les blessures que je vois tous lesjours. Par les
blessésqui me racontent un peu ce que sont ces méthodes. Et aussi par les
réfugiés.II y a un mois et demi environ, il y avait des réfugiés a Llano Largo,
une petite communauté I'estde La Trinidad; il y a eu aussi quatre-vingts ou
une centaine de réfugiés à l'écolede La Trinidad, que j'ai vus et avec lesquels
j'ai parlé.Moi-même,comme je vous l'ai dit?j'ai parcouru la régionet j'ai pu
voir beaucoup de destructions.
Q. :Monsieur I'abbé,a partir deceséléments, pourriez-voud sécrire l'intention
de la Cour ce que vous savez de ces méthodesde combat des contrlis?
R.: Je dirais d'abord qu'ils ne recherchent jamais l'affrontement. C'est une
caractéristique.Je crois que tous ceux qui ont eu ricombattre contre les contras
disent tous qu'ils attaquent, mais toujours par surprise et en essayant de ne
jamais avoir d'affrontements. Ensuite, je dirais qu'ils tâchent de brüler et de
détruire et ils sont toujours en surnombre. Chaque fois que l'on parle avec
quelqu'un d'une coopérative,il nous dit qu'ils sont arrivés deux centsou trois
cents alors qu'eux n'étaientque quinze ou vingt. Je me souviens, a côté de
Quilali, dans une petite coopérative,ils m'ont dit: <<nousétionsneuf membres
mais cinq étaientmobilisés,donc nous n'étionsque quatre. Ils sont venus à deux
au trois cents. Ils nous ont attaquésen pleine nuit. 0
Q.: Précisonsune chose en ce qui concerne ces méthodes.Avez-vousconstaté
ou avez-vous entendu dire que les corttros ont fait porter leurs attaques sur des
populations civiles?
R.: Oui. J'aurais plusieurs exemples raconter. A côté de Quilali, a une
trentaine de kilomètres I'estde Quilali, il y avait un petit villagequi s'appelait
El Coco. Les conrrus sont arrivés,ils ont toutravagé, tout détruit,tout brûlé. Ils
sont arrivésdans une petite maison et l'ont mitrailléesans faire attention s'il y
avait des gens i l'intérieur.Deux enfants qui, par peur, s'étaientcachéssous un
lit ont étéatteints. Je pourrais dire la mêmechose d'un homme et d'une femme
qui ont étéatteints dans la petite coopérativedeZacarias Olivas, La mémechose.
Ils s'étaient misau lit aussi par peur. A la dimerencede El Coco, les c0ntru.s
venaient d'attaquer, de soutenir un combat et ils étaienten fuite. Etant en fuite,
ils sont entrésdans une maison et, voyant que des gens étaientlà, ils ont lancé
une grenade. L'homme et la femme sont morts et un des enfants a étéblessé.86 MILITARY AND PARAMILITARYACTIVITIES
Tout près de 1i - c'étaiii Panali-, je me souviens encore, deux personnes
différentesm'ont ditque: «Li ici dans le petit village, il y avait un invalide. En
passant par là, ils I'ont tué.» Je me souviens avoir demandé, mais pourquoi?
({Simplement, par plaisir. J'ai parléaussi avec José Francisco. C'est quelqu'un
qui a étéséquestrépendant six mois. II m'a dit qu'il vu deux femmes avoir été
égorgées devant lui. Ces deux femmes avaient étévioléeset après, les i:ontrus
leur ont dit: ((Maintenant qu'allez-vous dirY Vous allez dire que nous sommes
des méchants.vous allez nous dénoncer.Pour que vous n'ayez pas Pparler, on
va vous égorger. » Elles ont dit: ((Non. De grsce. ne nous tuez pas! » A ce
moment-là, ils leur ont mis un torchon sur la bouche, ils ont pris un grand
couteau et ils les ontgorgées.Je dirais que c'est lecrime systématique.Tout à
l'heure, j'évoquaistous les gens qui défendent leurs coopératives,ce sont ceux-là
qui sont souvent la cible des attaques. Je pense aussi à celui qui avait des
fonctions d'ambulancier a Telpaneca. C'est un petit villageA une trentaine de
kilomètres de San Juan del Rio Coco. Là, il y avait un monsieur qui faisait
fonction d'ambulancier. C'était un vendredi. le jour où arrivaient les élèvesde
mon école pour aider aux vaccinations. Ce jour-la. ils sont arrivés avec la
nouvelle que celui qui faisait fonction d'ambulancier avait été tuédans une
embuscade. Au moment de I'embuscade, tous les brigadistes ont sautédu camion
et lechauneur a dit: «Non. La voiture est à mon frère. Moi je reste dans la
voiture et vais discuter avec eux.II n'y a pas eu moyen de discuter. Au moment
où lescontras sont arrivés,ils I'ont tué.
Q.: Monsieur l'abbé,vous avez largement anticipé sur la question suivante
que je pensais vous poser. Avez-vous constatéou avez-vous entendu dire que les
conlrus pratiquent la torture ou infligent des mutilations?
R.: Je l'ai entendu dire plus que je l'ai vu. Quand les cnntrus torturent, en
généralils achèvent leursvictimes; mais elles se déduisent facilement quand on
retrouve des clidavres. Par exemple, le cadavre de José Elias Gutierrez qui
habitait Los Carbonales. tout a côté deLa Trinidad. On l'a retrouvé avec surle
cou des marques de strangulation, avec la poitrine complément broyée. 11y avait
certains os qui étaient également broyés.C'est assez souvent que j'ai entendu
parler de gens qui avaient les yeux crevés?arrachés a la baïonnette. et je crois
surtout de préférencepour tous ceux qui participent de près ou de loin au
processus de la révolution.Jepense i un étudiant en médecinede Leon qui était
dans le petit village d'El Coco, que j'ai citétout l'heure, eà qui on a coupé
les deux bras et arrachéLesyeux. Je penseà Julio Tercero, c'étaitun employéde
la radio Segoviai Ocotal. Le dimanche où ils sont entrés Ocotal, ils ont voulu
détruirela radioetl en entrant dans la pièceoù se trouvait Julio Tercero. ils I'ont
pris. lui ont arraché les yeux. lui ont ouvert le ventre et les intestins en sont
sortis. J'aimeune photo à la disposition de la Cour où l'on voitJulio Tercero
calcinémais on voit les intestins qui sont sortis. Les gens sont achevés.Camilo
Garcia est un ami infirmier que je connais, il a eu de la chance parce qu'il n'est
restédans leurs mains que quelques heures. C'était le jour de l'attaque de La
Trinidad et, comme les contras avaient attaqué par surprise, ils croyaient parler
avec un membre de l'arméenicaraguayenne. Les conrrus I'ont abordé et lui
croyait que c'étaitdes soldats de l'armée nicaraguayenne. Ils lui ont dit: «Toi,
tu es un petit chien. (Au Nicaragua. il y a une expression sympathique pour
désignerles militaires, pour désignerceux qui défendentle pays. On les appelle
les petits chiens de Sandino>).)Les gens de la cvntm l'ont abordé et lui ont d:t
«Mais tu n'as pas affaire un petit chien de Sandino, tu as &#dire I un petit
chien de Reagan. » A ce moment-là. ils lui ont envoyéun bon coup de poing
dans le ventre au point qu'il esttombé iterre. Après, ils lui ont dit: ((Qu'est-ce EVIDENCE OF FATHER LOISON 87
que tu fais?» Il a répondu qu'il étaitinfirmier. A ce moment-là, ils ont pris les
deux canons de fusil et les lui ont collésici. II a encore desbrUlures un mois et
demi après. Je suis sùr qu'à cette heure-ciil a encore tout le cou brûlé.
Q. :Bien, Monsieur l'abbé,avant de continuer cette énumération,avez-vous
constaté ou avez-vous entendu dire que les contms enlèvent ou séquestrent des
personnes dans les zones dans lesquelles ils opèrent?
R.: Je dirais que les séquestres sontune des raisons pour lesquelles une partie
des paysans sont regroupés. Si vous voulez, ici, se trouve Quilali. De Quilalia
Wiwili, dans cette région-là,au nord, il ne reste pratiquement plus de paysans
en âge de porter les armes parce qu'ils ont tous étéséquestrés.Je me souviens
aussi de Avelino Lopez, avec qui j'ai parlé il n'y a pas très longtemps, qui est
resté ligotépendant vingt-quatre heures; de Camilo Garcia que j'ai déji cité. Je
pourrais parler aussi de voyageurs qui, le jour de l'attaque de La Trinidad,
partaient en bus pour le Guatemala ou le Mexique. Ce bus a étébrûlé. Les
contrasI'ont arrêté pendantl'attaque, I'ont brûlé;les gens sont descendus et ont
étéemmenés, mais grâcea l'arrivéede l'aviation sandiniste, ils ont pu s'échapper.
Je pense aussi cette jeune fille qui vivaitLa Vigia, une petite communauté a
côté deQuilali, que j'ai rencontrée à l'occasion de mon activité professionnelle.
Elleavait étéenlevéependant sixmois et estrevenueavec une maladie vénérienne;
elle expliquait comment elle avait servi de prostituée pendant ces six mois. Je
pense aussi a José Francisco, du côtéde La Venecia, pas très loin de Condega,
au nord-est d'Esteli. Ce jeune garçon de dix-sept ans a été séquestré pendant
égalementcinq ou six mois au Honduras et il me racontait qu'il est resté avec
les deux mains attachées derriérele dos. Mêmepour faire ses besoins physiolo-
giques, il avait les mains attachées, il n'a jamais pu prendre de bain.IIavait vu
au Honduras des femmes d'un certain 5ge et des enfants et les contrasdisaient
que ces gens-la ne serventa rien et qu'il valait mieuxles envoyer dans des centres
de réfugiés.II avait vu, dans les premières heures de sa séquestration, le viol de
deux jeunes filles qui ont étéégorgées. Il disait aussi qu'il avait des amis au
Honduras, mais on n'avait pas confiance en lui car on pensait qu'il allait
s'échapper.Il y avait cinq Nord-Américains qui entraînaient lesautres personnes,
niais pas lui car il n'étaitpas de confiance. J'ai a la disposition de la Cour le
récitsur cassette de ces sixmois passés au Honduras. On est aussi sans nouvelles
des frèresRugama de la régionde Quibuto. Ils ont étéséquestréset leurs parents
n'ont aucune nouvelle depuis plusieurs mois. Chaque fois que I'on vadans un
de ces villages de réfugiésou que I'on parle à des gens qui font partie de
coopérativesou qui ont étéattaqués, ils nous disent que chaque fois il y a des
niorts, des blesséset des séquestrés. C'estsystématique. Je me souviens encore
niaintenant de Luis Siles, que j'ai rencontréti San Bartolo, et qui m'a dit qu'il a
étéséquestré,mais, s'étantéchappé,ils ont voulu se venger: ils ont enlevésa fille
de quinze ans. A El Jobo, a côtéde Quilali, il y a deux jeunes filles d'à peine
quatorze ans qui ont étéséquestréesil y a quelques semaines.
Q.: Monsieur l'abbé,répondant à ma question sur les méthodesde la contra,
vous avez donné un certain nombre d'indications, avez-vous constaté ou avez-
vous entendu dire que l'arméenicaraguayenne pratique les mêmesméthodes?
R. : Non, et ce serait surprenant de la part d'un gouvernement qui, dans ses
premières décisions,a supprimé la peine de mort. Je vois mal comment un
gouvernement pourrait après cela ordonner à ses soldats de pratiquer les mêmes
méthodes. Je croisqu'il y aurait comme une contradiction.
Q.: Vous croyez ou vous savez?
R : Je ne connais pas de cas de ce genre.88 MILITARY AND PARAMILITARYACTIVITIES
Q. : Merci. Vousavez évoquétout a l'heure l'attaque de La Trinidad, est-ce
que vous pourriez indiquer à la Cour dans quelles conditions s'est faite cette
attaque et à quel moment?
R. : Le 1" août 1985, ily a un mois et demi tout juste. C'étaità cinq heures
du matin, il faisait encore peinejour, et les contrusétaientdéguisés en soldats
de l'arméesandiniste. Il était impossible de reconnaître qui était qui. lis ont
attaqué mais d'une manière sélective. Ilsont voulu attaquer le centre de santé
qu'ilsont manquéen partie, et ils ont aussi attaquél'endroit où se trouvaient les
responsables sandinistes. Plusieurs personnes a La Trinidad m'ont dit qu'ils
demandaient des noms précis,par exemple le responsable du front sandiniste
pour La Trinidad. Ils ont demandéle nom du responsable des présidentsde
quartier et ils l'ont obtenu. H se rendaità son bureau lorsqu'il aététué. Ils
recherchaient aussi le curé deLa Trinidad. Pendant ce temps, ils ont brûléle bus
d'évangélistesqui se rendaient au Guatemala comme je l'ai déjàdit et ils ont
attaquéavec une roquette (j'ai une photographie que je tiens à la disposition de
la Cour) un grand silo iimaïs qui est maintenant éventréP. uis tout le silo a pris
feu, détruisantun petit moteur de ventilation et un hangar où étaient entreposés
des haricots rouges. Je ne crois pas que ce soit utile à la Cour mais, si elle le
désire,j'ai des haricots rouges calcinàssa disposition ainsi que des sacs brûlés.
Q. : Monsieur l'abbé,repartons en arrière dans les questions que je vous ai
posées.Répondant à l'une de mes premières questions, vous avez indiquéque
vous avez étéamené zieffectuer de très nombreux déplacementsdans la région
de La Trinidad et d'Esteli, pourriez-vous indiquer brièvement à la Cour ce que
vous avez constaté a ces occasions?
R :J'ai constatédes spectaclesqui m'ont souvent ému.Je commence par celui
qui m'a peut-êtrele plus ému parce que j'y avais vécuune des plus belles
expériencesde ma vie au Nicaragua, c'étaitlorsque j'avais fait la cueillette du
café.Je suis retournéa La Ilusion, c'est a côtéde San Juan del Rio Coco, et j'ai
vu que toute l'exploitation decaféavait étédétruite.Cela m'a fàit mal au cŒur.
Mal au cŒuraussi d'apprendre que, lejour du le'janvier, nous avions fait une
petite célébration liturgiquedans la maison d'un paysan qui avait joué de la
guitare au cours de cet office. J'aiappris qu'il avait été tuéIl faudrait parler
égalementdu spectacle hallucinant d'El Coco que j'ai évoquétout l'heure
quand je suis arrivésur cette plaine. II restait quelques maisons sur le côté.Au
milieu c'était uneplaine où il ne restait simplement debout que les latrines et
puis deux tracteurs complètementcalcinés.Je crois que c'est un souvenir qui est
ineffaçable.Puis il y a quelque temps aussà Llano Largo. je crois que c'esttrois
ou quatre jours avant l'attaque de La Trinidad. Ils ont attaqué Llano Largo
(c'est une petite communauté) et là, ils ont brûlél'école, ont brûlél'épicerie
où il y avait les grains, le ravitaillement pour la commune. Je me souviens des
gens qui m'accompagnaient pendant que je regardais le désastre,ils me disaient:
<<Regardez-ça :c'estla maison de Téodoro,c'estun pauvre vieux,on se demande
vraiment pourquoi ils lui ont brûlésa maison !» II faudrait parler de toutes les
coopératives,la coopérative d'El Coco j'en ai parlé maisla coopérative Los
Carbonales, celle de Caulatu, les exploitations de caféd'ocotal, d'oroverde, de
San José,de San Lucas, de Sail jeronimo et puis les réservesde grain. Je crois
que partout, chaque fois qu'ils attaquent une coopérative,ils vont directement
aux réservesde grain, aussi bien à Caulatu, a La Palmera, à Quibuto et puis les
réservesde grain pour la ville,je l'ai dit tout l'heure pour La Trinidad, mais
ils ont fait la même chose à San Juan del Rio Coco, ils ont fait la même chose
aussi à Ocotal. J'ai aussi les photoà la disposition de la Cour au cas oii elle le
désirerait.Puis riPuertas Azules, à côtéd'Esteli, ce n'est pas du maïs mais des EVIDENCE OF FATHER LOISON 89
pommes de terre qu'ils ont détruites. Ils ont égalementdétruitl'écoleet le centre
de santé. Enfin pour étre bien sûr que tout soit détruit, avant de détruire le
centre de santé,ils avaient sorti tous les médicamentsdehors et puis ils les ont
brûlés.Alors vous me demandez ça, mais pour moi, j'ai le souvenir d'un nombre
considérablede tôles tordues, de poutres calcinées,si vous voulez, sans compter
lescamions ou lestracteurs qui ont étévictimesd'embuscades et qui ont étébrûlés.
Q. :Vous avez décrit des faits, Monsieur l'abbé,jusqu'a présent. Est-ceque
pour terminer vous pourriez indiquer quels sont, d'après vous, les effets et fes
objectifs de cet ensemble de pratiques?
R.: On voit tout de suite les effets quand on voit qu'il y a eu des écolesou
des centres de formation pour adultes où des maitres d'écoleont été séquestrés
par exemple, quand ily a des centres de santé,quand ce sont les outils de travail
comme des tracteurs, des camions, tout cela montre déjàdes effets mais je dirais
aussi toute une paralysie des activités. Ainsi,il y a dix jours, quand j'ai pris
l'avion pour venir ici en Europe, j'ai misune heure et demie de plus parce que
le pont qui se trouve à côté de La Trinidad avait été détruitun mois et demi
auparavant, il est reconstruit mais il n'est pas encore assez sec pour que les
véhiculespuissent y passer, alors il y a un misérablepetit chemin de déviationet
il y a des embouteillages, il est donc impossible de passer par là. Et puis dans la
régionde San Juan de Quilali, là aussi, ce n'est pas rentable de passer sur ces
chemins parce qu'on n'a pas le droit de s'y aventurer avant 9 heures du matin,
ni après 3 heures de l'après-midi. Vousrendez-vous compte qu'entre 9 heures du
inatin et 2 ou 3 heures de l'après-midi il n'y a que quelques heures. Dans cette
mémezone de Quilali, de San Bartolo où y a des villages où les enfants, les
paysans sont dispersésdans cette région,il y a des zones où les enfants ne vont
plus à l'école,les gens ne vont plus au centre de santé.Alors tout cela est une
paralysie des activités. Il faudrait aussi parler du nombre de gens qui sont
amputés,ou qui sont invalides pour la vie. Et puis moi, comme professeur aussi,
je voudrais souligner le nombre d'élèvesqui sont marqués psychologiquement.
Je me souviens, un lundi matin, je faisais des reproches des élèvesparce qu'elles
n'avaient pas très bien réussi leurexamen, mais elles m'ont dit: «Nous, nous
étions à Ocotal et nous avons été attaquées: comment vouliez-vous que nous
passions toute notre journée de dimanche A reviser notre examen? C'était
impossible, nous avions peur que les contras reviennent d'un moment à l'autre)>
Puis, je pense aussi, aux conséquences et aux effets psychologiques. Je me
souviens d'une dame a Quibuto qui me disait: «J'ai les nerfs malades, moi,
maintenant n'importe quel bruit me fait peur, m'agace, ainsi que ma famille et
mes voisins. » Alors le nombre de gens marqués par cette guerre est très grand.
Je voudrais signaler aussi le nombre de gens que L'onempêched'agir, je veux
dire que la dissuasion marche bien, dans ce sens, que c'est certainement une
méthodedes contras que d'employer la dissuasion pour que petit à petit tes gens
ne prennent plus autant de responsabilités. Je crois que c'est quelque chose qui
est payant dans le sens négatifsi vous voulez, quand ils tuent, par exemple, les
responsables d'une municipalité.II y a égalementun monsieur qui me disait dans
la région de Panali: ((Moi, ils m'en voulaient parce que je faisais partie
d'organisations et je me suis présentéaux élections)>,alors je crois qu'il y a
dissuasion aussi. «Ils ont détruitma maison parce que j'étaisresponsable d'un
comitéde quartier »,par exemple, un autre me disait cela. Ou, à Puertas Azules
on brûle plus de dix maisons, ensuite les gens dans le secteur n'ont plus envie de
faire partie d'une coopérative. Justement des gens qui étaientà Puertas Azules il
y en avait un qui me disait, un qui était séquestré d'ailleurs:«Nous étionsdix-
sept membres dans cette coopérative et puis maintenant nous ne sommes plus90 MILITAN ANI) PARAMILITARY ACTIVITIES
que trois, nous avons atterri dans une coopérativevoisineet au lieu de dix-sept
nous ne sommes plus que trois, vous voyez, les quatorze autres ont peur et ils
sont dissuadésde participer d'une manièrenouvelle. )Puis,j'évoqueraile climat
deterreur, c'estun climatdeterreurqui esttrèsgrandetpuisqui estcommunicatif.
Comment voulez-vous? Pourquoi à El Coco par exemple, après avoir tué et
mêmevioléune jeune fille, Maria Santos, qui avait seizeans je crois, pourquoi
après avoirFaitcela, ils l'ont coupéeen plusieurs morceauxet ont répanduceux-
ci? Puis un des cas qui m'a fait le plus horreur, j'en suis encore ému. C'étaitu
moment de la cueillettedu café, l'année dernièraeu mois de décembre,il y avait
tout un camion de postiers qui s'en allait à San Juan del Rio Coco pour aller
faire la cueillette du caféet, je ine souviens, a l'intérieur,il y avait plusieurs
postiers que je connaissais, un monsieurqui s'appelait Briones,et une dame qui
étaitla postièrede mon quartier, Carmela Davila, et qui m'avait donnéplusieurs
fois le téléphonepour mes cornniunications téléphoniquesO . n a su, et tout le
monde a étéhorrifiédans la région,que ce petit camion avait étévictimed'une
embuscade; il y avait eu un tir de mortier et le camion n'a pas pu suivre: ily
avait des blesséset peut-être mêm dees morts à l'intérieurde la camionnette. Les
conluas sont montésdans la camionnette, ont arrachécertains vêtements,les
papiers d'identitéet l'argent, et ils ont arroséles gens d'essenceet ceux-ci ont
pris Feu.Je parcourais encore, il n'y a pas trèslongtemps, le chemin ou l'onvoit
ce qui reste du camion calcinéde ces postiers qui ont été brûlévsifs.
Q. : Je vous remercie, Monsieur l'abbé.Monsieur le Président,je n'ai pas
d'autres questions i poser au témoinet je remercietrèsvivementla Cour de son
attention. QUESTIONSPUTTO FATHERLOISONBYJUDGESCHWEBEL
Judge SCHWEBEL: Father, did 1understand you to say that the death pen-
alty had been abolished in Nicaragua?
PèreLOISON: Que la peine de mort étaitabolie au Nicaragua'? Oui. Je crois
que c'est une des premières décisions en1979, mais je ne peux pas vous donner
la date exacte.
Q. : Fiither, in your view does it follow that if the Government proclaims the
abolition of the death penalty it necessarily abstains from killing its opponents
outside of combat? Do you think a proclamation of law equates with practice'?
R. :De tuer ses ennemis au moment d'une guerre, je pense que c'est normal
de se défendre.Je crois que le Gouvernement nicaraguayen a l'intention de se
défendre.Je pense que ça va dans le mêmesens qu'abolir la peine de mort. Ils
tuent mais ce n'est pas pour le plaisir de tuer; je n'aijamais constaté la volonté
de tuer de la part du Gouvernement nicaraguayen. Ce que je sais, c'est qu'ilsont
le seul désirde se défendre desattaques de la contre-révolution.
Q. :Father, 1was not referring to defence in the course of combat but killing
outside of combat. Have you heard of the killings of former members of the
Nationat Giiard who were held in jail after the revolution - have you heard
of that Y
R.: Oui. j'ai entendu dire qu'il y avait d'anciens membres de la garde nationale
qiii ont étédétenus. Je crois qu'il y a des prisonniers dans certaines prisons
nicaraguayennes. II y en a une, que je n'ai pas visitée,iiI'entréed'Esteli, et je
crois qu'il ya des contre-révolutionnaires qui y sont prisonniers.
Q. : Father, 1 was not referring to whether National Guard mernbers were
simply held in prison, but whether they had been killed while having been held
in prison. Such charges were made to the Nicaraguan Permanent Commission
on Human Rights.
R.: A ma connaissance, non. Je n'en ai pas entendu parler. Ça m'étonnerait
beaucoup mais je n'ai pas d'élémentspour répondre.
Q.: Yes. Permit me to read out to you, Father, the following passages from a
book by Miss Shirley Christian, entitled Nicarr~gua : Revolution in tlieFamily.
This book was written by a reporter who spent extended periods of time in
Nicaragua and widely interviewed Nicaraguans of various persuasions.
"The FSLN repeatedly said that it did not plan to take reprisais against
former National Guardsmen and others identified with the old order but
the headquarters of the Permanent Commission for Human Rights was soon
jammed with people concerned about jailed or missing relatives. They, that
is the Government, did not deny al1abuses and generally get high marks in
sympathy internationally for good intentions on human rights. However, a
subsequent report by the Permanent Commission for Human Rights said
executions and disappearancesof people had occurred in significant numbers
from the victory through October 1979. It said at least 43 people were killed
by military or security forces in those early months and that people had
corne to the Commission offices to inform them of the disappearance of92 MILITARYAND PARAMILITARYACTIVIT~ES
more than 600people during the first year - mostly peasants and labourers
from outside the capital."
Sorneallegations of this kind are elaborated iii the followingpages - 1 have
read from page 132 and page 133. 1 might also point out, Father, that the
Director of the Permanent Commissionon Human Kights
"met with PopeJohn Paul II and told himthat Nicaragua had 8,000political
prisoners, mostty former National Guardsmen, and that about 800 people
had disappeared or been killed for political reasons since the Sandinistas
came to power, most in the first few months of the regime" (ibid., p. 281).
Do you have any comment on those allegations?
R.: Monsieur lejuge, ce que j'ai dire c'est que je n'ai pas connaissance de
cas de ce genre mais, mêmesans avoir connaissance,je pense que ce sont tout
d'abord deschiffresqui me paraissent énormes eten tout cas je suis absolument
sûr que le gouvernement lui-mêmn e'ajamais donnéd'ordre dans ce sens-la. Et
que si, par hasard, il y a eu des erreurs, je crois qu'ellesdoivent venir de gens
subalternes, maisje suis sûr qu'il n'y a.eu aucun ordre dans ce sens-là. C'estce
que je crois.
Q.: Father, have you heard of forgé Salazar?Do you know who he was?
R.: Non, je ne connais pas, excusez-moi.
Judge SCHWEBEL: That concludes my questions, Mr. President.
Tlte Coilrt roseal 11.10a.m TWENTY-FIRST PUBLIC SITTING ( 17IX 85, 3.15p.m.)
Present :[Seesitting of 12IX 85.1
EVIDENCEOFMR. HUPER
WITNESS CALLED BY THE GOVERNMENT OF NICARAGUA
Mr. ARGUELLO GOMEZ: 1 would like the Court to cal1our next witness,
Mr. William Huper. 1 shall conduçt the examination myself.
The PRESIDENT: 1 summon Mr. William Huper, the Minister of Finance of
Nicaragua.
Mr. ARGÜELLO GOMEZ: Mr. President, 1would liketo start by requesting
Mr. Huper to read the declaration before him.
Mr. HUPER: 1 solemnly declare upon my honour and conscience that 1will
speak the truth, the whole truth and nothing but the truth.
Q. :Mr. Huper, will you please state your full name'?
A. :My name is William Huper.
Q. :When and where were you born?
A.: 1 was born in Managua, Nicaragua, on 12 October 1949.
Q. :Wiil you please tell the Court where you received your education?
A.: 1have a Bachelor's degree in SocialScience, witha major in History from
the National University of Nicaragua, and later 1went to Graduate School of
I'olitical Economics in Mexico, during which time 1was also a teacher in Eco-
riomics. at the National University.
&.: You are presently the Minister of Finance of the Republic of Nicaragua?
A.: Yes.
Q.: When did you take up this appointment?
A. : In January 1985.
Q.: Would you tell the Court what positions you held previously'!
A. : 1have served continuously since the beginning of the revolution as Vice-
Minister of Finance.
Q.: It is understood that this is up to the time when you were appointed
Minister ?
A. : Yes, until last January.
Q.: Would you describe the precise scope of your responsibilities both as
Minister of Finance and, earlier on, as Vice-Minister?
A. : In doing my duties, 1 am responsible for the planning of fiscalpolicies in
Nicaragua and 1 am also a full member of different Commissions at Cabinet
level in Nicaragua, which are in charge of defining different economic policies
and also are responsible for the making of the annual programme. 1 have also
served as a representative of my country in the World Bank and the International
Monetary Fund meetings and also in diferent meetings at the regionat level in
Central America.94 MILITARY ANL) PARAMILITARY ACTIVITIES
Q.: 1s it correct that your experience and expertise include the problems of
development economics?
A. :Nicaragua is an under-developed country. or as it is conimonly called a
developing country. This means that Nicaragua is a country with a very fragile
infrastructure and a high dependence on the international economic trends. One
of our main goals in our political economic strategy has been to improve the
standard of living of our population through, for example, the construction of
schools, medical posts and another has been to strengthen our economy through
new investments. These are problems directly related to the carrying out of
development economics which, in the case of Nicarügua, has been done in a very
difficult context due to the aggression.
Q.: Could you please outline the nature of the economic damage which has
been caused by the military and paramilitary operations against Nicaragua?
A.: Military and paramilitüry operations in and against Nicaragua have
aficted everything; from human life to schools; from material damages due to
sabotage to the coffee productiori. The war has affected al1 our economic and
social order in Nicaragua.
Q,: Could you pleasc explain when this economic damage first manifested
itself?
A. : There were some hostile activities against Nicaragua in the last months of
1980,that affected the fishery industry due to the hijücking of boats.
Q.: In what period or periods has the incidence of damage been particularly
severe ?
A. : There have been different times and also different types of damage. The
most severe damage occurred during 1984. During 1984. we estimate that the
overall impact of the war on our econotny rose to an estimated 175per cent of
the total e.xport earnings. During 1984 prodtiction losses due to the war have
been estimated at about 40 per celit of total export income. I think it is important
to indicate that besides this type of economic darnage there is another which is
accumulative. It mearis that there is a bigger impact as tirne goes on. There is
for example economic damage due to the financing of difïerent activities in
Nicaragua, production losses also have an accuniulative impact on the economy
as also do project delays. Al1 of which reduces the standard of living of our
population.
Q.: Going from the general economic damage to more particular type of
damage, could 1ask you to describe the loss of productiori caused by the hostile
activities
A.: In order to dcscribe the losses of production, 1have here with me a report
made by the Economic Commission for Latin America. This is a report whicli
analyses the performance of the Nicaraguan economy in 1984.In tts estimation,
the overall impact between 1981 and 1984due to production losses, is a little
higher than US$300million. This sum is 75 per cent of Our total export earnings
from 1984. For production losses in this report the concept includes losses due
to the inability to collect crops; the inability to process production and ülso
losses due to the inability to develop production projects, or because of delays
in production-related projects.
Q.: To put things in perspective, could you please givethe Court sonle estirnate
or figures as to particular losses in production in coffee production or in any
other type of activity?
A.: For example, during the harvests of 1983-1984 and 1984-1985, coffee
production sufferedlosses totalling US$70 million. This is about 12 per cent of EVIUENCEOF MR. HUPER 95
our total earnings coming from exports during those years. It is also about 35
per cent of Our total export earnings from coffee production, during that period.
Q. : You have been referring to a report by the Economic Commission for
Latin America, would you please explain to the Court the status of that report?
A.: This is a report prepared by a specialized agency of the United Nations
thatis the Economic Commission for Latin America. This Commission provides
assistance to a11Latin American countries and they annually make a report on
each of the Latin American countries. In the case of this note to which I have
referred, itescribes the trends in our economy during the past seven years. They
also evaluated the performance of our economy during 1984and finally reached
some conclusions and made a prognosis for the Nicaraguan economy. ln this
document there is a chapter in which the Commission analysed the impact of
theagression in certain fields of economic activity in Nicaragua.
Q. :1sit the case that theeconomic losscaused includesthe cost of rehabilitating
damaged production units and capital goods generally?
A. :1assume that this refers to damage to capital goods such as trucks, vessels,
bridges. schools, medical posts, production machinery and, let us Say for ex-
ample, the maintenance of roads, and that also includes material damages, for
examplet damages in spare parts and in raw materials that are indispensable for
the processing of production.
Q.: Would you please indicate those costs, at least üpproximately. if possible?
A.: In this report we have an estimated figure of about US$100 million due
to damages to capital goods and rnaterial damages. Perhaps I can give an
example of the impact that this has on our economy. During the four-year period
of which 1 am talking, about 26 boats from our fishing industry have been
damaged. Half of thenl were sunk by mines and the other half were hijacked or
destroyed by fire. It might be important to note that at the present moment Our
total fleet comprises about 50 boats dedicated to fishing activities.
Q.: 1s it the case that the economic loss caused includes the loss of develop-
ment capital '?
A.: Production losses, espeçially those in areas directed towards export. have
a negative impact on our capacity to import, which is also more constrained due
to the fact that indispensable means of production have been destroyed, so we
have to import them. The net result is that we have a lower cash flow in our
balance of payments. which also has an impact on our possibilities of servicing
Our foreign debt.
Q.: 1sit true that the economic loss caused includes the loss of foreign trade
and adverse effects on the balance of payments?
A. : Yes. the figures estimate the impact on foreign trüde and on the balance
of payments. For example, damages to production marked for export totalled
üboiit US$280 million during this period, which means about 70 per cent of our
total earnings from exports during 1984.The war has atso affected other types
of production for export. Nicaragua has a very fragile economic structure, as 1
explained before, and we rely on five or six different commodities to obtain our
earnings from exports. These commodities are coffee, Cotton, meat, sugar, fish
and rnining products, and since the war has had a great impact on fisheries,
rnining, coffeeproduction and cattle raising activities, Ourforeign trade has been
afected very seriously. We have estimated thüt in the absence of war during
1984,our balance of trade would have been improved by at least US$200million.
All these activities have a direct impact on the balance of payments. Q. :Am 1correct in assuming that a significant aspect of the economic damage
has consisted of defence costs?
A. :Yes, that is correct.
Q. :Would you please give an indication of those costs?
A. :Our defence budget as part of Our total budget was about 12 per cent by
1980,and now during this present yearwe estimütethat the defencebudget is going
to be between 38 and 40 per cent of our total budget. This means that while the
defence budget increasesit affectsother activitiesthat are also financed through the
budget. For example, it affects socialprogrammes, development projects and also
the level of consumption of the population, because it has the impact of a big
cornpetition inthe allocation of resources.Many industrial commodities have to be
reallocated from popular consumption to activitiesdirectly related to defence.
For example, 1 remember that during 1983 about 60 per ccnt of the total
production of dry milk was distributed in the Pacific regions of Nicaragua. in
which two-thirds of the population live. But, due to the increase in aggression
that has had an impact on the production of fresh milk in the war areas, we
have had to reduce the quota for the Pacific zones of the country to only 40 per
cent. This hlis had an impact on the consumption level of the population.
Q. :In speaking of defence costs, did your figures include the costs of dealing
with the consequences of the hostile activities for the civilian population?
A. :In some of them, yes, but in most of them, no, because it is difficult for
us to quantify certain effects of the war on the civilian population. It is difficult
Forus to quantify, for example, the impact of several thousand people who have
been killed, or wounded, and the impact this is going to have on Our country,
because many of these people were qualified to do civilianjobs. It is also difficult
to quantify such things as. for example, that in the regions I and 6 - which are
located in the northern part of Nicaragua near the border with Honduras -
there live about eight hundred thousand persons, of whom about two hundred
thousand have been affected in one way or another by the aggression. Many
people have been displaced. and due to the difficulties inthese areas the control
of some epidemic diseases - which had been highly improved in recent years -
cannot go on. There are also several thousand students who cannot go to school
because of the same reasons. Thus. these are the type of costs that affect the
civilian population - such as, for example, the climate of terror that exists in
Nicaragua. which keeps the population under stress al1the time - this is ais0
very difficult to quantify. 1might add to this the necessity of mobilizing several
thousand young people who should be - at this moment - at university.
Q. :You have been givingvarious figures in response to this series of questions.
Would you please explain the methodology upon which those figures have
been based ?
A. : Yes; to establish the economiç cost of the aggression, a central register
has been established in the presidency. This central register collects the infor-
mation and provides monthly reports about the impact of the aggression, which
also include killings, woundings and kidnappings. The seçtoral ministries -
especially those that are in charge of overseeing production activities - through
theirregional delegates estimatc the impact on co-operatives, farms and, let us
say, in production damage. This provides us with a monthly report in which
there is also an effort to estimate the impact that the cumulative cost - to the
end of one month, two months, etc. - is going to have during that year. This
system, this methodology. has been checked and improved by experts from the
Economic Commission for Latin America. The method of doing this is very EVIDENCE OF MR. HUPER 97
similar to the one that is used to estimate the impact of natural phenomena,
such as floods or earthquakes.
Q.: In your opinion, apart from the economic damage to which you have
referred. has the United States caused other types of economic loss to the
Republic of Nicaragua'?
A. :Yes.
Q.: Can you describe the consequences of the economic pressure applied by
the United States that has caused these losses?
A.: 1 might try to give a perspective of this other type of economic damage.
For example, in March 1981 the United States Government decided to suspend
the bilateral aid to Nicaragua: even if this was for loans previously contracted.
This has had an impact of more thnn US$36 million. By May 1983the United
States decided to lower our sugar quota by 90 per cent. Since then the annual
economic impact has been between 15 and 18 million US dollars due to the
preferential systern of prices that sugar has in the market of the United States.
During that time, also,the United StatesGovernment continued to exert pressure
on multilateral institutions to impede our access to loans. We have estimated
that in the absence of this pressure we might have been able to contract more
than 400 million US dollars during these years, of which weestimate that up to
now half of it might have been expended.
There is also an economic impact dile to the sabotage against our fuel storage
tanks in Corinto. The economic impact of destroying twice the oil pipeline-
the only oil pipeline that we have in Nicaragua - and of course there is the
economic damage due to the mining of our ports, which has had the effect of
increasing the freight and the insurance costs. More recently we have to add to
this the commercial embargo that was declared against Nicaragua last May.
Q.: To sum up. would you give the Court an estimate of the overall impact
on the economic development of Nicaragua of the hostile activities of the
United States?
A. :As 1 previously mentioned, Nicaragua is a developing country with iivery
fragile infrastructure, andsince the aggression has affected everything, the overall
impact on the development of my country is really tremendous. There have been
examples of the impact on development, for exarnple the one 1mentioned earlier,
on half of the fleet of vesselsdedicated to fishery activities being damaged by the
war; in countries like ours, the impact that the blowing up of one bridge hiis on
the economy is big because it means that there is no possibility of going through
that road, which is the way of transporting people and commodities. We do
not have different systems or alternative systems of roads for reaching ditrerent
points in Nicaragua. Also the impact on Nicaragua's development has to be seen
from the human side: since the beginning of our revolution we have stated as
one of our main economic goals to increase the standard of living of Our
population and another one was to strengthen the economy through invest-
ment in the agricultural sector which is the pivotal sector for accumulation in
Nicaragua. and since there have been many delays in projects there has been a
lot of damage to human life, in medical posts, in schools, etc., and this is going
to have a tremendous impact in our country that is going to last several long
years after we achieve a solution for the aggression. lt is quite difficult to put
this into figuresbecause it would require a projectioii of what would have been
without the war; however, 1 would like to mention thiit there is a report on
Nicaragua made during the year of 1980and made public during the first quarter
of 1981,that is called the Cfaullriigrof Reconstnictioia .his is a report made by98 MILITARYAND PARAMILITARY ACTIVITlES
the International Bank for Reconstruction and Development (The World Bank)
and 1would tike to mention it because 1 think the World Bank is a prestigious
economic institution which has the ability of making prognoses and it specializes
in matters relating to development. In their projections, the World Bank estimates
that between 1980and 1985the inçrease in production in Nicaragua would have
been 39 per cent instead of the 9 per cent that is the actual authorized ligure.
They also said in this report thlit in the year 1984our exports would have been
US$1.1billion instead of US$428million - that isthe figurepresently authorized.
Also, the World Bank estimates in its projections that between 1981 and 1985
our country was supposed to receive a net flow of more than US$400million
corning from multilateriil institutions; in reality, the net flow during this period
has only been USSI00 million. At the end of this document, the final conclusion
is that the Nicaraguan economy during this period should have risen at a ratc
of 6 per cent annually instead of the 1.5 per cent that is the real annual growth
of our economy.
Q.: One final question, in its Mernorial submitted to the Court, Nicaragua
has claimed the sum of a little more than US$370 million. in respect of certain
categories of direct damages: in your opinion what proportion does this figure
bear to the total economic loss siifïeredby Nicaragua as a result of the hostile
activities of the United States'?
A. : 1think that that figure of USS370 million is rather a small figure for the
overall economic damage to Nicaragua. Several months ago WC established an
inter-ministerial working group to obtain some preliminary figures about the
overalt impact on the economy of the aggression, and our preliminary figures
are about USs1.3 billion. There is also a recently made document about this
same problem by an independent source who specialized in analysing the
economic and social situation incountries of Central America and the Caribbean
region, which concludes that the total losses duc to war are a figure of about
three billion dollars.
Mr. ARGÜELLO GOMEZ: Mr. President. 1 have finished the questions
addressed to Mr. Huper and he remains at the disposa1 of the Court. QUESTIONSPUT TO MR. HUPEHBYJUDGE SCHWEBEL
Judge SCHWEBEL: Mr. Minister, am 1correct in my impression that in the
sumrner of 1979when the revolutionary government took power, the Nicaraguan
economy was in very bad shape, suîlering still from an earthquake and, rnuch
more than that, suffering from very severe fighting that had taken place in the
course of the overthrow of the Sornozas?
A. :Quite right. that is correct.
Q.: It is also the fact that immediately on taking power the Sandinista
Government began a very large-scale military build-up? 1am speaking now of
the period of the lasthalf of 1979and the yertr 1980,is that the fact or is it not
the fact?
A.: Since the Somoias National Guard was properly dismantled and their
members had fled to Honduras there was the necessity of building up a new
army. So this took place immediately after the beginning of the revolution.
Q.: My understanding is that by the end of 1980.sorne six months after the
assumption of power by the revolutionary government, Nicaragua's armed forces
were twice as large as the Somoza National Guard at its height when it was in
full bloom and that the Sandinistas Peoples Army doubled in size again by
the end of 1982. According to the International Institute of Strategic Studies,
Nicaragua's regtilar armed forces in 1977 under Somoza numbered 7,100 men
and 4.000 paramilitary forces. By 1982 the Sandinista armed forces numbered
21,500 and its paramilitary forces 50,000.This is quite a significant build u-
would you not agree - to deal with the remnants of the SomozaNational Guard?
A. : 1 think it isa matter related to a different type of activity than the one 1
am in charge of, and 1prefer not to speculate about military facts or this sort
of thing.
Q.: 1 understand that, but 1understood you to have cited as an element of
the economic trauma or damage which yoiir country had suffered as a result of
c'cmtr~action and United Statessupport of contra action, the large defence forces
that Nicaragua consequently has found itself required to maintain and 1 am
inquiring of you how you can make that statement when the record demonstrates
that very large forces were built up before coiztrcactivity was undertaken and
certainly before the United States did anything substantial in respect of the
contrus, because while you were not in the room, 1 can inform you that your
colleague. Commander Carrion, testified that it was only at the end of 1981that
the contras showed any signs of an infusion of United States assistance. Have
you any comments?
A. : Yes, 1 assume that al1countries need, for national defence purposes, to
have their own arrny and so as 1mentioned before soon after the beginning of
the revolution there was the necessity of building a new arrny in Nicaragua. 1
think 1mentioned previously the fact that in 1980the proportion of the defence
budget was a total of abolit 12per cent of the total Nicaraguan budget and that
due to the agression there was an increase in defence activities which led us to
a situation where the defence budget had to be increased. It is important to100 hlILITARY AND PARAMILITARYACTIVITIES
mention that as far as 1 know, included in this figure are costs of organizing the
population, that is, for defence purposes, for the protection of their own families.
Q.: I have no doubt that Nicaragua's defence forces have been built up very
quickly in recent years,since the end of 1981.1was simply pointing out that, by
the terins of Nicaragua's own analysis and testimony submitted in this case, the
contra action began with United States assistance at the end of 1981and a very
large-scale militarybuild up took place before that time, so presumably it could
not have been in response to "aggression" which had not occurred. Indeed, we
heard a previous witness testify this morning or yesterday that plans were being
discussed for such action in the Fall of 1981,but not that they had been executed
before the winter.
Now, let us pass to another item of economic damages that you have
mentioned, Mr. Minister. If 1understood you correctly, you indicated that you
are of the view that an element of damage - 1 am not sure if this is an element
of claims which Nicaragua makes against the United States, you did not make
that clear- but at any rate an element of damage sustained, is that the United
States cut off aid. That is to Say,it had given Nicaragua under the revolutionary
government some $118 million in aid. It had repeatedly submitted to the
Government of Nicaragua that if it persisted in arming insurgency in El Salvador
that aid would stop. In the view of the United States, aid to the insurgency did
not stop and the aid was çut of with a certain amount of projeçted aid not
dispersed. Do you maintain that Nicaragua has a claim against the United States
for that undelivered aid, that it has some kind of right to that fund?
A.: 1think when 1mentioned the suspension of bilateral aid from the United
States Government it was in the context of some other types of economic
aggression costs to Nicaragua.
Secondiy. 1presume that the decision for the suspension, and the provisional
measures that were taken before, are more related to the Iüst month of the
electorai campaign in the United States than to the fact of this supposed arms
smuggling to El Salvador.
Q.r In that regard 1would recall to you that the representations of the United
States Government about the shipment of arms to the insurgents began under
the Carter Administration, not iinder the current Administration of the United
States. A second item of damage suffered, if 1 understood you correctly, that
you listed, was the lowering of the sugar quota accorded to import ofNicaraguan-
produced sugar into the United States - 1believe you said by 90 per cent. What
is the sugar quota? Can you describe to the Court what this is? It may be that
al1of us rire not familiar with it, as those that live in the western hemisphere
may be.
A. : Our sugar quota to the United States used to be about 58,000 short tons
and it was lowered to 6,000 short tons. Comparing international prices during
1983 and 1984 and the difference of opportunities between selling sugar in the
international market and the preferential prices that are offered in the United
States market gives an estimated loss of between US$15 and US$l8 million
annually.
Q.: And is that an element of the claims of Nicaragua against the United
States, that loss as you described it?
A.: 1also mention this loss in the context of another type of economic impact
due to the aggression against Nicaragua.
Q.: Was there any treaty right of Nicaragua to enjoy a sugar quota, or any
other clairn as a matter of law to the sugar quota, to your knowledge? QUESTIONSPUT BY IUDGE SCHWEBEL 101
A. :No. 1do not know of any.
Q.: Your initial answer is correct. A sugar quota is simply a bonus paid by
the United States tax-payer to protect American producers of sugar, but it is not
a bonus to which any foreign State is entitled as of right.
Let usnow turn to a third itemof economicloss,that of loans which Nicaragua
anticipated receiving from international institutions but maintains it has not
received because of United States opposition to such loans. Viewing this for a
moment now, as 1 will ask you to do, from the perspective of a United States
director Sitting in an international bank, trying to adjudge whether Nicaragua
seemed a good bet for international loans: would y011say he might have reason
to vote against such loans on the ground that Nicaragua was devoting an
enormous proportion of its relatively scarce resources to an unprecedented
military build up and was engaged in a course of foreign policyand action which
led to the most difficultrelations with its immediate neighbours?
A. :More that two yearsago officiaisof the United StatesTreasuryDepartment
made public that the United States was going to oppose any loan that might go
to Nicaragua. There is a recent case of a loan requested from the Inter-American
Development Bank, which was approved by the technical staff of the Bank
before the loan was submitted to the Board of Directors. The Secretary of the
Department of State of the United States, Mr. Shultz, sent a letter to Dr. Antonio
Ortiz Mena, who is the President of the inter-American Development Bank.in
which he said that the loan should not be given to Nicaragua because, amongst
other reasons, this was going to put us in a better economic situation.
Q.: And what were those other reasons that were cited? You said among
other reasons! Mr. Minister. Can you recall them?
A. : Yes, 1 think he mentioned that our interna1 economic policies were not
good, which is something to be said by the technical staff of the Bank, which
stated that the loan was technicallyapproved.
Q,: You were not present during the examination of other witnesses. Let me
summarize for you some facts that will be pertinent to a question 1am about to
askyou, which 1think can be fairlydeduced from the testimony introduced sofitr.
(a) The Nicaraguan Government has been a source of arms for the insurgency
in El Salvador, particularly- possibly exclusively,but certainly particularly-
for the big offensive in1981of the El Salvadoran insurgents.
(6) The leadership of the El Salvadoran insurgents freely operates out of
Managua and elsewherein Nicaragua.
(c) A radio station of the El Salvadoran insurgents has broadcast from
Nicaraguan territory.
(d) The trainingof El Salvadoran insurgents may welltake place in Nicaragua
as well as Cuba.
Now, in any event, whatever may finally be established on the extent of the
support and the nature of the support by the Government of Nicaragua for
insurgency in El Salvador, let us assume for the purposes of this question that
the Nicaraguan Government is or has been significantly involvedin support of
the insurgency in El Salvador since the Sandinistas came to power. Now you,
Sir, have testifiedthat Nicarügua has sufferedsome US$370million in, 1 believe,
direct damages from the degradations of the contra3 and related actions and you
have spoken of other economic damage suffered. If 1 understand the purport of
your testimony and your Government's Memorial correctly, your Government
means to claim reparation from the United States for ;ileast the former category
of damages, should it be established by the Court that the United States is102 MILITARYANI) PARAMILITARYACTlVITIES
responsible under international law. Now, permit me to note that theGovernment
of El Salvador fited a Declaration of Interventiori in this case in which it claims
to have suffered about $1 billion in damages - $800 million as at the end of
1983 - from the activities of the insurgents, which El Salvador claims are
critically and vitally supported by the Government of Nicaragua. Permit me to
read a few sentences from its Declaration (1,p. 455):
"The damage caused to the economy, to our infrastructure and to the
people of our country is immense and very difficult to calculate. The cost in
human lives is alarming. As a result of the insurgency, supported by the
Sandinistas, we have approximately half a million persons internally dis-
placed in Our country and over 30.000 persons have been killed in the
confliçt since it u7asunleashed in 1979.The subversives, aided and abetted
by their allies in Nicaragua. have destroyed fiirms, businesses, bridges, roads,
dams, power sources, trains and buses. They have mined our roads in an
attempt to disrupt our econorny and with the purpose of preventing our
citizens from participating effectively in the national elections. The total of
damages produced by this subversion to the Salvadoran economy since 1979
to the end of 1983has been conservatively estimated to amount to approxi-
mately $800 million."
1 apologize for that long introduction? Mr. Minister, but my questions are
these: does it follow frorn the principles of State responsibility and irnputability
that if the United States is financially liable to Nicaragua for the damage inflicted
by the contru.~,Nicaragua is financially liable to El Salvador For the damage
inflicted by the Salvudorlin insurgents? That is to Say,1am nou7asking you, Sir.
whether the very theory of damages advanced by your Government does not
equally apply against your Government and in behalf of El Salvador'!
A.: We have always stated thai the Niraraguiin Government bas never been
engaged in arms smuggling in Central America and secondly, 1think that it is
comrnonly known that the United States Government not only finances but also
directs and controls the contras'activities in Nicaragua, thus the United States
Government is rcsponsible for the economic damage that has been caused during
these activities.
Q.: 1 might point out that the record as it has been put before the Court the
last few days does not seem to fully sustain the denial you have just made of the
involvement of your Government in support of the insurgents in El Salvador
by the shipment of arms. But, quite apart from that, 1 would be interested in
knowing whether it is your impression as a senior oficial of the Governrnent of
Nicaragua resident in Managua whether leadership of the El Salvador insurgents
is or is not frequently present and operating on Nicaraguan soil. Do you have
any impression as to that?
A.: As far as it is related to myself, 1have never had a meeting withthem and
1have never seen one of them in Nicaragua.
Judge SCHWEBEL: 1 have no further questions.
The nzretitigrose ut4.40 p.m. TWENTY-SECOND PUBLIC SITTING (18IX 85, 10a.m.)
Present:[Seesitting of 12IX 85.1
STATEMENT BY MR.ARGÜELLOGOMES!
AGENTFOK THE GOVERNMENT OF NICARAGUA
Mr. ARGUELLO GOMEZ: Mr. President, Members of the Court, at this
point 1will limit myselfto indicating the wayin which the pleadingswillproceed.
We have divided our pleadings into the following general çategories. First,
the issues of fact which will be examined today by Professor Chayes and Mr.
Reichler. The point and the nature of the evidence will be examined tomorrow
by Professor Brownlie and, in the following session,the breaches of relevant
multilateral treaties willexamined by Professor Chayes.The bilateral Treaty
of Friendship, Commerce and Navigation will be examined by Professor Pellet,
and a further point, which is the role of customary law, will be examined by
Professor Brownlie.1will,at the end, as Agent address certain relevant questions
that have arisen in the course of these hearings.
Now, Mr. President, if it pleases the Court, 1would ask you give the podium
to Professor Chayes to start the pleadings. ARGUMENTOFPROFESSORCHAYES
COUNSELFORTHEGOVERNMENT OF NICARAGUA
Professor CHAYES: Mr. President, Members of the Court. May it please
the Court.
Nicaragua has now completed the presentation of its proof in this case. The
material in evidenceis lengthy and complex. It consists of almost 400 afIidavits,
otlicial statements and other documents in the Annexes to the written pleadings
in the Merits phase alone, and more than 12hours of testimony by the witnesses
you have heard in the last few days.
As is quite obvious in this courtroom,the Respondent in this case, the United
States of America has declined to participate in this phase of the proceedings,
In such circumstances, under Article 53 of the Statute, the Court must satisfy
itself not only that it has jurisdiction of the case, but "that theclaim is well
founded in fact and law". TheCourt has already decided, on the basis ofwritten
and oral pleadings in which the United States participated fully, that it has
jurisdiction and that the case is admissible. Nicaraguabelievesthat the evidence
presented proves beyond any shadow of doubt that Nicaragua's claimsare well
founded in fact, and that the United States is in violation of its mostndamen-
ta1 international obligations under the Charter of the United Nations and the
Organization of American States, under the Treaty of Friendship, Commerce
and Navigation between Nicaragua and the United States, and under general
international law.
The Court itself has recognized that in cases of this sort, and in the absence
of the Respondent, the evidence will necessarilycome from a variety of sources
- some of them less formal than is usual in international adjudication
(Corfu Channel,I.C.J. Reports1949,p.4, at 248 ;Uniied StatesD@lomutic und Con-
suEur Staffin Tehran, 1.C.J. Reports 1980, p. 3, at 9-10). In this case, the docu-
mentary evidence beforeyou consists in large part of statements of the President
of the United States, high officialsof his Administration, and members of Con-
gress.
For almost al1of the statements of the President and congressmen, as well as
for many others, we have been able to provide the Court with officia1texts. In
some cases, however, we rely on press reports of the statements of officialsand
publicevents.Wehave not cited thesereports for theopinions or characterizations
of the journalists who wrote them. Professor Brownlie will discuss the legal
significance ofthese various categories of evidençe in detail tomorrow.
ln the present phase, Nicaragua has presented the testimony of six witnesses.
Mr. Chamorro's evidence wasin the form of an afidavit, because his attorneys
advised him that leaving the United States to appear here in person could pre-
judice his application for permanent resident status.
The testimony of these witnesses is offered to fiIl in some of the contours of
the documentary case with the immediacy that can only come from direct par-
ticipation in events. Nicaragua accords this evidencethe highest significance.The
Court has seen the witnesses first hand and had the opportunity to question
them and test their credibility.n this present reviewof the evidencewe propose
to emphasize the bearing of this testimony, since the documentary evidence has
been analysed at length in the written pleadings. ARGUMENT OF PROFESSORCHAYES 105
My colleagues and 1have considered how we can best assist the Court at this
stage in approaching the great mass of evidence and documentation before it.
Nicaragua has already summarized the evidencein chronological form at several
stages of the case. Attached to the Application was a Chronological Appendix
recounting the facts on which the Nicaraguan claims are based from February
1981to 9 April 1984,the date of the filingof the Application. This chronology
was ampliîîed and brought up to date in the Memorial of Nicaragua on the
Merits, filed on 30 April 1985(paras. 26-150). A further chronological supple-
ment, incorporating new evidence that has come to light since 30 April was
submitted to the Court in advance of these oral proceedings(seeSupp., Ann. A).
In each case, the chronology is supported at every point by detailed references
to the documentary evidence before the Court.
In these circumstances, Mr. President, there seems little reason to begin the
oral pleadings with yet another chronological narrative of the events in issue.
lnstead, Nicaragua has tried to identify a few overarching propositions that we
betieve represent the central factual elements of the case. Our purpose today is
to summarize and marshal the evidencein the record in support of each of these
propositions, so that the Court can "satisfy itself" in the language of Article 53
of their soundness.
With the Court's permission, 1will first set out these central propositions:
1. The United States conceived,created and organizedu mercenury army, the
contra force. It recruited the troops, organized them in operational divisions,
established a unified military command, and controlled the growth of the force.
2. The Governrnentof the United Stutes has armeri,equippedand trained the
contraforce. Ithas provided substantially al1of the weapons, equiprnent,supply,
training and funding for this force, and has determined both the kinds and
amount of military material needed to send the contrusinto the field.
3. Tf~eGovernrnentof tfle United States hrrsdevised the stmtegy and directed
the tacticsof the contra force.
4. The Governmentof the UnitedStutes providrs direct combat supportfor the
militdry operationsof lhe contra force.
5. Thepolitical leudershipof the contras washund-picked installedandpaid by
the United States,hoth towsztre UnitedStutes controlandtogeneratecongressional
andpirblicsupportfi~rthe oclministrution '.policies.
6. United Statw rnilitary and intelligence personnec lonductecldirect uttucks
uguinsf Nicaruguuinchding destruction r>Sils oil supply system and the rniningof'
its harbours.
7. The uctions of the United States reflects policy decisions and prinrities
e.~tahli.~he~ti the highest levels of the current United Slates adminislrationand
esecuted under its supervision.Inno senw con they be regardedas an aberration
or the unauthorizedactivities o$subardinates.
8. The purpose of thepolicy and the actions againstNicaraguainpursuancecif
thispolicy ivcrsf.rom the heginning,to overthrow the Governrnenotf Nicaragua.
Mr. Reichler will deal with the first four of these factual propositions; 1 will
cover the Iast four.
Before turning the podium over to Mr. Reichler, however, 1would like to Say
a preliminary word about the last of these propositions - the purpose of the
United States Government in undertaking, at the initiative of its highest officiais
and with their full knowledge and approval, a co-ordinated campaign of force
against a smatl country, extending over four years, and including the widespread
use of terror, sabotage and atrocity as deliberate tactics. The evidence shows
that the animating purpose of al1 these actions was to destabilize the present106 MlLlTARY ANI) PARAMILITARYACTIVlTIES
Governrnent of Nicaragua, and to replace it with a régimethat was acceptable
to the present Administration in the United States. From the beginning, it was
the form and character of the duiy constituted Government of Nicaragua that
offended the United States Administration and was unacceptable to it. The
policiesand actions shown in this record cannot be characterized as self-defence
in response to an "armed attack" on the United States or any other State. Nor
were they designed to interdict a supposed flow of arms from Nicaragua to
insurgents inEl Salvador. The myth of "arms flow" and "arms interdiction", as
the evidence shows,was invented tit the very outset of the programme as a cover
story to mask the rexl purpose which would have been unacceptable to the
Congress and people of the United States along with the rest of the world.
I said a moment ago that the record before you contains a mass of complex
material, But al1of it Fallsinto place once we understand this dominant purpose
which runs like a leitmotif through al1of the concrete policies and activities in
the case. The entire body of the evidenceis instinct with this purpose and, in the
end, it is thispurpose which must condemn the United States at the bar of
this Court.
1now ask the President to cal1on Mr. Reichler. ARGUMENTOFMR.REICHLEU
COUNSEL FORTHEGOVEKNMENTOP NICARAGUA
Mr. REICHLER: Mr. President, Members of the Court, may it please the
Court. As Professor Chayes has stated, my taskis to summarize the evidence
presented to theCourt with respect to the first fourl propositions identified
by Professor Chayes.Because of the large volume of evidence in this case, time
and consideration for the Court's patience require me to bring to the Court's
attention today only a small part this evidence. In an effort to be of maximum
assistance to the Court1 have chosen to emphasize the evidence that has been
submitted most recently, specifically the testimony of the witnesses and the
supplemental annexes presented to theCourt on 10September which, of course,
were not discussed or analysed inicaragua's Mernorial of30 April,
In the course of my remarkswill make specificreference to some of the more
significant documentary exhibits that Nicaragua has submitted. But 1will spare
the Court the burden of listening to the precise record citations forof the
evidence that1will discuss. These citations, 1trust, willbe included in the written
record of my remarks. With the Court's permission. 1will now proceed to the
first factual proposition.
1.THEGOVEKNMEN OT THE UNITED STATEC SONCEIVE DND CREATED
THE CONTRA FORCE
The evidence before the Court proves that the cotitrusowe their very existence,
as a military force. to the United States. This is openly acknowledged by senior
officiais of the United States Government and by members of the United States
Congress with access to al1 relevant informationAs expressed by representa-
tive Wyche Fowler, a member of the Intelligence Cornmittee of the House of
Representatives whichis responsible for oversight of al1military and paramilitary
activities against Nicaragua, "There was no indigenous uprising of Nicaraguans
against the Sandinista Government before the United States decided to finance
such an uprising" (that is in Ann. E, Attachment 3. 129 Gong. Rec. H5752
(27 Jiily 1983)).
The evidence shows that the United States made ils decision to finance an
uprising against the Nicaraguan Government in the Fall of 1981. A plan for
military and pararnilitary activities against Nicaragua was prepared by the Latin
American AfFairs Division of the CIA. David MacMichael, a CIA intelligence
analyst who was advised of the plan at that time, has testified that the plan
called for the CLA to create a paramilitary force, consisting initially of 1,500
men. to carry out armed attacks and sabotage in and agninst Nicaragua
(pp. 43-44; pp. 49-51, sipra). Mr. MacMichael has confirmed the accuracy of
certain excerpts from the planself and its accompanying classified memoranda,
which were published in the newspapers in the United States (p. 49,supru;
Ann. F. Nos. 4, 23, 36, 187. at pp. 6-7, 47-49, 67-71, 281-83). Theçe documents
proposed an initial allocation to theA of 19,950,000dollars for the cretrtion
of a 1,500-man force, but carefully advised "more money and more manpower
willbe needed".From the very beginning, the record shows, the CIA treated the108 MILlTARYAND PARAMILITARY ACTIVITIES
relationship between more money and more manpower as one of cause and
effect. The officia1documents describing the CIA plan further stated that the
CIA would "build popular support in Central America and Nicaragua for an
opposition front ihat would be nationalistic, anti-Cuban and anti-Somoza;
support the opposition front through formation and training of action teams to
collect intelligence and engage in paramilitary and political operations in
Nicaragua and elsewhere ;work primarily through non-Americans to achieve the
ïoregoing, but in some circumstances the CIA might take unilateral paramilitary
action - possibly using United States personnel - against special Cuban
targets" (Ann. F, Nos. 23, 36, at pp.47-49, 67-71 ;see also p. 49, supra).
It is now a matter of public record in the United States that President Reagan
approved the CIA's plan at a meeting of the National Security Council on
16 November 1981. On 23 November? one week later, the President signed
National Security Decision Directive 17, which put the plan into immediate
effect. As required by domestic United States law, a Presidential finding was sent
to the Intelligence Committees of the Senate and the House of Representatives,
and the members of the Committees were orally briefed by CIA officiais.The
Intelligence Cornmittee of the House of Representatives later published a report
describing the implementation of the plan in the followingway : "encouragement
and support has been provided to foster insurgency within Nicaragua" (Alin. E,
Attachment 1, House Intelligence Committee Report, IV?p. 244, 13May 1983).
The existence of this plan, its essential nature and purpose, its approval by the
President and the fact of its inlplernentation hiive al1 been confirmed for the
Court by Mr. MacMichael (pp. 43-44 ;49, supra).
The evidence demonstrates that, pursuant to the plan, the CTA recruited and
organized a paramilitary force consisting initially of Nicaraguans who had
belonged to the National Guard, the armed forces under the Somoza Government
(pp. 14; 49, 59-60,supra;Ann. F, No. 4, pp. 6-7). Many were living in exile in
the United States and various Central Arnerican countries. Some of them existed
as armed bands along the Nicaragua-Honduras border (ibid.).
The evidence firmly establishes, as representative Fowler reported, that these
scattered bands of ex-National Guardsnieri dit1 flot themselves constitute an
insurgency against the Nicaraguan Government prior to the CIA's involvement
with them. They were militarily and politically insignificant. Commander Carrion
testified that, until December 1981 :
"they were just a few small bands very poorly armed. scattered along the
northern border ofNicaragua and they were çomposed mainly ofex-members
of the Somoza's National Guard. Theydid not have any military effeçtiveness
and what they mainly did was rustling cattie and killing some civilians near
the border lines" (p. 13,supra).
This is confirmed by the contemporaneous public statements of United States
Government oficials, who were describing the ex-Guardsmen at that time, to
take one example, as "insects buzzing around the Sandinistas' ankles" (Ann. F,
No. 188). A similar description was given by the former contru leader Edgar
Chamorro, who had first-hand knowledge of the status of these groups. Mr.
Chamorro, the Court will recall from his affidavit. was appointed by the CIA to
a leadership position in the contruorganization :
"At the time, the ex-National Guardsmen were divided into several small
bands operating along the Nicaragua-Honduras border . . . the bands were
poorly armed and equipped, and thoroughly disorganized. They were not ARGUMENTOF MR. REICHLER 109
an effective military force and represented no more than a minor irritant to
the Nicaraguan Government." (Supp. Ann. G, para. 7.)
Mr. Chamorro's affidavit states that the CIA began its efforts to join these
bands into an effective military force several months before its formal plan for
covert military and paramilitary actions against Nicaragua was submitted to
President Reagan. Mr. Chamorro has further testified that a senior United States
Government official,General Vernon Walters, personally met with the leaders of
these bands and promised that they would receive United States assistance and
support if they joined together in a single organization (Supp. Ann. G, para. 6).
General Walters is currently the United States Ambassador to the United
Nations. At that time, he was a special assistant to the Secretary of State with
ambassadorial rank. He had previously been Deputy Director of the CIA.
General Walters and CIAofficiaisalso sought to merge the Union Democratica
Nicaraguense, or "Nicaraguan Dernocratic Union", a political organization of
ünti-Sandinista Nicaraguan exiles livingin Miami, Florida, with the ex-National
Guardsmen who had already been brought together by General Walters. Accord-
ing to Mr. Chamorro. then a leader of the UDN, General Walters told his group :
"that the United States Government was prepared to help us remove the
FSLN from power in Nicaragua, but that, as a condition for receiving this
help, we had to join forces with the ex-National Guardsmen . . We were
well aware of the crimes the Guardsrnen had committed against the Nica-
raguan people white in the service of President Somoza, and we wanted
nothing todo with them. However, we recognized that without help from
the United States Government we had no chance of removing the Sandinistas
from power, so we eventually acceded to the CIA's, and General Walters'.
insistence that wejoin forces with the Guardsmen." (Supp. Ann. G, para. 6.)
Mr. Chamorro goes on :
"The merger . . . was accomplished in August 1981 at a meeting in
Guatemala City. Guatemala, where formal documents were signed. The
meeting was arranged and the documents were prepared by the CIA. The
new organization was called the Fuerza Democratica Nicaraguense ('Nica-
raguün Democratic Force') or by its Spanish acronym, FDN. ttwas to be
headed hy a political junta . . . The nameof the organization, the members
of the political junta, and the members of the general staff were al1chosen
or approved by the CIA." (Supp. Ann. G, para. 7.)
The CIA was thus mother, father and midwife to the FDN. Once the CIA's
plan was approved by President Reagan, the United StatesGovernment provided
the newly created FDN with the assistance and support that had been promised
hy General Walters and others. MF.Chamorro testified :
"Soon after the merger, the FDN began to receive a substantial and
steady flow of financial, military and other assistance from the CIA. Former
National Guardsmen who had sought exile in El Salvador, Guatemala
and the United States after the fall of the Somoza Government were
recruited toenlarge the military component of the organization. They werc
offered regular salaries, the funds for which were supplied by the CIA,"
(Supp. Ann. G, para. 8.)
Commander Carrion informed the Court of the amounts of these salaries; they :
"ranged from 300 dollars a month for the common soldier . .. up to 1,500
dollars a month for the higher officers.These olficerswere also put as leaders110 MILITARY AN13 PARAMILITARY ACTlVlTIES
and commanders of the commanding structure and the operational military
units." (P. 15,suprcr.)
By the end of 1981,the CIA'sdominant role in çreating, organizing and recruit-
ing the contru military force was evident. Commander Carrion testified that:
"After December 1981 we began to observe that [the) contras started to
act on the basis of their centralized plans, niilitary training camps were set
up in Honduras and in the United States for training the contrus, new
weapons were delivered to the cnntrrr forces and the centralized command
was set up." (P. 13,suprtr.)
In December 1981,the FDN launched its first organized attack against Nicaragua.
Code named "Red Christmas", it was the first tiirietcoritru.operated pursuant
to any kind of military plan, let alone one with a name (p. 14).
The evidence shows that at the time of the Red Christmas attack, the contrcw
had approximately 1,000 to 1,200 men (p. 29, suprrr).More money and more
men were to follow, and the two were closely linked. The record establishes that
in 1982 the United States Government provided another 30 milllion dollars
for covert military and paramilitary açtivities against Nicaragua; the May 1983
Report of the House of Representatives Intelligence Committce (Ann. E,
Attachment 1, IV, p. 249) States that the funding was secretly approved by
Congress in August 1982.As a consequence, by the end of the year - 1982 -
the contrrc force grew to approximately 3,500 to 4,000 men (Carrion testimony,
p. 14,sirpru; see also Ann. F, No. 36,p. 70). In 1983,the United States provided
another 24 million dollars, expressly for military and paramilitary activities in
Nicaragua, and the contrrr force gew correspontiingly to more than 7,000 men.
The 24-million dollar appropriation was done openly, by direct Congressional
action, and became part of domestic United States law. Since United States
support for the conirus was no longer covert - al1of its essential features had
been revealed in the United States press and acknowledged by United States
officiais- there was no longer any reason for the Congress to keep it hidden.
Section 108 of the Intelligence Authorization Act for Fiscal Year 1984, enacted
into law on 9 December 1983,therefore expressly provided :
"During fiscalyear 1984.not more than $24,000,000of the funds available
to the Central Intelligence Agency,the Department of Defense, or any other
agency or entity of the United States involved in intelligence activities may
be obligated or expended for the purpose or which would have the effect
of supporting. direçtly or indirectly, military or paramilitary operations in
Nicaragua by any nation. group. organization, movement, or individual."
(Ann. D, Attachinent 4.)
That is a statute of the United States.
In addition to the funds provided by the United States, which totalled more
than 70 million dollars from the approval of the CIA's plan in the Fall of 1981
untit the end of 1983,a principal reason for the rapid growth in the contra force
was the method of recruitment used. Many of the ctintrufighters were recruited
by force. Commander Carrion gave vivid testimony regarding tliese recruitment
practices. Here is the testimony of Mr. Chamorro :
"FDN units would arrive at an tindefended village, assemble al1the resi-
dents in the town square and then proceed to kill - in full view of the
others - al1persons suspected of working for the Nicaraguan Government
or the FSLN: including police. local militiü rnembers, party members, health
workers, teachers, and farmers from government sponsored co-operatives. ARGUMENT OF MR. REICHLCR 111
In this atmosphere, it was not difficult to persuade those able-bodied men
left alive to return with the FDN units to their base camps in Honduras
and enlist in the force. This was, unfortunately, a widespread practice that
accounted for many recruits." (Supp. Ann.G, para. 9.)
These recruits provided the foot-soldiers for what had becorne' by virtue of
theCIA's efforts and resources, a thoroughly integrated, well-organized and weH-
equipped army. The contrast with the scattered, disorganized and poorly-armed
bands of ex-Guardsmen that the CIA started with was dramatic. In place of a
fewrag-tag groups of armed banditsroaming the remote countryside and thieving
cattle, therewas now a hfly fledged army functioning under a single and unified
command. The structure of this army was described by Commander Carriiin:
"The head of this command was something called ajoint staff major; this
joint staff major was conformed by a CIA officer known as Colonel Ray-
mond and by Enrique Bermudez who is in charge of the military opera-
tions on the part of the cnnfru.q. Under this joint command, there is a
complex system of diferent services for the military combat units. They
have a medical service, a public communications service; they have what
they cal1civiiian services, a supply centre and what they cal1 the strategic
command which is the operational head structure. Under the strategic
command there is a logistic section, a school section, that is a training
section, a special forces section - what they cal1 interna1 forces, air
force section. and what is known as the tactical operations command. Under
this tactical operations command are the operational military units which
are called regional commands. The regional commands have perfectly well-
defined operational areas where they normally act and they are the superior
structure under which are the so-called task forces. Each regional command
has under its command three or four task forces which are then subdivided
into smaller units. This is then the structure corresponding to a fairly well-
developed army and up to this point, that is what the contra is, a very well-
equipped and organized army." (P. 19,suprtr.)
This well-developed army - which, as Commander Carrion testified, was
organized along the linesof North American, not Latin Americanmilitaries - did
not evolve independently. As 1 have discussed, the evidence establishesthat the
coniru army was the conception and creation of the United States Government.
This isconfirmed by. among others. Mr. Chamorro, who was eye-witnessto the
growth and developmentof the contruforcesand the influence of the UnitedStates :
"1982 was a year of transition for the FDN. From a collection of small
disorganized and inelrectual bands of ex-National Guardsmen, the FDN
grew into a well-organized, wefl-armed, well-equipped and well-trained
fighting force of approximately 4,000 men capable of inflicting great harm
on Nicaragua. This was due entirely to the CIA, which organized, equipped,
trained and supplied us." (Supp. Ann. G, para. 9.)
In sum,the evidenceconclusivelyestablishes the validity of the first proposition:
ihüt the contra military force was conceived and created by the United States
Government. Ii was, to put it simply- but accurately - made in the USA.
The evidence establishes the complete dependence of the catztra force on the112 MILITARY ANI) PARAMILITARYACTlVlTlES
United States for its arms, equipment and training. three critical elements of its
military capacity. Mr, Chamorro's testimony directly addresses this point:
"The FDN received al1of its weapons from the CIA." (Supp. Ann. G,
para. 9.)
"The FDN never received money to purchase arms, ammunition or
military equipment. These were acquired for us and delivered directly to us
by the CIA. One of the senior agents at the CIA's Tegucigalpa [that's the
capital ofHonduras] station, known to us as 'the Colonel', was an expert
in these matters, and he, together with his assistants, determined what we
needed and obtained it for us, including: arms, ammunition, uniforms,
boots, radio equipment, etc. As long as 1was in Honduras (until June 1984),
the FDN never acquired its own arms. ammunition or military equipment.
We werejust the end receivers." (Ihid para. 17.)
Mr. Chamorro's testimony is corroborated by the deçlaration, to the New
York Tittiesof a United States Government officialdescribed as "closely linked
to the rebels". This official. subscquently identified as Lieutenant Colonel Oliver
North of the National Security Council, described the impact on the contras of
legislation in October 1984,legislation that resulted in direct operational control
of the cotltrns passing from the CIA to the National Seçurity Council:
"When the agency pulled out of this programme. these guys didn't know
how to buy a Band-Aid. They knew nothing of logistics, the ClA had been
doing al1of that." (Supp. Ann. D, No. 54, p. 64.)
The evidence shows that the contms received hr more than Band-Aids from
the CIA. Commander Carrion described the impressive arsenal of weapons the
CIA delivered to the contrcis:
"Prior to the end of 1981 the contrus had the weapons they had taken
from Nicaragua when the National Guards abandoned and fied to other
Central American countries. But when the CIA needed new weapons for
the increüsing contra force, the CIA just gctt the weapons, FAL rifles, as 1
said before, and delivered these weapons to tliem. That was in the beginning."
One of the cotlrrtlown supply officers, Captain Armando Lopez, described the
CIA's first delivery of 92 FAL rifles. four machine guns and two mortars to the
contms in the following manner: "We were al1hugging, we forgot about rank.
We kissed our weapons. It seemed like a dream." (Ann. F, No. 196, p. 299.)
The record shows that this w;is just the beginning. As Commander Carrion
continued :
"Afterwards CIA AK 47 rifles - which are ülso very modern assault
rifles- were given to the contrus. The contrus never had to buy weapons
in the market. The CIA has always supplied them. And recently the CIA is
supplyngthe contrtrswith a G 3 rifle, whichis the German equivalent to the
FAL rifle. and it is the one that they are supplying right now. They supply
not only rifles, but other types of weitpons too. They supply them with a
rocket launcher called a light ofensive weapon or LOW, with a
disposable
grenade launcher called M 79 grenade launcher, they supply them with
mortürs of 60 millimetres and 81 inillimetres - the last one is considered
as medium range. in the practical sense. an artillery weapon. They also
supply them with heavy machine guns, mostly M 60. Alt of these are made
in the United States and came directly from the United States to the contras
in Honduras. They also supplied the contras with al1sorts of high-powered
explosives, mainly the plastic explosive known ils C 4 and mines of al1sorts, ARGUMEN~OF MR. REICHLER 113
anti-personnel mines, anti-carrier mines, of different sizes and types and
TNT and other explosive devices for sabotage." (Pp. 19-20,supra.)
Captain Lopez of the coniras described their reaction to these CIA weapons
deliveries: "In 1983 we felt like one who had won the lottery. We lacked
shoulders to carry al1the weapons we got." (Ann. F, No. 1986,p. 299.)
The CIA not only supplied weapons to the contras,it trained them in how to
usethe weapons, and it provided them with a full range of military training. The
Report of the House of Representatives Intelligence Committee of May 1983
acknowledged the CIA'straining function :
"There has been a hidden program of the Central American policy, how-
ever, which has had important consequences for the viability of the pub-
lic policy. This hidden program is the nominally covert provision of US
support and training to anti-Sandinista insurgents." (Ann. E, Attachment 1,
Report of the House Committee on Intelligence, 13May 1983.)
Mr. Charnorro described some of this training in his Affidavit :
"Most of the C.I.A. operatives who worked with us in Honduras were
Military trainers and advisers. Our troops were trained in guerrilla warfare,
sabotage, demolitions, and in the use of a variety of weapons, including
assault rifles.machine guns, mortars. grenade launchers and explosives,such
as Claymore mines." (Supp. Ann. G, para. 18.)
Mr. Chamorro added that : "A special unit was created for sabotage, espeçially
demolitions; it was trained directly by CIA personnel at Lepaterique, near
Tegucigalpa." (Supp. Ann. G, para. 8.) Commander Carrion testified that the
Nicaraguan Government has been able to identify "at least" II United States
citizens- CIA agents - working with the contras in Honduras (p. 28, supra).
Mr. Chamorro testified that there were "about 20" ClA Agents working directly
with the conrrus(Supp. Ann. G, para. 16.)
The evidence establishes that the contras received no rnilitary training before
the CIA entered the picture. From early 1982 until the beginning of 1984, the
CIA paid at least 10 Argentinians - ex-members of the armed forces of that
country - to help train the contras. Two of these Argentinians were former
colonels - Santiago Villejasand Oswaldo Rivero, also known as Ballita.(Carriiin
testimony, p. 27, setpru;Suppl. Ann. G, para. 8). The evidence shows that the
Argentinians were recruited to serve as a cover for United States Government
involvement with the contras.When the CIA plan was still iinder discussion, the
United States Secretary of State Alexander Haig expressed the concern that the
programme was "too large to hide" and he insisted thiit a third party be found
to manage it so that the United States could plausibly deny its responsibility
(Ann. F, NO. 197, pp. 281-283). It was at that time, and for that reason, that
the Argentinians were recruited. By the middle of 1983,however, as 1indic~ited
previously, the CIA'srole with the contrus was public knowledge in the United
States. In the words of the Minority Leader of the House of Representatives, it
was "about as covert as an elephant standing on a football field" (Ann. E!
Attachment 3, 129 Cong. Rec. H5738, 27 July 1983 (remarks of Rep. Robert
Michel)). Accordingly, by 1984the Argentinians were no longer oeeded and the
C:IA was itseif exercising full responsibility for al1 military and paramilitary
training of the ronim forces.
In sum, the evidence before the Court fully demonstrates the validity of what
Kepresentative James Wright, Majority Leader of the United States House of
Kepresentatives and a member of the Intelligence Committee, reported to his114 MILITARY ANI) PARAMILITARYACTIVITlES
fellow legislators: the cotiiras were "recruited, trained, financed, equipped, and
sent into" Nicaragua by the United States Government (Ann. E, Attachment 4,
129 Cnng. Rec. H5837, 28 July 1983). This is not simply a case of the contrus
receiving some arms, some ammunition, some supplies or some training from
the United States. This isa case, fully supported by the evidence, where the
United States provided al1of the arms, ail of the ammunition, all of the supplies
and al1of the trainin- and as 1shall now proceed to show, much more as well.
III.T~F:GOVERNME OFTTHE UNITED STATEH SASDEVISE AND DIRECTED THE
MILITAR SYTRATEFIE ASND TACTICS 01; THE CONTRA FORCE
The evidence presented to the Court establishes, beyond question. that the
United States has made al1 of the critical decisions concerning the strategic
objectives and militaryactics employed by the contras.
A reviewof the various contra offensivesmakes this obvious. In the first place,
the timing of each ofhese offensiveswas determined by the United States. Every
contru offensivewas preceded by a new infusion of funds from the United States,
starting with the first one in December 1981, which came about shortly after
President Reagan authorized 19,950,000dollarsforthese activities. The December
1982 offensive was preceded by an appropriation of 30 million dollars. The
December 1983 offensive was preceded by the provision of 24 million dollars.
There were no funds provided at the end of 1984; consequently there was no
offensive. An additional 27 million dollars was approved at the beginning of
June 1985 ;the contraslaunched an offensive two weeks later.
The specific strategic objectives and the tactics employed in these offensives
were ülso dictated by the United States. A1have already discussed, in late 1981
the CIA forged a single military organization out of scattered, diverse armed
groups and created a unified command structure. That enabled the conims, for
the firsttime, to operate under an orchestrated military plan, whiçh the CIA
code named "Red Christmas". This first attempt to take and hold Nicarüguan
territory failed.
The CIA's strategy during the first half of 1982emphüsized the use of hit-and-
run raids and sabotage. Commander Carrion has described the demolition of
two key bridges on 14 March 1982,over the Rio Negro in Chinandega province
and the Rio Coco in Nueva Segovia, near the Pan American Highway (p. 14,
supra). CIA officiais expressly acknowledged the Agency's responsibility for the
destruction ofthese two bridges in briefings givento thintelligencCommittee
of the House of Representatives in May 1987 (Ann. F, No. 36! pp. 67-71 ;
No. 188, pp. 284-287). These attacks, along with similar sabotage raids on other
bridges, fueltanks, a customsarehouse, governinent buildings and other targets,
are also described in a classified Weekly ItzielligenSummnry of the United
States Defense IntelligenceAgency, which was later publishedinthe newspapers
in the United States(Ann. C, Attachment 111-2).
After these successfulsabotage raids in early 1982,a National Security Council
Summary Pcrperprepared in April 1982reported that :"ln Nicaragua. the San-
dinistas areunder increased pressure as a result of our covert efforts." (Ann. C,
Attachment 111-1.)That document, as well.was later published in the newspapers
in the United States.
At the end of 1982.the CIA determined that thecrintruforces were suffiçientiy
organized, trained and equipped to implement a new strategic objective.The new
plan, called"C plan" or "Strategy of Terror", was an offensive designed to take
over the town of Jalapa in the far north of Nicaragua, install a "provisional ARGUMENTOF MR. REICHLER 115
government" there, and cal1for international recognition. Commander Carrion
testified that to çarry out this plan.
"they concentrated the troops around Jalapa right on the border line and
from there they did many attacks with artillery support . . . they were not
able to take over Jalapa, but as a result of this offensive many towns were
put under artillery fire and there were many civilian casualties as well as
military casualties." (P. 16'arpru.)
Mr. Chamorro confirmed that the CIA waç behind the strategy:
"By the end of 1982, we were ready to launch our first major military
offensive designed to take and hold Nicaniguan territory, which the CIA
was urging us to do. Our principal objective was the town of Jalapa." (Supp.
Ann. G, para. 9.)
After the failure of the 1982offensive, the CIA chaiiged its strategy. The new
strategy was to penetrate contra forces deeper into the interior of Nicaragua.
disrupt life within the country as much as possible, and thus foster political
clestabilization. During 1983, CIA officiais, including the Director of Central
Intelligence, William Casey. travelled to Honduras and instructed the co?ztrux
that they must begin to conduct a "classic guerrilla war" (Ann. F. No. 157,
p. 247; No. 48, pp. 89-90).Afterwards, Commander Carribn testified, the rontrus
"started to infiltrate groups, small groups at first, deeper into Nicaraguan
territory where they would have more objectives within reach Ict's say-
çtate farms, co-operatives, grain stores, health centres and so on - and it
is during this period ,. .that ambushes occurred on the road agüinst any
vehicle, civilian or military."(P. 16, supru.)
IJnited States authorship of this strategy is evident from the fact. corroborated
by various sources, that the CIA, for the first time, furnished the contrus with
aeroplanes without which the coilfra units could not have been resupplied and
therefore maintained inside Nicaragua for the extended periods of time necessary
to carry out the plan (ibidj. United States direction of strategy and tactics is
further confirmed by the fact that the contras themselves opposed this strategy
but were compelled to accept it.
Mr. Chamorro testified that after the failure of the 1982offensive, the FDN's
officerswanted more time to regroup and prepare themselves at their base camps
in Honduras before returning to Nicaragua :"The FDN officers were overruled
hy the CIA, however. The agency told us that we had to move our men back
into Nicaragua and keep fighting. We had no choice but to obey." (Supp. Ann.
.- -
(;, para. 19.5
In September 1983,President Reagan sent a new finding to the Congressional
Intelligence Committees to support his request for more funds to finance the
contrlrs'activities, a request that the Congress ultimately approved (Ann. D,
Attachments 3 and 4 (Department of Defense Appropriations Act for FY 1984,
Sec. 775. Intelligence Authorization Act for FY 1984, Sec. 108)). His finding set
forth a new strategy: the destruction of vitiil economic installations and the
infliction of maximum harm on the Nicaraguan economy (Ann. F, No. 47,
p. 88).This strategy was publicly disclosed thefollowing month'by ~e~resentative
Lee Hamilton of the Intelligence Committee of the House of Representatives:
"We now see a new stratefi. That strategy is to target economk targets like
electrical plants and storage facilities." (Ann. C, Attachment 5. 130 Cong. Rec.
H8416, 20 Oct., 1983.) Previously, Mr. Chamorro testified, the contras were
instructed by the CIA to avoid such targets because attacking them might be116 MILITAKYAND PARAMILITARYACTIVITIES
politically counter-productive(Supp. Ann. G, para. 19). Now, however, the CIA
instructed the contrusto attack coffee plantations and coffee pickers, in order to
interfere with the cultivation and harvesting of Nicaragua's iifeblood export
crop. Mr. Chamorro testified that the contras f'ollowedthis instruction (Supp.
Ann. G, para. 19), and Commander Carrion confirmed that the coffee crop in
fact suffered significantly from such üttacks, especially in the first half of 1984
(p. 18,supra).
The CIA also decided at this time to target Nicaragua's supply of oil, as a key
element of its new emphasis on economic targets. Mr. Chamorro testified that
the CIA officia1in overall charge of the contra operation, Duane Clarridge? told
the contra leadership that,
"something must be done to cut offNicaragua's ail supplies, beçause without
oil the Nicaraguan military would be immobilized and its capacity to resist
our forces would be drastiçally reduced" (Supp. Ann. G, para. 20).
This plan, which ultimately included assaults on oil pipelines and storage tanks,
and the mining of Nicaragua's ports, was undertaken directly by United States
military and intelligence personnel, ratherthan the contras,and will be discussed
by Professor Chayes later. 1mention it here as a further illustration of the United
States direction of the strategy and tactics of the mifitary activities against Nica-
ragua.
Still more proof of this Iies in the fact that the cnntru offensive Iaunched at
the end of 1983 was preceded by direct instructions from Duane Clarridge to
stage a major attack on Nicaragua, seize some territory. however small, and
declare a provisional government that would then be recognized by the United
States (Supp. Ann. G, para. 22). The plan was called "Plan Sierra" and was
aimed - as in 1982 - at taking Jalapa. Commander Carrion described this
offensive to the Court in some detail (pp. 18-19,supru). Like the earlier effort to
take Jalapa, it failed, although numerous casualities were inflicted on both
civilian and military objectives(ibid.).
The most recent contra offensive, launched in June of this year, was called
"Plan Repunte" or "Come Back Plan". It, too, reflects United States control
over the c'ontrus'strategy and tactics.As described by Commander Carrion, the
plan called for the rontrus to penetrate deeper into Nicaragua than they ever
before attempted, and attack important economic targets and populated areas
in order "to create an impression ofpolitical crisisand to portray the Government
as incapapable of holding control of the situation" (p. 23, supra). Mere again,
the dependence of the plan on frequent and abundant resupply of contru units
by air deep inside Nicaragua, and on precise intelligence pinpointing the location
of Nicaraguan Government troops - al1 of which could only be pro-
vided by the United States - demonstrates that it was a strategy necessarily
designed by the United States.
in addition to dictating the general and specific strategic objectives of the
contras, the United States also instructed the contras on the field tactics to be
employed by their forces. In the rnilitary sense, these tactics were determined by
the amount and type of weapons the contrus received, al1of which came from
the United States. But the United States directly influenced the tactics of the
contrus on the ground inother ways as well.
The widespread use of terror tactics by the contras is not open to dispute.
These tactics are thoroughly documented in the reports of several independent
human rights organizations and fact-finding missions, which are included in
Annex 1. Professor Glennon has testified about the findings of his itiloco in-
vestigation. The Court has heard Father Loison's account of contra terror he ARGUMENT OF MU. REICHLEK 117
encountered while living and working in La Trinidad. Even CIA officiais have
acknowledged, in testimony before Congressional cornmittees, that the contras
have committed these abuses including rapes, torture and murder of unarmed
civilians, including children (Ann. F, No. 165, p. 257). Mr. Chamorro has
admitted that it was standard contra practice to kill prisoners and suspected
Sandinista collaborators (Supp. Ann. G, para. 27).
The record demonstrates with equal force that the contrasadopted these tactics
with the advice, encouragement and approval ofthe United States. Mr. Chamorro
has testified
"The CIA did not discourage such tactics. To the contrary. the Agency
severely critiçized me when 1 admitted to the press that the FDN had
regularly kidnapped and executed agrarian reform workers and civilians.
We were told that the only way to defeat the Sandinistas was to use the
tactics the Agency attributed to 'Communist' insurgencies elsewhere: kill,
kidnap, rob and torture." (Supp. Ann. G, para. 27.)
Such madness was not without its method. It had a very clear purpose.
Commander Carrion testified that,
"AI1 of these terrorist instructions have the main purpose of alienating
the population from the Government through creating a climate of terror
and fear so that nobody would dare to support the Government." (P. 17,
suprc.)
In order to instruct the contra forces in these tactics the CIA prepared a
manual called P.sycliologica1Opcruticirisin Guerrilla Wurjure. It is before the
Court in Annex G. TheCIA'sauthorship of this documentwas publiclyconfirmed
hy, among other authoritative sources, the Intelligence Comrnittee of the United
States House of Representatives (Ann. E, Attachment 17 (Committee Report
No. 98-1196, 2 January 1985)). The Court will undoubtedly recall the testimony
that Commander Carrion gave on 12 September when he read aloud excerpts
from this manual, especially from the section that is entitled "Implicit and
Explicit Terror" (p. 17,slipru).1 do not believe it is necessary to quote further
from this appalling pamphlet. It is in evidence and it speaks for itself.
The evidence demonstrates that the instructions in the CIA's manual were
widely followed, in some cases literally, by the contras.About 2,000copies were
distributed among their forces, and the contents of themanual were discussed at
special sessions held by c(intm units (Supp. Ann. G, para. 28; p. 17, supru).
Commander Carribn testified that "There are hundreds of examples of contru
activities following the manual's instructions", and he gave several specific
examples of local civilian leaders, in some way atfiliated with the Nicaraguan
Government or the Sandiriista Party, who were assassinated by the cntatrasas
set out in the manual (p. 18, supru). Mr. Chamorro confirmed the contras' use
of the manuiil :
"the practices advocated in the manual were employed by FDN troops.
Many civilians were killed in cold blood. Many others were tortured. muti-
lated, raped. robbed or otherwise abused." (Supp. Ann. G, para. 28.)
The reports of various independent human rights organizations, which? as 1
mentioned earlier, are collected in Annex 1, provide the names of victims and
specific accounts of their individual tragedies.
The record shows that the contrus have continued to follow the recommen-
dations in the manual. As reçently as 1 August 1985,contm forces attacked the
town of Cuapa and, after making the townspeople report to the centre of town,took 12 local militiamen and town o6cials and marched them off to a ditch
outside the town. where they executed 1I of them, throwing the bodies in the
ditch (Supp. Ann. D, No. 36, p. 17).
United States responsibility for acts of terrorism by the ctintras rests not only
on the fact that senior Unitedates oficials know what the contras do with the
funds. weapons and equipment with whichthe United States continues to supply
them - a fact that Professor Glennon's testimony establishes (p. 78,supro). But
United States responsibility rests as, and to an even greater extent, on the
direction and control that the United States exercises over theiforces and
on the United States role inactively setting in motion these acts, especially
through the preparation and disseminationf the CIA manual on Psycliologi~al
Operulionsin GuerrillliWarfure.
IV.THEGOVERNME OFTTHEUNITED STATE HAS PROVIUF D.II ECATND CRITICAL
COMRAST UPPOR TOR THE MILITAR OYPERATIO ONSTHE CONTRAS
The evidence not only establishes that the United States directly supports the
day-to-day military operations of thentras in the fietd, it also shows that this
support is soritical to the contrus that without it, their capacity to operate with
any degree ofeffectiveness would be severely diminished. This combat support
includes:
(1) the logistical supply and maintenance of contra forces operating in the field;
(2) the collection, analysis, and utilization of intelligence data, including determi-
nation of the precise location of Nicaraguan Government troops; and
(3) the design and operation of field communications, including the provision
of sophisticated codes and communications procedures, thatnable contrri
units to co-ordinate their attacks without fear of detection by Nicaraguan
Government troops.
The evidence shows thar the United States has organized. managed andon-
trolled al1 logistical arrangements for contra forces in the field12OSep-
tember, Commander Carrion described this logistical operation, and its relation-
ship to the rontrus'military activities inside Nicaragua, in considerable detail. He
testified that theintrus were able to infiltrate and maintain forces deep inside
Nicaragua in 1983and thereafter becaus:
"the CIA had perfected their logistic systems, especially because they had
given theconIrusseveral aeroplanes which they could now use to resupply
the military units operating deep within the country"16, supru).
Commander Carrion testified further that "United States involvement in these
air supply operations is very clear", citing: delivery by the United States of the
planes used in the supply missions; Unitedtates improvements to the airstrip
at Aguacate, from where the planesperate: information supplied by a captured
memberof a coi~truaeroplane çrew, brought down over Nicaragua, and confirmed
by other sources which reveüled that a United Statestficer known as Major
West co-ordinüted theentire supply operation: and that another United States
oficer was involved in packing the supplies before they were placed on the
aeroplane (pp. 16-17,upru).
Commander Carrion's testimony was corroborated by Mr. Chamorro, who
testified
"The United States Government also made it possible for us to resupply
our troops inside Nicaragua, thus permitting them to remain longer inside ARGUMENTOF MR. RCICFII.ER 119
the country. Under cover of military maneuvers in Honduras during 1983,
United States armed forces personnel constructed airstrips, including the
one at Aguacate, that, after the CIA provided us with aeroplanes, were
instrumental in resupplying our troops." (See also Ann. F, No. 62, p. 110;
Ann. F, No. 180,p. 272.)
The evidence shows that the United States also provides the contras on a
regular basis, with detailed intelligence reports on the location and movements
of government troops. Mr. Chamorro explained how this intelligence is collected
and passed on to the contras, and its importance to conrramilitary operations:
"The CIA, working with United States military personnel, operated
various electronic interception stations in Honduras for the purpose of
intercepting radio and telephonic communications among Nicaraguan
Government military units. By means of these interception activities? and
by breaking the Nicaraguan Government codes, the CTA was able to
determine - and to advise us of - the precise locations of al1Nicaraguan
Government military units. The information obtained by the ClA in this
rnanner was ordinarily corroborated by overfiights of Nicaraguan territory
by United States satellites and sophisticated surveillance aircraft.ith this
information, our own forces knew the areas in which they could süfely
operate free of government troops. If our units were instructed to do battle
with government troops, they knew where to set up ambushes, because the
CIA informed them of the precise routes the government troops would take.
This type of intelligence was invaluable to us. Without it, our forces would
not have been able to operate with any degree of effectiveness inside Nica-
ragua." (Supp. Ann. G, para. 18.)
The United StatesGovernment has openly acknowledged its intelligencegathering
activities; in late 1982, for example, Jeane Kirkpatrick, then United States
Ambassador to the United Nations, admitted, during ü United Nations Security
Council debate, that the United States conducted regular reconnaissance flights
over Nicaraguan territory (37 UN SCOR (2335th mtg.), p. 48, UN doc. S/PV
2335/Corr. 1 (1982)).
The United States also provided the contras with a sophisticated field com-
munications system that was equally critical to their combat operations. As
Commander Carrion testified :
"There was much assistance in the communications area. In the first
place, the United States provided the contras with very modern and effective
military communications systems. They gave them different types of equip-
ment - equipment that is used for communications between the regional
commands and the taçtical operations command, or strategic command,
those are usually PRC-77 back radios which can be carried on the back.
Also the use of a shortwave radio, South Quartz is the name of it, and they
also give the coniras small walkie-talkies for communications among the
small units within a task force or regional command. But 1would say that
the most important assistance in the communications field has been the
preparing of some sophisticatedcodes forthe contrasto covertheir communi-
cations. They also prepare for them conversational tables which are simpter
codes for less important communications. The contrus had no capacity at
al1for preparing or manufacturing these types of codes." (Pp. 20-21, supra.)
Mr. Chamorro explained the importance of the communications facilities pro-
vided by the United States:120 MILITARYAND PARAMILITARY ACTlVlTIES
"This was critical to our military operations because it enabled various
units, or task forces, to communicate with each other, and to CO-ordinate
their activities, without being detected by the Sandinistas. Without this
communications capacity, otir forces inside Nicaragua would not have been
able to CO-ordinatetheir activities with one another and they would have
been unable to launch effective strikes at the designated targets." (Supp.
Ann. G, para. 18.)
The dependence of the contra forces on the United States is also demonstrated
by the course of corztramilitary operations following each new appropriation of
United States funds for their activities. Commander Carribn described this in
the following manner :
"At the end of 1982, the contras received newfunds from the United
States amounting to $30 million. From this date on, we started to notice
that a more or less regular pattern was enierging and that was that after
every infusion of funds, the contras would launch a new major offensive
against my country. The offensive would gradually diminish as the funds
were being usedup until the new infusion came, when the pattern would
repeat itself." (P. 16,supra.)
As 1 have already rnentioned, the fact that there was no ccintruoffensive at
the end of 1984 was directly attributable to the refusal of the Congress to
appropriate more funds at that time. Al1evidentiary sources agree - and by
that 1 mean the Nicaraguan Government, the United States Governrnent, and
the contras' own spokespersons - that by the end of 1984 the funds most
recently appropriated by the Congress - that is in December 1983 - had been
exhausted (pp. 22-23,supra ;Ann. F, No. 61, p.109 ; No. 177,p. 269 ; No. 115,
p. 202; No. 121, p.210). Perhaps nothing more powerfully demonstrates the
contras' complete dependence on the United States than the fact - also agreed
on byal1sides - that the contras'military operations against Nicaragua dropped
off dramatically from the end of 1984 until the Congress resumed funding in
June 1985.
In February 1985, inthe middle of this period, Enrique Bermudez,the contras'
military commander, stated publidy that the failure ofthe United StatesCongress
to appropriate funds forced the contras to reduce their combat operations by
more than half. He said : "Some forces are paralysed. We have had moments of
crisis, not al1places at once, but problems nonetheless." He said failure of the
Congress to renew funding "would havea devasting psychologicaleffect" on the
contra forces (Ann. F, No. 177,1).269). Commander Carrion confirmed this:
"Q.: . . . how could you tell that the absence of additional financial
support from the United States resulted in ü fa11off of activity?
A.: Well, first the decrease in the level of military activity showed up in
the daily report we have in my country, Nicaragua; but also from personal
interviews and interception of contras' corninunications we know that there
were many contra leaders who were cornplaining about the lack of supplies.
We captured many contras very poorIy equipped, uniforms worn out and
with very fewrounds of ammunition, etc., that rnake it evident that they
were not receiving at ieast as much supplies as they used to receive years
before, but there was even demoralization among the conrras forces,"
(Pp. 22-23,supra.)
During this period, because of legislationenacted by the Congress in October
1984,operational control of the contras was shiftedfrom the CIA to the National ARGUMENTOF MR. REICHLER 121
Security Council, and Lt. Col. Oliver North of the NSC was placed in charge.
Mr. Chamorro has stated that Lt. Col. North assured the contras at their
headquarters in Honduras that "the planning of the operations would continue
very close to the NSC" (Supp. Ann. D, No. 47, p. 57). Subsequently, according
to a senior United States official, the National Security Council did provide
planning and exert "tactical influence" over contru military operations, and Lt.
Col. North personally gave the contras advice and direction on specificattacks,
including. in particular, the assault on a passenger ferryboat that connects the
river towns of El Rama and Bluefields(Supp. Ann. D, No. 42, p. 50; No. 55.
p. 65). National Security Adviser Robert MacFarlane pubticly defended Lt. Col.
North's activities; he said: "We had a national interest in keeping in touch with
what was going on, and second, in not breaking faith with the freedom fighters"
(Supp. Ann. D, No. 50, p. 58).Representative George E. Brown, Jr., a member
of the Intelligence Committee of the House of Representatives, stated that the
Administration's provisionof military advice to the contras violated anow lapsed
United States law, but concluded that "If the President wants to use the NSC
to operate the war in Nicaragua, 1don't think there'sany way we can control
it" (Supp. Ann. D, No. 42, p. 50).
Representative Anthony Beilenson, another member of the lntelligence Com-
mittee of the House of Representatives, said: "It just makes it unmistakabIy
clear that it's our war. They are waging it in every way except with American
troops." (Supp. Ann. D, No. 46, p. 54.)
This, of course, is precisely what the evidence in this case conclusively
establishes,with one exception :on numerous well-documentedoccasions military
and pararnilitary attacksagainst Nicaragua have been waged directlyby American
military and intelligence personnel, as Professor Chayes will discuss.
The totality of the evidence,therefore, supports Commander Carrion's charac-
terization of the contras a:
"an artificial force, artificially set up by the United States, that existç only
because it counts on United States direction, on United States training, on
United States assistance, on United States weapons, on United States
everything. Without that kind of support and direction the contras would
simply disband, disorganized, and thus lose their military capacity in a very
short time." (Pp. 24-25,slipru.)
Very similar testimony was given by General Paul F. Gorman, commanding
officerof the United States Southern Command headquarters in Panama, which
has responsibility for al1United States armed forces in Central America and the
Caribbean. General Gorman testified before the Armed Services Committee
of the United States Senate on 27 February 1985. He told the Committee
that unless the contras received continued support from the United States, "the
campaign will begin to peter out, Wear down" (Ann. F, No. 188). Without
continued support from the United States in al1the forms in which it has been
given, and is being given, thecontra force simply could not survive. While there
is abundant evidence in support of this proposition, Mr. Chamorro's testimony,
based on his personal knowledge and experience, addresses this point directly,
and it is an appropriate place to conclude my remarks:
"When 1 agreed to join to FDN in 1981, 1 had hoped that it would be
an organization of Nicaraguans, controlled by Nicaraguans, and dedicated
to our own objectives which we ourselves woulddetermine. 1joined on the
understanding that the United States Government would supply us the
means necessary to defeat the Sandinistas and replace them as a government, QUESTIONPUTBYJUDGESCHWEBEL
The PRESIDENT: Before 1 give the floor to Professor Chayes, there is a
question that Judge Schwebel would like to ask. As this is a question not to a
witness, itould be answered in writing later.
Judge SCHWEBEL: 1should like to put a question which in my view flows
from Mr. Reichler's argument which he may find it suitable to answer now or
subsequently, or which the Agent of Nicaragua may rather prefer to treat, and
it is thi1.can provisionally accept the claim on the basis of the data as 1have
so fiir had time to examine it- there is a great deal still to reü- that before
December 1981, the bands of the contras were an insignificant force. But my
çurrent tentative understanding equally is that the insurgency in El Salvador
was insignificant before the Sandinistas came to power in 1979.But thereafter
the character, my understanding is. of the insurgençy in El Salvador radically
changed, so that by January 1981, the insurgents posed a massive challenge to
the El Salvador Government. Now it is claimed that the diference in vital
measure derived from the Sandinistas who allegedly supplied arms from
Nicaragua to El Salvadoran insurgents and who permitted the establishment of
the leadership of the Saivüdoran insurgents in safe command centres in Nica-
ragua - 1 have not heard that allegation contested by the way - and who it is
ülleged collaborated in the training of insurgents. Then came the January 1981
offensive which was Iiailed by an insurgent radio station, allegedly operating
from Nicaraguan soil, and it is claimed that Radio Managua broadcast this on
the day of the offensive:
"A few hours after the FMLN general çommand ordered a final offensive
to defeat the régimeestablished by the military christian democratic junta,
the first victories in the combat waged by Our forces began being reported."
And that claim broadcast from Managua radio is found in Rrvolutiori Beyntzri
our Borckrs, Sunclini.sttInterventionin Centul Americo, atpage 20, a publication
of the United States Department of State of this month.
Itis argued that this Nicaraguan collaboration on the organir~ition of the
insurgency in El Salvador preceded by more than a year the organization by the
United States of the insurgency in Nicaragua. In a sense then, there is an
argument of mirror images, except the first image to appear in the mirror, it is
argued, is that of Nicaragua. Could the Agent or counsel of Nicaragua comment
on that line of argument which 1 do not necessarily accept but which 1 am
obliged by the intendment of Article 53 of the Statute to consider '!
Mr. ARGÜELLO GOMEZ: Mr. President, Judge Schwebel. As with many
questions raised in the past days, 1 feel it my duty as an Agent to answer them
in my Agent's speech. 1 think it in any case more appropriate, due to the nature
of the question, that as Agent 1 should answer than that the lawyers should
answer. ARGUMENTOF PROFESSORCHAYES (cont.)
COUNSEL FOR THE COVERNMENTOF NICARAGUA
Professor CHAYES: Mr. President, Members of the Court. As 1said at the
outset, 1will deal with the last four of the eight central propositions that we feel
are demonstrüted by the evidence. Like Mr. Reichler,1will not burden the Court
with extensive citations, but the references to the evidence have been supplied to
the Registrar and will appear at the appropriate points in the transcript.
The most cogent evidence about the political arrn of the FDN is to be found
in the affidavit of Mr. Chamorro who was a participant in the events from the
surnmer of 1981 until November 1984.when he was fired by the CIA. Most of
that time he was a member of the pokitical directorate. 1 am going to follow
along in Mr. Charnorro's own words and there will be citations to the principal
corroborating evidence.
Mr, Reichler has already described the origin of the FDN in a merger. dic-
tated by the CIA, between the Union Democratica Nicaraguense, a group of
Nicaraguan exiles in the United States, loosely organized under the leadership
of José FransiscoCardenal, and bands of ex-National Guardsmenwho had been
conduçting sporadic raids along the Honduran border since the fall of Somoza.
The merger took place in August 1981and a politicaljunta consisting of Cardenal
and two others was established by the CIA.
In little more than a year, the junta had outlived its usefulness. Cardenal
resigned beçause he found "that he had no çontrol over Bermudez or the other
members of the FDN general staff, who answered only to the CIA" (Supp.
Ann. G, para. IO). Mr. Chamorro recounts how he wasapproached in November
1982by a CIA agent who purported to be "speaking in the name of the President
of the United States". The agent asked him "to become a member of the political
directorate of the FDN, which the CIA had decided to create as a substitute for
the political junta" (Supp. Ann. G, para. Il;see also Ann. F, No. 191, p.293).
The reason was,
"that the FDN had a bad image in the United States, and particularly
among members of Congress, because it was perceived as ;inorganization
of ex-National Guardsmen. He told me that in order to maintain the sup-
port of the Congress for theCIA's activities it was necessary to replace the
political junta with a group of prominentNicaraguan citizens who had no
ties with the National Guard or the Somoza Government." (Supp. Ann. G,
para. 11.)
A Newsweek article published at the same time reports that "contra attacks
are designed to harass the Sandinistas while CIA operatives cast around for a
moderate new Nicaraguan leadership" (Ann. F, No. 13, p. 22).
The sizeof the new directorate was set at seven because the CIA felt that "any ARGUMENT OF PROFESSOR CHAYES 125
Iarger group would be unmanageable". Although the agents discussed possible
candidates with Mr. Chamorro, "it was obvious" he says, "that they had already
decided who they wanted" (Supp. Ann. G, para. 13; see also Ann. F, No. 191,
p. 293; ibid., No. 188, p. 285). The new leadership was organized in haste
because, "the CIA was worried that Congress might enact legislation" as in Fdçt
it did,
"to prohibit the use of United States funds for the purpose of overthrowing
the Nicaraguan Government, and the creation of a political directorate
composed of prominent respectable citizens might persuade the Congress
not to enactsuch legislation" (Supp. Ann. G, para. 13).
The policies and programme of the organization were dictated by the CIA.
The initial statement of principles and goals was rewritten by a ClA officer and
Mr. Chamorro says "1 had to read his words" at a press conference held on
8 December 1982. "ln January 1983, at the instruction of CIA agent Thomas
Castillo.we put out a 12-point 'peace initiative' drafted by the CIA which
essentially demanded the surrender of the Sandinista government." (Supp.
Ann. G. para. 14.)
The CIA paid the political leadership of the FDN from the very beginning.
Cardenal began receiving payments from the first half of tg81 (Supp. Ann. G,
para. 6). Mr. Chamorro tells us that "The CIA paid me a salary of $2:000 a
month to support myself and family, plus expenses. Similar arrangements were
made with other FDN directors." (Supp. Ann. G, para. 15; Ann. F, Nos. 149,
191,pp. 239, 293.)
A principal function of the directorate, as far as the CIA was concerned, was
to influence United States opinion and the United States Congress. The organi-
zation continued to be heavily engaged in promoting legislation for funding
the roiitru:
"Our CIA colleagues enlisted us in an effort to 'lobby' the Congress to
resume these appropriations. I attended meetings at which CIA officiaistold
us that we could change the vote of many members of Congress if we knew
how to 'sell' our case and place them in the position of 'looking soft on
Communism'. They told us exactly whlit to say and which members of
Congress to Say it to. They also instructed us to contact certain prominent
individuals in the home districts ofrious members of Congress as a means
of bringing pressure on these members to change their votes." (Supp.
Ann. G, para. 26; see also Ann. F, Nos. 149, 187,pp. 239, 281.)
Mr. Chamorro also tells us how, when he was managing the FDN's communi-
cations office in Honduras, he was given money from the CIA "to bribe Hon-
duran journalists and broadcasters to write and speak favourably about the
FDN and to attack the Government of Nicaragua and cal1for its overthrow".
He learned from the CIA that the same tactics were being used in Costa Rica
(Supp. Ann. G, para. 16). The Court will recall Mr. MacMichael's testimony
that it was a common technique for the Agency to plant such stories abroad and
then get them reprinted in United States newspapers as an aspect of the element
of "disinformation" that is part of every covert programme (p. 56. supra).
The judgment and wishes of the Nicaraguans were repeatedly overridden by
their American masters. Chamorro thought that the January 1983 peace offer
"was premature, but Castillo insisted that it be done to get the FDN favourable
publicity" (Supp. Ann. G, para. 16). The directorate was not even permitted to
select their own headquarters.
"We wanted to set up a highly visible headquzrrters in a shopping centre126 MILITARYAND PARAMILITARYACTIVITIES
or office building, but the CIA did not like this idea. They said it would
become a target for demonstrations and violence. They insisted that we
take an elegant suite at the David Williams Hotd in Coral Gables, Florida,
which the CIA paid for." (Supp. Ann. G. para. 15.)
The CIA installed as the real leader of the directorate "another Nicaraguan",
recently arrived from Nicaragua where he "had been working for the CIA . . .
for a long time" (Supp. Ann. G, para. 14; Ann. F, No. 188,p. 285), that was
Mr. Calero. Captain Armando Lopez, head of cnnirtlogisticssaid of Mr. Calero's
appointment: "The benefaçtor litid to find something to guarantee his invest-
ment." (Ann. F, No. 196, p. 299.)
The political directorate was also forçed to cover forthe CIA when. as 1 shall
describe below, the United States launçhed its campaign of direct attacks against
Nicaraguan harbours, ports and oil storage facilities in the Frill of 1983.
"Although the FDN had nothing whatsoever to do with this operation, we were
instructed by theCtA to publicly daim responsibility in order to cover the CIKs
involvement." (Supp. Ann. G1para. 21.)False press releases were issuedon CIA
orders after the üttacks on Puerto Sandino in September and October 1983.the
attack on Corinto in October 1983,and the attacks on Potosi in January 1984.
On 5 January 1984,Mr. Charnorro says:
"at 2.00 a.m. the CIA deputy station chief of Tegucigalpa woke me up at
my house in Tegucigalpa and handed me apress release in excellent Spanish.
I was surprised to read thatwe - the FDN - were taking credit for having
mined several Nicaraguan harbours." (Supp. Ann. G, para. 24.)
The Agency wooed Edén Pastora, who remained outside the FDN, because it
thought his record as a former Sandinista leader would make him politically
attractive. In the end, it decided tliat he was "unmanageable" (Ann. F?No. 188,
p. 285) and terminated funds to his Revolutionary Democratic Alliance Group
(ARDE). Pastora's comment was: "1had only one problem with the CIA, 1did
not speak English well enought to say 'Yes, Sir'" (ihid.p.284).
Mr. Chamorro also fell victim to the CIA insistence on control. In early 1984
he became increasingly troubled by reports of contru atrocities. His objections
were ignored until finally, in June 1984,
"1 acknowledged to a newspaper reporter that our troops had killed
some civilians and executed some prisoners, though 1tried to explain these
practices as best I could. Calero told me 1could no longer work in Honduras
and 1 was re-üssigned to the local FDN comrnittee in Miami. 1was given
nothing to do and 1no longer had much interest in working for the FDN,
or to be more accurate, for the CIA." (Supp. Ann. G, para. 29.)
In November 1984he was fired (ibid., para. 31).
Mr. Reichler has already read the closing paragraphs of Mr. Chamorro's
affidavit recording his disillusioned realization that the organization he helped
to found "turned out to be an instrument of the United States Government and,
specifically. of the CIA" (Supp. Ann. G. para. 30).
In the summer of 1983, the CIA was seeking "a quicker and more effective
way of hurting the Sandinistas than previous ehrts" (Ann. F, No. 51, p. 94). ARGUMEN'~OF PROFESSOR CHAYES 127
As a result, they hired and trained a special group of commandos, known as
Unilaterally Controlled Latino Assets (UCLAs), to carry out a series of attacks
against Nicaraguan ports, power plants, bridges and oil facilities. As is indicated
by their name, these UCLAs were employees of the United States Government
and were under the ClA's direct control (Ann. F, No. 48, p. 89; No. 70, p. 121:
No. 100, p. 171; No. 188,p. 286).
Mr. Chamorro described a meeting during that period, that is the summer of
1983, between the FDN political directorate and Duane Clarridge, the CIA
manager of the cover operation. Here is his description:
"Clarridge told us that the C.I.A. had decided that something must be
done to cut off Nicaragua's oil supplies, because without oil the Nicaraguan
rnilitary would be immobilized and its capacity to resist oui- forces would
be drastically reduced. Clarridge spoke of various alternatives. He said the
agency was considering a plan 'to sink ships' bringing oilto Nicaragua ...
and 'an attack on Nicaragua's sole oil refinery, located near Managua . . .
Finally, Clarridge said that the Agency had decided on a plan to attack the
oil pipeline at Puerto Sandino, on Nicaragua's Pacific Coast where the oil
tankers delivering oil to Nicaragua discharge their cargoes." (Supp. Ann. G,
para. 20.)
Operations under this plan began on 8 September 1983, when the UCLAs.
true to Clarridge's word, blew up the Puerto Sandino pipeline (Supp. Ann. G,
para. 21 ; Carrion testimony, p. 21, supra; see also Ann. F: No. 98, p. 168;
No. 99, p. 169 ; Nos. 192-193, pp. 295-297 ; Supp. Ann. B, para. 21 ; Ann. J,
Attachment 1).
On 10October 1983,the UCLAs executed a more ambitiousattack on Corinto,
Nicaragua's main port. Commander Carrion testified:
"ln October of that same year several speedboats armed with 20-millimetre
cannons attacked oil storage facilities in the port of Corinto, which . ..is
the main port of Nicaragua. As a result of the attack the three big oil-
storage tanks were set on fire. This fire was a very big one and put in peril
the whole Corinto population, which is around 20,000people, and they had
to be evacuated from the town to some place else. Many millions of gallons
of oil werelost, and the oil storage tanks were çompletely destroyed." (P. 21,
supru; see also Supp. Ann. G, para. 21 ; Ann. F, NO. 50, p. 92; NO. 98.
p. 168: No. 99, p. 169; Nos. 192-193,pp. 295-297.)
On 14 October the UCLAs returned to Puerto Sandino, and again attacked
the pipeline there. ln al], therewere three attempts to blow up that pipeline
(p. 21,supru; see also Ann. J, Attachment 1).
Therafter. between 1 January and IOApril 1984,the CIA carried out at least
19 separate attacks on a variety of Nicaraguan coastal economic targets. The
UCLA operated from armed CIA speedboats and helicopters directed by United
States intelligence and military personnel aboard a CTA ship stationed just
outside Nicaraguan territorial waters (Ann. F, No. 72. p. 125; No. 81, p. 140;
No. 94. p. 160; No. 104. p.176; No. 116, p.203: No. 191, p. 292). When CIA
Director William Casey was asked who was directing the operütion and picking
the targets. he answered, "We are". (Ann. F, No. 105,p. 188.)
An interna1 CIA memorandum describes these attacks and provides detailed
evidence of the United States role (Ann. C, Attachment 111-3).For example, the
first entry on that memorandum describes the attack on the Nicaraguan naval
base at Potosi on 4 January 1984, lisfollows:
"Helicopter rockets and 'Q'boat ('Q'boat wasthe name forthespeedboat)128 MILITARY AND PARAMILITARYACTIVITIES
attack against the Potosi naval base .. . 'Q' boat crewed by agents and
personnel from Central America. United States helicopter and crew identified
targets which were taken under fire by Nicaraguan crewed helicopter. CIA
crewed Merlin aircraft equipped with FLIR (forward looking infrared radar)
provided real time intelligence support.
Major terminal was hit several times by 'Q'boat cannon fire ... Rockets
set fire and caused damage to buildings within the compound. Nicaraguans
iidmitted to one dead and eight wounded." (Ann. C, Attachment 111-3.)
The accounts of the other attacks are equally vivid and equally candid.
Meanwhile, a plan including the mining of Nicaragua's ports was presented
to President Reagan with the strong recommendation of National Security
Adviser Robert C. McFarlane. It was specifically approved by the President in
December 1983 (Ann. F, Nos. 81, 94, 104, pp. 140, 161, 179; see also Ann. E,
Attachment 9). It was an integral part of the operation against Nicaraguan ports
and shipping facitities that was alreadyunder way.
The Central Intelligence Agency carried out the mining from January to April
of 1984. The mines were made by the CIA Weapons Group and tested by the
Mines Division of the Naval Surface Weapons Center of the United States Navy.
They were deployed, as in the earlier attacks, by the specially traineUCLAs
(Ann. F, No. 72, p.125; No. 81, p.140; No. 94, p. 160; No. 104, p. 176;
No. 116, p. 203;No. 191, p. 292 ;see also Supp. Ann. G, para. 21).
When the United States role in the operations was made public in April 1984,
one member of the Senate Intelligence Committee reacted :
"We have carefully monitored these activities to insure that whatever
else happened, Americans didn't get into combat-type opcrations against
Nicaragua . . . That distinction hüs been lost. When an American is on the
mother ship in a mining operation, he's involved directly in military
activities." (Ann. F, No. 72,p. 125; see also No. 89, p. 153,No. 190,p. 289.)
Senator Goldwater was more succinct: "This is an act violating international
law. It is an act of war." (Ann. E, Attachment 9.)
Judge Jennings expressed an interest in the duration of the mining. The mines
were first deployed on 4 January 1984, and deployment continued through the
end of March (Ann. F, No. 190,p. 289). The first mine exploded on 25 February
1984; the last on 30 March 1984 (Ann. J, Attachment 1). However,
Administration and cungressional sources said in early April that "these mines
will remain active in Nicaraguan harbours until they decay in several months"
(Ann. F, No. 87, p. 15).
Commander Carriiin testified that 12vesselsand fishing trawlers were damaged
by the mines. Two persons were killed and 14 injured (p. 22. suprtr;see also
Ann. F? No. 104, p. 176; No. 191, p.292).
Although Nicaragua has not yet presented coniprehensive proof in support of
its claim forcompensation, there is a considerable body of evidence in this record
concerning the economic damage caused by these attacks. In 1983 80 per cent
of al1 Nicaraguan foreign trade passed through Nicaraguan ports and almost
al1 this activity was through Corinto or Puerto Sandino. Oil imports play a
particularly important role, accounting for 40 per cent of the foreign exchange
Nicaragua earns through its exports (Ann. J,Attachment 1). ln addition to the
oil supplies actually destroyed inthe crintm attacks, Exxon stopped sending its
tankers into Nicaraguan ports after the raid on Corinto (Ann. F, No. 188,
p. 287). The very existence of the mines and the uncertainties about their ARGUMENT OFPROFESSORCHAYES 129
deactivation hampered Nicaraguan trade and jeopardized the delivery of Nica-
raguan oil supplies for some months (Ann. F, No. 125, p. 214).
As 1pointed out above, the evidence shows that the conirasnever had anything
to do with either the mining or the otherA attacks. Mr. Chamorro was
instructed by the CIA to read the presslease claiming responsibility for the
mining over the FDN clandestine radio (Supp. Ann. G, para. 24), thereby
allowing theClA to conceal the United States direct military action against
Nicaragua f'ormany months.
Other forms of direct United States action against Nicaragua a variety
of activities expressly designed to intimidate the Nicaraguan people and
Government. The United States has conducted military manŒuvres in Honduras
almost continuousiy since February 1983. These manŒuvres are on an unpre-
cedented scale, involving thousands of United States soldiers. tanks and heavy
artiflery. Many have been accompanied by simultaneous naval manŒuvres
executed by aircraft carriers, battleships and destroyers off Nicaragua's
Commander Carrion described some of these actions in his testimony (p. 22,
sztpru)they are also documented elsewhere in the record (Ann. F, No. 41, p. 76,
No. 150,p. 240; Supp. Ann. D, No. 10, pp. 11-13; No. 169, p. 261).
The evidence shows thatthese manceuvres were conceived as part of a pro-
gramme of "perception management". a term coined apparentlyby the CIA
or the Defense Department, intended to alarm and intimidate the Nicaraguan
Government. This programme was outlined in a classified 1983 Defense
Department document: the title of the document wasDocunzetjron Crntrril
Am~ricun Initiuiivrs. The existence of the programme was confirmed by senior
Defense Department and Administrationficia:"Every timethere'san invasion
scare, they (the Nicaraguans) make some concessions." Orin, "We do our
best to keep them concerned." Orgain, "One of the central purposes (of the
manŒuvres) is to create fear of an invasion. (The American troops) push very
close to the border, deliberately, to set off a11the" (Ann. F, No. 199,
p. 303.)In June 1985,United States Colonel Pearcy, Joint Task Force Commander
in Honduras, said that the manŒuvres were partially intended to remind
Nicaragua of American resolve (Supp. Ann. No. 10, p. 11).
Another component of the "perception management" programme was a series
of overflights by a United States SR-71 reconnaissance 'plane causing sonic
booms over Managua for four consecutivedays in November 1984, at a time
when the United StatesAdministrationwas deliberatelycreating tensions between
the twocolintries (22,supra; Ann. F, No. 152,p.242). Otto J. Reich, Am-
bassador for Latin American Public Diplomacy, confirmed that these booms
were intended to frighten the people of Nicaragua (Ann.. 199, p. 302).
VII. THE ACT~VITIE OF THE UNITED STATER SEPI,ECTPOLICY DECIS~O NNSD
PRIORITI EESTABLISH ATEUHEHIGHES LTEVELO F THECURREN ADMINISTRATION
AND Ex~cu'r~ uNDER ITSSUP~~RVISIINO NO. SENSC^AN TH6Y BEREGARDE AD
AN ABBERRATI OORAS THE UNAUTHORIZ AECTIV~TI OFSSUBOKUINATES
The evidence shows unequivocally. and Mr. Reichler has already recounted
some of it, that the fundamental decisions in the United States military and
paramilitary campaign against Nicaragua were made by the President of the
United Statespersonally, on the recommendation of senior cabinet secretaries
and advisers. This is true not only as a matter of faci, but it is required by the
positive provisions of United States law.ote from Title 22 of the United
States Code, section22:130 MILITARY AND PARAMILlTAKY ACTIVITIES
"No funds appropriate the authority of this chapter of any other Act may
be expended by or on behalf ofthe Central Intelligence Agencyfor operiition.~
[that's what covert activities are called] in fnreign countries, . . . unless and
until the President finds that each such operation is important to the national
security of the United States." (Ann. D, Attachment 2. Emphasis added.)
Title 50 of the US Code, section 413, States: "The finding must be reported
to the Intelligence Comrnittees of both the Senate and the House of
Representatives." (Ibid.)
As Mr. Reichler has already said, the initial conrrcrprogramme was approved
by the President at a meeting of the National Security Council on 16November
1981 (Ann. F, No. 4, pp. 6-7). It was ernbodied in National Security Decision
Directive 17 (ibid No. 23, p. 48). The presidential finding required by law was
made on 1December 1981(ibilf., No. 8 ;No. 13,p. 23 ; No. 187, p. 193 ;No. 36,
p. 69). Subsequent major increases in the authorized force ceilings or changes in
the force mission were also authorized by the President and reported to the
appropriate congressional cominittees in accordance with this law (Ann. F,
No. 8, p. 115; No. 13,p. 23).
Pursuant to the same law, the President, in December 1983, personally
approved the destruction of Nicaraguan oil facilities and the mining of
Nicaraguan harbours carried out over the next several months(Ann. F, No. 94,
p. 16; No. 104, p. 179), although there is some question of how adequately that
was reported to the lntelligence Committees. But in the end, Senator Goldwater.
Chairman of the Senate Intelligence Committee, said in a public letter to Director
Casey of the Central Intelligence Agency, "the CIA had, with the persona1
approval of the President, engaged in such mining" (Ann. E, Attachment 9; see
also Ann. E. Attachment 8; Ann. F, No. 81, p. 140;No. 94, pp. 160-161).
Rythe same token, the Congress of the United States is a party to these policy
decisions. As noted above, the applicable statute requires that the lntelligence
Committees of both Houses be informed. ln 1982, Congress secretly approved
$30 million for the "covert war" (Ann. E, Attachment 1, House lntelligence
Report, IV, p. 249). Since at least fiscal year 1954 (beginning 1 October 1983),
al1funds forthe contrLrshad been specificallyand openly authorized by legislation
enacted by the Congress (see Ann. D, Attachments 3, 4; Supp. Ann. C,
Attachment 7). Congress was on ample notice, from the public statements of
senior members of the lntelligence Committees exercising their functions of
reporting to theircolleagues before each such appropriation, as to the purposes
for which the funds were to be used. For example, Representative Lee Hamilton,
then a member of the House lntelligence Committee and now its Chairman,
stated :
"The conims aim to bring down the Sandinistas. We are now supporting
a large army inside Nicaragua. We can no longer deny that we are fighting
a mercenary war in Nicaragua to overthrow the Government of that
country." (Ann. C, Attachment 3: 239 Cong. Rec. H5725, 27 July 1983.)
Although it was sometimes suggested that the CIA was out of control, Senator
Goldwater firmly rejected that notion: "The CIA islikethe rest of our intelligence
family, a member of the Government, and they only do what they riretold to
do." (Ann. E, Attachment 15, p. S12865.)
Senator Wallop, also a member of the Senate Intelligence Committee,
concurred :
"They (the CIA) are not ginning up, generating, concocting whüt they
are doing in Nicaragua on their own. without directions from the Reagan ARGUMENT OP PROFESSOR CHAI'ES 131
Administration. [1 should say that Senator Wallop is a Republican and
supports the policy.] Nor did they do so in the Carter Administration. They
are doing what they are directed to do because they are an arm of United
States foreign policy." (Ann. E, Attachment 15,p. S12865.)
Involvement at the highest ievels of the United States Government was not
confined to the mere authorization of actions. The evidence reveals that senior
White House officiais and other high officers of the Administration have been
concerned with the on-going operations on an almost day-to-day basis. The
mining plan, as 1 said, was approved on the affirmative recomrnendation of
Nation-alSecurity Adviser Robert C. MacFarlane. CIA Direçtor William Casey
made many visits to the cotlfrusin Nicaragua, and once in 1983he assured them
personally that the Administration would stay with them. Indeed. one intelligence
officer said "lt's really Casey's war" (Ann. F, No. 161,p. 251).
A "restricted interagency group", known as the RIG, was formed to manage
and supervise the operation. It was chaired by the Assistant Secretary of State
for Inter-American AEiirs, firstThomas Anders and later Langhorn Mobley.
Marine Corps Lt. Col. Oliver C. North, Deputy Director of the National Security
Council for Political Military Affairs, represented the White House. You have
iilreüdy heard of his activities from Mr. Reichler. Duane Clarridge, Director of
~heCIA's Officeof Latin American Affiiirs, sat for the Agency.
Ctarridgc, also known as "Dewey Maroni" - his "nom de guerre" 1suppose-
was the day-to-day manager and moving spirit of the programme. His pervasive
involvement with the cuntra operation is detailed in Annex F, Numbers 187, 188,
190, 191and 193.
Hemade frequent trips to Honduras for meetings with contrafieldcommanders,
lie negotiated with EdénPastora to induce him to join. and he masterminded
the establishment of the FDN political directorate (Supp. Ann. G, paras. 20-22;
Ann. F, Nos. 187, 188. 191. 193). He "reported directly to Casey throughout,
bypassing several senior officers in the intelligence communities' senior com-
mand, and he and Casey overrode whatever objections crop~ed u.. (Ann. F,
No. 187, p. 283).
Colonel North was also directly involved in FDN activities, but Mr. Reichler
has already dealt with that. Another National Security Council official, Ronafd
1;.Lehman, a Special Assistant to the President, and, 1believe, brother to the
Secretary of the Navy, visited the FDN leadership in Nicaragua in the spring of
1984and assured them :
"that President Reagan remained committed to removing the Sandinistas
from power. He told us that President Reagan was unable at the time to
publicly express the full extent of his commitment to us because of the
upcoming presidential elections in the United States. But. Mr. Lehman told
us, as soon as the elections were over, President Reagan would publicly
endorse our effort to rernove the Sündinistas from power and see to it that
we received al1 the support that was necessary for that purpose." (Supp.
Ann. G, para. 25.)
In 1985,the military and paramilitary activities against Nicaragua have become
B major preoccupation of the current Administration and of President Reagan
himself. Congressman Lee Hamilton, Chairman of the House Permanent Select
Committee on Intelligence said :
"The President has elevated the struggle to change the Sandinista govern-
ment through military force to one of the highest priorities of his admin-132 MILITARY ANLlF'ARAMILITARYACTIVlTIES
istration." (Supp. Ann. C, Attachrnent 2, 131 Cong. Rer. H2358-2359
(23 April1985).)
The Administration's heaviestartillery has been brought into play. VicePresident
Bush spoke in behalf of the contras on 25 January and again on 28 February.
Mr. Casey spoke at the Metropolitan Club on 1May and Secretary Shultz before
the American Bar Association on 23 May (Supp. Ann. B, Attachment 11-1).
President Reagan himself played a leadingrote in the final decision by Con-
gress to restore funding for the contras on 12June 1985. Between 7 February
and 11 June, he made 22 separate major public statements, regarding aid to
the contrtls and the need for changing the Nicriraguan Government (Ann. C.
Attachments 11-21 ;Supp.Ann. B.Attachments 1-9; additions to Supp. Ann. B).
He repeatedly referred to the cnrzirasas "freedorn fighters" (see, e.g., Ann. C,
Attachments 1-5, IV, p.172; 1-13, IV, pp. 182-183; 1-14,IV, pp. 183-184; 1-15,
IV. p. 185). He compared them with "the brave men and women of the French
resistance" (Ann. C, Att. 1-15,p. 4); he asserted that "they are our brothers"
(Ann. C, Att. 1-13;1-15, p. 4) and claimed thernas "the moral equivalent of Our
founding fathers" (Ann. C, Att. 1-15,p. 4).
The rnilitary and paramilitary activities of a 1O100(&manovert ürmy in a
small country in Central America have evoked fram the United StatesGovern-
ment preoccupation - one might say almost obsession - at the highest levels;
lavish expenditure of resource- a hundred million dollars in four years; and
day-to-day supervision by senior operational officiais. In the light of this
combination it is hard to conteiid that the United States is not firmly in charge
of the operations.
VIII. THE PURPOSE OF THE POLICY AND THE ACTIONS AGAINSTNICARAGUA
UNDERTAKEN 1N PURSUANC OEF I'r WAS,FROM THE BEGINNING T, OVEK~HROW
THE GOVERNME N TNICARAGUA
Evidence in the record from a multitude of sources, both direct andndirect?
is consistent and mutually corroborative that the overriding purpose of the
United States military and paramilitary operations against Nicaragua was to
destabilize the Government, force it to change its basic social policies,and
ultimately to overthrow it. The notion that the programme was designed to
interdict, or suppress, an alleged flow of arms from Nicaragua to the insur-
gents in El Salvador finds no basis in the record. The evidence supports
Mr. MacMichael's testimony that the arms interdiction rationale was developed
as a cover story toconceal the real purpose of the programme (pp. 49-51. 58,
supra). This, in itself, reinforces the direct evidenceestablishing the true purpose
of the operation.
The evidence of purpose Fallsinto a number of categories and 1will now deal
with each of them separately.
The most explicit and notorious of these is the President's pressçonference
answer, on 21 February 1985, to the direct question whether the purpose of
United Statespolicy in Nicaragua wasto overthrow the Government. Mereplied :
"Not if the present government would turn around and Say,alkright, if they'd
say 'Uncle'." (Ann.C, Att. 1-14,IV. p. 184.)Now, we have supplied a reference
to a dictionary definition of that phrase "say 'Uncle"',and 1 think that is
probably not necessary, but of course it is alloquialism for surrender. When ARGUMENT OF PROFESSOR CHAYES 133
asked whether the goal of the United States policy was to "remove the Sandinista
government", he answered :
"Well, removed in the sense of its present structure, in which it is a
communist totalitarian State, and it is not a government chosen by the
people." (Ann. C, Attachment 1-14,IV, p. 183.)
Numerous presidential statements only slightly less specificreiterate the same
theme under a number of rubrics, for example, there are repeated references to
the contrrisas "freedom fighters" (Ann. C, Attachments 1-5,IV, p. 173; 1-13,
IV, p. 182; 1-14, IV, p. 183; 1-15, p.4). There are repeated assertions that the
Sandinistas are not a government, but merely a "faction" of the 1979revolution
(Ann. C, Attachment 1-16,IV, p. 185; Attachment 1-11,IV? p.180; Attachment
1-12, IV, p. 181; Supp. Ann. B, Attachment 4, IV, p. 383), and there are
references to the need for "changing" the existing "totalitarian" régime into a
"democratic" one (Ann. C, Attachment 1-4, IV, p. 171; Attachment 1-11, IV,
p. 180; Attachment 1-12, IV, p. 181 ;Attachment 1-14,IV, p. 184; Supp. Ann. B,
Attachment 1-2,IV, p. 380; Attachment 1-4, IV, p. 383; Attachment 1-8). Most
of these. incidentally, have emerged sinçe the United States decided not to appear
in this Court and was no longer so heavily under the obligation of maintaining
the notion of collective self-defence.
B. Stutrmrnts hy Other High Administrution OfJicials
The principal foreign policyofficersof the current United States Administration
have repeatedly used the same formulas as the President to describe the purpose of
United States policy :for example, Vice President Bush,on 25 January 1985: "our
support for those in Nicaragua who are fighting the cornrnunist Sandinistas must
go fonvard" (Ann. C, Attachment 11-8,IV, p. 214); Secretary of State George
Shultz, 20 March 1984: "1also cal1upon the Congress to recognizethe validity of
the struggle of those Nicaraguans who are resisting totülitarianism" (Ann. C,
Attachment 11-3,IV?pp. 201-202). SecretaryShultz said on 19February 1985 :
"What we have in Nicaragua is a government that's a bad-news govern-
ment. Now, how can that get changed? We'd like to see them change. But
they don't seem inclined to do so. So we have followed these alternatives
and we will continue to follow these alternatives." (Ann. F, No. 176; see
also id., No. 175.)
Llirector of Central Intelligence William Casey said on 1 May 1985:
"The increasingly united Democratic Nicaraguan Opposition, both in-
ternal and external? is the major obstacle to Sandinista consolidation. The
armed resistance, popularly known as the coniras, is a vital part of this
movement. Together, these groups encourage erosion of support for the
Sandinistas; create uncertainties about the future of the régime;challenge
itsdaims to legitimacy; and give hope to the Nicürüguan people." (Supp.
Ann. B, Attachment 11-1,IV, p. 391.)
In the same speech, Mr. Casey referred to Nicaragua asan "occupied country"
(p. 2). The Court may note also statements of other high Administration officiais
which are contained in the evidence. (Under Secretary of Defense Fred C. lkle
(12 September 1983),Ann. C, Attachment 11-2;Assistant Secretary of State for
Inter-American Affairs. Elliott Abrams (17 August 1985), Supp. Ann. D,
Attachment 58; Deputy Assistant Secretary of Defense for Inter-American
Affairs, Nestor D. Sanchez (27 August 1985), Add. to Supp. Ann. D. See also,
generally, Ann. F, No. 58.) MlLlTARY AND PARAMILITARY ACTIVITIES
That is the third category. Presidential statements, statements of high officials.
Congressional statements. The record abounds in statements by senior members
of the Congressional Intelligence Committee, both supporters and opponents of
the Administration's policy affirming that itsurpose has been to overthrow the
Nicaraguan Government. Only a few can be given here. As early as May 1983,
the report of the Permanent Select Committee on Intelligence of the House of
Representatives said :
"The activities and the purposes of the anti-Sandinista insurgents ulti-
mately shape the program, Their openly acknowiedged goal of overthrowing
the Sandinistas, the size of their forceand efforts to increase such forces,
and finally their activities now and while they were on the Nicaraguan-
Honduran border, point not to arms interdiction, but to military confron-
tation."(Ann. E, Attachment 1, IV, pp. 251-252.)
The next staternent of 23 July 1983is from Representative Edward Boland
who was then Chairman of the House Intelligence Committee: "the purpose
and mission of the operation was to overthrow the Governrnent of Nicaragua"
(Ann. E. Attachment 3. p. H5748).
Here is a statement from Senator Malcolm Wallop. a supporter of the
programme and a member of the Senate Intelligence Subcommittee:
"1would hope that we do not give the erroneous impression that we have
fostered the Nicaraguan assistance prograrn solely to interdict arms for the
war in El Salvador. That would cheapen both Our motives and those of the
Nicaraguans freedom fighting." (Ann. E, Attachment 15,p. S12865.)
Senator Patrick Leahy, Vice Chairman of the Senate lntelligence Committee,
opened the debate on funding for Nicaragua on the floor of the Senate on
23 April 1985as follows:
"Mr. President, today the Senate isconsidering the most important foreign
policy issue it will hce this year: whether Congress wili allow President
Reagan to continue a covert war to overthrow the Government of Nica-
ragua." (Supp. Ann. C, Attachment 1, p. S3581.)
And finally,Mr. Lee Hamilton, Chairman of the Holise IntelligenceCommittee,
said in the same debate in the House:
"On February 21. President Reagan said that it was United States policy
to seek to remove the Sandinista Governrnent unless it changed its goals
and present structure and allowed the contras into the government." (Ibid.,
Supp. Ann. C, Attachment 2. pp. 2358-2359.)
To the same effect see, Annex E, Attachment 3, H5752; Attachment 4, H5833;
Attachment 5, H8394; Attachment 13,S7516-7517 ;Supp. Ann. C, Attachment 1.
S4582: Attachment 5, H4152: Attachment 5, H4173-4174.
D. SraternentsML~L I~the Contra Leaders
The contra leaders themselves Saythat they were told often by officials repre-
senting themselves as speaking for the President, that the objective was to
overthrow the existing government of Nicaragua by force. "Managua by
Christmas" was a familiar slogan among the contrus (Ann. F: No. 188, p. 286;
id., No. 191,p. 293). ARGUMENT OF PROFESSOR CHAYES
E. Sfratugy, Ta~.tic.and Turgets (ifthe FieldOperriticins
The actual operations of the confrux in the field are wholly inconsistent with
the asserted purpose of arms interdiction. On the contrary, they are çlearly
designed and CO-ordinated so as to sap the political and economic strength of
the Government of Nicaragua.
First, the terrorism and atrocities, for which the evidence has already been
reviewed byMr. Reichler, are classic destabilizing tactics.
Secondly, again as explained by Mr. Reichler, a major objective of the annual
offensiveslaunched by the co~l~rawsas to take and hold an area within Nicaragua
where they could proclaim a provisional government that contra leaders were
assured would be recognized by the United States (p. 16,supra; Supp. Ann. G,
para.22 ;Ann. F, No. 156, p. 246).
Thirdly, contra hit-and-run tactics were directed at targets of economic
significance,including bridges, communications installations, the international
airport at Managua and agricultural co-operatives. As CIA Director Casey said,
commenting on the first of these attacks on the bridges on the Rio Negro and
Rio Ocotal: "It takes relatively few people and little support to disrupt the
interna] peace and economic stability of a small country." (Ann. F, No. 36,
p. 71.)The destruction of health and education facilities,which werealso specially
targeted for hit-and-run attacks, was similar in purpose (p. 17,supra; Ann. E,
Attachment 5, H8416; Supp. Ann. D, No. 51, p. 94).
In 1984,as Commander Carrion testified, there was a special systematic effort
to disrupt Nicaragua's export industries, in particular to prevent the harvesting
and marketing of the coffee crop (Supp. Ann. G, para. 19; pp. 18-19, sapru;
Ann. 1,Attachment 2, pp. 1-19).
Next, the direct actions by the United States against Puerto Sandino, Corinto
and Potosi and the programme of mining Nicaragua's harbours were designed
to disrupt the economy and intimidate both the Government and the people.
Senator Leahy whom we have heard before said: "There's a lot of talk about
not trying to overthrow the Government, but the facts speak for themselves.
Unless you are trying to do this, why else would you mine their harbours?"
(Ann. F, No. 80, p. 139.) The attacks, indeed, were part of a deliberate and
systernatic plan to destroy Nicaragua's oil-supply system. The campaign of
perception management and intimidation, including the SR-71 sonic booms and
the massive United States force deployments near Nicaragua's land and sea
borders, were similarly intended. Now the last type of evidence demonstrating
the purpose of the operation is sort of negative evidence.
F. The Evidence in the Record Provides no Supportfor the Proposition thal
Nicaragua 1sSuppbing Arms to the Insurgenis in El Salvador
Under the terms of Article 53 of the Statute, the Applicant is in something of
an odd position on this matter. The only legal justification ever advanced by the
United States for its military and paramilitary activities against Nicaragua is
that they represent an exercise of the inherent right of self-defense against the
asserted supply of arms by Nicaragua to the guerrillas in El Salvador. In law, of
course, this is a matter of affirmative defence. In a normal case, where the
respondent had not refused to participate, the matter would not be before the
Court at al1 unless the respondent formally placed it in issue in its pleadings.
The respondent would have to support its allegations with concrete and
specific proof and it would bear the burden of proof. Applicant would then
have a full and fair opportunity to rebut the actual evidence relied on, and136 MILITARY ANI) PAKAMILITARYACTIVITIES
the Court would resolve any conflict on the hasis of the record made by the
parties.
Here Nicaragua must respond to shadows - vague and unsubstantiated
assertions by the United States, made in other cnntexts and forums, without any
specification of concrete evidence to support them. Nevertheless, in view of the
provisions of Article 53, Nicaragua has felt it incumbent on it to try to assist the
Court as best it can to deal with these scattered accusations and assertions.
Let us reviewthe evidence of reçord on the issue of the supply of arms by
Nicaragua to the Salvadoran rebels.
In the first place, the Government of Nicaragua maintains and has always
maintained that it has never at any time supplietl arms to the Salvadoran rebels.
Father Miguel d'Escoto, Foreign Minister of Nicaragua, solemnly swore in his
affidavit filed in this case
"ln truth, my government is not engaged, and has not been engaged, in
the provision of arms or supplies to either of the factions engaged in the
civil war in El Salvador." (Ann. B, para. 1.')
The affidavit continues with a description of the efforts of the Nicaraguan
Government - both unilaterai and diplomatie - to suppress arms traffic across
its territory and the difficultiesattendant on that task. I think you will find those
efforts to have been diligent.
Commander Luis Carribn, Vice Minister of the lnterior of Nicaragua, and a
member of the Government since 19 July 1979, when the Somoza régimewas
overthrown, testified inopen Court, under the solemn declaration prescribed by
Article 64 of the Rules:
"My Government has never had a policy of sending arms to opposition
forces in Central America. That does not mean that this did not happen,
especially in the first years after the revolution in 1979and 1980,weapoos
might have been carried through Nicaraguan territory, weapons that might
have the Salvadoran insurgents, as you said, as their final recipient."
(P. 31,supm.)
This has been Nicaragua's consistent position both before and during this case
and, if1 may Sayso,its lawyershave never acknowledgedanything to thecontrary.
Now what is the state of the other evidence in the record on this issue?
First, Mr. Chamorro, a leading member of the FDN political directorate
during the entire period in question, said that the contms never saw any evidence
of the supposed arms fiow(Supp. Ann. G, para. 14). Although as shown above,
the strategy and targets of the contras were wholly inconsistent with an arms
interdiction mission, it issurely astonishing that in the entire four-year period,
thatthe conzrabands were roaming over largeareas ofNicaragua and strategically
positioned near the major arms routes, they made not a single interception of
arms transported by land, sea or air. That could hardly be the case if there were
indeed a sustained or substantial arms traffic, and there are reports in the record
of independent investigations by journalists showing an absence of intercept by
Salvadoran Government forces.
But the record contains direct evidence offered by Nicaragua, through the
witness David MacMichael. Nicaragua believesthat Mr. MacMichael isa credible
witness - that is why it called him. He is eminently qualified to offer evidence
on this subject. By background and experience, he is an expert on the very
question that is the subject of the United States assertions: arms supply to
guerrilla forces in the field.
He was an employee of the United States CIA during the most crucial period ARGUMENTOF PROFESSOR CHAYES 137
here in issue, 6 March 1981 to 3 April 1983. His position as Senior Estimates
Officer, a member of the Analytic Group of the National Intelligence Council,
put hirn neür the very top of the procesi,for analysing and evaluating intelligence
within the United StatesGovernment. fis officialduties required him to monitor
a11intelligence traffic dealing with arms shiprnents between Nicaragua and El
Salvador during that period. He had unlimited access to al1 intelligence infor-
mation on that subject- including raw reports and data from the field, finished
intelligenceanalysesand personal consultation with agents and colleagues.He was
never denied access to any intelligence materials he asked to se(p. 52,supra).
His unequivocal testimony is that during this crucial period - from March
1981,more than eight months before President Reagan first approved the covert
action programme, until he left the agency in April 19-3 there was no credible
evidence of any shipment of arms by the Government of Nicaragua to the rebels
in El Salvador. Let me review the examination on this point. 1 questioned
Mr. MacMichael :
"Q. : AI1right. 1want to direct your attention now tothe period of your
employment with the Agency; was there any credible evidence that during
that period, March 1981 to April 1983,the Government of Nicaragua was
sending ürms to rebels in El Salvador?
A. .N o.
Q. :Was there any substantial evidence that during this period arms were
sent from or across Nicaraguan territory to rebels in El Salvador with the
approval, authorization, condonation or ratification of the Nicaraguan
Government Y
A. :No, there is no evidence that would show that.
Q, :Was there any substantial evidence that during the same period, any
significant shipments of arms were sent with the advance knowtedge of the
Government of Nicaragua from or across its territory to rebels in El Sal-
vador ?
A. :There is no such substantial evidence, no."
This testimony wüs no1 shaken despite vigorous questioning from the Court.
Indeed, in the course of his response to these questions, Mr. MacMichael was
&le to demonstrate how flimsy some of the so-called evidence publishedby the
United States in support of its allegations really was. Two more aspects of
Mr. MacMichael's testimony should be adverted to here.
First, on direct examination in answer to questions put by me as counsd for
Nicaragua, Mr. MacMichael testified that he did see evidence of arms traffic in
the period of the so-called final offensiveof the FMLN at the end of 1980and
the very beginning of 1981. He noted that at that time arms shipments were
going to the Salvadoran rebels from other countries in the region, suchas Costa
Rica and Panama. When 1 asked him: "Does the evidence establish that the
Government of Nicaragua was involved during this period?" he answered :"No,
it does not establish it, bu1could not rule it out." (P. 55,supra.)
When questioned by Judge Schwebel, Mr. MacMichael stated it as his opinion
that the Government of Nicaragua was implicated in such traffic, a point which
the Government of Nicaragua denies. But on both direct examination and in
response to questions from the Bench, he maintained - and this is the critical
point - that the evidence tending to show that there was arms trafic stopped
abruptly after the end of the january 1981 "final offensive", well before the
beginning of the United States military and paramilitary programme. And it has
never resumed throughout the subsequentfour-and-a-half years jihirl.).(See also138 MILlThRYAND PARAMILITARYACTIVlTIES
independent studies conducted by journalists, Ann. F. No. 177, pp. 204-205;
No. 120,p. 209.)
Second, Mr. MacMichael alst) reviewed for the Court the multitude of
sophisticated intelligencesources and methods that the United States brought to
bear on Nicaragua during this period. He said that the capabilities were very
high indeed and that Nicaragua was a high priority intelligence target (p. 55,
supra).
In view of these capabilities and priority, he stated that if arms in significant
quantities were being sent from Nicaraguan territory to the rebels in El
Salvador - with or without the Government's knowledge or consent - these
shipments could not have been accomplished without detection by United States
intelligencecapabilities(ibid..
The witness found the evidence adduced publicly by the United States to be
"scanty". "Much of it", he continued, "is unreliable, some of it is suspect and 1
believe ithas been presented in a deliberately misleading fashion on many
occasions" (p. 56, supra). And in support of this characterization he pointed out
that, despite the vast array of sophisticated intelligencedevices available. what
evidencehas been presented consists in large part of newspaper stories (some of
which may have been planted by the CIA in the foreign press), and statements
of defectors, made after prolonged detention and interrogation by Salvadoran
security forces.
Mr. MacMichael was present when the first covert action plan was discussed
in the CIA in the Fall of 1981.He said that he becamedisturbed from the outset
because, although arms interdiction was the "stated purpose" of the plan, no
evidence was presented to show that such arms traffic was then in progress.
Indeed,the CTAhad not made and neverdidmake the detailed and comprehensive
investigation of the sources and routes of arms supply to the FMLN that good
professional practice would have required (pp. 50-51, supra). As a result,
Mr. MacMichael testified that from the outset the "stated purpose" of arms
interdiction was "built into" this plan as a "plausible denial" and "to convince
the intelligencecommittees of the United States Congress to authorize the plan"
since "such purposes as provoking hostilities between Nicaragua and any of its
neighbours, or the destabilization of the Nicaraguan Government through this
programme were prohibited purposes" (p. 51,supra).
At the end of his testimony, he reiterated his view: 1 asked him: "Q.: Will
you state again your overall conclusion as tn the existence of arms traffiç
[rom Nicaragua to the Salvadoran insurgents?" he answered: '2. : 1 do not
believethat such a traffic goes on now or has gone on for the past four years at
least .. ." (P. 58, supra.)
It is a lawyer's clichéthat it is "impossible to prove a negative". But
Mr. MacMichael'stestimony, 1think, has done so in this case.
Mr. President, Members of the Court, may 1çonclude by reading from the
Court's Judgment in the UnitedStates Diplornatic and Consular Staff in Tehran
case, in which the United States was in the position that Nicaragua is in today.
1 will make minor adjustments to take account of the differencein the parties.
"The essentialSactsof the present case are, for the most part, matters of
public knowledgewhich have receivedextensivecoverage in the world press
and in radio and television broüdcasts from (the United States) and other
countries .. .Annexed or avvended to the Memorial are numerous extracts
of statementsmade by (~ica;a~ua) and United States officiaiseither at press
conferences or on radio or television . ..ln addition, after the filingof the
Memorial, and by leriveof the Court, a large quantity of further documents ARGUMENT OF PROFESSOR CHAYES 139
of a similar kind to those already presentedwere submitted by (Nicaragua)
for the purpose of bringing up to date the Court's information regarding
the situation. ..
The result is that the Court has available to it a massive body of infor-
mation from various sources concerning the facts and circumstances of the
present case, including numerous official statements of both (Nicaragua)
and United States authorities . . . The information available, however, is
wholly consistent and concordant as to the main fiicts and circumstances of
the case."
"The main tacts and circurnstances" that emerge from the "consistent and
concordant" body of evidence in this record is that the Government of the
United States is guilty of conducting unlawful military and püramilitary activities
in and against Nicaragua.
TlieCourt ro.sut l.OOp.m. TWENTY-THIRD PUBLIC SITTING (19 IX 85,10 a.m.)
Present :[Seesitting of 12IX 85,Judge Bedjaoui absent.]
QUESTIONSPUTBYJUDGESCHWEBEL
The PRESIDENT: 1 have to announce that, for reasons disclosed to me by
Judge Bedjaoui, he will be absent for both the morning and afternoon hearingç.
Before we proceed further, Judge Schwebel has a couple of questions to ask.
Judge SCHWEBEL:Mr. President, 1 wish to put some questions about what
the actual position of the Government of Nicaragua is. as the evidence before
the Court shows it. on the question of whether and, if so, to what extent it
has or has not been assisting the insurgençy in Ei Salvador. Possibly Professor
Chayes may feel able to respond to my questions directly from his testimony, or
the Agent may wish to respond when he speaks. In iiny event, it may be helpful
to the Agent to know the probletn 1see so that he rnay endeavour to deal with
it if he deemsit appropriate.
For the reasons 1spoke of at the outset of my questioning of Mr. MacMichael,
with reference to Article 53 of the Statute, and for the reasons to which Professor
Chayes referred in noting the dificulties faced by a State- and 1may add, by
the Court - when the other party to a case has absented itself. 1am sure that
the Agent and couunsel of Nicaragua appreciate the importance of clarifying
this matter. 1 might add that 1 put these questions in pursuance of what 1
understand to be the intent of Article 53, as its draf'tersunderstood it to be. You
may have seen the valuable book by Ourcolleague Hugh Thirlway, on the rather
contemporaneous subject of Non-uppmrance htfi~rethe Internarionul Court of
Justice. He notes that, while the Report of the Proceedings of the Advisory
Committee of Jurists which driifted Article 53 is not extensive, the American
member of that Coinmittee, Elihu Root, was accompanied, in an advisory
capacity, by James Brown Scott, Secretary of the Carnegie Endowment for In-
ternational Peace, who wrote a report for the Board of Trustees of the Endow-
ment, which has this to Sayabout the intentions reflected inArticle 53:
"The essential condition for the exercise of jurisdiction in such a case is
and must be, that the plaintiff, although proceedine.\purtp, should present
its case as fully as if the defendant were present, and that the Court be
especialiy mindful of the interests of the absent defendant. This does not
mean that the Court shall take sides. It does mean, howevcr, that the Court,
without espousing the cause of the defendant, shall, nevertheless, act as
its counsel. There is an apt French phrase to the efect that 'the absent
are always wrong'. The Court must go on the assumption that the absent
party is right, not wrong until the plaintiff has proven him to be wrong."
(At p. 25.)
Now on the question of whether and to what extent the Nicaraguan
Government is or has been rendering assistance to the insurgency in El Salvador,
1 find myself in a state of perplexity, not least because the evidence introduced QUESTIONS PUT UY JUOGE SCHWEBEL 141
by Nicaragua in my view is contradictory, or possibly contradiçtory. Let me
review salient elernents of the evidence as 1 understand it to be, and then put
some questions.
First, theres the sworn affidavit of the Foreign Minister of Nicaragua, which,
as Professor Chayes recalled yesterday, categorically stated:
"ln truth, my Government isnot engaged, and has not been engaged, in
the provision of arms or other supplies to either of the factions engaged in
the civil war in El Salvador."
The Foreign Minister's atfidavit goes on to acknowledge that there have been
clandestine arms shipments from or through Nicaragua apparently destined for
El Salvador, but maintained that "on numerous occasions" the security forces
of his Government have intercepted such shipments. And he notes that it is
difficult to prevent the use of Nicaraguan territory for such srnuggling because
of the remoteness of Nicaragua's border areas, which are mountainous and
characterized by dense jungles.
The next item of interest is a report of an interview by a correspondent of the
IVCW York Titneswith President Daniel Ortega Saavedra, in which the President
of Nicaragua, as reported in the New York Times of 18 July 1985,page IOtis
stated to have conceded that Nicaraguan territory had once been used to ship
weapons to guerrillas in El Salvador. He is further reported to have said that
members of the Nicaraguan armed forces had aided such shipments but they
had done so without Government sanction.
The next item of interest is also found in theIVC~V York Times, where, in the
issue of 8 September 1985, Professor Chayes and Mr. Reichler are reported to
have said :
"that they would acknowledge that the Managua Governrnent supplied
weapons to Salvador Guerrillas for the big January 1981 offensive against
the United States-backed Government in El Salvador. But they will argue
that there is no credible evidencof sustained arrns shipments since then."
Thüt is one point in the story. Then, after some paragraphs on other matters,
the story concludes with another pertinent point: "Mr. Reichler said that he
'strongly advised'Nicaragua that it should not undertake the court suit if it were
still involved in arms trafic in Et Salvador. 'They assured us from the beginning
that they had nothing tohide.'" Now my understanding is that Professor Chayes
rather generally and smilingly adverted to this story in his argument yesterday,
if I understood hirn correctly.
Thereafter, on 13September, Commander Carrion, as witness for Nicaragua,
affirrnedthat,
"My Government has never had a policy of sending arms to opposition
forces in Central America. That does not meün that this did not happen,
especially in the first years after the revolution in 1979and 1980 . .But
this was never an oflicial poli..." (P. 31, supru.)
Then on 14September a story appeared in the New York Timeswhich contains
the following passages:
"American lawyersfor the Nicaraguan Government, whose suitnow being
heard in The Hague charges aggression by the United States because of its
support for Nicaraguan rebefs, have acknowledged that weapons were
shipped to ElSalvador before the January 1981guerrilla offensivethere but
say thereisno 'credible evidence' of asustained flow since April 1981.They142 MILITARY ANI> PARAMILITARY ACTIVITIES
also say there is no proof that the Nicaraguan Government itself was
responsible for the arms that were shipped in late 1980and early 1981."
imight interpellate that, when Ireferred in myquestioning of Mr. MacMichael
to the statements attributed to Nicaraguan counsel in the Neiv York Titnesstory
of 8 September. 1 had not yet seen the story which appeared on 14 September,
which 1have just now quoted.
On 16 September, Nicaragua presented Mr. MacMichael as a witness.
Mr. MacMichael declared, on the basis of his study of the pertinent CIA files
and his familiarity with the subject-matter, that he would "rule in" Nicaragua's
having supplied arms to the insurgents in El Salvador in 1980 and 1981,
particularly in connection with their big January 1981 offensive. He reiterated
that conclusion unequivocally in a later point in his testimony, stating that it
was his opinion that it could be taken as a fact that at least in 1980/early 1981
the Nicaraguan Government was involvedin the supply of arms to the Salvadoran
insurgency (pp. 59-65, suprtr).
On 17 September 1985,there appeared in the New K)rk Times a story which
contained the following passages :
"ln an interview with the Neri!York Times earlier this year, President
Daniel Ortega Saavedra of Nicaragua said, 'Therewere times when we were
finding groups of 40 to 50 of Our army soldiers ready with knapsacks and
weapons on their way to El Salvador,' but, he süid, 'wehave had to detain
them and to punish them.'
Mr. Ortega said that at one point the first United States Ambassador to
the Sandinista Government, Lawrence Pezzullo, presented him with evidence
that an airstrip in the western province of Léonwas being used to transport
arms to Salvadoran rebels. He said, 'We took necessary measures so this
airstrip would not continue to be used for this type of activities.'"
lt is not altogether clear whether this story refers to the interview which Presi-
dent Ortega granted in July to a Neri?York Times correspondent, or to another
interview, but it appears to refer to the July interview, and contains quotations
from it.
That, 1believe,is the record as it stands, to which must be added thestatements
made in Court yesterday by Professor Chayes. in that latter regard, there is
just one more item worth mentioning. Professor Chayes referred the Court to
Nicaraguan Annex F, item 191, at page 292, as an accurate description of the
involvement of a CIA officia1with rontro opertttions. 1 might observe that the
very story in the Wu11Street Joi~rnul,whiçh is item 191 of Annex F, states, in
appraising the gains and losses of the contra programme: "lt has also reduced
the flowof arms into El Salvador". That is a statement introduced into evidence
by Nicaragua.
Now on the basis of this record. 1 wish to ask the Agent and counsel of
Nicaragua these questions, and 1 think it might be helpful if 1read al1 of my
questions and then if you wish to respond to any at this juncture 1can restate
them, and if you wish to put them al1 over to the comprehensive reply of the
Agent, they can be dealt with atonce; of course, 1willgiveyou a copy of this text.
My first question is this:
1. Does the Government of Nicaragua ask the Court to give fiill faith and
credit to, or in any measure to disregard, Mr. MacMichael's testimony?
2. In particular, does it ask the Court to believeor disbelieveMr. MacMichael's
opinion that it could be taken as a fact that at least in 1980/early 1981 the
Nicaraguan Government was involved in the supply of arms to the Salvador QUESTIONSPUT BY JUDGESCFIWEBEL 143
insurgency ? If the Court isasked to disbelievethis conclusion ofMr. MacMichael,
why should it be asked to believe hisother conclusions?
3. The story in the New YorkTimc.cof 17September contains direct quotations
of an interview with President Ortega bearing on the immediate question at
issue. Apparently a tape recording or transcript of the interview was made. May
1 ask Nicaragua to supply the Court with a copy of that transcript or tape
recording ?
4. May 1 ask if the Agent and counsel of Nicaragua find that the story of
14September in the Neiv YorkTimesis an accurate report of their views, or at
iiny rate of the viewsof Nicaragua's counsel,possibly in contrast to the story of
8 September? There are difierences between the two, that is clear.
5. 1observe that counsel are reported in the 14September report in the New
YorkTimes not as saying that the Nicaragua11Government was not responsible
for shipment of arms to El Salvador in 1980 and 1981, but that there is "no
proof" that it was responsible. 1sthat an accurate report?
6. For this question I would like to return to the quotation of President
Ortega's remarks, as recounted in the Neiv York Times. Let mejust recall it:
"Mr. Ortega said that at one point, the first United States Ambassador
to the Sandinista Government, Lawrence Pezzullo. presented him with
evidence that an airstrip in the western province of Léonwas being used to
transport arms to Salvadoran rebels. He said, 'Wetook necessary measures
so this airstrip would not continue to be used for this type of activities.'"
May 1 recall the exchange between Mr. MacMichael and me on this very
point, the airstrip being named Papalonal.
"Q.: Have you heard of an airfield in Nicaragua at Papalonal, or an
airstrip
A. :Yes, 1 have.
Q. :Are you aware of the fact that the United States Government under
the Carter Administration made representations to the Nicaraguan
Government about the use of that airfield as a principal staging area for the
airlift of arms to insurgents in El Salvador'?
A. :Yes. 1 recall that very well."
And Mr. MacMichael continues :
"1 spoke earlier under direct questioning from Professor Chayes regarding
information that had existed for that period - late 1980 to very early
1981 - and when 1mentioned defectors 1had in mind as a matter of fact
some persons . . . who stated under interrogation following their departure
from Nicaragua that they had assisted in the operations out of Papalonal
in late 1980and very early 1981,and as I Say,I am aware of this; there was
also an interception of an aircraft that had departed there - that had
crashed or was unüble to take offagain from El Salvador where it landed -
and 1 think that was in either very early January or late December 1980
and this was the type of evidence to which 1 referred, whiçh disüpppeared
afterwards.
Q. : 1 understand you to be saying, Mr. MacMichael, that you believe
that itcould be taken as a fact that at least in late 1980or early 1981the
Nicaraguan Government was involved in the supply of arms to the
Salvadorün insurgency. 1sthat theconclusion 1can draw from your rem~irks?
A. :I hate to have it appear that you are drawing this from me like a nail
oiit of a blockof wood but, yes. that is my opinion."Now 1have one last quotation, and 1apologize for the length of this, which is
quite critical to the last question I wish to put.
With precise reference to the same subject-matter of the Papalonal airstrip
which Mr. MacMichael addressed in the exchangejust quoted,the United States
maintains :
"The principal staging area came to be an airfield at Papalonal. The
pattern and speed of construction at Papalonal, which is in an isolated area
23 nautical miles northwest of Managua, lacking adjacent commercial or
economic activity, made clear its military funetion. In late July 1980. this
airfieldiras an agricdtural djrt airstrjp approximately 800 metres long.
By Decernber, photography revealed a lengthened and graded runway with
hard dispersa1areas, and storage buildings under construction. By January
1981,the strip had been lengthened to 1,200metres. A turnaround had been
added ai each end. A dispersal parking area with three hardstands had
been constructed at the Westend of the runway. Three parking aprons had
been cleared, and three hangar or storage buildings, each about 125metres
wide, had been constructed on the aprons.
On January 2, 1981,a C-47 was observed at Papalonal for the first time.
Two C-47'swere observed iiiFebruary. These C-47'sand DC-3's . ..were
used to ferry larger cargos of arms from Papalonal to areas of guerrilla
infiltration in southeastern El Salvador. Several pilots were identified in
Nicaragua who regularly flew the route into El Salvador. Radar tracking
also indicated flights from Papalonal to southeastern El Salvador.
On January 24, 1981, a C-47 dropped arms by parachute in the vicinity
of a small strip in southeastern El Salvador. On January 24. 1981,a Cessna
from Nicaragua crashed upon takeoff afier unloading passengers at an
airfield in El Salvador close to where the C-47 airdrop occurred. A second
plane, a Piper Aztec, sent to recover the downed crew, was strafed on the
ground by the Salvadoran Air Force. The pilot and numerous weapons
were captured. The pilot stated he was an employee of the Nicaraguan
National Airlines (LANICA) and that the flight originated from Sandino
international Airport in Managua." (Department of State, "Revo/ution
Beyond our Borders': Sunditlista I~~terventinrinCenlral Amrricu, September
1985,pp. 18-19.)
The correspondence between these allegations and Mr. MaçMiçhael's testimony
is, in my view, significant.
The foregoing quotation is supported by the text of an intelligence summary
written for the Carter White House on 9 January 1981, the day before the
Salvadoran insurgents' "final offensive"was launched. 1shall not take the time
of the Court to read that text, but 1believe that the Court will wish to read it.
It isreprinted on pages 28 and 29 OPthe same publication. with a photograph
of the airstrip.
7. Now my last questions. in the light of al1this, for the Agent of Nicaragua
are these: in view of the hct that the airstrip at Papalonal is not situated in the
inaccessible border mountains or jungle of Nicaragua, but is a rather short dis-
tance from Managua: in view of the fact or allegation that, over a period of
months preceding the January 1981 offensive ofthe Salvador insurgents, that
airstrip was upgraded from an agricultural dirt üirstrip of 800 metres to a
lengthened and graded runway with hard dispersal areas, storage buildings,
turnarounds, hardstands, parking aprons and three hangars, can the Court be
asked to believe that, when the President of Nicaragua stated: "We took the
necessary meüsures so this airstrip would not continue to be iised for this type QUESTIONS PUT BY JUDC~ESCHWEBEL 145
of activities", itwas not, or had not been, the officialpolicy of the Government
of Nicaragua to use this airstrip for precisely those activities, namely, the
shipment of arms to Salvadorün guerrillas? Or, on the contrary, do the foregoing
facts or allegations and President Ortega's statement indicate that the official
policy of Nicaragua was precisely what Mr. MacMichael conceded it to be in
1980and early 1981 :to send arms to the insurgents in El Salvador? Finally.
since the purpose of the insurgents in El Salvador clearly was to overthrow the
Government of El Salvador, was not such a policy of Nicaragua. if it existed,
tlirected towards the same end? STATEMENTBY MR. ARGÜELLOGOMEZ
AGENTFOR THEGOVERNMBNTOF NICARAGUA
Mr. ARGUELLO GOMEZ: Mr. President, Members of the Court. 1 think
Judge Schwebel offered to give us the question.
The PRESIDENT: You will ülso have the verbatim records of this morning's
hearings - the entire question as as it has been framed by Judge Schwebel,and
because it is a long question, and there are several sub-questions, 1suggest that
ifyou so desire you could give a reply in writing later.
Mr. ARGÜELLO GOMEZ: Yes, Mr. President, that was my intention be-
cause we have to analyse what are the legal questions contained here in order to
formulate a legal analysis. At this point, 1wanted to give again our views on the
meüning of Article 53; Judge Schwebel has expressed his opinion on the
significance of that Articl;also on the significanceof some of the evidençe. The
position of Nicaragua and of any objective reasoning in this case is that it is of
no relevance to discuss happenings fiveyears ago when the evidence itself proves
that in the past absolutely no question has been formulated as to the continuation
of that situation;the development of that situation is, in the view of Article 53,
what we are doing in this Court at this moment.
Without going into specificsof the questions, 1 think it is necessary to repeat
what President Ortega has pointed out; what our Minister of Foreign Afïairs has
pointed out; what Commandant Carrion has pointed out; and, what Minister
Huper has pointed out: that is, that it has not been the policy of the Nicaraguan
Government to support insurgencies anywhere. The statements contained and
read are very clear indicating the preoccupation of the Nicaraguan üuthorities
when they were informed of certain happenings, and the action that was taken
to suppress it immediately. Now with that statement, I will take advantage of
your offer, Mr. President, and analyse the questions and probably in my Agent's
speech tommorrow will answer them. ARGUMENTOFPROFESSORBROWNLIE
COUNSEL FOR THE GOVERNMENT OF NICARAGUA
Professor BROWNLIE : Mr. President, Members of the Court. May it please
the Court. Mr. President, in following the speeches of Professor Chayes and
Mr. Reichler, it is my task to seek to assist the Court in its appreciation of
particular aspects of the evidence. 1 have sat listening to the factual account
presented by my colleagues and 1may Saythat that history is no less depressing
than it was when 1 first becanle involved as counsel at the outset of this case
early last year. Indeed, therevelations which followed the mining of Nicaragua's
harbours, together with an increasingly bold public expression of the policy aims
of the Respondent State, have introduced newelements ofdictation and arrogance.
It is always a privilege to be involved with the practica1 business of settling
disputes by peaceful means and to be given the role of counsel before this Court.
On this occasion, it is a privilege afso to work with an Agent who has faced
great responsibility and pressures with fortitude and dignity and also to work
with my American colleagues who represent the tradition of the Rule of Law in
their country.
Such an occasion is normally also a pleasant one, but 1 regret to Saythat 1do
not find that my role on this occasion gives me any pleasure. 1would prefer that
the circumstances which gave rise to my presence here had never arisen.
The spectacle of a small State subjected in the most cynical way to coercion
and physical attack by a superpower over a period of some four to five years is
grim. Nicaragua has had no choice but to seek al1 available means to protect
herself within the law. The Contadora process. the complaint to the Security
Council, and the present proceedings, are al1 part of an effort to take al1
measures available.
From the period latein 1983and early in 1984, when the pressure was being
sharply increased, Nicaragua took her decision to initiate these proceedings. This
period, it may be recalled, included the invasion of Grenada, a series of sabotage
attacks, and the mining of Nicaragua's harbours. It goes without saying that the
justiciability ofthese proceedings is not in question and probably never was,
given the voting on admissibility in the first phase of the proceedings. And yet
it is obvious that the scale of the case is unusual and that a case of this type
presents the Court with a task quite unlike that in delimitation cases based upon
speciul agreements.
No doubt the proceedings would have had a more convenient aspect if they
had been restricted by the Applicant State to a çomplaint based exclusivelyupon
either the breaches of the FCN Treaty, or the mining of harbours. or the attack
on Corinto. or some combination of these sources of wrong-doing. But would
such a course have been either realistic or morally acceptable? Mr. President, to
expect such constraints in this case would be rather like advising a man with
niany serious wounds, and faced with threats of worse to corne, to sue only for
hurt to feelings or for only one of his wounds. Dif-Ficultthough this case may
be, it has a structure and reality dictated by its particular factual background,
and by the nature of the evidence, which has a quality, a pattern and a coherence,
which cannot be denied.
It is the nature of the evidence which is all-important, and this presents some
technical issues ofevaliiation to which 1shall now turn. MlLlTAIiA YND PARAMILITARYACTIVITIES
The precise issues of evaluating the evidence in this case must be prefaced by
some observations about the role of the principles of evidence in international
Iaw. The Court will be relieved to hear that iny purpose is not to produce a
lecture on the law of evidence, but to point to certain questions of technique,
policy and general approach, with the aim of providing assistance to the Court
in its task.
It is sometimes said that "there are no rules of evidence in international law"
(cp, O'Connell, Ititeriiationul Luiv, 2nd ed., Vol. III, p. 1096), and it is normal
for standard textbooks and works of reference, such as Whiteman's Digest, to
ignore the subject of the law of evidence more or less completely. However, the
proposition that there are no rules of evidence in international law is only true
in the narrow sense that international law does not appear to give prominence
to formal rules of exclusion - or admissibility- of evidence in the wüy in which
common law systems do. And in any case the literature of public interna-
tional law is not lacking in studies of the problems of evidenceand proof. and such
studies include works by two Members of the present Court. (Feller, The Mrxi-
can Claims Coniniissinn.~ ,923-1934, New York, 1935,pp. 251-283; Witenberg,
Recueil des cozlrs, Vol. 56 (1936-11 ), pp. 5-102 ; Sandifer, EvideenceBefirti
In~ernutionulTrihunuls, 1939, revised edition. Charlottesville, 1975; Rousseau.
Principesgénérauxdedroit international public, Vol. 1, Paris, 1944, p. 912 ;La-
live, Jean-Flavien, Annuaire Suisse, Vol. 7 (1950), pp. 77-103 ; Fitzmaurice,
Britisli Year Book, Vol. 29 (1952), pp. 57-60; Cheng, Gcneral Principles cf
Luw, London, 1953, pp. 302-335; Evensen, Nordisk Tidsskrift, Vol. 25 (1955),
pp. 44-59; Simpson and Fox, International Arbitrurioiz,London, 1959, pp. 192-
213; Rosenne, The Loiv und Practicc of the Interntltionul Court of Justice, 1965,
Vol. II, pp. 580-584; Lachs, contribution to the volume La preuve en droit (ed.
Perelman and Foriers), Travaux du Centre national de recherches de logique,
Brussels. 1981.pp. 109-122.)
For present purposes it is necessary to draw attention to the key principles
which govern the admissibility and evaluation of evidence in this Court. The first
such principle is that it is the Court which has the preponderant role in assessing
evidence, and in seeking to establish the objective truth (see Evensen, op. cit..
pp. 44-46; Lachs, op. cit., pp. 113-114). However, this principle is of considerable
generality and its significance probably lies in the negütive indication ic gives
that the Rules of Court are not büsed upon the "adversarial procedure" of the
common law. The second key principle consists of the complete freedom of
action and of appreciation which international tribunals, including this Court,
enjoy in respect of rnatters of evidence (see Evensen, op. cit., pp. 45-46; Lachs.
op. cii., p. 111). This principle calls, in my estimation, for careful commentary.
Tt is apparently intended to express the idea that the Court is not bound by a
set of rules of admissibility (or exclusion) of the type met with in systems of
common law, and thus the Court is primarily concerned with the relevance and
weight of evidence and tends to leaveaside the issueof admissibility (or exclusion)
as such (see Rosenne, op. cif.. p.584). Al1this is no doubt true, but in terms of
practical application the principle of judicial freedom in the matter of evidence
is heavily qualified by the necessity, which the judicial function forces upon the
Court, of selecting reliable evidence and discriminating against weak evidence,
either by open rejection or as a consequence of giving very little weight to evi-
dence not actually rejected.
This qualification of the principle of judicial freedom can be expressed in the
form of the third of the key principles which, in my submission, govern the ARGUMENTOF PROFESSOR BROWNLIE 149
evaluation of evidence before international tribunals. The third principle is,uite
simply, to the effect that ordinary principles of logic and good sensemust govern
the evaluation of evidence since, if the Court is to satisfy itself that "the claim is
well-founded in fact and in law", as required by the terms of Article 53 of the
Statute, some criteria of logical discrimination and the weighing of evidencemust
be found. It isonly bymeans of such criteria that the Courtcari?acting judicially,
establish the truth of the facts relevant to its decision with reasonable certainty.
Subject to a certainproviso to be made in due course concerning the standard
of proof in the context of Article 53 of the Statute, the Applicant State has
taken, and will continue to take, care to assist the Court as far as possible in
evidential matters. In this respect the Applicant hasplaced express reliance upon
the pertinent logical categories in presenting evidence and has sought to present
the best evidence available.
Mr. President, having concluded my brief general remarks on the rules of
evidence, 1can now turn to specific aspects of the evidence. The documentary
evidence submitted by the Applicant consists to a considerable extent of the
express admissions on the part of senior United States officials on the public
record. The record also includes evidence of the Administration's approaches to
Congress for the funding of military and paramilitary operations in Nicaragua
and the resulting cornmittee deliberations and legislation. The Respondent State's
policies of coercion have long been matters of public knowledge and that is itself
a form of evidence, as appears from the Judgment in the case concerning United
States Diplornuricund Consi~lurStuffin Tehrun(United Srutescf Arnericu v. Iron)
(I.C.J. Reports 1980, p. 9,para. 11). However, two characteristics of the public
record are of particularimportance evidentially speaking. The firststhe probative
value of admissions against interest by leading United States officials, and the
second is the evidence of a system or consistent pattern of intentions, purposes
and acts. These characteristics are important and deserve some emphasis.
In the case of express admissions the probative value derives from the fact
tliat the party makes a declaration adverse to its case. The evidential significance
of admissions is increased in the case of :i State party when the admission is
made by a senior official and the subject-matter lies within his or her personal
knowledge and professional cornpetence. An additional criterion of probative
value is the expression of official policies and intentions at the highest level of
government, and 1would refer in this context to the view of the Chamber of the
Court in the case concerning Delimitation (i ih~Murilime Boundary in the Gulf
of Maine Areu (CunadalUizited States of Americu) (I.C.J. Reports 1984,
pp. 307-308,para. 139).The admissions against interest invoked by the Applicant
State in the present proceedings involve the President of the United States,
together with other leading officials, such as those occupying the office of
Secretary of State, and that of Vice President.
In the precise circumstances of the case there are further elements which con-
siderably enhance the evidential significance of the admissions made by senior
oficials. The first particular element of enhancement lies in the fact that since
9 April 1984, that is of course the date of the Application, the issue of legal
responsibility has been in the open for al1to see, it has been sirrle tupis. This
new phase in the history of relations between the United States and Nicaragua
was also heralded by the furore in Congress concerning the revelations of the
mining of Nicaragua's hürbours (see Memorial, Ann. E, Attachments 9, 10 and150 MILITARY AND PARAMILITARI-ACTIVITIES
1l), the resignation of Senator Moynihan as Vice Chairman of the Senate Select
Cornmittee on Intelligence (stateinent of 15April 1984,Attachment 1l), and the
receipt of diplomatic protests from iinumber of States where ships had been
damaged by mines (Memorial. IV, p. 125, para. 481).
In simple terms, Mr. President, with effect from 9 April 1984,the admissions
were post iiternnrorumand the senior officials concerned could not be heard to
say that they did not understand the implications of what they were putting on
the record.
The second particular element of enhancement consists of the description over
a long period of the actions taken against Nicaragua as "covert actions": as, for
example. in the response by the President in his newsconference on 19 October
1983 (Memorial, Ann. C, 1, 2). In my submission such terminology of covert
actions strongly suggeststhat the activity concerned isnot reconcilable withlegality.
The third element of enhancement is the fact that a number of statements
by senior officialsshow a consciousness at a certain stage that there are specific
issues of legal responsibility whicharise frorn the actions directed against Nica-
ragua. Two exarnples will suffice. The first is the speech by Ambassador
Kirkpatrick at the conference of the American Society of International Law on
12 April 1984(Memorial, Ann. C, II: 4). The second is the Counter-Mernorial
submitted by the United States in the Jurisdiction and Admissibility phase of
the present case. Both these items show a clezir consciousness of the issue of
State responsibility raisedby Nicaragua's Application.
1conclude my remarks on the subject of admissions by respectfully reminding
the Court that such submissions may have different types of relevance.
First, express admissions provide cogent evidence of United States control
over mercenaries carrying out operütions in and against Nicaragua.
Second, admissions constitute direct evidence of intention and purpose in
relation to United States assistance to and control over forces operating against
Nicaragua.
Third, admissions form evidence of the responsibility which the United States
bears for the military and paramilitary operations against Nicaragua.
The first characteristic of the public record in this case is thus the incidence,
prominence and probative value of express admissions by the leading officialsof
the United States Government. Marching with this is the second characteristic
of the public record, the existence of a system or consistent pattern of intentions
and activity visible in the mass of evidence submitted. The consistency of the
pattern justifies the inference, thelogical conclusion. that the events form part
of a coherent and deliberate policy, resulting from decision. planning, speçified
goals. programme implementation and pre-arranged funding, on the part of the
United States Government.
The express admissions against interest which are a primary feature of the
evidence in this case are complemented by the invocations of the legal category
of.collective self-defence by the United States in the course of the previous
proceedings and, in particular, in the Counter-Memorial siibmitted on the ARGUMENT OF PROFESSOR BROWNLIE 151
Questions of Jurisdiction and Admissibility (see paras. 6, 202 and 515-519). The
details are to be found in Nicaragua's Memorial in the present phase
(paras.191-204), and need not be repeated here.
The present purpose is to point to the way in which one f'ormof evidence is
complemented, corroborated and reinforced by another form of evidence. The
deliberate invocation of collective self-defence,ated and episodic though this
has turned out to be, involved an acceptance of legal responsibilitythe United
States in respect of the military and paramilitary operations in and against
Nicaragua, and this acceptance is a matter of public record and has been
expressed in the face of the Court in the incidental proceedings relating to this
case. It isclear that the use ofthe justification of collective self-defenceconstitutes
a major admission of direct and substantial United States involvement in the
niilitary and paramilitary operations directed against the Applicant State. The
references to colfective self-defence imply direct participation in and control of
the armed forces involved, rather than indirect assistance in its various forms.
The point of this argument on behalf of Nicaragua stands in need of a certain
clarification. Nicaragua disputes that the justification advanced by the United
States is applicable on the facts. However, since the United States ha$decided
not to support its assertionby any evidence in these proceedings, the voluntary
plea of collective self-defence necessarily connotesa prima Ficie legal respon-
sibility subject to the validation of the defence by the adduction of sufficient
evidence. No evidence is ofered by the Respondent State in this Court, and there
is asubstantial weight of evidence to contradict the hypothesis of collective self-
defence.
In particular, the publicly expressed purpose of United States coercio- the
overthrow of the lawful Government of Nicaragua - is essentially incompatible
uith any concept of collective self-defence in a legal fom, and the tactics
employed, such as the use of terrorism against civilians, are also incompatible
with that concept.
ACCEWANC OER RECOGNITIO ONFRESPONSIBILI TYYTHE UNITEDSTATES
Thus far, Mr. President, my argument has relied upon the express admissions
of United States offrcialsin two forms.
First, in the form that express admissions against the interest of the party
making them constitute a significant part of the evidence supporting the com-
plaints presented in the Application, but are not in themselves conclusivof the
issues of responsibility and liability.
Second, in the form that the invocation of the plea of collective self-defence
in the incidental proceedings related to thecase constitutes a form of estoppel
or preclusion, to the efect that the United States bears a prima facie legal res-
ponsibility for the military activities in and against Nicaragua, subject only to
tlie validation of the hypothesis of collective self-defence bythe introduction of
sufficientevidence.
The second form of reliance goes some way, but still not the whole way, to
the view that the admissions on the public record. whether in proceedings before
the Court or elsewhere, are conclusive on the question which in English is termed
"liability", thats to say, the issue of legal responsibitout court.
In the next phase of my presentation the purpose will be precisely to take the
argument the whole way, and thus to assert and justify the proposition that the
express declarations of responsible United Statesofficiais involve an acceptance
or recognition of legal responsibility which, in the circumstances, constitutes152 MILITARY AND PARAMILITARIA - CTIVITIES
independent basis of legal responsibility, which operates autonomously alongside
the causes of action invoked by Nicaragua in the Application and in the Memorial
concerning the Merits of the case.
At the risk of stating what is perhaps obvious, 1 would point out that the
three forms of reliance on the express declarations ofofficiaisarenot interdepen-
dent and, therefore, a failure to convince the Court on the more ambitious
argument should not, in my submission, prejudice the Court's view of the other
two forms of reliance upon express declarations.
Some examples
Before 1develop the legal arguments it will be helpful if1 give some examples
of express declarations which, in any reasonable construction, involve an accep-
tance or recognition of legal responsibility for a particular course of conduct.
The following fiveexamples provide a sufficient sample of the express declar-
ations of the type in question made by President Reagan.
The first example concerns the attack on the oil storage tanks at Corinto. At
his news conference on 19 October 1983 President Reagan is asked a direct
question relating to the attack on Corinto which had occurred on 10 October.
Me was asked whether it was "proper for the CIA to be involved in planning
such attacks and supplying equipment for air raids?". The questioner then
continued: "and do the American people have a right to be informed about any
CIA role?" (Memorial, Ann. C, 1, 2).
The President's response was to assert the rightness of the use of covert activity
when a country "believes that its interests are best served". There is no denial
of involvement, only a refusal to discuss specific cases. Moreover, there is a
highly significant reference to "some of the specificoperations down there". This
was in response to a question which linked the CIA to a specific subject-matter
involving the use of force against another State. The reaction isone of essential
approval. There is no reference to any legal justification even in general terms.
There is no denial of the CIA connection. Above all, the question evokes no
surprise, no alarm. President Reagan is clearly possessed of prior knowledge of
what he describes as "the specificoperations down there".
The next example in my submission is no less impressive. At a White House
press conference on 5 May 1983,earlier in the same year, the background to the
whole series of declarations was established. The material part of the exchange
was as follows :
"Q. : Mr. President, can 1 follow up on something you said earlier? Did
Iunderstand you to say that if you were forced tostop aid to the Nicaraguan
guerrillas, that you would try to funnel through other countries?
ThePresidenf: No, 1was saying that's what the Committee said, that the
Committee said we would have to go overt, and then, in going overt, you
can only give money to another government. And, if you did that, then you
would have to be depending on - well, maybe those other governments in
Central America would givethat money to the freedom fighters in Nicaragua.
Now, if they want to tell us that we can give money and do the same
thing we'vebeen doing - money, giving, providing subsistence and so forth
to these people directly and making it overt instead of covert - that's al1
right with me. I just don't want the restrictions put on it that they might
put on.
Q.: You'd be willing to accept the idea of overt aid to the anti-Sandinista
guerrillas in Nicaragua ? ARGUMENTOF PROFESSOR BROWNLIE 153
The President: Yes, but not if they do it as one individual or more than
one, as suggested on the Hill - that they would do it and, then, we would
have to enforce restrictions on the freedom fighters as to what tactics they
could use.
And 1 have said that if we were to do that, then 1 would expect that the
only fair thing would be that the Nicaraguan Government would itsetf
impose the same restrictions on the freedom fighters in El Salvador, only 1
don't cal1 them freedom fighters because they've got freedom and they're
fighting for something else. They're fighting for a restraint on freedom.
Q.: Can 1just . . . Al1 of a sudden now we're aiding freedom fighters. 1
thought wewerejust interdicting supplies into ..." (Memorial, Ann. C, 1,1 .)
In his response to this last question the President explained his conception of
"freedom fighters".
Mr. President, although it may be a little tiresome and difficult to follow 1
Iiave produçed the entire sequence of questions and answers from the White
House trünscript.
As Nicaragua has pointed out in its Memorial, the various exchanges between
the President and the press on 5 May 1983involve a series of admissions that
the United States was systematically giving aid to mercenaries carrying out
operations against the Government of Nicaragua. The element of debate in the
exchange is lirnited to the modalities of such aid. The facts of it happening and
its purpose are fully accepted. Moreover, the President accepts that the United
States has the means to "enforce restrictions" on the policies and tactics of
the guerrillas. And yet "restrictions" can only be "enforced" if the situation is
characterized by elements of direction and control.
1 move on to the third example which is provided by the interview with the
Nerv York Times given in the White House on 28 March 1984.President Reagan
recognized there, in the clearest possible language, that the United States was
assisting the contrus who were, in the phrasing of the question to which the
I'resident was responding, "seeking to overthrow a government that we have
diplornatic relations with". The President's replymakes no attempt to deny the
facts; either the fact of giving assistance to the guerrillas or the fact of having
the purpose of overthrowing the Government of Nicaragua. His reply includes
the following passage :
"And 1 see no dichotomy in our supporting the governmment, the
dernocratic government of El Salvador, and the contrus here - and we've
made it plain to Nicaragua - made it very plain, that this will stop when
they keep their promise and restore a democratic rule. And have elections.
Now, they've finally been pressured, the pressure's led to them saying they'll
have an election. 1 think they've scheduled it for next November . . ."
(Memorial, Ann. C, 1. 4.)
The fourth example of such declarations consists of the now famous "say
1Jncle" statement in a press conference at the White House on 21 February 1985.
The full exchange of question and answer needs to be followed through in order
to obtain a proper appreciation of the President's thinking. The exchange pro-
ceeds as follows:
'&Q :. Mr. President, on Capitol Hill - on Capitol Hill the other day,
Secretary Shultz suggested that a goal of your policy now is to remove the
Sandinista government in Nicaragua. 1sthat your goal?
ThePresi~lrnt : Well, remove in the sense of its present structure, in which
it is a comrnunist totalitarian State, and it is not a government chosen by154 MILITARYANI) PARAMILITARY ACTlVITIES
the people. So, you wonder sometiines about those who make such claims
as to itslegitimacy. We believe, just as 1 said Saturday morning, that we
have an obligation to be of help where we canto freedom fighters and tovers
of freedom and democracy, from Afghanistan to Nicaragua and wherever
there are people of that kind who are striving for that freedom.
And we're going to try to persuade the Congress that we can legitimately
go forward and hopefully, go forward on a multi-party basis with the Scoop
Jackson plan for trying to bring development and help to al1 of Central
America.
Q. :Well, Sir, when you say remove it in the sense of its present structure,
aren't you saying thatyou advocate the overihrow of the present government
of Nicaragua ?
The Presidutzt:Well, what I'm saying is that this present government was
an element of the revolution against Somoza. The freedom fighters areother
elements of that revolution. And once victory was attained, the Sandinistas
did what Castro had done. prior to their time, in Cuba. They ousted and
managed to rid themselves of the other elements of the revolution and
violated their own promise to the Organization of American States, and as
a result of which they had received support from the Organization, that
they were - their revolutionary goal was for democracy, free press, free
speech, free labor unions, and elections, andso forth, and they have violated
that.
And the people that are fighting them, the freedom fighters opposing
thein, are Nicaraguan people who want the goals of the revolution restored.
And we're going to try to help.
Q. : 1sthe answer yes, Sir? 1sthe answer yes, then'?
The Prcsident : To what ?
Q. : To the question, aren't you advocating the overthrow of the present
government? If. . .
Tiie Prusideni: Not if the present ...
Q. : .,. you substitute another form of what you say was the revolution?
Tlte Presidetit: Not if the present government would turn around and say,
al1 right, if they'd say, 'Uncle'.Al1 right, come on back into the revolu-
tionary government and let's straighten this out and institute the goals."
(Memorial, Ann. C, 1, 14.)
As the Court has heard before, Mr. President, saying "Uncle" is a colioquial
expression indicating willingness to submit, the equivalent of saying "pax" in
some other cultural contexts. The entire exçhange can be summarized in the
forrn of two propositions :first, that the goal of United States policy isto remove
the lawful Government of Nicaragua; and second, that this policy is to be
enforced by any coerçive means available to the present Administration.
Later in the same press conference the President affirmed the position and also
asserted, though in very general terms, that what his Administration was doing
was within the United Nations and Organization of American State Charters.
However, no actual justification was given, and the senior official of the United
States must be presumed to know that there is no right to overthrow the govern-
ment of another State on political grounds.
The fifth and last example of an express declaration is provided by the White
House press conference on 4 April of this year. On this occasion, with a con-
siderable fanfare, Presidcnt Reagan presented what he termed "a peace propo- ARGUMENTOF PROFESSORBROWNLIE 155
sal" which, in itself, constitutes an admission both of United States-controlled
co?ztrasand the purpose behind the operations of the cotitms. He said:
"I'm calling upon both sides to lay down their armç and accept the offer
of church-mediated talks on internationally supervised elections and an end
to the repression now in place against the Church, the press and individual
rights.
To membeïs of the Democratic Resistance, 1 ask them to extend their
offer of a cease-fire untiJune 1st.
To the Congress. 1ask for immediate release of the $14 million already
appropriated. While the cease-fire offer is on the table, 1pledge these funds
will not be used for arms or munitions. The funds will be used for food,
clothing, medicine and other support for survival. The Democratic oppo-
sition cannot be a partner in negotiations without these basic necessities.
If the Sandinistas accept this peace offe1,will keep my funding restriction
in effect. Butpeace negotiations must not become rrcover for deception and
delay. If there is no agreement after 60 days of negotiütions,1will lift these
restrictions, unless both sides ask me not to." (Memorial, Ann. C, 1, 19.)
Mr. President, the so-called "peace proposal" is thits what a lawyer would cal1
21conditional offer, in eirect. an iiltimatum: ügree to fundamental changes in the
Government of Nicaragua within 60 days or face a renewed onslaught from the
cot1rru.sThe peace proposa1 emphasizes that the activities of the United States,
in conjunction with the contrus, form a single coherent political instrument
intended to achieve a set of policy objectives decided upon in Washington.
Thereare many statements by Administration officiaiespeciüllyin the period
since January of this year. whiçh afirm the goals of United States policy, and
the chosen method of implementation in relation to Nicaragua. The documen-
tation is available to the Court. The record includes a statement by Secretary of
State Shultz on 19 February, testifying before the House of Representatives
Foreign AEdirs Committee(Memorial, IV, p. 34), the public address by President
Reagan on 1 March (Memorial, Ann. C, 1, 15, IV, p. 185), the radio address by
the President on 8 June 1985,which is in the supplemental evidence given to the
Court when these proceedings were about to begin, and many others.
And the public record includes documents revealing the role of Congress and
its committees in relation to the Administration policy of supporting theconZrlis.
This large family of express declarations. together with the legislation which
has been submittcd to Congress, and the legislation actually adopted by Congress,
constitutes an acceptance or recognition of legal respoiisibility on the part of the
United States in respect of the military and paramilitüry operations referred to
in the Application and the Memorial on the merits.
That, Mr. President, is my submission, and it remnins to me to present the
argument which provides the legal foundation for that submission.
Acceptunce(in$ Rrcognition: The LegfdArgument
In the Corfil Clmnel, Mrrits. JU~~MPII tI, Court gave considerable attention
to what it crilled the "attitude" of Albania in the context of deciding whether
Albania had knowledge of the mining (I.C.J. Reports 1949. pp. 18-20). The
Court had no difficulty in establishing what that attitude was by examining the
relevant hcts. The logic is clear: depending on the legal context, legal çonse-
quences will fiowfrom the attitude of a government when evidence can establish
the intention or attitude witheasonable certainty. Ifthe attitude of a government,
as evidenced by the persistent public pronoiincements of responsible offiçials.156 MILITARY AND PARAMIL~TARY ACTIVITIES
ümounts to positive approval of an illegal course of action, then the logical
consequences must be responsibility for that course of action, and similar
reasoning is to be found in the Judgment of the Court in the United States
Diplomatie und Cr~nsulurStaff' iil Tehrun case (I.C.J. Reports 1980, pp. 33-35,
paras. 69-75).
The proposition that acceptance or recognition of responsibility may consti-
tute an autonomous basis of State responsibility has deep and healthy roots in
ordinary legal logic, in general principles of law, and in familjar concepts of
general international law.
Those deep and healthy roots include the following legal institutions and
principles.
The primary principles are, quite simply, those of sovereignty and consent. If
a sovereign State commits itself unequivocally to a particular expression of will,
then, according to the ordinary principles of logic, an international tribunal has
the power to give an appropriate effect to that expression of will. The legal
validity of treaties and the principle pacta sunt srrvunda are the important
exampIes of the effects of sovereignty and consent, but they are not the only
examples.
It has long been accepted that a State may create obligations for itself by
means of unilateral declarations: the record will contain references to the views
of Lord McNair, Laiv of Trearies, Oxford, 1961, page Il ; Rousseau, Droit
irztertzufir~naplublic, 1, Paris, 1971, pages 416-432; Suy, Les uctes juridique
uiiilatPrm.~,Paris, 1962; Judge Lüchs,Syracuse Jnurrîu/c$/nternationcll Laiv rd
Conrmerce,Volume 10 (1983), page 239 at pages 266-270; Paul De Visscher,
Essuys in Internurionul Law in Honour cfJudgc Manfred Lachs. The Hague,
1984, pages 459-465 (and see. in particular, the conclusion at p.465). That
unilateral declarations can have substantial legal consequences is evidenced by
the Judgments of the Court itself in the Nuchar Test cases (1.CJ. Reports 1974,
p. 253at pp. 267-268, paras. 42-46).
Mr. President, the Court is no doubt welkaware that there is no precedent in
the decisions of international tribunals for applying the concept of unilateral
declarations to a case such as the present. But. for the lawyer, logic can only
apply within a particular context and the present case involves the context of
State responsibility just as the Nuclcar Test cases involved the context of
admissibility. The destination in each case may be difTerentalthough the jtiridicai
vehicle remains the same. It is for a tribunal to put legal logic to work in
accordance with its judicial discretion and the special circumstances of the case
before it.
However, the concept of unilateral declarations is not the only relevant legal
institution. There are several others. Thus the significance of admissions in the
law is well accepted both in international jurisprudence and in the doctrine. The
evidential signifiçanceof admissions has been pointed to by Fitzmaurice (British
YearBook, Vol. 30(1953), pp. 44-47); Cheng (CenerulPrinciplesoj'Lliiv,London,
1953, pp. 141-147); and Martin (L'estoppelen droit infernuriorialpublic. Paris,
1979, pp. 194-204); (and see also the Memorial of Israel, Acrial Incidetztcase,
I.C.J. Pleadings,pp. 99-100. paras. 89-90). Whilst it isclear that admissions have
a contributory and partial effect and are not, evidentially speaking. conclusive,
the fact remains that the logic behind the legal force of admissions is identical
with the logic behind the iegal Forceof unilateral declarations.
The congenor of unilateral declarations and admissions is the legal concept of
recognition. This is normally applied in the context of recognition of States and
governrnents. But it is not so confined either by logic or in actual practice, and
thus it may apply to a variety oi'rights and legal situations. This wide application ARGUMENT OF PROFESSORBROWNLIE 157
is generalty accepted in the literature: 1 refer again to the treatise of Rousseau
(Droir internaiional public,1, Paris, 1971, p. 426, para. 344); Venturini (Recueil
(/es cours, Vol. 112 (1964-Il), pp. 416-419 (with useful citations)); Charles De
Visscher (Les eflertiviiés en droir inrernationulpnhlic, Paris, 1967, pp. 23-24,
101-111) : Suy (LESactes juridique.^~milaféra~e l.n~droit internutionalpllblic,Paris,
1962,pp. 189-214 (see, in particular, at pp. 202-206)). Whilst examples will be in
practice exceptional, there is no logical objection to the application of the
principle of recognition to the acceptance of legal responsibility for particular
courses of conduct; and such acceptance is after al1 only another case of the
recognition of a legal situation. Recognition in this context can be seen to be the
natural extension. the more mature version. of the admission against interest.
Unilateral declarations, admissions, and the recognition of legal situations,
form the international law branch of a Family of legal principles which is well
represented in municipal legal systems. The analogues within municipal law
include the institution of the waiver of claims, which is the logical complement
of the acceptance of liability. In the system based upon the common law there
are two further analogues - that is, apart from admissions and confessions of
linbility. One such analogue is the acknowledgement of a debt which would
ntherwise be barred by the Limitation Act which excludes thecontractual remedy
after a certain time has elapsed; see, Forexample, ans on'.^ Lurvof Contract, 26th
edition by Guest, Oxford, 1984,page 524. Another such analogue in the sphere
of public law this time is the principle that the Crown is bound by the law of
estoppel by representation: see Hogg, Liabilily of flic Croiunin Austrulia. Netir
%caloridairdthe UnitedKtngcIoin,Melbourne, 197 1, pages 146-147.
Mr. President, 1 know that counsel should not take it on hirnself to instruct
this Court on matters of law but, as it is often saidat the Bar, it is occasionally
difficultto find authority for fundamental propositions which when stated seem
obvious. Hence my essay in legal principles. With your permission, 1 shall now
move from doctrine to practice in the form of the Memorials of Israel and the
lJnited States in the Arrial It~cidentcase :1.C.J. Pleadings, Aeriul Incident c?f
27 Jiily 1955.
The Co~rrtaàjour~ledjrom11.20to 11.40 rrin.
Mr. President?before the break I had looked at the various matters of principle
relating to the concept of the acceptance and recognition of State responsibility
as a result of express declarations made by senior officiaisand 1 had come to the
point where 1was going to move from doctrine to practice and there was some
practice in the rather interesting form of the Memorials of lsrael and the United
States in theAertulIncidentcase (1.C.J. Plt.adit~g.~,vriul IncicJrntof27 July 1955).
In those proceedings the Mernorial of Israel, in which no doubt Shabtai Ro-
senne had a hand, places careful and - in my submission - justified reliance
upon the principle that admissions of responsibility by a respondent State may
have "a peremptory and final character" (ibid., p. 99, para. 89). The passages in
that Mernorial which affirm the principle are a follows:
"89. Regarding the peremptory and final character of the admissions
concerning the state of mind and behaviour of the units of the Bulgarian
armed forces, contained in the Bulgarian Notes Verbales of July and August
1955, it issubmitted that the position is clear. International law has long
recognized the conclusiveness of admissions of this character. The general
principle was clearly stated as far back as 1856in the well-known arbitration
in the Crofr case between Great Britain and Portugal . . . MlLITARYAND PARAMILITARY ACTIVITlES
'If what was contained in the statement of the 17th November, 1851,
had been expressed in a note or other diplomatic comn~unication, ad-
dressed to the British Government by the Portuguese Government as its
view of the case, it might then have been justly said that the one
Government had thereby of itself made an acknowledgement and an
admission to the other by which the latter was now altogether exonerated
from the task of proving that the case really stood as it was represented
there.'(BritisliundForrign St~it~Pupers, Vol. 50, 1288at p. 1291 .)
This principle, which is consonant with the general principle of good faith
as one of the bases of orderly international intercourse, is now firmly
established in international law, and has been applied on many occasions
by international tribunals.For decisions of the lnternationnl Court of Justice
in which it was applied, reference may be made to the views of the Court
regarding declarations made by the Albanian Delegate in the Security
Council in the Corfu Clrantielcase (Merits), IC.J. Reports IY49, at page 19;
to the Court's attitude regarding various otficial memoründa by the Union
of South Africa in the Statttte of Solri11CVe.si fricir case,1.CJ. Reports
1950, at pages 134-136; and to the Court's attitude towards certain ad-
missions made by France to the United Kingdom in diplomatic correspon-
dence during the 19th century, in the Minquiers rind Ecrehos case,
I.C.J. Reports 1953, at p. 71.
90, The Government of Israel wishes to stress this point in the light of
the tendency which has ~ippeared in the later stages of the diplomatic
discussions, and particularly in the meeting of 13 September 1957 . . . for
the Bulgarian Government to argue that the Note Verbale of 4 August 1955
(Ann. 17)did not constitute acceptance by it of responsibility, any contrary
interpretation being erroneous. In the view of the Government of Israel, in
this respect the Note Verbale is clear enough and does not cal1 for any
sophisticated 'interpretation'. Acceptance of such a view as the Bulgarian
officiaishave been putting forward would imply that a government would
be entitled to blow hot and cold at the same time: for purely political
purposes to make statements which, for their impact upon the rights of
others. would be of possibly far-reaching implications . . . and then to be
free ofal1legal consequences when those whose rights are afected seek to
implement those very rights apparently once recognized."
In the sarne case the Mernorial of the United States (ibicl.,p. 207) includes a
section with the heading "Admissions by the Ilulgarian Government to Other
Governments", and the first paragraph of this section then reads:
"The United StatesGovernment believesit appropriate to ofkr as evidence
the various communications on the subject of the Bulgarian Government's
liability for theilling of passengers of the 4X-AKC aircraft near Petrich
on 27 July 1955.made by the Bulgarian Government to other governments
whose nationals were on board the airliner and were similarly killed."
This view of the law is confirmed by the thrd of the "Submissions" with
which the United States Mernorial concludes (at p. 252). Moreover, that
Memorial, in another passage, States:
"There had been a firm?solemn admission of international liability to the
United States Government. The same announced asstimption of responsi-
bility was made to al1governments concerned, and to the press and pub-
lic. . .(Ibid p. 187,para. 14; and see also at p. 175.) ARGUMENTOF PROFESSORBROWNLIE 159
In sum, Mr. President, this episode in the pleadings before the Court in the
Aerial Iticidenl case points up the fact that governments have been quick
to recognize the principle of acceptance or recognition of liability when the
factual material makes a focus upon this principle entirely natural and
inevitable.
APPLICATI OFNTHE PRINCIPL O FACCEPTANCE
The legal argument on the principle of acceptance of responsibility isconcluded
and it isnow necessary to relate the principle to the circumstances of the present
case. The facts surrounding the express declarations of responsible United States
oficials and the terms of those declarations themselves, may be analysed in terms
of the following discrete but related elements.
First, the issue of State responsibility has been public and overt at leaste
the filing of the Application on 9 April 1984,and the existence of the issue was
underlined by the proceedings before the Court relating to interim measures of
protection, and also to jurisdiction and adrnissibility.
Second. in the successive statements made by President Reagan and other
senior oflicials, the purpose of the United States Government is evoked with
appalling clarity: and that purpose is to use al1necessary or convenient measures
of coercion to overthrow the lawful Government of Nicaragua and to replace
that Government with one acceptable to the United States.
Third, with certain incongruousand untimely exceptions, no legaljustification
for the policies of the Administration is offered.
Fourth, in so far as officialshave on occasion invoked the concept of collective
self-defence, that is on its face inapplicable, since ex h.)pothesi the overthrow of
a lawful government cannot be a form of self-defence, collective or otherwise, in
any circumstances.
Fifth, andfinally, the implication of the various declarations by responsible
officials is that responsibilisaccepted: it must be presurned that such officials
fully appreciate the consequences of their actions orat the very least, take the
risk of those consequences.
This Iast proposition may be supported by some additional considerations.
In the first place, theeclarations form part of a consistent pattern of evi-
dence which confirms the general nature of the attitude and intentions of the
Ciovernment of the United States concerning Nicaragua.
Second, the fact that the mode of implementing the policy of the Respondent
State originally involved "covert action" further justifies thempliclition that
declarations of hostile intention and involvement connote admissions of legal lia-
bility, since what is covert is presumed to be impossible to justify in legal terms.
In this connection, 1 would refer the Court to the evidence of Mr. Mac-
Michael on Monday of this week. when he linked covert operations with a policy
of "plausibledenial" (the phrase he used), as a policy adopted in United States
Ciovernment practice.
Third, a Government which persistently and publiçly declares thüt it is using,
and will continue to use, illegal means to overthrow the lawful government of
another State cannot have the benefit of the presumption of innocence or
regularity.
Mr. President. 1 can now leave the general issue of express declarations and
ttie acceptance of responsibility by the United States, and move on to certain
forms of evidence which confirm and corroborate the record of acceptünce or
recognition of responsibility.160 MILITARYAND PARAhlILITARY ACTlVlTlES
Confimatory or CorrobarutivrMaterial
The first form of confirmatory evidence consists in the inçongruous and
substantially inconsistent assertion that United Statesolicies have been justified
as a form of collective self-defence. The subject has been fully canvassed in the
Memorial (paras. 19 1-204,285-291). My purpost now is to underline the episodic
and inconsistent character of the reference to collective self-defence the United
States. Prior to the Application presented by Nicaragua in April of last year, the
military and pararnilitary operations against Nicaragua had been described as
covert and, so far as they werereported to the relevant Congressional Cornmittees.
they were alleged to involve tactics of interdiction only. The operations actually
being undertaken were not justified, firstly, because they were not admitted to
exist prior to May 1983,and secondly, because it would have been difficult to
provide a credible justification which would, so to speak, stand up in Court.
Moreover, when the reality broke the surface of things, as in the attack on
Corinto in October 1983, no reference was made by any official to the question
of legaljustification.
From April 1984until January of this year, sporadic reference was then made
to the concept of collective self-defence,and this belated use of a legaljustification
goes to emphasize the absence of any serious and consistent attempt to provide
a legaljustification for the operations before that period. In any case, the mining
operation was by definition indiscriminate and literally impossible to fit into a
legal concept of self-defence. The sarne can be said of the terrorist attacks
directed against the civilian population within Nicaragua.
However, since the President's press conference on 21 February of this year
(Memorial, Ann. C, 1, 14), the belated references to a legnl justification have
ceased. The flirtation with legality, never a serious afair, was now over. Inany
case, the declarations of responsible officiaisbefore the period of flirtalion
involved an acceptance of liabilty which, together with the other evidence.
destroyed the very foundations of the assertion of collective self-defence. The
express declarations since February of this year simply confirm that this claim
had always lacked substance.
TheAttack on Corinto
The nature, purpose and illegality of United States policy is evidenced in the
most concrete form by the attitude of officiais in face of particular episodes
involving hostile operations against Nicaragua. One such episode was the attack
on Corinto on 10October 1983.This was an attack launched not by mercenary
forces, but by personnel forming part of United States units. A speedboat was
used armed with machine guns and a cannon.The attack was dramatic and very
destructive. More than 100 persons were injured (see Memorial, para. 87). The
attack received substantial publicity.
At the press conference on 19 October, ü little more than a week later,
President Reagan was asked a direct question about CIA involvement in the
Corinto affair (Memorial. Ann, C, 1,2). Mr. Reagan's response is hardly that
of a Head of State or foreign minister faced with a false and provocative
accusation. Not at all. Mr. Reagan was neither shocked nor surprised. No denial
is made; and no fegaljustification is offered. True, he is not willing to discuss
details, but the clear implication is that "the specific operations down there" did ARGUMENT OF PROFESSOR BROWNLIE 161
include the attack on Corinto.The President expresslyrefers to the responsibilities
of a government, and the context is that of a reply to a question which referred
directly to theCIA.
As a consequence of the attack, the Deputy Foreign Minister of Nicaragua
protested to the United States Ambassador (Ann. F, p. 92), iind a protest note
was sent to Washington. No denial of United States involvement, either formal
or informal, is reported to have been made at any stage, either in Managua or
in Washington. Indeed, in the aftermath of the attack, the New York Times
reported that "Rcagan Administration oficials" had stated that the CIA had
helped to plan the attack on Corinto, as well as other attacks of the same kind
(Memorial, Ann. F, pp. 94-95). Such claims by officials made on the record to
the press corroborate the other evidence available on the particular point.
The entire episode confirms the direct involvement of the United States in
armed attacks against Nicaraguan tlirgets.
The Minhg of Nicaragz~ulun urbo~~rs
1shall now turn to the mining of Nicaragua's harbours under the direction of
the CIA in the period from January to April 1984 (see Memorial, paras. 96-98).
The mining programme had been approved by the President and formed part of
a policy of economic warfare. In April of last year Congress became aware of
the programme and there was something of a scandal. The facts were not denied
by the Administration: indeed, they were admitted. When questioned on the
subject of the mining programme, the President stated: "Those were home-made
mines that couldn't sink a ship . . .1 think that there was much ado about
nothing." (Memorial, Ann. C, 1,6.)
There is no denial that the "nothing" related to activities of the United States.
The President simply did not dispute the facts. Nor were the facts disputed in
the course of proceedings on Nicaragua's Request for Interim Measures of
Protection. Moreover, on 16April 1984,George Lauder made a public statement
on behalf of the CIA (Memorial, Ann. C, 11,5). In this the official made the
following express admission :
"During the 13 January 1981 Senate Select Committee on Intelligence
hearing on the nomination ofMr. Casey to be Director,CIA, Mr. Casey said :
'1intend to comply fully with the spirit and the letter of the Intelligence
Oversight Act. 1 intend to provide this Committee with the information
itbelieves it needs for oversight purposes.'
Mr. Casey believes the record will reflect that he and his staff have kept
that pledge.A chronology of briefings of the Congressional Oversight Com-
mittee in connection with events in Centrül America reveals that from
December 1981through March 1984,either the director or deputy director
briefed the Congressionaf Committees 30 t~meson Central America.
Moreover, from 16 September 1983 through 2 April 1984,other oificials
of ClA briefed either the committees or the committee staff 22 times on
Central American developments. Since the first of this year, the subject of
mining of Nicaraguan ports has been discussed with members or starers of
the committees and other members of the Congress II times."
The mining of harbours has a speçiaf significancesince, like the Corinto attack,
it provides evidence of a system, a generül programme, of hostile operations
directed by the United States Government and iinder its control. Moreover. both
episodes produced situations in which the Administration acknowledged its res-162 MILlTARY ANI) PARAMILITARY ACTlVlTIES
ponsibility in unqualified terms? either by failure to deny responsibility when a
deniai would normally be called for, or as a consequence of express admission.
The Views of Third States
In concluding my remarks about the mining of harbours, 1would respectfully
remind the Court that third States whose shipping was damaged by mines in
Nicaragua11waters made representations to Washington. The States making such
representations included the United Kingdom and the Soviet Union (Memorial,
para. 481 ).
My argument concerning the acceptance or recognition of responsibility is
now concluded and, with your permission Mr. Presideiit,1shall turn to another
set of problems which are partly issues of State responsibility and partly related
to questions of evidence.
Bases of Rr.sporrsibility
The evideiice in the present proceedings relates to a programme of more or
less covert operations including both military and paramilitary action. The
operations Vary from sudden attacks on coastal targets to special operations
across the frontiers- the frontiers with Hondurtis in particular. The personnel
involved are sometimes members of United States special forces, and are
sometimes Somocistas specially organized, equipped, funded and controlled by
the United States Government. The purpose of this part of my argument is to
explore the ditïerent bases or models of State responsibility which may be
relevant. 1am not presently concerned with bases of responsibility in terms of
causes of action, which Ishall deal with in my second speech in these proceedings,
but with the different forms in which responsibility may be attributed to the
Respondent State.
My purpose will become clear when 1 set out the schema of analytical
possibilities. The possibilities willrelate to the ques:what specificrelationship
does the United States Government bear to the military and paramilitary
operations which have been and are being conducted in and against Nicaragua?
The schema is as follows.
First: direct action by rneans of agencies of the United States such as the
Central Intelligence Agency.
Second: action by forces over which the United States Government exercises
total or predominant control; that is, cases of agency.
Third: action which takes the form of assistance, in the form of training,
supply of weapons, equipment and other mutCric>ltechnical advice, or funding;
that is, cases of complicity in military or paramilitary operations by forces not
falling within the first two categories.
Fourth: action which is not proved to originate with agencies of the United
States, or forces controlled by the United States, which action is adopted or
approved by the United States Gnvernment as an instrument of national policy.
At the outset it may be observed that these categories are not mutually
exclusive. Thus, on a given occasion, and for the purposes of a particular
operation, an armed band rnight play a role in any one of the four categories of
the schema, given changing patterns of organization and political convenience
on the part of the leading actor, that is, the State which takes action in the first
three categories, or which adopts or approves the harmful action in the case of
the foiirth category. ARGUMENTOF PROFESSOR BROWNLIC 163
So much for the set of possible relationships. Each analytical possibility can
now be examined further.
The first category is that of direct action by the Resondent State, whether this
be by means of special units of the armed forces, the Central Intelligence Agency,
or a combination of personnel employed by institutions which are agencies of
the United States Government. Action within this category would obviously
constitute "an act of the State concerned" within the terms of Article 5 of the
Draft Articles on State Responsibility adopted by ttie International Law
Commission in 1973(Ycurbook. international Law Commission, 1973.11,p. 165,
p. 191 ).Article 6 of that Drüft is also pertinent. If1may remind the Court, this
provides :
"The conduct of an organ of the State shall be considered as an act of
that State under international law, whether that organ belongs to the
constituent. legislative, executive. judicial or other power, whether its func-
tions are of an international or an internal character and whether it holds
a superior or a subordinate position in the organisation of the State."
(Ibid., p.193.)
There is a considerable body of evidence, much of it on the public record, that
the intelligenceorgans of the United States are directly involvedin the planning
and execution of hostile operations against Nicaragua, including the attack on
Corinto and the programme for mining harbours in the period January to April
of last year.
However, it is necessary to recognize that there exists a certain "grey area" as
between rny first and second categories - the two categories first in my schema.
It is, in my submission, a matter of public knowledge in this part of the twentieth
century, that intelligence and special operations in general use a variety of
operating techniques. Agents may be full-time but employed for short or long
periods. Some agents are paid retainers and may be calleclupon in case of need.
The realities are fully reflected inArticle7 of the Draft Articles produced by the
International Law Commission in tfie course of 1974 (Yeurbonk, International
Law Commission, 1974, Il, p. 276 at p. 277). Thus paragraph 2 of that Article
provides as follows :
"The conduct of an organ of an entity which is not part of the forma1
structure of the State or of a territorial government entity, but which is
empowered by the internal law of that State to exercise elements of the
governmental authority. shall also be considered as an act of the State under
international law. provided that organ was acting in that capacity in the
case in question."
Moreover, the Commission's commentary. which as the Court knows forms
part of its report to the General Assembly. explains the provision in the fol-
lowing way :
"With regard to the formulation of the rule, the Commission felt it
preferable to çover in a single article al1the cases of conduct of organs of
entities which under the internal law of the State have a personality separate
from the State but which are empowered by the same law to exercisecertain
elements of the governmentül authority. whether through the application of
a normal criterion of decentralisation rutione loci of the exercise of the
governmental authority, or in order to meet a more exceptional and more
limited need for decentralisation rrrtionemutrriue ofcertain elements of the
governmental authority. For this purpose, the term 'entity'has been used in164 MILlTAKY AND PARAMILITARY AC'TIVITIES
the title of the article as being the most neutral term and the easiest to
translate into the various languages, and also as a term wide enough in
meaning to cover bodies as different as territorial governmental entities,
public corporations? semi-public entities, public agencies of various kinds
and even, in special cases,rivate companies." (Yeurhook,International Law
Commission, 1974,II, pp. 282-283,para. 19.)
Mr. President, it is clear that, at the end of the day, the touchstone is agency
and control by the State concerned and that, in actual experience. what 1have
called the "grey area" betweencategory one and category two creates a significant
overlap between my first category, that of direct action, and my second category,
namely. action by forces over which the Respondent State exercises either total
or predominant control; that is, cases of agency.
This situation rnay be covered by the provisions of Article 7, paragraph 2, of
the International Law Commission draft, and this especially when the internal
law of the State provides an express source of powers. in this conneçtion, 1
would respectfullydraw the attention of the Court to the terms of various United
States Statutes set forth in Annex D of the Men~orial rrnd, in particular? to
section 108of Attachment 4, which is the text of the Intelligence Authorization
Act for Fiscal Year 1984.
The situation of agency and control may also fall within the provisions of
Article 8of the Commission's Draft Articles on State Responsibility. This Article
has the heading "Attribution to the State of the conduct of persons acting in
fact on behalf of the State", and it provides as follows:
"The conduct of a person or group of persons shall also be çonsidered as
an act of the Stateunder international Lawif
lu) it is established that such person or group of persons was in hct
acting on behalf of that State;or
jb) such person or group of persons was in fact exercising elements of
the government's authority in the absence of the otficial authorities and in
circumstances which justified the exercise of those elements of authority."
(Yeurbook,international Law Commission, 1974,II, p. 283.)
Mr. President, the issue is always ultimately that of State responsibility and
this is clearlygnerated whenever there is sufficientevidence of agency or control.
It is implicit in the Draft Articles that it is not the forma1 status of the agent's
principal relationship which is the governing principle but the existenceof agency
and control. The learned Cominentary of the Commission attached to Draft
Article 8 is of very great relevance: Yetlrborik,lnternational Law Commission,
1974, II, pages 283-285, paragraphs 2-8. The issue of principle is dealt with in
the folkowingpassage. In the words of the Comniission :
"(2) The hypothesis conternplated in sub-paragraph (cl)was intended by
the Commission mainly to cover cases in which the organs of the State
supplement their own action and that of their subordinates by the action of
private persons or groups who açt as 'auxiliaries' while remaining outside
the official structure of the State. in the same context the Commission
wished to deal with the familiar cases in which the organs of the State or of
one of the other entities empowered by internal law to exercise elements of
the governmental authority prefer, for varizd and in any case self-evident
reasons. not to undertake certain tasks themselves. They then make use of
persons who are not formally part ofthe State machinery or ofthe machinery
of any of the other entities mentioned; they cal1upon private individuals or ARGUMENT OF PROFESSOR BROWNLIE 165
groups of private individuals to take on the duties and tasks in question,
although here again these individuals or groups are not thereby formally
attached to the structures in question and do not, in other words, thereby
become dejure organs of the State or of the other entities mentioned. The
Commission, rilsobearing in mind theimportant role played by the principle
of effectiveness in the international tegal order, considered that that order
must of necessity take into account, in the cases contemplated, the existence
of a real link between theperson performing the act and the State machinery
rather than the lack of a formal tegal nexus between them. The conduct in
which the persons or groups in question thus engage in fact on behalf of
the State should therefore be regarded under international law as acts of
the State: that is to say, as acts which may, in the event, become the source
of an international responsibility incumbent on the State."
1would thank the Court for its patience listening to thüt long excursus. The
view of the law expressed by the Commission is well supported by individual
judicial decisions and the practice of States (ibid., paras. 3-5). One example of
the State practice may be of particular interest, and it concerns the Spanish Civil
War. On the Republican side in that conflict a nun~ber of organizations and
groups of volunteers were involved as combatants, under the control of the
Government but not being in forma1 terms a part of the Republican armed
forces. In the opinion of the Swiss Government, the Spanish State was to be
held responsible for illegal acts committed by such military organizations, and
claims for reparation were accordingly presented to the Spanish Government :
see RépertoireStrisst. ckedroii intrrnrrfirinpublic. III, pages 1698-1699(items
8.12and 8.13).
In the present proceedings the documentary record contains a pattern of
evidence which establishes that the forces which carry out military and paramili-
tary operations in and against Nicaragua are in a relation of agency with the
United States and subject to its exclusive direction and control. The record is
consistent and the pattern is clearly visible. The planning, logistics, the funding,
the choice of strategy, the politica1 objectives, al1these are under the direction
and control of United States Government agencies. The operations are an
instrument of United States national policy and they figure prominently in
defence appropriation legislation. The personnel are hired by the United States
and form bands of professional mercenaries, acting as agents of the United
States Government.
1 now come to the third element of my schema of possibilities; that is, action
which takes the form of assistance to, or complicity in, military or paramilitary
operations and which does not fall within the first two categories. This is, so to
speak, the basis of liability which presents the least difficultiesof proof. On this
Iiypothesis the relationship of agency and control would not stand in need of
proof.
Looking back at the three elements 1 have presented so far, that is direct
action, agency and control, and, lastly, complicity, each would provide an inde-
pendent and sufficient basis of liabitity. But that does not exhaust the analysis
since the express declarations and admissions by senior United States officiats
have a considerable impact on the case. Such statements have evidential signifi-
cance of various kinds and this 1 have already indicated in my speech. They also
lead to the fourth and final element in my schema; that is action which is not
proved to originate with agencies of the United States, or forces controlled by
the United States, but which is adopted and approved by the United States
Government.166 MIL~TARYAND PARAMILITARY ACTIVITIES
As the Memorial (IV, pp. 73-74) has indicated, the highest echelons of the
United States Government have repeatedly adopted and approved the acts of
the mercenary forces in and against Nicaragua. 'Therelevant evidence has been
reviewed eisewhere. In the UnitrtlSiatcs Diplornutic und ConsulauStuff'Tien hrun
case the Court was psirtiçularly concerned with the second phase of the events
when, following the occupation of the Embassy, expressions of approval came
"from numerous Iranian authorities. including religious,judicial, executive,police
and broadcasting authorities" : I.C.J. Reports 1980, page 33. From this evidence
the Court drew the followingimportant conclusion. In the words of the Judgment :
"74. The policy thus an~iounced by the Ayatollah Khomeini. of rnain-
taining the occupation of the Embassy and the detention of its inmates as
hostages for the purpose of exerting pressure on the United States
Government was complied with by other lranian authorities and endorsed
by them repeatedly in statenients made in various contexts. The result of
that policy was fundamentally to transform the legal nature of the situation
created by the occupation of the Embassy and thedetention of its diplomatic
and consular staff as hostages. The approval given to these facts by the
Ayatollah Khomeini and other organs of the lranian State, and the decision
to perpetuate them, translated continuing occupation of the Embassy and
detention of the hostages into acts of that State. The militants, authors of
the invasion and jailers of the hostages. had now become agents of the
Iranian State for whose acts the State itself was internationally respon-
sible. .."
The situation involving adoption or approval of a course of action is the las1
of the four elernents in my schema of bases or possible bases of liability which I
have presented to the Court.
Whilst 1believe this analysis lias its own validity, it is subject to qualification
and refinement in certain respects.
The first qualification concerns the relation between the analysis and the causes
of action, that is to Say, the substantive sources of obligation, on which the
Applicant State relies.
The point can be illustrated by two examples. A number of the rules relied
upon in the Application and the Memorial use the term "use of force", and the
Memorial demonstrates that this term includes certain forms of indirect aggres-
sion. amongst which is the use of armed bands (IV, pp. 60-65. 69-72). Moreover,
there is considerable authority forthe view that assistance to groups of insurgents
on the territory of another State falls within the concepts of armed attack or
armed aggression. Thus, the formation of the relevant rule of law may cut across
the four separate categories of my schema, and thus also the concept of the "use
of force" rnay in the circumstances relate to each and every one of the four bases
of liability,
A second example may be given. A number of rules relied upon by Nicaragua,
both in general international law and in multilateral treaties, prohibit direct or
indirect intervention in the interna] or external afairs of any State - as, for
example. the provisions of Article 18 of the Organization of American States
Charter, It is evident that forms of assistance to armed bands operating against
a State fall fou1 of the prohibition against intervention, just as much as the
categories of direct action and of agency and control as bases of liiibility.
In brief, the formation of the rule of substance determines the precise content
of the obligation and the standard of conduct. And the important consequence
of this is that the diference between the four types of involvement has a much
reduced significance. ARGUMENT OF PROFESSOR BROWNLIE
The second qualification or refinement of my analysis of the bases of liability
relates back to my argument that, by its express declarations and admissions,
the United States has become liable for the military and paramilitary operations
direçted ag-ainst Nicaragua as a result of its acceptance or recognition of res-
ponsibitity. 1refer to that argument once more only for the purpose of pointing
out that this independent basis of liability also cuts across the four analytical
possibilities,ince it recognizes responsibility for the çonsequences whichever
factual hypothesis be applicable.
Moreover, whilst acceptance or recognition of liability is similar to the fourth
category - that is, of adoption or approval - it isdistinct from itin a critical
respect, Acceptançe of responsibility is a basis of liability which extends to al1
four categories, and not only to those factual situations in which responsibility
could arise only as a consequence of approval or adoption.
ConseqnentialIssues
Mr. President, in completing this sector of my speech, 1 would like to refer
the Court to a consequential issue. The analytical schema distinguishes responsi-
bility in four situations: first, direct action by the Respondent State; second,
action by forces wtiich are controlled by, and thus are agents of, the Respondent
State; third, the cases of complicity; and fourth, action not falling within the
other categories which is adopted or approved by the Respondent State.
No doubt the damage and loss may be allocated, so to speak, among the four
bases of liability. Alternatively, thedamage and loss may be related exclusively
to a single basis of liability. The question which then arises would be: does the
system of allocation or selection of bases of liability affect the issue of quantum
of damages ?
In my submission, the legal liability should be solidary and, therefore, as a
inatter of principle, the quantum should not be affected by the selection of, say,
rigency and control as a basis, as opposed to complicity alone as a basis.
This approach on the basis of solidary responsibility is in accordance with
general principtes of law and the practice of States before international tribunals.
It is the common practice in national legal systems to allow full recovery of
damages in respect of one of several forms of action, providing that these al1
relate to the same damage. No discrimination is made between different forms
of illegality in this respect. The picture rnay be more complicated in a case in
which one form of action is based upon culpaand another upon clohlsin relation
to the süme damage. But that type of situation is no more than of academic
interest for present purposes. Moreover, in national systems, rnost of the problems
in practice arise from the distinctions between claims in contract and claims in
tort, or between these and the remedies of pure restitution.
In the context of international law, the prdctice of States in front of inter-
national tribunals appears to be based on the assumption that success on the
basis of one cause of action will draw in its train full reparation. Thus in the
Rarcclunri Trtiction, Light und Poiver Compuny, Limired case, the Belgian Me-
morial, in which many jurists had had a hand, presented the facts relied upon in
terms of four legal categories. However, the claims for reparation were not
apportioned to these heads separately, but to each and al1of them. There is no
reason to believe that that course was eccentric, and it evoked no criticism from
professional opinion.
Indeed, in the circumstances of the present case, the solidary approach, so to168 MILITARY AND PARAMILITARY ACTIVITIES
cal1it, is particularly to be cornmended. The delictual conduct forms a coherent
pattern of activity directed to acommon illegal purpose, the forcible overthrow
of the lawful government of the Applicant State. Moreover,the declarations and
admissions which fom part of the public record relate comprehensively to the
military and paramilitary operations against Nicaragua, which operations have
been provided for in United States Statutes during the material period.
The StandardofProoj
That brings my review of the different brisesof liability to a final conclusion.
My review of the evidential problems in this case has, so to speak, set the scene
for my remarks on a question which has been left on one side so far, that is, the
standard of proof. The Applicant State has evoked a considerable volume of
evidence in support of a case whiçh involves substantial issues of State responsi-
bility. Moreover, the case brought by Nicaragua rests exclusivelyupon intention
or dohs as the basis of responsibility, rather than objective responsibility.
It is well known that charges of exceptional gravity against a sovereign State
or its government require to be established by conclusive evidence involving a
high degree of certainty. This proposition was adopted by Sir Gerald Fitzmaurice
(Brilish Year Book ofInternationalLaw, Vol. 29 (1952), pp. 57-58), who cited
this Court in the Corfu Channelcase. In that case, it may be recalled, the Court
was reluctant to accept the allegation that a third State had been responsible for
the laying of mines in Albanian waters and, in that context, the Court made a
general statement as follows: "A charge of such exceptional gravity against a
State would require a high degree of certainty that has not been reached here"
(I.C.J. Reports 1949, p. 17).
That statement of the standard of proof applies, at least in limine, to the
present case, of course, but when a principle is applicable, it is to be appliedsub
modoand taking account of al1relevant circumstances. Moreover, the dictum in
the Corfu Channelcase must be placed carefully within its context. Thus it was
related to a charge against a State not involved in the proceedings and this factor
rnust have influenced the insistence upon a fairly rigorous standard of proof. It
is also highly significiint that in thCorfu Channelcase, when approaching the
issues as between the parties, which also involved matters of exceptional gravity,
the Court appears not to have employed such an exacting standard of proof.
But al1this is to some extent beside the point. Mr. President, the standard of
proof must depend upon the forensic geography of the particular case. In this
case, Nicaragua has sought to assjst the Couri by presenting the evidence as
fully as possible, and it has notrelied upon the first paragraph of Article 53 of
the Statute. And yet the Applicant State is fully justified in pointing out to the
Court the precise nature of the standard of proof in the circumstances of
the present case. In my respectful submission the standard of proof is to be
determined in the light of three factors which operate together but are also
independently valid.
(a) Theeffectof Article 53
In the first place. the provisiotis of Article 53 of the Statute dictate a certain
liberalism of approach, Thus in the UnitedSt0tt.s Diplornaticand ConsulurStaj
in Tehruncase the Court outlined the position in this way:
"11. The position taken up by the Iranian Government in regard to the
present proceedings brings into operation .4rticle 53 of the Statute, under ARGUMENT OF PROFESSOR BROWNLIE 169
which the Court is required inter alia to satisfy itself that the claims of the
Applicant are well founded in fact. As to this article the Court pointed out
in the Corfi Channel case that this requirement is to be understood as
applying within certain limits:
"hile Article 53thus obliges the Court to consider the submissions of
the Party which appears, it does not compel the Court to examine their
accuracy in al1 their details; for this might in certain unopposed cases
prove impossible in practice. Ttis sutficient for the Court to convince itself
by such methods as it considers suitable that the submissions are well
founded.' (I.CJ. Reports 1949,p. 248)." (1.CJ. Reports 1980,p. 3at p. 9.)
(b) Ahsrnce of any denialof thefncts
The Government of Nicaragua has pointed out in its Mernorial that it does
not intend to rely upon the formal procedural possibilities of Article 53, and it
is theactual circumstances of the present case which have the formative influence
upon the standard of proof. The first such influence is the absencof any denial
of the facts by the Respondent State. In the first phase of this case the United
States simply refused to enter into the issues of fact raised by the Application,
but there was an exception to this in that the United States asserted that the
defence of collective self-defence was üvailable on the facts. But in this case no
evidence is to be given to support this assertion by the Respondent State. The
result of the non-appearance of the Respondent is the absence of any denial of
the facts and this outcome is, of course, not the result of the provisions of
Article 53, as such, but is an independent element inthe case.
The absence of any denial of the tacts placed before the Court by the Res-
pondent is an element in the procedure by which the Court decides whether the
averments of fact by the Applicant are well founded within the meaning of
Article 53 of the Statute. or are otherwise established. The Court took this
position in the Uuited Sratcs Diplomutic and Consulur Stu8 in Tehran case
(I.C.J. Reports 1980,p. 10, para. 13 (and see also the FisheriesJurisdiclioncase
(UnitedKingdolnv. Icelund) Merits,1 C.J. Reports1974,p. 9,para. 16)).Another
way of expressing the matter would be to Say that the mode of applying the
standard of proof must naturally reflect the absence of denial on the part of the
Respondent State, and the nature of the facts which are not denied.
(c) Exprexsiintiicatianof illegalpurposeund responsihiliryfor illegalactions
But it is understood that an absence of denial of itself may not enable the
Court to estabfish whether the submissions of the Applicant are well founded.
And yet the absence of denial in this case complements, affirms and reinforces
the evidence in general presented by the Applicant. This evidence is, in the words
used by the Court in the UnitedStates Diplomuticand ConailrrrSlaff in Tehrun
case "wholly consistent and concordant asto the main facts and circumstances
of the case" (I.C.J. Reports 1980, p. 10,para. 13). There is a massive public
record which includes a large number of statements by President Reagan and
other senior officiaisof the United States. In these statements the President and
Iiis staff give express indications of an illegal purpose and policy, namely, the
overthrow by violent means of a lawful government. As 1 have already sought
to demonstrate, these reiterated public assertions constitute an açceptance of
legal responsibility for the actions complained of by Nicaragua in these pro-
ceedings.170 MILITARY AND PAMMILITARY I~CTIVITIES
The absence of denial of the facts is not the result of a policy of non-
appearance; it is the major complement, the close relation, of the arrogant public
assertions of anillegalenterprise by the Chief Executiveof the Respondent State
and his colleagues. The President's response to a question directly relating to the
attack on Corinto ata news conference on 19 October 1983, to which 1have
already referred, isbut one example of positiveaffirmation of a blatantly unlawful
policy (Memorial, Annex C, 1,2). If 1 may refresh the Court's memory of this
episode. The question put, was:
"Mr. President. regarding the recent rebel attacks on a Nicaraguan oil
depot, is it proper for the CIA to be involved in planning such attacks and
supplying equipment for air-raids? And do the American people have a
right to be informed about ;iny CIA role?"
The President's reply was :
"1 think covert actions have been a part of government and a part of
government's responsibilities for as long as there has been a government.
l'm not gong to comment on what, if any, connection such activities might
have had with what has been going on, or with some of the specificopera-
tions down there.
But 1do believe inthe right of a country when it believesthat its interests
are best served to practice covert activity andthen, while your people mlty
have a right to know, you can't let your people know without Ietting the
wrong people know, those that are in opposition to what you're doing."
It is in the nature of the public record in this case whiçh must influence the
application of the standard of proof to be applied to the submissions of the
Applicant State. The principle that a higher standard of proof is required in
cases of exceptional gravity is, so to speak, pre-empted when the existence of a
general policy of hostility, and the practice of covert activity, is a matter of
public record and is proclaimed as a State policy and programme of action. In
other words, the Respondent State has either rendered that particular standard
inapplicable by its own acts, or by these acts has substantially removed any
element of reasonable doubt. As rimatter of ordinary logic, the only issue
outstanding is really that of modalities, and with respect to modalities, in my
submission, reasonable certainty is the standard of proof appropriate in the
circumstances of the present case.
Mr. President, 1 have now completed my agenda. The last section of my
presentation will draw the various threads together, and will indicate the general
form and structure of the evidence in these proceedings.
The evidence may he described as çonsisting of three principal elements:
1. The evidence of armed attacks, the mining of harbours and the recurrent
pattern of aggression, terrorism, murder and sabotage, in each case affecting
Nicaraguan territory, Nicaraguan waters, Nicaraguan citizensandthe Nicaraguan
economy.
2. The existence of a system and a pattern of military and paramilitary oper-
ations directed against Nicaragua.
3. A series of declarations and admissions hy the President of the United
States and other senior officiaisinvolving unequivocal acceptance or recognition ARGUMENT OF PROFESSOR BROWNLIE 171
of legal responsibility for the military and paramilitary operations, including the
attack on Corinto and the programme for the mining of Nicaraguan harbours,
and evincing â general policy of hostility with a specific and manifestly illegal
purpose.
With your permission, Mr. President, 1would like to remind the Court of the
impressive number of elements which constitute a consistent pattern of intentions.
purposes and methods of implementation over a long period.
Those elements are as follows:
(1) The sequence and coincidence of the authorization of financing by Congress
and the subsequent practical steps taken by way of irnplementation.
(2) The persistent recruiting and employment of armed forces based on the
territory of Honduras and paid and maintained by the United States.
(3) The carrying out of regular attacks by suçh units against targets on the
territory of Nicaragua in accordance with policy directives of the United
States.
(4) The continuous funding of such operations by the United States either within
the limits set by Congress or at times outside those limits.
(5) The intention on the part of the United States to cause damage to Nicara-
gua. to exert pressure generally for political ends and, in particular, toring
about the forcible overthrow of the Government of Nicaragua.
(6) The use of particular mechanisms described as covert action involving the
Central Intelligence Agency and its operational resources.
(7) Prior to April 1984.the absence ofany pretence or assertion of the existence
of any legal justification for theactivities of the guerrillas acting on behalf
of the United Staes.
This consistent pattern of evidence justifies the inference that the events con-
cerned are connected, and are part of a deliberate, concerted and long persis-
tent policy and programme. The system or pattern visible in the record excludes
the possibility of an explanation compatible with the innocence of the Respon-
dent State.
The substance and reality of this system or pattern is evidenced in a variety
of ways, including the repeated appearance of express authorization of operations
by Acts of Congress and the systematic efforts of the Administration to increase
the level of funding over a period of four years.
The significance of the pattern, the sharpness of the image, is increased as a
çonsequence of the long series of express admissions by the President and
other oficials.
Both in the Corfu Cl~uïlnelcase (Merits. I.C.J. Repopnri s949, pp. 18-20)and
the UniteclSt~1te.sDiplomuiic uncl CnnsulrirStrifJ in Tehrun rase (Z.C.J. Reports
1980, pp. 33-35, paras. 70-75) the Court in its Judgments accorded considerable
probative value to the attitudeand general policy of the governments concerned
as revealed by express public statements and the general course of conduct.
In evaluating the relationship between the general - that is, the evidence of
general intention and polices of implementation - and the particular - namely,
particular military operations, sabotage raids and otlier episodes of hostility -
the mutual~tyand logical interconnections of the two are to be fully appreciated.
On the one hand. the express declarations of intent and admissions of general
involvements in military and paramilitary operations give significance and point
to individual episodes of aggression and terrorism within Nicaragua. On the
other hand, specifichostile episodes provide reliable proof of the general intention
and mnrlns operundi of the authors of such individual episodes.172 MILITARYAND PARAMILITAKYACTlVITlES
This evidential link between specific incidents and the proof of a general
practice or system ofbreaches was recognizedin [hejudgments of the European
Court of Human Rights in the case of Irelandv. UnitedKingdom. With your
permission, 1will read the relevant passage in the judgment:
"The allegation accepted by the Commission under Article 3 concerned a
practice or practices and not individual cases as such. Accordingly, the
Court's sole task is to giva ruling on that allegation.
However. a practice contrary to the Coiivention can result only from
individual violations. . Hence, it is open to the Court, just as it was to the
Commission, to examine, as constituent elements or proof of a possible
practice and not on an individual basis, specific cases alleged to have
occurred in given places.
The Court concludes that it has jurisdiciion ta take cognizance of the
contested casesof violation of Articleifand to the extent that the applicant
Government put them forward as establishing the existence of a practice."
(Publications of the EirroperrnCourt of Hu~nutzRights, Suries A, Vol. 25,
p. 63, para. 157.)
In moving to my conclusion 1must bring to the Court's attention three factors
which should, in my respectful submission, be taken into account in weighing
up the evidence, both in determining the existence of a systemor pattern and
more generally.
The first factor, i1 nlay mention it again, is the absence of any denial of the
facts by the Respondent State, by evidence presented in these proceedings.
The secondfactor isthe predominant and long-stated purpose of the operations
against Nicaragua, which isthe overthrowof the present Government on grounds
of a purely politicalcharacter, nainely, the national interest of the United States.
There is no evidence that the creation, maintenance and servicing of the base
camps in Honduras was related to any genuine motive of collective self-defence.
There is no evidence that the Governments of Honduras or El Salvador have
requested assistancefrom the United States for this reason.
Mr. President, 1 would recall the diplornatic notes sent by the Governrnents
of El Salvador and Honduras to the Registrar of the Court and the Secretary-
General, respectively, inApril of last year - 1 refer to the Annexes to the
Counter-Mernorial submitted by the United States on 17August 1984(Nos. 103,
104). These documents make reference to Article 33 of the United Nations
Charter but there is no reference to Article 51 of tlieCharter, or otherwise tu
the concept of collectiveself-defence.The omission is surely significant.
And in thissame context 1would draw the attention of the Court to the report
submitted to Congresç by Secretary Shultz on 15 March 1984 pursuant to
section 109 (f) of the Intelligence Authorization Act of 1984 (United States
Counter-Mernorial, No. 95). This document was published by the United States
Department of State with the title USEffortsto AchicvcPeucr inCentralAmcricu.
There is no reference in this kiirly substantial report to the taking, or to the
necessity of taking. action by way of collective self-defence.It is, of course,
notable that this report was published prior to the presentation of Nicaragua's
Application on 9 April. However, even when proceedings were envisagedby the
United States. and the wind seemedto grow cold, the United States officiaisstill
did not have collective self-defence inthe forefront of their minds. Indeed, it
was not present at all. Thus the departmental statement, which aççompanied the
famous Shultz letter of 6 April 1984 to the Secretary-General, contains no
reference to action by way of collective self-deféncaend this! Mr. President. is
in a context where it would be expected since that statement had an overtly ARGUMENT OF PROFESSOKBROWNLIE 173
argumentative and political tone. No doubt, the United States did eventually
make a temporary attachment to collective self-defence, but this was in the face
of litigation. wasunrelated to reality, and was self-serving.
The third Iàctor to be taken into account in weighing the evidence is the
principle, which iswellrecognized. that the Applicant State rnay relyon inferences
of fact and circumstantial evidence when, by reason of the exclusive territorial
control of the Respondent State - or of third States- the Applicant is unable
to furnish direct proof of facts giving rise to responsibility.
This principle was stated and applied by the Court in the Corfil Channel case
(Merits. I.C.J. Reports 1949,p. 18), and also in its Judgment in the Jurisdiction
phase of these proceedings (I.C,J. Reports 1984, p. 437, para. 101). Tt is also
given prominence by authoritative publicists, including O'Connel1(Internutinnal
Luw, 2nd ed., 1970, 11, p. 1098) and Rosenne (The Lrriiund Yracticr of the
/n~ernutioriuCI oiirt, 1965, 1, p. 582). The principle has also received the notice
and approval of two former Judges of the Coiirt :Sir Gerald Fitzmaurice (British
Yeur Book of Interr~utionciL l aw, Vol. 29 (1952), p. 59); and Sir Hersch
Lauterpacht (The BeveloptnenfrrfInternutinnalLaiv bj thr Iri/ernatiotzrrC l ourt,
1958,p. 88).
This principle was also relied upon in the Mernorials of the Governments of
Israel, the United States and the United Kingdom in the AericrlIncidetztcase (sec
I.C.J. Pleadings, AAerilrIncident of 27 July 1955, pp. 101, 249 and 352-353.
respectively).
To conclude on inferences of fact and indirect evidence: such evidence is not
to be taken as either a superior form of evidence or an inferior type of evidence.
Indeed, the distinction between direct and indirect evidence is usually over-
emphasized. And this is especially so when the criteria of State responsibility
have to be applied to the processes of governrnent and to the links between
covert and special operations in the field and policy-making at the top.
The principles of evidence areessentially principles of logic and common sense,
and this was underlined by Judge Badawi Pasha in his dissenting opinion in the
CorJtiChamzelcase (Mrrits, 1.C.J. Reports 1949, pp. 59-60). The evidence in each
case has an individual texture. It has its own tone and morphology, rather like
a language. In the present case the express admissions of responsible officiais
operate to confirm the truth and reliability of inferences of fact. In consequence,
when what may be regarded in isolation as elements of indirect evidence, or
inferences of fact, is related to the express admissions, the acceptance of
responsibility, which form part of the record, the result is proof of responsibility
with reüsonable certainty, leaving no room for reasonable doubt.
In short, it is the interlocking of evidence and its weight in the evidential
circumstances taken as a whofe which counts. The fact that some of the evidence
is in some sense indirect or circumstantial does not give any real indickition of
the value of the evidence available in the particular case. Mr. President, after
preparing these observations which may perhaps seem to be cornmon sense, 1
was no1 surprised to find the follo\vingpassage in a leading work of authoriiy
on the law of evidence:
"No useful purpose is served by a cornparison of the merits of direct and
circumstantial evidence. Although, in legal parlance, circumstantial evidence
does not mean a detailed account of what happened (as it formerly did in
popular speech), the phrase retains an important element of its original
rneaning when used by lawyers because circumstantial evidence derives its
main force from the fact that it usually consists of a number of items
pointiiig to the same conclusion. The blood on the accused's knifemay not be of much significance, but additional facts, such as the accused's animosity
towards the deceased, benefits to be derived by the accused from the death
of the deceased, and the acciised'sefïorts to conceal the knife may give it a
very damning con~plexion."[Crosson Evidentte,5thed., London, 1979.p. 11).
Mr. President, 1 have now reached my summary of principal conclusions.
1.The consistent pattern of express admissions of responsibility by the
President of the United States and other leading officialsforms part of the public
record in this case, together with the evidence of'the Administration's persistent
approaches to Congress for the funding of military and paramilitary operations
in and against Nicaragua.
2. Express admissions made on behalf of the United States and which are
adverse to its case are relevant to the claim of Nicaragua in three ways:
First,such expressadmissions provide cogent evidence of United Statescontrol
over mercenaries carrying out operations againsr Nicaragila.
Second, suçh admissions contribute direct evidence of intention and pur-
pose in relation to United States assistance to and control over forces operating
against Nicaragua.
Tliird. such admissions are evidence of the responsibility which the United
States bears for the military and parümilitary operations.
3. The express declarations of responsible United States officials involve an
acceptance or recognition of legal rcsponsibiliiy which, in the circumstances,
contribiites an independent basis of legal responsibility in this case.
4. The evidence on the public record of acceptance or recognition of responsi-
bility is confirmed by other evidence, including the sporadic and temporary
reliance by United States officialsupon the concept of collective self-defence,the
officia1attitude to the news of the attack on Corinio and to the programme of
mining. and the determinations of third States when their shipping was damaged
as a result of the mining of Nicaraguan harbours.
5. The reference to collective self-defence by oficials of the Respondent State
cannot provide any basis of legal justification for United States actions since:
Firsr,no evidence is produced in this Court by the Respondent State to sup-
port such a defence.
St~rond,the express declarations of the President and other oficials make clear
the fact that the real purpose of tlie military operations directed by the United
States is the overtlirow of a lawful government, which goal has nothing in com-
mon with self-defence.
Third the tactics of terrorisin directed against the civilian population of
Nicaragua, like the mining programme, are entirelyincompatible with the concept
of self-defence.
6. The evidence adduced by the Applicant State amply proves the existence
of a system or consistent pattern of intentions and activities on the part of the
United States. The consistency of the pattern justifies the inference that the
events form part of a coherent and deliberate policy, involving specified goals,
pre-arranged funding, and implementation in the form of recurrent military and
paramilitary operations.
7. Responsibility for military and paramilitary operations may be incurred in
four types of situation : ARGUMENT OF PROFESSORBROWNLIE 175
First,direct action by the Respondent State.
Second,action by forces which are controlled by. and thus are agents of, the
Respondent State.
Third,cases of assistance or complicity.
Fburfh,action not proved to be within the other categories which isadopted
or approved by the Respondent State.
8.There is a significant overlap between the first two categories and. within
those two categories, the ultimate test is that of agency and control, and not the
formal status of the individuals or forces employed,
9. In any case the significanceof the distinction between the four situations is
much reduced by other factors, including the münner in which the primary or
substantive rules of the law are Formulated and the existence of an acceptance
or recognition of responsibility on the part of the United States.
Mr. President, 1 have now concluded. I thank you and your colleagues for
your patience.
The Coui-lrose ut 1.05p.rn. TWENTY-FOURTH PUBLICSITTING (19 IX 85,3 p.in.)
Presrnt: [Seesitting of 12IX 85.1
ARGUMENTOF PROFESSORCHAYES
COUNSEL FOR THE GOVERNMENT OF NICARAGUA
Professor CHAYES : Mr. President, Members of the Court ;may. . please the
Court.
It is my function today to complete the presentation of Nicaragua's clairns
under the great international charters that regulate the fundamental relations of
States in the world and in the region where both of the Parties to this case are
situated. 1shall speak briefly. for these matters have been exhaustively treated
in the Memorial. 1 will touch on four main issues,
First, Article(4): the United Nations Charter prohibition on the use of force.
Second, the comparable provisions of the Charter of the Organization of
Americaii States.
Third, the multilateral treaty reservation to the United States declaration
under Article 36 (2) of the Statute of the Court.
Fourth. the question of self-defence.
It has taken a long tirne, but we have finally come to the issues of substan-
tive law in this case. We are no longer talking about provisional measures or
jurisdiction or points of procedure, important thougb those are. Wehave reached
the core question that gives this case its historic significance: what is the scope,
under Article 2 (4) of the United Nations Charter of the permissible use of force
by States in the conduct of their international relations?
1need not tell the Court that this is a favourite topic of publicists, some of
whom are ülso present or former Members of this Court. But this will be the
first time that the Court will speak comprehensively and authoritatively on the
meaning of Article 2 (4).
The voluminous scholarly writing on the subject is arrayed and fully analysed
in Nicaragua's Memorial filed on 30 April 1985.The Court will perhaps be
relieved to hear that we have discovered nothing new on the subject since that
date. 1cannot think that yet iinother review of'the authorities, weighty though
they be, will be very helpful to the Court at this stage. Instead. Mr. President
and Members of the Court, 1ask you toconsider Article 2 (4) in its fundamental
aspect. for you must give lifeand meaning to its language and to its aspirations
in the circumstances of international lifeat the beginning ofthe twentieth century.
It hardly bears repeating here that Article 2 (4) is the keystone of the Charter.
It is the language in which a wür-weary generation invested much of its hope for
the future.
"A11Members shall refrain in their international relations from the threat ARGUMENT OF PROFESSORCHAYES f77
or use of force against the territorial integrity or political independence of
any State, or in any other manner inconsistent with the Purposes of the
United Nations."
It is a commonplace that what the draftsmen of the Charter had in mind in
forming Article 2 (4) was old-fashioned transborder aggression, carried out by
the uniformed armed services of a State. Statesmen, no less than generals, have
a penchant for fighting the last war.
Old-fdshioned transborder aggression hasnot disappeared since 1945.Weseem
to have had an example in Angola, only the other day. But we know it when we
see il! and legal questions about it ordinarily centre around the issues of justi-
fication and defence.
1t is also common ground that Article 2 (4) was not to be confined to old-
fashioned transborder aggression. It had already become apparent in the early
years under the Charter that States, particularly great States, had means for
imposing their will on others by force, or the threat of force, without sending
troops. In an era ofspreading independence of former colonies, wars of liberation,
unstable and shifting régimes,and ideological struggle, the intellectual battle-
ground among international lawyers has been: how far beyond the notion of
transborder aggression does Article 2 (4) go? How much less than actual use of
troops is required?
As a starting point for our analysis,1 put it to the Court that if the armed
iictions shown on this record had been carried out by the arrned forces of a
State? there could be not the slightest hesitation in saying that they constituted
21use of force by that State.
But, of course, a significant portion of the acts of the United States, charged
hy Nicaragua as violating international law were in fact carried out by persons
who were, in effect, armed forces of the United States. 1 speak now of the
attacks, beginning in September of 1983 and extending through April of 1984,
levied against the oil supply hcilities and the ports of Nicaragua.
1read aloud in Court yesterday an extraordinary account of a meeting between
Iluane Clarridge, a senior officer of the United States Central Intelligence
Agency, and some of the Nicaraguan leaders of the covert operation he was
responsible for running. He told them that the CIA had decided it was necessary
to destroy the oil supply system of Nicaragua. What was the reason'! "Beçause
tvithout oil the Nicaraguan military would be immobilized and its capücity to
resist our forces would be drastically reduced." (Supp. Ann. G, para. 20). 1
think the Court will have to look hard to find that a permissible purpose.
Clarridge next reviewedwith them the alternatives thütthe CIA had considered.
I'irst there was a plan to sink ships, but "one problem with this plan was that if
a ship belonging to the Soviet Union were sunk it could trigger a serious inter-
national incident" (ibid.). Then there was a plan to bomb the Managua oil
refinery, the only one in Nicaragua. "However, the refinery wits located in a
densely populated area, and the civilian casualties resulting from such an attack
would be politically counterproductive." (thid..)So the CIA settled on a plan to
destroy the oil pipelines at Puerto Sandino and the other oil hcilities on
Nicaragua's Pacific coast (ibid) .
Within weeks after this conversation the attacks began. The "troops" - if 1
may cal1thern that - may have been called by a demeaning epithet :Unilaterally
Controlled Latino Assets - but they were in the employ of the United States.
They were under the command of United States military and intelligence oi'ficers,
including direct operational command during the course of the attacks. They
were supported by helicopters manned by pilots in the uniformed service of178 MILITARYANI) PARAMILITARY ACTlVITIES
the United States. And the dispatches reporting their actions to headquarters
did not fail to report Nicaraguan casualties. (Suppl. Ann. C, para. 21 1Ann. C,
Attachment 111-3:Ann. F, No. 48, p. 89; No. 72, p. 125 ;No. 98: p. 168; No. 99,
p. 169 ;No. 104, p. 176; No. 188,pp. 284-287.)
These attacks constituted an indisputable use of force in the old-fashioned
sense. There can be no question of justification - by ulay of self-defence or
otherwise. It does not take an international legal scholar to see that. Senator
Barry Gokdwater, Chairman of the Senate lntelligence Committee,did not mince
any words about it. He said: "That is a violation of international law." (Ann, E,
Attachment 9.) The Court should not hesitate to say so too.
lt appears, howcver, that these attacks have ceased. The public revelation that
they were going on cüused a Storm of protest in the United States. The result.
however, was perhaps not uninfluenced by the proceedings in this Court. Those
who ask "how many divisions has the Court?" would do well to consider the
chronology: the UCLA attacks and the mjnjng rif Njcaraguan waters came to a
climax at the very end of March 1984. Nicaragua filed its Application in this
case on 9 April (seeAnn. F. No. 89,p. 153 ;No. 90, pp. 154-156; No. 83, p. 145).
But if those attacks have ceased that is not ennugh. The gravamen of this case
is the depradations of the contra army and the effort organized by the United
States to overthrow the Government of Nicaragua. It is to get these actions
stopped that Nicaragua has come to the International Court of Justice.
The confruattacks go on. however, just as you have heard them described by
eye-witnesses before the Court. And, as you also heürd, last June they received
a new infusion of 27 million dollars of so-called "non-military" United States
aid (Supp. Ann. A, IV?pp. 374-376; Supp.Ann. C, Attachment 7). Non-military
aid which was followed in a few weeks by renewed contru offensive. Moreover,
Nicaragua's claims for compensation cover the consequences of the contruattacks
from their beginning in December 1981. So we must return to the earlier
question: how far beyond the actual use of a Statc's own troops or its uwn
employees does the prohibition of Article 2 (4) extend?
In a technical sense this question is treated under the heading of "State
responsibility" or "irnputability", and 1 have no quarrel with those analytic
categories. But 1do not want them to obscure the realities of this case.
1 have already suggested in very brief terms the circumstances of current
international life that make this problem an important one. In such conditions,
irregular or guerrilla warfare is an endemic condition in many countries. And,
again. given those circumstances, those fighting within a country will often have
tiesto persons and even governments outside. The problem has been to distinguish
the "use of force'bithin the meaning of Article 2 (4) from lesser involvement
by the outside State. That is not to Saythat lesser involvement may not also be
a breach of that State's duties under international law. But on the present branch
of the case we are speaking about use of force, and we must find a means of
evaluation that gives proper effect to both of those words.
1want to turn now to some of the efforts that have been made to grapple with
that problem. The following passages. which 1 will simply quote seriatui7,are
drawn from the wntings of publicists and the declarationsof various international
institutions.You will recognize that they are not intended to be exhaustive. They
çould hardly be, given the time available for this hearing. And they ;ire not
advanced to support any particular set of criteria. They are intended rather to give
us a senseof keyelementsthat seemto emergein anyserioustreatment of the subject.
Professor Brownlie writes :
"The use of volunteers under governmental control for launching a ARGUMENTOF PROFESSORCHAYES 179
military campaign or supporting active rebel groups will undoubtedly
constitute a 'use of force'.t is the question of government control and not
the label 'volunteer' or otherwise which is important." (1. Brownlie.
InterirationalLaw and the UsrofForce by States. pp. 371-372 (1963).)
After an extensive study of the problem of defining aggression, the Secretary-
General of the United Nations concluded in 1952:
"The characteristic of indirect aggression appears to be that the aggressor
State, without itseff committing hostile acts as a State, operates through
third parties who are either foreigners ornationals seerninglyacting on their
own initiative." (Qut.siionof Defining Aggression: Report oj" the Secretary-
Gcneral,56 UN doc. A122 11, 30 October 1952.)
Some 20 years later, the United Nations fin~tllyadopte3 a Definition of
Aggression. Article 3 specifies certain acts that shall "qualify as aggression",
including :
"The sending by or on behalf of a Stateofarmed bands, groups, irregulars
or mercenaries, which carry out acts of armed force against another State
of such gravity as to arnount to the acts listed above, [the acts listed above
were bombardment, invasion, and so on] or its substantial involvernent
therein." (Art. 3 (g) of the United Nations Definition of Aggression, G.A.
res. 3314 (XXIX) (1974).)
The International Law Commission has also had many occasions to address
this problem :
"(A) definition of aggression should cover not only force used openly by
one State against another, but also indirect forms of aggression such as the
fomenting of civil strife by one State in another, the arming by a State of
organized bands for offensive purposes directed against another State, and
the sending of 'volunteers' to engage in hostilities against another State."
(Position of the International Law Commission, quoted in Question of
D-fitiingAggressinn: Report of flicSecretrrr-v-Genera7l,4 UN doc. A1221 1.)
Finally, former President of the Court, Eduardo Jiménezde Aréchagaelabor-
ates the difference between the articles expressly interpreting the Article 2 (4)
prohibition of the use of force and those on intervention in the 1970Declaration
of Principles of International Law concerning Friendly Relations and
Co-operation among States. Mr. President, Judge Jiménezde Aréchaga's article
was in Spanish and most of the Members of this Court have already heard me
try to speak French: my clients did also and they were not willing to trust me
to speak Spanish so they have provided an English translation of the passage
from this article, but the Spanish will appear in the transcript. He says:
"To intervene in a civil war it is sufficient to interfere in it, for instance
by a premature recognition of belligerency: to violate the prohibition on
the use of force itis required to organize. instigate, assist or participate in
acts of civil war or in acts of terrorismn another state."
"Para intervenir en una lucha civil es suficiente interferir en ellas, por
ejemplo, mcdiante un reconomiçiento prematuro de befigerancia ;para violar
laprohibicion del uso de la fuerza se requiere organizar, instigar, ayudar O
participar en ucicisde guerra civilO cn uctos de terrorismo en otro Estado.
(Emphasis in the original.)" (E. Jiménez de Aréchaga. El Derecho
IntrrnacionulContemporanen 140 (1980).)180 MlLlTARYAND PARAMILITA RCTIVITIES
We see that the authorities talk in terms of "direction and control"; "use as
an instrument" ; "sending" of armed bands into another State by or on behalf
of the sending State; "participating in acts of terrorism, fomenting and insti-
gating".
These terms and formulations al1have much in cornmon and 1will wish to
cornirient on that in a moment. But in any particular case, the ultirnate question
of liabilitydoes not yield to bright line rules. It will resolve itself into one of
judgment in which the Court Inust evaluate the record in the light of these
factors and decide whether the Kespondent is to be held accountable for the
tictions of the irregular force, in this case an irregular force which it has created,
directed, and sustained in every particular. And let me Say immediately that in
whatever terms the standard applicable under Article 2 (4) to indirect aggression
isexpressed, the case made in the record before the Court meets its requirements.
The depth and breadth and intensity of the United States involvement with
the contrus at every juncture is painfully dear. Let me recall the eight broad
propositions Mr. Reichler and 1addressed yesterday; each established by a mass
of details and mutually corroborative evidence. Seven of these speak to com-
prehensive United States involvement with the contrus. (1) The United States
created and organized the coafrtzforce; (2) arrned, equipped and trained it;
(3) devised the strategy and tactics; (4) provided combat support for field
operations; (5) installed and paid a hand-picked çivilian leadership. All this was
done on the basis of policies established and carried out at the highest levels of
the United States Government and finally was for the purpose of overthrowing
the Government of Nicaragua.
Despite the overwhelrning character of the case, perhaps because 1remain ;t
professor at heart, 1would like to make a few - perhaps unsystematic - com-
ments relating those facts to the terms and formulations that have been used in
the professional discussion of the use of force under Article 2 (4) and which we
have,just a moment ago, reviewed. Ali these terms have a distinct active element,
and properly so, given the type of distinction that is being made between use of
force and some lesser degree of involvement. 1do not propose these formulations
as litmus tests for the use of force; they do no1 comprise a list of requirements
ail of which are necessary for liability; they provide an orientation, a sense of
the direction in which we must pursue our evaluation.
Direction and control: Professor Brownlie lists the following indicia:
"(N )umbers. central direction, sizeof offensiveIüunched, . .identification
of formations and divisions . . . source of equipment, origin of the com-
rnand under which the forces operate, and an absence of disavowal by
the government of the state of origin." ("Volunteers", 5 International
Comparritii>tLuiilQuarterly 574 (1956).)
Nicaragua, as 1 am sure you will recognize, has presented evidence under each
one of these heads, showing that the CTA determined the size, and it was a large
size, organization, strategy andtactics of the conrruforce; supplied al1its arms
and equipment; and not only the CTA but the President of the United States
have openly avowed and supported contra activities. Thereis no requirement
that the irregularsor guerrillas must be tantamount to an organ of the outside
State. And the requirement or tlie indicia of direction and control does not mean
that individual members of these forces may not have their own desires and
goals. The President asked Cornniander Carrion whether it was not possible that
some of the contraswere acting sincerely out of ideological or patriotic motives.
Commander Carrion testified that most of them were mercenaries or forcible
recruits. But he agreed that some might have held the motives suggested by the ARGUMENT OF PROFESSOR CHAYES 181
President (p. 29, supra); whether they did or not, they still took orders from
the CIA.
At some point in every military operation, of course. command authority is
delegated to field commanders. Here, it is obvious that, except for the UCLAs,
the United States participants were making an effort to avoid crossing the
international border or operating on the territory of Nicaragua. There are some
exceptions even to this generality: overflights for the purposes of supply drops
and reconnaissance were frequent (pp, 16-17, supra; Ann. A, Exhibit A, p. 42).
But in the main the United States participants stayed on "their" side of the
line.Al1this is implicit in the very idea of indirect aggression, which is defined
as such by the fact that it does not involve large-scale territorial trespass by the
acting State.
lns~rumcntuli~y :Direction and control" is closely allied with the concept of
using an outside force as an instrument to accomplish the objectives of the
conirolling State. Evidence of instrumentality focuses on motives and purpose
of that State, and on the methods chosen to implement its policy. Here we
have both purpose and implementation. In the light of the evidence presented
yesterday, there can be no doubt that the contra force is used as an instrument
of the purposes of United States foreign policy.
The original plan of December 1981grew out of an earlier search for ways of
asserting United States authority and influence in the Caribbean and Central
America, a search that included Secretary of State Haig's suggestion to "go to
the source" of the opposition (Ann. F, No. 3,p. 4; No. 188,p. 282). Ultimately.
it was decided that Nicaragua was an important pressure point.
Attention then turned to the rag-tag groups of ex-National Guardsmen
operating on the northern borders of Nicaragua. As you heard yesterday, they
were turned into a fighting force of 3,500 and then 7.000, and now perhaps
10,000to 11,000 men - an effective military instrument (pp. 14, 18,29). And
that instrument, through the financial, strategic,gistic and operational çontrols
exercised by the United States, was at the service of United States purposes
towards Nicaragua. Thüt is why it was created.
We have süid, and amply proved, that the purpose animating United States
policy was the overthrow of the present Government. That rnay well have been
the purpose of many or even most of those in the contm force. But this was no
inere coincidence of purposes - two actors jointly pursuing a common end. The
United States called the tune and the confra leaders did what they were told.
'Theybecame an extension ofthe Central Intelligence Agency - as Mr. Chamorro
said. "the executioner of its orders"- and the ClA, as we have seen, is a fully
subordinate arm of United States foreign policy.
Sending by or on behulf of the ucting State: Here we look to evidence of
external impulse and externül imposition of will on the irregular forces. How
can we say that the contras were "sent" into Nicaragua? Were they not ready
and willing to go on their own? Congressman Wright, the Majority Leader of
the House of Representatives, had no trouble with this point. He said: "The
CIA actively recruited and trained and equipped thousands of men and sent
them into Nicaragua to engage in war." (Supp. Ann. C, Attachment 5, 131
Cong. Rec. H4152 (12 June 1985).) An FDN leader himself commented that
what the CIA chief in Honduras did was to get the contra commanders out of
their cornfortablehouscs in Tegucigalpa and into the field in Nicaragua (Ann. F,
No. 188, p. 285).
The conrra army was sent into Nicaragua by the United States in ü much
more fundamental sense. Its missions in their essential aspects were defined by
the United States. Its offensives were planned by the United States. The military182 M~LITARYAND PARAMILITARY ACTIVITIES
objectives were established by the United States. Particular targets were selected
by the United States, and the cornmand structure, as described in the testimony,
was such that it isclear the CIA gave the orders to march.
Purticiputioriin ucts of terrorisrn: It is especially painful for an American to
talk about United States responsibility for the acts that have been so vividly
described in the testimony. According to Professor Glennon's testimony, high
United States officialstold him they had knowledge of the confruatrocities, that
"the levelof atrocities was enormous", and that the United States Government
inaintained a posture of "intentional ignorance" (p. 77, supro). But this is not
an abstract question of whether inere inaction in Ihe face of knowledge isenough
for liability. Thats what 1mean when 1say that technical categories should not
be atlowed to obscure the reülities of the case. The record in this case,
unfortunately, reveals much more than mere knowledge.
It is a fundamental principle of comrnand responsibility - written into the
training manuals of al1the United States armed forces. as well, I think, of most
of the armed forces of the world - that the commander is affirmatively res-
ponsible for instructing his troops inthe requirements of the law of war and for
imposing discipline when these requirements are violated, even in occasional
instances. Ifnotl he is guilty himself. and that responsibility is transrnitted to his
superiors right up to the chain of command - until someone takes corrective
action. Here the ClA was in the position of trainerand commander. It failed on
both counts. There is no evidence that the instriictors ever provided training in
the law of war or ever imposed discipline for violations. On the çontrary, in
what may be the most shameful episode in this whole sorry affair, the CIA
prepared the manual on PsychologiculOperutionsinGuerrilfaWriifurr,distributed
2,000 copies arnong the contrus and conducted seminars to see that its lessons
were well learned (Supp. Ann. G. para. 28; p. 17,supra).
Moreover, the CIA, as well as other high American officials, both in the past
and today, have tried systematically to disparage the evidence and to conceal
from the American people and the world the fact that the crinlrusare engaging
in terror tactics. Mr. Chamorro lost his job when he said truthfully, in response
to a reporter's question, that atrocities were in fact being committed, although
even he tried to explain them away (Supp. Ann. G, para. 29).
1am glad to Saythat concealment of that kind remains very difiicult to achieve
in the United States. The truth has been made known by a number of investi-
gations. like that of the International Human Rights Law Group about which
Professor Glennon testified. Three such reports are included in Annex 1. The
conclusions of al1 of them arc substantially similar and are summarized in
Supplemental Annex E, a recent report by Americas Watch, an independent non-
profit organization that monitors human rights cornpliance in Latin America.
That report is worth reading in full, but1wili quote only the major conclusions:
"With respect to the human rights practtces of the conrrus, we have
examined the Administration's claims for the moral character of these
insurgents and find, to the contrary, that the contras have systematically
engaged in the killing of prisoners and the unarmed, including medical and
relief personnel ;seleçtive attacks on civilians and indiscriminate attacks;
torture and other outrages against persona1 dignity: and the kidnappings
and harassment of refugees. We find that the most violent abuses of hurnan
rights in Nicaragua today are being committed by the contras, and that the
Reagan Administration's policy of support for the cnnfrtlsis, therefore, a
policy clearly inimical to human rights." (Supp. Ann. E. IV, pp. 409-410.)
fi~me~itingand in.stigutit~g:The United States financing, as Mr. Reichler ARGUMENT OF PROFESSOR CHAYES 183
showed yesterday, is the life-blood of the coniras. They were unorganized and
ineffective bands of ex-National Guardsmen before the presidential decision to
undertake covert action against Nicaragua. They were, as Commander Carrion
said, confined to stealingcatttle in the border areas (p. 13,supra).They themselves
were conscious of their impotence. In fact, until theCIA came along, the contras
were incapable of anything more (pp. 13-14; Supp. Ann. G, para.?), When the
CIA entered the scene, however, Colonel Bermudez, the leader of one of these
groups, who was to become the chief military commander of the contras, said:
"1could feel the steps of a giant animal" (Ann. F, No. 88, p.284).
The capability to mount sustained offensives or deep penetration into Nica-
raguan territory that Commander Carrion described was exclusively the result
of this United States presence. The ebb and flow of their offensives coinci-
ded with the rise and fall of United States financing (p. 16,suprli).
The story of Dewey Maroni - actually Duane Clarridge the CIA manager of
the operation - moving ont0 the scene in Tegucigalpa and making dispositions
for every phase of the contra activities is a classic instant of instigation. He was
active on al1 fronts: supply and armament, tactics, command systems, the
organization of a "respectable" political directorate, greasing the wheels in the
CIA and with Congress (Supp. Ann. G, paras. 20, 22, 26, 29). By themselves,
without the impetus from Clarridge and others like Colonel North, and without
the millions of dollars they brought with them, the contms could not have
established or maintained the momenturn required for the activities they did
in fact undertake. Even as it was, they needed and got constant and direct
reassurance - from Clarridge, Casey, North. Lehman and many others - that
the President was with them and that the United States would stay the course
until the present Government was finally ousted from Managua (see generally,
Supp. Ann. G).
1thank the Court for its indulgence in listening again to LIrecital of evidence
that we have heard before, this time packaged, not along the lines that
Mr. Reichler and 1laid out yesterday, but in relation to these headings, rubrics
and formulations used by the sçholars of international law.
1said at the outset that this case marks the first time the Court is called upon
to speak comprehensively on Article 2 (4). The Court has not been altogether
silent on the question of the use of force, however. What it has said was not in
the context of a case brought under Article 2 (4). Its words are few and they
were uttered almost 40 years ago. But they still resonate with the values expressed
in the Charter provision. This was in the Corfu Chunnelcase:
"The Court can only regard the alleged right of intervention as the
manifestation of a policy of force, such as has, in the past, given rise to
most serious abuses and such as cannot, whatever be the present defects in
international organization, find a place ininternational law. Intervention is
perhaps stifl less admissible in the particular form it would take here; for,
from the nature of things, it would be reserved for the most powerful
States ..." (I.C.J. Reports 144Y, p. 35.)
The last sentence of that passage is especially noteworthy in the present context.
It shows the understanding of a Court speaking when the priociplesand purposes
of the Charter were still fresh,that prohibitions in international law against the
use of force have much to do with protection of the weak against the strong. In
that case, the Court stood with a small, one might Sayoutcast State, against one
of the historic naval powers of Europe. As in Corfu Channel,the United States
use of force here is still lessadmissible in the particular form it would take; for,184 MILITARYAND PARAMILITARY ACTIVITIES
from the nature of things itwould necessarilybe reservedfor the most powerful
States.
The Application in this case also asserts that the actions of the United States
are in violation of the Charter of the Organization of American States. The
specificprovisions in issueare Articles 20 and 21 :
"The territory of a State is inviolable; it may not be the object, even
temporarily, of rnilitary occupation or of other measures of force taken by
another State, directlyor indirectly,on anygrounds whatever . . ." (Art. 20.)
"The AmericanStates bind themselvesin their international relations not
to have recourse to force exce~t in the case of self-defencein accordance
with existingtreaties or in fulfifimentthereof." (Art. 21.)
In their substantive provisions,these Articlesare essentiallythe same as those
of the United Nations Charter. The reference in Article21 to existingtreaties to
define the right of self-defenceisa reference to the United Nations Charter.
Article 20, it can be said, is even more explicitthan Article 2 (4) in proscribing
"measures of force taken directly or indirectly against another State" and in
limiting the purposes to zero for which such measures can be used. It follows
that since, as Nicaragua has shown, the conduçt of the United States violates
the prohibition of Article 2 (4), it also violates the Charter of the Organization
of American States.
Nevertheiess,it is important to spend a few moments on the Organization of
American States Charter. The reason is not that its provisions are necessarily
wider than those of Article 2 (4). The reason is that the Organization of
American States Charter, unlike that of the United Nations, is not a universal
obligation, but one that prevails among a geographicailyspecifiçgroup of States
to which both of the Parties belong, and it reflects the painful lessons of their
comrnon history and experience. Ttis a separare undertaking that the United
States has given to the countries of the western hemisphere and therefore has
special weightin this proceeding.
The historical background against which these provisions were drafted is set
forth in Nicaragua's Memorial.To summarize it in the briefest form, it consists
of over acentury of almost continuous United States intervention by forceunder
claim of right inthe afïdirs of the countries of Latin America; especiallyCentral
America and the Caribbean.
The most explicit justification for this course of conduct was the Roosevelt
corollary - Theodore Roosevelt - to the Monroe Doctrine, enunciated iii 1904.
He said :
"chronic wrongdoing or an impotence which results in a general loosen-
ing of the ties of civilizedsociety may in America, as elsewhere, ultimately
require intervention bysome civilizednation" (6 Moore, A Digesf of Infer-
natirinulLatr 967 (1906)).
Whatever the plausibilityof this pronouncement in the turn-of-the-century
çontext in whjch it was uttered. it could not survive the change in the basic
assumptions of international relations that has marked the past 75 years. The
principal preoccupation of Latin American international legal scholarship over
that period was to deny the United States claim to a rightful authority to police
by force the interna1or external policiesor governmentalarrangements of other ARGUMENTOF PROFESSOR CHAYES 185
countries in the hemisphere. And a major objectiveof the concerted diplomacy of
Latin Americain the 1920sand 1930swas to securethe renunciation ofthat claim.
President Franklin Roosevelt launched a new policy with his "good neigh-
bour" policy in 1933.In a series of Pan-American conferencesin the 1930s,the
principles and language that were ultimately embodied in the Organization of
American StatesCharter were hammered out and finallyaccepted by the United
States. This development culminatedin 1948inthe formation of the Organization
of American States and the adoption of its Charter.
The Final Açts of the Pan-American conferençes of the 1930s resulted in
obligations for the United States from the standpoint of international law. But the
OAS Charter was the first of the agreements renouncing theclaimed right to
intenene that was ratified as a treaty with the adviceand consent of the Senatein
accordancewiththe processmandatedbyArticle11ofthe UnitedStatesConstitution.
The conduct that the OAS Charter was designed to forbid was the very con-
duct and by the very State that is the Respondent in this lawsuit. The under-
taking of the United States has special meaning to the countries of the Carib-
bean and Central America, which has been the object of repeated military
occupation by United States forces. Nicaragua itself was under military occu-
pation on and off for a century and continuously from 1909to 1933,a period
of over 20 years. The Applicant in this lawsuit, therefore, was supposed to be a
particular beneficiary ofthe provision of the OAS Charter that it invokes.
The Court decided in its Judgment on the jurisdiction of the Court and the
admissibility of the Application that :
"the objection based on the multilateral treaty reservation of the United
States Declaration of Acceptance does not possess, in the circumstances of
the case, an exclusivelypreliminary character, and that consequently it does
not constitute an obstacle for the Court to entertain the proceedings . . ."
(1.C.J:Reports 1984, pp. 425-426).
This issue need not detain us long. It was fully discussed by both parties al
the jurisdictional phase and again in Nicarügua's Memorial on the merits. Niça-
ragua stands on its arguments made in those times and places and they need not
be repeated here. The remarks on the subject in the Judgment of the Court,
however, and in the separate opinions of several of the Judges have provided
considerable instruction on the matter and warrant emphasis here.
In the first place, as the Court said, a State making a reservation to its
declarütion under the optional clause will not be acting for the benefit of third
parties. This isespeciallytrue as to third parties that have themselves accepted
the compulsoryjurisdiction of the Court and so are in aposition to protect their
own interests, either by intervention or by the initiationof separate proceedings
against the applicant. Judge Ruda said:
"it does not seem logical that a State submitting a declaration accepting the
çompulsoryjurisdiction of the Court, but excludingcertain matters affecting
its own interests from that jurisdiction,hould act on behalf of third States"
(I.C.J. Reports1984, p. 456).
His review of the legislation history of the muftilateral treaty resewation
demonstrates that it içfullyin accord with that conclusion and it is not necessary
to recapitulate that review here.186 MILITARY ANI) PARAMILITARY ACTIVITIES
Nicaragua would also recall the Court's observation that El Salvador, Hon-
duras and Costa Rica, the States said to be affected by the Judgment have al1
"inade dectarations of acceptance of the compulsory jurisdiction of the
Court and are free, at any time, to corne before the Court, on the basis of
Article 36, paragraph 2, with an application instituting proceedings against
Nicaragua. . . Moreover, these States are also free to resort to the incidental
procedures of intervention under Articles 62 and 63 of the Statute"
(I.C.J, Reporls IY84, p. 425).
This consideration is especially weighty in the present phase of the case. El
Salvador, the State said to be chieflyconcerned, filed a declaration of intervention
in the jurisdictional phase. The application was denied as premature, but the
Court was careful to preserve El Salvador's rights to intervene on the merits. We
have now reached the end of the merits phase, and El Salvador has yet to appear,
although it found itself fully capable of defining its own interests and acting to
protect them in the earlier phase.
The proviso is not designed to protect third parties.It was meant to protect the
interestsof the United States. What these might beJudge Ruda has also defined
with clarity. The problem envisaged is that in a case arising under a multilateral
treaty, the United States, as defendant, might be bound by a judgment to a certain
course of action when other parties to the same treaty who were not parties to
the case would be able to pursue that very course of action to the detriment of
the United States. For example, in a dispute between the United States and another
party to a multilateral fisheriesagreement, the judgment might establish limits on
the catch to which the United States was entitled. But these limitations would not
apply by operation of the judgment to other parties to the agreement that were
not before the Court. They would remain "juridically free",in Judge Ruda's words
(I.C.J. Reports 1984, p. 456), to fish in disregard of the limitations expressed in
the Judgment. Finally, and most important, with the record now closed it can be
seen clearly that the Judgment cannot affect third parties. What has been revealed
is a use of force in blatant violation of international law. No third State can have
a right to its continuance.
Nicaragua has already adverted both in its Memorial and its oral pleadings to
the difficuity inwhich it is placed in regard to the issue of self-defence by virtue
of the provisions of Article 53. But in the present posture of the case, these
difficultiesare more theoreticai than real. Nicaragua submits that the Court can
dispose of the issue - to its entire satisfactio- on any one of three grounds.
1. As a factual matter, there has been no "armed attack" against El Salvador
or any other State in the region wjthin the menning of Article 51. Even under
the so-called "non-restrictive" view of the scope of the inherent right of self-
defence, the facts show no use of force nor any other kind of physical threat by
Nicaragua to its neighbours.
2. Even on the counter-Fdçtual assumption that there were such a threat, the
response of the United States does not meet the requirements of necessity and
proportionality that are universally agreed to be limitations on the right.
3. The purpose of the United States actions is to overthrow the Government
of Nicaragua and that purpose is fundamentally inconsistent with the inherent
right of self-defence.188 MILITARY AND PARAMILITARY ACTIVITIES
invasion by force of arms. To permit the United States, in the circumstances of
this case, to justify its conduct uiider the rubric of self-defence would be to let
the exception swallow the rule.
Mr. President, Members of the Court, my role inthe presentation ofNicaragua's
case to the Court is almost done. 1am deeplyconsciousof the burden 1leavewith
you. We have discussed some of the authorities on the use of force under
Article 2 (4) in this oral pleading, and we have citedmany more in our Mernorial.
Yet. 1have the sense that we have not seen the whole picture. When 1look at the
whole range of public discourse in the United States and eisewhereon the use of
force in international relations1am disconcerted. In my own country, even some
of my own younger colleagues, the next generation of scholars of international
law, seem ready to give up the long struggle to outlaw the use of force as an
instrument of national policy - the ideal that gave birth to Article 2 (4).
A recent note in theAmericuj~Joz~rnacl~fInternationu 1UW by Professor Michael
Reisman of Yale Law School says that "Article 2 (4) was part and parcel of a
complex collectivesecurity process". The collapse of that process, he argues, has
undermined the original understanding of the Article. Thus, he says, the use of
force inust be regarded as permissiblewhen it isapplied in support of community
order and basic policies- presumablyasdeterminedby the Statethat isusingforce.
In the same issue of that Jo~irnol.Professor Anthony d'Amato, in a discussion
of this very case, puts forward the suggestion that the use of force is permissible
under Article 2 (4) to redress flagrant violations of fundamental human rights -
again, presumably, as determined by the user of force.
Almost 15years ago, Professor Thomas Franck of the New York University
Law Schoolwrote an article entitled "The Strange Death of Article 2 (4)". One
of the basic causes identified for thisunhappy demise is that in situations like
the one presented in this case, eachgreat power can exercise its right to come to
the collective self-defençe oftheside itprefers.
1 am by nature an optimist, however, and 1 am not yet ready to join my
colleagues in returning to a Hobbesian international community. i believe the
returns are not yet al1in on the death of Article 2 (4). In particular. this Court
has not yet been heard from.
Al1 of the articles noted above mention as a central defect in the régime of
Article 2(4) the absence of an institutional process foi determining authoritatively
what is a prohibited use of force under that Article and what is a valid exer-
cise of the right of self-defence under Article 51. In this case there is such an
institutional process.
When Nicaragua brought its case to the Court, it was of course seeking an
adjudication of its rights under international law. But is was doing more than
that. It wasattesting itscornmitment to livebythe law as the Court pronounces it.
The Court, as we are al1told many times, hiis no coercive power to enforce
its decisions. It has on its side only the moral authority of the law. But in the
end, its most important role, as one of our great judges said, is as teacher to the
citizenry - in this instance, the citizenry of the world. The Court in this case
has the opportunity to revive the original understanding of the Charter, and its
message that law and not force is to resolve disputes among nations large and
small. If inthis case, in this Court, the citizenry of the world can seejustice done
and hear it spoken, we need not worry about the death of Article 2 (4).
The Court atbournedfrorn 4.15 to 4.25p.m. PLAIDOIRIEDE M. PELLET
CONSEILDU GOUVERNEMENT DU NlCARAGUA
M. PELLET: Monsieur le Président, Messieurs de la Cour, c'est ungrand
honneur pour moi de me présenterde nouveau devant vous et j'espere que je
saurai nie montrer digne de votre confiance.
Mon exposése décomposera endeux parties bien distinctes, et bien que je sois
iimené à les présentei la suite l'une de l'autre, il serait sans doute plusdexact
parler de deux plaidoiries différentesque d'un exposéunique.
Dans un premier temps,jem'efforceraide présenterlesviolationsdu traité d'amitié,
de commerceet de navigationdu 21janvier 1956,commises parles Etats-Unis.
Mon second exposé.qui sera plus succinct, portera sur les atteintes portées
par les Etats-Unis au principe fondamental de la non-intervention dans les
affaires intérieures d'unEtat.
Avant d'aborder le premier point, Monsieur le Président,je vous prie de bien
vouloir m'autoriser à ouvrir une parenthèse en forme de note de bas de page.
Mais je suis convaincu que cette<<footnote » sera source de moins de difficultés
qu'une autre note de bas de page qui figurait dans un certain Annuaire et dont
on a déjàbeaucoup parlé.Dans le texte de cet exposéqui a été communiqué aux
interprètes,j'ai indiqué avecprécisionles références exactses citations ou des
allusions a lajurisprudence queje seraiconduit a faire. Par conséquent, Monsieur
le Président,si cette suggestion pouvait recevoir votre agrément,je souhaiterais
éviterd'alourdir mon exposéoral en citant ces référenceset je demanderais aux
fonctionnaires du GrelTe?dont je sais l'efficacitésouriante, de bien vouloir les
rétablirdans le compte rendu écritdes audiences.
1. Comme je l'ai préciséil y a un instant, il m'appartient d'examiner les
violations, commises par les Etats-Unis, du traité d'amitié,de commerce et de
navigation conclu le 21janvier 1956entre ce pays et le Nicaragua.
Avantd'en arriver aux violations imputables aux Etats-Unis, ilparait nécessaire
de revenir très brièvementsur les problèmes qui sont poséspar cet instrument
en tant que base des compétencesde la Cour et sur les obstacles juridiques qui
pourraient éventuellements'opposer à son application.
a) Unebase de compkfrncevalide
11parait peu douteux que le traitéde 1956constitue une base de compétence
valide.
2. Dans son arrêtdu 26 novembre 1984,la Cour a soigneusement examinéles
objections développéesà cet égardpar les Etats-Unis, et a conclu:
«que, dans la mesure où les demandes formulées dans la requêtedu
Nicaragua révèlentl'existenced'un différendsur l'interprétationou l'appli-
cation des articles du traité de 1956...la Cour a compétence pour en
connaître en vertu de ce trai»é(C .J. Recueil1984, p. 429,para. 83).190 ACTIVITES MILITAIRES ET PARAMILITAIRES
3. La cause paraît êtreentendue, mais il faut relever que, par une note non
datée.remise iil'ambassade du Nicaragua A Washington !e le'mai dernier, le
département d'Etat a notifiéson intention de dénoncer ce traité d'amitié,de
commerce et de navigation conformément aux dispositions de l'article XXV,
paragraphe 3, de celui-ci. Avecvotre permission, Monsieur le Président.je
reviendrai un peu plus tard sur les motifs de cette dénonciation.
Le seul point qui importe au stade ou je me trouve est que le paragraphe 3 de
l'articleXXV, sur le fondement duquel les Etats-Unis se sont fondéspour
dénoncerle traité.dispose:
«3. Chacune des Parties pourra mettre fin au présenttraité A l'expiration
de la périodeinitiale de dix ans, ou iitout moment après l'expiration de
cette période,en donnant par écrit à l'autre Partie un préavis d'unan))
Ceta signifieque le traitéreste en vigueur aussilongtemps que ce préavis d'un
an ne sera pas écoulé, c'est-à-dirjeusqu'au 1"'mai 1986, et je pense que cette
constatation ne suppose pas une très longue démonstration puisque les Etats-
Unis eux-mêmes,dans la note non datée dont je viens de parler, semblent
reconnaitre qu'il en est bien ainsi. Cette note a étéremise au Greffe il y a
quelquesjours (annexe suppl. K ).
La traité d'amitiéd, e commerce et de navigation du 21 janvier 1956constitue
donc bien un titre de compétencetoujours valable.
b) L'nhsence(lulotlte circonsruriccescluunr l'illicéité
4. Mais il est vrai qu'il ne suffitpas que la compétencede la Cour soit établie
sur le fondement du traité de 1956, ce qu'elle adéji reconnu, pour que les
violations de ce traité engagent la responsabilité des Etats-Unis. Puisquenous
parlons de responsabilité, une condition supplémentaire doit être remplie:
l'absence de toute ((circonstance excluantl'illicéi»,pour reprendre l'heureuse
expression utiliséepar la Commission du droit international dans son projet
d'article surla responsabilitédes Etats pour faits internationalement illicites.
Durant la phase précédente,les Etats-Unis ont invoqué - ou semblaient
invoquer - deux circonstances de ce type. dont on peut dire pour simplifierque
la base juridique est distincte, mais dont la consistance est, somme toute,
extrêmementvoisine. D'une part, les Etats-Unis d'Amériqueont tait valoir
l'excusede légitimedéfense;d'autre part, ils ont évoquéles alinéas c) et ci)de
l'articleXI. paragraphe 1'du traitéde 1956lui-même.
5. Ces clauses ne sauraient, en la présente occurrence, exonérerles Etats-Unis
de la responsabilitéqu'ils encourent du fait de leur violation du traiti..
J'évoquerailesquestions liéesà l'alinéac) dans le corps mêmede mon exposé,
et! en ce qui concerne l'alinéa), je rappelle qu'il dispose:
« 1. Le présenttraité nefera pas ohstade a l'application de mesures:
II) nécessaireà l'exécutiondesobligationsde l'uneou l'autrePartie relatives
au maintien ou au rétablissementde la paix et de la sécurité internatio-
nales ou ii la protection des intérêtsvitaux de cette Partie en ce qui
concerne sa sécurité.»
6. La première partiede cette clause, relative aux exécutionsdes obligations
des Parties en ce qui concerne le maintien ou le rétablissementde la paix et de
la sécuritér,envoie en fait aux obligations qui sont assuméespar le Nicaragua et
par les Etats-Unis en vertu de la Charte des Nations Unies et sans doute de celle
de l'organisation des Etats américains.Et, comme vient de lemontrer M. Chayes, PLAIDOIRIE DE M. PELLET 191
ces instruments ne fournissent aucune espècede fondement juridique aux actes
et aux comportements des Etats-Unis. Par conséquent, il n'est pas nécessairede
s'y appesantir, pas plus d'ailleurs que sur I'excusegénérale de légitime défense
puisque la question a déjaétéabordéeau nom du Nicaragua par MM. Brownlie
et Chayes, et avec plus de talent et d'autorité queje n'en ai.
J'ajouterai seulement que c'est,à vrai dire, prendre le problème à l'envers: ce
n'est pas parce que la paix et la sécurité internationales sontmenacéesque les
Etats-Unis ne se conforment pas aux dispositions du traité de 1956; c'est au
contraire parce qu'ils ne respectent pas fesobligations énoncéesdans le traité -
qui sont aussi des obligations résultant de règlescoutumières - que la paix et
la sécurite internationales sont menacées, et il ne faut pas inverser l'ordre
des choses.
7. Quant a I'excuse tirée des nécessitésliées à «la protection des intérêts
vitaux)) des Etats-Unis en ce qui concerne leur sécurité, c'est-à-direfondéesur
la finde l'alinéacl). paragraphe 1, de l'article 21de notre traité, doncril'excuse
tirée desnécessités liéesà la protection des intérêtsvitaux des Etats-Unis, en ce
qui concerne leur sécurité,elle renvoie à la circonstance excluant I'illicéitdes
faits internationaux généralementdésignéscomme étant l'<<état e nécessité>>
dont M. Ago rappelait devant la Commission du droit international qu'il ne
constitue une excuse admissible «que si cette excuse a un caractère absolument
exceptionnel » (Amzuaire (le la Cornnaission (111droit in~tirnutio~ul,1980. t. 1,
p. 144). Il ajoutait:
<<Lamenace qui pèse sur l'intérêtqu'on prétend sauvegarderdoit être
extrêmementgrave et actiielle, et sa survenance doit êtreindépendantede la
volontéde I'Etat qui invoque l'excusede nécessité» . (Ihid.. p. 146.)
La Commission du droit international a à cet égardpleinement fait siennes les
vues de son rapporteur spécialet, commentant l'article 33de son projet d'articles
consacré à la reponsabilité internationale, la Commission note:
«La nécessitédont on parle est alors une nécessitéd'Etat: la situation de
péril extrêmeque l'on avance (...est représentéepar ...)un danger grave
pour l'existencede I'Etat lui-même,pour sa survie politique ou économique,
pour te maintien de possibilitéde fonctionnement de ses servicesessentiels,
pour la conservation de sa paix intérieure,pour liisurvie d'une partie de sa
population, pour la conservation écologiquedeson territoire, etc. »(Ann~~uire
LI Ea CominiFsio~du droii irrlernutionul,1980,t. II,deuxièmepartie, p.34.)
Sauf à entrer dans de longues discussions, il est toujours difficiled'administrer
une preuve négative; mais, en l'espèce, je ne pense pas m'aventurer beaucoup en
affirmant que rien dans la présentesituation ne s'apparente, de près ou de loin,
avec les cas extrêmes mentionnés par la Commission sauf peut-êtrepour le
Nicaragua, mais certainement pas si ces cas extrêmes sont vusdu côté des Etats-
IJnis. Comme le Nicaragua l'a montré dans son mémoire,c'est à la Cour qu'il
appartient d'apprécier les assertions des Etats-Unis sur ce point. Mais il parait
plus qu'hasardeux, Monsieur le Président,de soutenir que la seule présenced'un
gouvernement dont les choix politiques. économiques et sociaux déplaisentaux
Etats-Unis, ceci dans un petit pays d'Amérique latine n'ayant aucune frontière
commune avec les Etats-Unis, peut menacer, d'une manière quelconque, les
((intérêtsvitaux des Etats-Unis en ce qui concerne [leur] sécurité)).
8. L'invocation par les Etats-Unis d'Amérique,de ces diverses circonstances
excluant I'illicéiappelle en outre une dernière remarque.
On peut transposer ici le raisonnement que mon savant collègue,M. Brownlie,
a développéce matin devant vous, s'agissant de la seule légitimedéfense. Du seul fait que les Etats-Unis ont invoquéles dispositions des alinéasc) et
ci) de l'article 21 du traité de 1956, de ce seul fait! les Etats-Unis admettent,
implicitementcertesmais nécessaireinent, qu'ils livren« tdes armes, des munitions
et du matériel de guerre» à ce qu'ils considbrent comme étant des unités
militaires- ceci concerne l'alinéa cj - et, les Etats-Unis admettent aussi, plus
généralement,qu'ils ne respectent pas les dispositions du traité,au prétexte,soit
qu'ils ne peuvent en concilier le respect avec Leursobligations {(relatives au
maintien ou au rétablissementde la paix et de 13 sécuritéinternationales», soit
que leurs intérêts vitaux sont menacés - et ceci concerne l'alinéad). Or nous
avons vu que ni l'un riil'autre de ces prétextesne sont fondés.
c) Uneconrre-épreuveriche denstrignrments
9. Ainsi, Monsieur le Président,aucune circonstance n'est, dans la présente
affaire, susceptible d'effacer le caractère illicite des violations du traitéde 1956,
qui constitue une convention internationale toujours valable entre les Parties, et
ces violations constituent - j'essaierai de le montrer- des faits internationale-
ment illicites engageant la responsabilité des Etats-Unis.
Une précisioncependant est ici nécessaire iititre liminaire: plus une règle est
bien établie,plus les sources méinesde cette règlesont nombreuses et concor-
dantes. Or dans cette affaire, Monsieur le Président,les manquements imputés
aux Etats-Unis constituent autant de violations de principes tout ifait fondamen-
taux du droit international, et on ne peut, dès lors, s'étonnerque ces principes
soient consacrés par des sources nombreuses de natures diverses, par des
coutumes, par des trüitésmultilatéraux ou bilatéraux,et sans doute mêmepar
des principes générauxde droit.
Dans la présente affaireen effet, la confrontation systématique desfaits et des
comportements reprochés auxEtats-Unis par le Nicaragua aux diverses dispo-
sitions du traitédu 21janvier 1956conduit i.desconclusions tout a fait identiques
à celles que l'on peut faire en prenant en considération les chartes des Nations
Unies ou de l'organisation des Etats américains et les principes du droit
internationalcoutumier. En d'autres termes, lesdommages subis par leNicaragua,
du fait des activitésmilitaires et paramilitaires des Etats-Unis, ou menéesa leur
instigation, trouvent leur origine aussi bien dans le non-respect par ce pays de la
Charte des Nations Unies, de la charte de l'organisation des Etats américains,
ou dans la violation des obligations imposéespar des normes coutumières, ou
encore, dans, le manquement aux obligations particulières qu'ilsont acceptées
par le traitéd'amitié,de commerce et de navigation de 1956.
10. Ce que je veux dire. Monsieur le Président, c'estque la confrontation à
laquelle je vais procéderdans un instant recoupe inévitablement très largement
les exposésqui ont étéou qui vont étre présentés,par ailleurs, au nom du
Nicaragua. Cependant, comme l'a relevéM. Ago, dans son opinion individuelle
jointe A l'arrêtdu 26 novembre 1984(C.I.J. Recueil 1984, p. 531-532), le traité
de 1956,s'ilne permet guèrede grands développementssur leplan des principes -
encore qu'il en permette sans doute quelques-uns -, a le mérite d'obliger à la
rigueur; il me semble que M. le président Singhet MM. Oda et sir Robert
Jennings partagent au fond ce sentiment (ibid p..,46, 472 et 557).
Parce qu'il s'agit d'un traité bilatéral, d'untexte écrit,manifestant un accord
de volonté des parties, il permetà celles-cide confronter, de manièreprécise,les
faits à ses diverses dispositions, en mêmetemps qu'il les y oblige; le décalage
entre les uns - les fait- et les autre- le droit- constituant manifestement
des faits internationalement illicites ouvrant droità réparation.
Cela veut dire, Monsieur le Président, que des grands principes que mon PLAIDOIRIE DE M. PELLET 193
collègueAbram Chayes a magistralement présentésdevant vous il y a quelques
instants,il faut passer à un examen plus austère de règles plus techniques.
L'analysey gagnera peut-êtreen précision,elley perdra certainement en émotion
et sans doute en force de conviction.
II. Et cependant, mêmeavec la volonté d'êtreprécis, ilne serait pas légitime
de procéder à cette confrontation article par article sans avoir, auparavant, pris
en considération le traitéde 1956dans son ensemble. Car il apparaît que si les
Etats-Unis ont violéde nombreuses dispositions précisesde cet accord, ils l'ont
aussi, et peut-être surtout, vidé globalement de toute substance, de toute
signification et de toute portée.
Je m'efforcerai donc d'établir, dans un premier temps, que les Etats-Unis
d'Amérique ont privé le traité d'amitié, de commerce et de navigation du
21janvier 1956de son objet et de son but et, dans un second temps, qu'ils n'ont.
en outre, pas respectéles obligations particulières qui leur incombent en vertu
d'un grand nombre des dispositions de ce traité.
1. Les Etats-Unis ont privéle truitéde 1956de son objetet desonhur
12. Dans le mémoirequ'il a remis i la Cour le 30 avril dernier, le Nicaragua
a consacré d'assez longs développements en vue d'établir la portée exacte du
traité d'amitié,de commerce et de navigation du 21janvier 1956.Je ne voudrais
pas abuser de la patiencede la Cour en reprenant le détailde cette argumentation.
Il semble cependant nécessaire d'enrappeler les grandes lignes et de préciser
certains points avant de montrer que les Etats-Unis ont, par leur comportement
général,vidéle traitéde sa substance même,ce qui en soi constitue une violation
de ce traité, un manquement a une obligation juridiquement consacrée.
A. Le truitéde 1956 atrnepnrt6egénSrale
13. Sans doute, ainsi que l'a relevéla Cour au paragraphe 47 de son arrêtsur
la compétenceet la recevabilitéde la requête,cet accord constitue «à première
vuen une base de compétence «plus étroite dans sa portée que la compétence
résultant des déclarations faites par les deux Parties en vertu de la clause
facultative» (C.I.J. Rectrpil1984, p. 426). Et il est vrai que, en apparence au
moins, le champ d'application du traitéde 1956est plus limitéque celui couvert
par la requêtedu 9 avril 1984.
Cette première impression, et la Cour dit bien qu'il s'agit d'une réaction «Li
premièrevue», doit cependant être nuancée.
En effetsi.à certains égards - limitéson le verra -, la base de compétence
constituée par le traité est plus étroite que celle résultant des déclarations des
Parties en vertu de l'articfe6, paragraphe 2, du Statut, cet accord peut, comme
le soulignaitM. Ago :
((se montrer iil'application beaucoup plus a mêmequ'on ne le pense,
d'englober dans son cadre, non pas complètement si I'on veut, mais peut-
êtresous une forme plus rigoureuse et mieux définie,les questions litigieiises
qui opposent les Parties »(C.1J. R~rc,uei1l9/34p. 531-532).
Le traité du 21 janvier 1956 recouvre en effet la plus grande partie des
problèmes soulevéspar la requêtedu Nicaragua. D'une part, s'ilest un traité de
commerce, il l'est au sens le plus large du terme et nombre de griefs articulés
par le Nicaragua tiennent précisémentaux violations par les Etats-Unis de ce
que I'on pourrait appeler lejus cnmm~inicntioni gsaranti par l'accord de 1956.
D'autre part, ce traitéest aussi un traitéd'amitié.au sens plein de l'expressi-net c'est bien le comportement, pour le moins inamical des Etats-Unis à l'égard
du Nicaragua, qui est en cause. Enfin, il apparaît que le traitédc 1956doit être
Lucomme un tout et que lesdispositions <<commerciales >>et les((clausesd'amitié))
qu'il contient sont étroitement interdépendantes.
Je me propose de revenir de manière un peu plus détailléesur chacun de ces
trois points.
a) Un Irc~itdecommerce uiisens Ir p/~ilarge diiterme
14. Dans leur contre-mémoire relatif aux exceptions préliminaires, les Etats-
Unis ont contesté la pertinence du traité du 21 janvier 1956 au motif du
{(caractèrecommercial de cet instrument >>(p. 108).
Le Nicaragua ne conteste nullement que cet accord soit, entre autres choses
mais très Pvidemment aussi,un traitéde commerce. Mais, s'il est commercial, il
l'est au sens le plus large du terme.
11n'est pas sans intérêdte releverà cet égardque le seul auteur que les Etats-
Unis aient citédans leur contre-mémoiredu 17août 1984,page 408, M. Hermann
Walker, est en plein accord avec cette analyse. Il écritpar exemple, et ceci dans
le passage qu'ont cité lesEtats-Unis:
«They [il s'agit des traités d'amitié,de commerce et de navigation] are
"commercial" in the brnodest sensc.of the terrn.» («Modern Treaties of
FCN », MinrirsoinLaw Revieri.,1958, p. 806; voir aussi p. 805 et 822.)
Elargissant ses perspectives, le mêmeauteur précisedans une autre étude,
publiée elle-aussien 1958,l'annéemêmeou le traité concluentre les Etats-Unis
et le Nicaragua est entréen vigueur:
<<They[cesont toujours les traités d'amitie,de commerce et de navigation]
are designed to establish the ground rules regulating economic intercourse
in the broad sense, and they accordingly must reflect a meeting of minds
regarding proper international standards of behavior on a variety of subject
matterS.» (Hermann Walker Jr., «The Post-War Commercial Treaty
Prograrrrof the United Stütes~i,A./lirLL.S/Cit>~rQltui-ferty1958,p.57.)
Ces vues sont confirméespar la doctrine et lajurisprudence américaineselles-
mêmes,dont le Nicaragua a reproduit des extraits significatifsdans son mémoire
(voir notamment IV, p. 101et 111).
15. A la différence desaccords de commerce stricto sensil, des ((reciprocal
trade agreements » - comme les Etats-Unis en ont conclu par ailleurs , notre
traitéconcerne, bien sûr. l'achatde biens et de services, mais aussi. e1 vrai dire
davantage, l'établissement et la protection des personnes, individus comme
sociétés.les investissements, feselations monétaireset financiéres,les transports
et, en particulier,la navigation. les assurances, ou mêmeles échanges culturels
et les activitéspliilanthropiques.
De tous ces éléments.du préambule du traité. de son contenu - qui couvre
un champ extrêmementvaste -! de sa structure - il est si l'on peut dire
«construit en U >>et part de considérations trèsgénérales, puisil précisecertains
points avant de revenir i des principes de vaste portée -. de tout cela on peut
dire que les dispositions commercial es^d >u traitéd'amitié,de commerce et de
navigation de 1956 correspondent à la définition la plus large du «commerce
interniitional»donnéepar le Dictionnairrde /uternlitiolngidu ciroitintcrnutioncrl.
établi sous la direction du président Jules Basdevant. II y est dit que le mot
<<commerce» est un :
«terme employé parfois pour distinguer l'ensemble des rapports écono- miques, politiques, intellectuels entre Etats et entre leurs ressortissants)}
(Sirey. Paris, 1960,p. 126).
Ainsi, il apparaît que ce traitéde 1956,s'il est <<decommerce)), l'est au sens
le plus large du terme et que c'est unvéritable jiw communicurioni.~ qu'il entend
promouvoir - et pas seulement le commerce, traduction du mot anglais trade.
16.Cette constatation n'exclut aucunement que le traité du 21 janvier 1956
soit aussi untrüitéd'amitié.
En effet, qu'un traitécontienne des clauses commerciales est une chose; qu'il
soit. pour autant, de nature exclusivement commerciale en est une autre bien
différente.Et, en l'espècetce n'est certainement pas le cas du traité concluil y a
prèsde trente ans entre le Nicaragua et les Etats-Unis.
Cela est attestéd'abord par son intitulé même - il n'est pas besoin d'insister:
c'est un traité dumitié, de commerce et de navigation -, par son préambule,
par nombre de ses dispositions, et par l'esprit dans lequel il a été concluet
appliqué. Ceci, Monsieur le Président, a étédéveloppédans le mémoire du
Nicaragua; je n'insisterai que sur des points sur lesquels le mémoire a été
relativement rapide.
17. Le préambule énonce l'objectif du traité et indique, on ne peut plus
clairement, qu'il s'agit de ((resserrer les liens de paix et d'amitié qui unissent
traditionnellement lesdeux pays D.IIn'est ni nécessaire,ni sansdoute souhaitable,
d'entrer ici dans la querelle doctrinale, tout i fait passionnante, mais assez
abstraite, de savoir si les termes utilisésdans le préambule d'un accord inter-
national ont, par eux-mèmes, une valeiir obligatoire. 11sufit de rappeler que,
codifiant ce qui est, sans hésitation possible, le droit coutumier minimum, l'ar-
ticle 31de la convention de Vienne sur le droit des traitésfait du préambule un
élémentdu contexte li la lumière duquel doivent être interprétées les diverses
dispositions du traité.
Cette position qui reflète la jurisprudence constante de la Cour, que le
Nicaragua a rappeléedans son mémoire(IV, p. 104-105). estapproiivéepar une
doctrine qui paraît tout i fait unanime.
Cela signifieque mêmesi le préambulede 1956ne créepas de droits subjectifs
cn faveur du Nicaragua, il convient de lire le traitéa la lumièredu préambuleet
non pas comme les Etats-Unis ont essayéde le Fairedans leur contre-mémoire
sur lesexceptions préliminaires (II?p. 53), d'interpréterle préambiiterla lumière
des autres dispositions du traité.
De mêmeque la Cour permanente de Justice internationale s'est fondéesur le
préambulede la partie XII1 du traitéde Versaillespour en affirmer ((le caractère
compréhensif)) (Comp6tenr.r de I'OIT pozcr lu rkglemrntriiion internutioti~rlecles
cnndiiions dt( rrrrwil clt),personnes empl>vl;esclansI'ugricarlture,uvis consiclratif;
1922, C. P.J.I. serie no 2, et Conrpkirric~(IrI'OITpoitr i'euuwendeproposilions
fetulun~ri orguniser et à rlC.v~lopprrles moyens fieprodzictiotî crgricole, avis
c:onsultaiiJ1922, C.P.J.1. sérieB nu 3, p. 25), de mêmela lecture du préambule
du traitéd'amitié,de commerce et de navigation du 21 janvier 1956montre, sans
aucun doute, que les Etats-Unis et le Nicaragua ont entendu conférerii ce traité
la plus vaste portée et ne pas en limiter l'objet à la réglementation de leurs
relations commerciales.
Il en résulteau moins deux conséquences:
i) si certaines clauses peuvent être interprétéeasussi bien de manière étroitement
commerciale que de façon plus large, c'est la seconde méthode qui doit prévaloir,car tout raisonnement inverse serait contraire a l'intention claire-
ment expriméepar les parties dans le préambule; et
ii) autant il est légitimede donner leur plein efret aux dispositions de nature
commerciale figurant dans le traité, autant il ne saurait y avoir la moindre
raison de priver d'effet juridique les dispositions du traité qui n'ont pas de
portéecommerciale.
18. Indépendamment mêmedes considérations tirées du préambule, cette
conclusion s'imposedu seul fait que l'on ne saurait présumerque des dispositions
qui figurent dans un accord international sont dénuées de toute signification et
de tout effet.
Comme l'avait rappeléavec une grande fermetéla commission desréclamations
anglo-américainesen 1926,dans l'affaire des IndiensCuyugu:
«nothing is betrer settled, as a canon of interpretation in al1systems of law,
than that a clause musr be so interpreted as to give it a meaning rüther than
to deprive it of rneaningn (British-American Claims Commission (président
Nerincx, AJIL, 1926, p. 587)),
et la jurisprudence de la Cour permanente d'arbitrage, par exemple dans l'affàire
des Pêcheriesde I'Ail~intiqueNord (RSA, XI, p. 198), ou celle de la Cour, par
exemple dans les arrêtsrelatifs aux Emprunis serbes, arrêtno 14, 1929, C.P. J.I.
série A no20, et aux Empruntshrbiliens, arret n"15, IY29, C.P.J.I. &rie A noSI,
page 32, ou au DCtroit de Corfoir, fond arrêî,C.I.J. Recueil 1949, page 24,
confirme en tous points cette règled'interprétation.
Or, une lecture purement commerciale de très nombreux articles du traité de
1956priverait ces articles de toute porde, et priverait même ces articles de sens.
Dans son mémoire (IV, p.101-102) le Nicaragua a citéquelques-unes de ces
dispositions qui n'ont rien de commercial. Par exemple, c'est le cas de I'ar-
ticleIl,paragraphes 2 et 3 ;de l'article Il;de l'article V,paragraphe I ; de I'ar-
ticle XI, paragraphe 2. Cette énumérationn'est pas limitative; on peut y ajouter,
par exemple, l'articleIV qui impose un certain nombre de règlesfondamentales
en matièrede protection sociale: ou bien l'article X, paragraphe 2, qui pose des
principes très générauxen matière de coopération scientifique et technique ;ou
encore l'articleXXI, paragraphe 1,alinéasc) et 4, sur lequelje reviendrai. mais
je pense qu'il faut noter dèsmaintenalit qu'en réservantle cas du commerce des
armes et des mesures ({nécessaires à l'exécutiondes obligations des parties
relatives au maintien ou au rétablissement de la paix et de la sécurité
internationales>>,les deux parties ont manifesté.pour le moins. que les préoccu-
pations liées 1 leur sécurité n'étaienptas absentes de leur esprit lorsqu'elles ont
conclu leur accord.
D'autres dispositions peuvent avoir un sens, aussi bien si ellessont interprétées
dans une perspective purement commerciale que comme des clauses d'amitié.
Mais, si on ne les interpréte que comme des clauses commerciales, elles s'en
trouvent considérablement édulcorées et rien dans le traiténe Ic justifie. Tel est
le cas surtout de l'article premier, sur lequelj'aurai l'occasion d'insister demain.
Cette disposition qui est placéeen tètedu traitéimpose aux parties une obligation
de comportement extrêmement génkrale et .que I'on ne saurait certainement
limiter abusivement au domaine du commerce, puisqu'elle impose i chaque partie
d'accorder aux nationaux de l'autre partie, un traitement équitable.
19. Ceci est du reste confirmépar la pratique des traitésd'amitié,de commerce
et de navigation.
Monsieur le Président, ily aurait quelque outrecuidance de ma part à rappeler
longuement a la Cour qu'elle a eu, à trois reprises, si je ne me trompe pas, B PLAIDOIRIE DE M. PELLET 197
connaître de problèmes liés à l'application de tels traités. Dans l'affaire relative
aux Droits des ressortissantsdes Erats-Unis d'Amériqueau Maroc, ce sont bien
lesclauses commerciales du traitéconclu entre tes Etats-Uniset l'Empire chérifien
de 1836qui étaienten litige; en revanche, les dispositions du traitéde 1937entre
la France et le Siam, qu'elle aeu iappliquer dans l'affaire du Templede Préoh
Vilréai-e,t les dispositions du traitde 1955 entre les Etats-Unis et l'Iran, qui
étaienten cause dans I'afhire du Personneldiplornutique el ronslilairedes Etats-
Unis Tbhbrun, étaient typiquement des clauses non commerciales, et qui
n'avaient rienàvoir avec le commerce, meme au sens large d'ailleurs. Au surplus,
dans ce dernier cas, la disposition invoquée par les Etats-Unis était rédigéede
manièreanalogue al'article111, aragraphe 1,du traitéde 1956entre le Nicaragua
et les Etats-Unis.
Le Nicaragua a developpé longuement ce point dans son mémoire(p. 209 et
suiv.) et il montréégalementque la pratique interne des Etats-Unis donne leur
plein effetaux clauses non commerciales de tels traités - il me semble donc tout
a fait inutile d'y revenià cette barre.
Tous ces élémentsqui se renforcent mutuellement, concourent nettement a la
même conclusion : les mots et expressions «paix », «amitié», ({traitement
équitable )P.((relations amicales», ((protection et sécuritéles plus constantes)),
qui, parmi d'autres, figurent dans plusieurs dispositions du traitéqui n'ont pas
(ou pas seulement selon le cas) d'implications commerciales. Toutes ces dispo-
sitions, toutes ces expressions, ont un sens ordinaire)) et doivent produire le
plein effet que la définitionhabituelle qui leur est donnéeimplique. Cela découle
de la {(règlegénéraled'interprétation » codifiéepar 1';irticle31 de la convention
de Vienne sur le droit des traitéset dont il est là encore assez longuement fait
mention dans le mémoiredu Nicaragua.
20. Monsieur le Président,la présentation généraledu traitéde 1956,que j'ai
faite jusqu'à présent, risquede donner l'impression erronnéeque cet instrument
peut être,en quelque sorte, «coupé en tranches)), que I'on peut isoler des
dispositions commerciales d'une part, et les clauses d'amitiéd'autre part, et que
le traitéde 1956 est fait d'une simplejuxtaposition des unes et des autres.
Ce ne serait pas, je crois, une vision exacte des choses. D'abord, comme je l'ai
indiqué, certaines dispositions relèvent i la fois de l'aspect commercial et de
l'aspect amitié - c'est lecas avant tout du standard du traitement équitable
repris dans l'article premierdu traité. D'autre part, comme la Cour permanente
t'a relevé,pour interpréter un traité:
«II faut évidemment lire celui-ci dans son ensemble et I'on ne saurait
déterminer sasignification sur la base de quelques phrases détachéesde leur
milieu..)) (Compitence de l'OIT pour réglementeruccessoirrmrnr le ruv vu il
personrieldu patron, avis consultattl; I926, C.P.J.I. sérieB, no13, p. 23.)
Des raisons propres au traité du 21 janvier 1956 imposent avec une urgence
particulière de suivre cette directive. d'ailleurs reprise par l'article 31 de la
convention de Vienne du 23 mai 1969. et qu'il faut absolument suivre dans la
présenteespèce.
21. La première des raisons particulières tientà l'esprit mêmedans lequel cet
instrument a étéconclu, ou peut-ëtre, plus exactement, à son équilibregénéral.
Comme l'a écritM. le Président Elias:
«Performance in good faith means not only mere abstention from acts likely to prevent the due performance of the treaty, but also presupposes a
fair balance between reciprocal obligations)) (Thr Modern Law of Treutirs,
Oceana Publications, Sijthoff, Leiden, 1974.p. 43.)
Le Nicaragua a montré, dans son mémoire (IV, p. 102 et suiv.), que cet
équilibre, si important dans tout traité. serait totalement détruit si le traité de
1956devait êtrelu dans une perspective exclusivement commerciale: il est tout
lifait exact que, dans les différentstraitésd'amitié,de commerce et de navigation
qu'ils ont conclus, les Etats-Unis ont fait accepter par leurs partenaires un très
grand nombre d'institutions juridiques qui relèvent essentiellement - essentielle-
ment mais pas exclusivement d'ailleurs - du droit international du commerce,
par exemple. la clause de la nation la plus Favoriséeou le standard du traitement
national. Mais ceci n'a été acceptepar les Etats cocontractants que dans le cadre
d'arrangements plus globaux qui, dans leur esprit, étaientsusceptibles d'équilibrer
les avantages consentis aux inlérêta sméricains.
Dans le cas présent, comme dans les autres, les ((clauses d'amitié», qu'il
s'agisse des clauses portant sur le renforcement des liens d'amitié ousur la
coopérationpour ledéveloppementont constitué,pour le Nicaragua, lacontrepar-
tie des clauses commerciales, dont certaines, dont de nombreuses, n'ont pour un
petit pays sous-développé, guère d'intérêt.
22. Plus fondamentalement encore. et ceci de nouveau ressort du préambule,
ilapparaît que, dans l'esprit des parties au traitédu 21 janvier 1956,la promo-
tion du commerce international, au sens large, est un moyen de renforcer leurs
liens d'amitié,de mêmeque cette amitié est la condition du développement de
leurs échanges. Développement du commerce et renforcement de l'amitiéentre
les deux peuples sont donc ila fois des objectifs poursuivis par les deux Etats,
et chacun d'eux constitue en outre la conditiori indispensable i la réalisation
de l'autre.
Cette interdépendance n'est du reste pas propre au traité de 1956 et ü étc
expriméedans maints instruments internationaux, on en trouve très nettement
la trace, par exemple, dans le préambule et dans i'article 55 de la Charte des
Nations Unies, aussi bien que dans plusieurs articles de la charte des droits et
devoirs économiques des Etats. Mais, s'agissant du traité liant le Nicaragua et
les Etats-Unis, cetteinterdépendancea étéreconnue*on ne peut plus clairement,
par les Etats-Unis eux-mêmes,dont la note par laquelle ils ont notifié leur
intention de dénoncercet accord dont je parlais tout li l'heure.
Dans cette note remise au Nicaragua le 1" mai 1985, lesEtats-Unis écrivent -
je cite presque intégralement la note, elle est trèslaconique:
«In view of the policies and actions of the Government of Nicaragua
against the peace and security of the Central American region in violation
of the Charters of the United Nations and of the Organization of the
American States, and the consequent state of relations between Nicaragua
and the United States, a situation has for some time existed which is
incompatible with normal relations under a treaty of friendship, commerce
and navigation.» (Annexe suppl. K.)
Le Nicaragua, il est sans doute inutile de le préciser,fait toutes réservessur
les allégations des Etats-Unis. 11n'en reste pas moins que ces motifs, le fait que
l'on ne peut pas appliquer le traité d'amitié,de commerce dans les conditions
actuelles, induisent au moins l'accord des deux pays sur un point important:
dans l'interprétation du traité, amitié etcommerce doivent aller de pair.
23. Le méme raisonnement vaut en ce qui concerne les relations non plus
entre {{amitié»d'une part. et ((commerce »d'autre part! mais entre ({commerce )) PLAIIIOIRIE DE M. PELLET 199
d'une part, et «navigation )>d'autre part, l'un et l'autre étant l'objet de cejus
conzmu~zicationidsont j'ai parlétout a l'heure.
Le rapprochement des deux mots «commerce» et r< navigation» dans le titre
mêmedu traitéparaît tout à fait révélateurde la logique qui a été retenuepar
les parties: conceptuellement distinctes (le commerce est l'objet. lanavigation,
le moyen), lesdeux notions sont étroitementliées.Sans libertéde la navigation-
et du transit -,le commerce est paralysé.Et, inversement, la navigation n'a pas
d'objet si la libertédes échangesn'est pas assurée.
Comme l'a remarquéle professeur René-JeanDupuy, «le droit de la mer a
été conçuhistoriquement comme un droit du transport » (dans R.-J. Dupuy, et
D. Vignes, dir. publ.. Trairédu noirveaii~lroifde kr mer, Economica, Bruylant,
Paris, Bruxelles, f985,p.229) et l'on pourrait élargircette idéeen disant que le
développement historiquedu droit de la mer est alléde pair avec l'essor du
commerce qu'il a trèspuissamment contribué rifavoriser.
Ces liens entre la libertédu commerce et la libertéde navigation ont étémis
en lumiéreavec beaucoup de clarté par M. Azevedo, dans l'opinion dissidente
qu'il avait jointeA l'arrêtde la Cour en date du 9 avril 1949,dans l'affairedu
Détroi~de Corfoir. M. Azevedo, prolongeant les constatations de la Cour
permanente dans f'avis consultatif relatif à la Compétencede la cnmmi.v.~ion
i?urupkennedu Danube (avis consultatij: 1927, C.P.J.l. sPriB no14, p. 64-66), ou
bien dans l'arrêtrendu dans I'affaire Oscur Chinn (1934, C.P.J.I. s2ries A/B
iz063), p. 65, dont le mémoire du Nicaragua cite de nombreux extraits
(par. 418). écrivait:
« Le droit de passage des navires étrangers à travers la mer territoriale se
fonde sur la libertédu commerce, qui, elle-méme.présupposela libertéde
navigation, mais on ne peut envisager une opposition entre ces deux
acceptions de la liberté.>(C1.J. Recueil IY49, p. 98.)
24. Cette interdépendancevoue iil'échectoute tentative pour isoker,dans le
traité de 1956,les clauses «commerciales >>des clauses «de navigation». exacte-
ment de la mêmemanièreque le ;us comnzunicationisconventionnel est indisso-
ciable des clausesd'amitié.Toute interprétationdes unes doit sefaire à la lumière
clesautres et, dans la plupart des hypothéses,toute violation des unes conduit
nécessairement i une violation des autres.
C'est à la lumièrede ces observations générales, qu'iclonvient d'examiner la
perte de substance que les Etats-Unis ont fait subir au traité d'amitié,de
commerce et de navigation du 21 janvier 1956.
B. Les Etuls-Unis ont vide le truitéde 1956 desu substance
25. Aussi graves que soient lesviolations de certaines dispositions du traitéde
1956, cesviolations se situent dans un contexte général,qui, en lui-même,doit
êtreévoqué.
Mêmesi les Etats-Unis n'avaient pas violédirectement certaines clauses du
traité- ce qui n'est pas, Monsieur le Président,et je l'établiraidans la seconde
partie de cet exposé -. mime donc s'ilsavaient respectéla lettre de ses divers
articles,il n'en resterait pas moins que leur comportement serait contraire aux
règleslesplus élémentairesdubon senset de la bonne foi qui, comme l'asouligné
sir Hersch Lauterpacht dans l'opinion indivuelle qu'ila jointeà l'avisde la Cour
en date du 1" juin 1956:
({s'appliquentà tous les instruments juridiques, quels qu'ils soient. dans la
mesure où elles ont pour effet d'empêcher unepartie qui répudie un
instrument, d'en invoquer la lettre- ou d'en faire invoquer la lettrea son profit -, de manière à rendre impossible l'accomplissementdu but de
l'instrument )>(Adrnissibilitë tie l'audition depttiiionnaircs par le comitédu
Sud-Ouest ajricuin, C.1.J. Recueil 19.56,p. 48).
II ne s'agit pas là d'une simple directivesans portée juridique. Ainsique sir
Humphrey Waldock le relevait en 1964, lors des débatsde la Commission du
droit international:
<<11ne suffit pas pour un Etat d'exécuterles dispositions des traités selon
la lettre, en soutenant que sesactes ne sont pas directement en contradiction
avec les termes du traité; il est en outre tenu de I'obligutianjuridique de
s'abstenirde faire quoique cesoit qui pourrait en gênerla bonne exécution. >>
(Annuaire de la Commission de droit international, 1964, t1,p. 30.)
Et, dans son troisièmerapport sur le droit des traités,qui faisait l'objetde ces
débats,il écrivait:
«La bonne foi exigenotamment que toute partie i un traités'abstienne
de tout acte visant a empêcherque le traitésoit dûment exécuté et a réduire
ses objetsA néant.» (Ibid.,t.II, p. 3.)
Comme le mêmegrand maitre du droit international l'a rappelé deuxans plus
tard, cette obligation juridique «est énoncéeimplicitement dans la règlepacta
sunt servandu, telle qu'elleest formuléedans l'article55» du projet d'articles sur
ledroit des traités(devenu l'article 26de la convention du 26 mai 1969)(Annuaire
de la Com~>zissimde droit international, 1966,t. II,p. 65).
Cette obligation générale, conséquence premièd ru principe fondamental de
la bonne foi,qui, commel'asoulignéM. Lachs,«imprègne>> tout traité(«General
Course of Public international Law>>R , CADI, 1980, t.IV, no 163,p. 198),a été
violéepar les Etats-Unis, en ce sens qu'ilsont vidéde sa substance le traité de
1956dans son ensemble.
26. Ce serait, je pense, lasser laCour au-del8 des limites de la décenceque
développer longuementl'idéeque, dans leur globalité,les faits des Etats-Unis,
qui ont étéportés i sa connaissance et présentésde nouveau au début de ces
audiences par MM. Chayes et Reichler, sont, pour le moins, inamicaux.
Au surplus,cesfaitsne sont pas isolés ;cesont desactesnombreux,concordants
et délibéréqsui constituent une violation continue, massiveet évidente d'un traité
qui, quels que soient ses autres aspects, est d'abord - d'abord parce que les
parties en ont décidé ainsi en lui donnant son titre même ..- un traitéd'amitié.
27. Mais ce qui vaut pour l'aspect ((traitéd'amitié))de notre accord vaut tout
autant pour son côté«traité de commerce)). II est tout aussi clair en effet que,
par leur propre action aussi bien que par les actes commis à leur instigation et
sous leur contrôle, les Etats-Unis ont tenu en écheclejus cornmunicatinnisque
le traitéde 1956 codifie.
D'une part, en effet, ils ont cherché - et largement réussi - à paralyser le
commerce extérieur et,en partie, intérieurdu Nicaragua. D'autre part, ils ont
cherche - et, en partie, réuss- a détruirel'objetmêmede ce commerce.
28. En ce qui concerne la paralysie des moyens du commerce du Nicaragua,
elle tient essentiellementà la destruction des installations destinéesa rendre ce
commerce possibIe et des moyens d'assurer le transport des marchandises, à la
destruction de ce que l'on pourrait appeler les {{vecteursdu commerce>>.
Les faits pertinents ont également été rappelés avp erécisionpar M. Chayes
et par MCReichler. Je me bornerai donc i citer lesplus caractéristiques,pour ce
qui est de ma démonstration.
Le premier estévidemmentle minage des ports du Nicaragua de janvier à
avril 1984.et dont il suffitde rappeler: PLAIDOlRIEDE M. PELLET 201
- que l'opérationa étédécidéeet conçue aux Etats-Unis et approuvée par le
présidentReagan lui-même ;
- qu'elle a étéeffectuée, i partir de navires américains,par des ressortissants
des Etats-Unis oude pays d'Amériquelatine liés à la CIA ;
- que les mines étaientde fabrication américaine;
- que le minage a totalement paralysél'activitédes trois principaux ports du
Nicaragua, ceux de Corinto, de Puerto Sandino et d'El Bluff et qu'il a
durablement dissuadécertaines compagnies de desservir ces ports;
- que l'explosion des mines a gravement endommagéde nombreux navires,
tant nicaraguayens qu'étrangers;
- enfin, que le déminagea mobiliséla quasi-totalitéde la flottillede pêchedu
Nicaragua pendant plusieurs semaines.
Voila, Monsieur le Président,qui ne Favorisepas vraiment le commerce!
Mais, pour spectaculaire dans ses manifestations et dramatique dans ses
conséquencesqu'il ait été,le minage est fort loin d'étredemeuréune opération
isolée.Il faut y ajouter par exemple:
- la destruction des ponts sur le territoire mêmedu Nicaragua qui permettent
la circulation terrestre des marchandises et, en particulier,à quatre reprises
au moins, des ponts qui franchissent la route panaméricaine;il faut rappeler
i cet égard que, témoignant devant le Permanent Select Cornmittee on
Intelligence, le directeur de laIA a reconnu, en mai 1982,la responsabilité
de l'agencedans la destruction, le 14mars 1982,de deux ponts d'importance
vitale a Rio Negro et a Ocotal; voila, qui ne favorise pas vraiment le
commerce !
- les attaques destinées à paralyser la navigation aériennecivile, qu'il s'agisse
de celle, le8 septembre 1983, par deux avions Cessna, de l'aéroport inter-
national Augusto Sandino à Managua, au cours de laquelle I'un des avions
fut abattu et dont les documents de bord ont révélé que cet avion étaitla
propriété d'unesociété américaine travaillant avecla CIA ;et decelleperpétrée
contre un avion appartenant aux lignesaériennesdu Nicaragua a Mexico ou
de l'explosion d'une bombe sur l'aéroportSandino, de nouveau, au début
de 1982;
- la destruction systématiquedes installations pétrolièresdu Nicaragua: celles
de Benjamin Zeledon ou de Corinto, les 2 et 12octobre 1983,ou des attaques
répétéec sontre les pipe-lines de Puerto Sandino. Dans tous les cas, des
sources officielles américaines ont révélé que la CIA était directement a
l'origine de ces opérations(annexe F, piècesnos51 et 99), ce que confirme
d'ailleurs le témoignagede M. Chamorro.
Est-il besoin de préciserque, sans carburant, tout transport, que ce soit par
terre, par mer ou par air, et par suite tout commerce, est exclu, i moins d'en
revenir a la mule d'antan oude se contenter de bicyclettes'!
29. Ce qui frappe dans l'énumération - incomplète - de ces opérations,c'est
l'identitéde leurs objectifs: au-delà de la variété desibies qu'ellesvisent, c'esà
l'évidence lepotentiel économiquedu Nicaragua que les Etats-Unis veulent
atteindre. II s'agit d'abordd'empecherce pays de commercer avec l'extérieur,en
détruisantlesmoyensdetransport dont ildisposeet enmontrant à sespartenaires
étrangersqu'ils prennent un risque tout à fait considérableen poursuivant leurs
échanges commerciauxavec lui.
Ce plan concerté.conçu par les Etats-Unis, mené B bien pour l'essentielpar
eux-mêmeset, de manière plus accessoire, avec leur aide indispensable, n'est
compatible ni avec l'espritgénérad l u traitédu21 janvier 1956 - dont l'objectifest. il ne faut pas l'oublier, de ((favoriser les échangescommerciaux» dans
l'intérêctommun des parties, mais pas seulement entre elles -, ni, j'y reviendrai,
avec plusieurs dispositions précisesdu traité.
30, Si l'accomplissement de l'un des buts principaux du traité de 1956 -
l'expansion deséchanges commerciaux - est rendu impossible par les attaques
perpétrées contre lesvecteursdece coiumerce,c'est-à-direlesmoyensde transport,
il est également largementcompromis par les entreprises des Etats-Unis visant ii
affaiblir l'activitééconomiqueau Nicaragua elle-même, laproduction de biens
et de services,c'est-à-dire, en définitive,l'objet meme du commerce que le traité
de 1956entend promouvoir.
Ici encore, l'exposédes faits pertinents a été présenté dans les écrituresdu
Nicaragua et dans lesplaidoiries de MM. Chayeset Reichler:je pense qu'il suffit
de faire ressortir les plus saillants.
En tout premier lieu, ou peut relever que les atteintes et les sabotages des
contras sont dirigésde manière systematique contre lesobjectifs économiques:
récoltes,instullations de stockage des grains, de séchagedu café, etc.Cela ressort
clairement, tant des témoignages de M. le vice-ministre Carrion. du ministre
Huper, du pèreLoison ou du témoignage écrid te M. Chamorro,que desrapports
établispar de nombreuses autorités impartiales dont celui de M. Reed Brody,
celui de l'International Hurnan Rights Law Group et du Washington Ofiice in
Latin America: des extraits significatifsde ces documents sont d'ailleurs repro-
duits dans le mémoire du Nicaragua (IV, p. 32 et suiv.).
Les pertes qui ont été subiesde ce fait par l'économiedu Niçaragua sont
énormes - une évaluation préciseen sera présentée à la Cour en temps utile.
Elles affectent tout particulièrement les exportations de coton, de tabac et de
café, maisaussi les infrastructures, les routes, les aéroports, les installations de
stockage, les usines, etc., qui sont détruitesou rendues inutilisables, ainsi que l'a
montréle témoignagede M. Huper.
Cette situation n'aurait pas étépossible sans le soutien massif accordépar les
Etats-Unis aux corrfras,qui ont été véritablement leu« rbras séculier». Mais il y
a plus. De nombreux faits établissent clairementque ces destructions d'objectifs
économiques relèvent d'une véritable stratégie définie et mise en ceuvre a
Washington. On peut lire,par exemple,dans letémoignageécritde M.Chamorro :
«In 1984 ... we [il s'agit du FDN] were instructed to destroy export
crops (especiallycoffeeand tobacco) and to attack farms and cooperatives.))
(Annexe suppl. G, IV, p. 451.)
La volonté systématique desEtats-Unis de rendre le Nicaragua «écono-
miquement exsangue» est attestée égalementpar de nombreux faits dont ils
sont eux-mêmesles auteurs, tout k fait ouvertement. Tel est le cas de l'arrêt
brutal de toute aide américaineau Nicaragua le 1" avril 1981 ;tel est le cas de
la réduction de quatre-vingt-dix pour cent des importations de sucre en pro-
venance du Nicaragua, décidéepar les Etats-Unis en mai 1983,ou du veto que
ceux-ci ont opposé en mars 1985 au sein de la Banque interaméricaine de
développement a un prêtdont le Nicaragua aurait dû bénéficierC . es faits sont
exposésdans le mémoiredu Nicaragua (IV, p. 108-109)et j'aurai l'honneur, si
vous m'yautorisiez Monsieur le Président,d'y revenir demain lorsquej'évoquerai
les atteintes portées par les Etats-Unis au principe généralde la non-intervention
dans les affaires intérieures desEtats. Bien entendu, l'embargo décidépar les
Etats-Unis le 1" mai dernier constitue une preuve complémentaireet indiscutable
de la volontéde ce pays d'affaiblir l'économienicaraguayenne.
Ainsi, Monsieur le Président,il apparait que, par leur comportement continu
et par des actes nombreux, les Etats-Unis ont privéle traitédu 21 janvier 1956 PLAIDOIR~EDE M. PELLET 203
de toute substance, et cela dans sesdeux <<dimensions >>D.'une part, en détruisant
et en faisant détruireles moyens de communicütion et de transport du Nicaragua
et en affdiblissant considérablementson potentiel économique,ils ont empêché
la mise en Œuvre du jus crirn~nurricationic.o ~nventionnel et ils en ont rendu
['exécution impossible.D'autre part, en se livrant à des actes de recours i la
force et en les commanditant, en effectuant et en encourageant des actes hostiles
de toute nature contre le Nicaragua, ils ont privéde toute significationla volonté
qu'ils ontafichéede renforcer l'amitiéentre les deux Etats. Au surplus, ces deux
constatations se renforcent et,si l'on peut dire, «s'épaulent» mutuellement.
En demandant rivotre haute juridiction de constater que la responsabilité des
Etats-Unis est engagéesurcefondement, leNicaragua ne suggèrepas particulière-
ment que le traité doit êtreconstruit «libéralement >)ou qu'il doit êtreinterprété
largement )),il lui apparaît simplement qu'il convient de lui donner ses pleins
effets, tels que les parties les déterminés!et de considérerque les Etats-Unis,
qui ont obtenu des avantages considérablesen contrepartie du traité,ne sauraient
aujourd'hui rejeter les obligations commerciales et non commerciales - qu'ils
ont librement acceptéesil y a une trentaine d'années,pas davantage qu'ils ne
peuvent récuser la définition des objectifsfixéspar eux dans le préambule,d'un
commun accord avec le Nicaragua. Reprenant, i cet égard.une idéedéveloppée
par lord McNair :
((Our submission is that these descriptive phrases and statements .. . have
a legal eKect by way of estoppel.)) (Tf~eLaiv of Tr~uties,Clarendon Press,
Oxford, 1961,p. 486.)
II reste maintenant établir plus précisémentqu'indépendamment du traité
dans son ensemble. plusieurs, des nombreuses dispositions de celui-ci, ont
étéviolkes.
L'ulicliencrstIevée ù 18lierrues VINGT-CINQUIEME AIJDIENCE PUBLIQUE (20 IX 85, 10h)
Prése~~lt[sV:oir audience du 12 IX 85.1
M. PELLET: Monsieur le Président,Messieurs de la Cour. Lorsque, à la fin
de l'audienced'hier,j'ai interrompu mon exposé consacréaux violations commises
par les Etats-Unis d'Amériqueau traité d'amitié, de commerce et de navigation
du 21janvier 1956.j'avais établiou tentéd'établirtrois points.
Premièrement, qu'aucuneconsidération ne pouvait s'opposer iil'application
de ce traité?en la présenteespèce, et que toute violation de celui-ci devait
entraîner la responsabilitédes Etats-Unis.
Deuxièmement,que ce traitéavait une portéeextrëmement générale i la fois
parce qu'il est un traitécommercial lotosensu et parce qu'ilest un traitéd'amitié
au sens plein de cette expression.
Enfin, que les Etats-Unis ont par leur comporten~entet leurs actions privé ce
traité de sonobjet et de son but en le vidant de sa siibstance aussi bien dans sa
dimension commercialeque dans sa dimension amicale.
Pour terminer cet exposé.il me reste a établirque, de mêmeque les Etats-
Unis ont vidéde sa substance l'ensembledu traitéd'amitié,de commerce et de
navigation, de même!ils ont violé, aussi bienl'espritque la lettre, de nombreuses
dispositions de celui-ci et ce sont ces violations d'articles ou de dispositions
précisesdu traitéqui font l'objet de la seconde partie de cet exposé.
II. Les Etots-Utlist7nfviol&de nonlhreusesdispo.sitions
(lu trrritPr1956
Hconvient de rappeler icet égardque, lors de la précédentephase du présent
litige.es Etats-Unis se sont efforcésde minimiser la portédu traitédu 21janvier
1956, non seulement en lui dttniant toute signification non commerciale mais
encore en citant exclusivementles dispositions par lesquelleschacune des parties
reconnaît des droits aux ressortissants de l'autre partie - et seulement a ces
ressortissants- lorsqu'ils se trouvent sur leur territoire respectif et seulement
lorsqu'ils se trouvent sur ce territoire (voir contre-mémoire,II, p. 53-58). Les
Etats-Unis ont d'ailleurs repris cette argumentation dans leur déclaration sur
leur retrait de la procédureen cours (ce communiquéconstitue la pièce111-4de
l'annexe Cau mémoire du Nicaragua). Dans ce communiquéil est écrit: <<The
FCN Treaty on its face deals entirely with commercial matters in the treatment
of one country's nationals in the territory of the other («au traitement réservé
aux ressortissantsd'un des deux Etütssur le territoire de l'autre)}).Cesassertions,
Monsieur le Président,sont doublement inexactes. D'un ciité,de nombreuses
dispositions sont, si'onpeut dire, «non situées ))en ce sens qu'ellesouvrent des
droits A chacune des parties et i leurs ressortissants où que ceux-ci puissent se
trouver et souvent quels que soient leurs partenaires; d'autre part, lasponsribi-
Iitédes Etats-Unis peut se troiiver engagéesur le fondement de clauses que I'on
pourrait appeler «territorialement situées»,limitéesen apparence au territoire
de l'un des deux Etats, si?alors que les Etats-Unis en respecteraient la lettre, ils
en bafouent l'esprit et les privent dés lors de toute signification. Dans les
développementsqui vont suivre nous retrouverons cette distinction entre (<clauses PLAIDOIRIE DE M. PELLET 205
territorial>>et «clauses non territorialesP,aussi bien i propos des violations
de ce que j'ai appeté les <(clauses d'amitié» du traité de 1956. qu'en ce qui
concerne les violations de ses dispositions commerciales. Mais avant de passer
l'étude des uneset des autres il convient, je crois, de faire une placà part à
I'articlepremier du traitéqui relèvea la fois des clausesd'amitiéetdes dispositions
commerciales.
A. LES viol~ltion~e l'urtirpremier
J'en viensdonc tout de suite a l'analyse des violations par les Etats-Unis des
dispositions de I'article premier du traitéde 1956.Aux termes de I'articlepremier
de ce traité:
«Chacune des deux parties accordera, en tous temps, un traitement
équitable aux nationaux et aux sociétésde l'autre partie, ainsi qu'à leurs
biens, entreprises et autresntérëts.))
Cette clause revêtune importance tout a fait particulière. D'abord, en la
plaçant en têtede leur convention, les parties ont entendu marquer l'importance
qu'elles y attachaient.
Par ailleurs. l'article premier est un exemple toutà fait caractéristique des
dispositions dont j'ai indiquéqu'ellesn'étaientpas situées.Letraitement équitable,
qu'en vertu de cette clause chaque Etat s'oblige a accorder aux ressortissants de
l'autre partie ainsi qu'l leurs bienà leurs intérëts, n'est aucunement circonscrit
territorialement. Autrement dit, ceci signifieque les Etats-Unis doivent respecter
cet engagement, s'agissant des citoyens du Nicaragua. s'ils se trouvent à New
York, A San Francisco ou a Miami, bien sûr; mais ils doivent aussi adopter la
mème attitude si les ressortissants du Nicaragua vivent Managua, a Esteli ou
à Corinto - ou même, s'ils se trouvent à Paris, à Calcutta ou à Mexico (et ce
n'est pas à vrai direune hypothèse d'école puisqu'unavion appartenant aux
lignes aériennesdu Nicaragua a étévictime d'un acte de terrorisme alors qu'il se
trouvait sur l'aéroport précisémentde Mexico).
Au surplus, larédaction extrêmementgénéraleque les parties ont retenue fait
de cette disposition de très grande portée une sorte de synthèse du traité dans
son ensemble, en ce sens que l'article premier concerne aussi bien le volet sin
peut dire <<commercial » du traité que son aspect <(amical ». Cette double
appartenance est attestée par le fait que sont mentionnés dans I'article premier,
d'un côté! les ((nationaux et sociétés»des deux Etats - ce qui a un sens
extrêmement général -, et, de l'autre, «leurs biens, entreprises et autres is,érêt»
ce qui a évidemment une résonance plus mercantile, bien qu'après tout les
{{autres intérêts»puissent eitrede toute nature.
Le Nicaragua admet bien volontiers qu'une clause de traitement équitable n'a
pas une significationaussi préciseque, par exemple, le standard du traitement
national ou la clause de la nation la plus favorisée. Néanmoins, ce traitement
équitable constitue ici une disposition conventionnelle et, comme je l'ai rappelé
hier à propos des clauses d'amitié en général,c'est un principe bien établi du
droit international que les mots qui figurent dans un instrument juridique ne
peuvent pas êtreprivésde toute signification (voir Cour permanente d'arbitrage,
aîhire des P?clicrie.s(leI'AtlarziiqueNord, sentence du7 septembre 1910, RSA,
XI, p. 198).
Or, Monsieur le Président, quelque soit le sens exact du standard du traitement
équitable, ce standard serait absolument vide de toute substance si le traitement
qui est infligéaux ressortissants du Nicaragua par les Etats-Unis (ou par les
forces que ceux-ci contrôlent) devait Stre tenu pour équitable. Et ceciest vrai,aussi bien si I'onconsidère le traitéde 1956dans sa dimension «commerciale»,
que si I'on envisage ce traitédans ses aspects généraux.
35. S'agissant d'abord des aspects commerciaux, puisque les Etats-Unis ne
nient pas qu'il s'agittout de même d'untraitéde commerce, il parait tout à fait
impossible de considérerque les biens des nationaux et des sociétés duNicaragua
reçoivent un ({traitement équitable))lorsque des navires qui appartiennent a des
pêcheursde ce pays sautent sur des mines poséesdans les conditions que I'on
sait, par exemple à El Bluff le 25 février 1984, ou a Corinto, les 27, 29 et
30 mars suivant.
L'hésitationn'est pas davantage possible s'agissant:
- des maisons de paysans détruitespar les pontrus;
- de leurs champs saccages;
- des installations de stockage de denrées alimentaires,ou de caféou de tabac.
systématiquement incendiees, qu'elles appartiennent à des citoyens du
Nicaragua, àdes sociétésou A des coopératives;
- l'hésitationn'est pas davantage possibIe s'il s'agit des réservoirsde pétrolede
Corinto bombardés ou de l'oléoduc de Puerto Sandino saboté, sous la
supervision directe de la CIA.
Et ces pertes, qui sont les coiiséquencesd'actions directes des Etats-Unis ou
de décisions qu'ilsont prises, et fait appliquer sont, l'évidence,contraires a la
garantie donnée par ce pays d'accorder un traitement équitable aux ressortissants
du Nicaragua.
36. Cependant, Monsieur le Président, aussi graves que soient ces atteintes
portéestant à la lettre qu'à l'esprit de l'article premier de l'accord de 1956, le
((traitement équitable» que cette disposition garantit aux nationaux et aux
sociétés de chacune des parties. ainsi qu'à l'ensemble de leurs biens et intérêts,
ce traitement équitable ne saurait êtreréduit aux aspects purement mercantiles
du traité, mêmesi ces aspects commerciaux sont en effet protégéspar le traité,
et mêmesi ces intérêts et ces biens,u sens corrimerciai, au sens économiquedu
terme, n'ont pas étérespectéspar les Etats-Unis.
Monsieur le Président, il y aurait beaucoup de cynisme à en rester là. Et ce
serait, au demeurant, profondément illogique: si les intérets commerciaux et,
plus largement, si les intérêtséconomiques d'une personne sont protégés,il en
va à plus forte raison ainsi de sa dignitéet de son intégrité physique.
Pour les seuls besoins du raisonnement, j'efface les destructions de navires qui
ont résultédu minage des ports. les pertes économiquesqui sont la conséquence
du bombardement des installations pétrolières,de l'aéroport de Managua, des
ponts de la route panaméricaine; je goinme l'incendie des entrepôts de bléet des
récoltesde café;je biffe les balles de coton qui pourrissent dans les ports ct le
sucre qui n'est pas achetéen dépit des engagements pris. Tout cela, on l'imagine,
ne s'est pas produit. II n'y a pas eu d'atteintela libertédu commerce et de la
navigation...Est-ce que pour autant nous pouvons dire que les Etats-Unis ont
accordéun«traitement équitable » a l'équipagedu bateau-crevettier Alma Sriltanu
quia explosé sur une mine le 30 mars 1984dans le port de Corinto (annexe J,
p. 2). Est-ce que les Etats-Unis ont accordé un traitement équitable i plus de
20000 habitants de Corinto qui ont dû être évacuédsans des conditions difficiles
tandis que brûlaient les installations pétrolièresbombardées directement par les
Etats-Unis (annexe F, piècesn'Y8 et 99). Ont-ils riccordéun traitement équitable
àla petite filleblesséeetàses quatre frèreset sŒurstuéspar un tir de mortier A
San Gregorio en octobre 1984et qu'évoquait, parmi tant d'autres, le pèreLoison
dans sa déposition mardi matin; ont-ils accortléun traitement équitable A tous
ces morts.à tous ces blessés,à toutes ces femmes violées'! PLAIDOIRIE DE M. PELLET 207
La réponse,Monsieur le Président, ne peut, me semble-t-il, faire le moindre
tloute: ici encore, quelle que puisse êtrela définitiond'un traitement équitable,
il ne l'a pas été.Et comme MM. Chayes et Reichler l'ont montré, ce sont
les Etats-Unis qui ont posé les mines dans les ports nicaraguayens; ce sont
eux qui ont bombardé Corinto ; ce sont eux qui ont arméles assassins des en-
fants de San Gregorio, ce sont eux qui les ont contrôlés, qui les ont formés,
et quileur ont ordonné de procéder de cette manière indiscriminée - comme
cela ressort de maintes piècesdu dossier et, notamment, du témoignage écritde
M. Chamorro.
Je ne crois pas qu'il y ait besoin d'un accord international pour que de tels
agissementssoient contraires au droit des gens. Mais je sais qu'il ne peutavoir
le moindre doute sur le fait qu'ils sont incompatibles aussi bien avec la lettre,
qu'avec l'esprit, de l'article premier duaiti de 1956.
B. LESviol ut ionc^le«clauses d'urnifii.du traite de1956
37. Abandonnons I'article premier de ce traité. Je vais passer en revue
rapidement les violations des autres clauses d'amitiédu traité de 1956. En effet
letraitéd'amitit du 21janvier 1956contient, i côtédes dispositions commerciales,
des <<clausesd'amitié» qui visent non pas à protéger les intérêts économiques
des ressortissants des deux Etats, mais àprotégerceux-ci en tant que personnes
ou, plus largement encore, i renforcer les relations amicales entre les deux Etats
et entre les deux peuples.
On peut penser, par exemple, i la mention dans le préambule. du désirdes
deux Etats de «favoriser entre leurs peuples respectifs l'établissementde rela-
tions ...culturelles plus étroites». On peut citer aussi I'article II. paragraphe 2'
par lequel les deux parties s'engagent i encourager <<lescontacts mutuels entre
leurs peuples» et A faciliter, «alitant qu'il est possible, les voyages des touristes
et des autres visiteurs)).
Dire que le comportement des Etats-Unis ne tend guère ila réalisationde ces
objectifs relèveévidemmentde la litote.
II convient en outre de mentionner ici une autre disposition, plus limitéedans
sa portée mais qui présente,dans le contexte de la présente afhire, un intérêt
tout particulier. Cette disposition c'est I'article paragraphe 1,c) et d), du
traitéde 1956,dont M. le PrésidentSingh a montré.dans l'opinion individuelle
jointeà l'arrêt relatf la compétencede la Cour et à la recevabilitéde la requête,
qu'interprétée u contrurin elle apparaissait comme une disposition de fond
(C.I.J. Recueil1984,p. 447) dont ilparaît difficilede penser qu'elle aétérespectée
en l'espècepar les Etats-Unis, car les buts et lesnécessités>a )uxquels, dans le
premier cas (aliéna c)),la licéitédu commerce des armes, et, dans le second cas
(alinéa dl), l'adoption de mesures spécifiquessont subordonnées, ne sont, i
l'évidence!pas réuniesen l'espèce.
38. Les dispositions que je viens de citer imposent aux Parties des obligations
de comportement de caractère général.Elles s'ajoutent à d'autres, plus nom-
breuses, que l'on peut qualifier de clauses «territoriales» car. ces articles àris
la lettre ne s'appliquent aux nationaux de l'une des Parties que s'ils se trouvent
SLI~le territoire de l'autre.
Tel est le cas, en particulier, de I'article II, paragraphe, qui garantit aux
ncitionaux de chacune des Parties - pour simplifier le raisonnement, je dirai:
«aux nationaux du Nicaragua», puisque c'est d'eux qu'il s'agit -, qui garüntit
donc aux nationaux du Nicaragua, lorsqu'ils se trouvent aux Etats-Unis, les
libertésde circulation. de conscience, de religion, d'information et de commu-
nication. C'est le cas aussi de I'article III. paragraphe 1,qui dispose:
((Les nationaux de I'une des deux parties ne seront exposés, sur les
territoires de l'autre partie, aucune molestation illégale,quelle qu'elle soit,
et ils bénéficierontde lamanière la pfus constante d'une protection et d'une
sécurité qui ne devront en aucun cas êtreiriférieuresaux normes fixéespar
le droit international.D
C'est lecas enfin -je cite toujours lesclauses territorialement situéesdu traité
qui me paraissent avoir un intérêtdans notre affaire - de l'article VI, pard-
graphe 1 :
La protection et la sécuriti.des biens appartenant aux nationaux et aux
sociétésde I'une des deux parties seront assurées de la manière la plus
constante sur les territoires de l'autre partie.))
Monsieur le Président,le Nicaragua ne nie en aucune manière que, dans les
trois cas que je viens de citer, il est bien écrit(sur les territoires de l'autre par-
tie». Mais est-il raisonnable de considérerque, sous prétexteque le paragraphe 1
de I'article III precise que les citoyens du Nicaragua ne seront exposés à aucune
molestation illégalesur le territoire des Etats-Unis, cesmêrnespersonnes peuvent
êtremolestées - et le terme est ici encore, de nouveau, bien faible - par les
Etats-Unis (ou sur l'ordre de ceux-ci) lorsqu'elles se trouvent au Nicaragua'?
A vrai dire, ce que les trois dispositions que je viens de citer interdisent
expressémentsur leterritoire desEtats-Unis, ellesl'interdisent aussi. implicitement
certes, mais ii fortiori, sur le territoire du Nicaragua. (Et l'on peut remarquer,
d'ailleurs, que le traité de 1956 reconnaît dans son article VIII, paragraphe 2,
interprétéa cnnlrurio,qu'il est possible de déduireimplicitement des dispositions
du traité des droits qu'il ne garantirait pas expressément.) Au surplus, toute
autre interprétation irait a l'encontre des buts memes du traité d'amitié, de
commerce et de navigation de 1956,tels qu'ils sont énoncésdans son préambule,
et serait contraire aux règles lesplus élémentairesdu bon sens et de la bonne foi.
39. Dans cette perspective, il paraît dificile de ne pas voir dans les actions
des Etats-Unis une violation des libertésqui sont garanties par I'article II, para-
graphe 2, de notre traité et. en particulier, de la libertéde circulation- rendue
plus que problématique par l'insécuritéentretenue par la contru dans certaines
zones - ou mêmedes violations de la libertéde conscience. II est difficileaussi
de ne pas voir dans les bombardements et les sabotages auxquels se livrent les
contras, sous le contrôleet pour le compte des Etats-Unis, des actions qui portent
atteinte à la sécuritédes biens. assuréepar I'articleVI, paragraphe 1. Et il paraît
encore plus difficilede nier que lesnombreux actes cruels, inhumainsetdégradants
accomplis dans les niêmesconditions, et dans le détail desquelsil ne me semble
pas utile de revenir ici, constituent autant de <<molestationsillégiiles».au sens
de I'articleIll, paragraphe 1.du traité.
C. Lriviolution du jus communicationis conventionn~/
40. 11est permis de formuler le même genrede remarques en ce qui concerne
ce que j'ai appelé le jus cnmniut~ica&ionc isonventionnel, c'est-A-direl'ensemble
des clauses de ((commerce » et de navigation.
Le recensement systématique de ces clauses permet d'établir tout à fait
nettement, me semble-t-il, que le traité du 21 janvier 1956est très loin d'avoir
une portée territoriale et exclusivement territoriale comme les Etats-Unis ont
voulu le faire croire durant la première phase de cette affaire.
On peut remarquer tout d'abord que la portéeproprement territoriale du traité PLAIDOIRIEDE M. PELLET 209
est étenduea la haute mer par I'article XlX, paragraphe 2 (et aux «pêcheries
nationales»par I'articleXIV, paragraphe 6 a) - et, aujourd'hui, les ((pêcheries
nationales)),cela comprend au moins la zone économiqueexclusive).
De plus - et ceci estsans doute d'une plus grande portée-, on relèveici
encore, c'est-à-dire s'agissant des clauses commerciales, des dispositionspar
lesquelleschaque partie assume des obligations k l'égardde I'autre partie ou de
sesressortissantssansconsidérationde lieu.Indépendamment del'articlepremier,
sur lequel je me suis assezlonguement étendu etsur lequel jene reviens pas,tel
est le cas par exemple de I'articleXI, paragraphe 2, qui concerne exclusivement
les nationaux et les sociétéd se I'unedes parties qui précisémenn te résidentpas
sur les territoires de I'autre partie.
Surtout. ilest tout a fait révélateurq,ue par plusieurs dispositions du traitéde
1956,chaque partie garantit aux ressortissants de I'autre partiequ'elleadoptera
à leur égard uneattitude bienveillante, quelsque soient, si I'on peut dire, les
({partenaires».En d'autres termes,cela signifieque les Etats-Unis sesont engagés
i ne pas mettre d'obstacleaux relations «commerciales»(au sens largetoujours)
existantes ou à venir entre les ressortissants du Nicaragua et des clientsou des
fournisseurs qui relèventde pays tiers.
41. Trois dispositions sont particulièrementsignificativesAcet égard.
C'est d'abord le cas de I'articleX, paragraphe 3, selon lequel :
«Aucune des deux parties n'empêchera arbitrairementles nationaux ou
les sociétésde I'autre partie de se procurer dans des conditions équitables,
par les voies commerciales normales, les capitaux, les connaissances théo-
riques et pratiques et les techniques dont cette autre partie a besoin pour
assurer son développement économique.))
J'insistesur cet article X, paragraphe 3. Il n'est pas dit «de se procurer sur le
territoire de l'autre partie»; if n'est pas dit «de se procurer aux Etats-Unis)). II
est dit simplement :«de se procurer », sans autre précision ;ce qui veut dire: de
se procurer ((n'importeoù » ;de se procurer {(auxEtats-Unis ou ailleurs».Cette
interprétation nefait aucun doute si I'on confronte cette disposition aux nom-
breuses autres clausesdu traité qui,pour leur part, prennent, au contraire, soin
de préciser«sur le territoire de I'autre partie», ou bien «de la part de I'autre
partie ); ici, il n'y a rien de ce genre et il s'agitd'une clause importante.
On peut en efkt admettre que cettedisposition - j'en suistoujours à l'articleX,
paragraphe 3 - constitue l'un des éléments les plus convaincants de l'équilibre
global des dispositions conventionnellesdont j'ai parléhier: si lesEtats-Unis
avaient, et ont, assurément, peua attendre du Nicaragua en matièrede capitaux
et de technologies, laréciproquen'estcertainement pas exacte.Or cet engagement
que les Etats-Unis ont pris de fzciliter, fût-ce «par les voies commerciales
normales )>mais{(dansdesconditionséquitables»,ledéveloppementéconomique
du Nicaragua, est ouvertement bafouédèslors que la grande puissance nord-
américaine faittout cequi esten son pouvoir pour contrarierce développement -
dans des conditions que j'aisufisamment évoquéeh sier pour n'avoir à y revenir.
Dans le mêmeesprit, le paragraphe 1de I'articleXII est ainsi rédigé:
«Les nationaux et lessociétéd se I'unedes parties obtiendront de I'autre
partie le traitement national et le traitement de la nation la plus favorisée
en ce qui concerne lesinstruments constatant une opérationfinancièreentre
les territoires des deux parties ainsi qu'entre les territoires de I'autre partie
et les territoires d'un pays tiers.})
Cette dernière expression esttout i fait claire: ce sont bien les opérationsfinancièresavec les tiers qui sont en cause. Et le paragraphe 4 du même article
doit égalementêtre interpréte én ce sens.
Bien sùr, j'ai abordéla des dispositions qui ont sans aucun doute un objectif
assez technique, qui font appel à des standards qui ont une signification
relativement précise,il n'en reste pas moins que les obstacles que les Etats-Unis
s'ingénientà multiplier a l'encontre du Nicaragua, lorsque celui-cicherche B se
procurer auprès des organismes internationaux de financement les moyens de
son développement,ne sont pas davantage conformes à l'esprit de l'article XII
du traitéqu'a la lettre ei l'espritde l'articleX.
La troisième dispositionqui, dans cet esprit, mérited'être mentionnéeet qui,
elle non plus, n'a pas une portéeexclusivement territoriale, est l'article XVII,
paragraphe 3, qui prévoit que {(les deux parties feront en sorte de ne pas
empêcherla possibilitépour les ressortissants de l'autre partie de contracter des
assurances maritimespour leur commerce)).
Sans doute, la lettre de l'articleXVII, paragraphe 3,nedonne-t-ellede garanties
qu'en ce qui concerne les assurances contractées{(auprèsdes compagnies de
l'autre partie», mais ces garanties doivent bénéficiea rux importateurs et aux
exportateurs de produits originaires de I'un ou de l'autre pays,quelle que soit la
nationalitéde ces opérateurs.
Et cette disposition n'a pas étédavantage respectéepar les Etats-Unis que les
précédentes.Le Nicaragua a montré,dans son mémoire(IV, p. 111), que les
activitésmilitaires et paramilitaires des Etats-Unis avaiententraîne une hausse
considérabledu coût de l'assurance maritime (aussi bien, d'ailleurs, que de
l'assurance aérienne) applicableau fret en direction ou en provenance du
Nicaragua, y compris de la part des assureurs américains,dont les tarifs suivent
les fluctuations des indices de la Lloyd'sde Londres (qui apparaissent dans la
pièce5 de l'annexeK au mémoiredu Nicaragua).
42. Etant donné - et j'en aurai pratiquement fini avec ce premier exposé-
la très grande importance que présentepour le règlement du présent litige,
I'articleXIX, paragraphe 1,du traitéd'amitié,de commerceet de navigation du
21janvier 1956, letexte et I'espritde cette disposition doivent fairel'objetd'une
analyse particulièrement attentive.
Cet article XIX, paragraphe 1.dispose:
«1. IIy aura libertéde commerceet de navigation entre les territoires des
deux parties.))
Cette rédaction, Monsieurle Président,appelle deux sériesde commentaires:
En premier lieu il ne fait aucun doute que le bénéficdee cet article s'étend
la foisaux naviresbattant pavillondes Etats-Unis (et,sansdoute, à leurs aéronefs
qui sont, aujourd'hui, I'undes moyens normaux du commerce)et aux navires et
aéronefs desEtats tiers. En d'autres termes, il est tout B fait clair que les
agissements des Etats-Unis - sur lesquelsje nie suisassez longuement étendu
hier et qui, depuis le débutde ces audiences, ont fait l'objet de descriptions
précises:le minage des ports, Ic bombardement de l'aéroportde Managua, la
destruction des réservesde carburant de Corinto, etc. - constituent autant de
violations de l'articleXIX, paragraphe 1,du traité de1956,dèslors qu'ils font
échecau coniriierceet à la navigation entre les territoires deux Etats, que ce
commerce soit le fait de transporteurs américains oude transporteurs du
Nicaragua ou encore de transporteurs d'Etats tiers. Et cesviolations par les
Etats-Unis, & elles seules, sufisentà justifier que la Cour reconnaisse que la
responsabilitédes Etats-Unis est engagée surle fondement de I'article XIX,
paragraphe 1. PLAIDOIRIE DE M. PELLET 211
43. En revanche, Monsieur le Président,je reconnais volontiers que la réponse
a la question de savoir si la libertéde commerce et de navigation garantie par
I'articleIX, paragraphe 1, du traité s'étend aux relations commerciales et
maritimes de chaque partie avec les pays tiers, paraît, à première vue, moins
évidente.
Un argument de texte et la logique mêmede cette disposition, et sans doute
du traité dans son ensemble, conduisent, cependant, B écarter une réponse
étroitement «territoriale)>.
En premier lieu, le paragraphe 3 de I'article XIX aligne le régimeapplicable
aux navires de l'une des parties sur celui qui vaut pour ceux de l'autre Etat
contractant? d'une part, et pour les navires de tout Etat tiers, d'autre part. Si on
lit l'article XIX, paragraphe 3 (je ne vais pas le relire en entier), il est clair que
la navigation par des navires battant pavillon de pays tiers est viséepar cette
disposition. Et ceci parait bien impliquer que c'est une conception large de la
libertéde commerce et de navigation que les deux parties avaient i l'esprit.
En second lieu et surtout, le raisonnement quej'ai développé hiera, propos de
certaines clauses d'amitiédu traitéde 1956,paraît valoir a fortiori i:il n'est pas
raisonnable de penser que les Etats-Unis, qui se sont engagés,par l'article XIX,
paragraphe 3, Baccorder aux navires du Nicaragua libre accès a leurs ports et
mouillages, dans les mêmesconditions qu'a ceux des Etats tiers, c'est-a-dire aux
ports et mouillages des Etats-Unis, puissent s'abriter derrière la lettre de cette
disposition et du paragraphe 1 de I'article XIX, pour affirmer la licéitéd'un
comportement qui, dans les faits, revient à interdire aux navires nicaraguayens
et aux navires des pays tiers l'accès...aux ports du Nicaragua lui-même etla
facultéde commercer avec ce pays. II n'est pas raisonnable de penser que les
Etats-Unis se sont engagés i permettre l'accèsa leurs propres ports, en même
temps qu'ils peuvent interdire l'accèsaux ports du Nicaragua.
Est-il besoin d'ajouter qu'une telle interprétation serait toutit incompatible
avec l'esprit généraldu traité du 21 janvier 1956. Et ceci serait d'autant plus
inadmissible que I'article XIX, paragraphe 1, dans l'acceptation large qu'il
convient de lui reconnaitre, ne fait en réalitéque rappeler desprincipes coutumiers
bien établis,qui, en tout état decause, s'imposent aux Partiesen l'absencemême
de toute disposition conventionnelte, ainsi que mon savant ami, le professeur
Brownlie, le rappellera toutà l'heure.
Il est du reste extrêmement révélateuq rue, dans son arrêtdu 26 novembre
1984, la Cour elle-même,foin d'évoquer la possibilité d'une interprétation
abusivement rigide de I'article XIX du traité, a présentécelui-ci comme
((prévoyantla libertéde commerce et de navigation »(C.1 J.Recueil 1984,p. 428),
et, d vrai dire, cette lecture paraît assez évidente.
Mutatis mutandis, les mêmesconsidérations valent s'agissant de la libertéde
transit garantie par L'article de notre traitéet je n'essaieraipas de me livrer
de nouveau a cette démonstration car le temps passe.
Au bénéficede ces remarques, il paraît difficilement contestable que les Etats-
IJnis ont totalement tenu en échecl'article XIX, paragraphe 1; et pour les mêmes
raisons que j'ai dévefoppéeslorsque je me suis efforcéde montrer que c'est
l'ensemble du jus communicution~~conventionnel que les Etats-Unis ont tenu
en échec.
Je m'abstiendrai donc d'insister davantage,
Je vous demande seulement, Monsieur le Président,de bien vouloir m'autoriser
à prendre encore quelques secondes du temps de la Cour pour résumer très
brièvement les conclusions~auxquelles me semblent conduire les considérations
liéesau traitéd'amitié,de commerce et de navigation du 21janvier 1956que je
viens de présenter. Durant la précédente phasede cette affaire, les Etats-Unis ont affirméavec
beaucoup de conviction apparente la non-pertinence du traité d'amitiédans cette
affaire. Un examen attentif montre non seulenient qu'un grand nombre des
dispositions de cet instrument ont étéviolées soit dans leur lettre (et il y en a
davantage que I'on aurait pu penser à première lecture), soitdans leur esprit
parce qu'il n'est,tout simplement, plus possible de mettre ces dispositions en
muvre, et ceci,i vrai dire, vaut pour certaines dispositions aussi bien que pour
le traité dans son ensemble. D'abord, bien sûr, parce qu'il s'agit d'un traité
d'amitiéet que force est de constater que l'actuelgouvernement des Etats-Unis
3 de l'amitiéune conception singulière et, si I'on peut dire, fâcheusement
<<explosive».Cela relèvede l'évidenceet l'on comprend que, durant l'examen
des exceptions préliminaires qu'ilsont soulevées,les Etats-Unis se soient efforcés
de gommer de notre traité tout ce qui n'avait pas un caractère commercialet
technique.
Cependant, et quand bien mêmeils y auraient réussi.ils auraiendU assumer
les conséquences desformes qu'ils ont délibérémen cthoisies de donnera ce qui
est plutôt de l'inimitiéque de I'amitié,en particulier de la guerre économique
qu'ils ménentau Nicaragua et contre lui. et qui n'encourage pas davantage le
commerce que les activitésmilitaires et paramilitaires, auxquelles ils selivrent ou
qu'ilscontrolent, ne favorisent l'amitiéentre les deux peuples.
Monsieur le Président,lesattaques arméesdes Etats-Unis contre le Nicaragua,
leurs incursions dans ses eaux territoriales, l'utilisation de la force et de la me-
nace de la force contre celui-ci, les atteintes portéesau principe de la liberté des
mers, l'interruption du commerce maritime et aérien pacifique, les dommages
causés auxcitoyens du Nicaragua sont autant de griefsqui sont articulés sousles
lettresa) af) de la requêtedu Nicaragua. Ce sont aussi des faits dont la com-
mission n'est pas compatible avec l'idéed'un traité d'amitié,pas plus qu'elle
n'est compatible aveccelle d'un traité decommerce et de navigation. Les Etats-
Unis,qui ont dénoncé formellement letraitéenmai dernier, se sont pourtant com-
portéscomme s'il n'existait pius depuis 1981.La responsabilité des Etats-Unis
est engagéesur cette base et ils doivent réparation des dommages subis par le
Nicaragua en conséquencede ces violations. Dèslors, les conclusions énoncées
sur les lettres) et Ir)de la requête s'appliquentpleinement aux violations par
les Etats-Unis du traité de 1956.
Cela conclut, Monsieur le Président, mapremière plaidoirie.Je n'ai pu éviter
d'entrer dans certains détails techniquesqui, d'une certaine manière,contrastent
avec le «profil» généralde cette afhire. Malgrécela, vous avez bien voulu ne
pas manifester d'impatience et ceci m'est une raison supplémentairede vous
exprimer ma vive reconnaissance pour votre attention patiente.
The PRESIDENT: Would the Agent of Nicaragua indicate who will be the
nexccounsel to address the Court?
Mr. ARGÜELLO GOMEZ:Mr. Pellet willcontinue with the intervention of
the United States in the interna1affüirs of Nicaragua.
M. PELLET: Monsieur le Président,Messieurs de la Cour, les hasards du
partage des tâches entre tesconseilsdu Nicaragua font que je me succède moi-
même à cette barre puisque, après avoir développéles questions liéesau traité
de 1956,il m'incombed'ébaucherla discussion relativeaux violations commises
par les Etats-Unis de leurs obligatioris en vertu du droit coutumier, violations
dont mon savant collègue,le professeur Brownlie, tirera les conséquencesdans
quelques instants sur un plan plus général. PLAlDOlRIE DE M. PELLET
L'INTERVENTI DENSETATS-UNI DANS LES AFFAIRES INTERIEURES
uu NICARAGUA
1. En ce qui me concerne, mon second exposéportera exclusivement sur
l'intervention desEtats-Unis d'Amériquedans lesaffaires intérieures etextérieures
du Nicaragua, au méprisdes principes du droit international.
Je pense d'embléepouvoir rassurer 1aCour sur un point qui, aprèsplus d'une
semaine d'audiences, peut la préoccuper: cette seconde plaidoirie sera beaucoup
plus brèveque celle qu'ellevient d'écouteravec tant de bienveillance. Sije peux
oser cet aveu, Monsieur le Président,je dirais respectueusement, que mon souci
de ne pas importuner la Cour par une présencetrop longue a cette barre est
Iàvorisépar le thèmemëme que je dois traiter.
En effet, en se présentant devant vous dans cette affaire, les conseils du
Nicaragua ont souvent éprouvéune certaine gêne.tant ils avaient le sentiment
de plaider l'évidence,tant il leur a semblé Limaints points de vue qu'il n'était
guèrenécessairede démontrer par de longs raisonnements des atteintes au droit
international que le seul énoncé des faitssufiiétablir.Ce sentiment,je l'éprouve
avec une acuitéparticulière en abordant la question de l'intervention des Etats-
IJnis dans les affaires du Nicaragua.
2. Sous la lettre ci)de sa requêtedu 9 avril 1984,le Nicaraguaa priéla Cour
rle dire et juge:
<d) Que les Etats-Unis, en violation de leurs obligations en vertu du droit
international généralet coutumier, sont intervenus et interviennent
dans les affaires intérieuresdu Nicaragua.»
A premièrevue, cette conclusion peut paraître plus étroite quecelle Fondésur
la violation par les Etats-Unis de leurs obligationsne pas violer la souveraineté
du Nicaragua ou de ne pas recourir à la force eà la menace de ta force contre
celui-ci. Dès lors.en particulier, qu'un manquement à ce dernier principe- au
principe de l'interdiction du recoura la force - est établ- que ce soit sur le
fondement de la Charte des Nations Unies, comme M. Chayes l'a montréhier,
ou que ce soit sur le fondement du droit coutumier, comme M. Brownlie le
montrera tout à l'heure -, du mêmecoup, et ipso ,facto,le principe de non-
intervention se trouve violé,l'emploi de la force, qu'il s'analyseou non en une
agression, constituant toujours et inévitablementce que I'on pourrait appeler le
ustade supreme de I'intervention».
3. Néanmoins, établirla violation par les Etats-Unis du principe de l'interdic-
tion de l'intervention dans les affaires intérieuresdes Etats n'est pas pour autant
un exercice totalement vain - cinq raisons au moins me semblent lui conférer
un réelintérêt:
i) teprincipe de non-intervention constitue une règlecoutumièredont l'existence
est indépendantedu principe de l'interdiction de recoursà la force;
ii) s'ils ne sontà l'évidence,pas dépourvus de tous liens, les deux principes,
celui de I'interdiction de I'intervention et celui'interdiction du recoursà
la force, ne sr recouvrent pas et l'interdiction de I'intervention dans les
affaires intérieures des Etats a une portée plus large que le principe de
I'interdiction du recours à Laforce;
iii) s'il n'estpas douteux que le principe de la non-ingérence est unenotion i
contenu variable, ou si I'on veut,«un pavillon recouvrant des marchandises
extrèmement diverses)),les conditions de sa violation se trouvent remplies
dans la présente espèce, aussi étroite que puisse êtrela définition que
l'on retien;
iv) quelle que puisse êtrela pertinence, dans l'abstrait, des efforts doctrinaux214 ACTIVIT E LITAIRES ET PARAMILITAIRES
pour opérerune distinction entre les interventions licites, d'une part, et les
ingérencesillicites,d'autre part, les faits qui sont imputables aux Etats-Unis
dans la présenteaffaire ne peuvent entrer dans aucune des hypothèsesdans
lesquelles, seloncertains auteurs, le droit international admet l'intervention
enfin,
v) par le fait mêmequ'ils sont intervenus et qu'ils continuent d'intervenir dans
les affaires intérieuresdu Nicaragua, et compte tenu des conditions dans
lesquellesleur intervention seproduit, lesEtats-Unis contreviennent du même
coup à d'autres principes fondamentaux du droit international contemporain
et, en particulierà celui de l'égalitde droits des peuples et de leur droit i
disposer d'eux-mêmeset celui de la souveraineté des Etats sur leurs
ressources naturelles et leurs iictivitésécononiiques.
Partant de ces considérations,mon exposés'articulera successivementautour
des quatre propositions suivantes :
a) le principe de non-intervention est un principe coutumier de caractère
autonome ;
h) le principe de non-intervention fait,en la présenteespèce, l'objetde violations
manifestes de la part des Etats-Unis, aussi étroiteque soit la définitionque
l'on en donne;
c/ ces violations sont indissociablesd'autres manquements trèsgraves i d'autres
principes du droit international qui en sont la conséquence:
d) cesviolations n'ont aucune justification juridique.
Pour rassurer la Cour, je lui dirai que je ne m'attarderai quelque peu que sur
la deuxièmeproposition, celle concernant les violations par les Etats-Unis dans
le caspresent.
J'aborde tout de mêmela première.
A. Le principe (fenon-intrrrlentirinesztnprrriciprcriuluiliier
dr curactérruuroiziime
4. L'autonomie du principe de non-intervention tient à ta foisi son histoire.
à ses fondements et à sa portée.
5. 11ne me parait pas établi, Monsieur le Président, qu'il y ait un droit
international nouveau qui s'opposerait iil'<<anciendroit». Mais, si tel était le
cas, il ne fait aucun doute que c'estdans ce droit ancien. dans ce droit tradition-
nel, qu'il faudrait chercher les racines du devoir de non-ingérenceou de non-
intervention. j'emploierai les deux termes comme synonymesdans la suite de
cet exposé.
Monsieur LePrésident, je n'aurai pas la cuistrerie de retracer ici l'histoire du
principe de la non-intervention; je crois qu'iluffitde releverque, déjà,les pères
du droit international, et en particulier Vattel, affirmaientl'existencedu principe,
tandis que des auteurs comme Fauchille, dans son Truitéde ciroiiinterncitional
piihlic (Rousseau, Paris, 1922, p. 538 et suiv.) ou Stowell dans Interventioir Ni
Intert~ationulLaio (J. Byrne and Co., Washington, 1921,p. 558), en faisaient la
théoriebien avant I'interdiction du recours a la guerre en 1928,puis a la force,
en 1945. Et, par exemple, l'arbitre Max Huber en a fait application dans
son rapport sur les Respon.suhi/ités du I'Etrrrdu~s les sititatirinviskw pur les
rkclunzarionshritunniyuc<esn date du 1"'mai 1925(RSA, II. p. 641 ).
Cela montre que l'interdiction de l'ingérencetrouve son fondement non pas
dans la prohibition du recours à la force mais, comme l'a itiontréM. le président
Jiménezde Aréchagadans son cours général à l'Académiede droit international, PLAIDOlRIE DE M. PELLET 21 5
a la fois, dans le principe de l'égalitésouveraine des Etats, dans celui de leur
indépendanceet dans celui de l'autodétermination (((International Law in the
Past Third of a Century », RCADI, 1978-1,no 112).
6. L'anciennetédu principe de non-ingérenceet la soliditéde son ancrage dans
les règles lesplus fondamentales du droit des gens en font l'un des principes,
sans aucun doute, les mieuxétablisdu droit international contemporain, quelles
que soient les violations dont il est trop souvent victime; et c'est. sans aucun
doute aussi, sur le continent américainque ce principe a trouvé le terrairi
privilégide son épanouissement.
La Cour internationale de Justice l'a du reste relevédans son arrêt du
20 novembre 1950,rendu dans l'affairedu Droit d'usile,lorsqu'ellea qualifiéla
non-intervention de: ((l'une des traditions les mieux établies de l'Amérique
latine (C.1.J. Recireil 1950, p. 285). régiondans laquelle elle a, en effet, été
réaflirméerid'innombrables reprises.
II est vrai que, de ce principe, les Etats-Unis ont, pendant longtemps, eu une
conception assez singulière, i travers leur double lecture de ce que l'on a appelé
la doctrine de Monroe, à la fois fondement de l'exclusionde toute intervention
européenne dans I'hkmisphère occidental, et justification de leurs propres
ingérencesdans ce même hémisphèreH .ésitants lors de la conference de La
Havane en 1928,les Etats-Unis n'en ont pas moins renoncéformellement a leur
prétendudroit d'intervention en adoptant le protocole de Buenos Aires en 1936.
Par la suite, et sans qu'il soit besoin d'entrer dans les détails,les Etats-Unis ont,
à maintes reprises, proclaméleur attachement au principe de la non-intervention
dont l'unedesexpressionslesplus vigoureuses,et sansdoute I;plusconvaincante.
a probablement étédonnéepar le président Eisenhowerdans une déclaration
faite le 16avril 1953et que je ne peux résisterà l'enviede citer:
<<Anynation's right to a form of government and economic systeh is
inalienable. Any nation's attcmpt to dictate to other nations their form of
government is indefensible.1)(Departnient oj'State B~rlletin,vol. 28, 1953,
p. 599.)
7. 11n'est pas sans intérët de relever, en outre, l'attitude que les Etats-Unis
eux-mêmesont adoptie lors des travaux préparatoires de la résolution 2131
(XX) adoptéele 21 décembre1965et portant {{Déclarationsur l'inadmissibilité
de I'interventiondans les affaires intérieuresdes Etats».Les Etats-Unis ont pris
une part active à l'élaboration de ce texte, et, ii l'occasion de ces travaux
préparatoires, ils ont proposéun amendement, qui a finalement étéabandonné,
en vue de rappeler que le principe de non-intervention trouvait son fondement
non seulementdans la Charte des Nations Unies, maisencore dans ({lesprincipes
essentielsdu droit coutumier ))(cf. document A/C. 1/L.350et corr.1;3 décembre
1965).
Si, lors de l'adoption de ce texte, le représentantdes Etats-Unis a déclaréque
son pays - qui a votk en faveur de la résolution - y voyait une déclaration
d'intention politique et non une élaboration du droit (Do~trmentsojïcir1.s clf
I'Assrnableeginkr~rle.20" session. première commission, comptes rendus analy-
tiques des séances,p. 458), les Etats-Unis, en revanche, ont estiméque la célèbre
déclaration 2625(XXV) du 4 novembre 1970,dont le troisièmeprincipe reprend
l'essentiel du texte de 1965, reflétait ledroit existant, et était, en ce qui la
concerne, une déclarationdu droit; cette position correspond d'ailleurs auxvues
de la doctrine la plus autorisée, qu'il s'agissede l'opinion de M. Jiménezde
Arécliaga(op. rit.,p. 12 et 32), de l'opinion de M. Schwebel («Aggression,
Intervention and Self-defence in Modern International Law», RCADI, t. 136,1972,p. 452) ou de celle de M. Louis Sohn (dans ILA, M. Bos, dir. publ., The
Present Stale of Internutional Law, 1973,p. 50).
Enfin, l'onpeut mentionner en.passant que, si les Etats-Unis ont votécontre
la résolution361103du 9 decembre 1981,portant «Déclaration surl'inadmissi-
bilitéde l'intervention et de l'ingérencedans les affaires intérieures destats)},
les Etats-Unis ont expliqué leur votepar des motifs particuliers et non par un
doute quelconque quant à la validité duprincipe tel que je l'analyse ici.
8. Ce trèsrapide survol permet de conclure, Monsieur lePrésident, mesemble-
t-il, qu'il n'existeaucune espècede doute sur l'existence endroit international
d'unerèglecoutumièreinterdisant l'ingérencedes Etatsdans lesaffaires intérieures
des autres Etats dont la Cour a du reste reconnu la validitédans des termes
particulièrement solennels que M. Chayes a rappelés hier dans l'affaire du
Détroitde CorJou, sur laquelle, maigre tout, je serai conduit à revenir dans
quelques minutes. En outre, dans son arrêtdu 26 novembre 1984, laCour a, de
nouveau, soulignéle caractère obligatoire du principe «en tant qu'élémentdu
droit international coutumier » (C.I.J. Recueil IY84, p. 424). Ce principe existe;
les Etats-Unis le reconnaissent; mais l'attitude de ce pays à l'égardde la non-
intervention constitue un exemple typique de l'écart, dénoncé par M. le vice-
président Guy de Lacharrière dans un article récent, entre ((les mois et les
conduites)) (Mébnges ChurlexCliaurnont,Pedone. 1984,p. 347-362). Et celame
conduit àma deuxièmeproposition.
B. Les Etats-Unis ont, duns Inprésente espère,violéde manigremonfiste
/epri~sc@ede /'interdictionO'l'inferl~enlidn.~Irs qfaires ir~~e~ieieur~~s
clesEtuts
9. S'il existe,Monsieur le Président,tant en doctrine que parmi les Etats, un
accord unanime pour considérerque le principe de non-ingérencea une valeur
coutumière indépendammentde son inclusion dans certains instruments conven-
tionnels, l'incertitude est certainementplus grande en ce qui concerne la portée
du principe de non-intervention que Quinçy Wright a définicomme une <<zone
nébuleuse» du droit international (<Non-Military Intervention », Mblanges Leo
Gross, p. 5). Et force est de reconnaître que les résolutionsdes Nations Unies,
que j'ai évoquéestout à l'heure, ne sont pas d'un trèsgrand secours pour définir
précisémenc te qu'est la non-intervention;ellesénumèrent des casd'intervention
illicites plus qu'elles n'en fournissent une définitiongénérale.Les exemplesque
donnent ces résolutions mettentcependant en évidenceles deux éléments sur
lesquels, au-delà de leurs divergences, les auteurs les plus exigeants semblent
d'accord. Pour que l'on puisse parler d'intervention, deux éléments doivent
êtreréunis :
i) un ou des actes de contrainte doivent avoir étécommist ce que les Anglo-
Saxons nomment une «dictatorial interference )>;c'est:si l'onveut, le corpus;
ii) cet acte ou ces actes doivent avoir étécominis en vue de plier leur destina-
taire - leur victime, pourrait-on dire - à la volonté de leur auteur;
c'estl'ut~imus.
«C'est [comme l'écrivait Fauchille, auquel des auteurs aussi divers
qu'oppznhein~, Fawcett, Sanders, Rousseau, Brownlie ou Ouchakov sem-
blent faire écho]l'action exercéepour faire prévaloirune volontéétrangère
sur la volonté propre d'un Etat. Les droits d'un Etat se trouvent ainsi
restreints parle fait d'un autre Etat.(Op. cit. p..539.)
Corpus et animus sont donc nécessaires. PLAIDOIRIE DE M. PELLET 217
10. Si l'on applique cette définitiondans le différendqui oppose le Nicaragua
aux Etats-Unis. il ne peut guère exister le moindre doute sur le fait que les
conditions du délitinternational sont réunies,L'établirrevient largement i revenir
sur l'ensemble des faits de l'affaire. Et je ne retiendra- d'ailleurs uniquement
pour les mentionner en passant - que quelques-uns de ceux qui paraissent les
plus topiques. étant entendu que le choix n'est pas aisé;tous, ou presque, peuvent
concourir à la démonstration.
II. S'agissant des objectifs poursuivis par les Etats-Unis - c'est-&-direde
I'unimus-, ils ont étéénoncés, avecce dont on ne sait s'il but le considérer
comme de la naïvetéou du cynisme, par les plus hauts responsables de I'Etat.
.M. Chayes a rappelé mercredi la liste impressionnante des déclarütions par
lesquelles le président Reagan a manifesté publiquement et clairement son
intention d'obliger le Gouvernement du Nicaragua à ((dire pouce» («to Say
Unclen). selon l'expression qu'il a utilisée le 21 février 1985 (annexe C, pièce
I-14). Bien d'autres officiels américainsont confirméque le but des Etats-Unis
étaitde renverser l'équipeactuellement au pouvoir à Managua ou de lui interdire
de mener sur son territoire la politique qu'elle entendait suivre, d'entretenir avec
les puissances étrangèresles relations qui lui semblaient bonnes. Par exemple. le
27juillet 1983,le présidentdu Permanent Select Cornmittee on Intelligence de la
Chambre des représentants exprimait sa conviction selon laquelle les activités
«secrètes» contre le Nicaragua avaient pour seul objet ~to overthrow the
Government of Nicaragua » (annexe E, pièce no3, H 5748). Le 29janvier 1985,
le secrétaired'Etat adjoint pour les araires américainestaisait une déclaration
confirmant clairement que, de l'avisde l'administration américaine:
«The Sandinistas can change their ways if the pressure to do so is clear;
throughout 1983and into 1985,a variety of pressures - military exercises,
naval manŒuvres, interna] op~osition iboth arrned and unarmed), falling
international prestige- did prÔducesomechange ... ))(Annexe C, pièce11-9:
IV?p. 215.)
Et il ajoutait que, bien entendu, tes Etats-Unis continueraient dans cette voie.
Les exemples peuvent Ctre multipliés presque .d l'infini et montrent avec la
clartéde I'évidencequ'il s'agit, pour reprendre les termes mêmes figurantaussi
bien dans la résolution 2131 (XX) que dans la déclaration 2625 (XXV), de
menaces ((dirigéescontre la personnalité)) du Nicaragua, ayant but et pour objet
de contraindre celui-ci a subordonner l'exercicede ses droits souverains »et de
((changer son régimepar la violence)). II s'agit, à l'évidence,d'un «cas ou une
puissance estime mauvais le gouvernement ou la politique intérieure d'un autre
Etat et entend les modifier selon sespropres vues))! exemple que M. Rousseau
tient pour leplus typique de l'intervention illiciteDroitinternutinnulpublic, t. IV,
« Les relations internationales)), Sirey, 1980,p. 41).
12. L'arrintusM, onsieur le Président,il est vrai, ne suffit pas: c'est, après tout.
le droit te plus strict d'un gouvernement de manifester son inimitiéa l'encontre
de celui d'un autre Etat dont il désapprouve les options; encore est-il, pour le
moins, inhabituel de procéder d'une manière aussi véhémente, s'agissantd'un
Etat avec lequel on entretient des relations diplomatiques normales et auquel on
est liépar un traité d'amitié.
Mais force est de constater dans notre amaireque ces déclarations ne compor-
tent pas seulement des critiques envers le Gouvernment du Nicaragua; elles le
menacent directement - et la seulemenace est en elle-même un fait internationale-
ment illicite - et, pis encore, elles annoncent ou elles reconnaissent que des
actions en vue d'atteindre ces buts sont prévues ou sont en cours. Le corplis
delicti s'en trouve du mêmecoup établi. 13, Ces actions revêtentà vrai dire, des formes extrêmementdiverses. Et c'est
d'abord la forme d'actions armées, d'actions d'intimidation perpétrép esr les
Etats-Unis eux-mëmes et sur lesquellesje ne pense pas qu'il soit utilede revenir:
si ces actions armées sontcontraires au principe de non-intervention. elles le
sont, avant tout, et de la façon la plus claire. au principe qui interdit le recours
à la force etA la menace de la force.
De l'avis du Nicaragua, il en va de mêmedes autres catégories d'actesqui
visent a renverser le gouvernement actueldu Niciiragua ou i l'obliger,au moins,
A changer sa politique intérieureou extérieure.Pour surplus de droit, je m'arrê-
terai cependant quelqiiesinstants sur certaines actionsdes Etats-Unis qui entrent
dans la catégoriede ce que l'on appelle souvent l'intervention indirecteet LI;^
paraît,i vrai dire, surtout une intervention directe maisqui n'estpas ouvertement r
armée.
Dans cette affaire, les manifestations de ces interventions indirectes sont si
nombreuses qu'il m'est apparu impossible d'enfaire le recensementexhaustif. Je
m'en tiendrai donc deux catégories d'exemples: d'unepart l'utilisation des
mercenaires, d'autre part la contrainte économique.
14. Dans le long exposédes faits qu'ils ont soumis i la Cour, mes collègues
Abram Chayes et Paul Reiçhler ont établi:
- que les Etats-Unis ont conçu,créé et organiséune arméede mercenaires;
- qu'ils en ont armé,équipéet entraînéles membres;
- qu'ils lui ont fixé sesobjectifs et sa stratégie;
- qu'ilsen ont suscité,payéet contrôlé ladirection politique.
Je ne reviens pas sur ces faits. Et les faitvrai dire, là encore, parlent d'eux-
mêmeset imposent, sur le plaii juridique, une conclusion incontournable: ils
constituent des interventions caractériséesdans les afaires intérieures du
Nicaragua.
II ne paraît pas y avoir, sur ce point: de notes discordantes dans la doctrine
(alors mêmeque la doctrine est diviséesur le point inverse de savoir si un
gouvernement en place peut bénéficierd'une assistance étrangère lorsqu'tl est
aux prises avec une insurrection, bien que la réponsedominante semble plutôt
êtrepositive). Fauchille voit dans cette forme d'intervention la forme «la plus
dangereuse, parce qu'elle est sournoise et se cache, se fait au moyen d'agents
qu'on envoie àl'étrangerou qu'on y recrute...» (op.cit.p. 542): et cela en 1922,
et M. lejuge Schwebelapprouve la résolution2131 (XX) de disposer:
«Tous les Etats doivent aussi s'abstenird'organiser, d'aider, de fomenter,
de financer, d'encourager ou de tolérerdes activités arméess,ubversivesou
terroristes, destinéesichanger par la violcnce le régimed'un autre Etat,
ainsique d'intervenirdans lesluttes intestinesd'un autre Etat.)~(S. Schwebel,
op. ci?.p. 455.)
Ce texte de la résolution2131 (XX) se retrouve dans son intégralitédans la
résolution 2625 (XXV) et est assorti de précisionscomplémentairesdans la
résolution361103.
Lors des travaux préparatoires de ce texte, les Etats-Unis en avaient du reste
proposé une version plus explicite encore, puisqu'ils souhaitaient que soit
condamnée :
«toute intervention directeou indirected'un Etatdans lesaffairesintérieures
d'un autre Etat, que cette intervention comporte des attaques et une invasion
arméesou lefait d'entreprendre, d'encourager ou d'appuyer desmouvements
visant 1 renverser par la force le gouvernement d'un Etat indépendant, y PLAIDOIRIEDE M. PELLET 219
compris la formation et l'infiltration de personnel, l'encouragement à la
subversion ou au terrorisme et la fourniture clandestine d'armes et d'autre
matériel »(doc. A/C.1/11/350 et Com.1; 3 décembre 1965).
Et le représentant américain illa premiére commissionde l'Assemblée générale
renchérissaitencore en disant :
<<Uneintervention illégaleest plus grave que certaines attaques armées
sur des frontiè~esinternationales. Tout aussi réelle, elpeut-êtreplus dange-
reuse, est l'intervention sous forme d'encouragement insidieux à la guerre
de guérilla,l'entraînement secret de bandes armées,et l'infiltration d'agents
dont le but est de torturer et d'assassiner des innocents et d'imposer la
volontéd'un autre gouvernement et une autre idéologie.)) (DocumentsofJiciels
lir 1'A.s.semhlGgknkrule,vingti@mesession, PreiniéreCommission,p. 264.)
IIy a la, Monsieur le Président, une description trèsexacte de la manièredont,
vingt ans plus tard, les Etats-Unis se comportent vis-A-visdu Nicaragua ...De
même,lors des travaux préparatoires des déclarations 2625 (XXV) ou 361103.
les représentants des Etats-Unis se sont félicitésque ces textes condamnent
expressémentles interventions indirectes, sous forme notamment «de l'organi-
sation de bandes arméesen vue d'incursions sur le territoire d'un autre Etat et
des actes destinés à encourager la guerre civile et le terrorisme dans d'autres
pays» (ceci est la déclaration du représentant des Etats-Unis devant le comité
spécial desprincipes du droit international touchant les relations ainicales et la
coopération entre les Etats en 1970)(Doclrmentsofir.iels de I'Assenzhlcegitzérale,
vingt-cinqitiCmesession, supplénzentnoIX (A/SOl8), p. 129; voir également
A/CM/PV.S, 29 décembre 1981,p. 55).
Monsieur le PrCsident, le Nicaragua, dans ses écritures,aussi bien qu'à cette
barre. a amplement démontréque les Etats-Unis, loin de s'êtrebornésa tolérer
les activitésde la contra, les avaient au contraire encouragées, contrôlées.mises
au point, dirigées. Ce n'est donc que pour surplus de droit que j'ajoute qu'il est
généralementadmis qu'une obligation internationale pèse sur tout Etat, non
seulement de ne pas encourager de tels actes. mais encore de les faire cesser-
des auteurs, pour prendre des auteurs relativement anciens. comme Stowell (op.
cit.,p. 347) ou Quincy Wright (op. cit.p. 532, et ({Recognition, Intervention
and Ideologiesn,ItadianYearbookofIntert~utionaA l ffairs, 1958,p. 99), leprécisent
clairement et, par exemple, l'article IX du projet de déclaration, préparé parle
comité juridique interaméricain de 1962,dispose :
«L'Etat est responsable s'il donne son aide aux élémentsqui conspirent
sur son territoire ou à l'étrangercontre un gouvernement ou un autre Etat
ou fomentent des mouvements d'hostilité à ce dernier; il en sera de même
si ledit Etat ne prend pas toutes les mesures possibles légalementpour éviter
la survenance de telles situations.» (Annuuiru [le lu Cominis.sk)n du droit
international,1969,II, p. 159- 160.)
Ainsi. Monsieur le Président. il ne peut faire de doute qu'<<enrecrutant,
formant. armant. équipant, finançant, approvisionnant, et en encourageant,
appuyant, assistant et dirigeant)) les activitésde la contra, pour reprendre les
termes de la requêtedu Nicaragua, en donnant un appui ouvert a la collecte de
fonds publics ou privéssur son territoire en faveur des contre-rt.volutionnaires,
en fournissant eux-mêmes unebase aux activitésde la contra, les Etats-Unis ont
agi en contradiction avec le principe de la non-intervention, tel qu'eux-mêmes
l'interprètent.
L'audienceest suspetriiltu(le II1133 ù 12 1112 Monsieur le Président,avant la pause, j'avais abordéle problèmede I'interven-
tion ((indirecte)) dans les affaires intérieuresdu Nicaragua et j'avais évoquéle
problème du financement et de l'utilisation de mercenaires.
15. Le second exemple des interventions des Etats-Unis dont on se demande
si l'on doit vraiment les qualifier d'«indirectes», tant elles sont ouvertes,
reconnues et mêmerevendiquées par ce pays, est celui des pressions que les
Etats-Unis exercent sur l'économiedu Nicaragua et qui viennent s'ajouter aux
destructions des industries, des récolteset des installations de stockage de ce
pays, qui sont infligéessur le terrain soit par les Etats-Unis eux-mêmes, soitsur
leur ordre et avec leur aide indispensable.
Ces pressions économiquesont revêtudes fornies diverses qui ont été décrites
devant vous par M. le ministre William Huper dans sa déposition de mardi
dernier et que j'ai évoquéesdans mon précédent exposé sur Lesviolations du
traité d'amitié,de cornmerce et de navigation du 21 janvier 1956. Il sufit de
rappeler que ces pressions se sont traduites entre autres par les faits suivants:
- premièrement, l'arrèt brutal de toute aide économique et financière au
Nicaragua en avril 1981 ;
- deuxièmement, la réduction de quatre-vingt-dix pour cent du quota des
importations de sucre du Nicaragua en avril 1981 ;
- et bien sur, l'embargo, décidéle 1" mai 1985,sur l'ensemble du commerce
en provenance ou en direction du Nicaragua.
En elles-mêmes.considéréeshors de leur contexte, certaines de ces mesures
peuvent êtrelicites. On peut admettre qu'un Etat peut aider ou ne pas aider qui
bon lui semble; on peut admettre qu'un Etat peut commercer ou ne pas
commercer avec qui bon lui semble ;et ce n'est qu'«en passant)) que je relèverai
qu'un groupe spécialdu GATT, saisi à la demande du Nicaragua, a conclu qu'en
attribuant au Nicaragua un contingent d'importations de sucre inférieurde près
de quatre-vingt-dix pour cent à leurs engagements les Etats-Unis «n'avaient pas
respecté les obligations qui découlent pour eux de l'accord généralet3 en
particulier, de l'articleIII, paragraphe 2, de cet accord (ce rapport du GATT
a étépubliéle 2 mars 1984 sous la cote L/5607). Ce n'est qu'en passant que
j'indiquerai que le Nicaragua a égalementsaisi lesparties contractantes du GATT
de la compatibilité desmesures d'embargo commerciales adoptéespar leprésident
des Etats-Unis le le'mai 1985avec lesdispositions du GATT, et quecette plainte
est actuellement sous examen. Ce n'est aussi que «pour mémoire)) que je
rappellerai que ces mesures, dans leur ensemble, ne sont compatibtes ni avec la
lettre ni avec l'esprit du traitéde 1956.
Mais indépendamment de ces illicéitésq,ui atteignent ces mesures de contrainte
é~onorni~ue'~risesindividuellement. tous ces faits, pris ensemble, constituent en
outre une atteinte systématiqueau principe fondamental de la non-intervention
dans les afhires intérieures du ~icara~ua:
Ce n'est pas le lieu. Monsieur le Président,d'exposer, moins encore de prendre
parti, dans les querelles doctrinales relatives ka licéitdes mesures de coiitrairtte
économique«dans l'abstrait v. Pour mon propos, adoptant la même démarche que
celle que j'ai suivie toutà l'heure pour définirla non-intemention, je pense qu'il
sufit de prendre pour point dedépartle point de vue extrêmementrestrictif adopté
dans un trèsrécent article publiédans I'AinericanJournul of InfernationulLaiv. par
M. Tom J. Farer, qui considère-je lui laisseentièrement la responsabilitéde ces
vues - que «la coercition n'a rien d'illéga» l (Gthere is nothing illegal about
c~ercion))~AJIL. 1985, p. 406), notamment en ce qui concerne la coercition
économique; mais, tout à la fin de cet article, qui n'est qu'une démonstrationde
cette proposition, l'auteur estomluit nuancer ainsi cette opinion: PLAlDOlRIE DEM. PELLET 22 1
«In defining economic aggression, 1 myself would be willing to go no
further than treating econornic coercion as aggression when, and only when,
the objeclive of the coercion is to liquidate an existing State or to reduce
that State to the position of a satellite,Therest, moreover, be a connection
between the attempt at coercion and the realization of its objective.» (AJIL.,
1985,p. 413.)
Cette vue très restrictive reflèted'ailleurs les règlesminimales poséespar les
résolutions2131 (XX) et 2625 (XXV) de l'Assemblée généraldeont, comme je
l'ai indiqué, l'on s'accorde à reconnaître qu'elles codifient le droit existant. En
particulier, la résolution2131 (XX) dispose:
«Aucun Etat ne peut appliquer ni encourager l'usage de mesures écono-
miques pour contraindre un autre Etat àsubordonner l'exercicede sesdroits
souverains et pour obtenir de lui des avantages de quelque ordre que ce
soit,»
Et la résolution 31/91 du 14 décembre 1976, qui précisece principe, inclut,
dans les mesures économiquesconstituant des cas d'intervention dans les affaires
intérieures des Etats, le refus d'assistance oii la menace du refus d'assistance
lorsqu'ils sont inspiréspar la volontéd'exercer une pression sur le gouvernement
bénéficiairede l'aide ou qui est privéde l'aide.
En d'autres termes, les règlesque je viens de rappeler établissent de nouveau
l'interdépendanceétroite entre le corpus et I'animusque j'évoquaistout il'heure
pour donner ce que l'on peut considérer comme la définition minimale de
l'intervention illicite en droit international. Un fait par exemple, l'arrêtde
l'assistance économique à un Etat, peut êtrelicite en lui-même,mais il devient
une violation du principe de non-intervention s'ilest commis dans l'intention de
porter atteinte au droit souverain etitla liberté d'actionde I'Etat partenaire.
Toutes les conditions, Monsieur le Président.sont donc réuniespour considérer
que les mesures de coercition économiquedécidées ea tppliquéespar les Etats-Unis
contre le Nicaragua remplissent cesconditions et s'analysentdéslors comme autant
de vioIalionsdu principe de non-ingérence.Et ceci,sans qu'ilsoit besoinde prendre
parti sur la question de laicéitde tellesmesures dans d'autres circonstanceset en
ne retenant que la définition laplus étroitede la non-intervention.
C. Les vio~ulionsduprincipe de non-interventiotipur les Etats-Unis
ne peuvent itre clissociiw de munquementsgraves à d'il~irepi-itlcipes
di,droit ititernationofqui en sonIriconsfqumcr
16. J'en arrive a ma troisième proposition, que j'aborderai de façon ex-
trêmement brève, elle est la suivante: les violations du principe de non-
intervention par les Etats-Unis ne peuvent pas êtredissociéesicide manquements
graves I d'autres principes du droit international qui en sont la conséquence.De
l'exposé oral qu'il a présenté ri la Cour dans L'affairedu Suharu occidentcil?
l'éminentjuristequi n'étaitpas encore lejuge Bedjaoui rappelait que la première
fonction du principe de I'aiitodéterminationétait«d'exclure toute forme d'ingé-
rence dans les afhires intérieures desnations>>(C.I.J. Mkmoires, vol. IV, p. 497),
principe que formulent du reste les déclarations 2131 (XX) et 2625 (XXV) de
l'Assembléegénérale.
Et, i l'inverse, il paraît tout aussi évidentqu'une intervention extérieure dans
les affaires d'un Etat visant à obtenir de celui-ci qu'il renonce à ses options
idéologiques, à ses choix politiques, économiques et sociaux est incompatible
avec le principe de l'égalide droits des peuples et de leur droit iidisposer d'eux-222 ACTIVIT MEISITAIRESETPARAMILITAIRES
mêmesproclamésdans la Charte des Nations Unies elle-même ertappeléspar
les deux pactes internationaux des droits de l'homme de 1966, pactes dont
l'articleremier dispose :
« 1. Tous les peuples ont le droit de disposer d'eux-mêmes. En vertu de
ce droit, ils déterminent librementleur statut politique assurent librement
leur développement économiques,ocial et culturel.))
En menant desactivités militaireest paramilitairesau Nicaragua etcontrecelui-ci,
en entretenant une guerre extérieuredont l'objetest précisémendte changer par la
forcele régime existant, lstats-Unisvidentcette norme fondamentale - souvent
considkréecomme une règlede jriscogerîs- de toute substance.
17. Du mêmecoup ils contreviennent cet autre principe, corollaire du
précédent, qu'exprime le paragraphe suivant de l'articlepremier des deux pactes
de 1966, garantissant a chaque peuple le droit de disposer librement de ses
richesseset de ses ressources naturelleEn menant et en entretenant une guerre
économique les Etats-Unis s'eKorcent, en contradiction de nouveau avec les
termes mêmesde l'article premier.paragraphe 2, des deux pactes de 1966,de
priver le peuple nicaraguayen<cde ses propres moyens d'existence )p.
18. Du mèmecoup aussi*ils le privent de son droit au développementdont,
dans maints écrits,et en particulier dans sa contribution aux Erudes ~.nl'lion-
neur drrjuge Manfred Laclis(p. 163-177),M. lejuge Mbaye a montréqu'ilcons-
tituait nonseulement un idéaléthique, maisbien une institiitjon juridique, qui
trouve son fondement précisémentdans le droit des peuples à disposer d'eux-
mêmes.
Rapportées aux faits, Monsieur le Président,ces considérations tres rapides
me paraissent suffirea établirque les violations du principe de non-intervention
.lui-même,sur lesquelles je me suis attardé davantage, constituent aussi, par le
seul fait qu'elles sont commises, des manquements à d'autres règlestout aussi
fondamentales du droit international de ce temps.
B. Les violuli»rzsu principe de non-interrrntionpar IcrEtots- Unis
n'ml uuczlnejusl@cution
19. J'aborde pour terminer, en quelques minutes tres brèves, ma quatrième
proposition qui est la suivante: les violations du principe de non-intervention
par les Etats-Unis n'ont aucune justification.
20. La doctrine s'interroge fréquemmentsur la question de savoir si certaines
catégories d'interventions,en elles-mêmeest du seul fait qu'ellespoursuivent des
objectifs conformes au droit international, ne sontas licites.
II est à peine besoin de citer ici les deux exceptions les plus fréquemment
mentionnées :.
- l'intervention dite d'«humanité)) en vue de protéger les ressortissants de
1'Etatqui intervient;
- l'intervention «consentie», c'est-à-dire celle qui est menéB la demande du
gouvernement sur le territoire duquel elle a lieu.
11n'a pas étéaljégué dans notre affaire - etilne pouvait pas ètreallégué -
que la sécuritdes citoyensdes Etats-Unis au Nicaragua soit menacéede quelque
manière que ce soit - si ce n'est, comme l'a rappelél'agent du Nicaragua au
début decette session,par les activitésde la conlrumais..nemn audililurropriam
turpitudine,iulkrgan...Quant i unedemandeémanantdesautoritésdu Nicaragua
est-il besoin de préciserque le gouvernement de ce pays n'a pas vraiment jugé
bon de demander i celui des Etats-Unis de miner ses ports, de bombarder ses PLAIDOIRIEDE M. PELLET 223
installations pétrolières,de fomenter artificiellement une rébellionqui mobilise
ses forces vives, etc.
11est vrai qu'à ces deux hypoth6ses d'interventions, dont il est quelquefois
alléguéqu'elles sont licites, s'enajoute une troisième qui résultede nombreuses
résolutionsdes Nations Unies appelant tous les Etats à apporter leur appui aux
peuples en lutte contre une domination coloniale ou étrangèreou contre un
régime raciste.Décoloniséen 182 1,ne pratiquant aucune forme de discrimination
raciale, le Nicaragua, s'il est occupé - très partiellement d'ailleurs -, ne l'est
que par les forces mercenaires contrôlées et dirigéespar les Etats-Unis.
21. Dans une note parue l'an dernier. M. Oscar Schachter estime qu'admettre
le droit pour un Etat d'intervenir i l'étranger pour rétablir ce qui lui paraît
la vraie démocratie
« would introduce a new normative basis for recourse to war thlit would
give powerful States an almost unlimited right to overthrow governments
alleged to be unresponsive to the popular will or the goal of self-
determinrition » (AJIL, 1984,p. 649).
A trente-cinq ans de distance, le professeur de NewYork fait échoB ce que
disait Pierre Cot devant votre haute juridiction dans l'affaire du Detroit de
CorJ~u: «ta théoriede l'intervention n'est pas autre chose que la raison du plus
fort appliquéeaux affaires internationales.))(C.LJ. M&maii-rs7 p. 405.)
Ces vues, la Cour, dans son arrêtde 1949, les a pleinement partagées. Le
professeur Chayes en a citéte passage pertinent et je ne pense pas qu'il soit utile
de le lire de nouveau, sauf pour rappeler que la Cour a considéréque (<lesformes
d'intervention qui lui étaientsoumises étaientd'autant plus inacceptables qu'elles
étaient réservées par la nature des choses aux Etats les plus puissants))
(C.I.J.Recueil 1949, p. 35).
Cet avertissement, les Etats-Unis ne l'ont pas entendu. Ils ne se sont imposés
aucun frein, aucune limite: leur bon plaisir leur a tenu lieu de règle; leur
puissance leur a tenu lieu de droit, alors même, comme la Cour l'a rappeléil y
a trente-cinq ans, que cette puissance leur imposait des obligations spéciales
d'agir avec modération.
La diversitédes manifestations d'interventions des Etats-Unis dans les affaires
du Nicaragua, leur nombre, leur gravité me paraissent conduire. Monsieur le
Presidentt aux deux constatations suivantes :
i) d'abord. considérée isolément,prise en elle-même,chacune de ces inter-
ventions - et je n'en ai donné que quelques exemples - est contraire au
principe de la non-ingérence ;
ii) ensuite, la concordance de ces interventions illicitesqui, d'évidences'intègrent
dans un plan concerté, délibéré,d'intimidation et de pressions, impose
cependant de sortir du cadre étroit du droit de la non-intervention au sens
strict, car au fond, Monsieur le Président,c'est tout le droit international ou
presque qui est en cause dans cette affaire et c'est ce que le professeur
Brownlie montrera, si vous voulez bien lui donner la parole, avant la
conclusion finale de M. l'agent du Nicaragua. Auparavant, je souhaite
renouveler. Monsieur le Président, iivous-mèmeet à la Cour, l'expression de
ma vive gratitude pour votre bienveillance. ARGUMENTOFPROFESSORBROWNLIE
COUNSEL FOR THE!GOVERNMENTOFNICARAGUA
Professor BROWNLIE: Mr. President and Members of the Court. May it
please the Court.
The purpose of rny second speech inthese proceedings is to provide a survey
of the issues concerning the claims based upon general international law.
1do not expect to be on my feet for very long, because in general the issues
concerning general international law probably do not present many difficulties.
However, there are certain points whic1would like to draw to the attention
of the Court. partly on account of their intrinsic merit and partly in order to
emphasize the role of the causes of action fbunded upon general international
law. The economy of formation of therules of customary law leads to a certain
disparity in the space needed for their exposure in contrast to that required
to give an account of the many treaty-based obligations which are relevant to
this case.
Whilst 1may be in danger of stressing the obvious, 1would like to stress that
the Applicant Stateconsiders that the claims based upon customary or general
international law are no less important than the treaty-based claims, and their
importance is not prejudiced by the order of topics which has, of course. been
adopted as a matter of convenient presentation.
THEROLE OF THE CUSTOMA LRAWCLAIM IN THE PRESEN C'TSE
The customary law claims may be seen to play two roles in the proceedings.
In the first place, the heads of claim or causes of action of customary law
reinforce and complement the claims based upon treaty obligations.
This complementary relationship exists in a variety of forms, and it will be
sufficient if I offer some exampies to the Court.
The obligation not to use forceorthe threat of force, as it exists in general
international law, reinforces the provisions of the United Nattons Charter.
Indeed,there is an historical andfunctional interaction, sincethe norm of general
international law antedates the provisions of Article 2 of the Charter: but at the
same time the principle formulated in paragraph 4 of Article 2 has in itself
provided new cernent for theule of general international law. As Nicaragua has
indicated in its Mernorial(IV, pp118-119, paras. 453-4-55),there is substantial
authority for the view that the principles contatned in Article 2 of the Charter
form part of the customary law.
This complementarity between custom and treaty is alsa a characteristic of the
principle of non-interventioAs in the case of the principies concerning the use
of force, over a long period there has been a normative interaction, so that the
transposition of the principle of non-intervention as betwcen customary Iaw and
treaty provisions produces a process of mutual reinforcernent and confirmation.
This complementary role playcd by the customary law causes of action does
not stand alone. since customary law hüs an interna1logic and versatility. which
is characteristic of norms which grow out of actual experience. In addition, the
rules of general international law supplement the rules derived from treaties. ARGUMENTOF PROFESSORBROWNLIE 225
Thus the customary law claims are not based exclusively upon the concept of
the use or threat of force.hus also the cause of action denominated "violations
of the sovereignty of Nicaragua" is by no means confined to, though it certainly
inciudes, episodes which involve the use or threat of force.
A further example, and, 1 submit, a particularly striking one, is provided by
the obligation notto infringe the freedom of the high seas or to interrupt peaceful
maritime commerce which is generally recognized as a facet of generat inter-
national law. On the hypothesis that the provisions of the Treaty of Friendship,
Commerce and Navigation of 1956 were held to be inapplicable to the mining
of Nicaraguan ports, this principle stands independently available.
Having afirmed the importance of customary law in these proceedings, 1can
now turn to the individual heads of claim.
(a) Violutirinsof the Sovereignty c~'iVic~iruguu
Perhaps the most traditional and certainly the most comprehensive cause of
action consists of the category of violations of the sovereignty of Nicaragua.
Whilst many serious violations of the sovereignty of a State entai1 the use of
force, this is by no means a necessary condition of responsibility. Indeed, the
indispensable condition for this type of illegality is the actual exercise of some
sovereign, that is State, function, within the sphere of sovereignty of another
State, including its territorial sea and air space, without that State's consent. The
prime characteristic iswhat a common law lawyer would describe as a trespass -
a wrong to personality. It is the sovereign right of every State to determine the
acts that will be performed within its territory. These qualities are evident from
the practice of States which is referred to in Nicaragua's Memorial (IV,
pp. 116-117). They are also very closely recorded in the pertinent entry in the
work edited by Jules Basdevant, Dictionnaire de lu terminrilogiedu droit inter-
rutional, 1960,page 576 (letter G).
A particular characteristic of this cause of action is that it generates responsi-
bifitywithout proof ofactual damage or loss. Or,to express the matter differently,
the intrusion or usurpation of the jurisdictional sovereignty of the applicant
State is itself a delict, and a duty of reparation arises even apart from proof of
materiat damage, harm to citizens, or economic loss.
In sum, the violation of sovereignty as a cause of action has more than
one function. In its major role it provides an extensive basis for responsibility,
encompassing armed attacks against the territory of Nicaragua and forcible incur-
sions into Nicaraguan waters. At the same time the category applies to cases
of aerial trespass, whether or not the particular reconnaissance or other type
of operation could be said to involve the use of force or of armed force.
(b) Brcachesofthe Ohligutionnot to USE Forceor the Threut ofForce
1shall move on to what is surely the most significant and the most appropriate
cause of action, that is the breaches by the United States of the obligation not
to use force or the threat of force against the territorial integrity or political
independence of Nicaragua. This obligation existing in general international law
is substantially identical with the principle incorporatcd in Article 2, paragra4,
of the United Nations Charter.226 h.lIL1TARYAND PARAMlLITARY ACTIVITIES
The rule is formulated in such a way as to extend to al1forms of armed force,
including minor uses of force. In addition, there can be no doubt whatsoever
that the rule applies to al1cases in which military operations are carried out by
forces under the control of a State and acting as its agents.
In thepresentcasethere isan extensivepattern of evidence of breacheson the part
of the United Statesof the customarylawobligationnot to resort to the use or threat
of force againstthe territorial integrityor politicalindependenŒof any State.
A high proportion of the evidcnce presented by Nicaragua relates to the per-
sistent and systematic activities of the United States and its agents. involving
armed attacks, sabotage operations, and multiple tactics of coercion and the
propagation of terror among the civilian population of Nicaragua.
Mr. President. 1would point to the content of that remarkable public docu-
ment, the Report rf the PrrmaneritSelect Cornmittee on Intelligt~ncofthe House
cf Rrpreseniutivcs, dated 13 May 1983 (Memorial, Ann. E, Att. 1). This
authoritative and substantial document describes the morlidsoperuricliof the
military and paramilitary operationç in Nicaragua by mercenaries acting under
the direction and control of the United States. The implication of its terminology.
the phrases used in this report could not be clearer.
The document refers to "hostilities" (IV, p. 235), and to "direct or indirect
support of military or paramilitary activities in Nicaragua" (ibicf.). Moreover,
as the Memorial points out (at IV, p. 117), given that the report is concerned
with an amendment to the Intelligence Authorization Act for the Fiscal Year
1983,it necessarily describes the purposes of the funding existing at that time as
the background to an attempt to place constraints upon what the report describes
ns "United States support formilitary or paramilitary operations in Nicaragua".
The picture of United States direct involvement in and control over the
operations with which the Application is concerned in this case is confirmed by
the documentary record in generül, by the evidence of the witnesses called by
the Applicant State, by the public statements of leaders of the mercenary forces,
and also by the Edgar Chamorro affidavit.
The use of force has taken a variety of forms appropriate to the political
convenience of the United States and to the specific purpose of the operations.
The operations have two specificpurposes. which are interrelated. The first is to
coerce the Government of Nicaragua into acceptance of the political demands
of the United States, and the second is, quite simply, the overthrow of the
Government of Nicaragua by means of an orchestra of armed attacks? terrorist
actions in the countryside, economic sabotage. interference with foreign trade,
and military and naval demonstrations and maniieuvres.
This orchestra of instruments of coercion involves systematiç and persistent
breaches of the obligation not to use force or the threat of force against the
territorial integrity or political independence of Nicaragua. Each instrument is
directed against the territorial integrity of Nicaragua and, given the overallaim
of coercion. it is also directed agüinst the country's political independence.
The threat of force isa significant aspect of this case, Mr. President, and some
of the instruments in the orchestra of coercion are versatile.Thus the killing of
civilians has the double purpose of interfering with the cofiee Iiarvest, thus
directly causing economic damage, and at the same time bringing general pressure
to bear upon the Government: in order to force it, in Mr. Reagan's mernorable
phrase, to" say Uncle".
In relation to the threat of force, 1 would respectfully draw the attention
of the Court to the helpful commentary on this phrase provided by Eduardo
Jiménez de Arechaga. in his "General Course" at the Hague Academy. In
his opinion: ARGUMENT OF PROFESSOR RROWNL~B 227
"A threat of force is, for instance, the previous announcement of an act
of violence.such as an ultimatum announcing recourse to military measures
if certain demands are not accepted.A threat of force could also be implicitly
conveyed by certain acts such as 'a demonstration of force for the purpose
of exercising political pressure', the sudden concentration of troops in a
border area in a situation of existing border dispute, orü display of force
by means of warships close to the coasts of another State. A general
mobilization could, in the context of a serious dispute, constitute a threat
of force. On the other hand, an intensification of armaments in general
might not be looked upon as such a threat." (Rwueil (les ctiursVol. 159
(1978-1), p.88.)
The threat of force is one of a variety offorms of pressureemployed against Nica-
ragua.
One of the instruments of coerçion has been the mining of Nicaragua's
harbours, again with the double purpose of infiicting direct loss upon the
economy by deterring foreign trade and at the same time contributing to the
general policy of coercion directed against the Government of Nicaragua. This
brings me to the head of claim in respect of:
(c) Brruc1~r. sf tkr Ohligutionnnt to Infringt ille Frredornriftlie HigSus or to
Interrupi Peuc<fi~lMriritinCornmerce
This obligation is well recognized in the sources of the Iaw and these have
been referred to indetail in the Memorial (IV, pp. 122-24).One of the precedents
may be recalled for present purposes.1 refer to the British Note date9 December
1946 delivered to the Albanian Government in the aftermath of the mining of
British warships in the North Corfu Strait. On the question of principle the Note
had this to say :
"19. His Müjesty's Government must accordingly conclude that the
Albanian Government either laid the minefield in question or knew tliat it
had been laid. The Albanian Government has thus committed a flagrant
breach of International Law. Under Articles 3 and 4 of the 8th Hague
Conventionof 1907anyGovernment Iüyingmines in war-time. and afivtiori
in peace, is bound to notify the danger zones to the Governments of al1
countries. (This obligation in fact üpplies even if the zones in question are
not normülly used by shipping.) Not only have the Albanian Government
never made any public notification of this minefield but they have also made
no comment on the continued issue of the relevant [Medri] charts and
pamphlets. They thus endorsed a clear statement by the recognized inter-
national authority concerned in the shipping of the world that the Channel
was safe for navigation. As a result, two of His Majesty's ships have been
seriously damaged and forty-four innocent lives have been lost. Moreover,
this conduct on the part of the Albanian Government menaced with des-
truction shipping of any kind using a Channel which is a normal and
recognized route for international navigation."
1t can be seen that this passage does not relate the responsibility exclusively
to the status of the North Corfu Channel as an international strüit. And the
Note uppears to represent what might be called the normal view of the United
States Government on the point of principle, since that Note isgiven prominence
in the Digest of I~zterrtutiontlrrivpublished by the Department of State and
prepared under the direction of Marjorie Whiteman. then Assistant LegalAdviser
(sec Vol.4 (1965), pp. 447-452). Mr. President, the mining programme, which lasted from January until April
of last year, is a remarkable example of irresponsible action by a major power.
It was inevitably indiscriminate and could not qualify as collective self-defence
even if such title of justification were appliçable in limine. As a policy it was
indefensible, and indeed it was not defended.
The responsibility of the United States was unequivocally recognized in a
series of admissions, including admissions:
- by President Reagan, who described the episode as "much ado about nothing"
at the interview on 28 May 1984(Memorial. Ann. C, 1,6, IV, p. 176);
- by George Lauder, speaking on behalf of the CIA on 16April 1984(Ann. C,
II, 5); and
- by a Department of State spokesman on IO May 1984 (Ann. C, Il, 6,
And it is not surprising that a numbcr of governments protested ta the United
States when the authorship of the mining programme became apparent (see
Memorial, IV, p. 125).
Before 1leave the issue of mining, with your permission, Mr. President, 1shall
indicate the precise legal consequences of the mining, which are surely threefold.
First, the mining operations involved persistent violations of the sovereignty
of Nicaragua and thus generate responsibility even in the absence of proof of
material loss or damage.
Second, there was specific damage to Nicaraguan shipping. Some of this
tiamage was inflicted during mine-clearing operations undertaken by Nicaragua.
However, in principle, such loss must be recoverable as an inevitable and natural
consequence of the original wrongdoing, It may be recalled that the Canadian
Statement of Claim concerning the consequences of the intrusion of the Cosmos
954 satellite intoCanadian airspace included the cost of removing the potentially
hazardous debris resiilting from its disintegration (see 18 Inlcrnuttonal Legal
Marerials (1979), p. 899at p. 902; and also at p. 909).
Third, and cumulatively, the minings caused loss to the economy of Nicaragua
consequential upon the interference with maritime commerce.
So much for the mining programme. 1 have now reached the penultimate of
the causes of action based upon general international Iaw which form part of
my agenda, and that is:
(d) Breaches of the0hliga~ic)nniitta Kill,Wounclor KidrzapCitiiens of Nicaragua
lt has been pointed out in the Memorial (IV, p. 126) that the legal bases of
this daim consist of a wealth of jurisprudence of claims commissions and
instances of Statepractice. In any case, quite apart from precedent and practice,
this particular cause of action has a strong logical provenance, in that the duty
which a State owes to aliens within its territory must apply with equal force to
the persons of other nationalities affected by the operations of forces controlled
and directed by the respondent State, whether within or without its frontiers.
Moreover, the military and paramilitary optrations for which the United
States has accepted responsibility have characteristics of particular relevance in
the present context. No state of belligerency is acknowledged by the United
States and the responsible oficials have not once stated that the humanitarian
law of warfare applies. If that view be correct, then the normal standards of
State responsibility must remain applicable. Covert operations in the absence of
the normal conditions of beligerency amount to nothing more than State-directed
terrorism. The Court has been presented with a great deal of evidence of the ARGUMENT OF PROFESSORBKOWNLIE 229
planning and the execution of a programme of assassination and terror in the
Nicaraguan countryside by forces under the control of the United States and 1
do not intend to rehearse the material at this juncture.
The last of the causes of action based upon customary Iaw consists of:
(e) Breocl~escf [fiPrinciplc.ofNon-iirfervmiion
My colleague, Professor Pellet, has described the status and scope of the
principle in some detail and my purpose is confined to indicating the role which
the principfehas in the general economy of Nicaragua's case.
In a geneal way, the evidence of the breaches of the principle of non-inter-
vention is identical with the evidence which ismaterial in relation to violations
of sovereignty and breaches of the obligation not to resort to the use or threat
of force.
However, the principle of non-intervention has a specificrole to play incertain
iespects and these can be indicated briefly and partly by way of mernoründum.
First, the principlof non-intervention ismore extensive than the concept of
the use of force and this is particularly true of ücts of "dictatorial interference"
some of which may not fall easily or at a11within the categories of "armed
~ittack",the "use of force", or the "threat of force".
Second, intervention, both when it overlaps with the use of force and also
when it extends beyond that category, has its classical field of application in
relation to coercive action which has the purpose of overthrowing the lawful
government of another State.
The relevant documentary evidence in the present case reveals that effectively
al1 of the military and paramilitary activities aimed at the Government and
people of Nicaragua have one of two purposes, which are compatible and can
exist and be implemented in combination :
(a) The actual overthrow of the existing lawful Government of Nicaragua and
its replacement by a government acceptable to the United States; and
(b) the substantial damaging of the economy, and the weakening of the political
system, in order to coerce the Government of Nicaragua into the acceptance
of United States policies and political demands.
The third and final particular characteristic of the category of intervention
which 1would like to mention, is of special relevance to the present case. The
purpose of self-defence,and necessarilyalso of collectiveself-defence:has nothing
in common with the general politicat objectives of the United States in Centrül
Americü and nothing in common with a policy of dictatorial interference in the
interna1atlairs of the applicant State. Thus the mining of ports and a policy of
terror ügainst Nicaraguan citizens are methods which have much in common
with a policy of intervention but nothing in common with the concept of self-
defence.
By way of bringing this survey of the causes of action to a conclusion, with
your permission, Mr. President, 1 would remind the Court of the Final Act of
the Helsinki Conference of 1975 (see Brownlie, Busic Documents on Hulrlrrn
Righls, 2nd ed., p. 320;hternuiionrrlLrgal Mutrriuls, Vol. 14 (19751,p. 1292).
This instrument, of course, refers to European issues of concern but its 35
adherents include the United States, and the Final Act contains, and indeed
gives special prominence to, a "Declaration on Principles Guiding Relations
between Participating States". In the preamble to this Declaration one of the
recitals reads as follow:
"Expressing their common adherence to the principles whichare set forth230 MILITARYAND PARAMILITARY ACTIVITIES
below and are in conformity with the Charter of the United Nations, as
weli as their common will to act, in the application of these principles, in
conformity with thepurposes and principles of the Charter of the United
Nations . . ."
There foilow ten principles.Nearly a11of these have some relevanceto the facts
of the present case, but the more material items are as follows:
First: respect for sovereignequality ;
Second: refraining from the use or threat of force;
Third : the territorial integrity of State;
Fourth :non-intervention in interna1affairs ;and
Fifth: respect for human rights and fundamental freedoms.
The text of the second principle is of special significance, since it concerns the
use offorce. It is caiefully drafted, thus:
"The participating States will refrain in their rnutual relations, as wellas
in their international relations in general, tiom the threat or use of force
against the territorial integrity or political independenceof any State, or in
üny othermanner inconsisteritwjth the purposes of the United Nations and
with the present Declaration. No consideration may be invoked to serve to
warrant resort to the threat or use of forcein contravention of this principle.
Accordingly,the participating Stateswillrefrain from anyactsconstituting
a threat of force or direct or indirect use of force against another participü-
ting State. Likewisethey willrefrain from any manifestation of forcefor the
purpose of inducinganother participating State to renounce the full exercise
of its sovereignrights. Likewisetheyuill alsnrefrain in their rnutual relations
from any act of reprisal by force.
No such threat or use of force will be employed as a means of settling
disputes, or questions likely to giverise to disputes, between them."
Mr. President, it is obvious that the Final Act is not a treaty and is not as
such a legally binding text. But the part of the Final Act to which 1 have given
emphasis is clearly intended to be declaratory of existing principles of general
international law.
This part of the Helsinki Final Act thus stands as evidence ofthe status of
the principlesconcerned as general international law and also as evidence ofthe
adherence of the United States to those principles as formulated in the Final
Act.This aspectof theinstrument has beennoted byOuchakov in hiscontribution
to the EssuysinHonnur of JudgeiWunfrcdLuchspublishediastyear (pp. 217-233),
and indeed it isevident from the preamble of the Declaration of Principles.The
sameDeclaration isincludedinthe Digestof UnitedStutes PracticeinInternational
Law, 1975,page 7, under the rubric "Rights and Dutjes of States".
In conclusion 1 shall make some very tentative points about the relationship
of the various causes of action or, if you will, heads of liability. The issueswith
which 1am now concerned will be evident if I state sorne propositions.
First: it may be assumed that if the Appliciint State succeeds on al1or any
one of the customary law causes of action, the consequencewill befull recovery
of compensation for al1losses,both direct and consequential. ARGUMENT OF PROFESSOR BROWNLIE 231
Second :there are certain exceptionsto the first proposition, whichare probably
asfollows :
(i) in the case of the minings the compensation would reflectonly that loss and
damage which flowed from the minings; and
(ii) in thecase of unlawful killing, wounding and kidnapping of Nicaraguan
citizens the claim is,so to speak, mixed, consisting partly of a claim by way
of diplomatic protection on behalf of the nationals involved and partly of a
claim for consequential loss to the economy of Nicaragua.
Third : in the case of the violations of the sovereigntyof Nicaragua, reparation
is in principle due without proof of material loss (but this of course is without
prejudice to this claim providing a foundation Tortlie general claimof Nicaragua
for compensation due).
These propositions, which are now concluded, are to a degree premature,
since the Court has been farmally requested ta deal with the general issue of
compensation in asubsequent phaseofthe proceedings.However, theprematurity
is deliberate and, it is submitted, inevitable, since,when the Court is considering
the issues ofresponsibility assuch, it may be necessary,at least in a preliminary
way, to bear in mind the logical interaction between the different heads of
tiability and certain specificquestions of compensation.
The points I have just made concerning this logical interaction are provi-
sional and intended simply to indicate the existence of certain types of ques-
tion.
In making such points, it is not supposed that the existence ofvarious heads
of liability side by side is an inevitable source of complications. Nor is the
rnultiplicityofgrounds of claimto be regarded as artificialor in any wayunusual.
The various legal systems of the world are perfectly familiar with this pheno-
menon, and it is reflected inthe pages of the Interncitionul Encyclopuediu
Comparaiive Law (see Vol. XI, 7i)rt.(ed.), Tunc., Chap. 12). The resort to
multiple grounds of claim is entirely natural since the various causes of action
reflect two important aspects ofreality.
One form of reality is the recognition which the law, both customary and
conventional, givesto the various priorities of States, marking out the areas of
intolerable conduçt and giving substance to social standards.
The other form of reality is the delictual topography of this case. The various
grounds of claim invoked by Nicaragua provide an economical and yet very
clear picture of the orchestra of instruments of coercion- the conduct of which
complaint is made to this Court, and thus the Application is a natural reflection
both of the facts and of the realism which liesbehind the causes of action found
in general international law.
Mr. President, that conciudes my consideration of, as it might be, the taçtical
role of the causes of action based on general international law. And now by way
of an envoie 1 want to look at a separate question: this is the final speech of
counsel in this proceeding before the speech of the Agent. My envoie relates to
questions concerning the role of the Court in cases in which compliance by the
respondent State is expected to be partial or otherwise problernatic.
The matters to which 1 shall address myself are not directly connected with
the substantive issues in this case. At the same time, in my submission, they are
not directed to matters which are extrü-judicial, either. They are relevant, in my
submission, to matters which could be described as relevant to the judicial
atmosphere in which the Court approaches the points of substance, and in that
context 1 shall address myself to particular considerations, particular preoccu-232 MILITARYAND PARAMILITARY ACTIVITIES
pations of the Applicant State, and 1shall, of course, be speaking entirely within
my role as counsel of the Republic of Nicaragua.
By way of prefàçe, 1 would like to refer to the general problem of non-
compliance with the decisions of courts. It would be facile, although it is often
iissumed in academic circles to be so, it would be facile to assume that the
problem of non-compliance ispeculiar to international tribunals. Those who
think that have usually done very little thinking about the problem of compliance
with municipallaw. And yet it is not necessary to look very far to see many
examples of situations in municipal law where non-cornpliance is so to speak
hidden or pre-empted by devices which are so familiar that we barely notice
what is happening. The use of amnesty laws for example. the use of instruments
which are constitutional to change decisions of courts. In Britain the War
Damage Act of 1964 did not merely change the law, it literally expunged the
result of aparticular decision of the highest court, the House of Lords. Another
example is provided by the case of Brownv. Boardof Educulion,in the United
States Supreme Court, 347 US 489 (1952), a very important decision, fàmiliar
to all, on racial discrimination. The Supreme Court of the United States actually
envisaged the problems of non-compliance by requiring execution "with al1
deliberate speed". The court thus faced the problem that one would expect in
the actual political situation. Amnesty laws are perhaps the simplest example of
what 1am referring to, And the problem of course is that one may be tempted,
a court may be tempted so to speak, to move towards compliance or part
cornpliance by a certain element of conciliation or moderation, which involves
trying to ensure a sort of compatibility which may risk almost seeming to
legitimize illegality or simply adjusting the law to the facts. Now, that is the
situation that may obtain in municipal law.
In thisCourt there are familiar problems involving the non-appearance of
respondent States and 1do not intend to go into that general question or into
the very interesting issues raised in the literature.concern with the problem
of non-appearance, is simplythat non-appearancr: is a symptom of the possibility,
an indication of non-compliance by the Respondent State, either concurrently
with the decision of the Court or perhaps later oii after the deciçion of the Court,
in the final phase of the proceedings. It is true to Say that the ultimate juncture
is often not reached. In the Fi.~hcrieJurisdictioncases, the law, the substantive
law relating to matters in the Law of the Sea, was about to change anyway. In
the NuclearTestscases, the claim was held to be inadmissible and in the Aegean
Sea case, the Court decided that it did not have jurisdiction. However in the
Hostuge~case, as in the present proceedings, the Court reached the position
where it held thtit it had jurisdiction and the claim was admissible and thus
moved on to the merits. And so: you have a situation which is no1 for the first
time but for the second time, where the Court has faced the problem of non-
appearance and moved on to the merits.
In this case there are certain special circumstances. In the frst place, the
non-appearing State is a major power in conflict with a small developing State.
Now, this is significant in my respectful submission, because the evolution of
international law in the second part of this century has in its way been very
rernarkable. When 1 learnt some international law first, early in the 1950s, the
great question in the United Kingdom and the Westgenerally was, how could
the so-called newStates, what was later called the "third world", be persuaded
to use the lnternatianal Court, could be persuaded to resort to international
tribunals? Weil, the fact is that there is a lot of evidence that the third world is
resorting to international tribunals and these proceedings are by no means the
only exarnple.And, of course, some States resort ta the Court itself, some to a ARGUMENTOF PROFESSORBROWNLIE 233
chamber of the Court and some to special courts of arbitration like the one
concerned with the case between the two Guineas. And the fact is that the third
world is a part of the Court and its process and has expectations concerning the
Court. Nor should this be a matter of surprise, because the system of dipfomücy
is multi-cultural, should be multi-cultural and has for some long period been
multi-cultural. Judge Ago has dealt with the evidence of that in an interesting
article in the British Yeor Book of International Laiv not long ago (Vol. 53
(1982), p. 213).
Mr. President, against that background, 1 would rnove to the particular con-
siderations that 1 want to plaçe before the Court on behalf of the Applicant
State. Thiçcase is not about Nicaragua atone, it isabout a certain tr~odusoperundi
of coercion, an orchestra of instruments of coercion, which may affect and does
affect in the world we seeabout us many small States with powerful neighbours.
In the African Continent, the States of Angola and Mozambique feature in
recent examples of this type of orchestra of coercion. The problem is this : in a
case of this kind, the Court - any court - has a considerable discretion, a
considerable power ofappreciation of the evidence, the multiplicity ofissues, the
difficulties, and it might be that a decision was to the efLectthat those claims
relüting to the covert war were not upheld ; that is one of the many choices open
to the Court. My submission is that if that were the outcome of this case,
although it would not be the technical finding of the Court, in the diplornatic
world to politicians, to the world as it is, such a finding would uppear to he
a legitimation of a certain type of coercion, directed against weak States by
powerful States. In my humble submission that would be a serious threat to the
public order of the world as it now is.
If 1could return for a moment to the issue of non-cornpliance, even in cases
where there is a measure of non-compliance: for example, the Cotfu Chanizel
case, especially at the compensation stage; or the United States Diplonlaticcind
CurlsitlarStuff in Tehruncase, it is a strange fact (strange in the sense that it is
not often pointed to) that in spite of the non-compliance with the Judgment in
the CorfiiiChannelcase, that case is regarded as an important source of principle
on some important questions of international low. So with the UnireriStates
Diplornaticand CrinsularSraflin Tehrcincase, which was a case in a crisis, it was
cicase with the most dificult provenance. The Court faced the issues, the Court
tnade a series of important pronouncements on key matters of the law relating
to diplornatic relations; and therefore, even in a situation where it may be
expected that cornpliance will be either partial or there will be a complete non-
cornpliance, what the Court does is enorrnously important in the actual context
of international public order.
1have referred to the problem of appearing to legitimizecovert war, a certain
type of mo~lusnperandiof coerçion. As a sort of supplement to that observation
1would like to put the following hypothesis in front of the Court.
The hypothesis concerns a smafl State and a period of five or six years. In
the first year of the five-or six-yeürperiod we will assume that there is evidence
<if arms moving across the frontier of that small State into a neighbouring
State. If it appeared that the Court believed that such a set of facts justified the
type of coercion brought to bear by the United States over a period of four or
five years. long after the original hypothetical traffic in arms had ceased, and
that it could justify the massive use of a variety of forms of coercion over that
period of four or fiveyears; in my submission that would be virtually a return
to the concept visible in the 1930s in Europe, the diplomacy of provocation,
where some original event is taken as a justification for ü long sequence of coer-
cion.234 MILITARY AND PARAMlLtTARY ACTIVlTIES
1am coming to my finil remark, which is simply this: against the background
of what 1 have already said 1 think itwould be particularly unfortunate if
fi~idingswere to be based upon evidence not placed before the Court by the
Parties. QUESTIONPUTBYJUDGERUDA
Judge RUDA: Nicaragua has referred, in her Mernorial and in the course of
these pleadings, to alleged United States violation of provisions of the United
Nations Charter, the Charter of the Organization of American States, the Treaty
of Friendship, Commerce and Navigation of 1956, and customary rules of
international law.
However. in your Application you have referred not only to the United
Nations Charter and the Charter of the Organization of American States, but
also to Article8 of the Convention of Rights and Duties of States, signed in
Montevideo in 1933,and Article 1(3) of the Convention concerning the Duties
and Rights of States in the Event of Civil Strife, signed in Havina in 1928.
Could you comment as to why you have not referred to these two instruments
in the subsequent periods on the merits after the Application I do not want a
reply now. you can reply after these oral pleadings, in writing, at a suitable time. STATEMENTBYMR.ARGÜELLOGOMEZ
AGENT FOR THEGOVERNMENT OF NICARAGUA
Mr. ARGÜELLO GOMEZ: Mr. President, Members of the Court. This is
my last intervention in this most important phase of this case. During the past
year and a half it has been my privilegeand honour to defend the cause of my
country before this highest and most respected tribunal on earth. I feel an
immenseresponsibility.The cause of my country isalso the cause of al1the srnall
nations on earth, who see in the rule of law their only means of survival. The
cause of my country is, and has been, the cause of Latin America.
Many of the legal principles here at stake have been created and espoused by
a distinguished line of Latin-American jurists over the past 150 years. These
principles have been formulated for the very purpose of mobilizing the force
of international law as a defence against the innumerable interventions of the
United States in Latin America. They are the antitheses of the policy of the "big
stick" which has permeated, and stiil permeates, the attitude of the United States
toward Latin America, a policy that has been applied with particular cruelty to
Nicaragua during its entire existenceas a nation.
Mr. President, Nicaragua has made a çomprehensive presentation of its case
in fact and law in the written and oral pleadings already before you. Another
speech is not necessary. 1wish only to review, in the fewest words possible, the
matters that have been the subject of our proceedings in the past few days.
In this phase of the proceedings, Nicaragua has presented tive witnesses in
oral testirnony.I would liketo Saya word about the testimony of each of them.
Nicaragua's positionon the question of arms supplied to El Salvador remains
the same as it was at the beginning of the case and as it always has been. We
have never varied from that position. When we filed Our Application it was
accompanied byan affidavitfrom our Foreign Minister, Father Migueld'Escoto.
He swore that: "ln truth, my Government is not engaged and has not been
engaged in the provision of arms or supplies to either ofthe factions engaged in
the civil war in El Salvador."
Last week weproduced in Court another senior member of the Nicüraguan
Government, Commander Luis Carribn, the Vice-Minister of the Tnterior. He
testified inopen court and was subject to vigorous questioning from the Bench.
On this point he said, in response to a question from the Court:
"My Goverment has never had a policy of sending arms to opposition
forces in Central America. That does not mean that this did not happen.
especiallyin the Firstyears after the revolution, in 1979and 1980.Weapons
might have been carried through Nicaraguan territory, weapons that might
have the Salvadoran insurgents as you said. as the final recipients."
One lias got to agreethat there might havebeen arms going through Nicaragua
to the Salvadoran rebels at that time, but not as a matter of government policy.
Nicaragua denies also that there were several training facilities provided for
headquarters for the Salvadoran rebels. Nicaragua's counsel have also stated
that they hold theçameviews as the Government on rtllmatters relating to these
proceedings and that they have never said anything to the contrary.
Nicaragua brought Mr. MacMichael before the Court because we thought he could provide information that was important to the case. He was the one person
who has seen al1the evidence in the possession of the United States relating to
the supply of arms to the Salvadoran guerrillas during the period of time
that is relevant to this case. Thirdfy, in 1981when the United States policy was
formulated and thereafter, he was the one person who could testify on the basis
of evidence that there had been no such traffic during that crucial period.
We knew, of course, what his opinions were as to the earlier period, and that
because he was giving oral testimony he would be asked to express them. But 1
would point out to the Court that his actual testimony is not inconsistent with
Nicaragua's position: when asked whether the evidencewhich is sureabout arms
traffic to El Salvador, in the earlier period, established that the Government of
Nicaragua was involved during that period, he replied that it was not.
Nicaragua's next two witnesses testified, in painful and graphic detail, about
the terrorist activities of the contru forces against the people of Nicaragua. Both
were asked from the Bench about alleged violations of hurnan rights by the
Nicaraguan Government. Of course, both witnesses denied any knowledge of
such practices. On this issue. we have put before the Court the reports of several
independent organizations that monitor the observation of human rights in
various countries of the world. Let me draw the Court's attention to one of
these, entitled : Hiiman Righls in Niruruguu: Reagan, Rhetoric und Reality
prepared by Americas Watch, which specializes in human rights conditions in
the western hemisphere - it is contained in Supplemental Annex E, and it says :
"In Nicaragua there is no systematic practice of forced disappearances,
extra-judicial killings or torture. Nor has the Government practised elimi-
nation of culture or ethnic groups as the administration frequently claims.
For the past two years the most violent abusesof human rights in Nicaragua
have been committed by the contras. Here, too, the administration has
substituted rhetoric for a çlear look at the facts. After several outside
investigations into contra practices, we find that contra combattants syste-
matically murdered the unarmed including medical personnel, rarely take
prisoners and force civilians into collaboration."
In its final conclusions the Americas Watch report also makes these points:
"1. Far from being the moral centre of United States policy towards
Nicaragua, human rights have been used tojustify a policy of confrontation.
2. To that end human rights data have been distorted in the annual State
Department'sCountry Reports on Nicaragua, in White House handouts on
Nicaragua the speeches and public staternents by senior officiais and, most
notably, in the President's own remarks on Nicaragua.
3. Such misuse of human rights to justify military interference in United
States Latin American relations is an unprecedented debasement of the
human rights cause."
And, speaking of credibility, in the light of these findings about the character
of United States staternents on human rights in Nicaragua, what are we to think
about United States public statements on other issues in this case, for example,
arms supply. Mr. William Huper the Finance Minister of Nicaragua, was our
last witness. As the Court may already be aware, he was examined exclusively
on matters relating to economic damage caused to Nicaragua by the hostile
açtivities of the United States. Mr. Huper's evidence was intended to provide a
certain background to the case as presented on liability; it was not intended to
constitute a definitive basis for Nicaragua's clairn to compensation. As to that,238 MILITARY AND PARAMILITARYACTlVlTIES
Nicaragua has requested that the Court reserve the general question of compen-
sation for a separate phase of the case.
Mr. President, Nicaragua does not accept the thesis that Article 53 of the
Statute rneans that the Court shall act as counsel for the non-appearing State.
Article 53cannot be understood to mean that a non-appearing Stateshould have
more rights than it would if it had appeared before the Court. In particular,
Article 53 does not mean that a respondent, which normally would bear the
burden of proof of an affirmative defence, can shift the burden to the applicant
simply by refusing to appear; al1Article 53 States is that there is no right to a
defauit judgment and that the Court has to satisfy itself on the merits of the
case. It certainly does not rnean that the Court is to supply the pleadings that
the absent Party might have made and, even more, to introduce factual materials
that are not in the record. that have not been subjected to the critical analysis
of the adversary process. That would be to penalize the State appearing before
this tribunal.It would also impose on counsel, alid particularly the Agent of the
appearing State, the embarrassrnent of having to submit to statements that might
be made by the Court along the lines of a pleading and that could not - because
of the respect owed to each and every member of the tribunal - be answered
with the necessary liberty of expression.
The United States has refused to appear before this tribunal but it has not
been silent during the past few days. Whiie Nicaragua has been presenting its
case in accordance with the Statute and Rules of the Court.' the United States
has been presenting its case in the press. 1need not remind the Court that these
statements and documents do not constitute evidence in this case, and can-
not properly be considered by the Court. The chairs on the other side of the
courtroom provide the true measure of the United States case - it is as empty
as they are.
Mr. Presideni, Members of the Court, on behalf of Nicaragua 1 make the
following submissions. The Republic of Nicaragua respectfully requests the Court
to grant the following relief:
Firstt:he Court is requested to adjudge and declare that the United States
has violated the obligations of international law indicated in the Memorial, and
that in particular respects the United States is in continuing violatjon of those
obligations.
Second: the Court is requested to state in clear terms the obligation which the
United States beürs tobring toan end the aforesaid breaches of international law.
Tliird:the Court is requested to adjudge and declare that, in consequence of
the violations of international law indicated in the Memorial, compensütion is
dueto Nicaragua, both on its own behalf and in respect of wrongs inflicted upon
its nationals; and the Court is requested further to receive evidence and ro
determine, in a subsequent phase of the present proceedings, the quantum of
damages to be assessed as the compensation due to the Republic of Nicaragua.
Fourtli: without prejudice to the foregoing request, the Court is requested
to award to the Republic of Nicaragua the siim of 3711,200,000United States
dollars, which sum constitutes the minimum v;iluation of the direct damages,
with the exception of damages for killing nationals of Nicaragua, resulting from
the violations of international law indicated in the substance of its Memorial.
With reference to the fourth request, the Republic of Nicaragua reserves the
right to present evidence and argument, with the purpose of elaborating the
minimum (and in that sense provisional) valuation of direct damages and,
further, with the purpose of claiming compensation for the killing of nationals
of Nicaragua and consequential loss in accordance with the principles of inter- STATEMENT BY MR. ARGÜELLO GOMEZ 239
national law in respect of the violations of international law generally, in a
subsequent phase of the present proceedings in casethe Court accedes to the
third request of the Republic of Nicaragua.
Mr. President, Members of the Court, while we talk here in The Hague, the
mercenary war goes on in Nicaragua. Sincethese hearings began last week,more
than 50 people have been killed, wounded or kidnapped in my country, as a
result of that war. As the Court knows, Article 74of the Rules of Court provides
that a request for provisional measures shall take priority over al1other matters
before the Court. This is obviously because such requests are inherently of an
urgent nature calling for immediate relief. The same reasoning should apply ta
cases of the nature of the one before the Court. Nicaragua requests that this
case should be given al1the priority it deserves. When Nicaragua asked for
interim measures of protection, the Court responded in full conformity to the
requirements of the rule, in issuing its Order indicating interim measures on
10 May 1984. In the 16 months since then the United States has completely
Aouted the Court's Order. Nicaragua's need forrelief, Nicaragua's demand for
justice remains as urgent now as it was then. Mi. President, Members of the
Court, Nicaragua has completed the presentation of its case, it rernains for you
to respond to that need and that demand. CLOSlNG OFTHEORALPROCEEDINGS
The PRESIDENT: Before werise 1must draw attention to the normal practice
of the Court whereby the Agents of the Parties remain at its disposal to provide
any further evidence or explanation that may be required.
1now declare the present hearing closed.
The Court rose a!2 p.m. TWENTY-SIXTHPUBLIC SITTING (27 VI 86,10 a.m.)
Present: [See sitting of 1X 85.1
READINGOFTHEJUDGMENT
The PRESIDENT: The Court meets today to deliver in open court, in
accordance with Article 58 of the Statute of the Court, its Judgment on the
merits in the case concerning Militaryand Pararnilitary Activiîieinand againsr
Nicaragua (Nicaragua v. Uniled Stutes of drnerica).
The opening paragraphs ofthe Judgment, dealing with the procedural history
of the case, will, as is customary, not be read out.
[The President reads paragraphs 18to 292 of the Judgment'.]
1 shall now üsk the Registrar to read the operative clause of the Judgment
in French.
[Le Greffier lit le dispositif en français2.]
President Nagendra Singh and Judges Lachs, Ruda, Elias, Ago, Sette-Camara
and Ni append separate opinions to the Judgment; Judges Oda, Schwebel and
Sir Robert Jennings append dissenting opinions.
In accordance with practice, the Judgment has been read today from a
duplicated copy of the text, a limited stock of which will be available to the
public and the press. Theusual printed text of the Judgment will be available in
a few weeks' time.
1declare the present sitting closed.
(Signed) Nagendra SINGH.
President.
(Signed) Santiago TORRES BERNARDEZ,
Registrar.
C.1J. Recueil1986, 146-149..
Plaidoiries sur le fond - Procès-verbaux des audiences publiques tenues au Palais de la Paix, à La Haye, du 12 au 20 septembre 1985 et le 27 juin 1986, sous la présidence de M. Nagendra Singh, président