By Peter Finn Washington Post Foreign Service Wednesday, June 27, 2001; 12:39 PM
BERLIN, June 27 - In a landmark decision, the International Court of Justice, the United Nations' highest judicial tribunal, ruled for the first time today that its provisional orders are binding on countries and the United States should have acted to postpone the execution of a German national until his case was considered by the world body.
Wading into two of the most emotional transatlantic issues, the death penalty in America and the U.S. willingness to bow to international bodies, the 15-member World Court effectively claimed some influence over the American legal system.
The 14-1 decision will delight opponents of capital punishment in Europe and infuriate American opponents of international organizations and treaties that appear to intrude on U.S. sovereignty.
It comes at a time when there is widespread disgust among European politicians with capital punishment in the U.S. and deep American suspicion about legal globalization, including, for instance, a proposed U.N. treaty to set up an international criminal court to prosecute war crimes.
Although the case at hand is limited to the consular rights of German nationals arrested for serious crimes in the United States, the effect of the decision could yet be much broader.
"I hope [the decision] sets a precedent in terms of the United States' application of international obligations," said Claudia Roth, leader of Germany's Greens Party, "and that all cases of non-Americans on death row will be reviewed."
The court said that in this particular case an established U.S. legal principle limiting appeals violated the country's responsibilities under an international treaty it signed.
"My reading is that there is an obligation on the U.S. to organize its criminal justice system to ensure there are no violations of international treaties," said Claus Kress, a senior researcher at the department of international criminal law at Cologne University.
The verdict is binding and not subject to appeal, however the World Court has no way to enforce compliance.
Exactly how U.S. courts will respond to any future order from the World Court remains to be seen. The U.S. Supreme Court in the case before the World Court had rejected an application by Germany for a stay of execution "given the tardiness of the pleas and the jurisdictional barriers they implicate."
On March 3, 1999, just hours before the scheduled execution in Arizona of Walter LaGrand, a German national whom Germany claimed was denied consular rights under the Vienna Convention, the World court issued an emergency order asking it to be halted. The court said, "the United States of America should take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings."
Interpreting the binding power of its orders for the first time, the World Court said today that its 1999 demand "was not a mere exhortation" but "created a legal obligation for the United States."
At the time, in a letter to the U.S. Supreme Court, the U.S. Solicitor General said "an order of the International Court of Justice indicating provisional measures is not binding." The U.S. Supreme Court by a majority vote refused to issue a stay of execution. And the World Court's request, forwarded without comment to the authorities in Arizona by the United States, was ignored by the governor there who allowed the execution of LaGrand to go forward.
The United States argued in November before the court, which sits in the Hague in the Netherlands, that "two central factors constrained the United States ability to act. The first was the extraordinarily short time between issuance of the Court's Order and the time set for the execution of Walter LaGrand.
"The second constraining factor was the character of the United States of America as a federal republic of divided powers."
The court rejected the U.S. arguments and said today its 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. . . . The Court finds that the United States did not discharge this obligation."
Kress noted that in 1980, when American hostages were held in Iran and the United States sought redress from the court, the United States argued that the court's emergency orders should be legally binding as a matter of principle.
"The arguments the U.S. made then are quite different to the one it advances now," said Kress.
The current case stemmed from the 1999 execution by gassing in Arizona of LaGrand, who along with his younger brother Karl, also a German national, was convicted of first degree murder following a 1982 bank robbery in Maran where a 63-year-old manager was murdered.
The two, who were born in 1962 and 1963, moved to the United States in 1967 but never became U.S. citizens. Just 27 hours before the execution of Walter LaGrand, Germany took the United States to court in the Hague, claiming the brothers had been denied representation by the German consulate that might have saved their lives. Karl LaGrand was executed before Germany filed its case with the World Court.
The court found today that the failure to inform the brothers of their right to consular services violated the 1963 Vienna Convention on Consular Relations - a position the United States had already acknowledged.
When the brothers became aware of their rights as German citizens, they were precluded from using it as a basis for appeal because of the doctrine of "procedural default" in American courts, the court noted.
The World Court today ruled that the doctrine of "procedural default" in the LaGrand case violated U.S. obligations under the Vienna Convention. The court suggested that in similar cases, "the United States, by means of its own choosing, shall allow the review and reconsideration of the conviction and sentence."
In arguments before the court last November, the U.S. said the LaGrand brothers had received a fair trial, including 15 years of appeals in various courts. The U.S. also argued that Germany was attempting to turn the World Court into a criminal appeals court.
But Germany, in unusually strong language, said it wants "nothing . . . more than compliance, or, at least, a system in place which does not automatically reproduce violation after violation of the Vienna Convention, only interrupted by the apologies of the United States Government."
The court noted, however, that the U.S. had now set up a department to deal with consular issues involving arrested foreign nationals.
German Foreign Ministry spokesman Andreas Michaelis said his government is "highly satisfied" with the decision.
"We welcome the fact that an issue of international law between Germany and the United States, two very close partner countries, has been resolved," he said.