2000/3R
International Court Cour internationale
of Justice de Justice
THHEAGUE LAAYE
YEAR 2000
Public sitting
held on Thursday 16 November 2000, at 10 a.m., at the Peace Palace,
President Guillaume presiding
in the LaGrand Case
(Germany v. United States of America)
_______________
VERBATIM RECORD
_______________
ANNÉE 2000
Audience publique
tenue le jeudi 16 novembre 2000, à 10 heures, au Palais de la Paix,
sous la présidence de M. Guillaume, président
en l'affaire LaGrand
(Allemagne c. Etats Unis d'Amérique)
____________
COMPTE RENDU
____________ - 2 -
Present: Presidntuillaume
Vice-Presdheint
Oda Judges
Bedjaoui
Ranjeva
Herczegh
Fleischhauer
Koroma
Vereshchetin
Higgins
Parra-Aranguren
Kooijmans
Rezek
Al-Khasawneh
Buergenthal
Coeugstruarr
⎯⎯⎯⎯⎯⎯ - 3 -
Présents : M. Guillaume,président
viceSré,.ident
OMdaM.
Bedjaoui
Ranjeva
Herczegh
Fleischhauer
Koroma
Vereshchetin
HMigmes
PaMra-.Aranguren
Kooijmans
Rezek
Al-Khasawneh
Buejrgensthal,
Cgoefferr,
⎯⎯⎯⎯⎯⎯ - 4 -
The Government of the Federal Republic of Germany is represented by:
Mr. Gerhard Westdickenberg, Director General for Legal Affairs and Legal Adviser, Federal
Foreign Office,
H.E. Mr. Eberhard U. B. von Puttkamer, Ambassador of the Federal Republic of Germany to the
Kingdom of the Netherlands,
as Agents;
Mr. Bruno Simma, Professor of Public International Law at the University of Munich,
as Co-Agent and Counsel;
Mr.Pierre-MarieDupuy, Professor of Public In ternational Law at the University of Paris
(Panthéon-Assas) and at the European University Institute in Florence,
Mr. Donald Francis Donovan, Debevoise & Plimpton, New York,
Mr. Hans-Peter Kaul, Head of the Public International Law Division, Federal Foreign Office,
Dr. Daniel Khan, University of Munich,
Dr. Andreas Paulus, University of Munich,
as Counsel;
Dr. Eberhard Desch, Federal Ministry of Justice,
Dr. S. Johannes Trommer, Embassy of the Federal Republic of Germany in the Netherlands,
Mr. Andreas Götze, Federal Foreign Office,
as Adviser;
Ms Fiona Sneddon,
as Assistant.
The Government of the United States of America is represented by:
Mr. James H. Thessin, Acting Legal Adviser, United States Department of State,
as Agent;
Ms Catherine W. Brown, Assistant Legal Adviser for Consular Affairs, United States Department
of State, - 5 -
Le Gouvernement de la République fédérale d'Allemagne est representé par :
M. Gerhard Westdickenberg, directeur général d es affaires juridiques et conseiller juridique du
ministère fédéral des affaires étrangères,
S. Exc. M. Eberhard U. B. von Puttkamer, ambassadeur de la République fédérale d’Allemagne
auprès du Royaume des Pays-Bas,
comme agents;
M. Bruno Simma, professeur de droit international public à l’Université de Munich,
comme coagent et conseil;
M.Pierre-Marie Dupuy, professeur de droit inte rnational public à l’Université de Paris
(Panthéon-Assas) et à l’Institut universitaire européen, Florence,
M. Donald Francis Donovan, du cabinet Debevoise & Plimpton, New York,
M.Hans-Peter Kaul, chef de la division du dr oit international public du ministère fédéral des
affaires étrangères,
M. Daniel Khan, de l’Université de Munich,
M. Andreas Paulus, de l’Université de Munich,
comme conseils;
M. Eberhard Desch, du ministère fédéral de la justice,
M. S. Johannes Trommer, de l’ambassade de la République fédérale d’Allemagne aux Pays-Bas,
M. Andreas Götze, du ministère fédéral des affaires étrangères,
comme conseillers;
Mme Fiona Sneddon,
comme assistante.
Le Gouvernement des Etats Unis d'Amérique est representé par :
M.James H. Thessin, conseiller juridique par intérim du département d’Etat des Etats-Unis
d’Amérique,
coagment;
Mme Catherine W. Brown, conseiller juridique ad joint chargé des affaires consulaires au
département d’Etat des Etats-Unis d’Amérique, - 6 -
Mr. D. Stephen Mathias, Assistant Legal Adviser for United Nations Affairs, United States
Department of State,
as Deputy Agents;
The Honourable Janet Napolitano, Attorney-General, State of Arizona,
Professor Michael J. Matheson, Professor of Intern ational Law, School of Advanced International
Studies, Johns Hopkins University; former Acti ng Legal Adviser, United States Department of
State,
Professor Theodor Meron, Counsellor on Internationa l Law, United States Department of State;
CharlesL. Denison Professor of International La w, New York University; Associate Member
of the Institute of International Law,
Professor Stefan Trechsel, Professor of Criminal Law and Procedure, University of Zurich Faculty
of Law,
as Counsel and Advocates;
Professor Shabtai Rosenne, Member of the Israel Ba r; Honorary Member of the American Society
of International Law; Member of the Institute of International Law,
Ms Norma B. Martens, Assistant Attorney-General, State of Arizona,
Mr. Paul J. McMurdie, Assistant Attorney-General, State of Arizona,
Mr. Robert J. Erickson, Principal Deputy Chief, Appellate Section, Criminal Division, United
States Department of Justice,
Mr. Allen S. Weiner, Counsellor for Legal Affairs, Embassy of the United States of America in the
Netherlands,
Ms Jessica R. Holmes, Attaché, Office of the C ounsellor for Legal Affairs, Embassy of the United
States of America in the Netherlands,
as Counsel. - 7 -
M. D. Stephen Mathias, conseiller juridique adjoint chargé des questions concernant les
Nations Unies au département d’Etat des Etats-Unis d’Amérique,
comme agents adjoints;
L’honorable Janet Napolitano, Attorney-General de l’Etat de l’Arizona,
M.Michael J. Matheson, professeur de droit international à la School of Advanced International
Studies de la Johns Hopkins University, ancien conseiller juridique par intérim du département
d’Etat des Etats-Unis d’Amérique,
M. Theodor Meron, conseiller chargé des questions de droit international au département d’Etat des
Etats-Unis d’Amérique, titulaire de la chaire Charles L. Denison de droit international à la
New York University, membre associé de l’Institut de droit international,
M.Stefan Trechsel, professeur de droit pénal et de procédure pénale à la faculté de droit de
l’Université de Zurich,
comme conseils et avocats;
M.Shabtai Rosenne, membre du barreau israélien, membre honoraire de l’ American Society of
International Law, membre de l’Institut de droit international,
Mme Norma B. Martens, Attorney-General adjoint de l’Etat de l’Arizona,
M. Paul J. McMurdie, Attorney-General adjoint de l’Etat de l’Arizona,
M. Robert J. Erickson, chef principal adjoint à la section des recours de la division du droit pénal
du département de la justice des Etats-Unis d’Amérique,
M. Allen S. Weiner, conseiller aux affaires juridiques à l’ambassade des Etats-Unis aux Pays-Bas,
Mme Jessica R. Holmes, attachée au cabinet du conseiller aux affaires juridiques à l’ambassade des
Etats-Unis aux Pays-Bas,
comconseils. - 8 -
Le PRESIDENT : Veuillez vous asseoir. La séance est ouverte. Nous commençons
aujourd'hui le deuxième tour de plaidoiries dans l'affaire LaGrand (Allemagne c.Etats-Unis
d’Amérique) et je vais tout de suite donner la pa role à l'agent de la République fédérale
d'Allemagne, M. Westdickenberg.
Mr. WESTDICKENBERG:
I. OPENING REMARKS
Mr. President, distinguished Members of the Court,
1. This is the World Court. The eyes not only of our governments, of the scholars in
academia are on these proceedings, but also of our c itizens, of our public in general. However,
Tuesday our United States friends somehow seemed to underestimate the authority of the Court, its
eminent role in international law. They obviously tried
⎯ an approach that relied on carrying the German arguments to the extreme so as to scare you,
distinguished Judges, with a walk to the bri nk offering a glimpse into the abyss of legal
extravagance;
⎯ an approach that relied on exagge rations of German arguments as if we wanted to lead the
Court onto the slippery slope of law-making as opposed to interpreting it;
⎯ an approach that asserted facts and positions that did not correspond to what we had said.
2. Let me touch upon some of these leitmotifs that could be heard from the overture to the
finale and which ⎯ to stay in this philharmonic vein ⎯ had too many da capos and wrong notes.
Their first movement: Germany would want you to rewrite the Vienna Convention.
Far from it. Germany sees the Court as the "gua rdian of the Convention" and wants you to uphold
it in letter and spirit. In Article36, paragraph 1, the Convention states the obligations of States
parties to inform foreign nationals about their i ndividual right of consular assistance and all we
want is to state that this obligation was violated by the United States. In Article36, paragraph2,
the Convention states that all States parties to th e Convention have to give the provisions of the
Convention "full effect". All we are asking is to state that this obligation is rendered impossible by
the procedural default rule in the United States and that the United States see to it that "full effect" - 9 -
be given to the provisions of the Convention. Abiding by the provisions of the Convention is not a
favour granted to foreign nationals or their se nding States; it is a legal obligation stemming
directly from the application of the Vienna Convention.
Their second movement: Germany would ⎯by asking the United States to give full
effect ⎯ meddle with US domestic legislation. Far from it. Germany has shown that it is the very
principle of procedural default that in cases like th is one systematically leads to the violations of
the Vienna Convention. All Germany is asking you as the "guardian of the Convention" is to
oblige the United States to provide effective review of and remedies for criminal convictions
impaired by it. How the United States is fulfilling that obligation ⎯ an obligation, I hasten to say,
stemming from the Vienna Convention, thus international law ⎯we are neither venturing to
prescribe nor asking the Court to do so. We want to stick to the principle which I underlined
already in my introductory statement: we ar e dealing with international law in this
Court ⎯nothing more, but also nothing less! After all, it is the UnitedStates that signed the
Vienna Convention and thus took on the obligation to abide by its provisions. Whatever changes
are required to its domestic legal system is a matter of the signatory State. To remind it of that
obligation through a decision of this Court is not me ddling with domestic legislation, it is just in
line with the Optional Protocol I to the Vienna C onvention to deal with "disputes arising out of the
interpretation or application of the conven tion". I wonder how one could compare the
implementation of exactly that task with using: "the Optional Protocol as a vacuum cleaner" ⎯ an
expression coined by Professor Meron. On the ot her hand, isn't the United States using a "mixer"
to continue with this metaphor of household appliances: mixing things up that by their very nature
are separate?
The US's third movement: Germany would misuse the Vienna Convention in its
campaign to abolish the death penalty. Far from it. Yes, Germany advocates the abolition of the
death penalty, but this is not our intention befo re this Court. What more could we do than
stress ⎯as I already did in my introductory statement on Monday ⎯that "this case is not on the
death penalty in general or its application in any particular country!" However, we are dealing with
what this Court designated in its annals as the "LaGrand Case" and it just so happens that ⎯ sad
and regrettable as it is ⎯ the death penalty and execution of th e LaGrand brothers are inseparably - 10 -
intertwined with the subject-matter of this case. Germany wants the Vienna Convention abided by
in its very letter and spirit ⎯ just the opposite I would think from what any dictionary or law book
would describe as "misuse".
Their fourth movement: Germany wants to lure the Court into a role where it would
act as an appellate criminal court. Far from it. We want the Court to act in the very capacity
foreseen by the Optional ProtocolI ⎯namely, to decide disputes arising out of the Vienna
Convention, and not as an appellate Court.
Their fifth ⎯ and staying in line with this classical symphony ⎯and last movement:
Germany would apply double standards: asking the United States to live up to standards
Germany is not able or willing to abide by. Far from it. As we will show Germany in its law
and practice is in full compliance with the sta ndards we expect from the United States. Let me
unequivocally state: whatever the ruling of this Court may be, Germany will abide by its letter and
spirit. And I invite the Court to take us at our word! Thus, for example, if there were a decision by
a German court that were impaired by a violati on of the Vienna Convention, naturally there is a
remedy foreseen in German procedural law; we do not have to create it to fulfil obligations from
the Vienna Convention: Section 337, paragraph2, of the German Code of Criminal Procedure
foresees a ground of appeal if a legal norm ⎯including a norm of international law ⎯ is not
applied at all or is incorrectly applied and if there is the possibility ⎯no direct causation
required ⎯ that the decision was impaired by this fact . A similar provision in US law would have
made it possible for the LaGrand brothers to raise the violation of the Vienna Convention before
US federal courts.
3. I would like to take up a line of argument ation that was put forward by Professor Trechsel
on Tuesday, namely a systematic intention to oppose human rights to commitments made by States.
He turned every single human right into a "funda mental right" which is simply restated in
international conventions. This seems to me an "objectivist", if not simply a "natural law" concept
of human rights which on face value sounds genero us, but which in reality does not correspond to
the reality of positive law. Human rights flow, in the first place, from international conventions
voluntarily concluded between sovereign States. On e therefore cannot create an artificial contrast
between State obligations laid down in conventions and human rights. - 11 -
4. Let me also address four points ⎯ only four exemplary ones for reasons of time ⎯ in the
US pleading on Tuesday that clearly misrepresent German positions or assertions. I regret that I
have to use your time on this, but for the record I di d not want to let this stand without correction,
lest I am accused of ceding these points.
First, Germany has not asked for absolute guarantees that mistaken violations of the
Vienna Convention do not occur. We are not asking the impossible: we know that human errors
occur and will occur again. However, we also thought that we had not to exclude the obvious. For
those who are in need of explan ation: we ask for assurances that the United States will redress the
still prevailing situation of a consistent and wi despread neglect of the Vienna Convention by
United States law enforcement agencies ⎯ a situation acknowledged by the stepped-up US efforts
to publicize those obligations under the Vienna Co nvention, a situation that, however, is not yet
redressed as we have shown by the number of viol ations of the Vienna Convention exactly since
those efforts were stepped up.
Second, Germany has not asked for an automatic nullification of impaired decisions ⎯
as Professor Trechsel implied Tuesday afternoon. It seems sufficient to refer to
Professor Simma's pleading on Monday: all we ask fo r is the provision of effective review of and
remedies for criminal convictions.
Third, Germany did not limit its demands on death penalty cases, but did emphasize
these cases because of their irreversible nature.
Fourth, Germany did not ask the United States to do that what it simply cannot do due
to its federal system. Let me ask you, Mr. President and distinguished Members of the Court: Do
we learn here of a new principle of international law ⎯ namely, that a federal constitution lets a
State opt out of its treaty obligations?
5. Mr. President, distinguished Members of the Court, I had almost forgotten to briefly take
up two points which the Respondent brought up in documents submitted to us on 13November
respectively on 14November2000 and which do not serve the purpose they obviously are
supposed to, namely to discredit German prepare dness in general as far as consular assistance is
concerned : - 12 -
⎯ First, the affidavit (document No.1 of 13 November 2000), dated 2 November 2000, by
Mr. Villareal, a former defence attorney of Mr. Michael Apelt, a German national sentenced to
death together with his brother for murder in the State of Arizona. In the affidavit Mr. Villareal
claims that the German Government was not in terested in getting involved before all legal
remedies were exhauste d and that the financial assistance sought was refused by the German
Government. Let me officially represent here ⎯ after having enquired with the responsible
officer of the German Federal Foreign Office in Berlin ⎯ that, together, the German Federal
Government and the Government of a German Land have so far in the course of the still
ongoing appeal proceedings in the case Apelt disbursed more than DM100,000 for projects
assisting the Apelt brothers' defence, in partic ular concerning research for mitigating evidence
in Germany on their youth.
⎯ Secondly, as far as the letter (document No. 1 of 14 November 2000) of the German Consul to
Mr.Richard Bozich, a former private investigator for Karl LaGrand, of 17March1993 is
concerned, let it suffice to say that the Consul's question of in how far the German nationality
"is crucial for the defence strategy" of Karl LaGrand is easily explained by the fact that
Mr.Bozich was not the defence counsel respons ible for defence strategy, but simply the
investigator. In addition: at this moment na tionality could only play a role in so far as a
possible political intervention is concerned ⎯ against the background that in that case of the
Apelt brothers the question of violation of Article36 of the Vienna Convention was never
raised; in so far as the question aims at a political intervention and does not express doubt
about the necessity of assisting a German national.
6. Concluding my opening remarks in the secondround, let me again state our main
arguments which stay unchanged because Tuesday's pleading by the United States gives us no
reason to change its main thrust ⎯ as ably as our friends on the side of the Respondent argued their
case.
⎯ We have come to you, Mr.President and distin guished Members of the Court, to obtain your
decision clarifying important principles of international law arising out of the Vienna
Convention and of the Statute and Rules of this Court, as far as the binding quality of your
Orders on provisional measures is concerned. - 13 -
⎯ We have seen the LaGrand brothers deprived of their rights under Article36 of the Vienna
Convention because they were only informed about their rights on consular protection by the
US authorities more than 16years after their a rrest and because they were deprived of the
possibility of raising this violation of their right by the principle of procedural default. US
authorities, whose acknowledged fault it was that the LaGrands were informed too late, turn
this against them, saying that they could have only raised the matter earlier.
⎯ Similarly, as far as the Order is concerned, United States authorities disregarded what the Court
asked them to do, but rather preferred to continue on a path it had previously chosen ⎯ the
execution, as if after more than 17 years after the arrest a stay of execution for days or months
were impossible: as if the short time between Order and execution ⎯ the three hours referred
to repeatedly on Tuesday ⎯ were an immutable law of physics and could not be extended: it
was at the discretion of the Governor of Arizona to do so, but also other authorities at the
federal level could have acted! International law ⎯ that means the Statute and Rules of this
Court ⎯ and respect to this highest judicial orga n of the United Nations, the International
Court of Justice, demand that decisions of the Court are not rendered meaningless by actions of
one party prior to that final decision.
⎯ Even though the origins of this case trace ba ck to the LaGrand brothers who were executed
more than a year ago, we attach great signifi cance to your ruling as far as German nationals in
the United States, but also as far as citizens abroad from all countries party to the Vienna
Convention are concerned. For the Vienna Conve ntion on Consular Relations is an important
pillar for the protection of foreigners abroad.
Germany, trusting in this Court, confidently awaits your decision, to which it attaches the
greatest significance and by which it will abide faithfully.
Mr.President, distinguished Members of the Court, I thank you for your attention and ask
you to call on Professor Bruno Simma to continue the German pleading. Thank you.
The PRESIDENT: Thank you very much, Mr. Westdickenberg. Je donne maintenant la
parole au professeur Bruno Simma. - 14 -
Mr.SIMMA: Merci, Monsieur le président. Thank you, Mr. President, for giving me the
floor this morning.
II. URISDICTION AND ADMISSIBILITY
1. Let me first address the issue of jurisdic tion and admissibility. On Tuesday, counsel for
the United States recalled, as Germany had already done on Monday, that the jurisdiction of this
Court is always a limited one. There is also ag reement between the parties that our case finds its
jurisdictional basis solely in ArticleI of the Optio nal Protocol. This provision covers "[d]isputes
arising out of the interpretation or applicati on of [this very] Convention". Everything else ⎯ and
here again we cannot but agree with the US Agent 1 ⎯ is outside the jurisdiction of the Court.
What does undeniably remain, however, is a dis pute concerning the correct understanding of the
scope of this jurisdictional clause.
2. Contrary to the announcement made by the Agent of the United States, it was not only
ProfessorMeron who dealt with questions of the co mpetence of this Court. Rather, the issues of
jurisdiction and admissibility went like a red thread throughout the whole US presentation and
sometimes appeared at unexpected places, that is, among questions clearly belonging to the merits
of our case. This fact and the rather light-ha nded manner in which statements with potentially
far-reaching consequences were sometimes made does not facilitate our task this morning. Let me
by way of example refer to Mr. Thessin's statement according to which the case "has been resolved
by the United States apology and appropriate as surances of non-repetition, making the case in that
sense moot". Mr. President, if one party has aske d for certain remedies and the other party is only
willing to concede, or has already offered, less, th is is certainly a core question of the merits, and
has nothing ⎯ I repeat, nothing ⎯ to do with "mootness" in the technical sense, or in any other
possible sense.
3. The central allegation of Professor Meron w as, as our Agent has already mentioned, that
Germany used the "Optional Protocol [as a] giant vacuum cleaner which sweeps up every
allegation of fact or law, whether or not it has an ything to do with the interpretation or application
1
CR 2000/28, para. 1.5. - 15 -
of the Convention, however remote and howev er weak the evidence and its basis in law" 2.
Mr. President, this statement not only distorts our submissions but also reveals an understanding of
the scope of the Optional Protocol's jurisdictiona l clause which is far too narrow and thus entirely
untenable.
4. In this regard, ProfessorMeron's invitati on to look at page1209 of ProfessorRosenne's
3
magnum opus was very helpful indeed. The leading case cited there on our issue is this Court's
Judgment in the Ambatielos case in which we read:
"The Court must determine . . . whether the arguments advanced by the Hellenic
Government in respect of the treaty provisions on which the Ambatielos claim is said
to be based, are of a sufficiently plausible character to warrant a conclusion that the
claim is based on the Treaty. It is not enough for the claimant Government to
establish a remote connection between the f acts of the claim and the Treaty of 1886.
On the other hand, it is not necessary for th at Government to show, for the present
purposes, that an alleged treaty violation has an unassailable legal basis . . .
[I]f it is made to appear that the Hellenic Government is relying upon an
arguable construction of the Treaty, that is to say, a construction which can be
defended, whether or not it ultimately prev ails, then there are reasonable grounds for
concluding that its claim is based on the Treaty."
5. We submit ⎯ and I hope we have made this sufficiently clear, both in our Memorial and
in our oral presentation ⎯ that the German reading of Article 36 of the Vienna Convention and the
consequences arising out of its violations is based on "an arguable construction of the treaty" ⎯ to
use the terms of the Ambatielos finding. Nothing more is require d in order to answer the question
of jurisdiction in the affirmative.
6. Further, we should keep sight of the fact that the jurisdictional clause on which we rely is
not confined to "the interpreta tion or application of the Conve ntion" but expressly refers to
"disputes arising" about these matters. What this means is, that the Court is not limited to a
quasi-"advisory" function concerning the understandi ng of the rules of the Vienna Convention but
is called upon to decide contentious cases " arising out of the interpretation or application" of it.
This is precisely what we have before us with regard to all the claims put forward by Germany. On
the basis of the Optional Protocol, this Court cannot address mere abstract or hypothetical
questions concerning the Vienna Convention, its competence presupposes a concrete dispute. In
2
CR 2000/28, para. 3.6.
3Shabtai Rosenne, The Law and Practice of the International, 1920-1996 (3d. ed., Vol. III ⎯ Procedure). - 16 -
our specific case, this dispute unfortunately invo lves the death penalty. We simply cannot avoid
this topic in framing the issues for the decision of th is Court. But, what is at the heart of our
dispute is Article 36 of the Vienna Convention as such. The question of the implementation of this
provision necessarily involves an assessment of laws and practices within the United States
domestic legal system but only from the perspectiv e of international legal requirements. The
allegation that Germany attempts to turn this Court into an unauthorized overseer of US law and as
a sort of court of criminal appeal implies a thorough ⎯ and of course deliberate ⎯
misunderstanding of Germany's submissions as well as of the scope of the Optional Protocol.
7. A topic on which my colleague, Professor Meron, laid special emphasis was the issue of
diplomatic protection. Let me make it clear from the outset, Mr. President, that this issue enters the
picture only through the intermediary of the Vienna Convention. What we request this Court to do
is to find that Article36 not only establishes rights and obligations between States but also gives
rise to rights of individuals. If one was to follow this view, a dispute arising out of the
interpretation of Article36 necessarily encompasse s a dispute about whether or not Germany is
entitled to grant its nationals diplomatic protecti on. Hence, diplomatic protection does not stand
alone, isolated, as Professor Meron wants you to be lieve, but is closely and insolubly linked to the
dispute over the correct interpretation of the Conve ntion. In other words, if, as Germany submits,
Article 36 contains individual rights, Germany's right to diplomatic protection will be the necessary
corollary. If, on the other hand, the US view were to prevail, the issue of diplomatic protection
would inevitably evaporate. What this proves is that the controversy whether in our case, a right of
Germany to diplomatic protection exists, clearly is a "dispute arising out of the interpretation of the
Vienna Convention".
8. Counsel for the United States further argued that "the requirement of exhaustion of local
remedies would bar further consideration of ...claims [of diplomatic protection]".
Professor Meron then questioned the German assertion that all remedies available to the LaGrands
in the United States had been exhausted, because "remedies are available prior to conviction by
jury and at the state level" 4. Let me once again recall the undisputed facts of this case:
4
CR 2000/28, para. 3.24. - 17 -
USauthorities failed to inform Karl and Walte rLaGrand of their rights under the Consular
Convention and they themselves were not aware of these rights well beyond the time when the jury
trial and other (appellate) proceedings at the stat e level had been concluded. Mr.President, the
essential element of the rule of exhaustion of local remedies was in our view correctly described by
Belgian counsel in the Barcelona Traction case in the following words: «[p]our pouvoir entrer en
ligne de compte dans la vérification de la conduite de la personne lésée, les recours doivent lui
avoir été effectivement accessible». And the requirement of "accessibility" was then explained as
follows:
«La première condition, à savoir l'accessibilité des recours envisagés ... est
dictée par le bon sens. Comme l'indique la sagesse populaire, «à l'impossible nul
n'est tenu». Un recours inaccessible doit donc être assimilé à un recours inexistant et
on ne pourra opposer à l'action d'un État l'inaction de son ressortissant lorsque
celle-ci est due à une force majeure, a fortiori lorsque l'impossibilité a été due à
l'attitude des autorités de l'Etat défendeur.»
And the statement goes on: «L'accessibilité du recours, c'est la po ssibilité juridique et matérielle
pour la victime d'y avoir recours.» 5
9. I submit, that this statement perfectly represents the generally recognized law on the
matter; confirmed by the jurisprudence of this Court and its predecessor, by legal writing, and
6
finally also by the new ILC draft Article45 (b) on State Responsibility which specifies the local
remedies to be exhausted as "any available and effective local remedy...". Could any statement
better match the particular circumstances of our present case in which it was precisely the conduct
of the United States itself which prevented the LaGrands from raising the issue of consular
notification at a sufficiently early stage of their criminal proceedings? Without spending more time
on this obvious point, it is clear that in our case there existed no remedy that was open to the
LaGrands and which they failed to employ, to paraphrase the holding of this Court in the ELSI
case.7 Amerasinghe sums up the situation as follows:
"[A]vailabe iliniltd only that the remedy be accessible to the particular
individual affected, if such remedy existed, but also that that remedy be available as a
8
possible remedy in the specific context of the individual's case."
5Cited after C. F. Amerasinghe, Local Remedies in International Law (Cambridge 1990), at p. 153.
6Text reproduced in United Nations doc. A/55/10 at p. l 36.
7
Case concerning Elettronica Sicula S.p.A (ELSI), I.C.J. Reports 1989, p. 47.
8C. F. Amerasinghe, op. cit. p. 154. - 18 -
As to Professor Meron's assertion that the La Grands did not exhaust local remedies because
they did not claim their right, a right about which they had not been informed, I find it disturbing,
to put it mildly. It amounts to saying: you did not exhaust local remedies because you did not raise
a point that you did not know about because the authority which is going to put you to death has
not informed you in breach of international law ⎯ a remarkable statement.
III. ARTICLE 36 OF THE V IENNA CONVENTION ON C ONSULAR RELATIONS
1. Mr.President, let me now turn to the interpretation of Article36 of the Vienna
Convention. The Respondent has presented us with a restrictive and incorrect reading of Article 36
in this regard. Let me first, therefore, once agai n explain the system of consular assistance that is
embodied in Article36, paragraph1. Second, I will argue that the rights under Article36,
paragraph1, are individual and human rights. Th ird, I will address the violation of Article36 by
the application of rules of US domestic law wh ich do not give full effect to the rights under
Article 36, paragraph 1.
2. Counsel for the United States wants you to believe that Article36 does not constitute a
coherent and comprehensive régime. In the US view, Article 36 is a bag full of isolated rights with
no apparent connection and no relevance whatsoever for criminal proceedings. Such a description
does not only underestimate the drafters of the Conve ntion, but also the result of their work. In
reality, both the right to communication between c onsul and the foreign national and the right to
consular assistance in criminal and other procedures are embodied in Article 36.
3. Article 36 sets up a coherent régime in whic h providing information to the detainee of his
right to notification plays an essential role for th e effectiveness of the whole provision. The rights
do not only concern the consul or the sending State, but first and foremost the foreigner himself.
First, Article36, subparagraph1 (a), does not only regard the communication and access of
consular officers to nationals, but operates also vice versa. The order of these two sentences is
certainly less important than the substance of th e rights embodied in that subparagraph. Second,
Article 36, subparagraph 1 (b), does not only cover arrests, but also mentions, in words of one
syllable, the trial following an arrest. On Tu esday, ProfessorTrechsel argued that applying
Article 36, subparagraph 1 (b), to the detention and trial of fo reign nationals would amount to a - 19 -
«traitement préférentiel» of an arrestee as compared to a suspect at liberty . But this turns the
purpose of this subparagraph on its head. Is the situation of a person at liberty really inferior to that
of an arrestee? While a person who is detained is unable to receive outside support without the
help of State officials, a person at liberty is ina position to freely prepare for his defence and to
contact whomever he pleases. Third, Article 36, subparagraph 1 (c), explicitly covers
arrangements of legal representation. Counsel for the United States has argued that legal
representation of any standard would conform to the meaning and purpose of this subparagraph 1.
Such a view not only disregards the "appropriateness" of the legal representation which is expressly
prescribed by Article5, subparagraph(i), of th e Vienna Convention on Consular Relations. It
would also allow any State to circumvent that provision by appointing a convenient lawyer ⎯
convenient to the State, not to the individual. I am convinced that MsBrown, an eminent
practitioner of the Vienna Convention as she is, would certainly not accept such a proposition if
advanced by Germany as against a US citizen. Again, the extremely narrow reading suggested by
the Respondent deprives the rights embodied in Article36 of most of their practical meaning.
Fourth, the US argument disregards the structur e of Article36. On the one hand, Article36
provides for the right of the detainee to information about his rights. On the other, it contains the
right of the consulate to assist its nationals. For the effective exercise of his right to
communication at all times, informing the foreigner about his rights is absolutely essential. Only if
he is informed can he request notification and, in the future, benefit from freedom of
communication with and access to the consulate. Only if seen in that systematic correlation do the
rights embodied in Article36 become meaningful and effective, as is expressly required in
Article 36, paragraph 2.
4. Both ProfessorTrechsel and MsBrown claimed that the German argument on Article36
providing individual rights was contradicted by the right of a State to refuse communication with
its nationals. But this argument confuses the right of the individual towards the receiving State
with the right of a national towards his own St ate. Whereas the first point is a matter of
9
CR 2000/29, para. 6.47.
1CR 2000/28, para. 4.25. - 20 -
international law, the latter is left to domestic law. For instance, according to German law German
nationals do have a right to receive assistance from their consulate.
5. Let me now turn to ProfessorTrechsel's attack against the human rights dimension of
Article 36. As a preliminary point let me say that I am familiar with ⎯ not to say, sick and tired
of ⎯ arguments like that of the alleged "inflation of human rights" not only on the basis of my
academic work but due to my ten years of practical experience as a member of the United Nations
Committee on Economic, Social and Cultural Rights ⎯ a category of human rights which is
generally thought of, countered or opposed by that very argument. Putting forward such an
argument is usually the first step of disqualifyi ng unwanted candidates for human rights status by
proceeding from what I would call a "fundamentalist" ⎯ or western fundamentalist ⎯ conception
of such rights. On a more personal note, I find it sad to listen to an eminent human rights lawyer
from a region of the world where the death penalty has been abolished and where the situation in
which the brothers LaGrand found themselves trappe d, cannot occur, attempting to deconstruct the
legal view of a human rights court in another regi on of the world where the situation is extremely
virulent. I will be very frank: I consider this is an attempt by our di stinguished opponents to
appease the conscience of this Court by suggesting that one can very well reject the view of the
Inter-American Court as to the human rights dimensions of Article36, without the risk of being
opposed to human rights in general. I have nothing against human rights: some of my best friends,
the European Convention rights, are human rights.
6. Returning to Professor Trechsel's "fundamentalist" philosophy of human rights, the very
abstractness, even aloofness, of such a purely natu ralist conception of such rights deprives them of
their most important feature, namely that of belonging to real people in everyday situations. In this
sense, a closer look at contemporary human rights law will reveal many instances in which human
rights refer to groups in need of particular protec tion such as migrant workers, the elderly, women,
children, or human beings in developing countries. Does Professor Trechsel really want to suggest
that these rights are not "human rights" in the proper sense of the term? If United Nations efforts in
human rights law-making had been based on such a concept, they would have gone nowhere.
7. Regarding rights of foreigners, a famous saying has it that every human being is a
foreigner, almost everywhere ⎯ except, of course, in his own country. For instance, almost all of - 21 -
us in this courtroom, and, with one exception, a ll of the judges on the bench, are foreigners here,
enjoying the hospitality of the Netherlands. And again, that absolutist view reveals itself as a
fundamentally flawed and unrealistic conception. Germany therefore proposes that we look at the
law in force, in particular at the text of Article 36, to find out whether it gives rise to individual
human rights or rights of States. By the way, th e distinction between "inter-State" relations and
human rights does not correspond to the current stag e of international law and international human
rights law. Rather, human rights today are embodied in inter-State conventions and they are part
and parcel of contemporary international relations.
8. As we have demonstrated both in our written and oral pleadings, a state-of-the-art
interpretation clearly shows that Article36 does contain individual rights. Indeed, as the travaux
reveal, it was the intention of the drafters not to impose consular assistance on the foreigner but to
make consular support dependent on the individual's willingness to be supported ⎯ which, in turn,
means that it is his rights which are at stake, and, at least primarily, not those of the State involved.
Thus, at several instances counsel for the United States' choice of words shows that they, also, were
not capable of speaking of the rights under Article36 without referring to the rights of individual
foreign nationals. For instance, MsBrown he rself spoke of "the right referred to in
paragraph 1, . . . the right of the consular officer and the foreign national to communicate with and
have access to each other . . ." and of "the right of the foreign national to have his consular official
notified of his detention and to have his communication forwarded" 11. This very impossibility of
speaking on Article36 without speaking about the ri ghts of foreigners is convincing testimony to
the proposition that it does embody such rights ⎯ at least if one sticks to the text of the Convention
instead of following a flawed and abstract concept of what individual and human rights should look
like. In an analogy to the famous Humpty Dumpty , does the United States have the right to define
"rights" differently from the rest of the world?
9. The "human rights" dimension of Article 36 was far from being alien to the drafters of the
Convention, some 40 years ago. As we have shown in our Memorial, the travaux are replete with
references to the connection between human rights and the right to consular notification. To cite
11
CR 2000/28, para. 4.26. - 22 -
only one example, in the words of the Greek dele gate to the Conference, Mr. Spyridakis, the 1963
Vienna Conference "was also following the presen t-day trend of promoting and protecting human
rights, for which future generations would be grateful" . Let me mention at this point that, through
a happy coincidence I would say, the German a nd the United States legal teams found themselves
put up in the same hotel, and this gave me the opportunity this morning over breakfast to discuss
with Ms Brown the interpretation of the meaning of the word "academician" which she had used in
her presentation, because I was going to make a little remark about that, for instance calling
Mr. Spyridakis as far as I know not having been a mere academician. But Ms Brown clarified the
meaning of the term "academician" in such a charming and disarming way that I am going to desist
from these remarks, maybe with one little exception a little later.
10. To return to my argument about human right s, this dimension of Article 36 is not some
kind of claim "made up" by Germany but the ex pression of a development already taken into
account by the negotiators of the Vienna Convention. Germany does not share the dismissive
attitude towards both the United Nations Genera l Assembly and the Inter-American Court of
Human Rights expressed by counsel for the Respondent. It is of course correct ⎯ and Germany
has never suggested otherwise ⎯ that the United Nations Declaration on the rights of aliens
of1985 does not expressly mention the right embodied in Article36, subparagraph1 (b). But,
regarding the widespread ratification and application of the Consular Convention, it seems obvious
to me that, by referring to the right to communication "at any time", that is, also when a foreigner is
arrested or detained, the General Assembly refe rred to the whole panoply of rights embodied in
Article36, and not onl y to subparagraph1 (a). There was simply no need to restate all of these
rights in detail, because they were already recogni zed in the Vienna Convention of 22years ago.
Nevertheless, the United Nations Declaration does clarify that we are here in the presence of a
human right of foreigners, and of course we share the view of this Court expressed in its Advisory
Opinion on the Legality of the Threat or Use of Nuclear Weapons , that General Assembly
resolutions "can . . . provide evidence important for establishing the existence of a rule or the
1United Nations Conference on Consular Relations, Official Records, Vol. I, United Nations doc. A/Conf.25/16,
p. 339 (para. 13). - 23 -
emergence of an opinio juris" . This is especially true of a solemn General Assembly declaration
like ours, adopted by consensus.
11. As I have already implied, it is strange that Professor Trechsel has invoked the
jurisprudence of the European Court in a case dea ling with the observance of individual rights in
the United States. This deference to the regional Eu ropean Court stands in marked contrast to his
outright rejection of the Advisory Opinion of the Inter-American Court of Human Rights. A close
analysis of the entire barrage of Strasbourg judgm ents fired at this Court by Professor Trechsel
would show that none of these judgments is anythi ng like as relevant to the problem before you,
Mr.President, as is the Advisory Opinion of th e Inter-American Court. But for understandable
reasons, this Opinion is not supported by the Un ited States. Such a selective approach to human
rights seems particularly misplaced before this Cour t, whose jurisdiction is truly worldwide. I will
not repeat the extensive citations that we put forward from the Opinion of the Inter-American
Court. We are confident that this Court will ha ve a more balanced view on the impact of the
jurisprudence of regional human rights courts on th is case than that displayed by our Respondent.
Needless to say, the most truly universal human rights body, the United Nations Human Rights
Commission, in its recent resolution on the question of the death penalty, has urged
"all States that still maintain the death penalty... to observe the safeguards
guaranteeing protection of the rights of those facing the death penalty and to comply
fully with their international obligations, in particular with those under the Vienna
Convention" 14.
12. The character of the safeguards contained in Article 36, paragraph 1, also sheds light on
the meaning of Article36, paragraph2, in so far as this provision requires internal laws and
regulations to conform with the rights under paragr aph 1. No human rights lawyer worthy of that
name would accept the proposition that effectivenes s of human rights provisions can be achieved
without remedies for their violation. Only then can the individual benefit from his rights instead of
being at the mercy of State authorities.
13
Legality of the Threat or Use of Nuclear Weapons , Advisory Opinion, I.C.J. Reports 1996, p. 254 (para. 79).
See also ICTY, Prosecutor v. Furundzija, Judgment of 10December1998, Case No.IT-95-17/1-T (1998), reprinted in:
38 International Legal Materials (1999), p. 317, at p. 351 (para. 160). For an extensive [?]
14United Nations doc. E/CN.4/RES/2000/65, para. 3. - 24 -
13. As we explained at length on Monday, th e impact of paragraph2 of Article36 on our
case is twofold: first, it clarifies that domestic law falls well within the ambit of and is subject to
the rights under paragraph1. Second, it makes cl ear that the rights under paragraph1 must be
effectively implemented by domestic law. It is understandable that Mr.Mathias tries to counter
Germany's argument on the proviso by referring to the first part of Article 36. But notwithstanding
the fact that paragraph 2 begins with the releva nce of national law, the yardstick for domestic law
in this regard is to be the eff ectiveness of the international law em bodied in Article 36, that is the
rights accorded to foreigners. In Germany's understa nding, this clearly implies that there needs to
be a means by which the injury to the defendant caused by the violations of his rights can be
remedied at the domestic level. Otherwise, c onsular information simply does not amount to an
effective right as required by Article36, paragra ph1, but remains subject to the whims of the
receiving State.
14. This has nothing to do with the Unite d States argument that Article36 does not deal
specifically with "defences in criminal cases". But the provision unequivocally deal with the rights
of foreigners to consular access and information and the effective implementation of these rights by
domestic law. These rights are the domestic criteria, not any list of matters of domestic law
covered by the provision. In a quite—this is what remains of my intention MsBrown—
unacademic remark about the travaux, that is, one unaccompanied by any references, counsel for
the United States spoke of "the considerable unease that the delegates felt about the fact that the
changes that were being informed referred to individuals and their rights". Unlike US counsel, I do
not pretend to be able to read the minds of the delegates of 40 years ago; I just can't.
15. The other day, counsel for the United States argued that none of the rights under
Article 36, paragraph 1, were violated by the appli cation of the rule of procedural default. Such a
statement simply glosses over the fact that without a remedy in case of its violation, a right to
information is meaningless and not effective, cont rary to the express requirement contained in the
proviso in paragraph2. In the view of th e United States, paragraph2 would add nothing to
paragraph1. But at this point, it simply rema ins for me to state that the Applicant and the
Respondent continue to disagree deeply and sharply on this point. - 25 -
16. On Tuesday, MsBrown suggested that prac titioners view Article36 in a different way.
Emphasis was put on the impossibility of perfect compliance with Article36. Following that
pattern, would counsel also argue that speed-limits on interstate highways in the United States, on
the German autobahn — there indeed exists sp eed-limits on the German autobahn — or on British
motorways are of little judicial relevance jusecause every day thousands of drivers risk their
lives speeding? Did the Respondent really want us to believe that Article36 was some sort of,
maybe newly conceived, soft law of little relevance for the detainee? Let me be clear on this point:
the Vienna Convention has been accepted by the vast majority of States around the world, and is a
solid part of existing international law. Statis tics of compliance and the content and substance of
an obligation are two different matters. Nothinthat Germany has advanced here requires more
than compliance, or, at least, a system in pl ace which does not automatically reproduce violation
after violation of the Vienna Convention, only interrupted by the apologies of the United States
Government.
17. Mr. President, I would now like to ask you to call on Mr. Kaul to explain State practice
regarding the implementation of Ar ticle36, in particular Germanpractice. Merci Monsieur le
président.
Le PRESIDENT : Je vous remercie, Monsieur le professeur. Je donne maintenant la parole à
M. Kaul.
Mr. KAUL: Merci, Monsieur le président.
IV. STATE PRACTICE WITH REGARD TO ARTICLE 36 OF THE VIENNA CONVENTION
1. Mr. President, Germany will now once more show why State practice cannot support nor
justify the conduct of the United States in the case of the LaGrand brothers and that State practice
cannot support the underlying restrictive and incorr ect interpretation of Article36 of the Vienna
Convention by the Respondent.
In passing, let me mention that my remarks on State practice do not come from an
academician but from a practitioner of consular la w who has done consular work in the German
embassies in Oslo, Tel Aviv and also Washington. - 26 -
2. With regard to State practice, MsBrown on Tuesday ventured to put before this Court a
quite far-reaching and categoric statement. She said "the prevailing practice of the over
165countries now party to the Vienna Consul ar Convention overwhelmingly supports our
position". This is obviously a further but very accentuated repetition of the ancillary argument
contained in the Counter-Memorial that "State pr actice including Germany's own practice conflicts
with Germany's claim" 1. MsBrown also found it appropriate to state ⎯ incorrectly ⎯ that
"Germany yesterday did not contest" the US view and that "Germany seems prepared to concede
on this point".
3. Needless to say this is simply wrong. But before showing once more that arguments on
State practice cannot support or justify the US positi on in this case, let me make a general remark:
this is not a seminar concerning State practice on the Vienna Convention on Consular Relations.
We absolutely must retain our focus on the fundame ntal facts and legal principles decisive for the
concrete case of the LaGrand brothers before this Court. This case concerns the unresolved dispute
between the United States and Germany arising out of the application of the Vienna Convention,
this in a case in which the Respondent once ag ain chose to deliberately ignore a sustained and
grave violation of the right to consular assistance before putting two German nationals to death. As
in the case of Mr. Breard, the LaGrand brothers, Mr. Faulder and Mr. Flores, executed just a week
ago, State practice by the Respondent seems de facto to: "violate Article 36, ignore the violation in
the criminal proceedings, refuse to impact the violation for the imposition of the death penalty,
execute and apologize as usual".
The concrete question before the Court is wh ether such a practice is indeed in accordance
with the Vienna Convention, whether such a practi ce is in line with the specific obligation to give
full effect to the rights accorded under Article 36, and whether "the prevailing practice of the over
165 countries now party to the Vienna Consular Convention really overwhelmingly supports" such
an approach.
4. In light of the one-sided and misleading US arguments on State practice, we were, at first,
tempted to react by saying: "si tacuisses philosophus mansisses" . But given these arguments
15
Counter-Memorial, footnote, paras. 91-94. - 27 -
Mr.President, Germany finds it necessary to br ing some order into this mish-mash of
argumentation in which chalk is equated to cheese, ⎯in which State practice is reduced to the
notion of consular practice, ⎯ in which no appropriate differen tiation is made between minor and
grave cases, between consular practice, judicial and legislative practice of States, ⎯ in which this
practice is presented in a one-sided and selective way and ⎯ in which ⎯ most importantly ⎯ the
Respondent again generously ignores the fact that th ere is simply no State practice with regard to
the question, the decisive question, at hand, namely whether imposition of the death penalty
impaired by a serious violation of the right to c onsular assistance should be open to some kind of
review or not.
We are of course aware that the Order of this Court of 9 October 1998 in the case of
Mr.Breard and the Advisory Opinion of the Inter-American Court of Human Rights deal
specifically with these issues, and that they are the only specific sources of jurisprudence available
from international courts to date.
5. Mr. President, the United States is in general correct that in their consular practice, in the
proper and narrower sense of the word, most States seem to follow the practice of investigating,
apologizing, if appropriate, and undertaking to im prove future compliance, when allegations of
violations of Article36 occur between governments. Germany also noted on Tuesday that most
violations of Article 36 happen in minor cases. Ge rmany, on its part, does not question that in the
majority of such cases the practice of investigating and apologizing may continue to be appropriate.
6. But, Mr.President, does this justify in th e concrete case of the LaGrand brothers before
this Court the assertion, stunning assertion indeed, that "prevailing practice of the over
165countries party to the Vienna Convention overwhelmingly supports" the US position?
Germany suggests that here we have to be more precise. In our view, this US assertion would only
be correct if the answer to the following two precise questions were to be clearly in the affirmative:
⎯ First, does State practice, including the judicial and legislative practice of States, support the
US view that violations of the Vienna C onvention are irrelevant for national criminal
proceedings? That convictions impaired by su ch a violation cannot be open to some kind of
review with regard to the impact of such violations? - 28 -
⎯ Second, and more specifically: does State practice support the US view that violations of the
Vienna Convention are irrelevant with regard to the imposition and execution of the death
penalty? That imposition of the death penalty impa ired by a violation of the right to consular
assistance is not and cannot be open to some kind of review?
Needless to say, Mr.President, the answer to both these questions is from our side a very clear
"No".
7. First: With regard to existing judicial pr actice relating to the failu re to inform a foreign
national about his right to consular assistance, such practice is rare and largely inconclusive. For
example, an Australian case, the Abbrederis case, only deals with the admission of evidence, not
with the lack of consular notification during the whole trial 16. In an Italian case, the Yater case, the
Court denied a reversal of a criminal judgment due to a violation of Article 36. However, in that
case the defendant had an attorney of his own c hoice and not a court-appointed lawyer; and of
17
course the case did not concern the pronouncement of the death penalty . On the other hand, two
British Crown Court cases suggest that a violation of Article 36 may indeed lead to the reversal of a
judgment based on evidence impaired by the violation 18. The United States Ninth Circuit Court,
considering provisions of US administrative pro cedure similar to Article36, decided that a
violation of those provisions in certain cases re quires a retrial, but it appears that US domestic
19
courts are currently of the opinion that criminal procedure is not affected .
8. On Tuesday, ProfessorTrechsel has put toge ther a remarkable array of international
jurisprudence. Nevertheless, he has drawn a rather incomplete, if not wholly misleading, picture of
comparative law of criminal procedure. Instead of looking at this or that instance where Article 36
has been expressly mentioned in legal writings, rath er, he should have looked, on the one hand, at
the law of the procedural codes and what it says about eventual claims of a violation of Article 36,
and, on the other hand, to the concrete application of Article 36 in criminal justice systems.
1636 Australian Law Reports 110, at 123.
1777 ILR 541.
18R. v. Van Axeland Wezer (1991) 31 May, Snaresbrook Crown Court, HHJ Sich., Reported in Legal Action
12 Sept. 1991; R. v. Bassil and Mouffareg (1990) 28July, Acton Crown Court, HHR Sich. Reported in Legal Action
23 Dec. 1990.
19Cf. United States v. Rangel-Gonzalez, 617 F.2d 529 (9th Cir. 1980)United States v. Calderon-Medina, 591
F.2d 529 (9th Cir. 1979) and United States v. Lombera-Camorlinga, Counter-Memorial, Ann. 9. - 29 -
9. Contrary to what the Court has been told on Tuesday, most municipal systems provide for
remedies for breaches of Article36 in their law of criminal procedure. It may be true that these
remedies have not been created for the sole purpose of remedying breaches of the Consular
Convention. But nobody has ever demanded such an extraordinary remedy. Rather, it is perfectly
sufficient if relief can somehow be granted through th e ordinary ways of appeal. Also, the point is
of course not that ultimately an appeal may fail due to the circumstances in the case.
The crucial point, however, is simply that appellants must not be automatically precluded
from raising this point on appeal only because the point was not argued at first instance. And this
feature is indeed unique to the United States. Other countries have either directly incorporated
Article 36 in their code of criminal procedure 20 ⎯ for example Spain and the Czech Republic ⎯ or
recognize the provision as one that is at least in principle subject to appellate review.
10. With regard to German practice, counsel for the US sought again to convey the
impression that Germany itself would not be able to deliver what it asks of the US in
submission No. 4. Let me therefore use German law as an illustration of the fact that domestic law
of criminal procedure does indeed allow for review of judgments which are, to cite
submission No. 4, "impaired" by a violation of Article 36.
11. First, as far as the remedy of revers al of judgment is concerned, the German
Constitutional Court, in its Pakelli decision on the European Convention on Human Rights, has left
open the question whether the international legal principle of restitutio in integrum may lead to the
reversal of German judgments. In fact Germany has introduced a provision in July 1998 providing
for such a possible reversal if the European Cour t of Human Rights has declared that there was a
violation of the European Convention on Human Rights. In the same decision, the German
Constitutional Court clarified, however, that if re quired by international law to do so, German
courts could reverse a judgment just like any ot her public act. Thus, the US contention that
German law does not contain any possibility to reve rse judgments if required by international law
is, once again, simply wrong.
20
Cf. § 70 of the Czech Code of Criminal Procedure; Art. 520 (2) (d) of the Spanish Code of Criminal Procedure. - 30 -
12. As to the German law of criminal proce dure, an error of law which is not remedied
during the trial can be put forward by appeal in three ways: Berufung, Revision and
Wiederaufnahme. In murder cases the remedy would be Revision to the Federal Court of Justice.
Revision is an appeal on questions of law only. In passing, let me mention that German courts were
not yet confronted with the necessity to decide in a concrete Revision case about a violation of
Article 36. But the doctrine is clear: To be successful, this appeal must fulfil three criteria.
(i) There must be a breach of "the law" according to Article337 of the German Code of
Criminal Procedure. In this sense law is also international customary law and
international treaties as the Vienna Conven tion, this without any need for further
implementing legislation 21.
(ii) The judgment must be based on the breach of the law. This requirement is analogous to
the requirement of prejudice applied by US courts. However, there is an important
difference: according to German case-law causation need not be proven! The Federal
Court of Justice has constantly held that it is sufficient to show that it cannot be excluded
that the decision of the court might have b een different if the law had been applied
properly. If you carefully look at our submission No. 4, you will notice that it asks only
for the review of judgments "impaired by" the violation of Article 36.
(iii) The defendant must not have lost his right to an appeal.
13. German law, as interpreted by the courts, does not know provisions similar to the rule of
procedural default. The German approach is di fferent. Only specific points of appeal can be
barred. First, the defendant may lose his right to put forward an error of law during appellate
proceedings if he is defended by counsel and do es not formally object to an order of the court
during the course of the proceedings (Article238, paragraph2, of the German Code of Civil
Procedure (StPO)). But this is not relevant to th e present situation. Second, the defendant may be
deemed to have waived the right to raise a particular point of appeal if the defendant's counsel does
not contradict the admissibility of statements that were illegally obtained during the pre-trial phase.
2Cf. Kleinknecht/Meyer-Goßner, StPO, 44th ed., § 337, MN 2; Karlsruher Kommentar zur Strafprozeßordnung,
3rd ed., § 337, MN 8. - 31 -
However, a waiver is not possible if the judge was under an obligation to inform the defendant of
his rights, including the right under Article 36.
14. Whereas counsel for the US asserted that German doctrine was silent on this point the
contrary is true. All German commentaries on criminal procedure emphasize the obligation under
Article 36 (VCCR) . To quote from the so-called Karlsruhe Commentary invoked by
ProfessorTrechsel: "Upon arrest of a foreigner, th e consulate of his country of origin is to be
notified without delay if he so requests after mandatory information of this right." 23
15. German practice is consistent with these requirements of the Code of Criminal
Procedure. No. 135 of the pertinent German Guidelines (Richtlinien für den Verkehr mit dem
Ausland in strafrechtlic hen Angelegenheiten ⎯ RiVASt) are very clear on this matter. Detainees
are, as a matter of routine, provided with a form ⎯ it is here ⎯ that informs them of their rights
under Article 36. This form actually has been tran slated into 21 languages. To assist the judge in
his duties, German authorities have devised this form that contains all relevant steps to be taken
during the first hearing of the defendant. A sp ecial section is reserved for the detention of
foreigners and the judge issuing a warrant of arr est must use it. The judge has to check several
boxes, including whether he has informed the defendant of his rights under Article 36 and whether
the detainee demands that the consulate of his home country be contacted or not. This form cannot,
of course, exclude all human error. But it does demo nstrate that Article 36 is relevant in criminal
proceedings and that it is observed in the day-to -day work of German judges and law enforcement
officers.
16. In conclusion, it is fair to say that while a violation of Article36 of the Convention
would of course not "always and automatically lead to the nullity of the decision", which
Professor Trechsel foisted on us, there are definitely ways to challenge the decision of a court in a
trial where the defendant had not been informed of his rights under Article36 of the Convention.
Most importantly, the defendant is not precluded fro m raising this point on appeal simply because
22
Cf. Kleinknecht/Meyer-Goßner, Strafprozeßordnung, 44th. ed., §114b, MN 4 and 9;Karlsruher Kommentar
zur Strafprozeßordnung, 3rd. ed., § 114b, MN 10; Löwe/Rosenberg, Strafprozeßordnung, 31st. ed., § 114).
2Karlsruher Kommentar zur Strafprozeßordnung, 3rd. ed., § 114b, MN 10. - 32 -
he did not argue the point at first instance. T hus, German law is perfectly able to meet the
requirements of Article 36 set out by Germany in its submission No. 4.
17. Mr. President, with regard to the question whether State practice supports the US view
that violations of the Vienna Convention are irre levant with regard to the imposition and execution
of the death penalty, the answer is even more obvious. If you look at State practice worldwide,
there is, to our knowledge, currently no other St ate in the world asserting that, even in death
penalty cases, violations of the right to consular assistance are irrelevant. There is no other State
applying the rule of "procedural default" or a simila r rule in such a persistent and rigorous manner.
There is no other State which de facto denies to this Court to even discuss the question of, first,
whether imposition and execution of the death penalty after violation of the right to consular
assistance is a proper application of the Vienna Convention and second, whether imposition of the
death penalty impaired by a violation of the right to consular assistance should be open to some
kind of judicial review or not.
18. What this means in the reality of today is the following: in the death penalty cases which
are unfortunately so frequent in the United Stat es, we may in all likelihood continue to see the
pattern of "violate Article36, ignore the violati on in criminal proceedings, refuse to review the
impact of the violation on the imposition of the death penalty, continue to apply the rule of
procedural default, execute, apologize as usual".
This, indeed, is in our view a fundamental, a quintessential, challenge concerning the correct
application and interpretation of the Vienna Conve ntion around the world. As the Respondent has
explicitly recognized, the right to consular assistan ce is, indeed, of crucial importance, not only for
four million US citizens abroad but also for all foreign nationals in the United States, including
German citizens.
This is why Germany seeks a clarifying judg ment on our four submissions from you, the
Members of the principal judicial organ of the United Nations.
19. Mr.President, I would now kindly ask you to call upon ProfessorSimma who will
summarize our position on the remedies that Germany seeks. Thank you for your attention. - 33 -
Le PRESIDENT : Je vous remercie beau coup, et je redonne la parole au
professeur Bruno Simma.
M. WESTDICKENBERG: Monsieur le préside nt, nous avons encore besoin d'à peu près
une heure pour notre plaidoirie et je vous laisse d écider si, peut-être, c'est déjà maintenant le
moment pour le coffee break ou si l'on va continuer avec le professeur Simma.
Le PRESIDENT: Je vous remercie. Je pense que nous pouvons encore entendre le
professeur Simma et nous ferons la pause-café après son exposé.
Mr. SIMMA: Thank you, Mr. President, I cons ider this as a compliment: to be tolerable
before the coffee break!
V. SAFEGUARDS AGAINST REPETITION
1. Let me turn to the Respondent's view on th e topic of assurances and guarantees and, more
specifically, to our submission No. 4.
2. First of all I would like to emphasize on ce again that in Germany's view these issues are
under the jurisdiction of the Court. The Optional Protocol speaks of "disputes arising out of the
interpretation or application", and what is before you in the present case is a dispute about breaches
of the Vienna Convention; Germany claims entitlements arising out of these breaches and
demands that the US make good the moral damage d one and return to integral performance. This
is a matter of State responsibility; and thus, the questions of State responsibility put forward by
Germany are clearly within the ambit of the Optional Protocol.
3. The US view, according to which the responsibility aspects of our case are a matter of
customary law and therefore not covered by the Prot ocol, would lead to absurd results. Clauses or
optional protocols on dispute settlement appended to treaties could not fulfil their function because
situations of breach could not be handled adequately, or not at all. What to me seems to be the case
here is that what pops up is once again a milder version of the idea that the Vienna Convention
régime is self-contained, that is, the only remedi es available in case of breach would have to be
found in the Convention itself. But of cour se the Vienna Convention does not contain any
remedies designed to counter breaches of this kind! Let me also in this regard also remind you of - 34 -
Article 31, paragraph 3 (c), of the Vienna Convention on the Law of Treaties, according to which a
treaty has to be interpreted in the light of the relevant rules of international law, around the treaty as
it were, and State responsibility is around every treaty.
4. Turning more specifically to the assuranc e requested in Germany's submission No.4,
counsel for the United States tried to create the impression that the International Law Commission
had formulated its respective draft Article 30 w ith great hesitation and that it went far beyond
existing law 24. What we find in fact, however, is that the ILC proposal met with general
acceptance. Not a single State opposed its inclusi on in the draft on State Responsibility. There
was not one word of criticism in the comments of the United States on the draft Articles adopted at
first reading in 1996. The same is true for the US contribution to the Sixth Committee debate of a
few days ago. Of course, I would not be surp rised if we were to find something resembling
Tuesday's pleadings in the United States written comments to be submitted by the beginning of
next year, but that should then be seen in a certain context.
5. On the other hand, there were quite a few States reacting favourably to the ILC proposal.
For instance, according to Italy, «[q]uant aux assurances et aux garanties de non répétition du
comportement illicite, bien qu'elles ne soient pas toujours nécessaires, elles se configurent comme
25
indispensable en de nombreuses hypothèses» . As to the German comment on the 1996 draft
Article 2, to which US counsel drew our attention, let us look at its text:
"Some doubt exists,... as to whether the injured State has, under customary
international law, the right to 'guarant ees of non-repetition'... To impose an
obligation to guarantee non-repetition in a ll cases would certainly go beyond what
State practice deems to be appropriate."
Well, I do not have any problems with this view . Some doubts might exist about its anchoring in
customary law ⎯ our debate shows this ⎯ and assurances are certainly not due in all and every
case. I will come back to that in a moment.
6. As to the gist of the debate in the ILC, it was decidedly positive. Let me quote from the
Commission's report on its last session:
24CR 2000/29, paras. 5.18 et seq.
25
Statement of 25 Oct. 2000, manuscript, p. 4.
26United Nations doc. A/CN.4/488, p. 103. - 35 -
"There was support for including a provision on the duty to provide assurances
and guarantees of non-repetition in the draft because there were cases in which there
was a real danger of a pattern of repetition and countries could not simply apologize
27
each time."
Thus, the wording of the Committee's report to the Ge neral Assembly. In this context, by the way,
repeated breaches of Article 36 were expressly mentioned as examples, in the ILC debates. To
continue with another quotation from the ILC report:
"The view was... expressed that assurances and guarantees of non-repetition
were needed in cases in which the legislation of a State and its application led to grave
violations which, although not continuing, were recurrent." 28
7. In his remarks concluding the ILC debate, Special Rapporteur James Crawford stated:
"different views had been expressed on the re tention of that subparagraph [that is, the
subparagraph of the provision on cessation, which now combines cessation and our
guarantees]; however, it was clear from the debate that most members of the
Commission favoured its retention. .. . no government had proposed the deletion of
[the respective article]... Replying to comments that ther e appeared to be no
examples of guarantees of non-repetition ordered by the courts, he said it was true that
there were very few such examples; on the other hand they were common in
diplomatic practice . . . [T]he draft articles operated primarily in the area of relations
between States, although it was the courts that might eventually have to apply them if
the problem could not be resolved diplomatically. [This is precisely our situation
here.] It was certainly true that assu rances and guarantees of non-repetition were
frequently given by Governments in respon se to breaches of an obligation, and not
29
only continuing breaches."
8. The report of the Drafting Committee of last August expresses itself in the same vein:
"Several members had pointed out that assurances and guarantees of
non-repetition were not appropria te in all circumstances. They should be required
especially in circumstances where there was apprehension of repetition."
Such assurances "were appropriate only if the repe tition of the wrongful act was likely to occur".
Even though the Drafting Committee was fully aware that in the past such guarantees had involved
far-reaching demands, it took the view "that guara ntees could not be dropped from the articles
simply because some demands had been excessive" 30.
9. To sum up the sense of the ILC debate , it saw a firm place for our assurances and
guarantees of non-repetition in the codification project. There is no way of denying this,
27United Nations doc. A/55/10, para. 87.
28
Ibid., para. 90.
29
Ibid. para. 110.
30United Nations doc. A/CN.4/SR.2662, pp. 6 et seq. - 36 -
Mr.President, because contrary to US counsel, I was there! And you can believe me that I was
wide awake during the debate on draft Article 30.
10. Counsel for the United States drew atten tion to a remark made in the Commission
according to which, "the fact that such a gua rantee had been given would be a new undertaking
over and above the initial undertaking that had been breached" 3. But of course, this remark
referred to the distinction underlying the Commission's work on State responsibility between
so-called primary and secondary rules, i.e., it refe rred to the theory according to which the breach
of a primary rule, for instance a rule of the Vi enna Convention on Relations, gives rise to new,
secondary rules, and in that sense only, to obliga tions over and above Article 36 of such a breach.
That is all there is to that statement.
11. I would also emphasize that the assurances and guarantees of non-repetition envisaged in
the draft were never understood to be as absolute as counsel for the United States tried to depict
them and thereby lead them ad absurdum, a point to which our Agent drew attention already in his
introductory statement. It is clear that nobody can be held to perform the impossible. This was so
clear to the Commission that it did not consider it necessary to mention this in the draft. The same
is true for Germany and for the formulation of our submission No. 4. It might be, I admit, that the
term "guarantees" used by the Commission is not very fortunate, considering the
misunderstandings to which it appears to have led, but the Commission uses the terms "assurances"
versus "guarantees" simply to design by the sec ond-term remedies that go beyond mere words and
involve certain preventive actions: thus the report of the Drafting Committee. These actions must,
according to the draft Article, be appropriate, a nd "appropriate" in my view means adequate and
effective. In our context what this implies is that the domestic measures to be undertaken by the
United States, measures taken according to their choice ⎯ I emphasize this ⎯ must be capable of
resolving the absurd Catch-22 situation that we have repeatedly described.
12. Mr. President, on Monday, I explained th at safeguards against repetition are appropriate
in the present case under both of the two different headings corresponding to their position in the
two readings of the draft Articles of the ILC: first, as a means of reparation, second, and at present,
31
United Nations doc. A/55/10, para. 87. - 37 -
as a corollary of cessation in cases of serious danger of repetition. Mr. President, under neither of
these two sedes materiae a showing of injury and causation beyond what Germany has already
done is required. Germany has suffered moral da mage through the repeated neglect of its rights
under the Vienna Convention by the actions of the United States, and the causation of this damage
is beyond question. If you rega rd safeguards against repetition as a corollary of cessation in cases
where an illegal act is repeated over and over ag ain, as is the case here, neither prejudice nor
causation need to be shown.
13. Mr.Mathias quoted from the Court's Judgment in the Haya de la Torre case, where it
was held that the Court was not in a position to state how Colombia should terminate the asylum
granted to this Peruvian politician, and the Court said that it was "unable to give any practical
advice as to the various courses which might be followed with a view towards terminating the
32
asylum, since, by doing so, it would depart from its judicial function" . But, Mr. President, in its
submission No. 4, Germany makes precisely such a distinction between what it requests the Court
to do, namely to pronounce the obligation of the United States to provide Germany with an
assurance of non-repetition and to ensure in law and practice the effective exercise of the Article 36
rights, and what is to be left entirely to the United States, namely the practical side of things (to use
the term of the Haya de la Torre Judgment), the choice of means to make these assurances stick, if
I may use this American expression.
14. Mr.President, to restate a point in this connection, the Agent for the United States
suggested on Tuesday morning that the Court ought to determine that the actual dispute between
the Parties "has been resolved by the United States apology and appropriate assurances of
non-repetition" 33. But, Mr. President, this is simply not the case. Germany does not consider the
so-called "assurances" offered by the Respondent as adequate. And therefore, it remains for the
Court to decide what would constitute an appropri ate remedy for the injury done to Germany and
its two nationals.
32
CR 2000/29, para. 5.26.
3CR 2000/28, para. 1.17. - 38 -
15. Before I leave the field of State respons ibility, let me clarify that nowhere in my
statement on Monday did I mock, or express contempt, as was said by US counsel, for the forms of
satisfaction other than assurances and guarantees .
16. Mr. President, one continuous objection of the Respondent against our submission No. 4
has been that in this submission Germany is demanding something from the United States which it
is unable to deliver itself. Mr.Kaul has alread y, and I think very convincingly, refuted this
criticism but let me come to the end of my statem ent by stating very plainly and simply that, if
submission No.4 were put forward against German y, Germany would be in a position to comply
with it.
This completes my statement. Let me finish on a personal note. I think that both my
experiences within the United Nations ⎯ my participation in the work of the International Law
Commission, and my being before this Court ⎯ have a decidedly rejuvenating effect on me. I feel
like a student again: in the International Law Co mmission, I feel like in a high-powered seminar;
and before this Court, I feel like in a State exam. Thank you very much for your attention.
Le PRESIDENT : Je vous remercie beaucoup, Mons ieur le professeur. Maintenant, la Cour
va suspendre pour dix minutes.
L'audience est suspendue de 11 h 35 à 11 h 55.
Le PRESIDENT : Veuillez vous asseoir. Je donne maintenant la parole à M. Donovan.
DMOr. OVAN:
VI. C AUSATION
1. Mr.President, distinguished Members of the Court, I would like to return briefly to the
procedural course of the LaGrands' case in orde r to respond to three of Attorney-General
Napolitano's points: first, that German consular officials would not have acted to assist the
LaGrands; second, that the mitigation evidence of which the violation deprived the LaGrands
34
CR 2000/29, para. 5.22. - 39 -
would have been merely cumulative of evidence al ready presented; and, th ird, that the Federal
Court of Appeals satisfied itself that the evidence would have made no difference.
2. I would like to make two preliminary poi nts first, however. First, the United States
suggested on Tuesday that, the day before, Germa ny had condemned the US judicial system and
made "newly manufactured" charges of racial discrimination. That is decidedly not the case.
Germany pointed to several problems with the administration of the death penalty in the
United States that have been identified by resp ected academics and organizations as mainstream as
the American Bar Association. While people ma y differ about the scope and impact of those
problems, and how to balance efforts to combat them with efforts toward ot her legitimate societal
objectives, it is hard to deny that those problems ex ist. And because they exis t, they form part of
the factual circumstances in which the impact of the Vienna Convention violations here must be
assessed.
3. Second, to be clear, the ground for the inte rnational responsibility in this case is provided
by the breach of Article36 of the Vienna Conven tion committed by the United States. But this
breach of the law was not only prejudicial to the legal interests of Germany itself but also had fatal
consequences for the LaGrand brothers. The ar gument on causation deals with this second aspect
which, even if not essential in legal terms for the creation of US international responsibility, leads
to an aggregation of its breach. Germany made this point on Monday when it observed that the
United States had contended in its counter-statement of the facts that consular notification would
have made no difference, but drew no legal consequences from that point. Except for the
UnitedStates objection to one of the, as the Un ited States would have it, five elements of
Germany's first submission, that point remains unrebutted.
4. To proceed in response to the Attorn ey-General, I would like to address first her
suggestion that Germany would not have acted even had the brothers contacted the consulate. To
the contrary, we know that once the issue of citizen ship was clarified, the brothers asked for help,
and Germany provided it. That is the best eviden ce in the record before the Court about what
would have happened in 1982.
5. Second, the Attorney-General argued that the evidence of which Germany claims the
brothers were deprived was actually presented at th e aggravation-mitigation hearing. In support of - 40 -
that argument, she pointed to the testimony of an expert at the sentencing hearing and a passage in
the presentence report.
6. Now it is necessary in order to assess the impact of the violation, to get into the nitty-gritty
of the trial, that is unfortunately the case and I th erefore invite the Court to review the materials in
the record, but I will review them briefly here. Th e first expert to testify at the hearing was called
on behalf of Walter LaGrand. On cross-examina tion, which takes up less than three pages of the
transcript of that hearing, the prosecutor estab lished, first, that the expert had met with
WalterLaGrand for no more than an hour, approximate ly a year before the hearing; second, that
the purpose of even that meeting was to establis h Walter LaGrand's "mental state at or around the
time of the incident", not to discuss mitigating factor s that might have been relevant to sentencing;
and third, that the only other preparation that the expert had done was to review presentence
reports. No wonder the prosecutor saw so little need to cross-examine.
7. The second expert was called on behalf of Karl. He is the fellow that the
Attorney-General quoted. He testified that he ha d spent an hour-and-a-half with Karl, and that the
principal focus of his testimony was his opinion, based on the tape of Karl's confession, that Karl
was telling the truth when he expressed remorse immediately after the arrest. In so far as he
addressed social history, the superficial nature of his analysis, which the Attorney-General quoted,
speaks for itself. The prosecutor obviously thought th e same, because he spent even less time with
Karl's expert than he had with Walter's ⎯ six questions, to be precise, taking up less than a page of
transcript.
8. The only other witness to testify was Patricia LaGrand, Karl and Walter LaGrands' sister.
While she surely testified to a difficult childhood, she just as surely could not make up for the
absence of detailed information about the LaGr ands' early childhood or, needless to say, the
inadequacies of the experts' testimony.
9. Finally, the presentence reports, to be sure , include a brief, general statement about the
unfortunate circumstances of th e LaGrands' upbringing. But a few references in a presentence
report cannot substitute for a case in mitigation.
10. We know that the information eventual ly secured from Germany provided concrete and
extensive evidence of serious abuse and neglect dur ing infancy and early childhood. To consider - 41 -
the effect that evidence might have had, I again in vite the Court to review the declaration of the
mitigation expert included in the Annexes. She de scribes in detail the standard of care in capital
cases, the minimal content of a social history as the start of a case in mitigation, and the use to
which the history must be put. Specifically she explains:
"Only with properly and independently gathered data can mental health
professionals assess:
(1) the presence and effect of medical, psychiatric and developmental disorders; and
(2) the role of critical social, emotional and other factors, including pivotal life
experiences, and their effect o[n] the in dividual's mental state and behaviour at
critical points relevant to the charges and subsequent legal proceedings."
In other words, a minimally competent mitigati on case must not only identify the relevant social,
psychological, and developmental factors but it h as to demonstrate a cause of connection between
those factors and the charges at issue.
11. Judged by that standard, the aggravation-mitigation case put on at the sentencing hearing
here can only be described as wo eful. When one compares the sentencing hearing transcript to the
expert's affidavit, one can appreciate the poor quality. But that conclusion draws additional support
from other evidence before this Court: first, by the affidavit from Karl's lawyer admitting his own
deficiencies, to which Germany has previously made reference; second, by the affidavit from an
Arizona criminal lawyer expressing the view that the performance of Walter's lawyer "fell below
the minimum standard of a defence counsel at a cap ital sentencing"; again specifically referring to
the sentencing hearing and third, by the affidavit from Walter's habeas counsel, an experienced
capital defender, who expressed the view that "[h]ad their trial counsel presented a complete case
35
for mitigation, the LaGrands likely would not have been sentenced to death" .
12. Finally, I would like to address the Attorney-General's suggestion that in its 1998 opinion
the Federal Court of Appeals somehow "peeked be hind the veil" to assure itself that, even though
the LaGrands had not been able to present the missing mitigation evidence at their sentencing, no
miscarriage of justice had been done 36. Now it's unclear from the transcript that I've reviewed
exactly what point the Attorney-Gen eral wished to make, so I want to make sure that there is no
35
Anns. MG 46, at pp. 1013-17; MG 50, at p. 1113; MG 52, at p. 1216.
36Ann. MG 10, at p. 483 (citing Sawyer v. Whitley, 505 U.S. 333 (1992)). - 42 -
confusion. As the Ninth Circuit's opinion reflects, the Court understood itself to be expressly barred
by prevailing Supreme Court authority from cons idering what impact the mitigation evidence
might have had. Instead, it restricted itself solely to the presence of aggravating circumstances that
would make the LaGrands "death eligible". Now of course, the LaGrands did not claim that the
missing mitigation evidence was relevant to the aggravating circumstances which had been found
which made them "death eligible", and therefore the Court held that the mitigation evidence was
irrelevant to its enquiry as restricted by prevaili ng authority. Thus, the LaGrands were in fact
deprived by this evidence at trial ⎯what the US Supreme Court has called the "main
event" 37⎯and neither the Ninth Circuit nor any other court in the United States ever considered
the effect that the missing mitigation evidence would have had on the LaGrands' sentencing.
13. And there lies the basic factual question and there lies the place at which Germany runs
into the evidentiary obstacles that I identified on Monday. As one of the pillars of the
individualized sentencing required by the US Constitution, a defendant may introduce at the
sentencing hearing any mitigation evidence he or she may think relevant, and the sentencing judge
or jury has complete discretion to weigh that mitigation evidence against the aggravating factors
that make the defendant "death eligible".
14. Needless to say, that is a supremely subjective judgment, and at this point in time it
would be virtually impossible to reconstruct the mental processes by which it might have been
made. In these circumstances ⎯ the fact judgment arises ⎯ how does a judicial system deal with
that fact? Well, one comparison that might be made is by the most widely used standard of review
in US proceedings, which is that if a trial error is made, if a right is violated, the defendant is
entitled to relief unless the court can conclude that the violation was a harmless error. The
UnitedStates objected on Tuesday to German y's suggestion that the Court should presume
causation, but it did not ⎯ because it could not ⎯ contest Germany's argument that this Court has
the authority to assess the evidence in the light of the specific and concrete facts of the case, that
the Court has the authority to determine how it will determine facts, and that the Court has the
authority to make appropriate rulings in light of the evidentiary prejudice caused Germany by
37
Wainwright v. Sykes, 433 U.S. 72, 90 (1977). - 43 -
United States actions. That authority should include the authority to deem contested facts
established, or to shift the burden of proof on th e basis of the showing that Germany has already
made, if those rulings were necessary. That authority is the necessary prerogative of any
fact-finder. As I said on Monday, however, no such evidentiary rulings are necessary.
15. To the extent that the precise causationssue here is amenable to proof, Germany has
demonstrated that the Vienna Convention violations led to the LaGrands' sentences of death. At
the very minimum, Germany has shown that the acknowledged violations deprived the LaGrands
of mitigating evidence that would have been highly relevant to their sentencing and that could have
caused the judge to impose a life sentence rather th an death. The Trostler case from the Arizona
Supreme Court, to which I referred on Monday, de monstrates that exactly the kind of mitigation
evidence that was lost here can have that impact. No rule of evidence or principle of international
law requires Germany to demonstrate anything more.
At this point, Mr. President, I would request that you call upon Professor Dupuy.
The PRESIDENT: Thank you, Mr.Donovan. Je passe la parole maintenant au
professeur Pierre-Marie Dupuy.
M. DUPUY :
VII. LA MECONNAISSANCE PAR LES E TATS -UNIS DE L ORDONNANCE DU 3 MARS 1999
1. Monsieur le président, il m’appartient de répondre aux arguments développés devant vous
par les Etats-Unis à propos d es mesures conservatoires et de la troisième conclusion de
l’Allemagne. Je le ferai assez brièvement car les Etats-Unis ont, pour l’essentiel, repris, lors de
leur plaidoirie de mardi dernier, les argument s qu’ils avaient déjà développés dans leur
contre-mémoire. Il l’on fait, toutefois, non san s opérer certaines concessions dont on appréciera la
portée (I). Se concentrant sur l’ordonnance du 3 mars 1999 pour mieux éviter un débat de fond sur
la nature juridique des mesures conservatoires, à défaut de plaider le droit, ils ont voulu se
concentrer sur les faits. Ils ont ainsi entendu dém ontrer que les Etats-Unis n’auraient pas pu agir
autrement que ce qu’ils ont fait après avoir reçu l’ ordonnance de la Cour (II); et ceci, parce que la
requête de l’Allemagne en indication de mesures conservatoires aurait été trop tardive (III). Enfin, - 44 -
les Etats-Unis se sont efforcés de dissocier au ssi complètement que possible leur méconnaissance
de l’ordonnance de la Cour d’avec le fond de la demande allemande elle-même (IV). Je reprendrai
brièvement ces points.
I
2. S’agissant du droit, je ne vais pas réitérer le cŒur de mon propos de lundi dernier sur la
nature juridique des mesures comme sur celles des obligations qu’elles créent, mesures comme
décisions de procédure, distinctes des jugement s, engendrant des obligations de diligence à la
charge de leurs destinataires, obligations dont le contenu et la plus ou moins grande rigidité
dépendront, en chaque cas, des circonstances de l’espèce.
Constatons cependant deux choses dans la position avancée par les Etats-Unis mardi:
d’abord, un repli stratégique, ensuite, une contradiction.
Le repli vient du fait que, selon eux, il ne servi rait à rien pour les besoins de l’espèce que la
Cour se prononce sur le droit des mesures conservatoires, puisqu’en l’occurrence, celles indiquées
le 3 mars 1999 étaient manifestement facultatives.
Les Etats-Unis usent alors à nouveau de leur arme décidément favorite, à savoir l’argument
linguistique du "Should/Ought", comme on pourrait l’appeler.
Laissez donc, Madame et Messieurs les jug es, planer l’ambiguïté sur ce que vous faites
lorsque vous ordonner des mesures conservatoires. Jouez de la demi-teinte ou du clair-obscur et
vous satisferez, au moins, les Etats-Unis.
3. Pourtant, et c’est ce qui gêne les Etats-Un is, vous avez déjà très cl airement manifesté, en
bien des occasions que j’ai d’ailleurs rappelées, vot re désir de dissiper les équivoques sur la nature
décisoire des ordonnances et, partant, sur leurs effets juridiques. Vous l’avez, le plus récemment
er
fait dans votre ordonnance du 1 juillet 2000 en l’affaire Congo c. Ouganda. Et, vous l’avez fait
dans les termes limpid es que j’ai moi-même rappelés lundi dernier. D’où la contradiction
américaine que j’annonçais.
Comment peut-on, en effet, conjointemen t affirmer, comme l’ont fait pourtant fait les
Etats-Unis avant hier, d’une part: "indications of provisional meas ures by the Court do not give - 45 -
rise to binding legal obligations" 38 et, d’autre part, consentir que lorsque la Cour emploie un
39
langage différent, a "language of understood mandatory character" , comme elle le fit récemment
dans l’affaire précitée, c’est qu’elle entend prendre une ordonnance ayant valeur obligatoire.
Allons, Messieurs! Il faut savoir! La Cour peut-elle ou ne pe ut-elle pas prendre des
mesures conservatoires à portée obligatoire ? C’est l’un ou c’est l’autre.
Eh bien, nous répond-on de l’autre côté de la barre, tout est affaire de langage! Selon les
cas, disent les Etats ―Unis, suivant que la Cour en restera au "Should" et au "Ought", ou bien
qu’elle se résoudra à employer la langue de l’autorité, c’est-à-dire … le français, les Parties sauront
ce qu’elle a voulu dire !
Mais, en définitive, concluent les Etats-Unis , soudain conscients que concession rime ici
avec contradiction, les mesures conservatoires "stand as a clear statement of the Court’s
expectations and desires" . Attentes et désirs! Cela s onne comme le titre d’un bien mauvais
roman !
4. Quant à nous, Monsieur le président, Madame et Messieurs, l’Allemagne vous indique par
ma voix, que, pour elle, «vos désirs sont des ordr es»! Et qu’il n’y a pas trente-six façons de
comprendre le sens, la logique et l’utilité des mesures conservatoires que vous indiquez. Qu’une
juridiction ne peut pas, à la fois, se réunir, dé libérer, ordonner, même s’il est dit que, par là, elle
«indique», sans attendre, en droit, que les par ties défèrent à son ordonnance. Qu’il ne saurait y
avoir de demi-mesure ni d’hésitation. Et qu’ il n’est qu’à se pencher sur la logique judiciaire,
inhérente au cours du procès international, comme le soulignait sir Gerald Fitzmaurice, étayée par
votre jurisprudence pour conclure que de telles ordonnances sont, toujours, et pas une fois sur deux,
ou trois, ou six, de véritables décisions.
Décisions de procédure, elles sont toujours obligatoires, quoique provisoires et ancillaires
par rapport au jugement; mais la rigidité des obligations qu’elles engendrent dépendra notamment
de l’intensité de l’urgence comme de la balance d es intérêts en présence. En l’occurrence, c’était
littéralement une question de vie ou de mort, et il n’y avait d’autre issue possible que d’obtempérer,
c’est-à-dire, très simplement, de surseoir à exécuter.
38
Intervention de M. Matheson, CR 2000/29, par. 7.1.p. 44.
39Ibid., par. 7.6, p. 3. - 46 -
II
5. C’est là, précisément ⎯et c’est mon second point ⎯ que l’on en vient aux faits. Les
faits, nous disent les Etats-Unis, ne nous ont pas pe rmis de faire autre chose que ce que nous avons
fait : nous avons réveillé le conseiller juridique du département d’Etat (ce qui, il faut le croire, n’est
pas rien) et nous avons transmis l’ordonnance à qui de droit, non sans que, pour ce qui concerne la
Cour suprême, le Solicitor General ait rappelé que cette ordonnance n’ avait aucun effet. Et s’il en
est ainsi, c’est parce que l’Allemagne, nous disent les Etats-Unis, et aussi la Cour, ayant statué sans
même nous entendre, nous avaient mis dans une telle situation.
Alors, puisque les Etats-Unis nous invitent à en venir aux faits, nous allons à présent les
examiner. Et nous le ferons pour répondre à deux séries de questions précises. La première est la
suivante: est-ce que les Etats-Unis pouvaient fair e, oui ou non, autre chose que ce qu’ils ont fait
après avoir reçu votre ordonnance, et ceci, à trois niveaux, celui de l’Etat d’Arizona, celui de
l’organe judiciaire fédéral, c’est-à-dire la Cour suprême, et celui de l’exécutif fédéral ?
Dans ces trois cas, la réponse est positive: au niveau de l’Etat fédéré, c’est-à-dire de
l’Arizona, comme l’a d’ailleurs ad mis Mme Napolitano, le gouverneur ne peut agir, à ce stade, en
suspension d’une exécution que s’il est sollicité de le faire par le Clemency Board . Mais,
précisément, dans ce cas, le défendeur s’est, si j’ose dire, empressé, de ne pas vous rappeler que
telle était la situation. Le gouverneur était ainsi sollicité par le Clemency Board !
Au niveau fédéral, pour ce qui concerne la Cour suprême, elle aurait encore très bien pu agir,
dans le cadre des procédures d’urgence penda ntes devant elle, pour ordonner la suspension
d’exécution. Et la preuve qu’elle avait le temps matériel de le faire a été apportée, en l’occurrence,
par elle-même. Elle a en effet pris un jugement dans le laps de temps précédant l’exécution de
WalterLaGrand. Simplement, elle l’a pris dans l’autre sens, celui de l’autorisation de faire
pénétrer Walter LaGrand dans la chambre à gaz.
Quant à l’exécutif fédéral, il aurait pu, tena nt compte notamment de la levée de bouclier
qu’avait soulevée l’affaire Breard de la part des différents secteurs de l’opinion, y compris les plus
avertis, il aurait pu soit demander à la Cour suprêm e d’ordonner la suspension, soit agir lui-même
auprès de l’autorité locale; mais il s’est contenté de la répétition, mot pour mot, par la voix du
Solicitor General, de l’idée selon laquelle votre ordonnance n’avait aucun effet obligatoire. - 47 -
Deuxième série de questions pratiques: les Et ats-Unis prétendent qu’ils auraient pu agir
autrement s’ils avaient disposé de plus de temps. Ils oublient seulement un détail, c’est que, un an
auparavant, placés dans les mêmes conditions que dans l’affaire LaGrand, mais avec, à l’époque,
beaucoup plus de temps, ils ont pourtant ag i exactement de la même manière à l’égard
d’Angel Francisco Breard qu’ils le feront ensuite à l’égard de Walter LaGrand.
Allons, décidément, la chanson a raison, qui nous dit «le temps ne fait rien à l’affaire»;
d’autant qu’en l’occurrence, le raisonnement du défe ndeur est une fois de plus circulaire, puisque,
précisément, ce que lui demandait la Cour, c’était delui en accorder, du temps. Et ce temps, les
Etats-Unis pouvaient, juridiquement et matériellement, le lui accorder.
6. Cependant, Monsieur le président, Madame et Messieurs les juges, vous n’êtes nullement
obligés de me croire. N’étant moi-même qu’un modeste "academician" dont
MmeCatherineBrown vous a tant manifesté le pe u de crédit qu’ils mérita ient, je ne vais pas
procéder exactement à un appel à témoin, mais tout simplement vous prier, Monsieur le président,
de bien vouloir redonner la parole à un autre conseil de l’Allemagne sur les deux séries de
questions que je viens d’évoquer, car lui est bel et bien un praticien, qui plus est, un praticien
américain : c’est M. Donovan
Après quoi, si vous le permettez, je reprendr ai brièvement la parole pour conclure cette
plaidoirie relative à l’effet des mesures conservatoir es et leur violation par le défendeur. Je vous
demande par conséquent, Monsie ur le président, de bien vouloir redonner, pour une brève
intervention, la parole à M. Donovan.
Le PRESIDENT: Je vous remercie, Monsieur le professeur. And now I give the floor to
Mr. Donovan.
DMOr. OVAN:
III
7. Mr. President, distinguished Members of the Court, as ProfessorDupuy has suggested, I
will like to address the United States' argument that even though Arizona chose to proceed with the
execution of Walter LaGrand in the face of this Court's Order, the United States complied with that - 48 -
Order because it took all steps "at its disposal" to en sure that he was not executed. I respectfully
refer the Court to the citations in the written vers ion of my submissions, but I will suggest that the
United States is wrong both as a matter of interna tional law, which matters here, and US domestic
law, which does not.
8. First, and most clearly, the Attorney-General explained to us on Tuesday, that Arizona law
permits the Governor to grant clemency or commut ation or a reprieve if the Clemency Board so
40
recommends . As the Attorney-General also expl ained here, precisely because of Germany's
intervention to this Court, the Clemency Board did recommended a reprieve.
9. The United States has assured the Court that it followed the Court's specific direction that
it convey this Court's Order of Provisional Measure s to the Governor, and there is no suggestion
that Arizona officials did not know of the Court's Order once it was delivered. As the
Attorney-General has explained, at that time , the Governor was fully empowered even under
Arizona law to grant a reprieve, but she chose not to. Indeed, as the Attorney-General has already
explained, the Governor chose not to even before this Court had ruled. She announced the day
before, that she would not grant commutation or a reprieve, would not grant clemency, and she
made that announcement, again as the Attorney-Gener al has explained to this Court, in part in
reliance on the advice of the United States, that any Order this Court might issue would not be
binding.
10. As the United States acknowledges in paragr aphs 3 and 6 of its Counter-Memorial, it is
internationally responsible "for the actions of Ar izona". Thus, the Governor's refusal to suspend
the execution is alone dispositive of the United St ates argument that it took all measures at its
disposal. The Governor could have stopped the execution, she chose not to.
11. In any event, the United States federal authorities had ample additional means at their
disposal to comply with the Order. The federal judicial authority of the United States, of course,
also engages its international responsibility. On the day of this Court's ruling, both Germany and
WalterLaGrand filed applications in the United States Supreme Court seeking, respectively, an
injunction against and a stay of the execution. Wa lter's filing raised the Vienna Convention claim,
40
Ariz. Const., Art. 5, Sec. 5; Ariz. Rev. Stat., Sec. 31-402. - 49 -
41
Germany's filing relied directly on the ICJ Order. Both applications were denied . In rejecting
Germany's application, the court expressed some doubts about its jurisdiction over the filing. As
the Attorney-General mentioned, the filing was ma de under a very infrequently used provision of
the United States Constitution authorizing original bills of complaint to that court. But even if
there were question about the court's jurisdicti on over Germany's application there can be no
question about its jurisdiction to provide re lief on Walter's application, that is on a habeas petition.
42
pending in that court . While the Supreme Court's opinion in Germany's application cites the
tardiness of the plea as one of the bases for declin ing to grant relief, there can be no question from
that decision that the Supreme Court indeed had tim e to decide; and that is also clear from the
dissenting opinion in the parallel Order denying re lief on Walter LaGrand's application. So the
Supreme Court, also the federal judicial authority, had time to make a decision whether or not it
would comply with this Court's Order.
12. Indeed, there was yet another proceed ing involving Walter LaGrand in which the
Supreme Court took action on the day of the execution. On that day, the Ninth Circuit, the
intermediate federal court of appeals covering Arizona, entered an injunction against the execution
on the ground that execution by lethal gas was cruel and unusual punishment, and therefore
unconstitutional. The state immediately filed a petition for a writ of certiorari to the United States
Supreme Court, asking that that injunction be vacated. The Supreme Court, on the day of the
execution, granted the writ, summarily reversed the Ninth Circuit's judgment, and vacated the
injunction. That permitted the execution to go fo rward by virtue of the third order issued by the
United States Supreme Court on 3 March 1999 in cases involving Walter LaGrand 43.
13. There were similar proceedings, as it ha ppens, on the day of KarlLaGrand's execution.
On that day, the Ninth Circuit also entered an injunction against the execution on the ground that
lethal gas was unconstitutional and enjoined the execution. Arizona on that day filed an application
41Ann. 30 (Federal Republic of Germany v. United States, 526 US 111 (1999)), 32 (LaGrand v. Arizona, 526 US
1001 (1999)).
4228 U.S.C. § 2254 (authorizing federal court to entertain habeas petition from person in custody pursuant to state
judgment "on the ground that he is in custody in violation of the Constitution or law or treaties of the United States"); see
also Missouri v. Jenkins, 495 US 33, 57 (1990) (federal court may enjoinmunicipality to levy taxes to comply with
desegregation order, even when le vy would contravene state law);Asakura v. Seattle, 265 US 332 (1924) (enjoining
enforcement of municipal ordinance in violation of treatyFrench v. Hay, 89 US (22 Wall.) 250 (1874) (federal court
may enjoin enforcement of state judgment entered in violation of federal law).
43Ann. 31 (Stewart v. LaGrand, 526 US 115 (1999)). - 50 -
to lift the injunction, which the Supreme Court gr anted. KarlLaGrand's lawyers then filed a
motion for clarification of the order, and the Supreme Court denied that application. Only then did
44
Arizona officials go forward with the execution .
14. These kinds of pre-execution applications are a regular feature of US death penalty
litigation, and US federal courts are well-accustom ed to them. Whether one agrees or disagrees
with the federal courts' death penalty rulings in th e United States, there can be no question that the
Supreme Court takes very seriously its obligations to decide cases, in this area as in others. The
justices are always available for emergency appli cations. In the specific case of death penalty
litigation, when an execution is scheduled, the Cl erk of the United States Supreme Court stays in
close contact both with the clerk of the lower court from which a case might be coming and with
state officials responsible for the execution. As will not come as a surprise, state officials generally
wait for the ruling of the Supreme Court before proceeding with an execution as to which there
might be a request for relief pending. I would respectfully suggest to this Court that it would
demean both the dignity and the diligence of the United States Supreme Court to suggest that, in a
case where human life was at stake, that court would not do whatever was necessary to properly
decide the case before it.
15. The executive branch also had means "at its disposal" to comply with the Court's Order.
45
The President has very broad authority to facilitate the resolution of international disputes , and he
could have exercised that authority, according to at least one scholar, by use of an executive
46
order . Now, the United States will no doubt suggest th at several hours was not sufficient in order
to actually issue an executive order: but one su spects that if the federal executive had firmly
indicated its intention to issue such an order to responsible officials of the State of Arizona, they
might have suspended the execution to allow the federal executive to take the appropriate steps.
16. In any event, it is also clear that the fe deral executive can sue in federal court against the
state or state officials in order to enforce a fe deral obligation. The United States itself confirmed
44
Ann.31, at p.674; see LaGrand v. Stewart, 173 F.3d 1144 (24Feb. 1999), stay vacated by Stewart v.
LaGrand, 525 US 1173 (24 Feb. 1999).
45Dames & Moore v. Regan, 453 US 654 (1981).
46See Carlos Manuel Vásquez, "Breard and the Federal Power to Re quire Compliance with ICJ Orders of
Provisional Measures", 92 AJIL 683 (1998). - 51 -
that in the Breard case when it advised the Supreme Court in its filings there that the United States
47
had authority "to sue in order to enforc e compliance with the Vienna Convention" . In this case,
for example, the United States attorney in the district of Arizona could have gone to a federal judge
in the district of Arizona on an emergency ap plication and asked that judge to suspend the
execution in order to comply with the Internatio nal Court of Justice's Or der. Federal courts
generally give deference to the executive's in terpretation of international obligations and,
particularly given the emergency circumstances that would have existed at that point, it is likely
that a federal court would have adhered to the United States request.
17. Having said all this, it may be worthwhile to pause to recall that none of it matters. It is a
fundamental principle of international law that, as a former President of this Court has said, a State
"cannot evade [its international] respons ibility by alleging that its constitutional
powers of control over [its political subdivisions] are insufficient for it to enforce
compliance with its international obligations" 48.
Surely when the Court called upon the United States to employ all means at its disposal to ensure
that WalterLaGrand was not executed, it did not intend to incorporate into that Order any
particular limitations on US federal authority within the US constitutional system. Not only would
that kind of interpretation fly in the face of a most basic principle of international law, but it would
also require this Court to determine complex questions of US constitutional law simply to
determine whether its Order had been complied with. Surely, the Court could not have so intended.
18. Finally, the United States suggests that the timing of the Court's Order did not give it
sufficient time to deliberate. Of course, a court order is generally not understood as an invitation to
a party to deliberate; it is generally understood that the order itself represents the judgment as to
the necessity of action given the prevailing circumst ances. But in any event, there is no reason to
believe that further deliberation w ould have led to a different result. The United States has itself
drawn a comparison to the Paraguay case, in which, in the United States view, Paraguay acted with
sufficient despatch to allow all actors to make appropriate decisions. But we know what happened
in the Paraguay case: the United States federal executive advised both the Governor of Virginia
47
"Brief of the United States as Amicus Curiae", p. 15, No. 3, Breard v. Greene, 523 US 371 (1998).
48Jiménez de Aréchaga, "Inter national Responsibility", in Manual of Public International Law (Max Sørenson,
Ed., 1968), pp. 531, 557. - 52 -
and the United States Supreme Court that indications of provisional measures by this Court were
not binding. There, as here, the United States Supreme Court and the Governor of Arizona adhered
to that recommendation and declined to give effect to that Order.
19. Mr. President, distinguished Members of the Court, the United States is a nation of laws,
committed to the rule of law. The United States did not fail to comply with this Court's indication
of provisional measures because it did not have time to comply. It did not comply with this Court's
indication of provisional measures because, as it has stated here in these proceedings, it did not
regard that indication as law. This case provides the Court an opportunity to establish that it was.
20. I would request the Court to call again upon Professor Dupuy.
The PRESIDENT: Thank you very much. Je donne maintenant la parole au professeur
Pierre-Marie Dupuy.
M. DUPUY : Je vous remercie, Monsieur le président. Je serai très bref. J’ai simplement un
dernier point encore à relever qui concerne le désir des Etats-Unis d’éliminer toute relation entre la
violation des mesures conservatoires et le fond de l’affaire.
IV
21. Le conseil des Etats-Unis a clairement indiqué devant vous mardi dernier que, selon eux,
"The Court can dispose of the merits of this case without any need to resolve this issue" . 49 "This
issue", c’est la question de la responsabilité am éricaine pour non-application des mesures
conservatoires.
L’invitation faite à la Cour consiste à lui demander de ne pas se prononcer sur la
o
conclusion n 3 de l’Allemagne, et, ceci, parce qu’en dé finitive, elle n’aurait rien à voir avec le
fond. Le fond, c’est, pour les Etats-Unis, la re quête en réparation par satisfaction demandée par
l’Allemagne. La question des mesures conservatoires, c’est autre chose, un incident de procédure,
un accident de parcours, une anicroche, pour ne pas dire une peccadille, pas davantage. Alors, ici,
je serai bref, d’autant plus qu’il serait malséant de se répéter.
49
Ibid., p. 52. - 53 -
Je me contenterai de rappeler que les Etats-Unis ont méconnu une obligation juridique, posée
par l’acte juridique qu’était votre ordonnance. Or, en l’occurrence, compte tenu des données de
l’espèce, c’est-à-dire de l’extrême urgence, de l’objet vital de l’enjeu, et de la balance des intérêts
en présence, les Etats-Unis étaient tenus de susp endre l’exécution. Ils ne l’ont pas fait. Ils
engagent leur responsabilité. Et ils l’engage nt sur une base nouvelle par rapport à l’accusation
principale qui leur est adressée par l’Allemagne , laquelle réside, comme vous le savez, dans la
violation de l’article 36 de la convention de Vienne.
22. Mais, nouvelle, cette responsabilité pour violation de l’ordonnance du 3mars1999,
même si elle peut être examinée comme telle, r este cependant corrélée, dans les faits, avec la
responsabilité principale des Etats-Unis. Et elle a aussi des conséquences juridiques au fond. Elle
lui reste liée parce qu’elle rend impossible la se ule réparation satisfaisante, qui n’était pas la
satisfaction, mais qui aurait pu être la restitutio in integrum si WalterLaGrand avait été laissé en
vie le temps nécessaire à la formation de votre propre jugement. Lequel n’aurait pas réformé les
décisions judiciaires internes américaines; ceci, vous ne le pouvez ni ne le devez; mais votre
jugement qui aurait constaté, dans l’ordre juri dique international, l’ existence d’un corps
d’obligations, en l’occurrence méconnues par les Etats-Unis, ce qui les obligeait à «répondre», en
droit international, de leur fait illicite interna tional, c’est-à-dire à être internationalement
responsables. Que cette responsabilité dans l’or dre international se traduise, ensuite, par des
conséquences dans l’ordre interne, il n’y a là rien que de très usuel, et l’on n’a même pas attendu
l’avènement des droits de l’homme, qui ne datent pourtant plus d’aujourd’hui, pour connaître de
telles situations.
23. Les Etats-Unis sont responsables, en soi, parce qu’ils n’ont p as déféré à l’obligation
provisoire que vous leur faisiez dans l’urgence. Mais ils sont, du même coup, également
responsables, au fond, d’une aggravation des conséquences du préjudice qu’ils avaient infligé à
l’Allemagne du fait de la violation de l’article 36 de la convention de Vienne de 1963. Or, il paraît
d’un bon usage du sens commun que de dire qu’ à dommage aggravé correspond une responsabilité
elle-même aggravée. - 54 -
24. L’Allemagne, en fait de réparation, vous dema nde une satisfaction. Mais elle le fait tout
en sachant qu’il n’y a rien de plus insatisfaisant que la satisfaction ! Du moins lorsqu’il s’agit de
payer par là le pretium doloris, que l’on pourrait traduire, en l’occurrence, par le prix du sang !
C’est pour cela, pour cela aussi, que la simple satisfaction de droit commun, si j’ose dire,
celle qui réside dans des excuses, ne suffit pas, même si les excuses américaines s’étendaient, ce
qu’elles ne font de toute façon pas, à l’ensemble des violations de l’article 36.
L’aggravation du préjudice causé par la mé connaissance de l’ordonnance, en rendant le
dommage allemand irréparable, c’est-à-dire impa rfaitement réparable, suppose une satisfaction
renforcée.
Si j’avais le cŒur à en rire, ce qui n’est pas le cas, je dirais, que la satisfaction renforcée,
compte tenu du caractère tragiquement répétitif des agissements américains à propos des
condamnés à mort sans bénéfice de l’assistance consulaire, c’est celle que l’on impose à des
enfants lorsqu’on leur demande de reconnaître leur faute, certes, mais aussi «de s’engager à ne pas
recommencer». Je crains cependant, Monsieur le président, Madame et Messieurs les juges, que
sans votre décision et, cette fois, votre décisi on de jugement, les Etats-Unis n’aient pas
spontanément la sagesse que l’on prête habituellement aux enfants…
J’en ai ici terminé, du moins avec les points essentiels qui me paraissaient devoir être relevés
dans la plaidoirie des Etats-Unis sur les mesur es conservatoires et je vous demande, Monsieur le
président, de bien vouloir donner à présent la parole à M. Westdickenberg, agent de la République
fédérale d’Allemagne, pour qu’il conclue ce second et dernier tour de nos plaidoiries.
Le PRESIDENT : Je vous remercie Monsieur le professeur. Je donne maintenant la parole à
M. Westdickenberg, agent de la République fédérale d’Allemagne.
Mr. WESTDICKENBERG :
VIII
Mr. President, distinguished Members of the Court, after the presentation of
Professor Dupuy we come to the end of the German pleading in this case.
Before reading out Germany's submissions let me add two remarks: - 55 -
⎯ First, my colleagues and myself, representing together the Federal Republic of Germany in this
case, are oblivious neither of the fact that at the root of this case there were two men who were
executed for crimes they committed, nor of the suffering of the victims and those left behind.
⎯ Second, the oral proceedings of this Court so far have confirmed the hope I expressed in my
introductory statement: Germany and the United States can litigate in a manner reflecting the
good and close relations as friends and allied partners.
SUBMISSIONS OF G ERMANY
The Federal Republic of Germany respectfully requests the Court to adjudge and declare
(1) that the United States, by not informing Ka rl and Walter LaGrand without delay following
their arrest of their rights under Article36, subparagraph1 (b), of the Vienna Convention on
Consular Relations, and by depriving German y of the possibility of rendering consular
assistance, which ultimately resulted in the execution of Karl and Walter LaGrand, violated its
international legal obligations to Germany, in its own right and in its right of diplomatic
protection of its nationals, under Articles 5 and 36, paragraph 1, of the said Convention;
(2) that the United States, by applying rules of its domestic law, in particular the doctrine of
procedural default, which barred Karl and Walter LaGrand from raising their claims under the
Vienna Convention on Consular Relations, a nd by ultimately executing them, violated its
international legal obligation to Germany under Article36, pa ragraph2, of the Vienna
Convention to give full effect to the purposes for which the rights accorded under Article 36 of
the said Convention are intended;
(3) that the United States, by failing to take all measures at its disposal to ensure that
WalterLaGrand was not executed pending the fi nal decision of the International Court of
Justice on the matter, violated its international legal obligations to comply with the Order on
Provisional Measures issued by the Court on 3March1999, and to refrain from any action
which might interfere with the subject-matter of a dispute while judicial proceedings are
pending;
and, pursuant to the foregoing international legal obligations, - 56 -
(4) that the United States shall provide Germany an assurance that it will not repeat its unlawful
acts and that, in any future cases of detention of or criminal proceedings against German
nationals, the United States will ensure in law a nd practice the effective exercise of the rights
under Article36 of the Vienna Convention on Cons ular Relations. In particular in cases
involving the death penalty, this requires the Unite d States to provide effective review of and
remedies for criminal convictions impaired by a violation of the rights under Article 36.
Thank you, Mr. President and distinguished Members of the Court, this ends the pleading for
the German side.
Le PRESIDENT : Je vous remercie, Monsieur Westdickenberg. La Cour prend acte des
conclusions finales dont vous avez donné lecture au nom de la République fédérale d'Allemagne.
Ceci met un terme à notre séance d'aujourd'hui. La Cour se réunira à nouveau demain à 14 heures
pour entendre le second tour de plaidoiries des Etats-Unis d'Amérique. La séance est levée.
L'audience est levée à 12 h 45.
___________
Audience publique tenue le jeudi 16 novembre 2000, à 10 heures, au Palais de la Paix, sous la présidence de M. Guillaume, président