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Celebrating a Fraud on the Court

Published online by Cambridge University Press:  20 January 2017

Stephen M. Schwebel
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The International Court of Justice issued its judgment on the merits in the case of Military and Paramilitary Activities in and Against Nicaragua on June 27, 1986. A public discussion to mark the twenty-fifth anniversary of the rendering of that judgment took place in The Hague on June 27, 2011. The meeting—“The Nicaragua Case 25 Years Later: Its Impact on the Law and the Court”—was arranged with the participation of individuals involved in the formulation and presentation of Nicaragua’s case. A diversity of views was expressed on whether the Court had jurisdiction in the case and on elements of its judgment on the merits, but the mood of the Hague session was celebratory.

Type
Editorial Comment
Information
American Journal of International Law , Volume 106 , Issue 1 , January 2012 , pp. 102 - 105
Copyright
Copyright © American Society of International Law 2012

References

1 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 ICJ Rep. 14 (June 27).

2 Reichler, Paul S., Holding America to Its Own Best Standards: Abe Chayes and Nicaragua in the World Court, 42 Harv. Int’l L. J. 15, 22–24 (2001)Google Scholar (describing roles in proposing, developing, and arguing Nicaragua’s case).

3 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Declaration of Intervention, 1984 ICJ Rep. 215 (Oct. 4). El Salvador sought to intervene by invoking its “right to intervene” under Article 63 of the Court’s Statute. The Court did not give effect to that right. It further failed to follow Article 84 of its rules providing that “the Court shall hear the State seeking to intervene and the parties before deciding.”

4 1986 ICJ Rep., para. 147.

5 Id., para. 135.

6 Id., para. 160.

7 Rosenne, Shabtai, The World Court: What it is and How it Works 152–53 (5th ed. 1995)Google Scholar (foot notes omitted).

8 Letter dated 8 June 1993 from the Secretary-General Addressed to the President of the Security Council, UN Doc. S/25901 (June 8, 1993).

9 Note by the President of the Security Council, UN Doc. S/25929 (June 11, 1993).

10 Further Report of the Secretary-General on the United Nations Observer Mission in El Salvador, para. 1, UN Doc. S/26005 (June 29, 1993).

11 Id., para. 2.

12 Letter dated 22 June 1993 from the Minister for Foreign Affairs [of Nicaragua] Addressed to the Secretary-General, UN Doc. S/26008, annex (July 2, 1993). The language included here summarizing the contents of the minister’s letter is taken from the transmittal letter, UN Doc. S/26008.

13 UN Doc. S/26008, annex, para. 2.

14 Further Report of the Secretary-General on the United Nations Observer Mission in El Salvador (ONUSAL), UN Doc. S/26371 (August 30, 1993).

15 Id., para. 5. The Managua garage explosion and the items discovered in the garage arsenal were widely reported. They included documents indicating activities of a kidnapping ring extorting ransoms from leading Latin-American figures.

Investigators and diplomats said there is strong circumstantial evidence that the arsenal and the ring operated with at least the tacit approval of Nicaragua’s leftist Sandinista National Liberation Front, which held power from 1979 until 1990 and whose leaders still control the army and state intelligence.

The vault “looked like a one-stop shopping center for terrorist activities, where you could get guns and documents,” said a diplomat familiar with the case. “You would have to be extraordinarily naive to think this was not under the aegis of some part of the intelligence operation of the Sandinistas.”

Douglas Farah, Managua Terrorist Base Exposed by Garage Blast, Wash. Post, July 14, 1993, at Al; see also L.A. Times, July 28, 1993, at Al; id., July 14, 1993, at A14; id., May 30, 1993, at A4.

16 Nicaragua’s Daniel Ortega Proposes Vote on US Damages, BBC News, July 20, 2011, at http://bbc.co.uk/news/world-latin-america-14213628. Addressing the UN General Assembly in October 2011, Nicaragua’s representative, Carlos Argüello-Gomez, stated that the case of Nicaragua v. United States “was pending compliance and Nicaragua reserved the right to claim indemnification.” General Assembly Press Release, Presidents of International Criminal Court, International Court of Justice Present Annual Reports to General Assembly, UN Doc. GA/11163 (Oct. 26, 2011).

17 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Order, 1991 ICJ Rep. 47, 47-48 (Sept. 26). The order provides, in part:

Having regard to the Judgment delivered by the Court on 27 June 1986, by which it found (inter alia) that the United States of America was under an obligation to make reparation to the Republic of Nicaragua for all injury caused to Nicaragua by certain breaches of obligations under customary international law and treatylaw….

Whereas by a letter dated 12 September 1991 the Agent of Nicaragua informed the Court that his government had decided to renounce all further right of action based on the case and did not wish to go on with the proceedings, and requested that an Order be made officially recording the discontinuance of the proceedings and directing the removal of the case from the list;

Places on record the discontinuance by the Republic of Nicaragua of the proceedings instituted by the Application filed on 9 April 1984; and

Orders that the case be removed from the list.