2000/3R
International Court Cour internationale
of Justice de Justice
THHEAGUE LAAYE
YEAR 2000
Public sitting
held on Friday 17 November 2000, at 2 p.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 vendredi 17 novembre 2000, à 14 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 sommes réunis
aujourd'hui pour entendre le deuxième tour de plai doiries des Etats-Unis d'Amérique, et je vais
donner immédiatement la parole à M.Thessin, agent pour le Gouvernement des Etats-Unis
d'Amérique.
Mr. THESSIN: Thank you, Mr. President.
1.1. Mr. President, Members of the Court, learned counsel, ladies and gentlemen.
1.2. My friend, Mr.Westdickenberg, productively recalled for us that this is the World
Court, a court with the function to resolve intern ational legal disputes between States. Yet after
numerous German efforts to argue the facts and its frequent interventions to debate public policy,
we often were left believing that we were before the UnitedStat es Supreme Court or listening to
debates before the Arizona state legislature or the United States Congress.
1.3. In our previous pleadings, the United Stat es set forth in detail the fundamental facts and
legal principles of this case. The points we ma ke today will re-emphasize these principles and
supplement these pleadings, on which we continue to stand.
1.4. This case should, indeed it must, be deci ded upon the principles of international law.
That is the Court's mandate; that is its proper charge. Permit me again to summarize the legal
principles that our previous pleadings have supported fully.
1.5. The Court's jurisdiction is founded on the Optional Protocol concerning the Compulsory
Settlement of Disputes of the Vienna Convention on Consular Relations. The Consular Convention
required the competent authorities to inform Walte r and Karl LaGrand without delay that each had
the right to have those authorities notify German c onsular officials of his arrest. The competent
authorities did not inform either of the LaGrands of this right.
1.6. The Consular Convention establishes proce dures for facilitating State-to-State consular
relations. In this context, the Convention provides non-citizens with a right to consular notification
in certain circumstances, but it does not require a State to provide any remedy in domestic courts to
non-citizens whom it fails to notify of this right.
1.7. The UnitedStates therefore made appr opriate satisfaction when it acknowledged this
breach of Article 36, paragraph 1 (b), of the Consular Convention, when it extended its deep regrets - 9 -
and sincere apologies, when it assured Germany that compliance must be improved and when it
made extensive efforts to prevent future occurrences.
1.8. The central facts are not in dispute. On a day in January 1982, Walter and Karl LaGrand
killed a 63-year-old bank teller and left a 20-year-old woman near death. After a sentencing
hearing in December 1984, an Arizona trial court condemned the LaGrands to death, weighing the
aggravating factors of the crime against mitigating factors that included a troubled childhood in
Germany. A lengthy process then began that invol ved two court systems, state and federal, and
three different procedures, an appeal from the original judgment and two different collateral
reviews through habeas corpus procedures. These extensive efforts lasted 15years. No
international law principle requires this number and variety of judicial channels or for that matter
that a federal court system even exist to review state court judgments.
1.9. Germany learned of the detention of the LaGrand brothers in 1992, supported clemency
in February 1999, but raised the possibility of a consular failure only two days before the execution
of Karl LaGrand.
1.10. Germany's position is difficult to summa rize, not least because it takes contradictory
positions on several of its central tenets. Indeed , a substantial gap exis ts between the general
assertions of Germany and the specific requests it ma kes to this Court. Germany cannot have it
both ways.
1.11. First, Germany says that it does not ask this Court to act as a court of criminal appeals.
Yet we heard again and again how it asks the Court to scrutinize ⎯ and hold unlawful ⎯ various
aspects of the criminal law and procedure of both th e United States and the State of Arizona and to
examine critically a number of actions of courts, prosecutors and defence counsel. Over the last
week, the Court has been asked to review the sufficiency of the testimony of experts during trial,
the competence of the LaGrands' counsel, and the adequacy of state and federal procedures for
review of convictions and sentences.
1.12. Second, Germany says that it does not ask the Court to tell the UnitedStates how to
comply with the Consular Convention. Yet it asks the Court to find certain aspects of the
UScriminal system contrary to the Convention, such as the federal and st ate rules of procedural
default concerning the time and manne r in which defences must be raised, and to require that new - 10 -
procedural rules be substituted. As we have made clear, the Consular Convention neither provides,
nor requires a State to provide, remedies in domestic courts for failures of consular notification.
Even if the Convention had required domestic reme dies, a rule that requires timely raising of
claims, such as the rule of procedural default, is common in judicial systems. Nor does the US rule
stand in the way of justice. Untimely claims are still allowed if individuals can demonstrate
prejudice to their case and a good reason for failing to raise the claim in a timely manner, such as
because counsel was ineffective. If the United States is to have discretion on how it complies with
the Consular Convention ⎯ as Germany professes is its desire ⎯ then the Court should not
respond to Germany's demand that specific features of the US system are unlawful.
1.13. Third, Germany says that this case is not about the death penalty. Yet its arguments
that the US violated its obligations in the LaGrand case are clearly and heavily based on the
LaGrands' executions. Entire portions of Germany' s arguments consisted of condemnations of the
death penalty and the manner of its implementation. If, as Germany says, this case is not about the
death penalty, then the Court should not grant reme dies or make findings related specifically to the
death penalty.
1.14. The United States has among the most extensive and multifaceted procedures in the
world for ensuring fairness and due process for cr iminal defendants. This overlapping system
provides several layers of procedural protections. Mr. President, in this system of checks and
balances, in this system of in-depth defence ag ainst unfairness, a failure of consular notification
does not equate with a fundamental failure of due process. In the case of the LaGrand brothers, no
one can honestly say that it did.
1.15. Thus, this Court can comfortably decide this case by properly implementing
international law, without following the German en treaties to broaden improperly the scope of the
Court's jurisdiction in this matter and distort the meaning of international conventions. For a
correct decision on international law will be fully co nsistent with the highest standards of fairness
in criminal proceedings. This is the World Court.
1.16. Mr.President, Members of the Court, thank you very much for accommodating our
request to begin this session at 2 p.m. rather than the usual hour. As a reciprocal gesture, we intend - 11 -
to be brief and expect to finish by the tea break . We are confident of our position and do not need
to repeat it at length.
1.17. I would propose that we proceed as follows. With your permission, each advocate will
speak in the same order as on Tuesday. I theref ore ask, Mr.President, that you begin by calling
upon Attorney General Napolitano. Thank you.
The PRESIDENT: Thank you very much, Mr.Thessin. I now give the floor to Attorney
General Napolitano.
MArs.OLITANO:
1. Introduction
Mr. President and Members of the Court:
2.1. As the Attorney General of Arizona, pl ease allow me to present a brief rebuttal to the
remarks yesterday that presented what can only be characterized as a distorted view of the
American criminal justice system, particularly as it was embodied in the case of the LaGrands. Put
simply, the State of Arizona made an error in 1983, an error for which it has apologized and for
which considerable corrective actions have been ta ken. Germany's attempt to transform that error
into the precipitating cause for the LaGrands' convictions and sentences has no support in the actual
record of this case. It is revisionist history unr elated to the facts and unrelated to the 15 years and
three separate court processes that, I submit, ensured the LaGrands received all the protections
guaranteed to capital defendants ⎯ whether or not they are foreign nationals. Germany is unhappy
with the result because Germany seek s to abolish the death penalty. Had the LaGrands received a
sentence of life imprisonment, I doubt whether we w ould be here today. I am confident this Court
will apply international law appr opriately, and not make the death penalty part of its calculus
notwithstanding Germany's backhanded attempt to argue otherwise.
Let me briefly address four points.
2. Mitigationevidence
2.2. First, mitigation evidence. Yesterday, Germany attempted to argue that they have
established a causal relationship between the failure to notify the LaGrands of their consular rights - 12 -
and actual prejudice to the conduct of the defe nce. Germany's contention is based on the
hypothesis that, had they been notified, they w ould have produced mitigating evidence that would
have prevented imposition of the death penalty. This hypothesis overlooks, yet again, the evidence
that was presented on behalf of the LaGrands. And, contrary to Germany's assertions, what
Germany is asking this Court to do would involve this Court in, to use Germany's own words, the
"nitty gritty" 1 of a criminal case ⎯ a function this Court is neither designed nor equipped to
perform.
2.3. Prior to the sentencing hearing, the pr esentence report was filed. In the report, the
probation officer outlined the LaGrands' social history. The report described the LaGrands'
heritage, the dysfunction of the LaGrands' house hold from an early age, and how the LaGrands
were placed in and out of various foster-care facilities 2. At the sentencing hearing, the LaGrands'
attorneys called psychiatric experts to support the statements in the presentence report.
3
Dr. Gurland testified that Walter came from a br oken home and was placed in other foster homes .
The doctor recounted the interr acial nature of Walter LaGra nd, and how MasieLaGrand,
WalterLaGrand's adoptive father, was the only stable male relationship in Walter's life 4. The
doctor reminded the court of the turmoil Walter LaGrand faced in being placed in different
foster-home facilities 5. The Court noted physical abuse, Walter's poor academic record at school,
6
and the ostracism by his peers . Walter LaGrand's attorney then called Patricia LaGrand, Walter's
7
sister, to testify in support of the doctor's findings . KarlLaGrand's attorney presented a similar
case. His expert, Dr.Meshorer, testified that Karl had the same social history and childhood
8
background as Walter LaGrand .
2.4. Did the State of Arizona contest these clai ms of mitigation? No. Arizona accepted the
LaGrands' claims as true. At the sentencing hear ing the prosecutor did not contest them in any
1CR 2000/30 p. 40, para. 6.
2Ann. MG 2, pp. 283-285.
3
Ann. MG 5, p. 317.
4
Ann. MG 5, p. 318.
5
Ann. MG 5, p. 319.
6Ann. MG 5, pp. 321–323.
7Ann. MG 5, pp. 334–350.
8
Ann. MG 5, p. 354. - 13 -
way . So Germany postulates a very novel concept in American jurisprudence ⎯ the LaGrands
were somehow prejudiced by not further establishi ng a mitigating circumstance that the prosecutor
did not even contest.
2.5. Germany's argument that this Court must look at what was presented, how it was
considered, and attempt to decide whether such evidence would have made a difference in the
sentence imposed, is precisely the type of claim routin ely raised in a court of criminal appeals. To
find that there is prejudice based on lack of mitig ation evidence, this Court would have to disagree
with the Arizona Supreme Court, the United States Federal District Court for the District of
Arizona, and the United States Court of Appeals for the Ninth Circuit 1. All of these courts
considered the mitigation proffered at the sentenci ng hearing and concluded that the trial court did
not err in considering the evidence as insuffi cient to outweigh the horrific aggravating
circumstances of the LaGrands' crimes.
3. Access to counsel
2.6. Second. access to counsel. Germany's position also overlooks a critical doctrine in
American criminal law. All defendants are provided with defence counsel who are presumed to
know the law and who are charged with making decisi ons about which defences to raise. Nothing
prevented the LaGrands' lawyers from exploring the LaGrands' nationality and from raising the
consular notification issue. The provision of counsel is a key safeguard against governmental
misconduct, and it is an integral part of our criminal justice system.
2.7. Thus, it is disingenuous for the German Government to claim that the LaGrands were
incapable of raising their rights because they did not know of their rights. American law assumes
that defendants do not know of their rights. It is for that very reason ⎯ the lack of knowledge of
one's rights ⎯ that in the United States a defendant is a fforded an attorney, and guaranteed that the
attorney will render effective assistance.
2.8. Furthermore, there is nothing remotely im proper about a judicial system that insists that
defence counsel raise issues of alleged misconduct ea rly, whether they are alleged international or
9
Ann. MG 5, p. 417.
1Ann. MG 3, pp. 300-301 (Arizona Supreme Court), MG 9, p. 474 (District Court), MG 10 p. 484 (9th Circuit). - 14 -
domestic law violations. That way, alleged breach es of rights can be factually explored and duly
considered. The position Germany promotes provid es a disincentive to defence counsel to raise
issues early, and undermines the orderly administration of justice. It would give foreign nationals
rights greater than American citizens charged with identical crimes. The Vienna Convention does
not suggest or support such a result.
4. Germany's hypothetical assistance
2.9. Third, Germany's hypothetical assistance. Germany also argued that they would have
provided considerable assistance to the LaGrands . As their sole support for this argument,
Germany claimed that they have now spent DM100,000 on the Apelt case. As the record before
this Court demonstrates, Germany's assistance in the Apelt case was extremely dilatory. When the
attorney for MichaelApelt contact ed the German Consul in 1989, Germany did not offer to help,
but merely requested to be kept informed. I direct the Court again to the affidavit of Mr. Villarreal
who details the reality, not the fantasy, of how Ge rmany really treated Michael Apelt's request for
assistance. This affidavit is in Tab 6 of the United States Supplemental Submissions.
2.10. Similarly, with respect to the LaGrands, Germany did not address the fact that in 1993,
when contacted by the investigator for KarlLaGr and, their response was not to offer help but to
question how nationality was relevant to Karl's de fence. I direct the Court to Tab5 of the
United States Supplemental Submissions. In their attempt to explain away Germany's ignorance as
to the legal significance of the LaGrands' German nationality, Germany claims that the letter of
17March1993 was to an investigator and not to KarlLaGrand's attorney. This statement makes
no sense. The investigator worked for the attorney: he is an agent of the attorney. Any
information requested by the investigator is the same as if it were requested by the attorney.
Accordingly, Germany's speculation that they wo uld have leapt to the LaGrands' defence is
contradicted by their action ⎯ or inaction ⎯ in the Apelt case and by the uncontradicted facts in
the LaGrand matter.
5. Direction to the United States Attorney
2.11. Fourth, direction to the United States Attorney. Finally, I must respond to the
suggestion Mr.Donovan made yesterday in th e argument on provisional remedies, which - 15 -
Mr.Matheson will address in greater detail. Among the things Mr.Donovan claims the United
States Government should have done was to dir ect the United States Attorney, the chief federal
prosecutor, to sue the Governor of Arizona in federal court for an emergency order preventing
Walter LaGrand's execution. The Court may be in terested in knowing that I was the United States
Attorney for Arizona before I was elected Arizona's Attorney General. I know of absolutely no
precedent for Mr. Donovan's suggested action, and ce rtainly none ever in Arizona. Mr. Donovan's
argument is simply not a viable alternative give n the relationship between the federal government
and the states. It certainly was not an option in the unique and urgent circumstances of the
LaGrand case ⎯ an urgency created by Germany's own de lay in raising the consular notification
issue.
6. Conclusion
2.12. Mr. President, that concludes my remarks. It has been a great honour to appear before
you and to explain the entire history of the LaGrand case as it actually occurred. I ask you now to
call on Professor Meron.
Le PRESIDENT : Je vous remercie, Madame l' Attorney General. Je donne maintenant la
parole au professeur Meron.
Mr. MERON: Mr. President, distinguished Court,
3.1. I thank you for this opportunity to respond to the arguments made yesterday by the
distinguished counsel for Germany.
3.2. First, Mr.President, burden of proof. We appreciate the advocacy of my learned
colleague ProfessorSimma and of Mr.Donovan. Bu t the repeated rhetori cal appeals, such as
"Catch 22", will not be a substitute, I submit, for th e authoritative jurisprudence of this Court. As
the Court stated in the Nicaragua case: the " the Court cannot... apply a presumption that
evidence which is unavailable would, if produced, have supported a particular point of view".
3.3. Second, diplomatic protection. The learned Co-Agent of Germany stated yesterday:
"the issue enters the picture only through the intermediary of the Vienna Convention . . .". But the
Vienna Convention deals with consular assistance ⎯ I draw your attention to Article5 ⎯ it does - 16 -
not deal with diplomatic protection. Legally, a wo rld of difference exists between the right of the
consul to assist an incarcerated national of his country, and the wholly different question whether
the State can espouse the claims of its nationals through diplomatic protection. The former is
within the jurisdiction of the Court under the Op tional Protocol, the latter is not. In his first
argument, on Tuesday, Professor Simma made it quite clear that he spoke of diplomatic protection
in the classical sense. Please remember his mention of Mavrommatis.
3.4. In explaining the relevance of diplomatic protection, the Memorial stated: "According
to the rules of international law on diplomatic pr otection, Germany is also entitled to protect its
nationals with respect to their right to be informed..." 11 Thus Germany based its right of
diplomatic protection on customary law. I have to recall that this case comes before this Court not
under Article36, paragraph2, of its Statute, but under Article36, paragraph1. Is it not obvious,
Mr. President, that whatever rights Germany has un der customary law, they do not fall within the
jurisdiction of this Court under the Optional Protocol?
3.5. May I draw the attention of the Court to the fact that the distinguished Co-Agent of
Germany did not mention, much less dispute, th e authoritative distinction this Court made in
Nicaragua between jurisdiction over treaty and juri sdiction over custom. Let me conclude,
diplomatic protection is not within the competence of the Court in this case.
3.6. Third, exhaustion of local remedies. The distinguished Co-Agent of Germany appears
to make two arguments. First, that there are no av ailable remedies. Second, that the breach of the
duty to inform excuses the duty to exhaust local remedies.
3.7. As regards the first argument, let me st art by agreeing with Germany's positions in its
Memorial and in its arguments this week before this Court that diplomatic protection and any
individual rights are indeed subject to the exhaustion of local remedies.
3.8 Germany contests, however, that remedies were available. May I invite the Court to turn
its attention to paragraph4.25 in the Memorial. Germany states that United States law "does not
provide an effective remedy for the violati on of the requirement of notification... after the
defendant has been convicted in a jury trial" [emphasis added]. This implies two propositions
11
Memorial, para. 4.87. - 17 -
which I submit to this Court are self-evident. Fi rst, that Germany concedes that effective remedies
did exist at the state level. Indeed, in paragr aph4.28 in the Memorial of Germany: Germany
agrees that "the doctrine of procedural default consists in the requirement of exhaustion of
remedies at the State level before a habeas corpus motion can be filed with federal courts".
Second, Germany would want the United States to provide for additional remedies at the federal
level. But Germany is on thin ice here. As I have explained in some detail in my argument on
Tuesday, international law does not require any additional level of review whatsoever in the federal
courts. If no additional level of review is require d by international law, I would like to ask: how
can it be that the existence of non-discriminator y review requirements would be impermissible?
Germany, I submit, cannot rewrite American law or international la w to provide for an obligation
of such an additional review at the federal level.
3.9. As regards the second argument that the breach of the duty to inform excuses the duty to
exhaust, Germany appears to want to have some thing that we colloquially, Mr.President, call a
"double dip". First, it invokes the breach of the duty of notification as the basic breach, a sine qua
non of these proceedings. Second, it uses this sa me breach to excuse non-exhaustion of local
remedies for the commission of that breach. Sure ly, this attempt is unconvincing. Imagine for a
moment that Article 10 of the European Conventi on on Human Rights, which concerns the right to
receive information, would be interpreted by the European Court of Human Rights as implying a
right to be informed about a particular matter. Im agine further that the State has violated that right
in a particular case. Would Germany seriously argue that the requirements of exhaustion under the
European Convention would be suspended in this case even though the "victim" had a lawyer?
3.10. I have already explained at some length that the lawyers for the defendant had the duty
to raise the matter of the breach in the courts of Arizona. May I ask the Court to note that Germany
did not respond to, or dispute, our detailed argu ments that the duty to raise the breach of
notification was the duty of the lawyers, that inte rnational jurisprudence regards the defendant and
his or her lawyer as one entity in terms of legal position, and that the case-law of the European
Court of Human Rights ⎯ the only international tribunal that has considered this matter ⎯ makes
it clear that a State is not accountable for either the errors or for mistaken strategy by lawyers. In
short, the positions taken by lawyers ⎯ wisely or unwisely ⎯do not excuse non-exhaustion of - 18 -
local remedies. Although the de fendants may not be aware of th e breach of the duty to inform,
they had lawyers who are expected to know the law (for example, Kaminski v. Austria).
3.11. Fourth, practice. We argued that in its national practice Germ any neither reviews nor
annuls convictions where there has been a br each of the duty of consular notification ⎯ I am
12
quoting from my argument here ⎯ "on the sole ground of such breach" . Yesterday, the
distinguished counsel for Germany told us that th ere is a possibility of review under German laws,
but only, I repeat only, where rights may have been impaired. But where rights have in fact been
impaired, concepts of prejudice operate also in the law of the United States.
3.12. But this is not the main point. The essential argument we made, and which was not
answered by Germany, is that there has not been a single case, I repeat single case, in German
national practice where Germany has annulled or quashed a conviction or a sentence rendered in
absence of consular notification.
3.13. Germany, Mr. President, refers to the existence of general laws which could apparently
cause a review of sentences in cases where right s have been impaired. But Germany has not
demonstrated that its laws have actually been applied to review or to annul convictions or sentences
rendered in breach of the duty of consular notifica tion. The Court will recall that many such cases
have occurred in Germany, many such cases have taken place with regard to American citizens
sentenced to imprisonment in Germany in breach of the duty of consular notification. Germany
suggests that the law that it cited yesterday is ev idence of concordant practice by Germany. But
reliance on some general laws in this context will not be more satisfactory than an invocation of the
ten commandments as proof that we have stopped to sin. Of course, Mr. Kaul's attempts yesterday
to introduce into the Convention concepts of puni shment and the difference between capital and
other punishment have no basis in the Conve ntion. This would amount to amending the
Convention.
3.14. By asking hypothetical questions about the practice of other States, Mr.Kaul has in
fact conceded our argument that not a single Stat e party follows Germany's asserted interpretation
of the Consular Convention. I repeat our conclusi on that the general practice of States, including
12
CR 2000/28, p. 48, para. 3.46. - 19 -
that of Germany and of the United States, demonstr ates that there has been a general rejection by
States parties of the interpretation of the Consular Convention that Germany is asserting against the
United States. In this case, which rests upon a cer tain interpretation of the Consular Convention,
Germany has failed to establish that its interpre tation has become international law binding on the
United States.
3.15. Mr.President, distinguished Court. This is the 104thcase on the General List of the
Court. But in the annals of this Court, this case is quite unique. The Court is being asked to find
the United States in breach of a proposition, based on an asserted interpretation of a treaty, which
has neither a textual foundation in the text of the treaty, nor in the documented practice, nor in the
opinio juris of States parties. This is quite different, I submit, from situations where a human right,
for example, is recognized in the legal consciousn ess of States, though, alas, is often disrespected
in practice. Far from even a rhetorical acceptan ce, State practice rejects the interpretation asserted
by Germany. There is, therefore, and I come to my conclusion, in international law no norm here,
there is no international norm wh ich this Court, as a court of justice, can regard as binding on any
State party; it cannot apply it against the United States.
Thank you, MrP . resident. I would be grateful if you could now call on
Ms Catherine Brown.
The PRESIDENT: Thank you, Professor Meron. I now give the floor to
Ms Catherine Brown.
Ms BROWN: Thank you Mr. President and distinguished Members of the Court.
4.1. We reviewed the Vienna Convention at length on Tuesday and I will only do so briefly
today. Nothing said yesterday refuted our basic poi nt which is that Article 36 does not require that
consular notification be incorporated into the crim inal justice process of the member States or that
breaches of Article 36 be remedied in that process. We ground that point in the first instance on the
text of the Convention, what it says and what it does not say. Our point that States party have
expressly provided for incorporation and reme dies when they have wished to do so ⎯ such as in
the Covenant on Civil and Political Rights ⎯ but that they did not do so in the Vienna Convention,
was not addressed yesterday by our German friends. - 20 -
4.2. Given the lack of an express requirement of incorporation, Germany has a particularly
difficult burden; it must somehow make an intrinsic link between a breach of the last sentence of
Article 36, paragraph 1 (b), and the rights of the defendant in the criminal process. It failed again
yesterday to do this. Instead it largely restated its erroneous assertion that the entire operation of
Article36 depends on informing the national (CR2000/ 30, p.19), and that the end result of a
17-year criminal process can be attributed directly to a failure to inform. Mr.Westdickenberg's
suggestion yesterday that the United States has mixe d up things that by their nature are separate
(CR2000/30, p.9) could hardly better describe what Germany is doing, in mixing the separate
spheres of consular notification and criminal prosecutions.
4.3. In the sphere of criminal prosecutions, a fa ir trial is, of course, essential, regardless of
the defendant's nationality. It cannot depend for fairness on consular notification or on consular
assistance. There is no right to or standard for consular assistance; a consular officer owes no
fiduciary duty to his national, and does not have the obligations to him that a lawyer does.
4.4. By the same token, Article 36 is important within its sphere of consular relations and the
performance of consular functions. It does not de nigrate the importance of consular notification to
keep it in proper perspective within its rightful s phere. We have always recognized that consular
notification is important and that consular assist ance, when requested and given, can in some
instances assist in a criminal case. But this does not mean that it is so intrinsically linked to the
criminal justice system that the system's results are inherently suspect if Article 36 requirement to
inform is neglected. We do not parse Article 36 into what Mr. Simma called a "bag full of isolated
rights with no apparent connec tion and no relevance whatsoever for criminal proceedings"
(CR 2000/30, p. 18) when we simply suggest that what may sometimes be relevant is not essential,
and is not required to be made intrinsic. We ce rtainly are not devaluing Article 36 by pointing out
that the rule of procedural default that governs co llateral review by our federal courts of state court
proceedings cannot possibly violate that Article; how could it, given that the collateral reviews
provided to defendants by the UnitedStates are hi ghly unusual in international practice and that
relevant international standards require nothing more than a single appeal?
4.5. The mere fact that Article 36, paragraph 1 (b), applies to all detentions, including those
that happen to occur before trial, which was mentioned yesterday (CR2000/30, p.18), does not - 21 -
provide the essential link ⎯ the intrinsic link ⎯ to the criminal process that Germany seeks, for all
the reasons we explained on Tuesday. A foreign nati onal may or may not be detained before trial.
The more plausible link between Article36 and lega l proceedings is the provision in Article36,
paragraph 1 (c), allowing consular officers to arrange legal representation for their nationals.
Germany suggested yesterday that our view of this provision would allow a receiving State to
circumvent Article 36 by appointing a lawyer for the defendant (CR 2000/30, p. 19), but that was a
gross mischaracterization of our point. Our point is that this one textual reference is too thin a
thread to bind the sphere of criminal process a nd the sphere of consular communications together
so tightly that a criminal prosecution, no matter how far along, must be reopened simply because a
consular officer did not have a chance to arrange counsel for someone who in fact was represented
by counsel.
4.6. Finally, we were gratified yesterday that Germany disavowed any interest in a remedy of
automatic nullity. But it said nothing in respon se to our suggestion that requiring a remedy based
on prejudice would raise serious questions relating to the inviolability of consular archives and the
privileges and immunities of consular officers which are also provided for in the Vienna
Convention on Consular Relations.
4.7. Turning to State practice, yesterday for the first time we finally heard Germany try to
address our long-standing observations. We especially appreciated its candid confirmation that
practice is generally just as we have described it. (CR 2000/30, p. 27.) As for the rest, with all due
respect it was not only belated, but also inadequate. We look to State practice as a tool of
interpretation. We had already acknowledged that some States have incorporated Article36 into
domestic law or provided domestic remedies for violations. But the important fact, which
Germany in no way refuted, is that, regardless of their practice with respect to the death penalty,
the great majority of States have not incorporated and have not provided criminal justice remedies
for violations. This is consistent with the text and the fact that the text states no requirement of
incorporation. In short, State practice confirms our reading of the Convention.
4.8. Finally, on the question of State practice, given Germany's emphasis yesterday on the
advisory decision of the Inter-American Court in OC-16, it was particularly noteworthy that
Germany said nothing about the practice of the States of Latin America. Our State practice survey - 22 -
did not find any special remedies for failures of notification in that area of the world, where failures
of notification are common. Moreover, there is no evidence that any Stat e of the Inter-American
system has changed its practice as a result of OC-16. The practice in that region that we think is
most relevant is that Mexico and the United States entered a prisoner transfer treaty fully aware that
Americans who would be transferred to the Unite d States would in many cases not have received
timely consular assistance, and yet they would c ontinue to serve their Mexican sentences in the
United States. This is indeed how prisoner transfer treaties operate in all cases 13.
4.9. Shifting finally to the travaux, I do not believe that much of interest was said yesterday
at all, leaving aside the confession that Germany is pushing for a "state-of-the-art interpretation" of
Article36 based in part on the inclusive nature of the travaux with respect to individual rights
(CR2000/30, p.21). The Court will recall that on Tuesday I expressly noted that we accept the
obvious ⎯ that Article 36 talks in terms of individual rights ⎯ but that of course is not the relevant
question. The Court will also recall that I streamlined my discussion of the travaux in order to
finish before lunch. If I had not done so, I would have noted that there were in fact a few mentions
of human rights in the discussion that led to the final version of Article36. But the mention of
human rights by the Greek delegate Germany re ferred to yesterday (CR2000/30, p.22) cannot
14
make consular notification a human right or an element in the criminal justice system . The
comments of the Greek delegate in any event were not made about the obligation to inform the
detainee ⎯ which has never been conceived of as a human right. Rather, the statements were
made in a different context before the last sentence of Article 36, paragraph 1 (b), was considered 15.
4.10. In fairness, if we look at the travaux as a whole, we can find something for almost
everyone. But we cannot find something for Germany. The travaux do not give Germany the link
between consular notification and criminal proceedings needed to sustain its position. Nor do they
reflect a consensus that Article36 was addressi ng immutable individual rights, as opposed to
individual rights derivative of the rights of States. Certainly the delegates' decision to allow the
individual to decide whether his consular officer s would be informed of his detention did not
13
See US Counter-Memorial, Exhibit 8, pp. 12-13.
14
Official Records, Vol.I, p.39, para.33 (17April1963)(plenary); p.339, para.13 (15March1963) (Second
Committee).
15Id., pp. 81-87 (22 April 1963). - 23 -
reflect a sense of rights belonging primarily to the individual, as Mr.Simma suggested yesterday
(CR2000/30, p.21). If that were true, how coul d we explain the fact that Germany and other
States felt entirely free after the Vienna Conference to negotiate consular conventions that provided
notification without regard to the wishes of the i ndividual? A particularly interesting example,
although not in force, is the 1967 European Cons ular Convention, which in Article6 addresses
exactly the same issues that were addressed in Ar ticle 36 of the Vienna Convention, but it does so
16
without once referring to a right of the individual .
4.11. Germany also made some effort to a ddress the question of waiver (CR 2000/30, p. 19),
but its comments were not particularly responsiv e. Our point was that the reference to the
possibility of waiver in the travaux supports our view that, whatever the nature of individual rights
in Article 36, those rights still ultimately belong to the States party. Thus, the Vienna Convention
would not bar a State unable to assist its na tionals from asking a receiving State to stop
implementing the last sentence of Article36, paragraph1 (b). Germany's observations that its
nationals have some kind of a right under German regulations to consular assistance does not refute
this point which was about the Vienna Convention. Nor does it speak to German nationals' rights
in the criminal justice systems of receiving States. Clearly a judge presiding over a criminal trial in
a receiving State could not direct a German consular officer to appear and to provide assistance to a
German national at the national's behest. But in the United States, at least, the judge could require
a lawyer to undertake the defence. That is a significant difference bearing on the relationship
between consular notification and the criminal process.
*
4.12. Mr.President, on Tuesday I noted that the 165-odd States party to the Vienna
Convention on Consular Relations are engaged in a continual conversation about consular
notification and access, and I urged the Court to respect that conversation by rejecting Germany's
invitation to revision. If I may return to that th eme in closing, I would ask the Court to imagine
that conversation if Germany's invitation were accepted. Let me just note a few countries that have
only recently acceded to the Convention: Armenia in 1993, Azerbaijan in 1992; Bahrain in 1992;
16
E.g., European Consular Convention, Article 6, E.T.S. No. 61 (signed 11 Nov. 1967; not in force). - 24 -
Barbardos in 1992; Eritrea in 1997; Libya in 1998; Mauritania just this year; Qatar in 1998; and
Thailand in1999. At least some of these c ountries undoubtedly joined because they were
encouraged by other States to do so. It certainly has been th e practice of the United States to
encourage accessions, in the interests of having a uniform framework for consular relations.
4.13. In such an encouraging conversation, it is well within the realm of imagination that a
State thinking of acceding will ask a few questi ons about Article36, perhaps expressing concern
that it will be difficult to comply, given the country's size, its infrastructure and other factors. If
that State were told that this Court had said that a State party must remedy breaches of Article 36 in
its criminal justice system, it might be somewhat taken aback. After reflection, it might ask, "You
mean, even if we give a foreign national a full and fa ir trial, with all the safeguards we give to our
own nationals, our criminal courts will still have to decide retroactively what would have happened
if the national had been told that he could have his consular officials informed? No matter how far
the process has proceeded ⎯ even if the appeal is over? Even if the person speaks our language
perfectly, and has lived in our country almost all his life? Even if he hardly even knew that he was
a foreign national, didn't speak his own country's language, and had had no contact with his country
for many years?"
4.14. I suggest that explaining that the decision of this Court technically applied only to the
LaGrand case between Germany and the United States would not be a satisfactory answer to these
questions. In the majority of cases, the difficulti es of ensuring perfect compliance with Article 36
and the importance that States attach to the integrit y of their criminal justice systems would simply
preclude States from agreeing. I will go further, an d suggest that many of the States now party to
the Convention would not have adhered to it ⎯ at least not without reservations ⎯ had they so
understood it. And I again ask that the Court bear in mind that its deci sion in this case will
inevitably have far-reaching implications, and that the Court reject Germany's invitation to give the
Vienna Consular Convention a state-of-the-art me aning that the 165-odd States party to it never
contemplated.
4.15. Mr.President, that concludes my presentation, and I request that you now hear from
Mr. Mathias. - 25 -
Le PRESIDENT: Je vous remercie, Madame Br own, et je donne maintenant la parole à
M. Mathias.
MMAr. HIAS:
5.1. Mr. President, Members of the Court. Let us take one last look at the German
submissions.
5.2. With respect to the first submission, we heard nothing more about the alleged breaches
of Articles 5 or the other aspects of Article 36, paragraph 1. So we urge the Court to reject the first
submission to the extent that it alleged that Germany was denied the possibility of rendering
consular assistance. With respect to causation, Ge rmany has not borne its burden of proof to show
that the execution of the LaGrand brothers, as it appears as a subject of each of Germany's first two
submissions and as a predicate for part of the ourth submission, was caused by a breach of the
Vienna Convention. Attorney GeneralNapolitano has addressed the facts relating to this
contention. On Tuesday, we quoted the Third Report of the current Special Rapporteur of the
International Law Commission for State Responsibility , which stated that the causal link between
the breach of Article36, paragraph1, and th e execution of the LaGrands was "indirect and
contingent". Nothing said yesterday provided the missing links. ProfessorMeron has discussed
the Court's lack of jurisdiction under the Opti onal Protocol to consider Germany's claim of
diplomatic protection, and the first submission' s reference to Germany's right of diplomatic
protection of its nationals should be rejected as well.
5.3. Turning to the second submission, which h as to do with the interpretation of Article 36,
paragraph 2, counsel for German y apparently did not understand th e position of the United States.
Counsel observed, yesterday, that "In the view of the United States, paragraph 2 would add nothing
to paragraph 1". But, this is clearly not the case. The United States believes that paragraph 2 has a
very clear meaning, which is suggested not only by the text itself but by travaux. Paragraph 2
means, as it says, that the rights referred to in paragraph 1 shall be exercised in conformity with the
laws and regulations of the receiving State, subjecto the proviso that sai d laws and regulations
must enable full effect to be given to the pur poses for which the rights accorded under the Article
are intended. So, for example, communications between the consular post and the detainees are - 26 -
subject to local law, but that law must enable fu ll effect to be given to the purposes for which the
right of communication is intended. Similarly, a nd here we are merely taking an example from the
travaux, laws and regulations rela ting to prison visits would be subject to the proviso 17. So might
laws and regulations relating to, say, mail or te lephone access by detainees. So, the United States
attaches a clear and distinct meaning to paragraph 2. This meaning has the added virtue of finding
support in the text and the travaux, which is not the case for the interpretation suggested by learned
counsel for Germany.
5.4. Germany's second submission should be rejected because it is premised on a
misinterpretation of Article36, paragraph2, which reads the context of the provision ⎯ the
exercise of a right under paragraph1 ⎯ out of existence. Counsel spoke a good deal about
Article36, paragraph2, yesterday, but they did not provide a textual basis for their view that
domestic law must allow for procedures to bring claims to remedy breaches of the rights in
paragraph 1, as opposed to the allowing for the exerci se of the rights in paragraph 1. Nor did they
18
further develop their unsupported assertions that doctrines either of effectiveness or of dynamic
interpretation would support the rewriting of the text of the Convention.
5.5. Let us turn now to the fourth submissi on. First, I will address the jurisdictional issue
that the United States has raised. The United St ates has argued that the Court lacks jurisdiction
under the Optional Protocol to require an assura nce or guarantee. Germany asserts that this
position would
"lead to absurd results. Clauses or opti onal 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."
But we attempted to make it clear that our jurisd ictional argument did not apply to jurisdiction to
order cessation of a breach or to order reparation, but is limited to the question of assurances and
guarantees. Now ProfessorSimma, who assured us that he was wide awake during those long
meetings in Geneva, must acknowledge that the International Law Commission very clearly and
deliberately considered that assurances and guarant ees are conceptually distinct from reparation.
17
See Counter-Memorial, pp. 65-66 and No. 82.
1See, e.g., G. FitzmauriceLaw and Procedure of the Inte rnational Court of Justice, p.357 (citiPeace
Treaties case). - 27 -
They are "future-oriented"; they relate to future conduct, they do not relate to the damage caused
19
by the breach . So ProfessorSimma's suggestion that, were this Court to decide that it lacked
jurisdiction under the Optional Prot ocol to require assurances and guarantees, it could not fulfil its
functions because it could not handle situations of breach "adequately or at all" is fundamentally
flawed. We are confident that this Court could decide that it lacks jurisdiction over assurances and
guarantees without in any way undermining its jurisdiction to order reparation or cessation. It does
the Court no credit to suggest otherwise. More over, does Professor Simma suggest that the Court's
handling of situations of breach throughout its hi story has been inadequate, because the Court has
never found it necessary ⎯ or even concluded that it is able ⎯ to order assurances and guarantees?
5.6. My next point follows from this one. For all of counsel's insistence concerning the
popularity of assurances and guarantees among the members of the International Law Commission,
I believe that his discussion confirmed a number of significant points, which I will just mention
quickly. First, he confirmed that there are no cases outside, perhaps, lex specialis in the human
rights area, in which a court has ordered assurances or guarantees. Second, his silence confirmed
the related point that the draft article on assurances and guarantees is an exercise in progressive
development of law, and not codification of custom ary law. As we have seen, the first sentence of
20
Germany's 1997 comments on the subject , expressing doubts about the customary law
underpinnings of guarantees, is to the same effect.
5.7. Counsel observed that all secondary ru les create obligations "over and above" the
obligations created by primary rules. But questio ns arise in this context, whether assurances as
provided in the quite limited diplomatic practice of States are intended to give rise to obligations of
a legal nature, and whether customary interna tional law supports the imposition of such an
obligation where such imposition is not necessary in respect of the damage caused by the breach.
Moreover, because the content of assurances in any given case will be derived from the content of
the primary obligation, there is the possibility of a conflict where, as here, the remedy for a breach
of the primary obligation may be informed by speci al considerations, such as the practice of States
19
See, e.g., A/CN.4/507/Add.1 at para. 168.
2A/CN.4/488 at para. 104. - 28 -
party to the Consular Convention, about which Ms Brown has spoken. No similar special régime
would apply to an obligation undertaken in the assurances.
5.8. I do not think counsel explained how guarantees can be both reparation and not
reparation at once, but the point is, dare I say it, academic, because in any case the entitlement to
assurances in this case has not been proved.
5.9. With respect to the recent comments of the United States on "State Responsibility"
before the Sixth Committee, counsel attempted to derive some significance from the fact that those
comments did not discuss our concerns about draft article30. This omission has no significance.
As we noted in the speech in the Sixth Comm ittee, our speech was to focus on the two major
conceptual issues that rema in in the draft articles ⎯ the treatment of countermeasures and of
serious breaches. These are complex and difficult s ubjects, and we decided to deal with them in
some depth and expressly to reserve our position on the other issues in the articles for the written
stage. We thought that it would be most help ful to the Commission to proceed in this manner,
because it would give the Commission at the earliest possible time the benefit of our views on the
most difficult conceptual issues. Assurances and guarantees, while clearly an issue in which we
have a compelling interest in the present case, do not present the same large conceptual issues.
5.10. Now let me discuss, briefly, the nature of the specific assurances sought by Germany in
this case. Counsel suggest that no absolute obligation was intended by the fourth submission. This
is, of course, a welcome development for us. Wh ile counsel stated that the incorrectness of our
reading should have been clear from the work of the Commission on the subject, the point is not so
clear to us based on our own review of the "Co mmentary" on the article as adopted on first
21
reading and on the text of the current draft article. In any case, the submission appears to us to be
stated in absolute terms, and it was not modified by Germany.
5.11. Precisely what Germany is seeking in its fourth submission, if not an absolute
guarantee, was, however, not sufficiently clarif ied. Counsel mentioned certain preventive
measures. Would the distribution of 400,000 of these wallet cards for law enforcement officers ⎯
they say "Instructions for arrests and detenti ons of foreign nationals ", and 400,000 have been
21
A/CN.4/SER.A/1993/Add.1. (Part 2) at p. 82. - 29 -
distributed ⎯ would that constitute such a preventive measure? Would the establishment of a new
senior position in the Department of State ⎯ with the direct responsibility for ensuring that
information concerning the right to consular notification is provided without delay ⎯ would that be
such a preventive measure? The United States has undertak en a wide-ranging, long-term
programme to improve its compliance with the dut y to inform. In this context, Germany's
criticisms are unrepresentative and unsubstantiated.
5.12. In the view of the United States, the assurances that have already been provided to
Germany obviate the need for the Court to decide whether additional appropriate assurances should
be available to Germany in respect of the US bre ach of its duty to inform the LaGrands of their
right to consular notification under Article36, paragr aph1. Therefore, with respect to the fourth
submission, we submit that it should be rejected in its entirety, in light of at least the following
factors: the uncertain status of assurances under international law; the lack of clarity of the scope
of the assurances sought by Germany in the s ubmission; the absence of an underlying breach
except with respect to the duty to inform; the unpr oven nature of the late-filed alleged instances of
additional breaches of the duty to inform; the impr ecision of the submission's text with respect to
assurances in respect of the claimed breach of Artic le 36, paragraph 2; th e unjustified interference
in the domestic law of the United States that th e submission would entail; and the absence of any
basis in the Vienna Convention for an assurance relating specifically to capital punishment.
5.13. Mr. President, Members of the Court, counsel for Germany have constructed a mirage
of argument and authority in support of their cl aim. But as the American songwriter BobDylan
has written, "What looks large from a distance/Close up is never that big". The Court should find
that the same is true with respect to the German submissions, and, dare I suggest, the German case
in its entirety.
5.14. I thank the Members of the Court for th eir courtesy and attention. Mr.President,
would you please call upon Professor Trechsel?
The PRESIDENT: Thank you, Mr.Mathias. Je donne maintenant la parole au
professeur Trechsel. - 30 -
M. TRECHSEL :
6.1. Merci, Monsieur le président, Madame et Messieurs les juges, en écoutant nos estimés
adversaires hier matin, j’ai eu l’impres sion que des malentendus s’étaient produits ⎯ M. Simma a
dit la même chose. Je m’efforcerai de réparer comme l’ont fait mes pré-opinants quelque peu cette
impression d’un «dialogue de sourds» qui aurait pu se former.
6.2. A écouter certains discours on aurait pu cr oire que nous aurions rejeté entièrement les
garanties de l’article 36 de la convention de Vienne. Comment expliquer autrement le fait que l’on
nous a encore cité ce document de la Commission des droits de l’homme des Nations Unies
n° 2000/65 sur la peine de mort ? Pour ma part, je salue vivement cette initiative. Et nous ne nous
sommes pas opposés à ce que l’article 36 soit en effet appliqué.
6.3. Sur le plan personnel je tiens à répé ter que je supporte toute initiative qui pourrait
diminuer le nombre des exécutions et je ne serai pas satisfait tant que le chiffre sera supérieur à
zéro.
6.4. Cependant, je me considère comme un ju riste spécialisé quelque peu en matière des
droits de l’homme et non pas comme un activiste des droits de l’homme. Nous devons, même si ce
n’est pas toujours facile, nous la isser guider par la raison juridique. Par exemple, la Commission
européenne des droits de l’homme a déclaré irrecevable la requête de M.Kirkwood qui allait être
extradé aux Etats-Unis où il risquait la peine de mort 2; c’était une décision très difficile, mais le
droit l’exigeait. Hier, le coagent du Gouve rnement allemand a cru devoir faire certains
commentaires sur ma personne, commentaires que j’ai regrettés. Je tiens simplement à affirmer
que je n’accepte pas les étiquettes de «fondamentaliste» où d’adhérant à une Begriffsjurisprudenz
et je ne suis pas mû par les motivations qu’il me prête. Par ailleurs, ceci n’est pas une affaire dans
laquelle votre Haute Cour est appelée à se prononcer pour ou contre les droits de l’homme. La
tâche de la Cour se limite à dire quelles sont les obligations que les Etats ont assumées en ratifiant
la convention de Vienne et, notamment, si cette dernière leur impose de prévoir des recours
spécifiques en cas de violation.
22
Requête n° 10479/83, Kirkwood c. Royaume-Uni, décision du 12 février 1984, D.R. 37, p. 158 et suiv. - 31 -
6e.5. chiàro scuro que nous avons tant aimé sur les toiles de Rembrandt au Mauritshuis
nous le rejetons lorsqu’il est opéré pour distinguer simplement deux espèces de droit, les droits de
l’homme ou les droits de l’Etat. Il nous paraît just e et important de différencier. Je distingue, par
exemple, des droits de l’homme, le droit humanitaire, mais aussi le droit des minorités, sans
23
vouloir, évidemment, diminuer l’ importance des uns ou des autres . Je ne vois aucune utilité à
mélanger tout dans un même pot pour bouillir un minestrone ai dritti dell’uomo de droits
individuels internationaux. Nous entendons renforcer les droits de l’homme en leur reconnaissant
leur caractère spécifique. Ce n’est pas par hasard que l’article2, paragraphe3 a), du Pacte
international sur les droits civils et politiqu es (ainsi que les instruments régionaux analogues)
donne à toute personne alléguant que ses droits ont été violés le droit à un recours effectif. Le
Gouvernement allemand ne semble attacher aucune importance à cette clause puisqu’il prétend que
la même règle doit s’appliquer à la conventio n de Vienne qui ne connaît pas une disposition
analogue.
6.6. Pour les raisons avancées mardi, surtout celles associées au principe de la réciprocité,
nous maintenons notre point de vue que si la co nvention de Vienne accorde bien des droits
individuels, il ne s’agit pas là de droits de l’homme.
6.7. Le professeur Simma a dit hier son ét onnement de m’avoir entendu citer beaucoup de
jurisprudence de «Strasbourg». Pour ma part, son étonnement m’étonne. Il y a aujourd’hui dans le
monde deux cours internationales des droits de l’ homme. L’une a produit 2 jugements sur le fond
et 16 opinions consultatives, l’autre quelque 1200 jugements, sans parler des quelque
35 000 décisions de la Commission européenne des droits de l’homme. Nous devons tout de même
nous en tenir à la jurisprudence qui existe. N ous comprenons très bien que l’Allemagne s’appuie
sur le solitaire pilier de l’opinion OC/16 pour supporter sa thèse, mais le pilier ne tient pas, pour la
simple raison qu’il n’est motivé de façon insuffisan te. L’intention est tout à fait louable, mais
même ici le but ne peut pas sanctifier n’importe quel moyen.
6.8. Nous avons démontré, en vous citant, entre autres, un certain nombre de décisions
judiciaires trouvées dans des pays divers, que la convention de Vienne n’a pas été considérée,
23
Voir à ce sujet ma contribution à l’ouvrage dédié à la mémoire de Rolv Ryssdal. - 32 -
jusqu’ici, comme une règle de procédure péna le, règle dont la violation pourrait donner lieu à
cassation. Nous constatons que l’Allemagne n’ a pas été en mesure de nous opposer un seul
jugement qui irait dans le sens contraire.
6.9. Finalement, permettez-moi, Monsieur le président, Madame et Messieurs de la Cour, un
commentaire et une mise au point sur ce qui vous a été dit au sujet des moyens de recours en droit
de procédure pénale allemande. On vous a encore cité le paragraphe337 du code de procédure
pénal et la réglementation du recours en cassation appelé Revision, dont j’avais déjà parlé mardi.
Or, Monsieur le président, Madame et Messieurs de la Cour, il s’agit là d’un recours ordinaire dans
le sens qu’il doit être présenté dans un certain dé lai; il empêche notamment le jugement d’acquérir
la force de la chose jugée. Or, dans l’affaire LaGrand, ce n’est pas au cours de l’épuisement des
voies de recours interne que la règle du procedural default a été appliquée. Cette règle s’est
appliquée lorsque le jugement était déjà définitif , depuis un certain temps, dans des procédures de
habeas corpus. Le droit allemand ne connaît aucune pro cédure de ce genre. Et il n’y aurait donc
eu dans une situation parallèle en droit allemand aucun recours et non seulement pas de recours qui
était conditionné par une règle du procedural default. Il me semble que la Cour devait être
informée de ce fait et que ceci eusse été plutôt le devoir de l’Allemagne.
6.10. J’ai terminé, Monsieur le président,Madame et Messieurs de la Cour, mes quelques
observations, et je vous prie, Monsieur le président, de bien vouloir donner la parole maintenant au
professeur Matheson.
Le PRESIDENT : Je vous remercie, Monsieur le professeur Trechsel, et je donne maintenant
la parole au professeur Matheson.
MMAr. HESON:
7.1. Mr. President and distinguished Memb ers of the Court, I will respond briefly to
Germany's argument on the question of the effect of the Court's Order indicating provisional
measures. The Court will recall that on Tuesday, we made four basic points, each of which would
independently lead to the conclusion that the Cour t should decline to grant the relief requested by
Germany on this issue, without the need to resolv e the general question of the Court's authority to
indicate provisional measures of a binding legal character. - 33 -
7.2. First, we argued on Tuesday that in this case the measures indicated by the Court
were ⎯ by their own terms ⎯ not binding in character. In its argument on Thursday, Germany did
not attempt to argue that the language in the Cour t's Order was binding in character. This is not
surprising, since the language used in the author itative English text of the Order was clearly
non-binding.
7.3. Counsel for Germany, apart from charact erizing our argument as "the title of a bad
novel" ⎯ that is a good line ⎯ limited himself to suggesting that provisional measures must
always be binding, whatever their language, because judicial tribunals cannot issue orders that have
non-binding character. This is entirely unpersuasi ve. As we pointed out in detail on Tuesday,
international tribunals have in fact issued provisional measures that used non-binding language and
were not intended to be binding. Examples of this include the orders of the International Tribunal
24
of the Law of the Sea on 11March1998 in the Saiga No.2 case and of 27August1999 in the
Southern Bluefin Tuna case 25, as well as provisional measures issu ed by the European Court of
26
Human Rights in the case of Cruz Varas v. Sweden . In the latter case, the European Court stated
that: "the very language of the request ma de in the present case confirmed its non-binding
character" and that and I quote: "the question wh ether interim measures indicated by international
27
tribunals are binding is a controversial one and no uniform legal rule exists" .
7.4. There is no reason why the Court must give provisional measures in mandatory form.
As we argued, a tribunal may well choose to e xpress its expectations in a non-binding form,
particularly where ⎯ as in the present case ⎯ the measures in question deal with matters uniquely
within the core sovereign functions of States, or are given ex parte at the very outset of a
proceeding when the facts are complex and there is very limited time to assess the situation. In
24
http://www.un.org/Depts/los/ITLOS/Saiga2-Order.htm. The Order contains one operative paragraph ordering
one of the parties to refrain from certain action, and anot her operative paragraph recomme nding both parties to take a
certain course of action. The fact that one of the measures was recommendatory was specifically noted.
25
http://www.un.org/Depts/los/ITLOS/Order-tuna34.htm. See CR 2000/29, para. 7.10. (14 Nov. 2000).
26Eur.Cit.H.R. Series A, No. 201 (20 Feb. 1991).
27Id., paras. 92, 101. - 34 -
contrast, as we pointed out in detail on Tuesday, when a tribunal recognizes that a measure handed
28
down by it has obligatory character, it uses mandatory language .
7.5. Accordingly, we see no basis for concludi ng that the Court's Order in this case created
binding obligations. This alone would dispose of Germany's request for a declaration that the
United States violated legal obligations with respect to that Order.
7.6. Second, we argued on Tuesday that, whatever the legal character of the Court's Order,
the United States in fact complied, in that it took every step reasonably available to it, given the
extreme circumstances in which it had to act. On Thursday, Germany cited a list of actions that it
believed could and should have b een taken in the period of less than three hours between the
receipt of the Court's Order and the scheduled execution. It was argued that the President might
have issued an Executive Order directing Arizona not to proceed with the execution, or might have
filed suit against Arizona in federal court for the same purpose.
7.7. I trust the Court will understand that actions of such constitutional importance and
complexity could not possibly have been seriously considered in a period of less than three hours,
let alone carried out. Germany's argument seemed to suggest that federal intervention in state
criminal proceedings is fairly routine ⎯ for example, ordering a US Attorney to file an emergency
action against a state governor in federal court. In fact, nothing could be further from the truth, and
we know of no precedent for such an action. Certainly such an action would require a decision at
the highest levels of the US Government after considerable deliberation.
7.8. Germany also argued that the US Supr eme Court could and should have issued an
immediate stay of execution upon receipt of the Co urt's Order. Germany pretends that it would
have been a simple matter for the Supreme Court, which was at that moment engaged in resolving
three separate suits on a variety of issues in the LaGrand case, to decide with virtually no time for
reflection to take the extraordinary step of st aying a state execution on the basis of provisional
28
See CR2000/29, para.7.6. (14Nov.2000). On Tuesday, we cited a number of exam ples of this, including
certain provisional measures adopted by this Court in the case concerning Armed Activities on the Territory of the Congo.
Germany argued that our citation of this case contradicted our position that provisional meas ures of the Court generally
do not have binding effect, but this is not correct. As pointed out on Tuesday, the Court stated that both Parties
"must" take all measures to comply with various existing obligations of e Parties under international law; this
mandatory language reflected the fact that the Parties were already bound to carry out these international obligations. In
any event, whatever the authority for using mandatory language in the Congo case, it clearly shows that the Court uses
mandatory language when it recognizes the obligatory charac ter of the measure, in contrast to the non-obligatory
language of the Order in the present case. - 35 -
measures which on their face were not binding in ch aracter. Germany also seems to believe that
the Court should have summarily ignored its own pr ecedent with respect to its jurisdiction under
the US Constitution and should have immediately gi ven relief that was precluded by US law. We
believe it would be unreasonable to expect the Supreme Court to have acted in this way under these
extreme circumstances.
7.9. Given the Supreme Court's dismissal of the suits before it, and the fact that the
US Government did not consider the Court's Order to be legally binding, it is also unreasonable to
hold that the Governor of Arizona acted in violatio n of international legal obligations in declining
to stay the execution in these same final, hectic hours 29.
7.10. Third, we argued on Tuesday that the unjustified delay of Germany in bringing its
request for provisional measures until the last pos sible moment makes it inappropriate to grant
Germany's request for relief with respect to that Order. On Thursday, Germany made no reply to
this point. It made no further attempt to justif y the extraordinary timing of its request and its
inexplicable delay in raising the issue of consular notification with the United States or in filing its
case with this Court. It made no attempt to answer our contention that these actions seriously
prejudiced both the United States and the Court it self, and were inconsistent with the Court's
standards on procedural fairness, the equality of the parties, and the sound administration of justice.
7.11. This alone should preclude the relief sought by Germany on this point. To do
otherwise would give unwarranted blessing to last-minute filings of such requests where there is no
reasonable basis for a party's delay. As a pr ecedent for such actions in the future by other
applicants, it could have a significant and regretta ble effect on the Court's operations and the rights
of parties before it. One wonders, for example, what would happen should this occur when the full
Court is not in session at the particular time.
7.12. Finally, we argued on Tuesday that the Court can fully and adequately dispose of the
merits of this case without any need to resolv e this issue about the effect of the provisional
29In fact, for reasons indicated by Attorney General Napolitano on Tuesday, the Governor of Arizona had already
denied the reprieve recommendation made by the Board of Executive Clemency on 2 March, and a new recommendation
would have been required to enable the Governor to grant a re prieve in response to the Court's Order of 3March. This
would have required reassembly of the Board, and the participation of the victims. Gi ven the time constraints, the
distance involved (Arizona is a very large state), it is far from clethis could have been done in the short time
available. - 36 -
measures Order. We pointed out that the Court h as not found it necessary or appropriate to give
such relief in previous cases where one of the pa rties had not carried out provisional measures
orders, and there is no substantive need or utility in doing so in this case. If the Court grants any of
Germany's other requests for relief it will ha ve given ample redress for the execution of
Walter LaGrand, and if it decides against German y's other requests, it would be highly anomalous
to make the asserted violation of a provisional measures order the sole result of its decision on the
merits.
7.13. Germany addressed this point in its argument on Thursday, but with respect, its
comments seemed to be beside the point. Its argu ment seemed to be that the offence to Germany
from the failure of consular notification was aggravated by the execution of its national. Of course,
as the Court is aware, we have agreed that the failure of consular notification was a violation of the
Vienna Convention, but we disagree that the execution was a violation of the Convention or an
"aggravation" of the previous breach. But, in any event, we do not see how this assertion about the
merits of the case makes it necessary or appropriate for the Court to give additional relief directed
at the effect of its provisional measures Order.
7.14. In short, we contend that the circumst ances of this case offer a very unsuitable vehicle
for the Court to attempt to resolve the long-standi ng and important question about the scope of its
authority to issue binding provisional measures. These circumstances include: Germany's delay in
bringing its request until the last possible moment ⎯ which it did not attempt to justify on
Thursday; the non-binding character of the language of the Order ⎯ which Germany again did not
refute on Thursday; the impossibly short period in which the United States was given to act; and
the lack of any operative need to resolve this matter in the present case. We submit that, under
these circumstances, there is no basis for a dete rmination that the United States violated legal
obligations with respect to the provisional measures Order.
7.15. Now, just to be clear on the matter, we reiterate that if the Court nevertheless believes
that it must now decide the general question of whether its measures are binding under the Statute,
the United States reaffirms the detailed argumen ts on this point that are contained in our
Counter-Memorial. There has been no "strateg ic retreat" on our part on this matter, as was - 37 -
suggested by Germany. However, we believe th at the Court can and should dismiss the relief
requested by Germany, without having to resolve this general issue.
7.16. Mr. President, this concludes my comments, I thank the Court very much for its
attention. And I now suggest that the Court ca ll on the US Agent, Mr.Thessin, to complete the
rebuttal of the United States. Thank you, Sir.
The PRESIDENT: Thank you, Mr. Matheson. I now give the floor to Mr. Thessin.
TMHE.SSIN:
Mr. President, Members of the Court.
In his final remarks yesterday, Mr.Westdickenberg recalled the crimes of Karl and
WalterLaGrand and the suffering of the victims and those left behind. The brutal murder
committed by the LaGrands is indeed the backdrop against which this case arose.
But the case itself is neither about that brutal murder nor about the sentence imposed by the
authorities of the State of Arizona. It is lim ited to the dispute between Germany and the United
States arising out of the Vienna Convention on Consular Relations. And the Vienna Convention on
Consular Relations does not provide an interna tional legal basis on which Germany may complain
about the criminal justice system in the United States as it operated in the case of the LaGrands.
The United States has accepted responsibility, however, with respect to the single breach that
is before the Court, the breach of the duty owed to Germany under Article 36, paragraph 1 (b), of
the Consular Convention to inform Karl and Walter La Grand of their right to consular notification.
Accordingly, the final submission of the United States is as follows:
The United States of America respectfully requests the Court to adjudge and declare that:
(1) There was a breach of the United States obligation to Germany under Article36,
paragraph 1 (b), of the Vienna Convention on Consular Relations, in that the competent
authorities of the United States did not promp tly give to Karl and Walter LaGrand the
notification required by that Article, and that the United States has apologized to Germany for
this breach, and is taking substantial measures aimed at preventing any recurrence; and
(2) All other claims and submissions of the Federal Republic of Germany are dismissed. - 38 -
Thank you, Mr. President and Members of the Court, for your courtesies and attentiveness.
This ends the presentation of the United States side.
The PRESIDENT: Thank you very much Mr. Th essin. La Cour prend acte des conclusions
finales dont vous avez ainsi donné lecture au nom d es Etats-Unis d'Amérique, comme elle l'a fait
hier pour les conclusions finales présentées par M. Westdickenberg, agent de l'Allemagne. Je vais
maintenant donner la parole au juge Koroma qui souhaiterait poser une question.
Judge KOROMA: Thank you Mr. President. In the course of these hearings and in her
submissions, Germany contends that the United Stat es by applying the rules of domestic law, in
particular the doctrine of procedural default, viol ated her obligations to give full effect to the
purposes for which the rights accorded under Article 36 of the Consular Convention are intended.
My question is this: Is it Germany's position that the application of the doctrine of procedural
default in itself constitutes a violation of the Convention? Thank you, Mr. President.
Le PRESIDENT : Je vous remerc ie. Le texte de cette question sera bien entendu, comme
d'ordinaire, communiqué par écrit aux Parties. Je ra ppellerai maintenant que les Etats-Unis, s'ils le
désirent, pourront après la clôture de cette procé dure orale, présenter des observations au sujet des
documents nouveaux produits par l'Allemagne le 26octobre2000, et soumettre des documents à
l'appui de ces observations.
La Cour a fixé au 8 décembre la date limite pour la présentation de ces observations et de ces
documents. Les réponses par écrit aux questions posées par les juges Higgins et Koroma devront
également être fournies à cette même date du 8 décembre.
Ceci nous amène à la fin de cette série d'audi ences consacrées aux plaidoiries en l'affaire. Je
tiens à adresser mes vifs remerciements et ceux de la Cour aux agents, conseils et avocats des deux
Parties pour leurs interventions.
Conformément à la pratique, je prierai les agen ts de rester à la disposition de la Cour pour
tout renseignement complémentaire dont celle-ci pourrait avoir besoin. Sous cette réserve, je
déclare maintenant close la procédure orale en l'affaire LaGrand (Allemagne c.Etats-Unis
d’Amérique). - 39 -
La Cour va maintenant se retirer pour délib érer. Les agents des Parties seront avisés en
temps utile de la date à laquelle la Cour rendra son arrêt.
La Cour n’étant saisie d'aucune autre question aujourd'hui, l'audience est levée.
L'audience est levée à 15 h 35.
___________
Audience publique tenue le vendredi 17 novembre 2000, à 14 heures, au Palais de la Paix, sous la présidence de M. Guillaume, président