Margaret Flowers and Carlos Arguello Gomez
Ambassador Carlos Arguello in the International Court of Justice in 2013. United Nations photo.
Margaret Flowers: Ambassador Carlos Arguello Gomez is a lawyer. He’s currently serving as Nicaragua’s ambassador to the Netherlands. Dr. Arguello has a long biography with many affiliations past and present. After the Sandinista revolution, from 1979 to 1980, you served as a legal counsel to the Junta that ruled during that period, and you’re currently a member of the International Law Commission of the United Nations. Thank you for taking time to speak with me today.
Ambassador Carlos Arguello: Thank you, Miss Flowers for inviting me to explain the situation and our interest in what is happening and our worry about what is happening.
MF: Let’s begin by talking about the Genocide Convention, what this means to Nicaragua and the actions that Nicaragua has taken and is taking to fulfill its obligations under that convention regarding the genocide occurring in Palestine.
ACA: Yes, we have taken two actions. One is to join the case brought by South Africa against Israel for genocide. We believe there is evidence that genocide is taking place. The other action, which we brought against Germany, is an independent action because the Genocide Convention and the conventions relative to the laws of war, humanitarian laws, are very clear that states have the obligation to prevent genocide and to prevent violations of humanitarian law. In this case, countries like Germany, in particular, are not preventing it. They are aiding and abetting what Israel is doing.
The case against Israel is limited to the genocide convention because it is the only Convention Israel recognizes that allowed bringing a case against it in the international court. The Genocide Convention is a very old convention. It’s one of the first of the human rights-oriented conventions from 1948. And it leaves a lot of loopholes. It was a convention that was created by colonial powers in special circumstances, so it doesn’t cover everything. For example, one of the things that surprised and angered me was after the case was brought against Israel, the main question in the media was “Is Israel really committing genocide?” And law professors and important people said that’s a difficult thing. Well, if it isn’t clear that genocide is happening, then nothing is happening. And that’s not the case.
Israel is violating every single possible humanitarian law: throwing one ton bombs in populated places, destroying hospitals, schools and everything, killing five percent of the population or affecting five percent of the population. Very seldom has that happened in modern history. The problem exclusively with the genocide convention is that it’s very limited.
In Palestine, there is not only the intent of Israeli authorities to destroy the people and get rid of them, genocide, but the other thing is that the Genocide Convention is a very particular convention that was approved 75 years ago immediately after the Second World War when a lot of things were happening and countries didn’t want to be very clear on certain issues. One issue that was not very clearly established was ethnic cleansing, that is getting rid of the population. Some considered that it was excluded from the convention. And that is why Israel, in 1948, began ethnic cleansing. It was the Nakba, the first ethnic cleansing of Palestine that happened immediately in 1948. And Israel said this was not genocide because ethnic cleansing is different.
Now, of course, the situation has gone beyond simply ethnic cleansing because all the massacres that are happening, everything, the intention is very clear. That is one issue and I want to separate them because the case against Germany is different in that we are not limited by only the convention because Germany accepts the jurisdiction of the international court for practically everything that we are claiming. We are claiming not only that Germany is not preventing genocide but that is not preventing the violations of humanitarian law, of all the laws of war, and since we have the jurisdiction, Germany has the obligation. Germany is the second provider of weapons to Israel.
What we are doing is reminding people of that obligation, that is incumbent on all states to prevent violations of law. In that respect, this small contribution by Nicaragua should be important. We cannot contribute in a physical way for the Palestinian people. Our steps in complying with the convention are to prevent what is happening. So our cases in the court, both the case against Germany and our intervention in the case against Israel brought by South Africa, are precisely based on the obligation Nicaragua feels to help preserve the Palestinian people.
MF: Many countries are a party to the genocide convention, but we don’t see many other countries taking the strong actions that Nicaragua is taking. Can you talk about why the Palestinian situation is so important to Nicaragua?
ACA: I think it is a question of humanity. From the time when we were under the Somoza dictatorship in the 1940s, 50s, 60s and 70s, we have always identified with the plight of the Palestinian people. We have always had a special affection for the Palestinians for what they have been suffering from this almost last colonization by the Western World. So that has always been in the conscience of Nicaragua. I should emphasize that in Nicaragua we have never had even a whiff of an idea of anti-Semitism. There have been Jewish people at all levels of society in Nicaragua living for hundreds of years. All the odium in Western Europe, not only in Germany, but in all Western Europe, against the Jewish people has never been suffered in Nicaragua. It’s not a question of loving one and hating the other but a question of simple humanity.
We are faced with a situation in which we sympathize absolutely with plight of the Palestinian people. We don’t feel that Israel is representing the Jewish people. Israel as a state is violating all the international laws and it is a shame for the Jewish people that this state, Israel, says that it’s representing the Jewish people. It can’t be true when it goes against everything that I have learned in my life. It can’t possibly be true that the Jewish people are standing for what is happening in Palestine. As I said at the beginning, we have enormous sympathy with the Palestinian people. What could we do to help them? We have some experience in litigation in the International Court of Justice. So we sought to bring our experience and to provide the Palestinian people with this, which is one of the very few things that we can do to help them. So that’s where we are at this moment.
MF: You personally have quite a bit of experience with cases before the International Court of Justice going back to the 1984 case against the United States, which I hope we can talk about in a few minutes. Germany’s arguing that they have a responsibility to Israel because of the Holocaust. Why is this argument not a sufficient defense of what they’re doing to provide political, financial and military support to Israel?
ACA: What Germany is doing in providing weapons and political cover for the Israeli government is hindering and creating the opposite of what Germany says they want. If they want to defend the Jewish people, in defending what Israel is doing right now, they are causing enormous prejudice to the Jewish people. Israel is trying to identify the genocide and multiple violations of humanitarian law that they’re committing as if it was the Jewish people that were doing it and that is not true. It is the state of Israel governed by Mr. Netanyahu that is doing that. That is an enormous difference and Germany should be perfectly aware of that.
During the case with Germany, we mentioned also that apart from this wish to atone for what happened in the 1940s with the Nazis, there are also a lot of less glorious interests. The military companies in Germany are making a lot of money. That has been in the news. There’s a lot of mutual interest. It’s not only that Germany sells weapons to Israel, Israel also sells military weapons to Germany. We mentioned that in late November of last year, two months after everything started, Israel sold $3.6 billion in weapons to Germany. So we’re talking about a big business operation. We have to look behind the scenes a little bit. It’s fine that many German people feel sympathy for the Jewish people. I absolutely honor that sentiment. But what is happening with the German government right now, is that helping the Jewish people? It’s quite the contrary that is happening. They are causing prejudice to the Jewish people by what is happening right now.
MF: Let’s talk a little bit about the legal process. If I understand correctly, Nicaragua informed Germany prior to this case that it was violating international law. Can you speak about that and then about the hearings that took place on April 8th and 9th?
ACA: Yes, of course. When South Africa brought the case against Israel, that was in the last part of December of last year. In the first days of January of this year, a few days after the case was brought, Germany was the first to speak out and said they were going to intervene in the case in favor of Israel against South Africa, defending Israel. There was no genocide happening.
After the International Court of Justice made an order in which they considered that genocide was possibly being committed in Palestine by Israel, that was on the 26th of January, we sent a note on the second of February to Germany telling them that if they continued to supply weapons and assistance to Israel, that was a violation of the Convention on Genocide and all the humanitarian laws and that if they continued, we will be bringing the case to the court. Germany simply accepted that we had sent the note. Then in a press conference, they denied everything that we said in our note. Obviously there is an evident conflict of opinion between Germany and Nicaragua. Germany thinks that what they are doing is correct in helping Israel, at least that’s what they say out loud. And we are saying that they are violating international law.
So after one month and everything continues as is, we presented a case against Germany for violating not only the Convention on Genocide but also all the rules and laws of war that also obligate Germany to help prevent violations. So the case was opened in the court. We also requested that the court order Germany to immediately stop particularly selling weapons or providing weapons because they not only sell, they have their own special arrangements providing all types of weapons to Israel, that Germany should stop that. So we had the hearing in the court on the 8th and 9th of April. We explained our position. Germany responded. And now we are waiting for the court to make a decision on this preliminary request that the court order until the case is heard and the judgment is delivered, which might take quite some time, that pending that final decision, the court should order Germany to immediately cease all its provision of weapons and materials to Israel. So we are waiting for that order from the court.
MF: So similar to the South Africa case, knowing that it takes years for the court to make a final ruling, there were calls for provisional measures. You are similarly asking the court to call for provisional measures against Germany to stop supplying weapons and also to fund the United Nations Relief and Works Agency and others. Israel has completely ignored the decisions of the Court. How do you think Germany will respond to the court’s preliminary decision?
ACA: That’s one of the considerations we had when bringing the case against Germany because naturally we have seen Israel, who feels completely invulnerable by the backing of the United States, simply ignoring the order of the Court. But a country like Germany, I think, will find it very difficult to ignore an order by the court. In normal circumstances it would be difficult, but in the present circumstances, especially with growing public opinion being more or less informed of what is happening and there is enormous opposition to what is happening in Palestine, including in Germany, I think it will be very difficult for Germany to ignore any order by the court. So we are optimistic because if the Court gives this order, I think it will send a very clear message to all the countries that are providing support for Israel. If that happens somehow, then perhaps our hope would be that what happened with the apartheid regime in South Africa when the world stopped helping the white population, dominant population, there everything really changed. So when support for Israel stops, then we have the hope that everything will change in that the people of Israel will realize that they have to live with their neighbors. And that finally some type of peace will result. At least that is the idea we have and what we feel we are aiming at even with our small efforts.
MF: I remember being in Palestine in 2019 and meeting with both Palestinians and Israelis who support the creation of one Democratic state of Palestine with equal rights for everyone. So this case can set a very important precedent that will send a message to other countries. There’s also a case going forward in Germany, a group of German lawyers on behalf of Palestinian families are suing Chancellor Olaf Scholtz and other political leaders in a federal case for aiding and abetting genocide. Do you think a decision by the International Court of Justice could have an impact on how that case goes forward in Germany.
ACA: Well I don’t really know the German courts but any judgment or any order by the international court is an obligation for states, so it has to be respected. I hope with the German Court, in the same way that what happened in The Netherlands, because The Netherlands was also participating in the supply of weapons to Israel, not as much as Germany, and the Appellate Court here in The Hague prohibited the government from doing that. They ordered the government to stop so The Netherlands stopped doing it.
That’s why originally we had also conditioned cases against The Netherlands, particularly as the seat of the international court and of the other courts in the world, we thought that The Netherlands should be giving an example. The internal court here in the Netherlands prohibited the government and the aid to Israel stopped. At the moment, we have no intention to go against The Netherlands while it is respecting that order. So hopefully something like that would happen in Germany. I don’t know the German laws, but naturally if the international court orders Germany to stop the supply of weapons that is an order that has to be obeyed. Like an order from the Security Council, it has to be obeyed by all states.
MF: I’d like to go back to the 1984 case that you were a part of against the United States for financing the Contras and also for mining in Nicaragua’s Harbor. Can you talk about that 1984 case? That was a successful case against the US.
ACA: It’s important to recall how the world was at that moment. I was recalling it recently because we were commemorating in Nicaragua the 40th anniversary of when we presented the case. We filed a case in the court on the 9th of April 1984. I recalled an element that in part motivated Nicaragua to go to the court. At that time, international law was not a subject that was often discussed in the press. I remembered the foreign minister of Nicaragua at that time, Father d’Escoto, commenting in late 1983 when the United States invaded the small island of Grenada with a population of under 100,000 people. The foreign minister commented afterwards that in most of the world press, especially the press in the United States, there were many comments about what was happening, but nobody really emphasized that that was a violation of international law.
The question of international law, obviously everybody knew it existed but it wasn’t something that was openly talked about. The International Court of Justice itself didn’t particularly have a lot of countries going to it at that time. So we decided to go with the court. It was simply to put on the international agenda the existence of laws in the world that are particularly important for small countries like Nicaragua. The superpowers can defend themselves but for smaller countries, international law is indispensable. It’s the only defense we have, the respect for law. So we decided at that moment in 1984 that the best way we could defend ourselves against what was happening was to go to the court. What the United States was doing was openly a violation of international law. Most of your listeners, I imagine are much younger than I am, will not remember but it was so impressive the way at that time that it was openly discussed in the United States and Congress how much money they were going to give to the Contra forces, the armed groups that were fighting against the government of Nicaragua. They were being trained, equipped and financed by the United States.
It was openly discussed in Congress and on TV. The mining of the Nicaraguan ports that you mentioned was so openly discussed that at one point when they asked President Reagan about the mining, he said, “Why are they complaining? They are very small mines.” The mines had already hit several ships from other countries. The United States was acting as if there was no international law involved, that the United States could do anything they wanted, and that was the importance of bringing the case to the court. The court decided that the United States was violating international law, that they should stop doing that and condemned the United States for these violations. They also condemned the United States to make reparations to Nicaragua for all the damages that had been caused.
MF: The United States never ended up paying those reparations. I think it was close to four billion dollars. The US was able to get out of that. Let’s talk about why Nicaragua did not take the United States to the ICJ in terms of being a number one supporter for what’s happening in Palestine. Can you talk about the differences in the United States’ obligations under the Genocide Convention and under international law?
ACA: In very simple terms, the United States does not accept the jurisdiction of the court. At this point in time, it is not possible to bring the United States to the International Court. When Nicaragua brought the United States to the court, the United States had an acceptance of the jurisdiction, but after the Nicaragua case, the United States withdrew their acceptance. They have withdrawn their acceptance of practically every single convention that could possibly bring them to the court. As a matter of historical record, the Genocide Convention was approved by the United Nations in 1948. The United States did not become a party to that convention until 40 years later, in 1988. So the United States was not a party to a convention that most of the countries of the world were parties to. When they became a party in 1988, it was with a lot of reservations. One of these was that they couldn’t be brought to the International Court. Another was that any qualification of what genocide is or if it was occurring had to be determined only by courts in the United States. Signing the convention was symbolic in the sense that it wasn’t an international obligation they were assuming.
If you read all the documents from that time, 1948, you see that the United States was one of the most important countries participating and deciding what the convention should say. After it was approved, even with everything that the United States wanted, the United States did not sign it. And that has been traditionally what the United States does. It happened with the Law of the Sea Convention. Everything was changed to try to please the United States and then finally, they did not ratify it. In the International Criminal Court, everything also was done according to please the United States, but the United States did not become a party. The United States is not a party really to any convention that could be brought against it so the only hope in the United States is the American people, that you should have recourse to your courts in the United States because that might bring some sense.
MF: There has been a case brought through the Center for Constitutional Rights against the US in the federal system on behalf of Palestinians regarding the U.S.’s complicity with Israel, but unfortunately, the federal court said it didn’t have jurisdiction in that. So that’s going through the process of being appealed here in the U.S.
The U.S. so often talks about the rule of law, but that basically comes down to the rule of law is whatever the U.S. says it is. The U.S. doesn’t have respect for really any of the international laws. Typically when the U. S. ratifies conventions, it includes measures that lessen the effectiveness of those conventions on the U.S. I spoke with a South African lawyer, Azhar Sakoor, around the time that the case was going forward of South Africa versus Israel in the International Court of Justice. He talked about this case as a real test of the international institutions and whether they were going to be effective in upholding international law and stopping these crimes. As a member of the International Law Commission of the United Nations, how do you see this current time in terms of international law, the state of it? What can be done to strengthen that and to hold violators accountable?
ACA: The International Court of Justice has done a great job on many occasions. One of them has been on the question of the Genocide Convention. Up until the case brought by Bosnia against Serbia that was decided by the court in 2007, it wasn’t very clear what the obligation to prevent genocide meant. In that case, which is a very lengthy opinion of the Court, according to many of the questions for genocide it defines very clearly the obligations of all countries. The court itself has helped and prepared the way for people to understand what the obligations of the Genocide Convention really mean. Now when this case is clearly before the court, I hope that the court is going to find for the decision of what South Africa is requesting. It is the only legal solution to this problem and it is the best solution possible. If that doesn’t happen, then for me, it would be a very sad event because for the Jewish people, for whom the Genocide Convention was mainly addressed in 1948, it will be very sad that the Genocide Convention because of the state of Israel became simply a wet paper and irrelevant under international law. Obviously, I hope that the court doesn’t allow that because then the court will have gone back on all the steps that the court has been taking, which have been very great and have advanced international law enormously.
MF: Can you talk about what people can be doing? I know on April 8th and 9th, there were Global Days of Action in support of Nicaragua’s case. There were protests held at German embassies and consulates across the United States and around the world. I know as a member of the International Coalition to Stop Genocide in Palestine, more actions are going to be held when the decision comes out. But what are other concrete things that people can be doing both in the United States and in other places to support Nicaragua’s case and to stop the genocide?
ACA: Frankly, what you are doing particularly in your case to mobilize public opinion in a different way from the official media in the United States and in other Western countries and other parts of the world in general that are controlled and unable to express everything. Fortunately there are media like yours that can bring the message to people. I think that’s extremely important and I don’t tire of reiterating one of the remarks I had 40 years ago when we brought the case against the United States and people would ask me, “Well, what can the court do if they find against the United States and the United States ignores it? What can the court do?” I used to quote and I think it’s relevant to quote again. It was a French jurist who posed that question years ago. What happens if a superpower doesn’t obey? Well then the only thing left is the mobilization of shame. That is what is happening in the world. People like yourself are precisely helping to mobilize shame. I think that’s the only thing we can do. We don’t have weapons of another nature. So I think that people can inform everybody about what’s happening. Let not anybody say I don’t even really know what’s happening. Then we should all be mobilizing against what is happening and contributing in any way we can.
MF: This is really an incredible time with mobilizations around the world in support of Palestine, and we’re so grateful for the work of Nicaragua to support the Palestinian people and to bravely take action. I understand that the the Senate Committee on Foreign Affairs just approved a bill for more sanctions on Nicaragua. So this is not something that you take lightly because there are repercussions for speaking out. But thank you so much for the work that you’re doing and for Nicaragua’s solidarity with Palestine.
ACA: Thank you very much for your interview and your interest in what I’m doing and what Nicaragua’s doing.
NOTE: This is an edited transcript of an interview with Nicaraguan Ambassador Carlos Arguello Gomez about Nicaragua’s efforts to stop the genocide in Palestine. You can listen to the full interview on Clearing the FOG here. – Margaret Flowers
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