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NICARAGUA VS UNITED STATES: READING MATERIAL (3 OF 3)

The following contains a list of scholarly articles and other material that complements the blog posts on discussions relating to use of force aspects in the Nicaragua case and customary law aspects of the Nicaragua case. If you would like to add to the list, please list your suggestions in the comment box.

*Indicates articles and other material that can be accessed without payment. 

*The judgment including separate opinions of individual judges and summaries of the judgment and orders.

*Nucaragua vs United States: Summary Diagram (Full diagram in PDF) for aspects relating to the use of force.

*The United States declaration on jurisdictional issues.

*Christenson, G. The World Court and Jus Cogens, AMJIL (1987). Christenson argues that  an independent development of the customary law right divorced from the treaty can have wider consequences:

We have then a double irony. The Court uses the United States position accepting the treaty norm against the threat or use of force also as a customary norm possibly having jus cogens quality, in part, to justify taking jurisdiction as a matter quite independent of the norm that otherwise falls under the multilateral treaty reservation. Since there are two separate sources of the law, the choice of the one source rather than the other means that the norm relied upon survives the jurisdictional bar to the use of the other. Yet the two norms are not different enough to undermine completely the content of the Charter norm. This formalism simply masks the more interesting question of the Court’s institutional claim, given the ineffectiveness of the UN Security system, to develop an international public order case by case, by breaking away form the strictures of the Charter and treaty norms. The Court untied the treaty norms from their constraints within the United Nations or regional collective security systems, a potentially destabilizing decision, one whose consequences are unforeseen.  The decision based on the validity of an autonomous norm of customary international law free from the Charter is a constitutive one of potential great significance (81 AMJIL 100, 1987).

*D’Amato, A. Trashing customary international law, AMJIL (1987). D’Amato discusses the paucity of State practice examined by the international court of justice before concluding that the principle non-intervention formed part of customary international law. He argues that General Assembly resolutions do not manifest opinio juris. He adds that the Court failed to consider that Article 2(4) continued to evolve through the years.

*Falk, R. The World Court’s Achievement, AMJIL (1987). Falk takes a generally positive approach to the judgment and gives a good overview of the case and Judge Shwebel’s dissent.

*Farer, T. Drawing the right line, AMJIL (1987). Farer takes a cold-war contextual approach to the judgment and supports the Court’s views on armed attack and self defence.

*Franck, T. Some observations on the ICJ’s procedural and substantive innovations, AMJIL (1987). Frank criticizes the Court’s elucidation of relevant State practice in relation to non-intervention, and its reliance on United Nations’ resolutions to illicit opinio juris. He argues that the Court sought to harden soft law prematurely. Frank points out that the interventions falling short of armed attacks would not allow States to target rebel groups in another State’s territory even if the insurgency is planned, trained, armed and directed from that territory.

*Glennon, M. Protecting the Court’s institutional interests: Why not the Marbury approach?  AMJIL (1987). Glennon discusses the Court’s prerogative to determine its own jurisdiction when faced with reservations.

*Gorden, E. Discretion to decline to exercise jurisdiction, AMJIL (1987). Gorden discusses the discretionary power of the court to decline to exercise its jurisdiction at the merit stages.

 *Hargrove, J. The Nicaragua judgment and the future of the law of force and self-defense, AMJIL (1987). Hargrove criticizes the Court’s construction of the notion of collective self defense, armed attack, and forcible countermeasures.

*Janis, M. Somber reflections on the compulsory jurisdiction of the international court, AMJIL (1987).

*Kirgis, F. Custom on a sliding scale, AMJIL (1987). Kirgis discusses the relationship between State practice and opinio juris and criticizes the methods (or lack thereof) of the Court in determining the customary law nature of Article 2(4) of the Charter. He points out that actual State practice on intervention did not support the Court’s findings.

*Briggs, H. The International Court lives unto its name, AMJIL (1987).

*Boyle, F. Determining US responsibility for contra operations under international law, AMJIL (1987).

Rijpkema, P.  Customary international law in the Nicaragua Case, Netherlands Yearbook of International Law (1989). Abstract: On 27 June 1986 the International Court of Justice passed judgment in the case concerning military and paramilitary activities in and against Nicaragua. Because of a reservation that the United States had made when it accepted the jurisdiction of the Court, the Court could not pronounce a decision regarding the dispute insofar as it concerned multilateral convertions. As a resuld of this, the Court was compelled to base its judgment largely on rules of customary international law and general principles of law. The rules of customary law which were relevant for the judgment corresponded to a significant extent, as regards their content, to the rules of treaty law which the Court was unable to apply, such as the prohibition on the use of force of Article 2, paragraph 4 of the Charter of the United Nations. This led the Court to indicate in precise terms how rules of treaty law and rules of customary law which have a corressponding content can co-exist and how the existence of rules of customary international law can be established in general. In addition, the Court examined in some detail the existence and content of certain specific rules of customary international law.)

*Teson, F. Le peuple, c’est moi!The world court and human rights, AMJIL (1987).

*See articles in the LJIL Symposium: Discussion of the ICJ Nicaragua Judgment (2012), links to some of which are posted below.

 Damrosch, L. The Impact of the Nicaragua Case on the Court and Its Role: Harmful, Helpful, or In Between? Abstract: At the time the United States withdrew from participation in the Nicaragua case at the International Court of Justice, the US government expressed concern that ‘the course on which the Court may now be embarked could do enormous harm to it as an institution and to the cause of international law’. This essay examines whether or to what extent the anticipated negative effects came to pass. It concludes that dire predictions of harm to the Court were overstated. Twenty-five years later, the rate at which states accept the Court’s jurisdiction has held steady. Only a few states have added jurisdictional reservations concerning military activities. The mix of cases being brought to the Court has shifted towards a more representative distribution. States are generally complying with the Court’s decisions, though some compliance problems remain. The most serious negative impact has been on the willingness of the United States (still the Court’s most active litigant) to participate fully in international dispute settlement.

Dugard, J. LJIL Symposium: The Nicaragua Case: Its Impact.

Damrosch, L. LJIL Symposium: Response of Lori F. Damrosch to Comments by John Dugard.

Kohen, M. The Principle of Non-Intervention 25 Years after the Nicaragua Judgment, Abstract: This article focuses on the analysis by the International Court of Justice of the principle of non-intervention in domestic affairs in its judgment of 27 June 1986 in the case concerning Military and Paramilitary Activities in and against Nicaragua and contrasts it with the evolution of international law and practice in this field. It is proposed that the Court’s 1986 analysis not only remains of actuality today, but also constitutes a precursor to legal developments that have since taken place. This is particularly the case with regard to the relationship between the protection of human rights on the one hand and the safeguard of state sovereignty and the collective security regime on the other. The 1986 judgment helped to clarify the content of humanitarian assistance. It constituted the starting point for the development of this concept in a series of GA resolutions that were subsequently adopted. The controversial doctrine of ‘humanitarian intervention’, as well as state practice in violation of this principle, in no way led to modifying existing international law. Similarly, the new concept of ‘responsibility to protect’, which places emphasis on collective security and discounts unilateral action, has not led to the disappearance of the principle of non-intervention either.

Nollkaemper, A. LJIL Symposium: From Nicaragua to R2P: Continuity and Change.

© Ruwanthika Gunaratne  at https://ruwanthikagunaratne.wordpress.com, 2008 – 2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner, and without attribution to the author, is strictly prohibited. Excerpts and links may be used, without authorization, provided that full and clear credit is given to Ruwanthika Gunaratne  with appropriate and specific direction to the original content.

Universal Jurisdiction: Notable Developments in 2015

A new publication on universal jurisdiction examines 37 cases relating to universal jurisdiction in which notable developments took place in 2014. It examines cases from Canada, Belgium, Senegal, South Africa, Argentina, France, Norway, Germany, Spain, Sweden, Switzerland and UK.

The findings in this report demonstrate that despite obstacles to the investigation and prosecution of serious crimes under international law, a significant practice has taken shape globally over the course of 2014. In the majority of the identified countries, civil society, victims and/or lawyers have been the driving force behind universal jurisdiction cases, while, in others, criminal justice authorities pro-actively seek to prevent their territory from being used as a safe haven by suspected perpetrators of international crimes. On the thirty-seven cases addressed in this report, progress was made in more than twelve cases, while in five other cases, individuals were found guilty of having participated in the 1994 genocide in Rwanda. In the twelve countries addressed, thirty-one cases are still ongoing, involving nineteen charges of genocide, fifteen charges of crimes against humanity and eight charges of war crimes.

The following are exerpts from the publication of cases of interest. See ‘Make Way for Justice: Universal Jurisdiction Annual Review 2015’ for more detailed content. 

Spain: On 13 March 2014, Spain adopted new legislation restricting its universal jurisdiction law. Henceforth, Spanish jurisdictions are competent to investigate genocide, crimes against humanity and war crimes in three cases: the suspect is a Spanish citizen; the suspect habitually resides in Spain; or the suspect is a foreigner, present on Spanish territory, whose extradition has been denied. These new requirements do not apply to crimes of terrorism, and crimes connected to such an offence.

Spain: Ongoing investigation in Spain against former Guatemalan officials for the alleged crimes of genocide, torture and extrajudicial killings committed in Guatemala during the internal armed conflict between 1960 and 1996. Judge Santiago Pedraz used the charges of terrorism to allow the investigation of connected crimes, such as genocide.

Spain: Closed proceedings against former Chinese officials for the alleged repression against the Tibetan population in the Tibet region, during the 1980s and 1990s. In June 2014, the Spanish National Court dismissed the case. It considered that under the new law of universal jurisdiction, Spanish courts did not have jurisdiction to investigate and judge the crimes committed, as the defendants were not Spanish, nor ordinarily resident in Spain, nor foreigners whose extradition had been denied by the Spanish authorities. On 18 September 2014 there was an appeal before the Spanish Supreme Court, based on the existence of terrorism charges (not concerned by the universal jurisdiction reform) and on the Spanish nationality of one of the victims of the alleged crimes.

South Africa: The case was launched against Zimbabwean officials for serious crimes under international law allegedly committed during the March 2007 election in Zimbabwe and the raid of the opposition party’s (MDC) headquarters by the state police. This is the first case in South Africa to be opened under South Africa’s Implementation of the Rome Statute of the International Criminal Court Act (ICC Act).

Senegal: An investigation was ongoing before the Extraordinary African Chambers (EAC) at the Senegalese courts against former Chadian President Hissene Habré . In February 2015, the four judges of the EAC ruled that there was sufficient evidence to send Hissène Habré to trial for crimes against humanity, war crimes, and torture. His trial is expected to start in 2015.

France:  Ongoing proceedings against French companies, including QOSMOS, and their management, for allegedly aiding and abetting crimes of torture committed in Syria since 2011. Proccedings against French company AMESYS and its management for allegedly aiding and abetting crimes of torture committed in Libya during the Muammar Gaddafi regime (from 1969 to 2011).

Argentina: Ongoing proceedings in Argentina for alleged serious crimes under international law committed in Paraguay during the Alfredo Stroessner dictatorship (1954-1989). A Truth and Reconciliation Commission established in Paraguay in 2003 identified various serious human rights violations committed by State agents during the dictatorship, including arbitrary detentions, torture and other cruel, inhumane or degrading treatment, enforced disappearances and extrajudicial killings.

Argentina: Ongoing proceedings in Argentina against former Spanish officials and other actors of the Franco dictatorship for alleged serious crimes under international law committed in Spain between 1936 and 1977.

Sweden: Closed proceedings for crimes of genocide committed during the 1994 genocide in Rwanda (first genocide trial in Sweden) also based on principle of nationality.

Spain: Ongoing investigation in Spain against three US soldiers for the alleged murder of José Couso, cameraman for the Spanish network Telecinco, during the Iraq war in 2003 also based on passive personality principle.

Interesting cases relating to immunity: 

UK:  Ongoing trial against a former Nepali official for serious crimes under international law allegedly committed in Nepal between 2005 and 2006, during the non-international armed conflict that tore the country apart. He claims to be entitled to immunity as he was acting on official duties in 2005. He argues that he currently enjoys immunity as a peacekeeper with the United Nations, and claims that he has already been convicted and punished in Nepal under the Nepalese Torture Compensation Act.

Switzerland: Ongoing proceedings against the former President of Chad for alleged serious crimes under international law, committed in Chad between 1982 and 1990. Khaled Nezzar’s appeal was rejected: the court considered that immunities cannot be invoked for international crimes.