Saved by the Court?

On March 31, the International Court of Justice in the Hague issued a decision demanding the U.S. provide meaningful review of the cases of 52 Mexican nationals on Death Row, since they were not provided their right to consular assistance after arrest, as guaranteed in the 1963 Vienna Convention on Consular Relations. The ruling is particularly urgent since one of the Mexicans, Osvaldo Torres Aguilera, convicted of a double murder during a 1993 robbery, is set to be executed in Oklahoma on May 18. This could be a precedent-setting victory for human rights and immigrants rights proponents and death penalty opponents. Or it could be a case of deja vu.

This isn't the first time the court has demanded the U.S. halt or review the executions of foreign citizens. The court ordered the U.S. not to execute German citizen Walter LaGrand, after his brother Karl LaGrand was executed on Feb. 24, 1999. The U.S. did it anyway, killing Walter on March 3, 1999. The court later ruled that the U.S. violated the rights of the brothers to obtain consular assistance. In August 2002, Mexican President Vicente Fox, often touted as a close friend of George W. Bush, canceled a scheduled visit to Bush's Texas ranch in protest over the execution of Mexican national Javier Suarez Medina, a drug smuggler who killed an undercover agent in 1988 thinking he was "just another drug smuggler," in his words. Despite the opposition of Mexico and 13 other countries Suarez was executed by lethal injection, in Texas, the same state where, as governor, Bush oversaw the execution of 130 people including foreigners. Mexico filed a complaint regarding the then-54 Mexican nationals on Death Row with the International Court in January 2003, and in February 2003 the court asked the U.S. to delay three scheduled executions, of Torres, Cesar Fierro Reyna and Roberto Moreno Ramos, while it considered the case.

Since the vast majority of death penalty cases and all of the cases involving Mexicans are in state, not federal courts, Bush's direct power to order reviews is limited. It is up to the state's individual courts and governors to order reviews or grant stays of execution. But David Elliot, communications director of the National Coalition to Abolish the Death Penalty, noted that Bush could have a big influence. "Bush can't step in and stop it, but he could apply pressure, use the bully pulpit, call the Governor of Oklahoma," Elliot said. "Will he do that? The record does not suggest he will. It’s possible some states will, on their own initiative, take the ruling very seriously and other states will totally ignore it. Eventually this issue is going to go to the U.S. Supreme Court because eventually we're going to have circuit court decisions that will be in conflict with each other."

Of the 52 men, 28 are in California prisons, 16 in Texas and the others in Oregon, Oklahoma, Arizona, Nevada, Florida, Arkansas and Ohio. Two of the men originally named in the case had their sentences reduced by former Illinois Gov. George Ryan as part of his sweeping death penalty reform and commutation actions in 2003. In all, there are at least 87 foreign nationals on Death Row in the U.S., and at least 14 have been executed since 1993 with the Vienna Convention being allegedly violated in 11 of those cases. "We don't ask that our prisoners be released," Mexican ambassador Juan Manuel Gomez-Robledo was quoted as saying on the Global Policy Forum web site in December 2003. "But what we do demand is that a country which chooses to impose the death penalty respects in an extremely careful manner its legal procedures, including international law."

The Bush administration hasn't yet issued a statement on the Hague ruling, though State Department deputy spokesman Adam Ereli was quoted calling it "a very complex ruling" and saying the government "will decide on appropriate steps." The U.S. delegation in the International Court case was represented by William H. Taft, great-grandson of the former U.S. president. In his opening remarks in 2003, he warned the court not to interfere in the U.S. justice system.