GERMANY VS UNITED STATE OF AMERICA, 2001.

(LAGRAND CASE)

NAME:

COURSE:

COLLEGE:

PROFESSOR IN CHARGE:

SUBJECT: PUBLIC INTERNATIONAL LAW AND HUMAN RIGHTS

CLASS: A DIVISION, ROLL NO: 52

SUBMISSION DATE: 26TH SEPTEMBER 2023.

GERMANY VS UNITED STATE OF AMERICA, 2001. (LAGRAND CASE)

DEFENDANT OR ACCUSED: Germany

 FACTS OF THE CASE:-1

The LaGrand brothers were born in Germany and as children moved with their mother to the US
where they remained permanently. Later they were adopted by a US citizen, although neither
brother ever acquired US nationality. The brothers were arrested in January 1982 in Arizona and
convicted by a jury on 17 February 1984 of first degree murder and other felonies arising out of
an unsuccessful armed robbery of the Valley National Bank in Marana, Arizona. They were
sentenced to death on 14 December 1984. At no time during this process were the brothers
provided with any information by the relevant US authorities as to the provisions of the VCCR
regarding consular communication. Indeed the US contended that law enforcement officials were
not aware of the German nationality of the brothers until well after their arrest. Germany, on the
other hand, provided evidence to the ICJ that officials of the State of Arizona were aware from as
early as April 1982 of the German nationality of both brothers.

The LaGrand brothers unsuccessfully appealed to the Supreme Court of Arizona and were
denied certiorari by the US Supreme Court. A second round of post-conviction proceedings was
also unsuccessful. The failure to provide the required information to the LaGrand brothers under
the VCCR was not raised at their trial, nor was it raised in these two sets of proceedings, as the
LaGrand brothers had not yet been made aware of the provisions of the VCCR. Germany
attached great significance to this failure, pointing to a causal connection between what it viewed
as inadequate representation of the LaGrand brothers and their ultimate death sentences. If the
United States had abided by and promptly notified Germany of the situation of the LaGrand
brothers, Germany would have arranged for competent counsel to represent them and helped in
1
2001 I.C.J. 466
the preparation of their defence. Thus, their case would have been thoroughly investigated at the
trial stage of the criminal proceedings. There are compelling reasons to believe that the
LaGrands’ sentences would have been reduced had this evidence been introduced. Hence, the
lack of consular advice was decisive for the infliction of the death penalty.

Germany was only made aware of the detention of the LaGrands by the brothers themselves
in 1992. Subsequently, a fresh round of proceedings for habeas corpus was commenced which
specifically referred to alleged violations of the VCCR. In early 1995 the US District Court for
the State of Arizona rejected the claim on the basis of the doctrine of ‘procedural default’. This is
a stringent rule of federal US law, emerging out of the federal division of powers that prevents a
criminal defendant from obtaining relief in federal courts unless his or her claim for relief has
been presented to a state court. Relief in relation to a new claim made in a federal court may only
be had where a defendant can show both that an external impediment prevented the claim being
made to a state court (‘cause’) and prejudice. An appeal to the Court of Appeals of the 9th
Circuit was dismissed, the Circuit Court noting: It is undisputed that the State of Arizona did not
notify the LaGrands of their rights under the [VCCR]. It is also undisputed that this claim was
not raised in any state proceeding. The claim is thus procedurally defaulted. A subsequent
petition to the US Supreme Court for certiorari was denied. Further proceedings in February
1999 were again unsuccessful.

After high level diplomatic efforts by Germany to prevent the execution of Karl LaGrand
failed, Germany filed its application in the Registry of the ICJ instituting the proceedings and
seeking provisional measures in relation to his brother, Walter. On 3 March 1999, by 13 votes to
one, the ICJ indicated two provisional measures, the first occasion on which the ICJ has done so
in the absence of an oral hearing of the parties.

The ICJ ordered, first, that the US ‘take all measures at its disposal to ensure that Walter
LaGrand is not executed pending the final decision in these proceedings’. Secondly, the ICJ
required the US to ‘transmit this Order to the Governor of the State of Arizona’. Armed with the
Order, Germany applied to the US Supreme Court for a stay of Walter LaGrand’s execution less
than two hours before he was scheduled to die. The Supreme Court dismissed the application and
Walter LaGrand was executed shortly afterwards.
 ISSUES RAISED:-

The primary issue in the LaGrand case was the alleged violation of the Vienna Convention on
Consular Relations (VCCR) by the United States. Germany contended that the U.S. violated its
obligations under the VCCR by failing to inform the LaGrand brothers of their right to consular
assistance upon arrest and detention.

One of the central issues was the failure of the U.S. to inform the LaGrand brothers of their right
to have access to the German consulate following their arrest. The VCCR mandates that foreign
nationals have the right to be informed of their right to contact their consulate and to have
consular officers notified of their detention. The case raised broader issues related to the
implementation of international legal obligations within national legal systems. It highlighted the
necessity of ensuring compliance with international treaties, such as the VCCR, within domestic
legal frameworks.

 ICJ’S JUDGEMENT:-

The ICJ’s LaGrand decision contains several significant determinations. The fact that procedural
default rule within the United States domestic criminal procedure prevents foreign nations from
exercising their rights under the Vienna Convention is the most important determination from
this case as by not addressing the claims under Vienna Convention, and subsequent convictions
of LaGrand brothers were violative of Article 36 Paragraph 2.
The ICJ recognised that there was a tightness between International Law and Domestic
Law and was of the opinion that this tightness could create a bundle of serious problems for
foreign nationals in the near future. ICJ ordered that a review of the merits of the claims is
important to prevent the rights in future if they are violated. Thus, ICJ ordered that if there is a
violation of Article 36 of the Vienna Convention 2 in respect to the rights of foreign national,
then the United States Courts regardless of the stage in litigation shall consider the claims on
2
Vienna Convention on Consular Relations art. 36, Apr. 24, 1963.
merit. This order was in conflict with the doctrine of procedural default and in conflict with the
requirement of exhaustion of state remedies in the United States.
Also, the ICJ did not specify how the United States fulfil the order without altering its Domestic
Laws.
The aim of the Vienna Convention is to maintain friendly and efficient relations among
states. It also protects the roles and functions of consulates in foreign countries as well as the
rights of foreign nationals. The LaGrand case specifically deals with Article 36 of the Vienna
Convention. It was found that the United States was in violation of Article 36, Paragraph 1 of the
Vienna Convention. The United States accepted their fault of not informing the LaGrand
brothers of their right to contact the German consulate. The United States was not respecting the
rights created by the Vienna Convention as this is the first step.
Germany argued that the procedural default made it very difficult for the LaGrand
brothers to claim that the United States breached their rights under the Vienna Convention. In
response, the United States said that the convention does not provide any specific remedy in case
of a violation, therefore the United States was not under pressure to prevent a recurrence of this
situation. According to ICJ, the procedural default rule violated the Vienna Convention as it
prevented LaGrand brothers from challenging the violation of their rights to consular access.
But, ICJ was not able to propose a way to reconcile international legal obligations under the
Vienna Convention with the United States Domestic Laws. Due to this, there were two choices
with the US. One, the United States can follow their Domestic Laws. Two, the United States can
ignore the ICJ’s holding. Therefore, an examination of the procedural default rule in an effective
manner may provide a better solution.
The Rule of Criminal Procedure in Arizona laid the trap for the LaGrand brothers. Rule
32 governs post-conviction relief to criminals in a case within Arizona. If the defendant is of the
view to challenge his conviction, then he must raise his claims either in Trial Court or in his first
direct appeal. The risk of procedural default arises when the defendant fails to raise all the
claims. The Arizona Rule of Criminal Procedure prevents a defendant from raising any claim in
post-conviction that was not raised on direct appeal or any claim waived at trial. Karl LaGrand
attempted to challenge his conviction at the state level after he discovered that violation of
Vienna Convention took place. Since he did not preserve his claim at trial or during the appeal,
the state court held that he waived his claim. Though they were not aware of the violation of the
Vienna Convention as their claim, it was held that they waived their claim. Then, there was no
choice left with the LaGrand brothers rather to raise their claim under federal post-conviction
relief.
The writ of Habeas Corpus is often referred to as Great Writ which examines the
constitutionality of a prisoner’s conviction and detention. This writ is granted only when the
applicant has exhausted all the state remedies. This provision directly applies to the Vienna
Convention to which the United States is a party. The state courts did not address the violation of
the Vienna Convention due to procedural default at the state level. Karl LaGrand attempted to
argue around the procedural default in the court. The state court held that the claim had a
procedural default by waiver at the trial court and thereafter refused to hear the merits of the
claim.

 OPINION:-

First of all I think that, the state law department should develop a training program for law
enforcement officials which would explain the rights and obligations provided in the Vienna
Convention. The training program should explain the duties enshrined in the Vienna Convention
which includes informing foreign nationals about their arrest (this was not informed in the
LaGrand case, which subsequently led to procedural default). The information notified to the
foreign nationals about their rights without delay should be provided with timely notice of their
rights.
In addition, to prevent further violations of the Vienna Convention, the lawyers of the state
should be provided training. In the LaGrand case, the counsel which was appointed by the court
did not know the rights that foreign nationals and foreign states have under the Vienna
Convention. If the council appointed by the court has sufficient knowledge and a well aware
person or if he received proper training then there would be very few chances to avoid a
challenge to a conviction on the basis of ineffective assistance of counsel. This would also save
the precious time of the court and the decisions will be delivered in a short span of time