July 13, 2001 | Commentary on International Organizations

International Court of Justice: Case Dismissed?

America's court system -- the most fair, free and transparent in all the world -- isn't perfect. But that doesn't mean its power should be usurped by jurists 8,000 miles away who are not elected, selected or directed by anyone responsible to American voters.

Yet that's exactly what the International Court of Justice (ICJ) tried to do recently in a case involving two brothers, both German nationals. The pair had been convicted of robbing a bank and killing a 63-year-old bank employee in Arizona, and both were executed by state officials in 1999, despite a last-minute call by the Court to stay one of the executions until it could review the case.

In a ruling on the case issued on June 27, the ICJ said the United States should have allowed the brothers to contact German consulate officials after their arrest. They also said that ICJ rulings were binding on the United States and that American law had to be altered to conform with the country's international obligations.

Are they kidding?

First of all, local officials didn't deny the LeGrand brothers the opportunity to call the German consulate. The brothers, who moved to the United States as children, never told police they were German nationals and never asked to speak to their consulate. Arizona police had no reason to check their citizenship status. In fact, the Germans themselves didn't discover all this until a fellow inmate informed the brothers of their rights under the Vienna Convention on Consular Affairs. The German government did not bring the case before the ICJ until after one brother, Karl, had been executed, and the other -- Walter -- was just 27 hours away from his own death sentence.

The Germans insisted the United States had violated the Convention and asked President Clinton to halt the execution. Federal officials passed on the request, without comment, to Arizona officials, who declined to halt the execution at that late date.

The German government should know America doesn't work like that. The president doesn't simply order courts to undo their rulings. We have a federal republic with three distinct and independent branches -- executive, legislative and judicial -- and we clearly differentiate between state and federal powers. Other than in certain cases outlined in our own constitution, the federal government can't step in.

This fact appears lost on the ICJ, which ruled that the preliminary measure issued by the Court in 1999 to halt the execution "was not a mere exhortation" but "created a legal obligation for the United States."

Wrong again. When the Senate ratified American membership in the ICJ in 1946, it insisted on the Connally Amendment, which gives the United States the right to determine the court's jurisdiction as it affects U.S. cases. In other words, by law, ICJ rulings aren't binding on us unless we decide they are.

What makes this ruling particularly galling are its political overtones. Neither the Court nor the Germans ever questioned the LeGrands' guilt or the fairness of their trial. But both were grateful for another chance to smack the United States for its support of the death penalty.

An ICJ that holds to its official purpose -- arbitrating legal disputes between sovereign nations -- serves a good purpose, but that's not what we're getting here. For example, some have called on the Court to try Israeli Prime Minister Ariel Sharon for "war crimes" for his role in killings of Palestinians in Lebanon 19 years ago. Why? Because they oppose Sharon's policies today. So where does it end? How long until the folks who booted the United States off the United  Nations' Human Rights Council -- and voted Sudan and Cuba on -- turn their attention to American officials whose policies they disagree with? How long until some tragic death at our southern border leads to calls to haul our attorney general into the dock over U.S. immigration policies?

Think about it. Who defines the reach of the ICJ? Or its jurisdiction? And what happens when it goes overboard?

U.S. officials wisely ignored this latest attempt to usurp our sovereignty. But that doesn't mean we shouldn't remain on our guard.

Brett Schaefer is the Jay Kingham fellow in international regulatory affairs at The Heritage Foundation (www.heritage.org ), a Washington-based public policy research institute.

About the Author

Brett D. Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs
The Margaret Thatcher Center for Freedom

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