Americans Increasingly Isolated on Death Penalty
By Reinhard Müller
FRANKFURT. The LaGrand case, which led to last week's decision by the International Court of Justice was not, in itself, unusual. The United States has frequently executed foreign citizens without advising them of their consular rights.
What was new in this case was Germany's refusal to be satisfied with an apology, and its decision to take the case to the The Hague.
It should be noted that the International Court of Justice, also known as the World Court, was dealing with infringement of the Vienna Agreement on consular relations. It was solely in this respect that the United States admitted infringing international law: The German complaint was not about the death penalty per se.
The death penalty, in fact, is not yet contrary to international law. States are bound by international law, which has not yet established a ban on the death penalty, despite widespread support in the international community for a prohibition on this punishment, especially in Europe. Here, states hoping to join the Council of Europe or the European Union must agree to abide by the (additional) sixth protocol of the European Human Rights Convention, which prohibits the death penalty.
The only countries in Europe "in contravention" are Russia and Turkey. Turkey, an early member of the Council of Europe, has not yet signed the additional protocol, while Russia has signed but not yet ratified. However -- and this is hugely significant -- neither state has executed anyone in years.
International courts -- in contrast to their predecessors, the Nuremberg and Tokyo military tribunals set up after World War II -- have also dispensed with the maximum penalty. The highest sentence the United Nations tribunals for Rwanda and the former Yugoslavia can impose is life imprisonment, and the planned International Criminal Court will also not be able to impose capital punishment.
That points to the will of the international community not to impose capital punishment even on those responsible for genocide. Two major democracies, however, have not joined that trend -- Japan and the United States. Japan is much less in the public eye on the issue because its execution process is carried out in great secrecy, with condemned prisoners often learning they are about to be executed only shortly before the event. In the United States, however, there is increasing debate about the death penalty.
Mostly it is sparked by moving individual cases, or especially dramatic ones, such as the recent execution of Timothy McVeigh, who bombed a federal building in Oklahoma City in 1995 and became the first prisoner in 38 years to be executed by the federal authorities. But there is also increasing attention on cases where a miscarriage of justice is feared.
Appeals to American politicians and the courts to intervene to stop executions are usually rejected on the -- mostly correct -- grounds that they are an internal matter. But change is becoming apparent in U.S. public opinion, after studies showing that serious legal errors had been made in up to 70 percent of capital cases. Last year, the governor of Illinois ordered a moratorium on executions until all death penalty cases can be reviewed.
Diplomatic intervention from abroad against the death penalty is also finding a greater echo than previously. It is nothing new for human rights organizations to demand that the United States stop executions (it happened again last week in Strasbourg at the first world congress against the death penalty), but the general secretary of the Council of Europe, which sponsored the congress, was able to tell delegates that there were indications Washington was finally taking these calls seriously.
At the congress, the presidents of the European Parliament, the parliamentary assembly of the Council of Europe, and a number of parliaments from around the world all called for an immediate worldwide moratorium on executions. The parliamentary assembly of the Council of Europe passed this demand on to the United States, which, like Japan, has observer status on the council. The appeal states that the death penalty is unworthy of a civilized country and, with a diplomatic reminder that observer states must meet European human rights standards, calls on the United States to begin concrete steps to abolish capital punishment by the year 2003. Otherwise, its observer status could be challenged.
The Americans are unlikely to be impressed, but it is noteworthy that debate over this important issue, long carried out at the moral or ideological level, is no longer confined to general appeals. Also striking is the lack of objective arguments in favor of the death penalty from the American side. Because a deterrent effect for capital punishment is difficult to discern, especially in the United States, proponents have increasingly fallen back on the archaic principle of "an eye for an eye, a tooth for a tooth."
Still, proof that justified criticism of the death penalty does not have to end in anti-Americanism was proved by one former inmate from Texas who sat on death row for 22 years.
In Strasbourg, he told delegates, "I love America, and I would give my life to protect my country."