LaGrand case

From Wikipedia, the free encyclopedia

(Redirected from Case Concerning the Vienna Convention on Consular Relations (Germany v.
United States of America))

The LaGrand case[1] was a legal action heard before the International Court of Justice (ICJ)
which concerned the Vienna Convention on Consular Relations. In the case the ICJ found that its
own temporary court orders were legally binding and that the rights contained in the convention
could not be denied by the application of domestic legal procedures.

Background
On January 7, 1982, brothers Karl and Walter Bernhard LaGrand bungled an armed bank
robbery in Marana, Arizona, killing a man and severely injuring a woman in the process. They
were subsequently charged and convicted of murder and sentenced to death. The LaGrands were
German nationals, having been born in Germany and while they had both lived in the United
States since they were three, neither had acquired U.S. citizenship. As foreigners the LaGrands
should have been informed of their right to consular assistance, under the Vienna Convention,
from their state of nationality, Germany. However the United States authorities (the State of
Arizona) failed to do this even after they became aware that the LaGrands were German
nationals. The LaGrand brothers later contacted the German consulate of their own accord,
having learned of their right to consular assistance. They appealed their sentences and
convictions on the grounds that they were not informed of their right to consular assistance, and
that with consular assistance they might have been able to mount a better defense. The federal
courts rejected their argument on grounds of procedural default, which provides that issues
cannot be raised in federal court appeals unless they have first been raised in state courts.

Diplomatic efforts, including pleas by German ambassador Jürgen Chrobog and German
Member of Parliament Claudia Roth, and the recommendation of the Arizona's clemency board,
failed to sway Arizona Governor Jane Dee Hull, who insisted that the executions be carried
out.[2] Karl LaGrand was subsequently executed by the State of Arizona on February 24, 1999,
by lethal injection. Walter LaGrand was then executed March 3, 1999, by gas chamber[3].

The case

1
Germany then initiated legal action in the International Court of Justice against the United States
regarding Walter LaGrand. Hours before Walter LaGrand was due to be executed, Germany
applied for the Court to grant a provisional court order, requiring the United States to delay the
execution of Walter LaGrand, which the court granted.

Germany then initiated action in the U.S. Supreme Court for enforcement of the provisional
order. In its judgment,[4] the U.S. Supreme Court held that it lacked jurisdiction with respect to
Germany's complaint against Arizona due to the eleventh amendment of the U.S. constitution,
which prohibits federal courts from hearing lawsuits of foreign states against a U.S. state. With
respect to Germany's case against the United States, it held that the doctrine of procedural default
was not incompatible with the Vienna Convention, and that even if procedural default did
conflict with the Vienna Convention it had been overruled by later federal law—the
Antiterrorism and Effective Death Penalty Act of 1996, which explicitly legislated the doctrine
of procedural default. (Subsequent federal legislation overrides prior self-executing treaty
provisions, Whitney v. Robertson, 124 U.S. 190 (1888)).

The U.S. Solicitor-General sent a letter to the Supreme Court, as part of these proceedings,
arguing that provisional measures of the International Court of Justice are not legally binding.
The United States Department of State also conveyed the ICJ's provisional measure to the
Governor of Arizona without comment. The Arizona clemency board recommended a stay to the
governor, on the basis of the pending ICJ case; but the governor of Arizona ignored the
recommendation and Walter LaGrand was executed on March 3, 1999. As of 2009 this was the
last use of the gas chamber in the U.S.[dubious – discuss]

Germany then modified its complaint in the case before the ICJ, alleging furthermore that the
U.S. violated international law by failing to implement the provisional measures. In opposition to
the German submissions, the United States argued that the Vienna Convention did not grant
rights to individuals, only to states; that the convention was meant to be exercised subject to the
laws of each state party, which in the case of the United States meant subject to the doctrine of
procedural default; and that Germany was seeking to turn the ICJ into an international court of
criminal appeal.

ICJ decision
On June 27, 2001, the ICJ, rejecting all of the United States' arguments, ruled in favor of
Germany. The ICJ held that the Vienna Convention on Consular Relations of 24 April 1963
(Vienna Convention) granted rights to individuals on the basis of its plain meaning, and that
domestic laws could not limit the rights of the accused under the convention, but only specify the
means by which those rights were to be exercised. The ICJ also found that its own provisional
measures were legally binding. The nature of provisional measures has been a subject of great
dispute in international law;[citation needed] the English text of the Statute of the International Court
of Justice implies they are not binding, while the French text implies that they are. Faced with a
contradiction between two equally authentic texts of the statute, the court considered which
interpretation better served the objects and purposes of the statute, and hence found that they are
binding. This was the first time in the court's history it had ruled as such.

2
The court also found that the United States violated the Vienna Convention through its
application of procedural default. The court was at pains to point out that it was not passing
judgment on the doctrine itself, but only its application to cases involving the Vienna
Convention.

External links
 Judgements of the International Court of Justice
 Judgement of U.S. Supreme Court, Federal Republic of Germany vs. United States
 ASIL Insight article on LaGrand case
 Federal Republic of Germany v. United States, 526 U.S. 111 (1999) The opinion by the
Supreme Court in the matter referenced in the article.
 Stewart v. LaGrand, 526 U.S. 115 (1999) The Companion Case
 Breard v. Greene, 523 U.S. 317 (1997) The earlier case of the execution of a Paraguayan
on which the LaGrand decisions rest.

[edit] References
1. ^ Federal Republic of Germany v. United States, General List No. 104 (March 3 1999)
526 U.S. 111 (1999)
2. ^ Mark Shaffer, "No reprieve for German killer: International focus on Arizona case",
The Arizona Republic, p. 1A, February 24, 1999
3. ^ http://www.executedtoday.com/2008/03/03/1999-walter-lagrand/
4. ^ (Federal Republic of Germany et al. vs. United States et al., 526 U.S. 111, per curiam)

World Court Rules Against the United States in LaGrand Case Arising
from a Violation of the Vienna Convention on Consular Relations
By Frederic L. Kirgis
July 2001

http://www.asil.org/insigh75.cfm

On June 27, 2001, the International Court of Justice (the World Court) issued its
judgment on the merits of the LaGrand Case (Germany v. United States). Walter LaGrand
and his brother, German nationals living in the United States, were arrested in Arizona in
1982 on suspicion of armed robbery and murder. They were not informed of their rights
under the Vienna Convention on Consular Relations, a multilateral treaty to which both
Germany and the United States are parties. Article 36, paragraph (1)(b) of the Convention
provides:

3
 If he so requests, the competent authorities of the receiving State shall,
without delay, inform the consular post of the sending State if, within its consular
district, a national of that State is arrested or committed to prison or to custody
pending trial or is detained in any other manner. Any communication addressed to
the consular post by the person arrested, in prison, custody or detention shall also be
forwarded by the said authorities without delay. The said authorities shall inform the
person concerned without delay of his rights under this subparagraph.

The brothers were convicted in an Arizona court and sentenced to death. Their court-
appointed counsel at the trial did not raise the issue of non-compliance with the Vienna
Convention. Nor was it raised on appeal or in the ensuing post-conviction proceedings in
state courts. It was eventually raised in a federal habeas corpus petition, but the petition was
denied on the ground that the issue had not been properly raised in state court.

The German government raised the issue in February 1999, practically on the eve of
the scheduled execution of the two brothers. Before the German government filed the
proceeding against the United States in the World Court, Walter LaGrand's brother was
executed. The German government then filed the World Court proceeding on the day before
Walter LaGrand's scheduled execution, seeking a judgment on the merits against the United
States and requesting the Court to issue provisional measures of protection (like a
preliminary injunction) to ensure that Walter LaGrand not be executed pending the final
decision in the proceedings. The next day, the Court issued the provisional measures calling
on the United States to take all measures at its disposal to ensure that Walter LaGrand not be
executed during the proceedings, but he was executed later that day.

In its judgment on the merits on June 27, the World Court first held that it had
jurisdiction. It based its jurisdiction on Article I of the Optional Protocol attached to the
Vienna Convention, which gives the Court jurisdiction over disputes arising out of the
interpretation or application of the Convention.

On a non-jurisdictional point concerning admissibility of the proceedings, the Court

rejected a U.S. argument that the proceedings improperly asked the Court to "play the role of
ultimate court of appeal in national criminal proceedings." The Court said that Germany's
application simply asked it to apply the relevant rules of international law to the issues in
dispute between the parties, and not to act as a court of appeal.

One of Germany's submissions asserted that the United States had violated its
international legal obligation to comply with the order of provisional measures the Court had
issued. The United States argued that this submission was inadmissible because Germany
had waited until the very eve of Walter LaGrand's execution to seek the provisional measures
and thus had not given the United States an adequate opportunity to contest them or to
comply with them. The Court recognized that Germany could be criticized for waiting so
long, but given the irreparable prejudice that appeared to be imminent (the execution of
LaGrand), Germany was entitled to challenge the US failure to comply with the order. The
United States judge on the Court, Thomas Buergenthal, and two other judges dissented on
this point.

4
 On the merits, the Court first held that the United States had breached its obligations
to Germany under article 36, paragraphs (1)(a) and (c) of the Convention. Those paragraphs
give consular officers the right to communicate with nationals of the sending state and to
have access to them, and give consular officers the right to visit a national of the sending
state who is in prison, custody or detention. The Court also held that article 36, paragraph
(1)(b), quoted above, confers individual rights that may be invoked in the World Court by the
national state of the detained person-in this case, rights of the LaGrand brothers that could be
invoked by Germany. Several cases in US courts (not involving the LaGrands) had
considered whether article 36, paragraph (1)(b) conferred rights on individuals that could be
asserted in a domestic court. None of those cases squarely decided the issue. The World
Court ruling on this point would not automatically confer rights on individuals that could be
asserted in a US court. Nevertheless, a US court might consider it a persuasive interpretation
of paragraph (1)(b) that could tip the scales in favor of enforceable individual rights in a
future domestic case.

The Court also held that although the "procedural default" rule in US law that had
precluded habeas corpus relief does not in itself violate article 36 of the Vienna Convention,
under the circumstances of this case it did violate article 36, paragraph 1. The reason was
that it had deprived Germany of the possibility of giving timely assistance to the LaGrands.
Their court-appointed counsel had not raised in the state court proceedings the denial of their
right to communicate with their consulate, and the consulate was only made aware of the
case (by the LaGrands themselves) after the state court proceedings had ended. The Court
said that the combination of (a) the failure to notify the LaGrands of their right and (b) the
procedural default rule effectively prevented Germany, in a timely fashion, from retaining
private counsel for them and otherwise assisting in their defense.

The Court's next ruling dealt with the legal effect of an order of provisional measures
under article 41 of its own Statute. In several cases, the Court has issued provisional
measures without ever determining whether or not they are binding on the parties to the
proceedings. In this case, the Court for the first time made that determination. The Court
compared the English and French texts of article 41. That article authorizes the Court to
"indicate . . . provisional measures which ought to be taken to preserve the respective rights
of either party" ("indiquer . . . mesures conservatoires du droit de chacun doivent être prises à
titre provisoire"). The Court found the two versions not to be in total harmony. It then
considered the object and purpose of the Statute in the context of article 41. It found that the
object and purpose are to enable the Court to settle international disputes by binding
decisions. The context of article 41 is to prevent the Court from being hampered in the
exercise of its functions if the respective rights of the parties to the case are not preserved.
"It follows," the Court said, "that the power to indicate provisional measures entails that such
measures should be binding, inasmuch as the power in question is based on the necessity,
when the circumstances call for it, to safeguard, and to avoid prejudice to, the rights of the
parties as determined by the final judgment of the Court." Consequently, the order of
provisional measures created a legal obligation for the United States.

The Court acknowledged that the United States government had very little time in
which to comply with the provisional measures before the scheduled execution of Walter

5
LaGrand. Nonetheless, its mere transmission of the text of the Court's order to the Governor
of Arizona failed to comply with the obligation in the order to take all measures at its
disposal to ensure that he was not executed during the World Court proceedings. The Court
noted that it would have been open to the Supreme Court to grant a preliminary stay of
execution in order to give time to consider all the issues involved.

Germany's only remaining submission requested the Court to obtain US assurance

that the violation of Vienna Convention article 36, paragraph (1)(b) would not be repeated.
The United States had given a commitment to ensure implementation of measures to comply
with its obligations under that provision. The Court said that the US commitment satisfied
Germany's request. Significantly, though, the Court went on to hold that should German
nationals nonetheless be sentenced to severe penalties without their rights under Vienna
Convention article 36, paragraph (1)(b) having been respected, the United States by means of
its own choosing "shall allow the review and reconsideration of the conviction and sentence
by taking account of the violation of the rights set forth in that Convention." United States
courts until now have consistently declined to fashion such a remedy for violation of article
36, paragraph (1)(b). Strictly speaking, the Court's holding on this point applies only to
future cases involving German nationals in US courts, but the principle it represents could
apply to nationals of any foreign country, and might apply to less severe sentences than the
death penalty. The President of the Court, Judge Gilbert Guillaume, suggested as much in a
declaration appended to the judgment. It remains to be seen, however, whether courts in the
United States will now order retrials, or even rehearings on sentencing, in such cases.

The judgment in the LaGrand case is available on the World Court's web site,
<www.icj-cij.org>.

About the Author:

Frederic L. Kirgis is Law School Association Alumni Professor at Washington and Lee
University School of Law. He has written a book and several articles on United Nations law,
and is a member of the Board of Editors of the American Journal of International Law.

_________________________________________________________________________
ASIL Insights are intended to identify international law issues in order to provide a basis for
informed discussion of current events. They are not intended to be definitive, and they do not
necessarily reflect the views of all members of The American Society of International Law.
The Society itself takes no position on these issues.