LaGrand (Germany v. United States of America) - The Court finds that the United States has breached its obligations to Germany and to the LaGrand brothers under the Vienna Convention on Consular Relat

INTERNATIONAL COURT OF JUSTICE

Peace Palace, 2517 KJ The Hague. Tel.(31-70-302 23 23). Cables: Intercourt, The Hague.
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Communiqué
unofficial
forimmediaterelease

No. 2001116
27 June 2001

LaGrand Case

(Germ.any v. United States of America)

The Court finds that the United States bas breached its obligations to Germany and
to the LaGrand brothers onder the Vienna Convention on Consular Relations

The Court fmds, for the first time in its history, that orders indicating
provisional measures are legally binding
•

THE HAGUE, 27 June 2001. Today the International Court of Justice (ICJ), principal judicial
organ of the United Nations, delivered its Judgment in the LaGrand Case (Germany v. United States of
America).

In îts Judgment, which is final, without appeal and binding for the Parties, the Court, wîth
regardto the merits of the dispute,

finds by fourteen votes to one that, by not informing Karl and Walter LaGrand without delay
following their arrest of their rights under Article 36, paragraph 1J]i},of the Vienna Convention
on Consular Relations, and by thereby depriving Germany the possibility, in a timely fashion, to
render the assistance provided for by the Convention to the individuals concerned, theted
Statesbreached its obligations to Germany and to the LaGrand brothers under Article 36,
paragraph l, of the Convention;

finds by fourteen votes to one that, by not permitting the review and reconsideration, in the light of
the rights set forth in the Convention, of the convictions and sentences of the LaGrand brothers
after the violations referred to in paragraph (3) above had been established, the United States
breached its obligation to Germany and to the LaGrand brothers under Article 36, paragraph 2, of
the Convention;

finds by thirteen votes to two that, by failing to take ali measures at its disposai to ensure that
Walter LaGrand was not executed pending the final decision the International Court of Justice

in the case, the Unitedates breached the obligation incumbent upon it under the Order indicating
provisional measures issued by the Court on 3 March 1999;

takes note unanimously of the commitment undertaken by the United States to ensure
implementation of the specifie measmes adopted in performance of its obligations under
Article 36, paragraph 1hl,of the Convention; and fmds that this commitment must be regarded
as meeting Germany'srequest for a general assurance non-repetition;

finds by fourteen votes to one that should nationals Germany nonetheless be sentenced to
severe penalties, without their rights under Article 36, paragraph 1 the Convention having
been respected, theUnited States, by means of its own choosing, shaH allow the review and
reconsiderationof the conviction and sentence by taking account of the violation of the rights set
forth in that Convention. -2-

Reasoning of the Court

In its Judgment, the Court begins by outlining the history of the dispute. It recalls that the
brothers Karl and Walter LaGrand- German nationals who bad been permanently residing in the
United States since childhood- were arrested in 1982 in Arizona for their involvement in an

attempted bank robbery, in the comse of which the bank manager was mmdered and another bank
employee seriously injmed. In 1984, an Arizona court convicted both of mmder in the first degree
and other crimes, and sentenced them to death. The LaGrands being German nationals, the Vienna
Convention on Consular Relations requîred the competent autliorities of the United States to inform
them without delay of their right to communicate with the consulate of Gennany. The United States
acknowledged thatthis did not occm. In fact, the consulatewa~ only made aware of the case in 1992

by the LaGrands themselves, who bad learnt of their rights from other somces. By that stage, the
LaGrands were precluded because of the doctrine of "procedural default" in United States law from
challenging theîr convictions and sentencesby claiming that their rights under the Vienna Convention
bad been violated. Karl LaGrand was executed on 24 February 1999. On 2 March 1999, the day
before the scheduled date of execution of Walter LaGrand; Germany brought the case to the

International Court of Justice. On 3 March 1999, the Court made an ûrder indicating provisional
measmes (a kind of interim injonction), stating inter alia that the United States should take ali
measures at its disposai to ensme that Walter LaGrand was not executed pending a final decision of
the Court. On that same day, Walter LaGrandwas executed.

The Court then examines certain objections of the United States to the Court'sjurisdiction and
to the admissîbility of Germany's submissions. It finds that it bas jurisdiction to deal with ali

Germany'ssubmîssions and that they are admissible.

Ruling on the merits of the case, the Court observes that the United States does not deny that it
violated, in relation to Germany, Article36, paragraph 1 {hl, of the Convention, which required the
competent authorities of the United Statesto inform the LaGrands of their right to have the consulate

of Germany notified of their arrest. lt adds that in the present case this breach led to the violation of
paragraph 1.@).and paragraph 1 .(g}of that Article, which deal respectively wîth mutual rights of
communication and access of consular officers and their nationals, and the right of consular officers to
visit their nationals in prison and to arrange for their legal representation. The Court further states that
the United States not only breached its obligations to Germany as aState party to the Convention, but
also that there bad been a violationof the indivîdual rights of the LaGrand brothers under Article 36,

paragraph l, which rights can be invokedin the Courtby their na;tionalState.

The Court then turns to Germany'ssubmission that th U~nited States, by applying rules of its •
domestic law, in particular the doctrineof "procedural default", violated Article 36, paragraph 2, of the
Convention. This provision requires the United States to "enable full effect to be given to the
purposes for which the rights accorded [onder Article 36] are .intended". The Court states that, in
itself, the rule does not violate Article 36. The problem arises, according to the Court, when the rule

in question does not allow the detained individualto challenge aconviction and sentence by invoking
the failure of the competent national authorities to comply with their obligations onder Article 36,
paragraph 1. The Court concludes that inthe present case, the pi-ocedmaldefault rule bad the effect of
preventing Germany, in a timely fashion, from assisting the LaGrands as provided for by the
Convention. Under those circumstances, the Court holds that in the present case the above-mentioned

rule violated paragraph 2of Article 36.

With regard to the alleged violation by the United States of the Court'sùrder of 3 March 1999
indicating provisional measmes, the Court points out that it is the first time thaitis called upon to
determine the legal effects of orders made under Article 41 of its Statute- the interpretation of which
has been the subject of extensive controversy in the literature. After interpreting Article 41, the Court

finds that such ordersdo have binding effect. Inthe present case, the Court concludes that its Order of
3 March 1999 "was not a mere exhortation" but "created a legal obligation for the United States". The
Court goes on to consider the measures taken by the United Statesto implementthe ûrder. ltobserves
that the mere transmission of its Order to the Govemor of Arizona wîthout any comment was,-. -3-
1!'
•
"certainly less than could have been done even in the short time available". lt finds the same to be true
of the United States Solicitor General's categorical statement in his brief letter to the United States
Supreme Court that "an order of the International Court of Justice indicating provisional measures is
not binding". The Court further notes that the Govemor of Arizona decîded not to give effect to the
Order, even though the _Arizona Clemency Board had reconunended a stay of execution for
Walter LaGrand. Itobserves that the United States Suprerne Court rejected an application by
Germany for a stay of execution, "[g]iven the tardiness of the pleas and the jurisdictional barriers they
implicate", while it would have been open toit, as one of its members urged, to grant a preliminary
stay, which would have given it "time to consider ... the jurisdictional and international legal issues
involved". The Court concludes that the United States did not comply with the Order of
3 March 1999.

In respect of Germany's request seeking an assurance that the United States will not repeat its
unlawful acts, the Court takes note of the fact that the latter repeatedly stated in ali phases of these
proceedings that it is carrying out a vast and detailed progranune itoensure compliance by its
competent authorities with Article 36 of the Convention. The Court considers that this commitment to
ensure implementation of specifie measures must be regarded as meeting the request made by

Germany. The Court finds, nevertheless, that if the United States, notwithstanding this commitment,
should fail in its obligation of consular notification to the detriment of German nationals, an apology
• would not suffice in cases where the individuals concemed have been subjected to prolonged detention
or convicted and sentenced to severe penalties; in the case of such a conviction and sentence it would
be incurnbent upon the United States to allow the review and reconsideration of the conviction and
sentence by taking account of the violation of the rights set forth in the Convention.

Composition of the Court

The Court was composed as follows: President Guillaume; Vice-President Shi; Judges Oda,
Bedjaoui, Ranjeva, Herczegh, Fleischhauer,Koroma, Vereshchetin, Higgins, Parra-Aranguren,
Kooijmans, Rezek, Al-K.hasawneh, Buergenthal; Registrar Couvreur.

President Guillaume appends a declaration to the Judgment of the Court; Vice-President Shi
appends a separate opinion to the Judgment of the Court; Judge Oda appends a dissenting opinion to
the Judgment of the Court; Judges Koroma and Parra-Aranguren append separate opinions to the
Judgment of the Court; Judge Buergenthal appends a dissenting opinion ta the Judgment ofthe Court.

•

A summary of the Judgment is given in Press Communiqué No. 200l/16bis, ta which a
sununary of the opinions is annexed. The full text of the Judgment and of the opinions is available on
the Court's website (http://www.icj-cij.org).

Information Department:
Mr. Arthur Witteveen, Firstecretary (+31 70 302 23 36)
Mrs. Laurence Blairon, Information Officer (+31 70 302 23 37)
E-mail address: [email protected]