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Consular Rights in the United States
On 27th June 2001, the International Court of Justice (ICJ)
issued a binding judgment in the LaGrand case (Germany v USA) in
which the Court ruled on the interpretation and application of rights conferred
under Article 36 of the Vienna Convention on Consular Relations (VCCR)
Karl and Walter LaGrand – Germany
Born in Augsburg, Germany, the LaGrand brothers were taken to the United States (US) as children in the 1960s by their German mother and American stepfather. The LaGrands were tried for the Jan 7, 1982 murder of Kenneth Hartsock, a bank manager. Hartsock's throat was slashed, and he suffered 23 other knife wounds.
Karl LaGrand was executed on 24 February 1999. Walter LaGrand was executed on March 3, 1999.
Germany had sought compulsory remedies from the ICJ for the failure of US authorities to inform German nationals Karl and Walter LaGrand of their consular rights following their 1982 arrest in Arizona on capital murder charges. The US admitted that the brothers were not advised of their right to consular assistance following their arrest. The German consulate was made aware of the case in 1992 -- a decade after the murder and eight years after the pair were convicted. The brothers themselves told the consulate after all domestic legal avenues had been exhausted .
The ICJ judgment, was sought under the VCCR Optional Protocol Concerning
the Compulsory Settlement of Disputes, which places disputes over the
application or interpretation of the VCCR under the compulsory jurisdiction
of the ICJ. Both the US and Germany have ratified the instrument without
reservation, making the judgment legally binding on both nations. In their
virtually unanimous decision, the ICJ rejected the salient arguments advanced
by the USA, and affirmed safeguards to the consular and due process rights
of all detained foreigners. The ICJ also established the binding nature
of its provisional measures orders (i.e. injunctions) when resolving treaty
disputes, a decision with major implications for any future cases brought
before it for a compulsory judgment
As the ICJ was interpreting the provisions of a multilateral treaty with over 160 nations party to the document, therefore, the ruling establishes the authoritative interpretation of the rights conferred under Article 36 for all nationalities and nations.
The ICJ determined that the United States had violated all central provisions of Article 36 of the VCCR, thus incurring obligations both to Germany and to its detained nationals. The key elements of the ruling squarely contradict the legal position adopted by US authorities in the domestic courts, as well as the per curiam decision of the US Supreme Court in Breard v Greene (523 US 371 {1998}).
In a 14-1 decision the ICJ held that:
- Article 36 creates specific rights for individual foreign nationals under international law. "Based on the text of these provisions, the Court concludes that Article 36, paragraph 1, creates individual rights, which, by virtue of Article I of the Optional Protocol, may be invoked in this Court by the national State of the detained person. These rights were violated in the present case...The Court cannot accept the argument of the United States which proceeds, in part, on the assumption that paragraph 2 of Article 36 applies only to the rights of the sending State and not also to those of the detained individual."
- Procedural default may not be applied to prevent the judicial consideration of the treaty violation in such cases. "The problem arises when the procedural default rule does not allow the detained individual to challenge a conviction and sentence by claiming, in reliance on Article 36, paragraph 1, of the Convention, that the competent national authorities failed to comply with their obligation to provide the requisite consular information "without delay", thus preventing the person from seeking and obtaining consular assistance from the sending State...Under these circumstances, the procedural default rule had the effect of preventing "full effect [from being] given to the purposes for which the rights accorded under this article are intended", and thus violated paragraph 2 of Article 36."
- No prejudice need be demonstrated. "A It is immaterial for the purposes of the present case whether the La Grands would have sought consular assistance from Germany, whether Germany would have rendered such assistance, or whether a different verdict would have been rendered. It is sufficient that the Convention conferred these rights, and that Germany and the La Grands were in effect prevented by the breach of the United States from exercising them, had they so chosen."
- The USA must provide review and reconsideration of convictions and sentences where Article 36 was violated. "The Court considers in this respect that if the United States...should fail in its obligation of consular notification to the detriment of German nationals, an apology would not suffice in cases where the individuals concerned have been subjected to prolonged detention or convicted and sentenced to severe penalties. In the case of such a conviction and sentence, it would be incumbent upon the United States to allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in the Convention."
By 13 votes to 2:
- Provisional orders of the ICJ are binding; the USA further violated its obligations by failing to act on the LaGrand order. "Thus, the Court has reached the conclusion that orders on provisional measures under Article 41 have binding effect... The review of the above steps taken by the authorities of the United States with regard to the Order of the International Court of Justice of 3 March 1999 indicates that the various competent United States authorities failed to take all the steps they could have taken to give effect to the Court's Order. The Order did not require the United States to exercise powers it did not have; but it did impose the obligation to "take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings . . .". The Court finds that the United States did not discharge this obligation."
The ICJ also determined unanimously that the current enhanced efforts by the US Department of State to improve domestic compliance with Article 36 "must be regarded as meeting Germany's request for a general assurance of non-repetition."
Germany had requested that the ICJ require the United States "to provide effective review of and remedies for criminal convictions impaired by the violation of the rights under Article 36", particularly in death penalty cases. However, the Court stopped short of specifying the nature of the remedies required. Instead, the Court held that the USA must provide "review and reconsideration" and that this obligation "can be carried out in various ways. The choice of means must be left to the United States." The Court declined to rule on Germany's contention that the rights conferred on individual nationals under Article 36 constitute a fundamental human right, noting that "having found that the United States violated the rights accorded by Article 36, paragraph 1, to the LaGrand brothers, it does not appear necessary to it to consider the additional argument developed by Germany in this regard."
Despite the binding and authoritative nature of the judgment and its obvious
domestic implications, the US government has not issued a formal comment
on the ruling and has not yet announced any measures that it will take to
comply with it.
The full text of the historic ruling and all of the related documents are available at:
http://www.icj-cij.org/icjwww/idocket/igus/igusframe.htm
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