In the 2000 election of five ICJ judges, Judge Weeramantry completed his term and was succeeded as Vice-President by Shi Jiuyong of China.  Judge Gilbert Guillaume of France was elected President. International law professor Thomas Buergenthal of the U.S. replaced Schwebel.  Buergenthal had authored highly regarded texts on international law and human rights.  He had served as President of the Inter-American Court of Human Rights and as an expert member of the U.N. Committee on Human Rights.  The European judges on the court were from Germany, Hungary, Netherlands, Russia and the United Kingdom.  The ICJ bench also had judges from Brazil, Venezuela, Sierra Leone, Egypt, Madagascar, and Japan.

The fifteen judges made ten judgments in favor of Germany--one unanimously, six rulings with Judge Oda the only dissenter, two with dissents by Oda and a Venezuelan Judge, and one 12-3 decision that provoked a dissent by Buergenthal.

The U.S. acknowledged that its failure to notify the consul was a breach of its obligation to Germany, but lost its argument that individuals had no enforceable rights under the treaty.  According to the U.S., no state party to the Vienna Convention allowed individuals to enforce rights in national courts. [37]   While the ICJ declined to find that the U.S. procedural default rule was invariably a treaty violation, the court ruled that in the LaGrand case its application had breached U.S. obligations both to Germany and to the brothers. Judge Oda dissented protesting that foreign nationals should not enjoy greater due process rights than local citizens.

Vice President Shi of China expressed reservations about a treaty interpretation that granted rights to individuals and favored a clearer affirmation of state rights.  In contrast to the parties and other judges who insisted the case was not about the death penalty, Shi noted the critical need for caution given the severe and irreversible nature of execution. 

The court unanimously found that promises the U.S. made to Germany had satisfied demands for non-repetition, and decided 14 to 1 that if another German national received a “severe penalty” without consular notice then: "the United States, by means of its own choosing, shall allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in that Convention."  ICJ decisions only apply to the governments appearing at the world court and unlike U.S. Supreme Court judgments do not become binding precedents applicable to others. President Guillame nevertheless declared there should be no conflicting treaty interpretation applied to nationals of other countries.

            Judge Buergenthal dissent from the court’s judgment allowing Germany to claim that the U.S. violated the 1999 ICJ provisional measures.  Like his U.S. predecessor, Buergenthal insisted that Germany engaged in procedural misconduct prejudicial to the U.S. by deliberately creating a rush to judgment that unfairly deprived the U.S. of a chance to respond. Even if the court accepted Germany’s explanation that it discovered critical facts on February 23, that does not explain a filing after the close of business of March 2, the night prior to LaGrand’s scheduled execution.

Buergenthal nevertheless supported the court’s unprecedented finding that ICJ provisional measures are binding orders. U.N. Charter Article 94 provides: “1. Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.”  Buergenthal voted with twelve others to find that the U.S. had violated the 1999 ICJ provisional measures by failing to take all measures at its disposal to prevent LaGrand’s execution.  After receiving the ICJ’s 1999 decision, no executive branch official urged Governor Hull to delay the execution.  Instead, the Solicitor General supported dismissal of LaGrand’s appeal to the Supreme Court arguing that ICJ provisional measures were not binding

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