Is Oklahoma A New Human Rights Hot Spot?:
Why The State's Judges and Governor Were Right To Stop An Execution that Nearly Violated International Law

By NOAH LEAVITT
Monday, May. 24, 2004

Last week, Oklahoma judges considered a fundamental question - the status of international law in state courts in the U.S. And they made a paradigm-shifting decision.

Not only did they properly treat a U.S. treaty as binding law, they also relied on a March decision of the International Court of Justice (ICJ) in The Hague. (The ICJ, the U.N.'s highest tribunal, is also often referred to as the World Court.) The result was to halt an execution that would have taken place May 18--the execution of Mexican national Osbaldo Torres, whose right to assistance from the Mexican consulate was not honored by the U.S.

Torres's case is important because it illustrates the increasing recognition that international law is enforceable in the United States. It is also important because it brings into sharp focus how the U.S.'s actions against non-citizens at home can have a potentially major effect on the treatment of Americans overseas, and on our global image.

Even as the Abu Ghraib prison photos tarnish the U.S.'s image abroad, the Oklahoma decision is a candle in the darkness, showing the U.S.'s ability to respect international law and the rights of non-citizens.

Background: International Court of Justice Holdings on Vienna Convention Rights

To explain how the Oklahoma court reached the decision it did, it is necessary first to go over some background.

In 2001, in the LaGrand Case, the ICJ held that two German nationals sentenced to death in the United States had the right to be informed of their right of access to their consulate. The right, the ICJ noted, was established by the Vienna Convention on Consular Relations (VCCR), which the U.S. has ratified.

By the time of the decision, the German citizens had already been executed. Accordingly, the ICJ found the United States in breach of its treaty obligations and ordered the State Department to devise a remedy consistent with U.S. law. It noted specifically that the U.S.'s apology for failing to inform the Germans of their rights was hardly a sufficient remedy.

Subsequently, another Vienna Convention case came before the ICJ. In the Avena litigation, 52 Mexican nationals - including Mr. Osbaldo Torres -- alleged that the U.S. had failed to inform them of their right to consular access. At its core, Avena points out the fundamental unfairness of putting someone on death row who should have been given due process, but wasn't. The difference between being a foreign citizen alone, and one with consular help, can literally make the difference between life and death.

But despite the force of this argument, Torres had no luck presenting a similar claim before the U.S. Supreme Court. As I discussed in an earlier column, in November 2003, the Court declined to hear his case.

On March 31 of this year, the ICJ issued a decision upholding the claims of Torres and the other foreign nationals in the same situation. As a result, the ICJ ordered the U.S. to provide "by means of its own choosing meaningful review of the conviction and sentence" of the Mexicans. What counted as "meaningful review"? The presiding judges said that generally, the normal appeals process in the U.S. would suffice.

However, for three men who had already exhausted their appeals, the ICJ said the United States should make an exception and review their cases one last time. One of the three men whose cases the Court ordered specially reviewed was Torres.

Developments in the Torres Case: Oklahoma Institutions Respect International Law

On May 7, less than two weeks before Torres was scheduled to be executed, Mexico asked the Oklahoma Pardon and Parole Board to recommend to Governor Brad Henry that Torres' sentence be reduced to life imprisonment. The Board, by a 3-2 vote, did so.

The Board's members found that the VCCR violation undermined the state's charges against Torres. They found the ICJ's ruling helpful on two issues: Did the U.S. ignore its obligations? The ICJ answered yes, and so did the Board. And if it did, should someone be executed because of the U.S.'s failure? The ICJ answered no, and so did the Board.

On May 10, at a convention of lawyers and judges in Chicago, Supreme Court Justice John Paul Stevens, who had written a stinging dissent in the Court's refusal to hear Torres' appeal in November, stated that the U.S. would be better off if we did not have capital punishment. He said that he would feel "much, much better" if more states would consider deeply whether the benefits of executions outweigh the "very serious potential injustice," as the stakes are very high, and there is the "special potential" for error.

On May 13, the Oklahoma Court of Criminal Appeals granted an indefinite stay of Torres' execution, saying that his conviction may have violated international law. The Court requested an evidentiary hearing on whether Oklahoma violated the VCCR by failing to give Torres access to the Mexican consulate after arrest.

In his concurrence, Judge Charles S. Chapel said the court was obligated to comply with the ICJ's ruling, given the United States' treaty obligations, and suggested that Torres's trial might have come out differently had the Mexican government been informed of his arrest, and been able to provide him with assistance.

Less than a day later, Governor Henry granted the clemency request in part because of the ICJ's ruling. In his public statement, the Governor said the ICJ ruling is binding on U.S. courts.

He also recognized that what goes around, comes around. In the Avena hearings in December, lawyers for Mexico argued that any U.S. citizen accused of a serious crime abroad would want the same right. Echoing that argument, Governor Henry stated "the [Vienna Convention] treaty is important to protecting the rights of Americans abroad." If foreigners in the U.S. may be denied consular aid and executed, then so may Americans abroad, someday.

It was the first time Governor Henry had granted clemency to any individual on Oklahoma's death row; and even when the Parole Board had recommended clemency, in three other cases, the Governor had ignored it. His decision with respect to Torres was courageous because a large sector of Oklahoma voters favors the death penalty.

Will Other States - and the U.S. Supreme Court - Follow Oklahoma's Lead?

In my earlier column on Torres's claims, I argued that by declining review, the U.S. Supreme Court turned a blind eye to the United States' repeated violations of its obligations under the VCCR, and in so doing, refused to enforce U.S. law. (Under the U.S. Constitution, treaties, once ratified, are part of U.S. law.)

Now, we have a strange situation. The Oklahoma state court system, the state parole board, and the Governor, are way ahead of the U.S. Supreme Court when it comes to recognizing and enforcing the U.S.'s international legal obligations, and respecting decisions of the ICJ.

The people of Oklahoma, too, seem to appreciate how their actions play out overseas, and see the links between our treatment of prisoners here and our treatment of prisoners - and our image -- abroad. One Oklahoma newspaper's editorial page described how "the specter of Torres' execution additionally triggered protests at the state capital and increasingly widespread and hostile international news reporting."

Other states should follow Oklahoma's lead - and so should the federal government. Torres's case should - and may well - be seen as a turning point in the way the U.S. treats both foreign citizens, and international law.

Torres's Case As a Turning Point: Recognizing Treaties as U.S. Law

In November 2003, before any of the Abu Ghraib photos surfaced, I warned that the U.S. is wrong to believe that its conduct won't come back to haunt it -- whether it's arming Osama bin Laden years ago, supporting Saddam years ago, or violating non-citizens' (and some citizens') rights both years ago, and today.

Now, with the release of the horrifying photos of prisoner abuse in Abu Ghraib, and the international outcry, we know that our conduct can haunt us and harm us. Already, Americans were often seen by the world as violent, barbarous and arrogant; after the photos, we will be seen in a far worse light. But at least some of our political leaders now seem to realize that they need to work fast to repair our image around the world.

For instance, look at the expedited court martial of Spec. Jeremy Sivits, who was involved in the Iraqi prisoner abuse scandal. Sivits received the maximum sentence. And tellingly, the Coalition Provisional Authority spokesman said Sivits' court-martial was an important showcase to Iraqis and the rest of the world of "American democracy, American justice, American accountability at work."

Even Defense Secretary Donald Rumsfeld seems to be turning over a new leaf. After ignoring the Geneva Conventions for the past two years, Secretary Rumsfeld has now conceded that they apply may to prisoners held in Iraq. And President Bush has decided that any al-Qaida or Taliban personnel taken prisoner are now to be treated consistent with the Geneva Conventions.

This is a dramatic reversal from the Bush Administration's constant denial of prisoner of war status to so many at Guantanamo Bay, precisely to ensure that the Geneva Conventions do not apply.

It is still not enough - the Administration continues to deprive U.S. citizens (Jose Padilla and Yaser Hamdi) and noncitizens (the detainees) alike of crucial rights, and to defend its position all the way up to the U.S. Supreme Court. But perhaps it is a start.

Convincing The World We Respect Human Rights Even After Abu Ghraib

America is a more just country than the photos from Abu Ghraib suggest. But how can we prove that?

One way would be for the U.S. to immediately review the cases of everyone else in the same situation as Osbaldo Torres - that is, every foreign national on any death rows around the country who has raised a Vienna Convention claim. According to recent research, there are at least 119 such people. Almost half of these cases are Mexican nationals like Torres, and the rest come from 30 other countries.

This review would comply with the ICJ's decision in Avena. And it would also go further - respecting the general principle Avena set forth, by applying it to every case with the same type of claim.

Much of the world now understandably doubts that the U.S. cares at all about the rights of anyone who is not a U.S. citizen. We must prove that we do care. Reviewing these cases before the ICJ further prods us to do so would be a good start.

In the Geneva Conventions, and the Vienna Convention, the U.S. has agreed to provide basic due process rights to non-citizens. The Bush administration must honor these promises, as Oklahoma has done, or it risks being seen as a creature not of law, but of pure untrammeled power.


Noah Leavitt, an attorney and author, is the Advocacy Director for the Jewish Council on Urban Affairs. Leavitt assisted the German legal team in the LaGrand Case. The views expressed here are his alone. Leavitt can be contacted at nsleavitt@hotmail.com.

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