The International Court of Justice today affirmed the importance of protecting the rights of foreign citizens prosecuted in the United States, Human Rights Watch said. The court ruled against the United States in a case brought by Mexico concerning the U.S. failure to inform 54 Mexicans arrested on capital charges of their right to talk to their consular officials.
The right to consular notification and assistance is required by the Vienna Convention on Consular Relations. This right enables governments' officials to provide assistance, including legal counsel, to help ensure fair proceedings for their citizens who may be at a disadvantage in criminal proceedings in foreign countries.
Mexico contended that these citizens had been tried, convicted and sentenced to death without being properly informed of their Vienna Convention rights in the United States, which is one of 168 countries party to the treaty. Mexico argued that timely consular help could have protected the defendants' due process rights. Although the original claim related to 54 Mexicans, at the time of the court's ruling, only 52 individual cases were remained at issue.
“Today's decision could make the difference between life and death for foreigners prosecuted in the United States,” said Jamie Fellner, director of the U.S. Program at Human Rights Watch. “Giving defendants access to consular officials means that they can get good defense lawyers—the surest way to avoid the death penalty.”
In today's ruling in the Case concerning Avena and Other Mexican Nationals (Mexico v. United States of America) the International Court of Justice (ICJ) said that it was “for the courts” of the United States to provide “effective” review of the convictions to determine whether the violations caused “actual prejudice” to each defendant. It rejected the U.S. argument that failure to respect the right to consular notification could be rectified by simply raising that fact in a petition for clemency.
Mexico had asserted that the “standardless, secretive and unreviewable clemency process” was an insufficient remedy, and that redress of Vienna Convention violations required “not the hope of executive grace, but the right to legal review.” The court agreed that clemency proceedings were no guarantee that the violations would be redressed.
In an interim ruling in February 2003, the ICJ ordered the United States to ensure that the three of the 54 Mexicans whose executions were imminent were not executed before the court issued its final decision on the merits. None has been executed, but Oklahoma has set May 18, 2004 as the date for the execution of one of them, Osvaldo Torres.
“The United States invokes the Vienna Convention to ensure protection for American citizens arrested, detained or imprisoned abroad,” said Fellner. “Nevertheless, it has been reluctant to provide a meaningful remedy to foreign citizens whose right to consular notification has been violated in the United States.”
The Avena case is the third time in five years that countries have instituted proceedings in the International Court of Justice against the United States because of the failure of U.S. officials to notify foreign citizens arrested in the United States of their rights under the Vienna Convention.
In two earlier cases, brought by Paraguay and Germany on the eve of scheduled executions, the ICJ issued interim rulings ordering the United States not to execute the death row prisoners pending a final ICJ decision. The prisoners were nonetheless executed. Paraguay then dropped its case, but Germany pressed for a final ruling. In its final judgment in Germany's case in June 2001, the court ordered the United States “by means of its own choosing [to] allow the review and reconsideration of the conviction and sentence by taking account of the violation” of consular notification rights set forth in the Vienna Convention. Today's ruling clarifies the meaning of “review and reconsideration” in its decision in the German case.
As Mexico argued before the ICJ, consular notification is particularly important in capital cases, where the lives of defendants are at risk. Mexico has a "Capital Legal Assistance Program" in the United States, which has intervened to protect the rights of Mexican nationals in approximately 110 capital cases. At least twenty foreign nationals have been executed in the United States in the last decade, nearly all without consular notification. Currently, more than 120 foreign nationals from 29 countries are on death row in the United States.
“Today's ruling puts teeth in the Vienna Convention by requiring effective legal review of convictions when defendants were not notified that they could contact their consulate," said Fellner. "Consular access protects the rights not only of foreigners in the United States, but also the rights of Americans abroad.”
As the ICJ recognized, the United States has stepped up its efforts to inform state law enforcement authorities of the right to consular notification.
Human Rights Watch suggests that U.S. police reading defendants their “Miranda rights” should be required to tell them that if they are foreign nationals they have a right to communicate with their government. The U.S. courts should treat the failure to inform them of their right to consular notification the same as any other violation of Miranda rights.
Human Rights Watch opposes capital punishment in all circumstances. The death penalty is a form of punishment unique in its cruelty and is inevitably carried out in an arbitrary manner, inflicted primarily on the most vulnerable—the poor, the mentally ill, and persons of color. The intrinsic fallibility of all criminal justice systems assures that even when full due process of law is respected, innocent persons may be executed.