INTERNATIONAL COURT OF JUSTICE
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Website: www.icj-cij.org
Summary
Not an official document
Summary 99/9bis
5 March 1999
LaGrand Case
(Germany v. United States of America)
Summary of the Order
History of the case and submissions(paras. 1-12)
The Court begins by recalling that at 7.30 p.m. (The Hague time) on 2 March 1999 Germany
instituted proceedings against the United States of America for “violations of the Vienna
Convention on Consular Relations [of 24April1963]” (hereinafter the “Vienna Convention”)
allegedly committed by the United States. Ge rmany bases the jurisdiction of the Court on
Article36, paragraph1, of the Statute of the Court and on ArticleI of the Optional Protocol
concerning the Compulsory Settlement of Disputes, which accompanies the Vienna Convention on
Consular Relations (“the Optional Protocol”).
In Germany’s Application, it is stated that in 1982 the author ities of the State of Arizona
detained two German nationals, Karl and WalterLa Grand; it is maintained that these individuals
were tried and sentenced to death without having been informed, as is required under Article36,
subparagraph 1 (b), of the Vienna Convention, oftheir rights under that provision; it is specified that
that provision requires the competent authorities of a State party toadvise, “without delay”, a national
of another State party whom such authorities arrest or detain of the national’ s right to consular
assistance guaranteed by Article36; it is also alleged that the failure to provide the required
notification precluded Germany from protecting its nationals’ interests in the United States provided
for by Articles 5 and 36 of the Vienna Convention at both the trial and the appeal level in the United
States courts.
Germany states that it had been, until very recently, the contention of the authorities of the
State of Arizona that they had been unaware of the fact that Karl and Walter LaGrand were nationals
of Germany; and that it had accepted that cont ention as true. However, during the proceedings
before the Arizona Mercy Committee on 23February 1999, the State Attorney admitted that the
authorities of the State of Arizona had indeed been aware since 1982 that the two detainees were
German nationals. Germany further states that Karl and Walter LaGrand, finally with the assistance
of German consular officers, did claim violations of the Vienna Convention before the Federal Court
of First Instance; that that court, applying the municipal law doctrine of “procedural default”,
decided that, because the individua ls in question had not asserted their rights under the Vienna
Convention in the previous legal proceedings at State level,they could not assert them in the Federal
habeas corpus proceedings; and that the intermediate federal appellate court, last means of legal
recourse in the United States available tothem as of right, affirmed this decision. - 2 -
Germany asks the Court to adjudge and declare:
“(1)that the United States, in arresting, detaining, trying, convici g and sentencing Karl
and WalterLaGrand, as described in the preceding statement of facts,
violated its international legal obligations to Germany, in its own right and
in its right of diplomatic protecti on of its nationals, as provided by
Articles 5 and 36 of the Vienna Convention,
(2)that Germany is therefore entitled to reparation,
(3)that the United States is under an international legal obligation not to apply the
doctrine of ‘procedural default’ or anyother doctrine of national law, so as
to preclude the exercise of the rights accorded under Article36 of the
Vienna Convention; and
(4)that the United States is under an internat ional obligation to carry out in conformity
with the foregoing international legal obligations any future detention of or
criminal proceedings against any other German national in its territory,
whether by a constituent, legislative, executive, judicial or other power,
whether that power holds a superior or subordinate position in the
organization of the United States, andwhether that power’s functions are of
an international or internal character;
and that, pursuant to the foregoing international legal obligations,
(1)the criminal liability imposed on Karl and WalterLaGrand in violation of
international legal obligations is void,and should be recognized as void by
the legal authorities of the United States;
(2)the United States should provide repa ration, in the form of compensation and
satisfaction, for the execution ofKarl LaGrand on 24 February 1999;
(3)the United States shoul d restore the status quo ante in the case of WalterLaGrand,
that is re-establish the situation that existed before the detention of,
proceedings against, and conviction a nd sentencing of that German national
in violation of the United States’ international legal obligation took place;
and
(4)the United States should provide Germ any a guarantee of the non-repetition of the
illegal acts.”
On 2 March 1999, Germany also submitted an urgent request for the indication of provisional
measures in order toprotect its rights.
In its request for the indication of provisiona l measures of protection, Germany recalls that
KarlLaGrand was executed on 24February1999, de spite all appeals for clemency and numerous
diplomatic interventions by the German Government at the highest level; that the date of execution
of Walter LaGrand in the State of Arizona has beenset for 3 March 1999; and that the request for the
urgent indication of provisional m easures is submitted in the interest of this latter individual.
Germany emphasizes that: “The importance and sanctity of an individual human life are well
established in international law. As recognized by Article6 of the International Covenant on Civil
and Political Rights, every human being has the inherent right to life and this right shall be protected
by law.” Germany adds the following:
“Under the grave and exceptional circumstances of this case, and given the paramount
interest of Germany in the life and liberty of its nationals, provisional measures are
urgently needed to protect the life of Germany’s national WalterLaGrand and the - 3 -
ability of this Court to order the relief to which Germany is entitled in the case of
WalterLaGrand, namely restoration of the status quo ante . Without the provisional
measures requested, the United States will execute WalterLaGrand—as it did
execute his brother Karl—before this C ourt can consider the merits of Germany’s
claims and Germany will be forever deprived of the opportunity to have this status quo
ante restored in the event of a judgment in its favour.”
Germany asks that, pending final judgment in the present case, the Court indicate that:
“The United States should take all measures at its disposal to ensure that
Walter LaGrand is not executed pending the final decision in these proceedings, and it
should inform the Court of all the measures which it has taken in implementation of
that Order.”
It asks the Court moreover to consider its request as a matter of the greatest urgency “in view of the
extreme gravity and immediacy of the thre at of execution of a German citizen”.
By a letter dated 2 March 1999, the Vice-President of the Court addressed the Government of
the United States in the following terms:
“Exercising the functions of the presidency in terms of Articles 13 and 32 of the Rules
of Court, and acting in conformity with Article74, paragraph4, of the said Rules, I
hereby draw the attention of [the] Government [of the United States] to the need to act
in such a way as to enable any Order the Court will make on the request for
provisional measures to have its appropriate effects.”
On 3 March 1999, at 9.00 a.m. (The Hague time),the Vice-President of the Court received the
representatives of the Parties in order to obtain information from them with regard to the subsequent
course of the proceedings. The representative of the German Government stated that the Governor of
the State of Arizona had rejected a recommendation by the Mercy Committee that the execution of
Walter LaGrand should be stayed, so that the latterwould in consequence be executed that same day
at 3.00 p.m. (Phoenix time); he emphasized the extrem e urgency of the situation; and referring to the
provisions of Article 75 of the Rules of Court, he asked the Court to indicate forthwith, and without
holding any hearing, provisio nal measures proprio motu ; the representative of the United States
pointed out that the case had been the subject of lengthy proceedings in the United States, that the
request for provisional measures submitted by Germany was made at a very late date and that the
United States would have strong obj ections to any procedure such as that proposed only that very
morning by the representative ofGermany which would result in the Court making an Order proprio
motu without having first duly heard the two Parties.
*
The Court’s reasoning (paras. 13-28)
The Court begins by pointing out that on a re quest for the indication of provisional measures
the Court need not, before deciding whether or not to indicate them, finally satisfy itself that it has
jurisdiction on the merits of the case, but that it may not indicate them unless the provisions invoked
by the Applicant appear, prima facie, to afford a basis on which the jurisdictoin of the Court might be
founded.
It notes that ArticleI of the Optional Protocol, which Ge rmany invokes as the basis of
jurisdiction of the Court in this case, is worded as follows: - 4 -
“Disputes arising out of the interpretation or application of the Convention shall lie
within the compulsory jurisdiction of th e International Court of Justice and may
accordingly be brought before the Court by an application made by any party to the
dispute being a Party to the present Protocol”;
and that both Germany and the United States are pa rties to the Vienna Convention and to the Optional
Protocol.
The Court observes that in its Application Ge rmany stated that the issues in dispute between
itself and the United States concern Articles5 and 36 of the Vienna Convention and fall within the
compulsory jurisdiction of the Court und er Article I of the Optional Protocol.
The Court finds that in the light of the requestssubmitted by Germany in its Application and of
the submissions made therein, there exists prima facie a dispute with regard to the application of the
Convention within the meaning of ArticleI of the Optional Protocol; and that, prima facie, it has
jurisdiction under Article I of the aforesaid Optional Protocol to decide the dispute between Germany
and the United States.
*
The Court observes that the s ound administration of justice requires that a request for the
indication of provisional measuresfounded on Article 73 of the Rules of Court be submitted in good
time; that Germany emphasizes that it did not become fully aware of the facts of the case until
24February1999 and that since then it has pursued its action at diplomat ic level; that, under
Article75, paragraph1, of its Rules, the Court “may at any time decide to examine proprio motu
whether the circumstances of the case require the indication of provisional measures which ought to
be taken or complied with by any or all of the parties”; that a provision of this kind has substantially
featured in the Rules of Court since 1936, and that if the Court has not, to date, made use of the power
conferred upon it by this provision, the latter appears nonetheless to be clearly established; that the
Court may make use of thispower, irrespective of whether or not ithas been seised by the parties of a
request for the indication of provisional measures; thatin such a case it may, in the event of extreme
urgency, proceed without holding oral hearings; and that it is for the Court to decide in each case if,
in the light of the particular circumstances ofthe case, it should make use of the said power.
The Court then observes that the power to indicate provisional measuresunder Article 41 of its
Statute is intended to preserve the respective right s of the parties pending its decision; that such
measures are only justified if there is urgency and that the Court wi ll not order interim measures in
the absence of irreparable prejudice to rights which are the subject of dispute.
The Court then points out that the execution of Walter LaGrand is ordered for 3 March 1999;
and that such an execution would cause irreparable harm to the rights claimed by Germany in this
particular case.
In doing so the Court observes that the issues before the Court in the present case do not
concern the entitlement of the federal states within the United States to resort to the death penalty for
the most heinous crimes; and that further, the function of the Court is to resolve international legal
disputes between States, inter alia when they arise out of the interpretation or application of
international conventions, and not toact as a court of criminal appeal.
* - 5 -
In the light of the above considerations, the Co urt finds that the circum stances require it to
indicate, as a matter of the greatest urgency andwithout any other proceedings, provisional measures
in accordance with Article41 of its Statute and with Article 75, paragraph 1,of its Rules; it recalls
that measures indicated by the Court for a stay of execution would necessarily be provisional in
nature and would not in any way prejudge fidings the Court might make on the merits.
The Court finally observes that the internationa l responsibility of a State is engaged by the
action of the competent organs and authorities acting in that State, whatever they may be; that the
United States should take all measures at its disposal to ensure that Walter LaGrand is not executed
pending the final decision in the proceedings; that according to the information available to the
Court, implementation of the measures indicated in the present Order falls within the jurisdiction of
the Governor of Arizona; that the Government of the United States is consequently under the
obligation to transmit the present Order to the said Governor; and that the Governor of Arizona is
under the obligation to act in conformity with the international undertakings of the United States.
*
The full text of the operative paragraph (para. 29) reads as follows:
“For these reasons,
CHOEURT
Unanimously,
I.Indicatesthe following provisional measures:
(a)The United States of America should take all measures at its disposal to ensure that
WalterLaGrand is not executed pending the final decision in these proceedings,
and should inform the Court of all th e measures which it has taken in
implementation of this Order;
(b)The Government of the United States of America should transmit this Order to the
Governor of the State of Arizona.
II.Decides, that, until the Court has given its final decision, it shall remain seised of the matters
which form the subject-matter of this Order.”
___________
Summary of the Order of 5 March 1999