Abstract
In Nicaragua v. United States, the Court had to address claims requiring it to sort through an enormous mass of factual elements, many of which were contested by the disputing parties. The Court’s task was further complicated by the very nature of the dispute arising from an ongoing armed conflict and by the respondent State’s decision not to appear during the merits phase of the proceedings, thus depriving the Court of the benefit of its complete and fully argued statement regarding the facts. This chapter identifies the most critical evidentiary issues in the case, examines how the Court dealt with them, and shows that the guidelines the Court developed on how to treat and evaluate evidence have become a model followed in subsequent cases involving contested and complex facts.
Paul Reichler was part of the legal team representing the Republic of Nicaragua in the following cases: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America); Territorial and Maritime Dispute (Nicaragua v. Colombia); Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua); Certain Activities carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica); Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia (Nicaragua v. Colombia); Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia); Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua) and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua). Yuri Parkhomenko was part of the legal team representing the Republic of Nicaragua in the following cases: Territorial and Maritime Dispute (Nicaragua v. Colombia); Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua); Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia (Nicaragua v. Colombia); Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia); Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua) and Land Boundary in the Northern Part of Isla Portillos (Costa Rica v. Nicaragua). The views and opinions expressed in this Chapter are those of the authors and do not necessarily reflect the views and opinions of the Republic of Nicaragua.
This is a preview of subscription content, log in via an institution.
Buying options
Tax calculation will be finalised at checkout
Purchases are for personal use only
Learn about institutional subscriptionsNotes
- 1.
See e.g. Riddell and Plant (2009), p. 187 (observing that ‘the trend for a clearer articulation of evidentiary assessment [by the ICJ] can be seen as having its roots in the Nicaragua case. […] Many aspects of the Court’s general approach to the assessment of evidence […] were articulated clearly for the first time in this judgment’).
- 2.
- 3.
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, para 57 (hereinafter ‘Nicaragua v. United States (Merits)’).
- 4.
Ibid.
- 5.
Ibid. (as the Court explained: ‘Sometimes there is no question, in the sense that it does not appear to be disputed, that an act was done, but there are conflicting reports, or a lack of evidence, as to who did it. The problem is then not the legal process of imputing the act to a particular State for the purpose of establishing responsibility, but the prior process of tracing material proof of the identity of the perpetrator. The occurrence of the act itself may however have been shrouded in secrecy. In the latter case, the Court has had to endeavour first to establish what actually happened, before entering on the next stage of considering whether the act (if proven) was imputable to the State to which it has been attributed.’).
- 6.
Ibid. According to the Court, the failure of the United States to appear in the merits phase of the proceedings resulted in two specific disadvantages: (1) evidence presented by Nicaragua was not tested by cross examination (although the Court noted that it subjected those witnesses to ‘extensive questioning from the bench’), and (2) the United States failed to present any witnesses of its own. Ibid., para 67. Nevertheless, the Court acknowledged its need to ‘strike a balance’ in handling the non-appearance of the United States. It stated: ‘On the one hand, it is valuable for the Court to know the views of both parties in whatever form those views may have been expressed… On the other hand, the Court has to emphasize that the equality of the parties to the dispute must remain the basic principle for the Court. The intention of Article 53 was that in a case of non-appearance neither party should be placed at a disadvantage; therefore the party which declines to appear cannot be permitted to profit from its absence, since this would amount to place the party appearing at a disadvantage.’ Ibid., para 31.
- 7.
Ibid., para 64. This guideline was applied to statements made by, inter alia, President Reagan, US Secretary of State Shultz, and Nicaraguan President Ortega. See, e.g., ibid., paras 83, 128, 131, 144–151.
- 8.
Ibid., para 70.
- 9.
See e.g. Lee v. U.S., 343 US 747 (1952).
- 10.
Nicaragua v. United States (Merits), para 69.
- 11.
Ibid., para 68.
- 12.
Ibid.
- 13.
Ibid.
- 14.
Ibid., para 62.
- 15.
Ibid.
- 16.
Ibid., para 63.
- 17.
Ibid., paras 78, 80, 83, 86, 121, 128, 131.
- 18.
Ibid., paras 110, 115.
- 19.
Ibid., para 115.
- 20.
Ibid., paras 228, 242.
- 21.
Ibid., paras 126–127.
- 22.
Ibid., para 230 (stating that ‘[e]ven at a time when the arms flow was at its peak, and against assuming the participation of the Nicaraguan government, that would not constitute an armed attack’).
- 23.
Ibid., paras 195, 199.
- 24.
Ibid., para 134 (‘[Question:] In your opinion, if the Government of Nicaragua was sending arms to rebels in El Salvador, could it do so without detection by United States intelligence-gathering capabilities? [Answer:] In any significant manner over this long period of time I do not believe they could have done so’).
- 25.
Ibid., para 156.
- 26.
Ibid., para 57.
- 27.
Ibid., para 73.
- 28.
Dissenting Opinion of Judge Schwebel in Nicaragua v. United States (Merits), para 12.
- 29.
Highet (1987) (observing that ‘the Nicaragua case will probably be recalled… as representing at least the following new developments: a decisive and controversial victory of a small power over a great power; an unprecedented withdrawal from proceedings, to the subsequent regret of the withdrawing party; one of the first considerations by the Court of armed conflict, and surely the first when that conflict, to one degree or another, was continuing; the pronouncement of a controversial precedent on the use of force, intervention and the right of collective self-defense in response to armed attack; and, for the first time, treatment by the Court of such a complex set of facts presented as foundation for a decision, and moreover, their substantially unilateral treatment, in the absence of the defending party, and with the Court itself operating as a “counter-advocate” under the strictures and requirements of Article 53’).
- 30.
Schwebel (2012), pp. 102–105.
- 31.
- 32.
See Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ Reports 2005, p. 168 (hereinafter ‘DRC v. Uganda (Judgment)’); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Merits, Judgment, ICJ Reports 2007, p. 43 (hereinafter ‘Bosnia v. Serbia (Merits)’); Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, ICJ Reports 2015, p. 3 (hereinafter ‘Croatia v. Serbia (Merits)’).
- 33.
DRC v. Uganda (Judgment), para 61; Croatia v. Serbia (Merits), para 197.
- 34.
DRC v. Uganda (Judgment), para 78.
- 35.
Ibid., para 65; Bosnia v. Serbia (Merits), para 213.
- 36.
DRC v. Uganda (Judgment), para 65. For the decisions of other international courts adopting the same approach, see e.g. El-Masri v. the Former Yugoslav Republic of Macedonia, Grand Chamber, ECHR Application No. 39630/09, Judgment, 13 December 2012, para 163; Chiragov and Others v. Armenia, Grand Chamber, ECHR Application No. 13216/05, Judgment, 16 June 2015, para 177 (The ECtHR, citing to Nicaragua v. United States, stated that it ‘will, in principle, treat with caution statements given by government ministers or other high officials, since they would tend to be in favour of the government that they represent or represented. However, statements from high-ranking officials, even former ministers and officials, who have played a central role in the dispute in question are of particular evidentiary value when they acknowledge facts or conduct that place the authorities in an unfavourable light. They may then be construed as a form of admission’).
- 37.
DRC v. Uganda (Judgment), para 68; Croatia v. Serbia (Merits), para 239.
- 38.
Croatia v. Serbia (Merits), para 344. See also SGS Société Générale de Surveillance S.A. v. Republic of the Philippines, ICSID Case No. ARB/02/6, Order of the Tribunal on Further Proceedings, 17 December 2007, para 17 (citing the Nicaragua case when stating that ‘an isolated press report’ can ‘only be treated as background information and not at all as proof of its contents’).
- 39.
Ibid.
- 40.
Ibid.
- 41.
Nearly identical situation was also before the ICJ in the Oil Platforms case. There, the United States contended that Iran attacked a tanker, submitting as evidence several public sources that blamed Iran for the attack. The Court, citing to Nicaragua v. United States, gave to those materials no probative value because they had ‘no indication of what was the original source, or sources, or evidence’ on which those public sources relied. Oil Platforms (Islamic Republic of Iran v. United States of America), Merits, Judgment, ICJ Reports 2003, p. 161, para 60 (hereinafter ‘Oil Platforms (Merits)’).
- 42.
DRC v. Uganda (Judgment), para 68.
- 43.
Ibid., para 61. In the Genocide cases, the Court similarly observed that the fact-finding process of the ICTY falls within the category of ‘evidence obtained by examination of persons directly involved,’ tested by cross-examination, the credibility of which has not been challenged subsequently. The Court thus relied on documentation arising from the ICTY’s processes, including indictments by the Prosecutor. Croatia v. Serbia (Merits), paras 182, 469 (stating that the Court ‘should in principle accept as highly persuasive relevant findings of facts made by the Tribunal at trial, unless of course they have been upset on appeal. That should lead the Court, in the present case, to give the greatest weight to factual findings by the Trial Chamber which were not reversed by the Appeals Chamber.’ As regards the probative value of the ICTY Prosecutor’s decisions not to include a charge of genocide in an indictment, the Court stated that ‘as a general proposition the inclusion of charges in an indictment cannot be given weight. What may however be significant is the decision of the Prosecutor, either initially or in an amendment to an indictment, not to include or to exclude a charge of genocide.’ Croatia v. Serbia (Merits), para 184, citing Bosnia v. Serbia (Merits), para 217.
- 44.
DRC v. Uganda (Judgment), para 182. The Court clarified that it took into consideration evidence contained in certain United Nations documents ‘to the extent that they are of probative value and are corroborated, if necessary, by other credible sources.’ Ibid., para 205.
- 45.
Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment, ICJ Reports 2007, pp. 731–732, para 244 (hereinafter ‘Nicaragua v. Honduras (Judgment)’).
- 46.
Nicaragua v. Honduras (Judgment), para 245. For the same reason, in the Oil Platforms case the Court also decided not to rely on the witness testimony of a Kuwaiti military officer, which was submitted by the United States to prove its contention that Iran had attacked a tanker. As the Court explained, that testimony ‘was given ten years after the reported events; and the officer does not state that he observed the launch of the missile (and the alleged firing point was too remote for this to have been possible), nor that he saw the missile strike the [tanker], but merely that he saw a missile passing “overhead”, and that that vessel was struck by a missile “minutes later”’) Oil Platforms (Merits), p. 161, para 58.
- 47.
Ibid. In Bangladesh/Myanmar, the International Tribunal for the Law of the Sea followed the same approach in regard to affidavits from fishermen, concluding that they did ‘not constitute evidence as to the existence of an agreed boundary in the territorial sea,’ because they ‘merely represent[ed] the opinions of private individuals regarding certain events’ Dispute concerning delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), ITLOS Judgment, 14 March 2012, paras 113, 115 (hereinafter ‘Bangladesh/Myanmar (Judgment)’).
- 48.
Ibid., citing to Nicaragua v. United States, para 68.
- 49.
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Merits, Judgment, ICJ Reports 2015, paras 82–83.
- 50.
Ibid., paras 82–83, 114. See also Bangladesh/Myanmar (Judgment), paras 114, 115 (ITLOS gave no probative value to ‘the affidavits from the naval officers,’ observing that ‘they are from officials who may have an interest in the outcome of the proceedings’).
References
Amerasinghe CF (2005) Evidence in international litigation. Brill/Nijhoff, Leiden
Crawford J, Pellet A (2008) Anglo Saxon and continental approaches to pleading before the ICJ. In: Buffard I, Crawford J, Pellet A, Wittich S (eds) International law between universalism and fragmentation. Brill/Nijhoff, Leiden
Highet K (1987) Evidence, the court, and the Nicaragua case. AJIL 81(1):1–56
Kolb R (2013) The international court of justice. Hart, Oxford
Riddell A, Plant B (2009) Evidence before the international court of justice. British Institute of International and Comparative Law, London
Rosenne S (2006) The law and practice of the international court 1920–2005, vol III. Martinus Nijhoff, Leiden
Schwebel SM (2012) Celebrating a fraud on the court. AJIL 106(1):102
Thirlway H (2013) The law and procedure of the international court of justice: fifty years of jurisprudence. Oxford University Press, Oxford
Tomka HEP, Proulx V-J (2015) The evidentiary practice of the world court. In: Juan Carlos Sainz-Borgo (ed) Liber Amicorum Gudmundur Eiriksson. University for Peace Press, San José, 2016, Forthcoming in 2017. Available at SSRN: https://ssrn.com/abstract=2693558
Valencia-Ospina E (1999) Evidence before the international court of justice. International Law Forum du droit international 1(4)
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2018 Springer International Publishing AG
About this chapter
Cite this chapter
Reichler, P.S., Parkhomenko, Y.B. (2018). Nicaragua v. United States and Matters of Evidence Before the International Court of Justice. In: Sobenes Obregon, E., Samson, B. (eds) Nicaragua Before the International Court of Justice. Springer, Cham. https://doi.org/10.1007/978-3-319-62962-9_3
Download citation
DOI: https://doi.org/10.1007/978-3-319-62962-9_3
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-62961-2
Online ISBN: 978-3-319-62962-9
eBook Packages: Law and CriminologyLaw and Criminology (R0)