| III. | The International Court of Justice |
| 3. | THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE |
| 3.8. | Duty of the Court to Seek Further Clarification |
¤
Military and Paramilitary Activities
(Nicaragua/United States of America)
Merits. J. 27.6.1986
I.C.J. Reports 1986, p. 14
[pp. 38-39] One of the Court's chief difficulties in the present
case has been the determination of the facts relevant to the dispute. First of
all, there is marked disagreement between the Parties not only on the
interpretation of the facts, but even on the existence or nature of at least
some of them. Secondly, the respondent State has not appeared during the present
merits phase of the proceedings, thus depriving the Court of the benefit of its
complete and fully argued statement regarding the facts. The Court's task was
therefore necessarily more difficult, and it has had to pay particular heed, as
said above, to the proper application of Article 53 of its Statute. Thirdly,
there is the secrecy in which some of the conduct attributed to one or other of
the Parties has been carried on. This makes it more difficult for the Court not
only to decide on the imputability of the facts, but also to establish what are
the facts. 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.
A further aspect of this case is that the conflict to which it relates has
continued and is continuing. It has therefore been necessary for the Court to
decide, for the purpose of its definition of the factual situation, what period
of time, beginning from the genesis of the dispute, should be taken into
consideration. The Court holds that general principles as to the judicial
process require that the facts on which its Judgment is based should be those
occurring up to the close of the oral proceedings on the merits of the case.
While the Court is of course very well aware, from reports in the international
press, of the developments in Central America since that date, it cannot, as
explained below (paragraphs 62 and 63), treat such reports as evidence, nor has
it had the benefit of the comments or argument of either of the Parties on such
reports.
