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World: Court Case Highlights Division On Death Penalty

By Erica Hurtt

The World Court in The Hague will this week begin considering its judgment on a case that highlights the still sharp division over capital punishment between the United States and Europe. In a landmark lawsuit, Germany is suing the United States for violating international law on consular rights. But U.S. lawyers say the case is also an attempt to criticize recourse to the death penalty by 38 of the U.S.'s 50 states.

Prague, 21 November 2000 (RFE/RL) -- Germany took the United States to the World Court last week over two German citizens put to death in the U.S. last year.

Karl LaGrand and his brother Walter were executed in the U.S. state of Arizona for killing a bank manager during a 1982 robbery attempt.

Germany says it is not contesting the guilt of the LaGrand brothers. Rather, Germany accuses its long-time ally of violating the 1963 Vienna Convention on Consular Relations. The treaty, adopted by some 160 countries, requires law-enforcement authorities to notify detained foreigners of their right to contact embassy officials, in the convention's phrase, "without delay."

Germany is asking the World Court for unspecified reparations and a guarantee that the United States won't break the treaty again.

William Aceves, a U.S. legal expert, has written extensively on the Vienna Convention. He says early involvement in the case by Germany could have provided the LaGrands with legal and monetary resources that might possibly have saved their lives.

"There are many ways in which foreign governments can assist their nationals -- from providing evidence to locating evidence, locating witnesses. This can have an incredible impact at the sentencing stage."

Germany, which abolished the death penalty after World War II, did not learn of the LaGrands' place on Arizona's death row until 10 years after their detention.

Born in Augsburg, Germany, Walter and Karl were taken to the United States as children after their mother married a U.S. serviceman. U.S. lawyers say they didn't know the brothers were foreigners because, in the words of Arizona Attorney General Janet Napolitano, "they looked like Americans, they talked like Americans, their entire demeanor was American."

Arizona has acknowledged it violated international law in the detentions and has formally apologized to the German government.

Both the U.S. State Department and Germany, through its Netherlands embassy, refused comment on the specifics of the case, citing pending litigation.

But U.S. representatives told the court last week that Germany's involvement would not have affected the outcome of the case. They also questioned what they called Germany's "late" involvement in the LaGrand case.

Germany did not contact U.S. officials until two days before Karl was scheduled to be executed on February 24, 1999, but Arizona did not delay his death by lethal injection. The day before 37-year-old Walter was due to be executed a week later, Germany filed suit with the World Court. The Hague court issued a stay of execution until the case could be heard, but Arizona officials sent Walter to the gas chamber as scheduled.

James Thessin, the U.S. representative to the court, also contended that Germany is using the treaty violation as an excuse to put capital punishment in the United States on trial.

Germany's agent at the court, Gerhard Westdickenberg, said the case is solely about the right of foreign nationals in U.S. jails to consular representation. But Westdickenberg did condemn the death penalty in court, saying it "cannot be justified -- either ethically or legally."

U.S. legal analyst Aceves says capital punishment is at the heart of this trial even if the World Court cannot rule on its validity.

"Germany did not bring this action in the International Court of Justice (former name of the World Court) because [its] nationals were arrested for some minor infraction. Germany brought this action because of the fact that its nationals were going to be executed."

Human-rights groups say that at least 85 foreign nationals have received death sentences in the United States, and most of them were not notified of their consular rights.

Two years ago, Paraguay took the United States to the World Court for violating the Vienna Convention. Paraguay dropped the lawsuit after Washington apologized for the execution of Angel Brerard, a Paraguayan citizen.

Human-rights advocates hope a World Court ruling in Germany's favor will have an effect on the use of the death penalty policy elsewhere in the world. Amnesty International legal researcher Rob Freer says:

"It would establish a vitally important legal principle. Namely, that the death penalty is not solely a domestic issue and that international treaties could override a death sentence."

Freer is only cautiously optimistic. He questions whether a ruling in Germany's favor would actually have an effect on U.S. death-penalty practices, since the court has no independent means to enforce compliance.

"Well, that's the million-dollar question really -- will the U.S. government abide by a ruling even if it is inconvenient or embarrassing?"

Aceves, however, thinks this is a unique case.

"As of today, most federal courts have refused to recognize the binding nature of decisions of the International Court of Justice. But none of those decisions has been as directly pointed to the criminal process as a decision in this case might be."

The 15-member World Court will take some months in deliberating on its judgment and is expected to issue a ruling on the case in the first half of next year.