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.

The International Court's ruling didn't call for the invalidation of the verdicts or sentences for the men, or even mandate retrials, just reviews. In that sense, many analysts described it as something of a compromise. Elliot noted that at the very least consular assistance would have helped the men obtain better legal representation, which he says "in many cases would have meant the difference between life and death." "What's the most important factor that determines whether you get a death sentence?" he asked. "It's not how egregious the crime is, it's the competency of the lawyer. They say it's reserved for the worst of the worst, but it's really reserved for those with the worst lawyers." The U.S. has long stood nearly alone in the industrialized world and much of the developing world for its use of the death penalty, and foreign countries haven't taken kindly to having their citizens executed here.
But in general international opinion has usually done little to sway these cases. One thing that could make a difference this time are the pending November elections, where the Latino vote will be crucial in general and in key states like Florida. Bush might also be more receptive to the International Court's decision since he is slowly mending fences with Fox after several years of severe tension over Suarez's execution, Bush's broken promises regarding immigration reform, the tightening of U.S.-Mexico border security after the Sept. 11 attacks and Mexico's refusal to support the war in Iraq. Fox met with Bush at his ranch in Texas on March 6, with the planned executions being one of the topics they discussed. Latino voters in the U.S. may or may not identify with the plight of the Mexicans on Death Row -- especially in the cases where the men have admitted guilt, they aren't likely to automatically have the sympathy of their countrymen. But on a larger level, the planned executions are just one more example of the U.S.'s arrogance and hypocrisy on the world stage; its practice of demanding special treatment for its own citizens abroad while denying basic rights to foreigners in the U.S.; and its refusal to respond to world opinion and even the decisions of a prestigious body like the International Court. "When U.S. citizens go abroad and face arrest, they demand consular assistance," said Elliot. "Foreign citizens here should be entitled to no less. That's the bottom line."

Many Latino voters, even Republican ones, are fed up with this double standard and general attitude of U.S. supremacy, which shows up especially starkly in regards to Mexico and the dualities of the border regions. So in this sense the execution issue may indeed figure strongly in the November elections, and the Bush camp may indeed listen to Latino and international opinion on the issue and support the International Court's decree.

The International Court was set up by the United Nations in 1946 with the mission of providing diplomatic solutions to international conflicts. It is made up of 15 judges from different countries and rules on cases ranging from military to human rights to treaty issues between its 60-plus signatory states. It has no real power to enforce its decisions, and the U.S. and other countries have flaunted its wishes. In 1984, the U.S. refused to recognize the court's jurisdiction in a case brought by Nicaragua regarding the U.S.'s economic and military support of the right-wing Contra guerrillas opposing that country's socialist regime. The U.S. actually has a special status under the Vandenburg Reservation allowing it to disregard the court's decisions under certain circumstances.

While the International Court's recent decision could be a key factor in U.S.-Mexico relations and the November elections, death penalty opponents and human rights groups working on the death penalty issue see it as just another piece in the already overwhelming file of proof that the U.S. is out of step with world opinion in its use of the death penalty.

Critics of the criminal justice system also point out that the men's denial of consular assistance is just one example of the violation of rights and racism that Mexican immigrants and Latinos in general are subject to in the U.S. criminal justice system. Latino immigrants are regularly arrested, processed and even tried, convicted and imprisoned without ever having adequate translation services or explanations of their legal rights, notes the National Council of La Raza, and Latinos are being incarcerated at rates proportionately as high or higher than any other ethnic group.

There are about 100,000 Mexican citizens currently in U.S. prisons, not to mention hundreds of thousands of U.S. citizens of Mexican and other Latin American descent. "We are very disappointed at the treatment of Latino adults and youth in the criminal justice system and in the state and federal prison system in the United States," said La Raza civil rights analyst Angela Arboleda. "Minorities are incarcerated at a higher rate than whites, and Latinos fare worse than all other minority groups except possibly African-Americans. And for immigrants with language barriers there are whole other issues. There's just a lack of resources for immigrants. It's an overall picture of injustice."

Kari Lydersen, a regular contributor to AlterNet, also writes for the Washington Post and is an instructor for the Urban Youth International Journalism Program in Chicago. She can be reached at karilyde@aol.com.

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