The U.S. government’s decision to withdraw from a protocol governing diplomatic disputes has immediate consequences for the rights of foreigners detained in the United States and could endanger U.S. citizens who are detained abroad, Human Rights Watch said today.
The International Court of Justice (ICJ) can hear disputes between countries who are parties to the Optional Protocol of the Vienna Convention on Consular Relations, including cases brought by states on behalf of people detained in foreign countries who have been denied access to their country’s consular officials.
According to a decision by the Bush administration this week, the ICJ, or World Court, will henceforth have no power to hear cases brought by countries on behalf of detained non-citizens in the United States. Americans in the custody of foreign countries who have been denied access to their country’s embassies will also not have access to the ICJ.
“This decision not only violates the rights of foreigners living in the United States, it could also endanger Americans abroad,” said Jamie Fellner, director of the U.S. program of Human Rights Watch. “It’s a huge mistake for the United States, for practical reasons as well as legal and moral ones.”
The Vienna Convention on Consular Relations, a treaty which the United States ratified in 1969, requires governments to allow detained foreigners to meet with representatives of their embassies. The Optional Protocol to that treaty, also ratified by the United States, gives the ICJ jurisdiction over disputes under the treaty. Indeed it was the United States that proposed giving the ICJ such a role, during negotiations in 1963 to finalize the terms of the Optional Protocol.
Secretary of State Condoleezza Rice informed the United Nations this week that the United States is withdrawing from the Optional Protocol just days after President George W. Bush indicated to courts in Texas that they must abide by the ICJ’s Avena decision, which was made while the United States was still a party to the Optional Protocol. In that ruling, the ICJ told U.S. courts to hear the cases of 51 Mexican nationals on death row who were denied the right to talk to their consular officials.
“We were pleased that the Bush administration said it would abide by the ICJ’s earlier ruling,” said Fellner. “But the decision to withdraw from the Protocol creates new fears that foreigners facing the death penalty in the United States will have their rights violated and states acting on their behalf will have no place to turn to look for a remedy. It’s a matter of life and death.”
In the past, the United States has used the Optional Protocol to the Vienna Convention to protect its citizens abroad. After 52 American hostages were taken in Iran in 1979, the United States sued Iran in the World Court using the protocol, and the court ruled in favor of the United States. Now, if an American overseas is arrested and not allowed access to U.S. consular officials in that country, the United States will not be able to hold that country accountable in the World Court.
The safeguards provided to foreigners in the United States are especially important in death penalty cases, where the stakes are particularly high. Foreign detainees are often ill-equipped to understand everything, from the laws and procedures used in the United States to the language spoken in the courtroom. Without consular advice, such detainees are likely to make decisions that undermine their defense; in the worst case scenario, the outcome may be a sentence of death.
The decision to abandon the Optional Protocol runs counter to recent U.S. pronouncements about increasing cooperation with other countries.
“The timing is almost incomprehensible,” said Fellner. “With one arm the United States chips away at international institutions while it reaches out for better global cooperation with the other.”
