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Germany requested provisional measures from the ICJ at 7:30 p.m.
on March 2, less than 28 hours before LaGrand's scheduled execution.
Noting that the U.S. had ratified a protocol to the Vienna
Convention accepting the court's compulsory jurisdiction, Germany
charged a breach of Article 36(1): |
With a view to facilitating the exercise of consular functions relating to nationals of the sending State ... (b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. . . . . The said authorities shall inform the person concerned without delay of his rights under this subparagraph...
Protesting the execution of
Karl, Germany asserted a vital interest in saving the life of Walter LaGrand
and invoked the right to life provision of the International Covenant
on Civil and Political Rights.
All fifteen judges were present at the Hague, Netherlands for other proceedings that were scheduled. Under ICJ rules, each state party is entitled to have one of its nationals sit as a judge in deciding their dispute, but the presiding President must come from a different state. As a result, the Sri Lankan Vice President Christopher Weeramantry became Acting President for the case in place of the U.S. Judge Stephen M. Schwebel. A German national, Carl-August Fleischhauer, was also serving an elected a nine-year term on the 15 member court, so there was no appointment of an ad hoc judge. Judge Weeramantry's prior opinions on environmental protection and the use of nuclear weapons had endeared him to many NGO activists. He met at 9 a.m. the following morning with U.S. and German representatives, but the ICJ had no time for briefing and oral argument. In an unprecedented application of Rule 75, the ICJ acted immediately on its own motion. At 7:15 that evening, less than 4 hours prior to the scheduled execution, the judges announced:
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THE
COURT Unanimously I.
Indicates the following provisional
measures: (a) The United States of America should take all measures at
its disposal to ensure that Walter LaGrand is not executed
pending the final decision in these proceedings, and should inform
the Court of all the measures which it has taken in implementation
of this Order; (b) The Government of the United States of America should transmit
this Order to the Governor of the State of Arizona. II.
Decides, that, until the Court
has given its final decision, it shall remain seised of the matters
which form the subject-matter of this Order. [30]
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In a separate published opinion, Judge Schwebel explained his profound reservations about the procedure. He argued that Germany should not have waited to file until a moment when the U.S. had no opportunity to respond and the Judges were left with no real choice. Judge Oda from Japan objected to the ICJ becoming a court of criminal appeal in death penalty disputes and expressed sympathy for the victims and their families.
