Advertisement

An Execution Heard Round the World

Philippe Sands is a professor of international law at the University of London and professor of law at New York University School of Law

The execution of Angel Breard by the state of Virginia late Tuesday night poses great dangers to the international rule of law and to the protection of U.S. interests worldwide. The death penalty was carried out in the face of widespread calls for its stay, including from Secretary of State Madeleine Albright and the International Court of Justice in The Hague.

The basic facts of Breard’s case are not disputed. He was a Paraguayan national who was convicted and then sentenced to die for the brutal rape and murder of a young Virginia woman, Ruth Dickie. Having originally pleaded not guilty to these acts, Breard subsequently confessed while on the witness stand. He claimed that he had been subject to a satanic curse, apparently believing that if he confessed, he would be spared the death penalty.

Although Breard was given access to defense lawyers, he was not given access to Paraguayan consular officials when originally detained, or indeed at any time until after his conviction and sentence. Only then did he and his lawyers discover that under international law he should have been informed of his right to have access to a consular official. By then, it was too late. He was unable to raise these procedural rights in further applications to the Virginia courts or the U.S. federal courts.

These rights arose under the 1963 Vienna Convention on Consular Relations. The United States, Paraguay and more than 100 other nations are parties to the Vienna Convention, which provides a detailed procedural mechanism to be followed whenever a foreign national is detained by another state party to the convention. Authorities of the receiving state--in this case the United States--are obliged to inform “without delay” the national of his or her right to consular assistance and to have the consul advised of his detention. If the national so requests, the authorities must “without delay” inform the consular officials of the sending state. The convention does not state what consequences flow from a violation of these obligations.

Advertisement

The U.S. has admitted that in Breard’s case it violated this provision. It has offered an apology and promised to do better next time. But it was not willing to suspend execution in the face of Paraguay’s claim that Breard might have argued his criminal defense differently--for example, by pleading guilty from the outset--if he had had access to Paraguayan officials who would have informed him of the United States’ current propensity to execute. The death penalty is outlawed in Paraguay, as it is in most countries.

So Paraguay brought proceedings to the World Court. Last week, in a preliminary decision supported by all 15 justices, the court ordered the U.S. to “take all measures at its disposal” to ensure that Breard was not executed pending its final decision in this case. This was nothing more than a stay of execution pending final judgment.

The court was at pains to point out that its provisional measures were without prejudice to the merits of the case and that it was not indicating any view as to the right of the U.S. to impose the death penalty for heinous crimes.

The president of the court, Stephen Schwebel, an American, eloquently and succinctly explained his support for the decision: “The mutuality of interest of states in the effective observance of the obligations of the Vienna Convention . . . is the greater in the intermixed global community of today and tomorrow.” He added for good measure that “the citizens of no state have a higher interest in the observance of those obligations than the peripatetic citizens of the United States.”

Advertisement

The court’s unanimous decision cut no ice with the U.S. Supreme Court or the governor of Virginia. The U.S. government itself was deeply divided. Albright urged Gov. James S. Gilmore III to suspend execution until the World Court had given its final ruling. The Justice Department urged the Supreme Court to ignore the World Court’s order and authorize Virginia to execute. By a 6-3 decision the Supreme Court did just that, citing the implausibility of Breard’s argument that he might have run his case differently if he had access to Paraguayan consular officials and concluding that this was an area in which Virginia retained full authority unfettered by constitutional restrictions. Not unexpectedly, the Virginia governor refused to exercise clemency, even on a temporary basis.

Breard’s execution should be deeply worrying for all international travelers. The right of access to consular officials is a basic one. It is intended to provide a minimum standard of protection for travelers finding themselves in trouble with local authorities when abroad. It is the international equivalent to the rights of access to defense lawyers protected by the Miranda ruling of the Supreme Court.

The next time an American is incarcerated abroad, the U.S. may find it that much more difficult to exercise rights under the Vienna Convention.

Travelers are not the only losers. The rule of law internationally has suffered a blow. If the United States chooses to ignore rulings of the World Court in so cavalier a fashion, then there is every reason to expect that other countries will follow suit.

Advertisement

The World Court and other international courts and tribunals are diminished in their authority by the lack of respect shown by so august a body as the U.S. Supreme Court.

President Clinton’s silence stands in sharp contrast to that of President Carter. Twenty years ago, Iran was lambasted for ignoring an order by the World Court that it release the U.S hostages being held in Tehran. That case was brought by the United States, invoking the very same 1963 Vienna Convention that Paraguay relied upon this time. When Iran failed to comply with the court’s order, President Carter rightly accused Iran of showing “contempt, not only for international law, but for the entire international structure for securing the peaceful resolution of differences among nations.” President Carter called on the world community to “support the legal machinery it has established, so that . . . the International Court of Justice will continue to be relevant” in settling international disputes.

That call rings all the more hollow after Tuesday’s execution.


Advertisement
Advertisement