Why Nicaragua’s Article 62 Intervention in South Africa v. Israel is Potentially Unhelpful

On 23 January 2024, Nicaragua applied for permission to intervene in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel). Intervention in genocide cases has become something of a trend in recent times, with 32 States intervening pursuant to Article 63 of the Court’s Statute in Ukraine v. Russia and 7 States in The Gambia v. Myanmar.

Nonetheless, Nicaragua’s intervention is a surprise because they have not invoked Article 63 but rather the Court’s alternative intervention mechanism: Article 62. The Court’s Statute in Article 62 provides that a third State may request to intervene in a case whenever it has an interest of a legal nature which may be affected by the Court’s judgment. Since 1945, there have been ten cases in which applications to intervene were made pursuant to Article 62. Of these, only three have been successful. The Court has a discretion to decide whether the conditions of Article 62 are met, including whether the third party has established an ‘interest of a legal nature’. Moreover, Nicaragua seeks to intervene as a party in the proceedings which is, on the Court’s jurisprudence, theoretically possible but has never happened.

We are in some very new procedural territory. This post will set out some of the arguments in respect of Nicaragua’s application and discuss why in the author’s view this move may be well-intended but ultimately unhelpful.

The Legal Interest Test

Nicaragua’s argument appears to rest on the erga omnes partes nature of the obligations under the Genocide Convention. Nicaragua states that it ‘has interests of a legal nature that stem from the rights and obligations imposed by the Genocide Convention on all State Parties’ and flow from ‘the universal character both of the condemnation of genocide and of the cooperation required … to liberate mankind from such an odious scourge’. In other words, if South Africa can have standing on the basis of an erga omnes partes obligation, other States should be able to intervene as parties because they have an equivalent legal interest. There is logic here, certainly, and scholars such as Urs and Gaja have advocated for the Court to adopt such an approach.

But the Court to date has never accepted an argument of this nature. While the Court has observed that Article 62 does not ‘confer upon it any general discretion to accept or reject a request for permission to intervene for reasons simply of policy’, an interest of a legal nature has never been established ‘simply on the basis that all States have an interest in the law, and in the condition of the law’. This may prove to be Nicaragua’s undoing. While on its face the legal interest test for intervention and standing appear similar, intervention demands that the putative interest would be affected by the Court’s decision. Does an order from the Court that South Africa and Israel must comply with their obligations under the Genocide Convention implicate Nicaragua’s obligations? Not really. Does an order from the Court that Israel has contravened its obligations under the Genocide Convention affect Nicaragua’s rights under the Convention? Not that I can see.

Moreover, the Court has previously adopted a conservative attitude towards Article 62 intervention even where a State’s legal interests are successfully established. For example, the Court rejected two separate applications for Article 62 intervention from Honduras and Costa Rica in Territorial and Maritime Dispute. The original dispute concerned sovereignty over certain maritime features situated in the Caribbean Sea. Honduras, to the north of Nicaragua, sought to intervene as a party to obtain determination of the tripoint with Colombia, or alternatively, as a non-party to ‘inform the Court of its legal interests’. The Court rejected Honduras’ application on the basis that there was no legal interest that could be affected; a 2007 judgment had settled the maritime boundary between Nicaragua and Honduras. Costa Rica on the other hand, geographically flanked by Nicaragua and Colombia, requested intervention as a non-party to inform the Court of ‘the nature of Costa Rica’s rights and interests of a legal nature’ that could be affected by the Court’s maritime delimitation in the Caribbean Sea. Both parties recognized that there were potentially overlapping maritime claims. Rejecting Costa Rica’s application, the Court held by 9 votes to 7 that the third State must establish that it has an interest of a legal nature and that the object of the intervention is ‘proper’ (both requirements satisfied by Costa Rica). However, Costa Rica also had to demonstrate that ‘its interest of a legal nature in the maritime area bordering the area in dispute between Nicaragua and Colombia needs a protection that is not provided by the relative effect of decisions of the Court under Article 59 of the Statute’. This is because, the Court reasoned, it will always protect a third State’s putative interests in maritime delimitation cases, whether or not they intervene, by ending the boundary line in question before it reaches an area in which the interests of a legal nature of third States may be involved. It is not clear that Nicaragua will be able to convince the Court that whatever legal interest it may have requires protection by way of intervention because it cannot be protected by Article 59. Indeed, a case such as this seems to be the very reason for the existence of Article 59 – it protects other State parties to a multilateral convention from the Court’s decision, which is binding only on the parties. Implications for third parties may arise out of the interpretation of the underlying treaty, but for that reason Article 63 exists.

Establishing a Jurisdictional Link

In an additional twist, Nicaragua seeks to intervene as a party. Intervention does not ordinarily permit the making of claims against the original parties. However, a Chamber of the Court in Land, Island and Maritime Frontier Dispute postulated that States could intervene using Article 62 as either a non-party without a jurisdictional link, or as a party with a jurisdictional link and/or the consent of the parties. Nicaragua seeks to establish the existence of a jurisdictional link by way of Article IX of the Genocide Convention.

But this raises the question of the existence of a dispute between Nicaragua and Israel. If the existence of a dispute is treated as an aspect of jurisdiction (which is up for debate but appears to be the Court’s attitude) has Nicaragua established the existence of a dispute between itself and Israel? Indeed, we are in such new territory that it is not entirely clear whether Nicaragua would need to establish the existence of a dispute with both parties or whether only one would suffice. Could one party consent and one demand the existence of a jurisdictional link including the existence of a dispute? A pragmatic attitude would suggest that this is a logical position to adopt but in Continental Shelf (Libya/Malta) the Court rejected Italy’s application on the basis that admitting the intervention would be tantamount to the Court deciding on the existence of Italian rights over certain areas in the Mediterranean Sea, which would introduce a new dispute in the proceedings; and that it could not do without the original parties’ consent. The Court preferred that, in such a situation, the third State should institute its own proceedings and request that the two proceedings be joined.

Conclusion: Well-Intended But Unhelpful

To date, the Court has appeared quite willing to accept intervention under Article 63 in respect of a multilateral treaty. Article 63 grants a right to States to intervene in a case when they are party to a multilateral treaty that will be interpreted in the Court’s judgment. These interventions have added some complications to proceedings, but the Court and States are learning how to best address them. In Ukraine v. Russia, the Court has admitted intervenors on the papers and in practical terms was able to ensure that oral proceedings were not made overlong by restricting intervenor presentations to 15 minutes. In The Gambia v. Myanmar, 6 out of 7 States submitted a joint declaration of intervention, streamlining proceedings further.

By contrast, Nicaragua’s actions have thrown a spanner in the works. Unless South Africa and Israel consent to Nicaragua’s application, the Court will be required to hold an entirely separate round of hearings to determine its admissibility. Article 62 intervention does not begin from the premise that it is of right; if there is disagreement it will need to be fully argued. And then should Nicaragua succeed, presumably Nicaragua would need to be granted all of the rights of a party, including the submission of full suites of pleadings, the right to make full oral submissions going to all questions of jurisdiction and the merits (not merely on questions of interpretation), and possibly the right to appoint a judge ad hoc.

The point is, this application will drag proceedings out one way or another. And for what? The Court’s final decision is no more binding on Israel than it would otherwise have been. It’s unlikely that Nicaragua has evidence that it can only present on its own case, and not simply share with South Africa. Potentially it means the Court must hear and decide upon a third version of events, clouding South Africa’s original case. If this case is really about addressing what the Court described as a ‘human tragedy’ in Gaza and not just about political point-scoring, Nicaragua, by trying to help, may just have made things worse.