Much of what goes by the name "international law" in academic and European circles these days deserves little respect from the United States, because it consists of rules made by foreign judges and professors that this sovereign nation has never adopted as binding. Many internationalists claim, for example, that firing missiles at terrorist leaders such as Osama bin Laden, as President Clinton once did, and aggressively interrogating captured terrorists, as the Bush administration is doing, violate international law. Bosh.
Critics in Europe and elsewhere also assail the U.S. for refusing to submit to the jurisdiction of the new International Criminal Court, ostensibly created to bring genocidal monsters like Pol Pot and notorious war criminals to justice. But the Bush administration's wariness of the ICC seems vindicated by the ICC chief prosecutor's publicly expressing an itch to go after multinational executives who do business with regimes that, in his judgment, have used the proceeds to facilitate atrocities. Meanwhile, some ICC enthusiasts dream of prosecuting U.S. commanders for civilian casualties in war zones.
The conservative backlash against such stuff is understandable. But the backlash has gone too far, with many conservatives scoffing at the idea that the U.S. should ever heed international law or honor inconvenient rulings by international tribunals. At a time when much of the world sees America as an international scofflaw, and when we need the world's help to protect ourselves from terrorism at least as much as the world needs our help, this attitude is self-defeating.
It's past time for the Bush administration to show respect for the legitimate demands of international law. One big test will be its so-far-noncommittal response to a debatable but quite defensible March 31 decision by the 58-year-old World Court—formally known as the International Court of Justice, and not to be confused with the ICC—in a lawsuit by Mexico against the U.S. on behalf of more than 50 Mexicans on death row in various state prisons.
The Vienna Convention on Consular Relations of 1963 requires that foreign nationals be notified, at the time of their arrests, that they are entitled to call and meet with their home country's consular officials. Consulates can be helpful in finding lawyers, notifying relatives, gathering exculpatory evidence from home, and otherwise. But state and local officials are often unaware of this treaty obligation and fail to give the required notice to many defendants. Mexico urged the World Court to rule that this lack of notice in itself denies fair trials to all such defendants, and that their convictions and sentences must therefore all be overturned.
The court rejected this argument. Instead, it ordered the U.S. to provide for judicial "review and reconsideration of the convictions and sentences" on a case-by-case basis, to determine whether the consular violations "caused actual prejudice" to the fair-trial rights of any of these Mexicans (or other foreign nationals). In most or all such cases, any such hearings would probably end in rulings that the trials were fair and the executions could proceed. And even if some death sentences were overturned, none of the Mexicans would go free as long as their guilt is clear.
This is not to deny that the World Court's decision presents vexing constitutional and political issues for the administration. President Bush may lack constitutional power simply to order governors or state courts to delay executions and hold new hearings. A 1996 act of Congress bars lower federal courts from holding new habeas corpus hearings in these cases. The Supreme Court has been unreceptive to such appeals. Rick Perry, Bush's successor as governor of Texas, has already, in effect, told the World Court to go jump in a lake. And that's what Bush's conservative base would want him to tell the court.
But this is a case in which keeping the nation's promises is more important than pleasing the Republican base or expediting executions. Bush and his aides can and should forcefully urge state officials to waive any objections to the new hearings called for by the World Court. If that fails, the Justice Department can and should tell state courts and, ultimately, the U.S. Supreme Court that this country has explicitly consented to comply both with the consular convention and with the World Court's interpretation of it; that such treaties are "the supreme law of the land," binding on "the judges in every state" under Article VI of the Constitution; that the World Court's decision is legitimate; and that international law—or, at a minimum, comity—therefore calls for deference to it.
If, on the other hand, the Bush administration dismisses or disregards the decision, the denunciations of U.S. lawlessness will reach a new crescendo, especially in Mexico, where the case is a cause celebre. And the denouncers will have a point.
Unlike the ICC, which claims the unprecedented, politically unaccountable power to prosecute and imprison anyone in the world who is accused of committing or assisting certain grave crimes, the World Court hears only lawsuits between nations that have consented to its jurisdiction. The U.S. has done so since 1946. The Reagan administration partially withdrew that consent in 1985, because the World Court was entertaining what the U.S. deemed an illegitimate lawsuit by Nicaragua over the U.S. mining of its harbors and arming of the Contra rebels. But the U.S. has never withdrawn its explicit consent to comply with the World Court's interpretation of the consular convention.
And for good reason. The consular convention is the same treaty on which U.S. nationals who find themselves in foreign jails depend for access to U.S. consular officials—perhaps the only hope of seeing daylight anytime soon in some precincts. This is also one of the treaties that the U.S. invoked in winning the May 1980 World Court decision ordering Iran to release its American hostages. (Iran ignored the ruling, which—like all of its rulings—the World Court had no practical power to enforce.)
This is the third case in which the World Court has faulted the U.S. for violating the consular rights of arrested foreign nationals who ended up on death row. In all such cases, U.S. courts, including the Supreme Court in 1998, have held that the defendants could not raise alleged consular violations in appealing their murder convictions and death sentences, because their original lawyers had neglected to raise the issue at their trials—a doctrine known as "procedural default."
In the 1998 decision and another in 1999, the Supreme Court summarily rejected last-minute appeals to delay the executions of two death row inmates despite interim World Court rulings that they should be kept alive until that court had time to resolve lawsuits by the inmates' home countries—Paraguay and Germany, respectively—against the United States. The World Court proceeded with Germany's lawsuit and held in 2001 that, contrary to the 1998 Supreme Court decision, use of the procedural default doctrine to bar appeals in such cases itself violates the consular convention, by denying an adequate remedy for the original lack of notification.
Then came Mexico's lawsuit, which was fully litigated at The Hague and produced the more definitive, so-called Avena decision on March 31, with the lone American judge joining the 14-to-1 majority. The World Court reaffirmed its 2001 decision and rejected the State Department's argument that the right to seek gubernatorial clemency is an adequate remedy for consular violations. But the court did not give Mexico everything it wanted. Not only did it refuse to find the convictions and sentences invalid; it also rejected Mexico's argument that any confessions or other evidence obtained from prisoners before notification of their consular rights must be excluded from future trials.
American critics nonetheless assail the World Court decision as an overly aggressive, even outrageous, effort by America-bashing death-penalty opponents to interject foreign judges into routine state court criminal proceedings. In my view, however, it is not unreasonable to ask that—before putting foreign nationals to death over their own governments' objections—the U.S. and its courts provide an opportunity to prove that they would not have been convicted or condemned but for U.S. violations of their consular rights.
Even though the guilt of most or all of these prisoners is not in doubt, such hearings would be worth the time and effort. In some cases, Mexico and other governments might be able to show that, if given timely notice, their consular officials could have found enough mitigating evidence to persuade trial juries not to vote for death. More important, the U.S. government might be able to show that it takes its treaty obligations seriously.
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