Irrefutable Evidence

There’s never anything quite as sobering as having to see yourself the way the rest of the world sees you. You take your photographs to be developed and there they are: warts, wattles, and wrinkles. Irrefutable evidence that something is not quite the way you had imagined.

More than a few of those warts and wrinkles were very much in evidence late last month when the International Court of Justice (ICJ) at The Hague issued a ruling against the United States. It did so in an extraordinary case brought by Mexico on behalf of 52 of its citizens who have been tried, convicted, and sentenced to death in this country.

The Court concluded that in all but one instance, the United States had breached its obligations to inform Mexicans on death row of their right to consular notification. Under Article 36 of the Vienna Convention on Consular Relations—a treaty signed and ratified by the United States decades ago—authorities must inform “without delay” foreign nationals under arrest of their right to contact their consulate or embassy.

That may sound like a procedural nicety, but it’s the same right that Americans routinely expect if they are arrested and detained in a foreign country. And it’s a right that has a particular significance with respect to Mexico, which in recent years has established a remarkably effective legal assistance program on behalf of its citizens facing capital punishment in the United States. In 2003, the ICJ issued provisional measures requiring the United States to “take all measures necessary” to ensure that three Mexican nationals considered at the most immediate risk of execution were not put to death pending final judgment in the case.

Two of those prisoners remain on death row in Texas; the third, Osbaldo Torres, is scheduled to be executed in Oklahoma May 18.

The Court did not address the death penalty itself. Contrary to what some have contended, it did not issue an order requiring that all sentences be vacated and that new trials be conducted. Instead the ruling requires a case-by-case review and reconsideration as to whether each defendant was denied his right to consular notification.

The Court left more than enough wiggle room as to how that is supposed to happen, saying only that the United States “should provide by means of its own choosing meaningful review of the conviction and sentence.”

But the Court made clear that clemency proceedings alone—the method advocated by the United States in its argument at The Hague—were simply inadequate. In a curious twist of logic, attorneys for the United States had pointed to Illinois as an example of the efficacy of clemency. (Presumably they omitted that former Governor George Ryan became convinced of the fundamental unfairness of capital punishment and granted blanket clemency to all state inmates on death row just before he left office.)

Governor Rick Perry, not surprisingly, continues to maintain that the ICJ does not have jurisdiction in this state. But it does. Not to be confused with the International Court of Criminal Justice (ICC), to which the United States does not belong, the ICJ is the highest judicial body of the United Nations, created by the UN Charter in 1945.

The United States has been a member since 1969. Ten years later, it brought a case against Iran before the Court, after the hostage-taking at the U.S. Embassy in Tehran.

But if ever there was a time for this country to acknowledge that there is such a thing as international law and that we need to see ourselves as others see us, it is now. —BB

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Published at 12:00 am CST