Judging Nicaragua's public interest litigation in The Hague

Abstract

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.