2000/2R
International Court Cour internationale
of Justice de Justice
THHEAGUE LAAYE
YEAR 2000
Public sitting
held on Tuesday 14 November 2000, at 10 a.m., at the Peace Palace,
President Guillaume presiding
in the LaGrand Case
(Germany v. United States of America)
_______________
VERBATIM RECORD
_______________
ANNÉE 2000
Audience publique
tenue le mardi 14 novembre 2000, à 10 heures, au Palais de la Paix,
sous la présidence de M. Guillaume, président
en l'affaire LaGrand
(Allemagne c. Etats Unis d'Amérique)
____________
COMPTE RENDU
____________ - 2 -
Present: Presidntuillaume
Vice-Presdheint
Oda Judges
Bedjaoui
Ranjeva
Herczegh
Fleischhauer
Koroma
Vereshchetin
Higgins
Parra-Aranguren
Kooijmans
Rezek
Al-Khasawneh
Buergenthal
Coeugstruarr
⎯⎯⎯⎯⎯⎯ - 3 -
Présents : M. Guillaume,président
viceSré,.ident
OMdaM.
Bedjaoui
Ranjeva
Herczegh
Fleischhauer
Koroma
Vereshchetin
HMigmes
PaMra-.Aranguren
Kooijmans
Rezek
Al-Khasawneh
Buejrgensthal,
Cgoefferr,
⎯⎯⎯⎯⎯⎯ - 4 -
The Government of the Federal Republic of Germany is represented by:
Mr. Gerhard Westdickenberg, Director General for Legal Affairs and Legal Adviser, Federal
Foreign Office,
H.E. Mr. Eberhard U. B. von Puttkamer, Ambassador of the Federal Republic of Germany to the
Kingdom of the Netherlands,
as Agents;
Mr. Bruno Simma, Professor of Public International Law at the University of Munich,
as Co-Agent and Counsel;
Mr.Pierre-MarieDupuy, Professor of Public In ternational Law at the University of Paris
(Panthéon-Assas) and at the European University Institute in Florence,
Mr. Donald Francis Donovan, Debevoise & Plimpton, New York,
Mr. Hans-Peter Kaul, Head of the Public International Law Division, Federal Foreign Office,
Dr. Daniel Khan, University of Munich,
Dr. Andreas Paulus, University of Munich,
as Counsel;
Dr. Eberhard Desch, Federal Ministry of Justice,
Dr. S. Johannes Trommer, Embassy of the Federal Republic of Germany in the Netherlands,
Mr. Andreas Götze, Federal Foreign Office,
as Adviser;
Ms Fiona Sneddon,
as Assistant.
The Government of the United States of America is represented by:
Mr. James H. Thessin, Acting Legal Adviser, United States Department of State,
as Agent;
Ms Catherine W. Brown, Assistant Legal Adviser for Consular Affairs, United States Department
of State, - 5 -
Le Gouvernement de la République fédérale d'Allemagne est representé par :
M. Gerhard Westdickenberg, directeur général d es affaires juridiques et conseiller juridique du
ministère fédéral des affaires étrangères,
S. Exc. M. Eberhard U. B. von Puttkamer, ambassadeur de la République fédérale d’Allemagne
auprès du Royaume des Pays-Bas,
comme agents;
M. Bruno Simma, professeur de droit international public à l’Université de Munich,
comme coagent et conseil;
M.Pierre-Marie Dupuy, professeur de droit inte rnational public à l’Université de Paris
(Panthéon-Assas) et à l’Institut universitaire européen, Florence,
M. Donald Francis Donovan, du cabinet Debevoise & Plimpton, New York,
M.Hans-Peter Kaul, chef de la division du dr oit international public du ministère fédéral des
affaires étrangères,
M. Daniel Khan, de l’Université de Munich,
M. Andreas Paulus, de l’Université de Munich,
comme conseils;
M. Eberhard Desch, du ministère fédéral de la justice,
M. S. Johannes Trommer, de l’ambassade de la République fédérale d’Allemagne aux Pays-Bas,
M. Andreas Götze, du ministère fédéral des affaires étrangères,
comme conseillers;
Mme Fiona Sneddon,
comme assistante.
Le Gouvernement des Etats Unis d'Amérique est representé par :
M.James H. Thessin, conseiller juridique par intérim du département d’Etat des Etats-Unis
d’Amérique,
coagment;
Mme Catherine W. Brown, conseiller juridique ad joint chargé des affaires consulaires au
département d’Etat des Etats-Unis d’Amérique, - 6 -
Mr. D. Stephen Mathias, Assistant Legal Adviser for United Nations Affairs, United States
Department of State,
as Deputy Agents;
The Honourable Janet Napolitano, Attorney-General, State of Arizona,
Professor Michael J. Matheson, Professor of Intern ational Law, School of Advanced International
Studies, Johns Hopkins University; former Acti ng Legal Adviser, United States Department of
State,
Professor Theodor Meron, Counsellor on Internationa l Law, United States Department of State;
CharlesL. Denison Professor of International La w, New York University; Associate Member
of the Institute of International Law,
Professor Stefan Trechsel, Professor of Criminal Law and Procedure, University of Zurich Faculty
of Law,
as Counsel and Advocates;
Professor Shabtai Rosenne, Member of the Israel Ba r; Honorary Member of the American Society
of International Law; Member of the Institute of International Law,
Ms Norma B. Martens, Assistant Attorney-General, State of Arizona,
Mr. Paul J. McMurdie, Assistant Attorney-General, State of Arizona,
Mr. Robert J. Erickson, Principal Deputy Chief, Appellate Section, Criminal Division, United
States Department of Justice,
Mr. Allen S. Weiner, Counsellor for Legal Affairs, Embassy of the United States of America in the
Netherlands,
Ms Jessica R. Holmes, Attaché, Office of the C ounsellor for Legal Affairs, Embassy of the United
States of America in the Netherlands,
as Counsel. - 7 -
M. D. Stephen Mathias, conseiller juridique adjoint chargé des questions concernant les
Nations Unies au département d’Etat des Etats-Unis d’Amérique,
comme agents adjoints;
L’honorable Janet Napolitano, Attorney-General de l’Etat de l’Arizona,
M.Michael J. Matheson, professeur de droit international à la School of Advanced International
Studies de la Johns Hopkins University, ancien conseiller juridique par intérim du département
d’Etat des Etats-Unis d’Amérique,
M. Theodor Meron, conseiller chargé des questions de droit international au département d’Etat des
Etats-Unis d’Amérique, titulaire de la chaire Charles L. Denison de droit international à la
New York University, membre associé de l’Institut de droit international,
M.Stefan Trechsel, professeur de droit pénal et de procédure pénale à la faculté de droit de
l’Université de Zurich,
comme conseils et avocats;
M.Shabtai Rosenne, membre du barreau israélien, membre honoraire de l’ American Society of
International Law, membre de l’Institut de droit international,
Mme Norma B. Martens, Attorney-General adjoint de l’Etat de l’Arizona,
M. Paul J. McMurdie, Attorney-General adjoint de l’Etat de l’Arizona,
M. Robert J. Erickson, chef principal adjoint à la section des recours de la division du droit pénal
du département de la justice des Etats-Unis d’Amérique,
M. Allen S. Weiner, conseiller aux affaires juridiques à l’ambassade des Etats-Unis aux Pays-Bas,
Mme Jessica R. Holmes, attachée au cabinet du conseiller aux affaires juridiques à l’ambassade des
Etats-Unis aux Pays-Bas,
comconseils. - 8 -
Le PRESIDENT : Veuillez vous asseoir. La séance est ouverte, et je donne immédiatement
la parole à M. James Thessin, Acting Legal Adviser, United States Department of State.
Mr. THESSIN:
1.1. Thank you, Mr.President. Members of th is Court. Learned friends of the Federal
Republic of Germany. Ladies and Gentlemen.
1.2. I am honoured to appear as the Agent of the United States. My colleagues and I are here
to assist this Court to understand the facts and le gal principles that underlie a dispute between the
United States and Germany.
1.3. Because this dispute came before this Court in the most gripping of circumstances, when
an individual faced imminent execution for murder, it is easy to stray from the central issues of the
case before us. But as international lawyers and jurists, we must retain our focus on the
fundamental facts and legal principles.
1.4. Allow me to summarize what this case is about and what it is not about. My colleagues
will follow with greater detail. With your permi ssion, Mr. President, counsel will not read the full
citations that support our arguments, but they are in cluded in the texts provided to the Court and to
opposing counsel.
The issues of the case
1.5. This case is about the interpretation and application of th e Vienna Convention on
Consular Relations and nothing else. While it bears the name LaGrand Case (Germany v. United
States of America) , the case concerns only the dispute between the United States and Germany
arising out of the application of the Vienna C onvention on Consular Relations. Everything else in
the German claims and submissions is outside the jurisdiction of the Court under the Optional
Protocol.
1.6. The United States and Germany agree with respect to two central matters in the case.
First, we agree that the Consular Conventio n required the competent authorities to inform
Walterand KarlLaGrand without delay that each had a right to have those authorities notify
German consular officials of his arrest. And sec ond, we agree that the competent authorities did
not inform either of the LaGrands of this right. - 9 -
1.7. Germany and the United States disagree, on the other hand, on what obligation the
United States bears for this breach. The United St ates believes that this br each has been properly
remedied by the appropriate satisfaction it has already given . 1
1.8. First, the United States has acknowledged that its authorities did not inform Walter and
KarlLaGrand of their right to consular no tification as required by Article36, paragraph1 (b), of
the Consular Convention. We made this ac knowledgment even though the failure was based upon
a good faith mistake arising in complex circumstances and in our view created no prejudice.
1.9. Second, the Department of State, on behalf of the United States, has extended its sincere
apologies and deep regrets to the Government of Germany for the breach of the United States
obligation under Article36, paragraph1 (b), in the cases of Karl and WalterLaGrand. I have no
hesitation, Mr. President, reiterating that apology here again before this Court.
1.10. Third, the Department has assured Ge rmany that the United States recognizes that
compliance with consular notification requirements must be improved and th at it is engaged in a
comprehensive effort to this end.
1.11. We have the highest interest in improvi ng compliance with the Consular Convention.
US nationals travel to every corner of the wo rld. Without a properly functioning international
system of consular notification, our consular officials abroad cannot fully perform their functions.
Accordingly, our commitment to improve our performance in this area is genuine and continuing.
1.12. To improve our effort, the United States invited Germany in the Note of
18February2000 to tell us promptly of any case in which Germany believed that a failure of
consular notification may have occurred. Germany did not respond to that Note, but on 26 October
it did file with this Court a list of cases it apparent ly believes involved failures to provide consular
notification. Last-minute allegations without op portunity for the United States to review cannot
fairly support a conclusion that the United States fl agrantly disregards Article36. In light of the
late date on which the Court admitted the new doc uments, the Court should attach no evidentiary
weight to their admission.
11.8. These steps are described in detail in the frst two Documentary Exhibits to the United States
Counter-Memorial: the Note of 18Feb. 2000 from the Department of State to the Embassy of the Federal Republic of
Germany (Exhibit 2), and the Report of Investigation, dated 17 Feb. 2000, that was attached to the Note (Exhibit 1). - 10 -
1.13. Mr.President, this dispute with Germ any should have been resolved when the United
States took these several steps. As the Court will hear today, this resolution is consistent with the
Consular Convention. This resolution is consiste nt with State practice; and this resolution is
consistent with the law of State responsibility. No further reparation by the United States is
necessary or appropriate in the circumstances of this case.
1.14. Germany has not done more for its br eaches when Germany failed to notify US
nationals in a timely way of their consular right s, nor has the United States asked Germany to do
more in those cases.
1.15. Germany, on the other hand, has a much more expansive view on what remedy the
United States owes for its failure to notify the La Grands. Germany asks that the Court determine
that the executions were wrongful, when Germany does not show that the lack of notification
undermined in this case the fairness of these two trials or the full consideration of mitigating
factors. Germany asks for guarantees of non-re petition, when Germany itself has less than a
perfect record. Germany asks for special rules for death penalty cases, even though the Vienna
Convention makes no such distinction.
1.16. In effect, Germany asks this Court to cr eate additional obligations to which the Parties
have not agreed. Neither the interests of German y, nor the interests of the United States, nor the
interests of the international community as a whole, are served if this Court accepts Germany's
invitation to distort the requirements of the Cons ular Convention and exaggerate the remedies for
its violation.
1.17. We believe a way forward exists for the Court: to determine that the actual dispute
between the Parties ⎯ the violation of an obligation owed Germany to inform the LaGrands of
their right to consular notification ⎯ has been resolved by th e United States apology and
appropriate assurances of non-re petition, making the case in that sense moot. Germany's other
claims are speculative and derivative and do not stand on their own.
Issues not before the Court
1.18. This proceeding does not require the Court to address several other matters that
Germany spent substantial time discussing yesterday. - 11 -
1.19. Criminal systems of States . As the Court itself has wisely stated, the function of this
Court is to resolve international legal disputes between States and "not to act as a court of criminal
appeal" . Instead, the Court's role focuses on the interpretation and application of international
conventions. Thus, we must not allow Germany to lead us into examining again the competency of
counsel, analysing newly manufactured allegations of racial discrimination, and restructuring the
United States criminal system.
1.20. The Consular Convention cannot properly be read to dictate to a State how its domestic
judicial system is to be structured. Germany, in effect, has invited this Court to create a new
international legal obligation, one that would necess arily intrude deeply into the domestic criminal
justice system of any State that imposes punishment for any crime, whenever a violation of
consular notification occurs. Mr.President, Me mbers of this Court, the German position would
involve this Court in legislation, not interpretati on, and would require this Court far to exceed its
proper judicial role.
1.21. Although we oppose Germany's efforts to e xpand this case, this is not because we fear
such an enquiry. In fact, with the single excep tion of the violation of the duty to inform the
LaGrands, the United States has acted in full accordance with state, federal and international law at
all stages of the proceedings, before Arizona courts, before federal courts and before this Court. At
the sentencing hearing, advocates for the LaGra nds brought forward mitigating facts from their
earliest childhood days in Germany. The LaGrands were treated in every manner as if they had
been United States citizens, which many officials, and even at least one of the LaGrand brothers,
thought was the case. Germany's impact at best on this case would have been cumulative of this
exhaustive process. As Judge Oda stated,
"if consular contact had occurred at the time of Mr.WalterLaGrand's arrest or
detention, the judicial procedure in the United States domestic courts relating to his
3
case would have been no different" .
1.22. Despite Germany's harsh condemnation of the United States legal system in its
Memorial and in its oral presentations, and before any need existed to sustain its questionable
2
Order of 3 March 1999, LaGrand Case (Germany v. United States), para. 25.
3LaGrand Case (Germany v. United States of America) , Order of 3March1999, declaration of JudgeOda,
para. 4. - 12 -
claims in this Court, the highest authorities of Germany, PresidentHerzog and the Minister of
Justice, who surely speak for Germany in the mo st authoritative way, have paid tribute to the
fairness of the procedures involved in the LaGrand case. PresidentHerzog specifically wrote, in
the translation provided by Germany: "In no way do I doubt the legitimacy of the conviction nor
the fairness of the procedures before the courts of the State of Arizona and the federal courts." The
Minister of Justice wrote to similar effect:
"[N]or are there any doubts about the fact that the proceedings were conducted
under the Rule of Law ⎯ ultimately leading to the imposition of the death penalty
with final and binding effect ⎯ before the courts of the State of Arizona and before
the Federal Courts."
The LaGrands ⎯ to cite the Minister of Justice ⎯ committed "dreadful crimes" marked with
"particular brutality".
1.23. Good faith. Nor is the good faith of the United States properly in doubt. The Report of
Investigation (at Exhibit1) describes in cons iderable detail the circumstances surrounding the
arrest of the LaGrand brothers, including the c onfusion that existed with respect to their
nationalities, and explains the manner in which the vi olation of the duty to inform took place. In a
country of immigrants where most residents trace their roots to other countries, in a country
without national identity cards, the United States goes to great lengths to avoid divisions between
citizens and non-citizens. Distinguishing citizens from non-citizens is therefore often difficult.
The United States delegation, for example, has advocates born in Germany, Poland and
Switzerland and another whose ancestors immigrat ed from Germany; only one of us is not a
citizen. The implication that Arizona authorities negligently or deliberately violated the duty to
inform the LaGrand brothers is insupportable.
1.24. The US efforts to address the violation in this case to the best of its ability, however,
were seriously complicated by the late date at which Germany raised the issue. German Foreign
Minister Fischer first raised the possibility of a failure of consular notification with
SecretaryAlbright on 22February1999, only two days before the scheduled execution of
KarlLaGrand, leaving insufficient time for an inv estigation of the matter prior to the execution.
Similarly, the Application and Request for Provisi onal Measures before this Court were filed the
evening before the scheduled execution of WalterLa Grand. I ask the Court to consider that the - 13 -
untimely diplomatic contact concerning the failure of consular notification and the untimely filing
of the Application in this Court are both directly attributable to the Government of Germany.
1.25. Capital Punishment . Although many here have grave reservations about capital
4 5
punishment, this case is not, as the opinion of the Court and the German Memorial agree , a case
about capital punishment. International law permits capital punishment when it is duly prescribed
for commission of the most serious crimes and carried out by a State in accordance with due
process of the law and stringent procedural safeguards, as is the case in the United States. The
International Covenant on Civil and Political Right s specifically recognizes this. Some 70 States
currently retain and use the death penalty for the mo st serious crimes. The constituent states of the
United States that have chosen to retain the op tion of capital punishment for the most serious
crimes have done so by open and democratic means.
1.26. Most importantly, the Vienna Convention on Consular Relations makes no reference to
capital punishment. No reference exists to capital p unishment in its extensive preparatory work.
No reference exists to capital punishment in th e academic writing on the Convention prior to the
case Paraguay brought in this Court in 1998. No r do the provisions of the Convention make any
distinction between cases of capital punishment and other criminal cases involving other sentences.
Any interpretation of this Convention by this C ourt in this case, accordingly, should be equally
applicable to non-capital cases as well. I have no doubt that the Court will recall that its
jurisdiction is limited to the interpretation and application of the Vienna Convention on Consular
Relations and does not extend to far-reaching initiatives to litigate the death penalty under the guise
of a violation of this Convention.
1.27. Mr.President, Members of this Court, let me introduce the counsel for the United
States and summarize briefly the remaining presentations today.
Order of presentation
1.28. Mr.President, I will ask you first to call upon the Honourable JanetNapolitano, the
Attorney-General of the State of Arizona, its high est law enforcement official, who is elected by
4
Order of 3 March 1999, LaGrand Case (Germany v. United States), para. 25.
5Memorial, paras. 1.08-1.09. - 14 -
the people of Arizona. Attorney-General Napolitano will present the significant facts in this case
and discuss the speculative and implausible character of the prejudice alleged by Germany.
1.29. We will then ask the Court to hear from Theodor Meron, Charles L. Denison Professor
of Law at New York University, currently ser ving as Counsellor on International Law at the
Department of State. Professor Meron will address the competence of the Court in this case.
1.30. Following ProfessorMeron, we will ask th e Court to hear from MsCatherineBrown,
Assistant Legal Adviser for Consular Affairs in th e Department of State and Deputy Agent in this
proceeding. MsBrown will address the extensive efforts made by the United States to prevent
recurrence of this breach and will analyse the c onsular notification provisions of the Vienna
Convention.
1.31. We will then ask the Court to hear fro m Mr. Stephen Mathias, Assistant Legal Adviser
for United Nations Affairs in the Department of State and Deputy Agent in this case, who will
address the relief sought by Germany.
1.32. Following Mr.Mathias, we will ask the Court to hear from ProfessorStefanTrechsel
of the University of Zurich and long-time me mber and former President of the European
Commission on Human Rights. ProfessorTrechsel will discuss the nature of the right of the
foreign national to be informed of his or her right to notification of a consular official. He will
focus on three questions: first, can this right be considered as belonging to the category of human
rights; second, regardless of how one defines the ri ght to such consular information, is it a right of
defence that is part of the right to a fair trial; and third, if it were such a right (which he will
conclude that it is not), what consequences derive and do not derive from breaching this right.
1.33. Following ProfessorTrechsel, the Cour t shall hear from ProfessorMichaelMatheson
of the Johns Hopkins School of Advanced International Studies, who will address the Court's Order
indicating provisional measures in this case and the US response to that Order.
1.34. I thank the Court for its attention. Mr.President, I ask you to call upon
Attorney-General Napolitano.
The PRESIDENT: Thank you very much Mr. Thessin. I will now give the floor to the
Honourable Janet Napolitano, Attorney-General of the State of Arizona. - 15 -
NMAPsOLITANO:
2.1. Mr. President, Members of the Court, it is an honour for me to appear before you today.
I am mindful of the fact that it is unprecedented for the United States to invite an official of a state
of the United States to assist in representing it be fore this Court. I deeply appreciate this
opportunity, and hope that my comments today will help you in understanding the issues raised by
this case.
2.2. I am here today in part because the State of Arizona bore direct responsibility for
bringing the LaGrand brothers to justice for the crime of first degree murder and for carrying out
the sentence imposed upon them. I am also here today because, while international law attributes
to the United States international responsibility for a breach of Article36 of the Vienna
Convention, the breach in this case arose because offi cials in the State of Arizona did not inform
the LaGrand brothers of the right of consular notification once it was known they were German
nationals. Thus the US Department of State th ought it appropriate, and I agreed, that I should
undertake to explain to the Court the essential facts of this case. My plan is first to explain the
facts relating to the breach of Article 36, then to review for the Court the criminal proceedings and
to finally address the absence of prejudice.
2.3. Let me first, however, say a few words a bout the context in which this case arose. The
Court is aware, that the United States has a fede ral form of government. A defining characteristic
of our federalism that is not always well unders tood is that our federal government was constituted
by individual states joining together and vesting powers ⎯ but only specified and limited
powers ⎯ in the federal government. The states retained to themselves, and to the people, all other
powers. One consequence of this is that a state such as Arizona has an autonomous criminal justice
system in which the federal government has virtually no role. Thus the murder that the LaGrand
brothers committed was prosecuted by Arizona authorities, without any federal government
involvement. It was a crime against the people of Arizona, and the LaGrands were charged with
murder under the laws of Arizona. The President of the United States, although the Chief Executive
Officer of the United States, had no authority to br ing the LaGrand brothers to trial for the murder,
and had no authority over the administration of th e sentence imposed upon them. Only the federal - 16 -
courts of the United States, as overseers of fede ral constitutional rights in the United States, had
any authority to affect the outcome of the LaGrands' case.
2.4. Within the United States each state also has its own governmental structure, which can
be quite different from that of another state. Ar izona has 15 counties and a decentralized criminal
justice system. In addition to the Arizona Attorn ey-General, who is a statewide elected official,
there exists for each county, a county attorney wh o is elected by the people of that county. Each
county attorney has primary prosecutorial jurisdic tion in murder cases. The county attorney is
responsible for bringing a defendant to trial and for the sentencing proceeding if the defendant is
found guilty. It generally is only after an appeal is filed that my office becomes responsible for a
murder case. Consistent with this arrangeme nt, the LaGrands were prosecuted by the County
Prosecutor of the Pima County Attorney's Office. My office handled the case on appeal, but the
County Prosecutor again represented the State of Arizona in the final clemency hearing. The
Governor of Arizona, as the Chief Executive Office r of the State of Arizona, had the responsibility
to see to it that the sentences were faithfully carried out. She could commute the sentences through
the pardon process, but only if she received a recommendation to do so from the Arizona Board of
Executive Clemency.
2.5. It may also be helpful to the Court to know something about the geography and
demography of Arizona. Arizona is slightly smaller than Poland, and has roughly the same
population as Finland or Denmark. It is bordere d on the south by Mexico. The LaGrands were
arrested in Tucson, which is about an hour's drive north of Mexico. The site of the bank robbery
and murder was a short distance further north and west. Los Angeles, California, where the
German consular post responsible for Arizona is located, is about 488 miles from Tucson. Arizona
has a very diverse population, including a larg e number of Hispanics, American Indians,
African-Americans, and Asian-Americans as well as Caucasians. This diverse population results in
part from our location in the American Southw est and our proximity to Mexico, and from the
presence of several military bases in Arizona. Many United States servicemen have started
families in other countries, and have been subseque ntly transferred into Arizona. Their wives or
husbands or children are often foreign born, but their children in particular, normally are citizens of
the United States. (It was therefore unusual that the LaGrands were not United States citizens, - 17 -
first, because they were born out of wedlock to United States citizen fath ers, and second, because
they were adopted by a United States citizen who failed to complete the necessary naturalization
procedures.) Because of Arizona's diversity, ou r law enforcement personne l deal frequently with
persons born abroad who are the American citizen children of United States servicemen. Because
of concerns about discrimination and equal treatment under the law, and based on the experience of
dealing with this diverse population, our law enfo rcement personnel have learned that they can
easily offend American citizens such as these by questioning their nationality.
The facts relevant to the breach of Article 36 (1) (b) and to Germany's last-minute
intervention in this case are not as Germany has represented them
2.6. With those preliminary remarks, I would like to turn now to the facts relating to the
failure of notification in this case. After Germ any instituted these proceedings, my office assisted
the United States Department of State in investiga ting the consular notification issue. The results
of that investigation are set forth in a lengthy report provided to you and provided to the German
Government by the United States in February of this year ⎯ it is Exhibit1 to the
Counter-Memorial. Prior to that investigati on, there was considerable confusion about the
LaGrands' nationality and what was known about it between January1982, when the LaGrands
were arrested, and in June1992, when the LaGr ands established contact with German consular
officials in Los Angeles.
2.7. Our investigation showed that the arresting officers thought that Karl and
WalterLaGrand were US citizens based on Karl and Walter's representations. The arrest
procedures of Pima County included completing an arrest sheet, which required information about
the citizenship of the arrested person. The opti ons on the sheet were to check a box indicating US
citizenship or to fill in a blank line with the name of the arrestee's country of nationality if not a US
citizen. This is Exhibit 1 to the German Memori al. This sheet is filled out with information
provided by the arrested person. The arrest sheet for Karl shows clearly ⎯ but erroneously ⎯ that
he was a US citizen. The arrest sheet for Walte r does not have the box for US citizen checked, but
neither was the line for nationality if not a US citi zen filled out. From this, the report concluded
that neither brother identified himself as a German national to the arresting officials, and that Karl
affirmatively said he was a US citizen. Moreover, at the time of the crime, both brothers wore their - 18 -
hair in an African-American style and spoke without a hint of a German accent . They looked like
Americans, they talked like Americans, their entire demeanour was American.
2.8. We also learned that at least some of the arresting officials knew that the LaGrands'
fathers were US servicemen, which simply reinfo rced their understanding that the LaGrands were
US citizens, even though they knew that the brothers had been born in Germany. They would have
made this assumption in part based on their experience with the US military population in Arizona.
I have since learned that this was a very comm on misunderstanding about US citizenship law, and
that even the US citizen parents of adopted fo reign-born children mistakenly think that their
adopted children automatically become citizens. In fact, after the brothers were adopted by
MasieLaGrand, he apparently thought that his adopted sons were American citizens, because he
clearly identified both Walter and Karl as US c itizens to the United States Army when he arranged
for their travel to Germany in 1974. This is strong evidence that the LaGrands themselves thought
that they were or might be US citizens at the tim e of their arrest. They certainly did nothing to
suggest to the arresting officers that a further enquiry into nationality was warranted.
2.9. Our investigation also showed that the LaGrands were initially detained in the Pima
County jail, and that those jail officials also appare ntly thought that the LaGrands were Americans.
This is understandable, since they would have had the same information as the arresting officials.
2.10. Our investigation further disclosed, howev er, that after the LaGrands were transferred
from the county jail to an Arizona state prison, st ate prison officials apparently learned that they
were not in fact Americans. We could not determine exactly what they knew, how they knew it, or
when they knew it, given the lap se of time. But an official of the state prison wrote to the US
Immigration and Naturalization Se rvice in mid-1983 advising the Service that it was possible that
the LaGrands were illegal aliens. By late 1984, the prison's records clearly showed that the
LaGrands were German. So, the report inferred that the Immigration Service confirmed to the
prison that the LaGrands were German. Clearly, the LaGrands should have been asked whether
they wanted a German consular official notifie d of their detention once that information was
confirmed. Arizona regrets that proper information was not given to the LaGrands at that time.
6
Exhibit 1 to the United States Counter-Memorial submitted to this Court on 27 March 2000, p. 3. - 19 -
2.11. Thus far I have focused on the arresting and detaining authorities because in the United
States they have been considered to be the competent authorities for purposes of Article36. It is
important to know, however, that other people who were not regarded as competent authorities
knew, or had access to information showing, that the LaGrands were in fact German nationals.
2.12. After the LaGrands were convicted , the court's sentencing process provided for
preparation of what we call a "presentence report" . A presentence report is prepared by a court
employee after conviction has occurred to assist the c ourt in sentencing. It contains social history
and other information relevant to sentencing, as we ll as information about the crime. I refer the
Court to Exhibit6 to the United States Counte r-Memorial, as well as to Annex2 of the German
Memorial. The court employees responsible fo r drafting the LaGrands' presentence report knew
that the LaGrands were German and reflected th at information in the report. Those employees,
however, had no responsibility for the arrest or de tention of the LaGrands and were not acting as
lawyers or as sworn peace officers charged with the detention of prisoners. The United States has
never considered such officials to be competen t authorities responsible for consular notification
under the Vienna Convention. Moreover, the arre sting and detaining authorities would not have
been given the presentence report, and thus w ould not have known that the presentence report ⎯
unlike the arrest sheet ⎯ identified the LaGrands as German nationals.
2.13. Importantly, given Germany's protestations that somehow the presentence reports were
unavailable, the presentence reports about Karl and Walter were provided not only to the judge, but
also to the prosecutor and to the LaGrands' defe nce counsel. You can see that the defence lawyers
had it by looking at AnnexMG5 to the Germ an Memorial, which shows that, during the
sentencing hearing held on 12December1984, the j udge specifically asked the attorneys if they
had received copies, and both attorneys replied in the affirmative 7. Thus it is clear that the
prosecutor and the two defence lawyers at least ha d access to information that the LaGrands were
German.
2.14. Walter's own defence lawyer confirmed to us that he knew that Walter was a German
national. In contrast, Karl's attorney assumed, as had the Arizona officials who arrested the
7
Ann. MG 5, p. 419. - 20 -
LaGrands, that the LaGrands were American citizens. Karl's defence lawyer knew that Karl had
been born in Germany, but also knew the LaGra nds' fathers were American servicemen and was
himself a US military dependant. In any event, both defence lawyers knew that the brothers had
lived in Germany for a few early years.
2.15. I understand that Germany contends that it was misled about when Arizona officials
knew that the LaGrands were Germ an. It has alleged that it learned only at the clemency hearing
for KarlLaGrand on 23February 1999, that the LaGrands' Ge rman nationality was known to
Arizona from the beginning. While the LaGrands themselves bear some responsibility for causing
confusion, the fact is that their nationality was known to the state and to the defence counsel and to
the judge prior to sentencing. Germany has conf used the question of when Arizona arresting and
detaining authorities knew with the question when the LaGrands' lawyers and the prosecutor knew.
2.16. Germany tried to emphasize that it only l earned of the extent of the alleged breach at
the clemency hearing when the pr osecutor for the Pima County Attorn ey's Office, the office that
originally charged and prosecuted the LaGrands, sa id that it was well known before the LaGrands
were tried that they were German. If the Court lis tens carefully to the context of the prosecutor's
remarks, the Court will see that he was responding to assertions made at the hearing that, if
consular notification had occurred, German cons ular officials could have obtained mitigation
evidence from Germany that could have resulted in the LaGrands receiving a sentence of life
imprisonment. The prosecutor's point was that the LaGrands' own defence counsel were fully
aware that the LaGrands had been born and lived the first few years of their lives in Germany. The
LaGrands' own defence counsel could have sought mitigation ev idence from Germany regardless
of any consular assistance. Arizona's failure to inform the LaGrands that they could request
consular assistance thus in no way precluded thei r obtaining evidence from Germany to present as
part of their defence, as indeed they did.
2.17. The availability of the presentence report to the defence lawyers also demonstrates that
the LaGrands could have raised the breach of Ar ticle36 as a defence in the LaGrands' criminal
proceedings, if they had thought this was an impor tant legal issue. More importantly, however, it
shows that there is no justification for Germany' s own delay in raising the consular notification
issue since it admits, as it must, that it also knew of the LaGrands' situation by 1992, seven years - 21 -
before it instituted these proceedings. If it had b een seriously interested in understanding what
information was considered in sentencing the LaGrands, Germany coul d have received the
presentence reports at any time after 1992 simply by asking the LaGrands' lawyers for them, or
asking the State of Arizona or asking the United St ates Department of State. Germany's reference
yesterday that the presentence report was under seal is misleading. The Court can see from
page1009 of the German Memorial that the pre sentence reports had become public at least by
March 1993, when Karl LaGrand filed them in the fede ral district court as part of his effort to have
his conviction and sentence overturned 8. If Germany had been reasonably diligent, it would not
have been surprised by the rema rks at the clemency hearing by the County Prosecutor, who was
absolutely correct in advising that the failure to inform the LaGrands about the possibility of
consular notification was in no way an obstacle to their presenting evidence from Germany at their
mitigation hearing. Any implication that German y could not have had access to the presentence
report prior to the date of the clemency hearing is simply wrong.
2.18. I would also like to assure the Court that considerable steps have been taken by
Arizona since 1992 regarding consular notification. Even before this case came to the forefront,
the Governor of Arizona and my predecessor in offi ce had taken numerous steps to ensure that all
competent officials in Arizona understand and comply with the consular obligations of the United
States. In doing so, we have worked closely with the United States Department of State to ensure
that our guidance is consistent with the require ments of both the Vienna Convention and the many
bilateral treaties to which the United States is a party.
2.19. All Arizona county attorneys, who ar e responsible for prosecutions, have been
reminded in writing of these requirements as have all heads of the various police agencies in
Arizona. Local police departments, which are r esponsible for arrests, have adopted orders on
consular notification. The Arizona Departme nt of Corrections, which is responsible for
post-conviction detentions and some pretrial dete ntions, now has guidance on consular notification
and has compiled and distributed to all corrections facilities a list of consular offices in the United
States in or nearest to Arizona. This of cour se includes the German consulate in Los Angeles,
8
Ann. MG 46. - 22 -
California, which serves Arizona. Our Department of Corrections has adopted procedures that
require that the citizenship of all detained in mates be determined and that information about
consular assistance be given to all foreign-born inmates, even though some may be United States
citizens. My predecessor in office wrote to the Chief Justice of the Arizona Supreme Court to seek
a change in the rules of the courts of Arizona th at will also help ensure compliance. We have
conducted and will conduct numer ous training sessions, which are supplemented by training
sessions conducted by the United States Department of State officials in various Arizona locations
and by wide distribution within Arizona of the De partment of State's written guidance on consular
notification. I can state unequivocally that the State of Arizona is fully committed to this effort and
has been since long before the present case was filed.
The LaGrands received all of the due process protections necessary to ensure that they
received a fair trial
2.20. I would now like to turn to the actual criminal proceedings and to Germany's two
claims related to those proceedings. The first is that, because the LaGrands were not informed that
they could request consular notification, there s hould have been a subsequent opportunity to alter
the outcome of their criminal proceedings. The sec ond is the claim that, if the LaGrands had been
informed of their right to consular notification on a timely basis, the outcome of the proceedings
would in fact have been different. I submit to the Court that neither of these propositions is correct.
2.21. The LaGrands were tried, as I have sai d, by the State of Arizona under the laws of
Arizona. The LaGrands were afforded the full set of procedural and substantive safeguards
pertaining to criminal trials regarding capital punishment in the State of Arizona. These include the
protections of what Americans call the "Bill of Rights", which consists of the first ten Amendments
to the Constitution of the United States and which in the criminal context establish rights afforded
to all individuals in the United States, whether they are citizens or not. The time available to me
today is insufficient to review all of the safeguard s that applied, but I would like to review those
that were especially relevant to the trial of Walter and Karl LaGrand. - 23 -
2.22. First, the LaGrands were guaranteed the right to be tried before a fair and impartial
tribunal under the Fifth and Fourteenth Amendments to the United States Constitution 9. There is
no dispute in this case that both the jury and the judge were fair and impartial.
2.23. Second, under Arizona and federal law, th e LaGrands were guaranteed that they would
not be discriminated against because of their race, ethnicity, gender, or national origin 10. There is
no evidence and no allegation whatsoever that the LaGrands were discriminated against. They
certainly were not discriminated against because they were German nationals.
2.24. Third, the LaGrands were entitled unde r the Fifth Amendment to the United States
Constitution to remain silent and not to give any statement to police or other officials. These rights
were fully respected 11.
2.25. Fourth, under the Sixth Amendment to the United States Constitution, the LaGrands
were also entitled to be informed of the charges against them; to have a public trial by a jury; and
to have adequate time and opportunity to prepar e their defence and to consult with legal counsel 12.
Again all of these rights were accorded the LaGrands.
2.26. The Sixth Amendment also guarantees the right to counsel. Yesterday, Germany
emphasized that, if the LaGrands had received noti ce of right to consular notification, Germany
would have assisted them in obtaining better counsel , and this could have changed the result. This
contention does not withstand analysis. The qu estion whether the LaGrands' lawyers provided
adequate representation was one that the LaGrands were entitled to raise in the course of appealing
their convictions. Walter chose not to raise the cl aim in his initial appeals, although Karl did. The
courts of Arizona and of the United States both concluded that the LaGrands' right to effective legal
13
representation had not been violated . Germany has somewhat grudgingly conceded this in
Walter's case, and has apparently accepted that Walt er's attorney could not be faulted. Germany
9Delaware v. Van Arsdall, 475 US 673 (1986).
10Craig v. Boren, 429 US 190 (1976); Loving v. Virginia, 388 US 1 (1967); Bolling v. Sharpe, and 347 US 497
(1954); Korematsu v. United States, 323 US 214 (1944); Yick Wo v. Hopkins, 118 US 356 (1886).
11Tague v. Louisiana, 444 US 469 (1980); North Carolina v. Butler, 441 US 369 (1979); Miranda v. Arizona,
384 US 436 (1966); US v. Garibay, 143 F.3d 534 (9th Cir. 1998).
12County of Riverside v. McLaughlin, 500 US 44 (1991); Jones v. Barnes, 463 US 745 (1983); Duncan v.
Louisiana, 391 US 145 (1968); Gideon v. Wainwright, 372 US 335 (1963); Glasser v. United States, 315 US 60 (1942).
13Ann. MG 4 and MG 10. - 24 -
has, however, disparaged the wo rk of Karl's attorney. The Arizona Supreme Court thoroughly
reviewed all aspects of Karl's ine ffective assistance of counsel claim and correctly rejected it. The
Supreme Court was mindful that Karl was tried together with Walter and Walter's attorney
conducted thorough and aggressive cross-examination of the w itnesses. The Court found that the
decision not to pursue an insanity defence was re asonable given that it w ould have opened Karl's
juvenile court record to scrutiny. Karl's c ounsel argued impulsivity, the only other suggested
defence, in his closing remarks and during sente ncing. Thus, the Court could not identify any
14
prejudice to Karl by virtue of his counsel's decisions .
2.27. Accordingly, Germany is on very thin gr ound here. It insists that it is not seeking to
make this Court a court of criminal appeal, yet, clearly, it would have this Court believe that
Karl LaGrand's defence lawyer was somehow incomp etent and that a different lawyer might have
achieved a different result. Only hindsight and wishful thinking sustain Germany's assertion that
inadequate counsel led to Karl being sentenced to death. The clearest proof of this, of course, is
that Walter also was sentenced to death notwithst anding the efforts of his lawyer, whom Germany
has not criticized in a similar way.
2.28. Returning to the rights accorded to th e LaGrands as criminal defendants, they had a
right to the assistance of investigators and experts, if they could show a particularized need for such
assistance 15. In addition, if the LaGrands had not understood English, they would have been
16
entitled to be assisted by an interpreter . No interpreter was needed, however. As the Court can
hear for itself on the videotapes, the LaGrands spoke perfect English.
2.29. Finally, because the prosecutor sought the death penalty, the LaGrands were entitled to
additional protections designed to guard against the possibility that capital punishment might be
imposed capriciously, arbitrarily, or disproportionate ly. For example, automatic appellate review
17
of the conviction as well as the sentence was required . Consistent with this requirement, the
14Ann. MG 4, pp. 306, 307.
15
Ake v. Oklahoma, 470 US 68 (1985); State v. Dickens, 926 P.2d 468 (1996); A.R.S., paras. 13-4013 (a).
16State v. Hansen, 705 P.2d 466 (Ct. App. 1985).
17State v. Brewer, 826 P.2d 783 (1992). - 25 -
LaGrands' convictions and sentenc es were reviewed on appeal by the Arizona Supreme Court,
which was one of only many courts that reviewed the fairness of the trial.
2.30. The LaGrands also were entitled to seek executive clemency, including commutation
18
of their sentences . The LaGrands exercised this right, and Germany has provided the Court with
copies of the official videotapes made of the clem ency proceedings. Those tapes show an intense
review of all of the factors that led to the or iginal sentence: the gr avity of the crime, the
devastating impact it had on the surviving vic tim, the LaGrands' difficult childhood, and their
remorse. Ultimately, the clemency board decide d that a sentencing judge's balancing of these
factors should be left undisturbed, and that the sentences should not be commuted.
2.31. If any of the fundamental rights I have enumerated ⎯ or if any other fundamental
rights guaranteed to the LaGrands ⎯ had been violated, the judicial remedies available to the
LaGrands could have led to a new trial or sentencing hearing. In fact, numerous courts reviewed
their convictions and sentences at their behest over a 15-year period and concluded that the
convictions and sentences should not be disturbed. The LaGrands first had an appeal as of right to
the Arizona Supreme Court, which is made up of fi ve justices, all of whom come from different
backgrounds. The opinions that resulted from that appeal are before this Court as exhibits to
19
Germany's Memorial . The opinions show that the brothe rs raised many issues. The State
Supreme Court independently examined, for example, the admissibility of the statements made by
Karl. It examined the instructions given to th e jury, it examined whether it was appropriate to
excuse from the jury someone opposed to capital punishment. It examined whether imposition of
capital punishment was consistent with applicable legal requirements. It examined whether Karl
had adequate legal counsel: and it examined a number of other technical issues.
2.32. The Arizona Supreme Court on direct appeal did not examine whether the failure to
inform the LaGrands that they could request consul ar assistance was relevant to the trial, because
neither brother raised the issue. The Supreme Court examined all the mitigating evidence Germany
insists was omitted, including the LaGrands' difficult upbringing. In fact, the Arizona Supreme
Court decision specifically found that the trial cour t judge also considered mitigating evidence, as
18
Gregg v. Georgia, 428 US 153 (1976); State v. Richmond, 560 P.2d 41 (1976).
1Anns. MG 3 and MG 4, both 30 Jan. 1987. - 26 -
pointed out in the opinion where the court states and I quote: "[t]he trial judge found three
mitigating factors: defendants' ages (Walter wa s 19 and Karl was 18 at the time of the killing),
20
their prior home lives, and their remorse" . The Supreme Court noted that the trial judge did not
find these mitigating factors sufficient to outweigh the aggravating circumstances. The Supreme
Court then went on to also independently find th at the mitigating factors were not sufficient to
warrant leniency. The court stated: "In addition to noting defendants' relatively young ages, we
21
have reviewed histories of their upbringing..." Thus the very evidence that Germany claims it
would have provided to the Court, was in fact act ually presented to the court. The Supreme Court
nonetheless concluded, "these mitigating factors do not outweigh the existing aggravating
22
circumstances and thus do not warrant leniency" . The aggravating circumstances to which the
court referred were the especially cruel, heinous and depraved nature of the LaGrands' conduct, the
fact that the brothers had a prior felony convictio n involving a violent offence, and that the murder
was committed for pecuniary gain. Remember, this was a bank robbery during which the
LaGrands stabbed a 63-year old bank manager 24times with a letter opener until he died. They
also stabbed a bank teller multiple times, though sh e lived to testify against them. No additional
evidence that Germany would have provided would have changed these facts or the nature of the
mitigation that the court considered.
2.33. The LaGrands asked the United States S upreme Court to review the Arizona Supreme
Court's decision. This was a discretionary app eal, and the Supreme Court declined to take the
case 23. Such a decision by our United States Supreme Court generally indicates that it has
concluded, based on the defendants' request for re view, that no substantial federal issue warranting
its review was presented.
2.34. Having thus exhausted their direct appeals, the LaGrands were entitled to seek
post-appellate relief by collaterally attacking the validity of their convictions and sentences in both
the state and the federal courts. They first initiate d such proceedings in the state courts. In 1989
20Ann. MG 3, pp. 293, 299, 300.
21
Ann. MG 3, pp. 293, 301.
22Ann. MG 3, pp. 293, 301.
23Ann. MG 7, 5 Oct. 1987. - 27 -
the Arizona lower court denied post-conviction re lief, and in 1990, the Arizona Supreme Court
affirmed that decision. In June1991, the Unite d States Supreme Court again declined to review
those decisions. In this proceeding, which was the first request for collateral review in the Arizona
state courts, the LaGrands raised a number of i ssues, but they again did not raise the issue of
consular notification.
2.35. The LaGrands next exercised their right to seek habeas corpus review of the legality of
their detention by the federal courts. This process allows them to raise directly in a federal trial
court any claims they had of violations of the United States Constitution or other provisions of
federal law. They began this process in March 1993 by seeking review in the United States District
24
Court for the District of Arizona . It was in the District Court that the LaGrands, for the first time,
sought to raise a claim relating to the failure of consular notification. That court issued two
25
decisions on different aspects of the state court proceedings ; the 24January opinion deals with
the consular notification issue. The court noted th at the issue could be raised only if the LaGrands
could show cause for the default and prejudice. Ot herwise, review was precluded by the failure of
the LaGrands to raise the issue in the prior state court proceedings.
2.36. Germany has been critical of the procedural default rule. This is a federal rule that,
before a state criminal defendant can obtain relief in federal court, the claim must be presented to a
state court. If a state defendant attempts to raise a new issue in a federal habeas corpus proceeding,
the defendant can only do so by showing cause and prejudice. Cause is an external impediment
that prevents a defendant from raising a claim and prejudice must be obvious on its face. One
important purpose of this rule is to ensure that the state courts have an opportunity to address issues
going to the validity of state convictions before the federal courts intervene.
2.37. The federal court found that the LaGra nds had failed to meet this requirement of
showing an objective external factor that prev ented them from raising the issue earlier, and
26
therefore it was not necessary to reach the question of prejudice . While the court did not discuss
this issue at length, I would offer the observation that defence counsel are generally expected to
24Ann. MG 46.
25
Anns. MG 8 and 9, 24 Jan. 1995 and 16 Feb. 1995.
26Ann. MG 8, pp. 456 and 458. - 28 -
know the rights that are relevant to the defence of their clients. I would also note that nothing
impeded the LaGrands' defence lawyers from seeking assistance from the German Government, or
other sources in Germany, if they had thought that doing so would be useful, or from exploring
whether there was any obligation to inform Germany of the arrests.
2.38. The decisions of the United States District Court were reviewed by the United States
Court of Appeals for the Ninth Circuit. The Nint h Circuit consolidated the appeals and issued its
27
decision on 16 January 1998 . It found no merit to the LaGrands' claims. It looked closely at the
question whether the LaGrands should be permitte d at this late stage to raise the consular
notification issue. The court noted that the claim was procedurally defaulted for lack of a showing
of cause and prejudice. Nevertheless, the court stated that, "[l]acking cause and prejudice, we may
nonetheless consider procedurally barred claims if failure to do so would result in the conviction or
execution of one who is actually innocent" 2. I invite this Court to read the Ninth Circuit's
discussion of this issue, which is on page 483 of Volume II of Germany's Memorial.
2.39. As the Ninth Circuit's opinion indicates, the procedural default rule is not so rigid or so
absolute that it would allow for a miscarriage of ju stice. As is so often the case, to reach its
conclusion, the court looked at the underlying argu ments that the LaGrands were presenting. One
could say that the court peeked behind the veil and decided that there was not enough behind the
veil to warrant opening it all the way. It is clear from the Ninth Circuit's discussion that the court
was aware that the LaGrands came from a mixe d marriage and a troubled childhood. The court
held, however, that even given that mitigation evidence, the crime the LaGrands committed and the
way they committed it made them eligible for th e death penalty. Thus there was no miscarriage of
justice. The United States Supreme Court ag ain declined to review this decision in
December 1998 29.
2.40. Thus the United States Supreme Court's December 1998 decision was the final step in
three separate proceedings that provided the LaGrands a full and fair opportunity to challenge their
convictions and sentences. The first, of course, was the direct appeal from the state trial court to
27
Ann. MG 10.
28
Ann. MG 10, p. 483.
29Ann. MG 11. - 29 -
the state Supreme Court and then to the US Supr eme Court. The second was the collateral review
of the state conviction by the Arizona state courts , and the third was the collateral review of the
state conviction by the federal courts. Thus, over the course of 15years, this matter went through
these three separate intense reviews and the case w as decided against the LaGrands in all three
proceedings.
2.41. When all is said and done, the LaGrands' case was reviewed by a total of 15 different
independent judges or justices on four different co urts beyond the state trial court. When that
process was completed, however, the State of Arizona still could not implement the sentence until
specifically authorized by the Arizona Supreme Court. On 15 January 1999, the Supreme Court of
Arizona issued warrants for carrying out the sente nce of death originally imposed on Walter and
KarlLaGrand in December1984. It set Karl's execution for 24February1999 and Walter's for
3March1999. The warrant for Walter's executi on is before the court as AnnexMG13. The
warrants allow Arizona to set the time for the executions. In each case, if the execution had not
occurred within 24hours of the time set, the warr ants would have expire d, and a considerable
period of time would have elapsed before a new date could be obtained from the Arizona Supreme
Court.
2.42. The issuance of the warrant precipitated a number of events. At the political level, in
early February, German government officials appealed to President Clinton, to Secretary of State
Albright, and to the Governor of Arizona, asking to have the death sentences commuted to life
imprisonment on humanitarian grounds. At that time, the German Government did not ask that the
sentences be commuted because of consular notificati on issues. In fact, the letters made clear that
Germany agreed that the LaGrands had received a fair trial. The LaGrands also returned again to
the Arizona state courts, on 2 February 1999, and to th e federal courts for relief. In the state court
they sought to raise a number of issues, including the notification claim.
2.43. On the legal front, one of the aspects of our judicial system, which is criticized by some
and praised by others, is that even after the 15y ears of extensive appeals that I have described it
was still possible for the LaGrands to seek a last-minute relief from the state and federal courts, and
they did so. In a decision issued 23February199 9, the state court ruled in Karl's case that the - 30 -
consular notification claim was procedurally defaulted . The federal appeals court issued another
31
decision on 24 February, in which it also said th at the consular notification claim was defaulted .
Various issues were then raised with the US Supreme Court, which finally permitted
32
Karl LaGrand's execution to occur that evening .
2.44. A similar sequence of events occurred at the last minute in Walter's case. In addition,
on the very day scheduled for Walter's execution ⎯ 3March ⎯ Germany attempted to file suit
against the United States in the United States Supr eme Court to block the execution, based on the
Provisional Measures Order of this Court. Such a suit is one of a very limited number of kinds of
cases that can be filed originally in the Supreme Court without first having been filed in the lower
courts. They are extraordinarily rare, and the Court does not accept them readily in part because its
primary function is to review questions of law, not to make findings of fact which may require
time-consuming fact-finding proceedings. For reas ons explained by the Supreme Court in the
opinion before you as AnnexMG32, the Court dec lined to permit the suit to be filed given its
last-minute nature. None of the state or federal courts that considered the LaGrands' claims in
February and March 1999 found a legal basis to stay the executions.
2.45. Independent of any legal bar, the LaGrands also had the opportunity to seek the stay of
their execution or commutation of their senten ce through the clemency process established by the
State of Arizona. As I have previously noted, the Court can observe that process by watching the
videotapes submitted by Germany. On 23Febr uary1999, the Arizona Board of Executive
Clemency met to consider a commutation of sentence for Karl LaGrand. On that same day, at the
conclusion of the hearing, and by a majority vote, the Board did not recommend a commutation for
Karl LaGrand. This meant that the Governor of Arizona had no option to grant clemency.
2.46. On 2 March 1990, the Arizona Board of Executive Clemency met to consider the case
of Walter LaGrand. The Board again recommended against a commutation of sentence. Towards
the end of the clemency hearing, however, wo rd of Germany's Application and Request for
Provisional Measures reached the Board. In th ese rushed circumstances, it recommended to the
3Ann. MG 24.
31
Ann. MG 21.
3Ann. MG 23. - 31 -
Governor a 60-day reprieve. Notwithstanding this recommendation, the Governor decided that the
execution should go forward. Her statement about her decision is before you as AnnexMG33.
The Court will note that the Governor's statemen t is dated 2March, a lthough Walter's execution
was set for and occurred on 3March. This is because the Board recommendation was made on
2March and, in the interest of justice and to bring certainty to both the victims and to the
defendant, she issued her decision in a timely fashion rather than wait until the last minute.
2.47. The decision whether to grant a reprieve or clemency is a very personal one, and I
would not purport to describe the Governor's th inking on this issue beyond referring to her
statement. I would note, however, that the Board's failure to recommend clemency indicated that it
believed that the sentence should not be disturbed. In addition, the people of Arizona had given the
LaGrand brothers a fair trial, three separate a ppellate processes, and an enormous amount of due
process. During that time, the victims of their br utal murder had waited patiently. The Governor
knew that the victims and the prosecutor conti nued to support the sentence of capital punishment,
33
and she was required by law to consider the victims' views . She had no reason to think that the
failure to inform the LaGrand brothers that they could request consular assistance was in any way
relevant to the outcome of these long proceedi ngs. She knew that the LaGrands had presented
evidence of their troubled childhoods, including thei r brief years in Germany, to the original
sentencing judge. She knew that th e LaGrands had been given all of the rights that an American
citizen would have been given. And she was aw are of the United States Department of State's
interpretation of the Provisional Measures Order, which Professor Matheson will address later. It is
fair to say, then, understanding that there was no legal impediment to the execution and that the
Clemency Board had recommended against commuta tion, she concluded that the equities weighed
in favour of proceeding.
Germany's claim that the outcome would have been different if the LaGrands had been
informed of the right to have German consul ar officials notified of their detention is
speculative and demonstrably unfounded
2.48. I would like now to turn in more detail to Germany's claim that, if the LaGrands had
been informed in 1982, 1983, or 1984 that they could have German consular officials notified of
33
Arizona Revised Statutes, paras. 13-4401 et seq. - 32 -
their arrest and detention, the outcome of their sentencing proceeding would have been different. I
respectfully submit that, in fact, the outcome would have been the same, for any number of reasons.
2.49. First, it is clear that the LaGrands we re not strangers in Arizona unfamiliar with the
language or culture of their surroundings or w ith the Arizona legal system. They were
well-established in Arizona and in the United Stat es. Their family ties were all in the United
States. Their mother, their sister (who testified on their behalf), their girlfriends, and their friends,
were all in the United States. They understood the American system of justice. They spoke English
with the fluency of native-born Americans. Th ey looked like Americans. Their demeanour was
American. It is inconceivable that they were disadvantaged in any way as they went through the
criminal justice process by the fact that they we re German nationals. Indeed, as I have already
noted, one of the brothers even identified himself as a United States citizen at the time of his arrest,
and neither identified himself as German although given the opportunity to do so. It appears that
the LaGrands themselves thought that they mi ght have acquired United States citizenship as a
result of having been adopted by a United States serviceman.
2.50. Second, there is every reason to think that the LaGrands would not have requested
consular notification if they had been informed th at they could do so. By 1982, the LaGrands had
had virtually no contact with the German Govern ment for 15years. They had never been
documented as German nationals afte r being included in their mother's German passport in 1967.
They had made one trip back to Germany after 19 67, for about six months, but that was done on
US military travel orders, and they lived in United States military housing while there. All
indications are that they lived in Germany as Amer icans and did not even retain an ability to speak
German. Contrary to the suggestion made yest erday that both LaGrands availed themselves of
consular assistance, WalterLaGrand refused consular visits from a German consular officer on at
least two occasions.
2.51. Finally, even if th e LaGrands had requested consular assistance prior to their
sentencing hearing, Germany has not shown that it would have provided any significant assistance
that would have affected the outcome. When Germ an consular officials learned in 1992, that the
LaGrands were imprisoned in Arizona, they themselves were uncertain whether the LaGrands were
German or American and apparently refrained from providing consular services until the LaGrands' - 33 -
German nationality could be confirmed. It is in teresting to note that, like the officials of the
Arizona state prison, the German Government wr ote to the US Immigration and Naturalization
Service to confirm whether the LaGrands were American or German. Even after the German
Government was approached by KarlLaGrand' s attorney, the German Government did not
understand the legal significance of their German nationality. In a letter dated 17March1993,
which we submitted to this Court this morni ng as part of our supplemental submissions, the
German Government stated that it "would be interested in knowing... why their German
citizenship is crucial to your defence". This le tter is Tab 5 of the Supplemental Submissions. The
process of confirming the LaGrands' nationality to ok the German officials six months. It is,
therefore, highly probable that the process of confirming the LaGrands' nationality would not have
been completed in time for any consular assistance to have been provided prior to sentencing.
2.52. In an attempt to show the level of c onsular services provided to its nationals who were
arrested abroad, Germany filed with this Cour t Germany's Consular Instructions from 1975.
Nowhere do these instructions state that Germany will take any significant steps on behalf of a
defendant who is already represented by counsel, as the LaGrands were. At best, the instructions
indicate that Germany might have loaned money to the LaGrands for purposes of their defence, but
even this is not clear. Moreover, a piece of paper containing written instructions does not
constitute evidence that those instructions were followed or how they were followed by the
Los Angeles Consulate General in 1982, 1983 or1984.
2.53. In a further attempt to show their leve l of consular services, Germany has called the
Court's attention to the case of two other German brothers who are on death row in Arizona. The
Apelt brothers were arrested in January 1989, and by March 1989, German officials had made
contact with the Apelt brothers, well before their trial, which occurred one year later. German
consular officials had an opportunity to assist the Ap elts prior to their trial. Yesterday, Germany
suggested that it would have hired better lawyer s for the LaGrands had it known earlier of their
situation. In contrast to this speculative hi ndsight, Germany, when given the opportunity, did
nothing and allowed the Apelts to be defended by lawyers provided by the state of Arizona. One of
those lawyers has provided a declaration which is before the Court as Tab6 of the Supplemental
Submissions. He advised us that German consular officials did not assist the defence lawyers in - 34 -
preparation of the Apelts' defence. Rather, the cons ular officials asked only to be kept informed of
the course of the proceedings. These facts, too, re fute Germany's claim. If minimal services were
provided to two German nationals facing capital pu nishment in 1989, there is even less reason to
think that significant assistance would have been pr ovided in 1982 to 1984; and the imposition of
capital punishment in the Apelt cases further un dermines Germany's suggestion that consular
notification would have changed the outcome in the earlier LaGrand cases.
2.54. It is fanciful to think that the evidence of an unhappy childhood in Germany, that
Germany has claimed would have resulted in th e LaGrands' receiving a life sentence, would have
had any effect. That evidence relates to just the first three to five years of the LaGrands' lives. It is
true that the evidence shows that those years were troubled. It is also true that under the laws of
Arizona evidence of a troubled childhood is the ki nd of evidence that can be offered as mitigation
in a criminal proceeding. In this case, however , there was also ample evidence available to the
defence that the LaGrands had lived equally, if not more, troubled lives in the United States. They
had, in fact, lived the majority of their lives in the United States by the time of their trial, and it is
unlikely that any defence lawyer would have consid ered it necessary to reach back to their brief
lives in Germany to find more evidence of a troubled childhood than was already available.
2.55. This is particularly true because the av ailable evidence included substantially the same
kind of evidence about the LaGrands' childhood in Germany as Germany has proffered. At the
sentencing hearing, psychologists who testified for the LaGrands noted that their childhood was
difficult even in Germany, where they came from an interracial marriage and had been placed in a
foster home. One of the psychiatrists who testified at the Aggravation-Mitigation hearing
specifically told the trial court:
"Germany isn't exactly like France or Italy or Spain. They're colour conscious, and
they ⎯ they don't look very kindly at interracial marriages, and this affects the
marriage and affects the children, interpers onal relationships of the children with the
German kids in Germany and would affect adversely on the LaGrand children." 34
The presentence report notes that the LaGrands' act ions "may have partially resulted from a poor
35
home environment, lack of family stability, broken home, poverty, and/or lack of education" . An
34
Ann. MG 5, p. 355.
3Ann. MG 1. - 35 -
additional portion of the presentence report submitted by the United States also states clearly that
the LaGrands had been placed in a convent in Germany by their mother because their mother could
36
not care for them . In sentencing the LaGrands, the trial judge took this into account. Every
appellate court that discussed this issue noted that information about the LaGrands' troubled
childhood, including the facts that they were in foster care in Germany and potentially
discriminated against in Germany because they were multiracial, was available at the time of their
trial and their sentencing. Thus, the evidence pro ffered by Germany is, at best, cumulative to that
which was available in the United States and to the information that was in fact known to the
sentencing judge.
2.56. Moreover, that evidence would simply have been weighed, as I have stated, along with
other mitigating evidence, against the evidence o ffered by the County Prosecutor in support of its
request for capital punishment. I do not wish to bur den this Court again with a detailed account of
the circumstances of the murder committed by th e LaGrand brothers. You will find that evidence
recounted in the court opinions before you. You may also obtain a flavour of the evidence offered
at trial by watching the videotapes of the clemen cy hearing that Germany has submitted to this
Court. Those tapes show that a critical witness against the LaGrands was a young woman who, at
the age of 20, had seen her 63 year-old colleague brutally murdered and who had almost been
murdered herself. Even in 1999 ⎯ 17years later ⎯ this woman's terror and distress were
palpable. Given the horrific circumstances of the crime the LaGrands had committed, and the
eyewitness testimony of this young woman, the decision to impose capital punishment would not
have been changed by the kind of mitigation evidence that Germany has proffered.
2.57. Before closing, I would like, as a pro secutor, to make a few general observations.
Although I am not an expert in international la w, I do bear responsibility for enforcement of the
criminal laws enacted by a freely-elected legislature in a representative democracy. As we
consider the issues of this case, which is not a bout capital punishment, but about the relationship
between the criminal justice system of a country and the obligation of consular notification, it is
important to remember that a horrible murder was committed simply because two men were
36
Exhibit 6 to United States Counter-Memorial. - 36 -
frustrated when they tried to rob a bank, and to remember the stake society has in protecting itself
from violent crime and in making sure that perpetra tors of violent crime are brought to justice.
Whether or not the LaGrands were told they co uld contact German consular officials bears no
necessary relationship to the fundamental questions of whether they had adequate assistance of
counsel, understood the proceedings against them, and received a fair trial. With hindsight, it is
always possible to think of something more that might have been done. But in this case, there
should be no doubt that the LaGrands received a fair trial with all appropriate procedural and
substantive protection, and that they received all of the protection that an American citizen would
have received. It is fanciful to think that the outcome of the proceedings would have been different
if the LaGrands had been informed promptly th at they could have German consular officials
notified of their detention. Certainly this Court should find no reason to conclude that the United
States is deficient in applying a rule of procedural default to a claim raised so long after the trial
and so remote from the question of guilt or sentencing.
2.58. Mr. President, Members of the Court, th is concludes my presentation. I thank you for
this opportunity to address you here today. I hope that I have been of some guidance in
understanding the facts surrounding this case. I now invite you to hear from Professor Meron.
Le PRESIDENT : Je vous remercie. May I ask Professor Meron if he wishes to take the
floor now, or if you prefer your exposé to be cut into two parts.
Mr. MERON: Mr. President, I shall be delighted to take a break right now.
The PRESIDENT: I shall defer to your wish.
The Court adjourned from 11.30 a.m. to 11.45 a.m.
Le PRESIDENT : Veuillez vous asseoir. La séance est reprise, and I now give the floor to
Professor Theodor Meron.
Mr. MERON: Mr. President, distinguished Court,
3.1. I have the pleasure and the honour to address the Court this morning. My task is to
discuss the jurisdiction of the Court which, as th e Application instituting these proceedings itself - 37 -
clearly states, rests exclusively on the Optional Protocol to the Consular Convention. This
jurisdiction is limited to disputes arising out of th e interpretation or application of this Convention
and nothing else.
3.2. May I start on a personal note. For me, this case is about a breach of State-to-State
obligations and has nothing to do with human rights or with due process. It is for these reasons
that, as a human rights scholar, I feel comfortable ⎯ perfectly comfortable ⎯ in arguing this case
this morning for my government.
3.3. Allow me first to describe how I shall proceed. I will discuss the nature of the dispute
and the obligation of Germany to demonstrate that its claims and submissions involve the
interpretation or application of the Consular Conve ntion. I will next demonstrate that Germany,
and only Germany, has the burden of establishing that its claims are well founded in fact and law. I
will then argue that the Optional Protocol does not confer on the Court jurisdiction over the
exercise of diplomatic protection and that, even if the Court has jurisdiction based on diplomatic
protection or on individual rights, in the present ca se such claims are inadmissible for failure to
exhaust local remedies. I will then explain the ro le of LaGrands' lawyers and emphasize that it
does not excuse non-exhaustion of local remedies a nd that international law regards a defendant
and his or her lawyer as one entity for purposes of local remedies. Finally, I will show that
Germany is invoking against the United States st andards which it does not follow in its own
national practice and explain why th is should have an adverse impact on the question whether this
Court should consider the German claims and on the merits of those claims.
The jurisdiction of the Court is limited by the terms of the Optional Protocol and the
Consular Convention
3.4. The German Memorial recognizes "the prima facie nature of findings on jurisdiction and
admissibility within a procedure on Provisional Measures" 37. While not contesting the Court's
jurisdiction under the Optional Protocol to ente r a judgment regarding breach of the duty of
notification, the Counter-Memorial reserves the right of the United States to challenge the
38
jurisdiction and admissibility of th e remaining claims of Germany . The position with regard to
37
Memorial of the Federal Republic of Germany, paras. 3.12, 3.78.
3Counter-Memorial of the United States of America, para. 48. - 38 -
the competence of the Court over such claims is thus wide open. As Professor Rosenne wrote, "the
Court can deal with questions of jurisdicti on in the course of determining the merits" 39. The
distinguished counsel for Germany, MrK . han , referred yesterday to a statement by
ProfessorRosenne concerning time-limits on objections to jurisdiction. I refer the Court to
page 843 of Rosenne's book where he makes it clear, in a passage which Mr. Khan did not cite, that
those limits concern exclusively cases where the obj ect is to prevent any further pleading on the
merits of the case, and thus to terminate the proceedings. This was not the position here, of course.
Rosenne continues, "Other matters relating to juri sdiction or the ability of the Court to continue
with the proceedings up to the deci sion on the merits may be raised by either of the parties as the
40
pleadings progress."
3.5. Let me start by confirming that we continue to uphold the points already made in the
Counter-Memorial.
3.6. Germany claims that "the entirety of th e claims" put forward in its Memorial is both
41
within the jurisdiction of the Court under the Protocol and admissible . The United States
disagrees. The Optional Protocol, Mr. President, is not a giant vacuum cleaner which sweeps up
every allegation of fact or of law, whether or not it has anything to do with the interpretation or
application of the Consular Convention, or howev er remote or however weak the evidence and its
basis in law.
3.7. We submit that it is the function of this Court to assess every claim and every
submission by Germany as to its being logically and inherently situated within the provisions of the
Optional Protocol and the Consular Conventio n. As the Court itself stated in the Fisheries
42
Jurisdiction case, it is for the Court itself "to determin e on an objective b asis the [real] dispute"
that has been submitted to it. I refer the Court also to page 1209 in Professor Rosenne's book.
3.8. Aware of the speculative nature of its claims, Germany has tried to shift the burden of
proof to the United States. Following on the Memo rial, the distinguished counsel for Germany,
392 Shabtai Rosenne, The Law and Practice of the International Court, 1920-1996 , p. 531 (3rd. ed. 1997).
40
Rosenne, supra Note 3, p. 843.
41Memorial of the Federal Republic of Germany, para. 1.11.
42Fisheries Jurisdiction (Spain v. Canada), I.C.J. Reports 1999, para. 30. - 39 -
Mr.Donovan, argued yesterday that the Court shoul d "presume causation". With all due respect,
such an attempt stands international law on its head. Germany wants the United States to show that
the breach did not cause prejudice to the LaGrands. But surely international law teaches that the
burden to prove prejudice and any other element of a claim rests on the Applicant before this Court.
3.9. The principle actori incumbit probatio is well established in the jurisprudence of this
Court. As the Court stated in the Nicaragua case (Jurisdiction and Admissibility), "it is the litigant
seeking to establish a fact who bears the burden of proving it" 43. The Court "cannot... apply a
presumption that evidence which is unavailable woul d, if produced, have supported a particular"
point of view 44.
The Optional Protocol does not confer on the Co urt jurisdiction over exercise of diplomatic
protection
3.10. It is unclear what Germany means by "diplomatic protection" in the present case and
what the consequences of its invocation are in this context. With respect, there is nothing between
this case and espousal of economic claims in Mavrommatis.
3.11. Germany argues that the Optional Protocol confers upon the Court jurisdiction over the
45
right of Germany to exercise diplomatic protection over the LaGrands . The United States fully
maintains the view already expressed that the custom ary law of diplomatic protection is not within
46
the Court's jurisdiction under that Protocol .
3.12. Counsel for Germany and its revised subm issions fashion a special rule for cases of a
breach of the duty of notification in cases which involve capital punishment. There is no authority,
however, Mr. President, for introducing the concept of punishment, even less a distinction between
different punishments in the Consular Conventio n. If Germany wishes to have the Convention
amended, so that special provisions for capital puni shment are made, it should proceed differently
to attain that end.
43
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA) I.C.J. Reports 1984, p. 437,
para. 101.
44Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) , I.C.J. Reports
1992, p. 399.
45Memorial of the Federal Republic of Germany, pp. 31, 33, para. 3.22.
46Counter-Memorial of the United States of America, p. 60, para. 74. - 40 -
3.13. The duty of notification is, of course, not limited to capital cases and pertains to all
cases involving arrest and detention, including immi gration cases. Suppose that in some cases of
breach, a State presents to this Court a diplomatic protection claim asking for compensation for a
national, who, it alleges, lost a week's pay becau se he was detained without being informed of the
right to have his consul notified. The new case s presented to the Court by Germany also involve
typically rather trivial situations. Acceptance of the German argument would require the Court to
adjudicate all such claims, present and future.
3.14. The Memorial itself recognizes that the right of Germany to exercise diplomatic
protection is founded on international, i.e., on customary law 47. I refer the Court to
ProfessorJohnDugard's first report to the ILC on Diplomatic Protection which explains the
48
customary nature of this topic .
3.15. Diplomatic protection, Mr. President, under customary law is outside the jurisdiction
parameters created by the Optional Protocol.
The Nicaragua Judgment establishes a clear separation between jurisdiction over treaty and
jurisdiction over custom
3.16. The Court's Judgment in the Nicaragua case provides a clear authority, I submit, for
separation between jurisdiction over treaties and jurisdiction over customary law. Already in its
Judgment of 1984, the Court stated
"the fact that [certain] principles... have been codified or embodied in multilateral
conventions does not mean that they cease to exist and to apply as principles of
49
customary law, even as regards countries that are parties to such conventions" .
Even if a treaty norm and a customary norm were to have exactly the same content, each would
50
have ⎯ and I quote the Court again ⎯ its "separate applicability" . In a pronouncement, which I
believe is authoritative for the present case, the Cour t, in its 1986 Judgment on the Merits, stated:
47
Memorial of the Federal Republic of Germany pp. 114-116, paras. 4.87-4.90 (Sept. 16, 1999).
48UNGAOR, Int'l Law Comm., 52d Sess., United Nations Doc. A/CN.4/506, at p. 1, para. 36 (2000).
49Military and Paramilitary Activitiesin and against Nicaragua (Nicaragua v. United States of America)
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 424, para. 73.
50Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits,
Judgment, I.C.J. Reports 1986, p. 94, para. 175. - 41 -
"two rules of the same content ar e subject to separate treatment as regards organs competent to
51
verify their implementation depending on whether they are customary rules or treaty rules" .
3.17. Acting on this distinction between tr eaty and custom and invoking the United States
multilateral treaty reservation, the Court in the Nicaragua case, refused to apply certain multilateral
treaties, but did apply customary law based on th e acceptance by the parties of the compulsory
jurisdiction of the Court under the more genera l grant of jurisdiction through Article36,
paragraph 2, of its Statute. That general grant of jurisdiction, we all remember, is not valid for the
present case. In the LaGrand case which involves Article 36, paragraph 1, of the Statute, the Court
has jurisdiction only over one particular treaty, th e Consular Convention. It lacks jurisdiction over
customary law of diplomatic protection. The principle governing the present case is thus exactly
the same as that governing the scope of the Court's jurisdiction in Nicaragua, but the components
are reversed. The United States is simply asking th is Court to apply here the same principle that it
applied against the United States in the Nicaragua case.
3.18. The learned counsel for Germany will be quick to point out that in the case concerning
United States Diplomatic and Consular Staff in Tehran , the United States, invoking among others
the Optional Protocols to the Vienna Diplomatic and Consular Conventions, itself made claims "in
52
its own right and in the exercise of the right of diplomatic protection" . Any resemblance between
these two cases, however, is superficial and any such reliance would be totally out of context. In
the Hostages case, in contrast to the present case, there w as an inextricable link, a Gordian knot if
you will, between the claims and the roles of th e United States as the victim State, and the
continuing breaches of the Diplomatic and Consul ar Conventions with regard to their most
fundamental aspects: inviolability of diplomatic and consular premises and the illegal detention
and mistreatment of the person of diplomats and consuls.
3.19. Only two of the hostages were private individuals. The rest were diplomats and
consuls. Although the very fact of these two pe rsons being held hostage on the Embassy grounds
resulted in their coming under the umbrella of the diplomatic conventions, the Court itself chose to
51
Id., at pp. 95-96, para. 178.
5Case concerning United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, p. 6,
para. 8 (c). - 42 -
cite in reference to these two individuals the protection of the Treaty of Amity, Economic Relations
and Consular Rights between the United States and Iran , thus recognizing the distinction between
private individuals (under the Treaty of Amity) and official persons (under the diplomatic
conventions). Moreover, the dispositif ⎯ and this is what counts here ⎯ the dispositif of the
Judgment makes no mention of diplomatic protecti on. Clearly departing from the language of the
United States submissions, the Court referred only to the direct injury caused to the United States:
"decides that Iran is under an obligation to make reparation to the Government of the United States
54
for the injury caused to the latter" .
3.20. It follows from all of this that the Court's jurisdiction under the Optional Protocol to the
Consular Convention does not extend to any ques tion of diplomatic, let me stress, diplomatic
protection.
The LaGrands have failed to exhaust local remedies
3.21. Should the Court, nevertheless, decide that it has jurisdiction over the diplomatic
protection of the LaGrands or on the basis of a breach of any individual right, the requirement of
exhaustion of local remedies would bar furt her consideration of such claims. As
ProfessorRosenne observes, the Court can deal wi th pleas in bar in whatever manner it finds
55
appropriate .
3.22. In his statement yesterday, the distinguished Co-Agent of Germany, Professor Simma,
conceded that claims with regard to diplomatic protection, or to individual rights, are subject to the
requirement of exhaustion of local remedies. So did the Memorial 56. Germany asserts, however,
that all remedies available to the LaGrands "within the judicial system" of the United States have
57
been exhausted . We shall show that this assertion is not accurate.
3.23. Germany gives the requirement of exhaustion of local remedies a novel reading, one
which would radically depart from the rich practi ce and jurisprudence of international law on local
53Id., at p. 26, para. 50.
54
Id., at p. 45, para. 95 (5).
55
Supra, Note 3, at 840 (1997).
56Memorial of the Federal Republic of Germany, p. 184, para. 5.16.
57Id., paras. 5.17, 3.23. - 43 -
remedies. It complains that "[t]he United States law does not provide an effective remedy for the
breach of the requirement of notification in the case that the omission of consular notification is
58
discovered after a defendant has been convicted in a jury trial" .
3.24. By these very statements, I submit, Germany concedes that remedies are available
prior to conviction by jury and at the state level. The specific breach claimed by Germany is the
breach of the duty to inform. This breach, Mr.President, could easily have been remedied at the
trial stage, if raised in a timely fashion. The ju dge would have enabled cons ular notification to be
given and consular assistance could have been provided for the entire continuation of the
proceedings.
3Bu5t. ⎯ I regret to say ⎯ Germany would have the Court rewrite American law, as well
as international law, by insisting that certain re medies, if unexhausted at the level specified by
national law, must be available additionally at a diffe rent level, in different courts. But surely this
matter is entirely up to the sovereign State to decide.
3.26. Germany argues that the United States is in breach of international law by not
providing additional ⎯ I emphasize the word "additional" ⎯ recourse at the federal level. There
is, of course, no entitlement in inte rnational law, to a second-level, habeas type, review of claims
that were not raised in state courts. Rules pe rtaining to procedural default do not violate any
international obligations of the United States. They are a reflection of the United States federal
system which discourages unnecessary federal involvement in matters retained by the states. And
Article 36, paragraph2, deals with quite different matters, such as prison visitations, etc., as my
colleagues will further explain.
3.27. Even if an obligation to provide for remedies for th e breach through the system of
criminal justice existed, it would be entirely with in the classical tradition of international law to
accept that a State may require exhaustion of remedies before a particular court or type or level of
courts and within a particular procedural frame work. The whole meaning of exhaustion of local
remedies is that the defendant State is given an opportunity to redress a breach within its domestic
legal system, by allowing resort to courts, institu tions, or officials, as determined by the national
58
Id., at p. 75, para. 4.25. - 44 -
law and in compliance with such specific limitations as timing and procedures to be followed, in
order to avert a breach of international law. These propositions, Mr. President, are self-evident.
3.28. The requirement of exhaustion in international law encompasses procedural default and
the timely raising of claims. When a person fails, for example, to sue in national courts before a
statute of limitations has expired, the claim is both procedurally barred in national courts and
inadmissible in international tribunals for failure to exhaust local remedies.
3.29. In the Ambatielos arbitration 5, to which I draw the Court's attention, the person whose
cause Greece espoused and brought before the arbitra tion, had failed to call before the trial court a
witness essential for the success of his action. Such evidence could not be introduced in the Court
of Appeal. The arbitral commission ruled that the failure amounted to "non-exhaustion of the local
remedy available . . . [in the trial court]" and that the case was therefore inadmissible.
3T.he. Ambatielos case, I submit, is instructive fo r the present case, where the breach
could have been challenged in a timely fashion ⎯ but was not challenged ⎯ at the state level. The
fact that in such circumstances the challenge could not be made at the federal level violates no rule
of international law. Nor does it cure this non-e xhaustion of local remedies, which is fatal to the
admissibility of the claim before this Court.
3.31. Should the German Government consider, however, that the Ambatielos approach is
harsh, we recall that Ambatielos was confirmed and followed, with full citation and attribution, by
the European Court of Human Rights in the case of Cardot v. France . In finding Cardot's
application inadmissible for non-exhaustion, the C ourt stated that exhaustion of local remedies
requires
"that the complaints intended to be made subsequently at Strasbourg should have been
made to those same [domestic] courts, at least in substance and in compliance with the
formal requirements and time-limits laid down in domestic law" 60.
3.32. The case of Cardot is not the sole exampl e of this approach by the European Court of
Human Rights. In Barbera, Messegué and Jabarodo v. Spain, for example, the convicted persons
argued that the last-minute substitution of one j udge with another whom they considered biased,
59
Ambatielos claim (Greece v. U.K.) (1956), 12 UNRIAA 120.
6Cardot v. France, 200 Eur. Ct. H.R. para. 34 (1991). - 45 -
violated their right to a fair trial. They had not protested the change at the trial level, however, and
the Court found the claim on that particular issue to be inadmissible . 61
3.33. The fact is that most countries ⎯ I emphasize most countries ⎯ have varieties of rules
parallelling in some respects the United States rules of procedural default. International tribunals
have upheld such rules and found the cases inadmissible for non-exhaustion of local remedies.
The failure of attorneys to ra ise the breach at the appropriate stage and time of the
proceedings does not excuse non-exhaustion of local remedies
3.34. In trying to explain away the fact that the LaGrands did not raise the breach as required
by the law of the United States and thus to ex cuse non-exhaustion of local remedies, Germany
62
argues that they were unaware of the Convention's provisions .
3.35. In most cases, however, Mr. President, the law is complicated and the role of
63
challenging breaches is carried out by attorneys, as Germany itself recognizes . The rule of
exhaustion of local remedies, one of the cardinal rules of international law, would lose any viability
should defendants not be bound by the acts of their attorneys. The law has always assumed that a
defendant and his or her lawyer appear as one single entity in terms of legal positions.
3.36. Germany itself recognizes that it was the duty of the attorneys to discover and to
64
challenge the breach . It blames Karl LaGrand's attorney, who could and should have raised the
breach and considers him inadequate for his ta sks. It did not question the competence of
Walter LaGrand's attorney, although it was Walter La Grand who was the subject of the provisional
measures indicated by the Court in its Order of 3 March 1999.
3.37. Even if consular notification were, in exceptional case s, relevant to the administration
of justice, it would be the duty of attorneys to raise the matter at an appropriate stage and in a
timely fashion. In the LaGrand case, the defence counsel were free at all times to ask Germany for
assistance.
61Barbera, Messegué and Jabarodo v. Spain, 146 Eur. Ct. H.R. Series A, para. 59 (1988).
62
Memorial of the Federal Republic of Germany, p. 12, paras 2.07, 4.05, 4.81.
63Id., at p. 85, paras 4.41, 4.42.
64Id. - 46 -
3.38. We do not claim, Mr. President, that cour t-appointed lawyers are always the best. But
the conclusions of the United States courts that Karl LaGrand's lawyer provided a constitutionally
sufficient level of representation should not be, I submit, second-guessed. Those conclusions
merit deference.
3.39. Given the independence of the bar in the United States as in many other countries and
the fact that, in the United States, lawyers for the defence and the prosecutors are adversaries rather
than partners, the state of Arizona could not ask to be privy to the defence strategy of the lawyers
for the LaGrands. It could not tell them what ch allenges to raise, nor even enquire why certain
arguments were or were not made.
3.40. A judgment of the European Court of Human Rights in the case of Kamasinski v.
Austria directly supports the position of the United St ates. An American citizen convicted in
Austria for criminal offences raised a plea of nullity for inadequate representation by counsel 65.
The Supreme Court of Austria rejected that plea on the ground that it was the duty of the regional
court to appoint a defence lawyer, but not to supervise his activities 6. Emphasizing the principle
of the independence of the legal profession, the Eu ropean Court considered that "a State cannot be
67
held responsible for every shortcoming on the part of a lawyer appointed for legal aid purposes" .
3.41. The Court refused to distinguish between the acts of the defendant and his counsel,
insisting that "Kamasinski must be identified w ith the counsel who acted on his behalf, and he
cannot therefore attribute to the respondent State any liability for his counsel's decisions" 68. The
court reached its decisions despite the court's recognition that Kamasinski, as someone who was
not a long term-resident of Austria, was unfamiliar with Austria's legal system. In contrast to
Kamasinski, the LaGrands could not claim any lack of familiarity with the United States system.
3.42. The European Commission of Human Rights has also held that the advice of lawyers
that a further remedy would be useless does not constitute a "special circumstance" "absolv[ing] the
69
applicant from exhausting that remedy" . It followed this view even where similar advice was
65Kamasinski v. Austria, 168 Eur. Ct. H.R. Series A, para. 35 (1989).
66
Id., at para. 37.
67
Id., at para. 65.
68Id., at para. 91.
69Simon Herold v. Austria, Application No. 4340/69 (1971), 38 Collection of Decisions 33. - 47 -
70
given to the applicant by both his counsel and the judge . In another case, the Commission held
that advice given by lawyers "did not dispense w ith or modify" the need to comply with the
71
requirements of exhaustion . I refer the Court to Amerasinghe's summary of the law, which I
72
would like to include in the transcript .
Germany is invoking against the United States standards which it does not follow in its own
practice
3.43. Admissibility is not just a technical question of international law. In certain
circumstances, it raises fundamental questions of fairness and equity and requires special judicial
prudence. I submit that the present case belongs to this category.
3.44. Despite its harsh condemnation of the United States rule of procedural default,
Germany insists on the benefit of similar rules, when it appears as a defendant. In application
I.H. v. Federal Republic of Germany concerning a conviction of an applicant by a German regional
court, a conviction confirmed on appeal by a Ge rman federal court, th e Federal Constitutional
Court found the constitutional complaint inadmissib le because "it had not been complained of
within the time-limit provided for in the Federal Constitutional Court Act" 73. The European
Commission on Human Rights decided that "in th ese circumstances [the applicant] cannot be
considered as having exhausted the remedies avai lable to him under German law". There is little
difference, if any, between the approach of th e United States courts and that followed by the
German (Federal) Constitutional Court in this case.
3.45. Even in cases of denial ⎯ outright denial ⎯ of court-appointed counsel to an indigent
defendant ⎯ in this case a Turkish national ⎯ for a complicated appeal hearing, Germany has
opposed the quashing of convictions, arguing, in dr astic contrast to its position in the LaGrand
74
case, that there was no prejudice to the defendant . Not surprisingly, the European Court of
70
Id.
71
X v. Belgium, Application No. 1488/62 (1963), 13 Collection of Decisions 96.
72C. F. Amerasinghe, Local Remedies in International Law 213 (1990):
"Mere doubts as to the existence or effectivene ss of a remedy do not ex empt the individual from
exercising a remedy, nor does bad advice given by counsel or his opinion or the personal opinion of the
individual as to the probability of success of a remedor as to expediency and tactics in handling his
case."
73I.H. v. Federal Republic of Germany (unpublished), (12 Feb. 1990).
74Pakelli v. Germany, 64 Eur. Ct., para. 40 (1983). - 48 -
Human Rights, invoking "the interests of justice" , found Germany in breach of Article 6 (3) (c) of
the European Convention, a provisi on comparable to Article14(3) (d) of the International
Covenant on Civil and Political Rights, to which Germany is also a party. Significantly, the
European Court recognized that under the Convention it was not "empowered" to support
annulment of the judgment of the Federal Court 7.
3.46. Thus, Mr.President, throughout the presen t proceedings, Germany attempts to have a
different standard applied to the United States than that which it follows in its own national
practice. Germany has not shown that its system of criminal justice requires annulment of criminal
convictions where there has been a breach of the duty to provide consular notification. Even
yesterday, it did not argue that in its national pr actice it reviews or annuls convictions on the sole
ground of such breach. Cases cited in the United States Counter-Memorial demonstrate that where
United States citizens in Germany who had not been given consular notifications were sentenced to
imprisonment, Germany, while apologizing to the United States, did not even mention the
possibility of quashing the convictions 7. There are additional cases of Americans detained in
Germany who have not been notified of the right to have their consul informed of their detention. I
draw the attention of the Court to the suppl emental declaration we filed yesterday, by
ElizabethSwop. In no case, anything more than an apology was offered to the United States. I
conclude that in its own practice Germany does not follow what it asserts in the LaGrand case as
the correct interpretation of the Consular Conventio n, i.e., that the breach of duty of notification
has consequences in the national criminal procedur es and requires the quashing of the convictions
and sentences made in the absence of notification.
3.47. What are the implications, Mr. President, for the readiness of the Court to consider the
German claims of the fact that Germany does not accept as binding for itself certain norms that it
has invoked as categorically binding for the United St ates? The United States is asking this Court
to consider whether Germany should not be pr ecluded from raising, against the United States,
alleged rules that it itself does not follow. But this matter presents not only a question of
75Id.
76
Id., at para. 45.
77Counter-Memorial of the United States of America, p. 64, paras. 78, 79, Exhibits 8-11. - 49 -
preclusion. It indicates that the interpretation of the Consular Convention which is asserted by
Germany has not become a part of international law binding on the United States.
3.48. The United States is not invoking here a claim of tu quoque. It wishes, rather, to raise
two other arguments. First, basic principles of ad ministration of justice and equality of the parties
require that both litigants in these proceedings be accountable to the same rules of international
law. It would be against such principles of in ternational law to apply against the United States
alleged rules that Germany appears not to accept for itself.
3.49. The second argument relates to the status of the alleged rules as international law. The
rules alleged by Germany are at best uncertain. In areas of uncertainty of the law, the fact that the
other party itself resorts to a contested practice has the effect of diluting the status of the alleged
78
rules of international law .
3.50. The German national practice has the e ffect of rendering inappropriate the German
invitation to this Court to adopt its asserted inte rpretation of the Consular Convention. Thus, the
German assertions involve not only a question of fairness to the defendant State but also a
challenge to the principles of administration of justice to which this Court has always been
committed.
3.51. Moreover, since the German domestic practice as well as the US domestic practice
reflect, as we shall demonstrate, the general prac tice of States parties to the Convention, there has
been a general rejection by States of the interpre tation of the Consular Convention that Germany is
asserting against the United States in the present case.
3.52. Were the German interpretation of the Consular Convention accepted, all States parties
would currently be in breach, weakening any incentives to a better implementation of the
Convention.
3.53. As the applicant State, it was the duty of Germany to establish the correctness of its
asserted interpretation of the Consular Convention. This Germany has clearly failed to do.
78
Theodor Meron, Human Rights and Humanitarian Norms as Customary Law 40 (1989). - 50 -
Conclusions
3.54. In concluding, I draw the attenti on of the Court to its statement in the Northern
Cameroons case that
"even if the Court, when seised, finds th at it has jurisdiction, the Court is not
compelled in every case to exercise that jurisd iction. There are inherent limitations on
the exercise of the judicial function which the Court, as a court of justice, can never
ignore.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... . . . . . .
That function is circumscribed by inherent limitations which are none the less
imperative because they may be difficult to catalogue, and may not 79equently present
themselves as a conclusive bar to adjudication in a concrete case."
I take the liberty, Mr.President, of sugges ting that in the present case which rests on an
interpretation of the Consular Convention which neither Germany nor any party to the Consular
Convention accepts and follows in its own national practice, it may be appropriate for the Court, as
a court of justice, to exercise its judicial discretion to entertain the case.
3.55. This, Mr.President, concludes my pr esentation. I thank you for your patience,
distinguished Court, and would appreciate it if you, Mr.President, would call now on
Ms Catherine Brown.
Le PRESIDENT : Je vous remercie, Monsieur le professeur. I now give the floor to
Ms Catherine Brown.
BMROs WN:
4.1. Mr.President, distinguished Members of the Court, it is an honour for me to appear
before you again today. My focus will be the Un ited States response to the breach in this case and
the question whether the Vienna Convention on Consular Relations requires any different response.
I will in particular address whether the Conven tion requires States party to provide remedies in
their criminal justice systems to foreign nationals who have not been informed, in accordance with
Article36 of the Convention, that they could request consular notification. Germany has
constructed a fanciful theory in an effort to pers uade the Court to answer this question "yes". The
United States submits that the answer in fact is indisputably "no", and that the Court would
79
Case concerning the Northern Cameroons (Cameroon v. United Kingdom), Preliminar y Objections, I.C.J.
Reports 1963, pp. 29-30. - 51 -
seriously distort the framework in which consul ar relations are conducted were it to conclude
otherwise. I propose today first to discuss briefly the actions that the United States has taken in
response to the breach in this case and the over all question of United States compliance with
Article36. I will then address the requirements of the Vienna Convention and show that it
provides no basis for requiring the remedy in m unicipal law that Germany seeks to have imposed
on the United States.
The United States has investigated the allege d breach; apologized to Germany; and
undertaken a significant broad effort to improve its compliance with the requirements of
Article 36
4.2. Mr. President, it is well known that the United States regards the Vienna Convention as
a Convention that establishes State-to-State rights and obligations, not individual rights that inhere
in the individual and that must be justiciable in the criminal justice system. This conception of the
Convention underlies our view that breaches of Artic le 36 of the Convention need not be remedied
in the criminal justice process. We believe th at Germany held the sa me view until it recently
decided that it would be useful to reinterpret the Convention for purposes of cases involving capital
punishment. Accordingly, both the United States and Germany historically have followed the
practice of investigating alleged violations of Article 36, apologizing if appropriate, and
undertaking to improve future compliance. Neith er country has provided for remedies in its
criminal justice system for such violations, whic h are common in both countries. In some recent
cases involving foreign nationals in the United St ates sentenced to capital punishment, we have
also taken the additional step of asking the relevant authorities to consider the fact of the violation
as a relevant but not dispositive factor weighing in favour of a possible grant of clemency. This is
consistent with our view that the remedies are political, not judicial.
4.3. Our response to the breach of Article 36 in this case followed this pattern insofar as
possible, given that Germany raised the consular notification issue with the United States only two
days before Karl LaGrand's scheduled execution, in the letter from Foreign Minister Fischer that is
before the Court as ExhibitMG18. Germany' s previous communications had sought clemency
solely on the basis of opposition to the death penalty 8.
80
MG 14, 15, and 16. - 52 -
4.4. Consistent with the prior practice of the United States and Germany, once we had
confirmed that a breach had actually occurred ⎯ which was not until many months later ⎯ we
expressed the regrets and extended the official apol ogies of the United States to Germany, and we
advised Germany in detail of the steps being ta ken in the United States to prevent future
recurrences. We also provided Germany with a re port of our investigation, and we offered to
answer any questions Germany might have about it. That was done by the diplomatic note that is
Exhibit 2 to the Counter-Memorial.
4.5. In our diplomatic note, we assured Germ any of the seriousness with which the United
States regards consular notification and we fully accepted the need to improve observance of the
requirements of Article36. The efforts the Un ited States is taking to improve compliance are
recounted both in the note that is Exhibit 2 and in Exhibit 3 to the Counter-Memorial, but they have
continued since those exhibits were prepared. S ecretary of State Albright has fully and personally
supported these efforts from the beginning, as ha s Attorney-General Janet Reno of the United
States. The centrepieces of the effort have been our 1998 brochure and pocket card, which have
been made available to the Court. As of t oday, we estimate that we have distributed over
60,000copies of the brochure, and over 400,000 co pies of the pocket card to federal, state, and
local law enforcement and judicial officials throughout the United States.
4.6. We are also conducting training programmes throughout the United States, some in
co-operation with consular officials of other count ries, such as Mexico, that have taken a genuine
interest in helping us improve observance. We are reaching out to all levels of government. While
we have traditionally, as you heard from Attorn ey-General Napolitano, re garded arresting and
detaining officials as the competent authorities fo r purposes of Article36, we are also including
judicial officials in our outreach effort, and areasking them to confirm that consular notification
requirements have been observed with respect to foreign nationals who appear before them. We
specifically called this initiative, which is a change in our prior practice, to Germany's attention,
because it directly addresses the confusion that arose in the case of Karl and WalterLaGrand.
Most recently, Secretary of State Albright has pers onally decided to establish in the Department of
State a permanent office to focus on US and fore ign compliance with consular notification and
access requirements. - 53 -
4.7. We were frankly disappointed yesterday to hear Germany disparage these efforts, as if
they were not genuine or were not having an impact . It went to great lengths to characterize them
as so ineffective that the Court should take the extraordinary step of ordering the United States to
create remedies in its criminal justice system in death penalty cases. Leaving aside that the Vienna
Convention provides no support for such a remedy ⎯ to which we will return later ⎯ Germany's
characterization distorts reality. First, it is impor tant for the Court to know that the United States
has consistently sought to comply with Article 36 since it first became a party to the Vienna
Convention in December 1969. Moreover, we had little reason to think that foreign governments
were dissatisfied with our efforts until the 1990s. Germany certainly did not undertake to advise us
of any serious concerns on its part ⎯ just as it did not raise the LaGrands' case with us between
1992 and 1999. Thus, our current effort is one that started relatively recently.
4.8. Second, the programme thus far has been far more successful than Germany allows.
Indeed, Germany has affirmatively mischaracterized what is happening in the United States today.
For example, its belated supplemental submission to the Court included a letter from California that
Germany cited as evidence that California does not think that it has to comply with Article 36. We
have in turn submitted a letter from California sta ting explicitly that it fully accepts the obligations
of Article 36. What was missing from Germany's story was the fact that it was precisely in order to
improve its compliance that California recently decided to incorporate the requirements of
Article 36 into its state law. As I will explain la ter, we do not believe that the Convention requires
such incorporation, and indeed relatively few parti es to the Convention have chosen this approach.
But we would think that Germany would welcome su ch an effort rather than criticize it. We
certainly see no justification for misrepresenting the innocuous and clearly correct statement of a
California official that the California statute was not in effect recently and therefore could not be
violated until recently. I could describe similar positive efforts throughout the United States, and
Attorney-General Napolitano this morning describ ed efforts taken by the state of Arizona,
including efforts to bring its judicial officials into the process, again directly responsive to the
confusion that arose in the case of Karl and WalterLaGrand. Every day my office receives
requests from law enforcement entities throughout the United States for our brochure and pocket - 54 -
card so that they can do what is required. More over, we have been told explicitly by foreign
consular officials that they are receiving notification more often as a result of our efforts.
4.9. The list of cases of alleged violations discussed yesterday by Mr.Simma does not
diminish our confidence that our programme is bei ng felt. The list is little different from a list the
United States might prepare about Germany or any number of countries, as shown by the
supplemental declaration we have submitted from Elizabeth Swope, the Secretary of State's Senior
Co-ordinator for Consular Notification. Germany fails to recognize that consular notification never
works perfectly, in Germany, in the United States, or elsewhere, and that consular officers routinely
learn of their nationals in detention through a variet y of means and at a variety of times in relation
to the criminal process. To the extent that the list shows that German consular officers learned of
cases through family members, direct contacts of foreign nationals, or in other ways, it is simply
illustrative of the realities of consular practice. The same variation in methods of notification is
evident in at least one of the cases of non-co mpliance by Germany identified by MsSwope's
declaration, and is amply documented in our st ate practice survey, which is Exhibit8 to our
Counter-Memorial.
4.10. More importantly, Germany utterly fails to recognize what is involved in ensuring
compliance. The United States is a country cove ring roughly 9.2million square kilometres, as
compared to Germany's roughly 350,000 square kilometres. Our population of 270million
compares to Germany's of less than 83 million. As you have heard this morning, we have a unique
federal structure. In fact, arresting and detaining authority in the Untied States is decentralized not
only between the federal government and the states, but also within the federal government and
within the states. By one estimate, there are over 700,000 law enforcement officials in the United
States and they are working in over 18,000 different jurisdictions.
4.11. This is not to excuse, but to explain. The United States has embarked on what we see
as a long-term, permanent effort to address the question of compliance with Article 36. We do not
need any additional requirement of compliance wi th Article36, because we fully understand and
our states fully understand that it has the force of law in the United States and can be implemented
directly. The problem instead is one of reaching a highly diverse and enormous number of relevant
officials in a large number of law enforcement juri sdictions through long-term, persistent training - 55 -
programmes. Germany's criticism of the progra mme ignores these factors and frankly suggests a
naïveté about the United States, surprising from a country that has purported here to make
definitive representations about the American judi cial system, and a country that has its own
compliance problems in a much smaller and much less complex environment.
4.12. In any event, it is wrong to belittle the United States position that Article 36 breaches
are appropriately addressed through a process of investigating, apologizi ng, and undertaking a
genuine good-faith effort to do better in the futu re. In her authoritative commentary on the Vienna
Convention on Diplomatic Relations , EileenDenza has observed th at the Diplomatic Convention
has been remarkably successful in winning support and observance. One reason, in her view,
"is that reciprocity forms a constant and effective sanction for the observance of nearly
all the rules of the Convention. Every State is both a sending and a receiving State.
Its own representatives abroad are in some sense always hostages." 81
The same can be said of the Vienna Convention on Consular Relations. States party know that the
rules of conduct they urge upon others are ones that they must be prepared to live by themselves.
Conversely, they know that the way in which they treat States party under the Convention may
significantly affect the way they are treated. In this context, the response of the United States is
anything but meaningless. It is a clear, public, and concerted message directed from the highest
levels of the United States Department of State a nd the United States Department of Justice to the
States party to the Convention, designed to assure them that we are indeed serious about Article 36,
and that we fully expect to be held to the same standards domestically as we seek to hold them to
with respect to American citizens abroad. We will continue our efforts regardless of the outcome
of this case, and regardless of whether countries like Germany lose interest because their real focus
is on capital punishment, not consular notification. By the same token, we can legitimately look
askance at Germany's belated effort to establish a special rule for consular notification in cases of
capital punishment, given that such a rule would have no reciprocal impact on Germany's own
criminal justice system.
81
E. Denza, Diplomatic Law, 2nd. ed., 1998, p. 2. - 56 -
The Vienna Convention does not require any different response
4.13. Mr. President, I would like to turn now to the question whether the United States
response to the breach in this cas e has been inadequate under the Vi enna Convention. Contrary to
Germany's suggestions, the answer does not lie in deciding whether the Vienna Convention
benefits individuals. The performance of consular functions inherently benefits individuals.
Moreover, it is clear that Article 36, by recognizing the right of consular officials to communicate
with and to assist their nationals, provides a benefit to those nationals. Nor does the answer turn on
whether Article36 recognizes the rights of individuals ⎯ it plainly does, by its terms. But that
does not tell us much about the nature of those rights, or about the remedies required under the
Vienna Convention for breaches of Article 36. Th e relevant question is whether the obligation to
inform a foreign national that he can request consular notification must be integrated into a
receiving State's criminal process and treated as so fundamental to that process that the possibility
of undoing the process must exist if this obligation is not observed. The answer to this question,
again, is clearly, no. This is not to say that informing an individual cannot in some cases lead to
the provision of consular assistance that might be u seful in a criminal defence. But this possibility
is not a sufficient basis on which to conclude that the Convention makes consular notification
integral to the criminal justice process or requi res States parties to establish remedies in their
criminal justice systems for a failure to inform a foreign national that he may request consular
notification.
The text of the Convention does not support Germany's position
4.14. In some sense our enquiry could begin and end with the text of the Convention. Let me
note a number of significant omissions that speak di rectly to Germany's claim. The Convention's
title, of course, tells us simply that the Convention's subject is consular relations between States. It
makes no reference to criminal matters, nor to individuals, and it in no way suggests that the
Convention purports to address the internal criminal justice systems of States party, or questions of
individual rights in the criminal process.
4.15. The same is true of the Preamble to the Convention, which expressly says that the
Convention is addressed to cons ular relations and the developm ent of friendly relations among
nations. The Preamble's one reference to rights that might be thought to benefit individuals in a - 57 -
judicial context ⎯ privileges and immunities ⎯ is immediately qualified by a statement that such
privileges and immunities are intended not to bene fit individuals but States. Germany has argued
that this qualification pertains only to the privile ges and immunities granted to consular officers by
the Convention, and not necessarily to Article36. But even if we were to accept this as true, it
does not change the fact that the Preamble tells us that the Convention is fundamentally intended to
regulate consular relations between States and to benefit States, not individuals.
4.16. Again, this is not to say that Article 36 does not benefit individuals: clearly it does.
But it is titled "communication and contact with nationa ls of the sending State". It is in a section
titled "facilities, privileges and immunities relating to a consular post", and it is in a chapter titled
"facilities, privileges and immunities relating to c onsular posts, career consular officers and other
members of a consular post". These headings, again, are consistent with the fundamental focus of
the Convention, which is the right of States, not individuals. And, again, nothing in them suggests
that we are reading a provision that in any wa y addresses the substantive or procedural criminal
laws of the member States.
4.17. Yesterday, our German friends spent c onsiderable time walking the Court through the
actual text and structure of Article 36. As some one who practices consular law on a daily basis, I
must confess to having been quite interested in the reading given to this Article by three
academicians. There is quite a difference in pe rspective, and frankly I have no hesitation in
suggesting to the Court that the academicians turned Article36 on its head. An afterthought
provision took on exaggerated importance, and the essence of Article 36 was pretty well obscured.
4.18. Germany glossed quickly over the fact th at paragraph1 of Article36 begins with the
important words "With a view to facilitating the exer cise of consular functions relating to nationals
of the sending State". These words introduce all three of the following subparagraphs, and of
course they give no support to the notion that the rights and obligations enumerated in paragraph 1
are intended to ensure that nationals of the sending State have any particular rights or treatment in
the context of a criminal prosecution.
4.19. The academicians also failed to appreciat e the significance of the first subparagraph of
Article36, paragraph1, which states a general principle ⎯ "consular officers shall be free to
communicate with nationals of the sending State and to have access to them" ⎯ and its reciprocal - 58 -
principle. It is this freedom of communication that is the most important right articulated in
Article 36, because communication is essential to the sending State's ability to perform its consular
functions. Subparagraph(1) (a) states a general principle that is entirely sufficient whenever the
freedom of movement of the consular officer a nd the foreign national is unconstrained. Does it
recognize a right of individual communication? Yes. But does it suggest that that right is
independent of the right of the sending State? No . In fact, it was precisely because the right of the
individual flows from the right of the sending State that the negotiators ordered the two sentences
as they did, reversing the original order proposed by the ILC. And does Article36,
paragraph 1 (a), relate the right of the individual to a criminal proceeding? Again the answer is no.
And this omission is significant because, as ProfessorTrechsel will elaborate, there are many
contexts in which criminal proceedings can take place while the foreign national remains at liberty.
4.20. Now, finally, we get to Article36, subparagraph1 (b). It deals with the particular
situation that arises when a foreign national is detained. It is addressing the special problems of
consular communication that arise when a foreign na tional is in detention. Because he is detained
he and the consular officer cannot exercise th e fundamental rights stated in subparagraph1 (a)
unless they get some help. It is for this reason that we have the special provisions in
subparagraph 1 (b) about informing consular officers of detentions and forwarding
communications.
4.21. Of course, notification of the detention under the Vienna Convention is required only if
requested by the foreign national, and as we can see from the negotiating history, it is because of
this limitation introduced as a modification to the IL C draft, that we also find in the final sentence
of subparagraph(1) (b) the requirement that the authorities of the receiving State inform the
detained foreign national of his rights to ha ve this consular official notified and his
communications forwarded. Germany yesterda y advanced the suggestion that this final
sentence ⎯ the one that the United States failed to observe ⎯ is the most important provision in
Article 36. And from this it attempted to argue that therefore necessarily every other provision in
Article 36 was violated. In fact, this final senten ce was included in the text only at the last minute
out of a concern that the foreign national might not know that he could request consular
communication. But then again, he might. He might well be aware of the possibility, or his family - 59 -
might be aware of it, or he might be contacted by a diligent consular officer, regardless of being
informed. Indeed it is not unusual for consular o fficers to learn of their nationals in detention
through these alternative methods. The fi nal sentence of Article36, subparagraph1 (b), is, in
essence, a prophylactic measure. It is not enshrine d as an individual right of the individual to be
informed. It is not: "The person concerned shall have a right to be informed." It is simply that the
competent authorities "shall inform the person without delay of his rights". I suggest that this
choice of words is not insignificant. That is, the sentence expresses an obligation that the receiving
State undertakes to the sending State; it is the sending State that has the right to have its national
informed.
4.22. Our German friends' most significant erro r, however, lies in their assumption that the
rights established by Article 36 are designed to be integral to the criminal process. They seem to
rest this argument on the requirement that notificatio n must occur without delay. I would note that
they mischaracterized our position with respect to the meaning of "without delay", but that is not
directly relevant to our point. Our point is that Article 36 is about consular communications and it
is not related to the criminal process. For example, subparagraph (b) does not provide that the
detained foreign national must be informed of his rights before any investigatory statement is
taken, or before any particular step in the crimin al process. It does not link informing the consular
officer to any step in the process, such as the initiation of an investigation, the filing of charges, or
the commencement of trial. It is simply opera tive in cases of detentio n, and its rules apply
regardless of the reasons for the detention and regardless of when detention occurs in relation to the
criminal process.
4.23. Only subparagraph1 (c) of Article36 touches directly on the question of legal
proceedings, by providing that consular officers shall be entitled to arrange legal representation for
a detained foreign national. By the same t oken, however, once the foreign national has legal
representation, the purpose of this provision has been met.
4.24. There remains paragraph2 of Article36. Our Germany friends glossed over the fact
that it is focused exclusively on the rights referred to in paragraph 1: first, the right of reciprocal
consular communication and access; second, in the sp ecial circumstances of detentions, the right
of the foreign national to have his consular o fficial notified and to have his communications - 60 -
forwarded; and third, also in cases of detention, the right of consular officers to visit, converse, and
correspond with their nationals and to arrange for their legal representation. It is self-evident that
the laws and regulations relevant to the exerci se of these rights are laws relating to communication
and access, such things as the use of communicati ons devices; how often can you send a letter?
Can you use the telephone? Are you entitled to visit in person your own embassy? Are there
curfews in place? Are there visiting hours in place? Or are there security procedures in place? If
so, they may not be so restrictive as to defeat the purposes of the Convention. But a rule relating to
the defences that a foreign national can raise in a criminal proceeding is utterly unrelated to any of
the rights enumerated in paragraph1. German y's suggestion that paragraph2 of Article36
prohibits application of rules of procedural default to claims relating to breaches of Article36,
subparagraph 1 (b), is far afield from the text, which would have to be substantially rewritten to get
to Germany's result.
4.25. Accordingly, there is no basis for Germ any's contention that the United States violated
paragraph2, or any provision in paragraph1 other than the prophylactic obligation to inform the
LaGrands that they could communicate with their c onsular officials if they wished. Germany has
cited not a single factual instance or provision of law that interfered with or prevented any
communication between the LaGrands and German consular officials. It has not identified a single
failure to provide access. Nor has it identified an y instance in which the LaGrands attempted to
arrange legal representation for the LaGrands, much less an instance in which its ability to do so
was obstructed.
4.26. I would like to make one further observation about the text, again focusing on a
significant omission. Nothing in the Convention requires States parties to incorporate the
Convention into their laws, or to provide remedies as part of their systems. This is in contrast, for
example, with the International Covenant on Civil and Political Rights, which in Article 2, imposes
express requirements for the adoption of necessary legislative measures and which requires States
parties to ensure effective remedies. Clearly , when States have wished through international
conventions to require changes in municipal law, they have found clear words to do so. - 61 -
State practice under the Vienna Convention on Consular Relations also does not support
Germany's suggestion that States party must provide remedies in their criminal justice
systems for breaches of Article 36
4.27. Mr. President, it hardly seems necessary to turn to State practice. Yet I cannot help but
mention that the prevailing practice of the over 165 States party to the Vienna Consular Convention
overwhelmingly supports our position. Germany attempted to dismiss State practice yesterday for
understandable reasons. It suggested that State prac tice is scarce, when in fact it is voluminous
albeit not readily accessed by an academician. It also suggested that it is irrelevant either because
violations occur in minor cases ⎯ which is an uns upported proposition ⎯ or because there is no
practice in death penalty cases, a point that negl ects the fact that the Vienna Convention does not
address the nature of the sentence or even link consular notification to the criminal process. How it
squares its approach with the Vienna Convention on the Law of Treaties ⎯ which it
enthusiastically embraced yesterday ⎯ is unclear. In fact, the lack of support for Germany's
position in its own practice or that of other States is of special significance, and not just because the
Vienna Convention on the Law of Treaties attaches gr eat weight to subsequent practice. I say this
because the Vienna Consular Convention is not ju st another treaty. Rather, with the Vienna
Convention on Diplomatic Relations, it has become the basic framework th at defines the way in
which the vast majority of the nations of this world conduct their diplomatic and consular
conversation. I use the word "conversation" deliberately, to emphasize how much these
Conventions have become part of the day-to-d ay argumentation and communication that occurs
between governments as they dispute their various rights and obligations. Those of us who work in
foreign ministries discuss these conventions intern ally and with other foreign ministries on a
continual daily basis, and through this conversation and the day-to-d ay practical application of the
Vienna Convention, Article 36 has indeed been infused with meaning.
4.28. The Court will find a detailed account of State practice under the Convention at
Exhibit 8 to our Counter-Memorial, as I have al ready mentioned. Since Germany seems prepared
to concede on this point, I will ju st note a few of the most salient points, several of which I have
mentioned already.
4.29. First, compliance with consular notif ication is rarely perfect, and second, it is
frequently discussed. Most significantly, there is no evidence that in this discussion States grant - 62 -
remedies in their criminal justice process for fa ilures of notification. The significance of this
cannot be overstated, given the fre quency of the failures. Yet it surely reflects the view that
Article36 does not require that violations be reme died in the criminal justice process. Two clear
examples are before the Court as Exhibits10 and 11 to the Counter-Memorial. They are Notes
from Germany to the United States apologizing a nd undertaking to do better, but in no way
suggesting that the sentence imposed on the Americ an in question should be set aside because of
the failure of notification.
4.30. In recent years, of course, defence lawyers in the United States have attempted to
persuade our courts to create remedies in our criminal justice system. We have not supported those
efforts for all of the reasons that we are advanci ng before this Court. In addition, we cannot say
that the obligation to request consular notification implicates issues of fundamental fairness that are
not independently addressed by the considerable safeguards accorded to all defendants under the
criminal laws of the United States.
4.31. A final consideration for us has been th at it would be very difficult to craft suitable
remedies that could be administered appropriately by criminal courts. On the one hand, a per se
rule of returning to the status quo ante would surely lead to absurd results, particularly in cases like
this, where the defendants were nominally Germans but were for all practical purposes Americans.
On the other hand, a rule providing for remedies on a showing of prejudice would necessarily draw
issues of State-to-State treaty violations into criminal defence litigation in a highly problematic
way. For example, a defendant inevitably will insist that he would have requested that his consular
representatives be notified if only he had been asked . He will persuade a consular officer, if he
can, to submit an affidavit on his behalf that invariably will say that the officer ⎯ or his
predecessor many years previously or some months previously ⎯ would have done any number of
things that would have made a critical differen ce. How can we explore the veracity of these
assertions? To do it fully and fairly, the prosecu tor would need access to inviolable consular
archives to determine the policies and resources th at would have governed the consular officer's
response. The prosecutor would also require a wa iver of the consular officer's immunity from
testimony, so that he could cross-examine the o fficer about his government's true commitment to
consular assistance. In this case, for example, we have clear evidence that Germany did not react - 63 -
promptly when it learned of the LaGrands; that it provided no assistance to one of the Apelt's trial
lawyers; and that it does not pay for lawyers for German nationals, but instead allows them to be
represented by lawyers funded by US federal or state governments ⎯ to mention only a few
potentially embarrassing facts. I would hope the Court would agree that, while a State party might
choose to create such a process, the Vienna Convention does not require it to do so.
The negotiating history of the Vienna Convention on Consular Relations also does not
support Germany's suggestion that States part y must provide remedies in their criminal
justice systems for breaches of Article 36
4.32. Mr. President, I have perhaps ten more minutes. I do not know if you wish to break at
the customary time.
The PRESIDENT: If it is no more than ten minutes, let us go on.
Ms BROWN: Thank you. I will try to condense this.
4.33. I wanted to offer just a few observations about the negotiating history, which I cannot
adequately summarize today. I would ask the Court to pay particular attention to our discussion of
it in the Counter-Memorial.
4.34. I would like to focus on just a few point s relating to the three major changes between
the ILC draft and the final draft that are relevant to this case. One is the reversal of the two
sentences in subparagraph 1 (a), to which I have already alluded; the other is the change from the
requirement in the ILC draft that all cases of deten tion be notified to the provision that notification
only occur at the detained national's request, and th e third is the change in paragraph2 from the
ILC's "must not nullify" proviso to the proviso that was finally adopted.
4.35. The debates that led to these changes clear ly show that the formulation in Article36,
subparagraph 1 (b), with its reference to informing the individual of his "rights" under that
paragraph, was not adopted out of any desire to cr eate or recognize individual rights that would be
justiciable in municipal criminal justice systems. Rather, it is absolutely clear from the travaux that
this was done to balance the State's right to prot ect its nationals with the individual's privacy
interests and to minimize the burden on States. - 64 -
4.36. During this discussion, I think it particularly significant that a delegate pointed out that
the burden concerns raised by the original propo sal could be addressed by countries waiving their
rights to notification. The very fact that a dele gate conceived of the concept of waiver clearly
reflects an assumption that the rights of States were at issue, and indeed there should be no dispute
that even today a sending State could advise a receiving State that the receiving State need not
inform the sending State's nationals of the right of consular communication ⎯ for example, if the
sending State determined that it was unwilling or unable to respond to requests for consular
assistance.
4.37. The discussion that led to the revision of subparagraph1 (b) also revealed the
considerable unease that the delegates felt about the fact that the cha nges that were being
introduced referred to individuals and their righ ts. It was for this reason, because of this
discomfort, and to reinforce the character of the Convention as one relating to the rights of States,
that the order of the two sentences that I have alluded to previously was reversed.
4.38. Finally, there is nothing in the travaux that supports the view that Article36 was
intended to have implications for the rights of individuals with respect to the substantive or
procedural criminal laws of the member States other than those relating to communication, prison
visits and rules of the kind I described earlier. Germany's remarks on this point yesterday are again
far afield. It is not a question of the primacy of international law over municipal law. Clearly the
proviso in subparagraph2 would override a munici pal law that provided that consular officers
could not visit their nationals in detention, to take an extreme example. That is not the question.
The question is whether Article 2 reaches the kinds of rules of criminal law and procedure that are
relevant to the defence or to when claims must be made in criminal cases ⎯ rules that have nothing
to do with the ability of consular officers to commun icate with or to assist their nationals. I have
previously explained why it is evident from the text that it does not. In the travaux it is clear from
the ILC commentary, with its express references to rules relating to visiting nationals in prison, that
the answer is no. Similarly, the delegates' discu ssion of paragraph 2 in no way suggests that they
expected paragraph 2, even with the amended proviso, to have imp lications for the validity of the
criminal process. Germany's suggestion that the proviso of paragraph2 requires remedies in the - 65 -
criminal process is a fanciful invention that simply is not supported by the travaux, just as it is not
supported by the text or by State practice.
4.39. Mr. President, in closing I would just like to offer a note of caution about the position
taken by Germany in this case. Germany's goal plai nly is to make Article 36 a tool of its current
policy objective, which is expressly to seek elimin ation of capital punishment and, understandably,
to protect its nationals from such punishment whenev er possible. We have no problem with that
goal, but we have considerable objection to Ge rmany's method. Whatever Germany's official
views about capital punishment, they provide no basi s for effectively rewriting the text of the one
nearly universal convention that provides the basic framework for the conduct of consular relations
throughout the world. The States party to the Convention did not ratify it in the expectation that it
would have the implications for their criminal justice systems that Germany seeks to have this
Court impose on the United States.
4.40. I urge the Court to listen carefully to the conversation occurring every day in virtually
every country of the world about issues of consular notification and access to which I have alluded.
And I request that it reject Germany's invitation to drastically alter that conversation and the
fundamental expectations of the 165 States party to the Vienna Convention on Consular Relations
whose interests will inevitably be affected by the decision of this Court.
4.41. Mr. President, that concludes my presentation and I thank you for your patience. After
lunch I would invite the Court to hear from my colleague, Mr. Mathias.
Le PRESIDENT : Je vous remercie beaucoup. La séance est levée. La Cour reprendra ses
travaux cet après-midi à 15 heures.
L'audience est levée à 13 h 15.
___________
Public sitting held on Tuesday 14 November 2000, at 10 a.m., at the Peace Palace, President Guillaume presiding