- The Washington Times - Thursday, June 28, 2001

NEW YORK — The International Court of Justice yesterday criticized the state of Arizona for executing a German national in defiance of its wishes, insisting in its most explicit language that ICJ orders are binding on U.S. and other national courts.
American authorities were scrambling yesterday to understand the consequences. They could not say whether the judgment would open the United States to financial claims from Germany, or whether the ruling would have any material impact on the U.S. legal system.
"The case presented complex issues and the decision requires careful study," said State Department spokesman Philip Reeker.
"We are undertaking a close and careful review of it in its entirety."
The ICJ, also known as the World Court, had previously criticized the United States for breaching the Vienna Convention by failing to meet its obligation to notify a consulate when foreign nationals were charged with crimes.
In March 1999, Arizona executed Walter LaGrand, an indigent German national who with his brother was convicted of fatally stabbing a bank manager during a botched robbery in 1982.
At the request of Germany, the Hague-based World Court issued a provisional order — a sort of injunction — ordering Arizona not to execute him until it could make a final ruling on the matter. LaGrand was executed, as scheduled, the following day.
The court criticized the U.S. solicitor general and the governor of Arizona for treating its provisionary order as "mere exhortation."
Because the court can take more than two years to decide a case, these provisional orders are most often injunctions, intended to freeze the action until the court can rule.
"By failing to take all measures at its disposal to ensure that Walter LaGrand was not executed pending the [ICJ's] final decision … the United States breached the obligation incumbent upon it," the judges wrote in a majority opinion.
The ICJ hears disputes between nations. Its decisions are considered binding and can only be appealed through the U.N. Security Council. Yesterday's ruling essentially reinforced that.
"This is an interesting step forward in terms of the ICJ asserting itself," said Lee Casey, a former Justice Department lawyer and expert on international law.
"It shows that the court is being more assertive than it has been in the past, and given where we are in the development of international law and these new criminal courts, that's important."
Mr. Casey said the ICJ is clearly concerned that the U.S. government did not do enough to compel the state of Arizona to comply with its order. "But the federal government doesn't necessarily have the authority to do that."
In a previous case involving foreign nationals on death row, then-Secretary of State Madeleine K. Albright appealed to the Supreme Court to halt the execution of a Paraguayan rapist and murderer in Northern Virginia. The local jurisdiction proceeded with the execution as scheduled.
State Department officials have acknowledged that the Vienna Convention was violated in the LaGrand case, and say that a sweeping program is under way to educate state and local jurisdictions on consular notification.
"We think consular notification is important for Americans abroad and we take it very seriously," Mr. Reeker said yesterday. "We recognize that we have to provide consular notification to foreign nationals in the United States."
American lawyers argued at The Hague two years ago that the trial was fair and that the LaGrands had ample time — nearly 15 years — to run through appeals in four different courts.
Nor is Germany claiming its innocence.
Karl and Walter LaGrand were born in Germany but moved to the United States as toddlers. Their mother married an American serviceman, and they are said to have had no accent.
In 1982, the brothers panicked during a robbery and fatally stabbed the manager of a Tucson bank with a letter opener when he was unable to open the safe. A teller was also critically injured.
Karl LaGrand was executed in the Arizona gas chamber in February 1999. His brother, Walter, followed him two weeks later — one day after the German government petitioned the World Court to halt the execution.
"This state of affairs is of great significance," Gerhard Westdickenberg, Germany's legal representative, argued at the ICJ hearing two years ago. "Not just for Germans, but for all foreign nationals arrested in the United States."
The failure to notify foreign authorities "could have particularly tragic consequences in cases in which, like in ours, the death penalty may be imposed." he said.
The German government said yesterday that it knows of four more Germans facing the death penalty in the United States.
The ICJ ruling comes at a time when American allies, particularly in Europe, are increasingly protesting the use of the death penalty in the United States. The European Union has made the elimination of the death penalty a condition of membership.
Many Latin American countries and the Vatican also oppose the death penalty, and the American Bar Association has suggested a moratorium on executions until questions over its fairness can be addressed.
In his arguments two years ago, State Department lawyer James Thessin suggested the German suit was a ruse to "litigate the death penalty under the guise of a violation" of the Vienna Convention.
"We must not allow Germany to lead us into … restructuring the United States criminal justice system," he said.

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