Criminal
Apr. 10, 2004
America Must Uphold Rule of Law, Allow Consular Assistance
Forum Column - By Stephen F. Rohde - Imagine you are suddenly arrested in a foreign country and charged with murder. It's a case of mistaken identity. You're innocent. You were in the wrong place at the wrong time. But the prosecutors are convinced you're guilty. You don't speak the language. Your court-appointed lawyer is inexperienced and overworked. You have no idea what's going on. You're all alone. And you are beginning to have dreadful nightmares filled with firing squads and electric chairs.
Stephen F. Rohde
Email: rohdevictr@aol.com
Stephen is a retired civil liberties lawyer and contributor to the Los Angeles Review of Books, is author of American Words for Freedom and Freedom of Assembly.
By Stephen F. Rohde
Imagine you are suddenly arrested in a foreign country and charged with murder. It's a case of mistaken identity. You're innocent. You were in the wrong place at the wrong time. But the prosecutors are convinced you're guilty. You don't speak the language. Your court-appointed lawyer is inexperienced and overworked. You have no idea what's going on. You're all alone. And you are beginning to have dreadful nightmares filled with firing squads and electric chairs.
In these dire circumstances, wouldn't you want to be advised in your native language of all of your rights, including your right to the assistance of your country's local consulate to help in your defense?
But instead, imagine that the country that has convicted you and is about to execute you has overlooked your right to consular assistance and when that violation is brought to their attention, they intend to execute you anyway.
Now imagine that that country is the United States.
Together with 164 other countries, the United States is a party to the 1963 Vienna Convention on Consular Relations, which ensures that people arrested abroad must be allowed to meet with representatives of their own government and that they be advised of that right "without delay." The United States regularly invokes the Vienna Convention when Americans are detained in foreign countries.
But the United States' fidelity to the Vienna Convention, when it comes to foreign nationals detained in this country, even those facing execution, is quite a different matter.
On March 30, the International Court of Justice at the Peace Palace in The Hague announced a historic decision finding that the United States had violated the Vienna Convention rights of 51 Mexicans on death row in America and untold numbers of "other foreign nationals finding themselves in similar situations in the United States." The Court found that none of the 51 had been advised of their right to consular assistance. The March 30 decision is final and not appealable.
The 15-member International Court of Justice, the principal judicial body of the United Nations, also known as the World Court, acting on a petition filed by the Mexican government, declined to void the convictions but instead insisted that the convictions and the death sentences be immediately "reviewed and reconsidered."
Of the 51 Mexicans, 27 are on California's death row. The rest of the 120 foreigners from 29 countries face execution in Arizona, Arkansas, Florida, Nevada, Ohio, Oklahoma and Oregon.
Since the United States acknowledges the jurisdiction of the World Court to resolve disputes between nations arising under the Vienna Convention, surely Mexican Ambassador Juan Gomez Robledo was right when he expressed confidence that "the United States will fully comply with the ruling." Surely, Jennie Green, an attorney with the Center for Constitutional Rights is right that the United States will "practice what it preaches" and "follow the same laws and standards we would impose on others."
Regrettably, past history and recent pronouncements suggest otherwise.
In 1998, Paraguay filed a petition against the United States in the World Court because Angel Francisco Breard, a Paraguayan citizen, had been sentenced to death in violation of the Vienna Convention. Yet Breard was executed despite a temporary stay ordered by the World Court.
In 1999, Germany challenged the United States in the World Court on behalf of Karl and Walter LaGrand, German brothers sentenced to death in Arizona, again in violation of the Vienna Convention. Tragically, Karl was executed before the Court could hear the case and remarkably, Walter was executed after the Court had ruled in Germany's favor and ordered a halt to his execution.
The immediate response to the World Court's March 30 ruling from some officials in the United States was as deplorable as the travesties represented by the Paraguay and German cases.
Betraying his abject ignorance that under the U.S. Constitution, treaties such as the Vienna Convention are binding on all states as part of the "Supreme law of the land," Texas Governor Rick Perry said that "the International Court of Justice does not have a jurisdiction in Texas."
No one has more at stake in all this than Osvaldo Aquilera Torres, one of the Mexican nationals covered by the World Court decision, who is scheduled to be executed by Oklahoma on May 18, 2004. Despite the fact that the World Court ruling squarely places the burden on the United States to "provide by means of its own choosing meaningful review of the conviction and sentence," Oklahoma's attorney general, Drew Edmonson, immediately shifted responsibility to Torres' attorneys to show that the involvement of the Mexican consul would have changed the outcome.
But consular assistance is vital in explaining the American capital-punishment system to a foreign national, providing legal and financial support, helping to locate witnesses and in some cases bringing them to the United States. Sandra Babcock, who represented Mexico before the World Court and an expert on the Vienna Convention, explained that consular assistance is "vital when you are talking about a fair trial, particularly when people's lives are on the line." How can Torres and the others prove a negative - that the defendant would not have been convicted or sentenced to death had there been consular assistance?
Between now and May 18, when Osvaldo Torres is set to be executed, the United States must decide a simple question. Will it uphold the rule of law? According to Gabriel Guerra Castellanos, a foreign policy analyst in Mexico City, "The United States usually does not pay much attention to the International Court unless the court rules in its favor."
Castellanos points out that at a time when the United States "is looking for allies everywhere around the world, it would be a huge mistake" to ignore the World Court.
Stephen Rohde is a constitutional lawyer at Rohde & Victoroff and president of the Beverly Hills Bar Association.
Submit your own column for publication to Diana Bosetti
For reprint rights or to order a copy of your photo:
Email
jeremy@reprintpros.com
for prices.
Direct dial: 949-702-5390
Send a letter to the editor:
Email: letters@dailyjournal.com