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Germany sues U.S. in World Court over Arizona executions
WASHINGTON (CNN) -- Last year, the state of Arizona executed Karl and Walter LaGrand, German nationals and half-brothers, for murdering a bank manager during a botched bank-robbery attempt in 1982.
Germany, which opposes the death penalty, lobbied hard to block the executions, telling the Clinton administration and Arizona authorities the LaGrand brothers were not notified of their right under an international treaty to contact German consular officials soon after their arrest.
Under the 1963 Vienna Convention of Consular Relations, law enforcement authorities must promptly tell arrested people born in other countries they can contact the consulates of their home countries for assistance with legal and other matters. Some 160 countries have adopted the treaty; the U.S. ratified the pact in 1969.
Arizona went ahead with the executions though the U.S. State Department now admits state officials did not tell the LaGrands of their Vienna Convention right. International law scholars say state and local authorities in the U.S. routinely violate the treaty either because they do not know about the treaty or do not think they must comply.
Germany, not satisfied with the admission, sued the U.S. at the International Court of Justice in The Hague, The Netherlands, alleging that its longtime ally must make reparations to Germany for violating the treaty in the LaGrand brothers' case. The ICJ, also known as the World Court, will hear oral arguments in Germany v. United States November 13-17.
Germany also seeks a formal ICJ judgment finding the U.S. guilty, and assurances from the U.S. that Germans arrested in the future will be notified of their Vienna treaty rights, according to documents filed by Germany and posted on the ICJ's World Wide Web site.
Because of the State Department has admitted error, the question of culpability is moot, according to Mark Warren, a specialist on the Vienna treaty for Amnesty International, an international human-rights group.
Instead the court is being asked to decide penalties the U.S. should incur in this case and how future violations must be dealt with, he said.
"Since the USA frequently brings cases before the ICJ for binding judgments, it would be extraordinary indeed if the USA were not to comply with the final decision of the court in this case," Warren, based in Ottawa, Canada, said in an email interview.
"Under no circumstances can the USA reject or ignore a binding decision of the ICJ," Warren said. "To do so would put it in the company of rogue nations like Libya and Iraq."
The U.S. Department of State and Germany, through its Washington embassy, refused comment on the specifics of the case citing pending litigation.
However, State Department spokesman Richard Boucher said in a statement the U.S. "has acknowledged to the German government that Arizona authorities did not comply with the Vienna Convention requirement" in this case.
"This is the only respect in which the convention was violated," Boucher added. "Moreover, we are persuaded that failure to ask the LaGrands the question (about their nationality) did not affect the outcome of the case."
Citizens of other countries in U.S. prisons
Some 100-150 Germans being held in U.S. prisons have been apprised of their right to consular-contact, according to a German embassy spokesman in Washington who did not want to be named because of a customary embassy policy mandating anonymity. Among those are two other German brothers awaiting execution in Arizona.
Thousands of inmates born in other countries are in U.S. prisons for a variety of crimes, said William Aceves, a professor at California Western School of Law who has written extensively on the Vienna Convention. About 75-100 of them are on death row, he added.
He and other researchers say U.S. authorities have told almost none of the convicts from other countries of their rights under the Vienna Convention, which was designed to protect the rights of people arrested overseas.
"If you don't understand the language, the culture, the legal system, how can you understand your legal rights?" Aceves said.
Article 36 of the treaty requires law enforcement authorities to notify people born in other countries who are arrested in the U.S. "without delay" so that they can contact the nearest consulate, ICJ documents show.
Death penalty cases where the prisoners have not been told of their treaty rights particularly raise the ire of countries like Germany, which consider the death penalty barbaric and "not consonant with civilization," said Helmut Sonnenfeldt, a Brookings Institution scholar and a former international-policy official in the Nixon and Ford administrations.
However, he predicted that the ICJ case will not damage relations between Germany and the U.S., close allies since the end of World War II.
Enforcement problem in the United States
Germany's lawsuit brings to light a dilemma facing the United States involving the so-called federalism doctrine of divided, limited government, according to several law professors.
The federal government is struggling with how to compel states to follow an international treaty when they can claim sovereignty under the U.S. Constitution, said John Quigley, an international law professor at the Ohio State University law school.
Article VI of the U.S. Constitution says any treaty the U.S. ratifies is the law of the land, he said.
Yet, states argue they are sovereign entities under the Constitution with the absolute right to prosecute anyone who breaks state law under state procedures, several scholars said.
Quigley said the State Department's position is that it cannot compel states to follow the treaty and states do not have a "legal duty to reverse a conviction."
Though the federal government can sue an individual state to block the execution of inmates deprived of their treaty rights, the U.S. government has not done so, he said.
In the case of future treaty violations with regards to Germans in the U.S., Germany could seek sanctions and other penalties against the U.S. from the United Nations Security Council, according to Quigley and Warren.
The LaGrand saga
The LaGrands were born in Germany but raised in southern Arizona, according Pati Urias, spokeswoman for the Arizona attorney general's office. Their mother was German and their stepfathers were U.S. servicemen, she said.
Convicted in 1984 of killing bank manager Kenneth Hartsock, the LaGrands were sentenced to death, she said.
Urias said they identified themselves as U.S. citizens on booking documents when they were arrested, adding that the state now believes they had German and U.S. citizenship.
"The interesting thing about the LaGrand brothers was that they didn't speak German," Urias said. "There was no reason for the police at the time to assume that they had any other citizenship."
Arizona proceeded with the executions despite high-level intervention from Germany, including pleas from Chancellor Gerhard Schroeder. The Germans also failed in their bid to persuade the U.S. Supreme Court to intervene in the matter, according to the German embassy in Washington.
Karl LaGrand, 35, died by lethal injection in February. Walter LaGrand, 37, who chose the gas chamber, was executed in March, according to a summary of Germany's complaint on the ICJ's Web site.
Germany learned about the LaGrands only in 1992 -- 10 years after they were arrested -- and then, too, from the brothers themselves, not the state of Arizona, according to the ICJ.
But Germany, in filings with the ICJ, contends that the state attorney general revealed last year that Arizona had known since 1982 that the LaGrands were German citizens.
The World Court issued an injunction ordering Walter LaGrand's life spared after Germany, disappointed that it could not prevent Karl LaGrand's execution, sought an injunction from the tribunal in The Hague, according to the German Embassy.
But Arizona Gov. Jane Hull ignored the court order, saying she would allow the execution "in the interest of justice and with the victims in mind."
Germany sued the U.S. soon after both brothers were executed. The Germans filed legal papers by a court-imposed September 1999 deadline and the Americans met their deadline of March 2000, ICJ documents show.
The Paraguay lawsuit
The LaGrand case marks only the second time a Vienna Convention dispute between two nations has reached the ICJ, Aceves said. The first case also involved the U.S.; Paraguay sued in 1998 to block Angel Brerard's execution in Virginia, he said.
Brerard, convicted of murder and attempted rape, unsuccessfully appealed to the U.S. Supreme Court seeking a stay of execution until the ICJ could rule on the case. The Supreme Court's April 14, 1998, ruling seemed to suggest that ICJ decisions might not be binding on the U.S., Aceves said.
"If the governor (of Virginia) wishes for the wait for the decision of the ICJ, that is his prerogative," the court wrote. "But nothing in our existing case law allows us to make that choice for him."
Virginia executed Brerard hours after the Supreme Court ruling.
Paraguay dropped its ICJ lawsuit after the U.S. apologized to Paraguay, a move that raised eyebrows in the international community, Quigley said.
Mexico has also accused the U.S. of violating the Vienna Convention rights of its citizens. Miguel Angel Flores, scheduled to die later this month in Texas for rape and murder, has a pending appeal at the Supreme Court.
State Department efforts to promote compliance
Boucher said the Clinton administration "has expanded its consular notification and outreach programs" among federal, state and local officials and judges.
He said the State Department is also publishing booklets about the treaty and handing out "pocket cards" that officers could carry at all times.
Quigley said the agency also sends letters to state attorneys general about the treaty.
Linda Bishai, a Towson University political scientist, said California earlier this year became the first state to pass a law requiring all officers to inform arrested people from other countries about their rights under the treaty.
U.S. Secretary of State Madeleine Albright has told states compliance is crucial and in the country's best interest.
"Ensuring worldwide respect for the consular notification requirements of the VCCR and for international law generally is a major responsibility and concern for me," she wrote Texas officials in 1998 in a case involving a Canadian who was later executed.
"We must be prepared to accord other countries the same scrupulous observance of consular notification requirements that we expect them to accord the United States and its citizens abroad," she said. "We cannot have a double standard."
German executed in Arizona, legal challenge fails
The Champion - National Association of Criminal Defense Lawyers
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