104- LaGrand Case (Germany vs USA)

104- LaGrand Case (Germany vs USA)

Karl and Walter LaGrand, both German citizens, were arrested in the State of Arizona in 1982. They were judged and sentenced to the death penalty without having been informed of their right to communicate with and be assisted by their governments. As a result, consular officers did not intervene to help its citizens, neither in the trial nor at the appeal stage of the legal proceedings. On March 2nd, 1999, Germany filed an application before the International Court of Justice (ICJ) instituting proceedings against the United States of America alleging various violations of the Vienna Convention of April 24th, 1963 on consular relations and more precisely:

• Its article 5, which lists among other consular functions, the possibility of (e) helping and assisting nationals, both natural and legal persons of the sending State including by (i) arranging appropriate representation before the Tribunals and other authorities of the receiving State
• Its article 36.1.(a) which provides for a freedom of communication and free access between consular officers and the nationals of the sending state
• Its article 36.1.(b) which places on the authorities of the receiving State an obligation to inform foreign nationals of their right to communicate with their consular post if they so choose.

German authorities were eventually allowed to intervene in the trial to defend their citizens when the case reached the federal level. However, by virtue of the American principle of procedural law of ”procedural deficiency”, the judges ruled that the defendants, not having asserted their rights at the State level,could not use it at this stage of the proceedings.

In addition of filing an application instituting proceedings against USA, Germany added an urgent request for provisional measures in order to protect the lives of its citizens, especially that of Mr. Karl LaGrand whose execution date had been set. In its order of March 3rd,1999, the ICJ urged the USA to take all necessary measures to ensure that the execution was delayed until such time that the Court could render a final judgment.

Order of 03-03-1999.pdf

In spite of this order, Both LaGrand were executed. In it judgment on the merits, the ICJ first stated that it had jurisdiction to hear this case. It then noted that the USA did not dispute the violation of article 36.1.(b) of the Vienna Convention. In turn, this violation had resulted in non-compliance with other provisions of the Convention, specifically of article 36.1.

With regards to the legality under international law of the ”procedural deficiency” principle, the Court held that the rule was not in itself contrary to the Vienna Convention, however in this instance, it had had the effect of preventing Germany from its nationals in the trial at the State level. Hence, the USA infringed article 36.2 of the Convention.

Lastly, in respect of the non-compliance by the USA with the provisional measures contained in the order of March 1999, the Court clarified that these measures were not mere exhortations but did place on the indexed states legal obligations, which in this case, had not been respected. The USA affirmed multiple times before the Court that it would implement a vast programme at the federal and state level to ensure that the country would meet its international obligations in the future.

Judgment of 27-06-2001.pdf