Judging Nicaragua’s Public Interest Litigation in The Hague

The judicialisation of Israel’s war in Gaza has taken a significant turn, with Nicaragua boldly entering the scene and executing two distinct actions. On 23 January, Nicaragua applied for permission to intervene in South Africa v. Israel – a move that raised eyebrows both because of the legal avenue Nicaragua chose to frame its intervention and the politics underlying its request. On the evening of 1 March, Nicaragua instituted proceedings against Germany for ‘facilitating the commission of genocide’ and failing ‘in its obligation to do everything possible to prevent the commission of genocide’. It thereby partially fulfilled its previously announced intention to initiate proceedings against Canada, Germany, the Netherlands, and the United Kingdom for failing to fulfil their obligations under the Genocide Convention.

This post contributes to understanding Nicaragua’s two moves before the International Court of Justice by analysing three dimensions. First, I situate Nicaragua’s actions within the country’s rich relationship with the Court. Second, I discuss some of the legal challenges Nicaragua’s actions face and suggest these reflect Nicaragua’s prioritisation of political impact and visibility over adjudicative success. Finally, I problematise normative assessments concerning Nicaragua’s moral standing and intentions, arguing that these should also consider the potential positive consequences of Nicaragua’s engagement with international law.

Continuity and Change in Nicaragua’s Relationship to the ICJ

Nicaragua’s actions are, in a way, unsurprising: they constitute traits of continuity in a foreign policy that has made use of the International Court of Justice as an appropriate forum for resolving disputes. Both the application to intervene and the application against Germany were signed by Carlos Argüello Gómez, Nicaragua’s Ambassador in The Hague since 1983 and its designated agent for both cases. Forty years ago, Nicaragua’s historic initiation of proceedings against the United States also bore Argüello’s signature. As narrated by the renowned US lawyer Paul Reichler, it was in conversations between him and Argüello, back then Minister of Justice of the government of the Sandinista National Liberation Front in Nicaragua, that the ‘idea of Nicaragua suing the United States in the World Court was born’. The decades in between saw Nicaragua become one of the Court’s most frequent clients, building a track record where it appeared as a party in thirteen cases – in eight of them as applicant – and acted as an intervening state in the Land, Island, and Maritime Frontier Dispute case between El Salvador and Honduras.

However, the request for intervention and the application against Germany also present novel characteristics. In contrast to Nicaragua’s past roles as an applicant, respondent, or intervenor in a case involving its legal interests in a delimitation case between two other countries, in this instance the country acts as guardian of the erga omnes partes character of the obligations under the Genocide Convention. In its case against Germany, Nicaragua also grounds its jurisdiction on both countries’ optional clause declarations, which enables Nicaragua to include allegations of Germany’s violation of the Geneva Conventions and its Additional Protocols, principles of international humanitarian law, and other peremptory norms of international law.

Political Impact and Visibility over Adjudicative Success

Nicaragua’s moves do not rely on watertight legal framings, which may risk the success of both its permission to intervene in South Africa v. Israel and its request for provisional measures in its new application against Germany.

First, Nicaragua’s request to intervene was submitted under Article 62 of the ICJ Statute, which allows states to request to intervene in disputes between other states when they consider to have ‘an interest of a legal nature which may be affected by the decision in the case’. There is disagreement about whether the common interest in the compliance with obligations erga omnes partes alone fulfils the requirement of ‘an interest of a legal nature’ of Article 62 (for a recent debate on this point, see here and here). Hence, whether the Court will accept Nicaragua’s intervention under Article 62 is by no means certain. As a state party to the Genocide Convention, Nicaragua could have chosen the path offered by Article 63, a route used by states intervening in the cases brought against Myanmar and Russia before the International Court of Justice under the Genocide Convention. Article 63 recognises the right of state parties to a multilateral convention to intervene ‘whenever the construction of [the] convention… is in question’.

Furthermore, it is unusual that Nicaragua also requested to intervene as a party. Indeed, the Court has interpreted Article 62 to allow states to intervene as either parties or non-parties. However, it has never before admitted an intervention of the former character. Nicaragua’s intervention as a party would enable it to put forward its own claims before the Court. Nicaragua would also be bound by the judgment under Article 59 of the Statute. Yet, what exactly a state should demonstrate to justify its intervention as a party remains to be determined. Must Nicaragua prove the existence of a dispute between itself and Israel? Does it have to show how its interest of a legal nature could be affected by a decision of the Court? Both questions were previously raised here and here.

Second, the application lodged by Nicaragua against Germany also presents important challenges. The problem concerning the theory of essential or indispensable parties is particularly salient among them. Adjudicating the claims presented by Nicaragua against Germany would entail examining the legality of the conduct of Israel, which is not party to the case. The Court could eventually rule out this problem by considering that it is examining the legality of the conduct of Israel under the Genocide Convention in South Africa v. Israel (as pointed out here). However, the Court does not have jurisdiction to adjudicate Israel’s violations of the Geneva Conventions. This may not pose an obstacle at the provisional measures’ decision stage – insofar as, at that point, the Court must be satisfied that there is a prima facie basis for its jurisdiction, and the absence of an indispensable third party concerns the admissibility of the case (for a debate on this, see here). In any event, this question would eventually raise issues at the jurisdiction and admissibility phase, assuming, plausibly, that Germany will raise preliminary objections.

It is unlikely that the Nicaraguan legal team decided to act unaware of these legal challenges. What is evident is Nicaragua’s intention to present itself as fully engaged in this legal battle. All this reflects Nicaragua’s prioritisation of political impact and visibility of its accusations against Israel and Germany over adjudicative success before the ICJ. Indeed, the immediate procedural consequences of both of Nicaragua’s actions is that it will get to address the Court – and individuals in different corners of the world live-streaming developments in The Hague – on the killings, starvation, and mass displacement happening in Gaza. Assuming Israel will object to Nicaragua’s request for intervention and following Articles 83 and 84 of the Rules of the Court, the ICJ will have to hear the state seeking to intervene and the parties before deciding on the request. Furthermore, as established by Article 74, paragraph 1, of the Rules of the Court, Nicaragua’s request for provisional measures in its case against Germany will have priority over all other cases. The Court will thus soon have to fix a date for the oral hearing.

On Moral Standing and Intentions

Nicaragua’s two moves before the International Court of Justice awakened different reactions from international law scholars. In the very active Twitter scene, some rightly pointed to the authoritarian character of the Nicaraguan government and its human rights violations, sometimes suggesting Nicaragua’s lack of moral authority to point fingers at others (see, for example, here, here, here, here, and here). Some scholars also questioned Nicaragua’s intentions (see, for example, here, here, and here).

Nicaragua’s accusations against Israel and Germany are uncomfortable. The United Nations High Commissioner for Human Rights has found Daniel Ortega’s government to have arbitrarily detained political opponents, cracked down on dissenting voices, disregarded the human rights of women and girls, and failed to address the killing and attacks against indigenous people (see here). On the very same day Nicaragua lodged its application against Germany, the UN High Commissioner for Human Rights warned that ‘the human rights situation [in Nicaragua] continues to plummet at an alarming pace.’ On the international stage, Ortega’s foreign relations with Russia do not fare better, having recognised Crimea as part of Russia in 2014 and voting against UN resolutions condemning Russia’s war of aggression against Ukraine. In this context, it would not be implausible to think that Nicaragua has taken into consideration the need to enhance its international standing.

However, at least three counterpoints complicate, yet enrich, the discussion. The first and perhaps most obvious one is that any close scrutiny of the moral standing and intentions of a state can be tainted by problems of double standards. It is difficult to recall prominent criticisms of the moral standing of powerful Western states intervening in The Gambia v. Myanmar and Ukraine v. Russia. Likewise, references to Nicaragua’s possible spurious intentions are not enough to assess its actions in a world where realpolitik partially permeates requests to intervene and initiation of proceedings in cases involving erga omnes obligations before the ICJ.

Second, opening the door to conversations on states’ moral standing to act on the international plane requires some historical perspective. In particular, it demands taking into account the fragile state structures left behind by colonial and imperial practices in Global South countries. The current disarray in Nicaragua cannot be divorced from the history of US interventions in the country throughout the twentieth century, including its support of the Somoza family dynasty, which maintained a brutal dictatorship in Nicaragua for decades. While the historical perspective does not absolve Nicaragua’s current government from the documented and prevalent violence exercised against its own population, it does help situate normative debates by acknowledging that not all states operate within the same realm of possibilities.

Third, one should also consider the ramifications of questioning Nicaragua for its engagement with international law. Blanket criticism risks relegating Nicaragua to a limbo where it faces condemnation both for its opposition to international institutions – as happened upon its withdrawal from the OAS – and for its active participation in ICJ proceedings. Those rightly troubled by Nicaragua’s internal record of human rights violations could, by contrast, find good reasons to welcome Nicaragua’s public stance against genocide and its support for the credibility and efforts of the United Nations – the very same organisation that reports and calls out Nicaragua for its human rights violations. Such public commitments can put Nicaragua in a more difficult position to, for example, discredit the Office of the High Commissioner for Human Rights.

Conclusion

Nicaragua’s actions understandably prompt questions about its moral standing and underlying intentions. International law scholars hold a privileged position to foster nuanced discussions on these issues, drawing from past, present, and future perspectives. This role is especially important as the Court becomes a key arena for states to address the world’s most burning conflicts. Regardless of Nicaragua’s success, one can hope that its actions serve to increase and maintain visibility of the brutal horrors Palestine people are being subjected to in Gaza. Additionally, one can also place hope that they prompt all states to fulfil their obligations under the Genocide Convention – and international law at large.