369 / 532
353
PRIVATE MILITARY CONTRACTORS, PARAMILITARIES AND MERCENARIES …
Charter’s prohibition on the use of force by States in Article 2(4),
50
“constitutes
a conspicuous example of a rule in international law having the character of
jus
cogens
.”
51
In other words, the illegal use of force itself is a
jus cogens
crime, meaning
that there is no justification for committing the crime and no State may derogate
from the rule,
52
putting Russia in great violation of international law.
With particular relevance to the situation in Ukraine, United Nations General
Assembly Resolution 2625, the Declaration on Principles of International Law
Concerning Friendly Relations and Cooperation among States in Accordance with
the Charter of the United Nations,
53
elaborates on obligations regarding the crime of
aggression. It asserts that
Every State has the duty to refrain from organizing, instigating,
assisting or participating in
acts of civil strife or terrorist acts in another State or acquiescing in organized activities within
its territory directed towards the commission of such acts
, when the acts referred to in the
present paragraph involve a threat or use of force.
Also, no State shall organize,
assist
, foment, finance, incite or tolerate
subversive, terrorist
or armed activities directed towards the violent overthrow of the regime of another State
, or
interfere in civil strife in another State
.
54
With this background as a roadmap, the ICJ denied that an “armed attack” should
not include “assistance to rebels in the form of the provision of weapons or logistical
or other support;”
55
but found that “such assistance may be regarded as a threat or use
of force, or amount to intervention in the internal or external affairs of other States.”
56
Ultimately, the Court held that “by training, arming, equipping, financing and supplying
the Contra forces or otherwise encouraging, supporting and aiding military and
paramilitary activities in and against Nicaragua,” the United States “acted, against
the Republic of Nicaragua, in breach of its obligation under customary international law
not to intervene in the affairs of another State.”
57
Furthermore, the Court clarified that the
principle of non-intervention prohibits a State from intervening, “directly or indirectly,
with or without armed force, in support of an internal opposition in another State.”
58
Yet, the United States was not responsible under the theory of State Responsibility for
the human rights abuses committed by the Contras because it did not exercise
effective
50
U.N. Charter, art. 2(4).
51
Nicaragua
, I.C.J. Reports 1986
, at para. 190.
52
M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, 59
Law & Contemp.
Probs.
63, 67 (1996).
53
G.A. Res. 2625, 25
th
Sess., Declaration on Principles of International Law Concerning Friendly
Relations and Cooperation among States in Accordance with the Charter of the United Nations, U.N.
Doc. A/8082 (XXV), October 24, 1970.
54
Ibid.
(emphasis added).
55
Nicaragua,
I.C.J. Reports 1986
, at para. 195.
56
Ibid.
57
Ibid.
at para. 292.
58
Ibid.
at para. 206.