153
affairs of Nicaragua. Then, in paragraph 292(4), it held that the United States, "by those
acts of intervention referred to in subparagraph (3) hereof which involve the use of
force, has acted, against the Republic of Nicaragua, in breach of its obligation under
customary international law not to use force against another State". The acts of
intervention which involved a use of force included the arming and training of the
contras, the Court having explicitly held that "the arming and training of the contras can
certainly be said to involve the threat or use of force against Nicaragua".
11.
This is consistent with the Court's statement, in paragraph 238 of its judgement,
that the United States, having no legal right to use force in the circumstances of the case,
"has violated the principle prohibiting recourse to the threat or use of force ... by its
assistance to the contras to the extent that this assistance 'involve[s] a threat or use of
force' (paragraph 228 above)". Paragraph 228, to which the Court referred, is set out in
relevant part above.
12.
The contras were not using force exclusively on behalf of the United States; the
case makes it clear that they were also using force on their own behalf against the
Government of Nicaragua. This must be borne in mind in considering the following
statement of the Court:
The conflict between the contras’ forces and those of the Government of Nicaragua
is an armed conflict which is ‘not of an international character’. The acts of the
contras towards the Nicaraguan Government are therefore governed by the law
applicable to conflicts of that character; whereas the actions of the United States in
and against Nicaragua fall under the legal rules relating to international conflicts.
(Ibid., p.114, para.219).
I do not think anything in this passage is opposed to the conclusion that the United
States was using force through the contras against the Government of Nicaragua, a
finding which the Court in fact made as, I think, the Appeals Chamber in this case
recognises (see para. 130 of the judgement). To judge whether that finding is applicable
here, it is necessary to consider the facts of this case.
13.
The Trial Chamber accepted that, having been itself in direct armed conflict with
BH through the Yugoslav People's Army ("JNA"), the FRY established the VRS, trained
it, equipped it, supplied it and maintained it. The establishment was done by the FRY,
on 19 May 1992, by leaving in BH part of the JNA to function as the VRS, and doing
that just days after the Security Council had called on the FRY to withdraw from BH.
Senior military officers from the FRY were members of the staff of the VRS. The FRY
paid the salaries (and pensions after retirement) of officers of the VRS who came over
from the JNA. The headquarters of the VRS had a link with the headquarters of the
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