A CRITICAL ANALYSIS OF THE INTERNATIONAL COURT OF JUSTICE’S DECISION IN LA GRAND CASE
1. Yash Gupta, IV year of BA LLB (Hons.) from National Law University and Judicial Academy, Assam
2. Tanya Sinha, III year of BA LLB (Hons.) from National Law University and Judicial Academy, Assam
Facts of Case (Germany v. United States of America)[i]:
The two brothers Walter LaGrand and Karl LaGrand were born in 1962 and 1963 respectively in Germany and were German Nationals. In 1967, both brothers migrated with their mother to permanently settle and reside in the United States. In 1974, for a period of six months, they came back to Germany. Both lived most of their lives in the United States, though they never acquired the nationality of the United States. They remained at all-time German Nationals.
On 7 January 1982, Karl LaGrand and Walter LaGrand were arrested in the United States by law enforcement officers on suspicion of having been involved in an attempted armed bank robbery in Marana in the State of Arizona. In the course of the crime committed the bank manager was murdered and another bank employee got seriously injured. Both of them got tried by the Superior Court of Pima County, Arizona which on 17 February 1984 convicted both of them for the first-degree murder, attempted murder in the first degree, attempted armed robbery and two counts of kidnapping. On December 14, 1984, both of them was sentenced to death for first-degree murder and to concurrent sentences of imprisonment for the other charges.
At that time Germany and the United States were parties to VCCR and Optional Protocol to that Convention. Article 36, paragraph 1(h)[ii] provides that the competent authorities of the receiving State shall without delay inform the consular post of the sending State if it is within its consular district. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay.
The decision of conviction pronounced by the Superior Court of Pima County was challenged by LaGrand in three principal sets of legal proceedings. The first two proceedings were rejected by the Supreme Court of Arizona as well as by the United States Supreme Court.
Throughout the procedural period, the Grand brothers were not even informed of their right to consult and communicate with the German Consulate, which is against and violation of the Vienna Convention despite the fact that both the US and German are party to it. Neither the information is given to Grand Brothers nor the consular was informed that two the German Nationals were arrested on criminal charges, prosecuted and executed to the death sentence. The German Consular only became aware of the LaGrand Case in 1992 June which is almost after 10 years of the arrest and after two sets of proceedings. This information also reached them when the LaGrand Brothers themselves contacted the Consulates on the information by the third party.
The third set of legal proceedings were started by filing the application for writ of Habeas Corpus in US District Court. An important claim was made that the United States authorities had failed to inform the German consulate of their arrest as it is required by the VCCR. Thereafter the District Court rejected all the claims and denied the relief of Habeas Corpus. The US Court of appeal refused to consider the claims and stated the State of Arizona has violated the VCCR.
After all the attempts to bring the attention of the Court on the matter, Germany took diplomatic action in the case against LaGrand in 1999. Despite the number of attempts of intervention, they failed to prevent the execution. One day prior to the scheduled execution of Walter LaGrand, Germany filed an application with ICJ to address the issue in question. They appealed that ICJ should take the provisional measure to prevent the execution and give a chance to hear the case. Subsequently, on 3rd March 1999, the ICJ issued provisional measures that the US should take necessary action to ensure the execution of Walter LaGrand before the final decision by ICJ.
Despite the fact and vehemently opposition, on 3rd March 1999 the State of Arizona carried out the execution of Walter LaGrand, neither the Supreme Court nor the Department of Justice gave any reason for the State to grant a stay of execution.
ANALYSIS OF THE ICJ’S JUDGMENT
The ICJ’s LaGrand decision contains several significant determinations. The fact that procedural default rule within the United States domestic criminal procedure prevents foreign nations from exercising their rights under the Vienna Convention is the most important determination from this case as by not addressing the claims under Vienna Convention, and subsequent convictions of LaGrand brothers were violative of Article 36 Paragraph 2.
The ICJ recognised that there was a tightness between International Law and Domestic Law and was of the opinion that this tightness could create a bundle of serious problems for foreign nationals in the near future. ICJ ordered that a review of the merits of the claims is important to prevent the rights in future if they are violated. Thus, ICJ ordered that if there is a violation of Article 36 of the Vienna Convention in respect to the rights of foreign national, then the United States Courts regardless of the stage in litigation shall consider the claims on merit. This order was in conflict with the doctrine of procedural default and in conflict with the requirement of exhaustion of state remedies in the United States.
Also, the ICJ did not specify how the United States fulfil the order without altering its Domestic Laws.
The aim of the Vienna Convention is to maintain friendly and efficient relations among states. It also protects the roles and functions of consulates in foreign countries as well as the rights of foreign nationals. The LaGrand case specifically deals with Article 36 of the Vienna Convention. It was found that the United States was in violation of Article 36, Paragraph 1 of the Vienna Convention. The United States accepted their fault of not informing the LaGrand brothers of their right to contact the German consulate. The United States was not respecting the rights created by the Vienna Convention as this is the first step.
Germany argued that the procedural default made it very difficult for the LaGrand brothers to claim that the United States breached their rights under the Vienna Convention. In response, the United States said that the convention does not provide any specific remedy in case of a violation, therefore the United States was not under pressure to prevent a recurrence of this situation. According to ICJ, the procedural default rule violated the Vienna Convention as it prevented LaGrand brothers from challenging the violation of their rights to consular access. But, ICJ was not able to propose a way to reconcile international legal obligations under the Vienna Convention with the United States Domestic Laws. Due to this, there were two choices with the US. One, the United States can follow their Domestic Laws. Two, the United States can ignore the ICJ’s holding. Therefore, an examination of the procedural default rule in an effective manner may provide a better solution.
The Rule of Criminal Procedure in Arizona laid the trap for the LaGrand brothers. Rule 32 governs post-conviction relief to criminals in a case within Arizona. If the defendant is of the view to challenge his conviction, then he must raise his claims either in Trial Court or in his first direct appeal. The risk of procedural default arises when the defendant fails to raise all the claims. The Arizona Rule of Criminal Procedure prevents a defendant from raising any claim in post-conviction that was not raised on direct appeal or any claim waived at trial. Karl LaGrand attempted to challenge his conviction at the state level after he discovered that violation of Vienna Convention took place. Since he did not preserve his claim at trial or during the appeal, the state court held that he waived his claim. Though they were not aware of the violation of the Vienna Convention as their claim, it was held that they waived their claim. Then, there was no choice left with the LaGrand brothers rather to raise their claim under federal post-conviction relief.
The writ of Habeas Corpus is often referred to as Great Writ which examines the constitutionality of a prisoner’s conviction and detention. This writ is granted only when the applicant has exhausted all the state remedies. This provision directly applies to the Vienna Convention to which the United States is a party. The state courts did not address the violation of the Vienna Convention due to procedural default at the state level. Karl LaGrand attempted to argue around the procedural default in the court. The state court held that the claim had a procedural default by waiver at the trial court and thereafter refused to hear the merits of the claim.
RECOMMENDATIONS AND SUGGESTIONS
One accepted way to overcome the procedural default rule is for a criminal defendant to show cause for his default and prejudice arising from that default. The court must hear a procedurally defaulted claim if the petitioner can show cause and prejudice arising from alleged federal law violation. The claim which would have been procedurally barred before may be addressed on merits if the defendant convinces the court about cause and prejudice. As LaGrand brothers were not able to show cause and prejudice during the process of litigation, it became an opportunity for ICJ to re-examine the cause and prejudice exception as an instrument for foreign nationals in future as well in the present case.
One major issue is the narrow reading of the ICJ decision, as in the present case it is limited to the consular rights of LaGrand brothers (German Nationals) charged with serious crimes in the United States. The present case ignored the most important question of whether International Law and Domestic Law procedure related to each other. The ICJ only addressed whether the German Nationals should be sentenced to penalties or not. If the true objective of the Vienna Convention is to be fulfilled and to protect the rights of all nations, then ICJ opinion should apply equally to all the member countries of the Vienna Convention.
Another problem is the limitation of the ICJ holding to convictions and sentences that are severe. The ICJ never explained what level of crime and sentence would be termed as severe. The ICJ lacks the opinion that whether the life sentence is to be considered severe or the nature and gravity of crime would be considered as severe. The ICJ has remained silent on this point.
The state law department should develop a training program for law enforcement officials which would explain the rights and obligations provided in the Vienna Convention. The training program should explain the duties enshrined in the Vienna Convention which includes informing foreign nationals about their arrest (this was not informed in the LaGrand case, which subsequently led to procedural default). The information notified to the foreign nationals about their rights without delay should be provided with timely notice of their rights.
To prevent further violations of the Vienna Convention, the lawyers of the state should be provided training. In the LaGrand case, the counsel which was appointed by the court did not know the rights that foreign nationals and foreign states have under the Vienna Convention. If the council appointed by the court has sufficient knowledge and a well aware person or if he received proper training then there would be very few chances to avoid a challenge to a conviction on the basis of ineffective assistance of counsel. This would also save the precious time of the court and the decisions will be delivered in a short span of time.
[i] 2001 I.C.J. 466
[ii] Vienna Convention on Consular Relations art. 36 paragraph 1(h), Apr. 24, 1963.