- The Washington Times - Monday, August 6, 2001

News stories about murder, unfortunately, are hardly uncommon here in the United States. So it's understandable if the case of Karl and Walter LeGrand, executed in Arizona in 1999, went unnoticed by most Americans.
Others, however, were paying attention. And they have every intention of using this case to try and change U.S. law.
The LeGrands were convicted of killing a 63-year-old bank employee and seriously injuring one of his colleagues during a 1982 bank robbery. They spent the next 15 years going through our arduous due-process system — designed, of course, to ensure a person's guilt before execution.
It was an unremarkable example of America's criminal justice system at work until the International Court of Justice (the chief judicial body of the United Nations) intervened.
Why did the ICJ get involved? Because the men happened to be born in Germany.
Under the Vienna Convention on Consular Affairs (to which the United States and Germany are parties), foreign nationals are entitled to contact their consulate at the time of their arrest. When the LeGrands finally learned of their rights under the Convention in 1992, they contacted the German Consulate, which then sought to stay the executions and retry the LeGrands.
These appeals were rebuffed. After Karl was executed on Feb. 24, 1999, Germany brought the case before the ICJ, which issued "preliminary measures" — the ICJ equivalent of a preliminary injunction — the day before Walter was executed.
But, as the German government and the ICJ know, the U.S. government cannot order a state to halt an execution unless the U.S. Constitution has been violated. The United States is a federal republic that clearly differentiates between state and federal powers. Besides, the Supreme Court had previously rejected appeals that have been based on violations of the Vienna Convention. Nevertheless, on June 27, the ICJ found the United States guilty of violating the Vienna Convention.
U.S. officials admit the LeGrands weren't informed of their right to contact German officials, and they have apologized to the German government.
This was the right thing to do; the Vienna Convention is an important treaty, and we must respect it if we expect other nations to allow Americans the right to contact their consulate when they are arrested in foreign nations.
But let's keep matters in perspective. The LeGrands came to this country as small children and grew up in the United States. They acted and spoke like native-born Americans, and Arizona police officers had no reason to suspect they had foreign citizenship. The United States was in technical violation of the Convention, but there was no willful intent to violate it. Moreover, the German government did not dispute the LeGrands' guilt. On the contrary, their guilt was apparent and confirmed throughout 15 years of appeals.
So why did Germany pursue the case in the ICJ? Simple. The suit was filed because Germany, like most European governments, opposes the death penalty.
In the words of Claudia Roth, leader of the German Greens Party, "I hope [it] sets a precedent … and that all cases of non-Americans on death row will be reviewed."
The ICJ raised the ante when it insisted its act of issuing preliminary measures "was not a mere exhortation" but "created a legal obligation for the United States." This was a gross overextension of the court's authority. It is not a criminal court of appeal. It has no authority to issue binding injunctions, under either the U.N. Charter or its own founding statute. Attempting to seize this power places the United States and the ICJ in a contest the court will not win.
An impartial system of international law, based on the principle of national sovereignty, is more than desirable; it's necessary. Unfortunately, politics have increasingly replaced impartiality and the law in international court cases.
In pursuing an overt political agenda — using the ICJ to attack the death penalty in the United States — the court merely undermines its own credibility.
When the bodies that interpret and implement international law, such as the ICJ, allow themselves to be motivated by or molded to suit ideological purposes, they cheapen the ideal of justice, undermine the rule of law, and tempt others to adhere to their rulings only when it's convenient. Unless they want to keep being ignored, they should put justice over politics.

Brett Schaefer is the Jay Kingham fellow in international regulatory affairs at the Heritage Foundation.

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