Transcript
Page 1: How the Death Penalty Weakens U.S. International Interests

How the DeathPenalty WeakensU.S. InternationalInterests

December 2004

Page 2: How the Death Penalty Weakens U.S. International Interests

How the DeathPenalty WeakensU.S. InternationalInterests

Published December 2004

THE AMERICAN CIVIL LIBERTIES UNION isthe nation’s premier guardian of liberty, workingdaily in courts, legislatures and communities todefend and preserve the individual rights and freedoms guaranteed by the Constitution and thelaws of the United States.

OFFICERS AND DIRECTORSNadine Strossen, PresidentAnthony Romero, Executive DirectorKenneth B. Clark, Chair,

Executive Advisory CouncilRichard Zacks, Treasurer

ACLU Capital Punishment Project915 15th Street, NW, 6th Fl.Washington, DC 20005

ACLU National Office125 Broad Street, 18th Fl.New York, NY 10004-2400(212) 549-2500www.aclu.org

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Table of Contents

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. The Death Penalty in the International Arena . . . . . . . . . . . . . . . . . . . . . . . 1

A. International Efforts to Abolish the Death Penalty . . . . . . . . . . . . . . 1

B. International Efforts to Limit the Death Penalty . . . . . . . . . . . . . . . . 3

C. Foreign Officials Raise the Issue with the U.S . . . . . . . . . . . . . . . . . 6

D. Interventions by Foreign Governments . . . . . . . . . . . . . . . . . . . . . . . 9

E. Extradition Cases Involving the Death Penalty . . . . . . . . . . . . . . . . . 10

F. Challenges by International Tribunal Hearing . . . . . . . . . . . . . . . . . . 10

G. Human Rights Inquiries and Other Reports . . . . . . . . . . . . . . . . . . . 12

III. Effects on the International Image of the United States . . . . . . . . . . . . . . . 14

A. International Press Coverage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

B. International Cooperation in the “War on Terror” . . . . . . . . . . . . . . . 15

IV. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

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HOW THE DEATH PENALTY WEAKENS U.S. INTERNATIONAL INTERESTS

It is in all candor that we say to you that maintaining the deathpenalty in your country profoundly affects the friendship which wefeel for you. If Americans must understand that the death penaltyis intolerable, it is up to you, as responsible politicians, to helpthem understand that. You are the representatives of a countrythat certain people consider the greatest democracy in the world.But you will never be elected in a model democracy as long as thedeath penalty exists there.

–Letter to Members of the United States Congressfrom Members of the French National Assembly, July 2000.

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I. Introduction

In the face of a clear world trend towardabolition of capital punishment, execu-tions in the United States continue

unabated. Europeans and other allies findsuch U.S. practices as the execution of juve-nile offenders, the mentally ill, and thementally retarded to be particularly repug-nant. International human rights inquiriesand other studies regularly describe prob-lems with the United States death penaltysystem, including wrongful convictions ofinnocent people, inadequate legal represen-tation for defendants, and racial and eco-nomic disparities in its application. Manyallies consider such practices to be unfit fora great democracy seeking to assert leader-ship on human rights and other internation-al policy matters.

The United States’ refusal to take any signif-icant steps in response to international con-cerns regarding the death penalty is harmingits relations with important allies and costingthe United States prestige and leadership onhuman rights and other issues. This is hap-pening at a time when, as President Bushrecognizes, the United States must rely oninternational cooperation. The costs to theUnited States in terms of its internationalinterests simply are not worth whatever ben-efits might be had from executing 100 crim-inals per year rather than imprisoning themfor life. It is time for the United States toreevaluate its commitment to this outdatedand controversial practice.

II. The Death Penalty in theInternational Arena

The forfeiture of life is tooabsolute, too irreversible forone human being to inflict it onanother, even when backed bylegal process. And I believe thatfuture generations, throughoutthe world, will come to agree.

— Kofi Annan, United NationsSecretary General, accepting apetition calling for a worldwidemoratorium on the death penal-ty, Dec. 18, 2000.

The international community’s efforts to abol-ish, or at least limit, the practice of legal exe-cutions are reflected in numerous multilateraltreaties and protocols. The United States, how-ever, generally either refuses to sign, signs withreservations, or simply ignores such treaties,and continues to apply the death penalty with-out regard for the concerns of other nations. Asa result, foreign officials increasingly havechallenged the United States on this issue.

A. International Efforts to Abolish theDeath Penalty

The primary goal of most of the internationalcommunity regarding the death penalty is abo-lition. Efforts to abolish the death penalty havebeen conducted through multilateral organiza-tions, such as the United Nations, and regional

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organizations, such as the European Union.These efforts have realized a great degree ofsuccess. The number of countries that havestopped imposing the death penalty has grownto an all-time high of 118 as of 2003. Eightycountries have abolished the death penalty forall crimes. Fifteen countries have abolished thedeath penalty for all but exceptional crimes,such as those committed during wartime.Twenty-three countries can be considered abo-litionist in practice: They retain the deathpenalty in law but have not carried out any exe-cutions for 10 or more years, and are believedto have a policy or practice of not carrying outexecutions. Countries renouncing the deathpenalty for all crimes in recent years includeChile, Ukraine, Estonia, Azerbaijan, Canada,the United Kingdom, Poland, Lithuania, SouthAfrica, Turkmenistan, and Bulgaria. Still oth-ers have abolished the death penalty for “ordi-nary crimes” and retained it for serious crimesagainst the state like treason or war crimes. Byignoring international efforts to abolish thedeath penalty while increasing its use, theUnited States places itself outside a growinginternational consensus on capital punishment.

The International Covenant on Civil andPolitical Rights

The International Covenant on Civil andPolitical Rights (ICCPR)1 is the primary inter-national treaty on human rights. The U.S. StateDepartment has called it “the most completeand authoritative articulation of internationalhuman rights law that has emerged in the yearsfollowing World War II.” While the treaty hasreceived almost universal endorsement, theUnited States ratified it only with reservationsrelating to the death penalty.

The Second Optional Protocol to the ICCPR2

seeks the abolition of the death penalty world-wide. This Protocol was adopted by the UnitedNations General Assembly in 1989. It has now

been ratified by 53 states, and another ninestates have signed, indicating their intention tobecome parties. The Second Optional Protocolnotes that the ICCPR has referred to the deathpenalty “in terms that strongly suggest thatabolition is desirable.” The Protocol furtherstates the commitment of the parties to abolishit. This Protocol provides for its total abolition,but also allows states wishing to do so to retainthe death penalty in wartime as an exception.Parties to the Protocol include such U.S. alliesas the United Kingdom, Germany, Belgium,Denmark, Finland, Greece, Italy, Netherlands,Spain, Sweden, Colombia, Costa Rica,Ecuador, Panama, Uruguay, Venezuela,Monaco, Mozambique, and Namibia. TheUnited States has not signed the Protocol.

A resolution of the U.N. Commission onHuman Rights called on all parties to theICCPR that have not signed the SecondOptional Protocol to do so.3 The Commissionfurther called upon States that still impose thedeath penalty to restrict the number of offensesfor which it can be imposed, and to establish amoratorium on executions with a view to com-pletely abolishing them. The resolution waspassed with a roll call vote of 27 for, 18against, and seven abstentions. Among thosejoining the United States in voting against theresolution were Algeria, Burundi, China,Indonesia, Libya, Malaysia, Pakistan, Qatar,Saudi Arabia, Syria, and Vietnam – unusualallies for one of the world’s leading democra-cies on an important human rights issue.

The Americas

In our region, the primary human rights treatyis the American Convention on Human Rights.4

The Organization of American States – ofwhich the United States is a member – hasadopted a Protocol to the AmericanConvention on Human Rights to Abolish theDeath Penalty.5 The Preamble to this Protocol

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notes that the tendency among Americannations is in favor of abolishing the deathpenalty, and seeks an international agreementto eliminate the death penalty in the Americas.The Protocol has subsequently been ratified byeight states and signed by one other. TheProtocol has been ratified by Venezuela,Uruguay, Paraguay, Panama, Nicaragua, CostaRica, Ecuador, and Brazil. The United States isnot a signatory.

Europe

The Council of Europe in 1983 adoptedProtocol No. 6 to the European Convention forthe Protection of Human Rights andFundamental Freedoms (ECHR) concerningthe Abolition of the Death Penalty.6 ThisProtocol is an agreement to abolish the deathpenalty in peacetime. Every European nationexcept Turkey has signed the Protocol. TheProtocol has been ratified by 44 states andsigned by one other.

The European Convention on Human Rightshas also adopted Protocol No. 13 to theEuropean Convention for the Protection ofHuman Rights and Fundamental Freedoms.This Protocol calls for the total abolition of thedeath penalty in all circumstances. The agree-ment has been ratified by 26 countries andsigned by 16 others.

The Council of Europe and the European Unionhave made abolition of the death penalty a con-dition of membership. This has encouraged sev-eral nations to eliminate their death penalties.Russia, for example, promised to abolish itsdeath penalty in order to secure membership onthe Council. Following its admission in 1996,then-President Boris Yeltsin imposed a morato-rium on executions. In 1999, he issued a decreecommuting the death sentences of all 716 con-victs on Russia’s Death Row, and pressured theRussian Duma to pass a law abolishing the death

penalty. Russian President Vladimir Putin alsohas spoken out strongly against the death penal-ty, avowing that there are no plans to lift themoratorium.7

The European Union’s ban on the death penal-ty has also forced Turkey to promise to aban-don its once harsh death-penalty system inorder to gain admission. Other applicants formembership in the EU have recently abolishedtheir death penalties, among them Ukraine,Lithuania, Estonia, Bulgaria, and Poland. Thisreflects the clear trend in Europe towards theelimination of capital punishment, as well asthe willingness of European institutions topressure others to abandon the death penalty.

The most significant consequence of theUnited States’ stance on the death penalty isits potential impact on national security.Because of its strong opposition to the deathpenalty, the European Parliament has prohib-ited extraditions of terrorists to the UnitedStates for trial without a prior clear commit-ment from the U.S. government to waive cap-ital punishment as a possible sentence. TheUnited States needs the cooperation of othercountries in order to continue to combat ter-rorism effectively, but America’s insistenceon capital punishment is a major obstacle.Even if a deal for a different penalty can beworked out, the delay can be lengthy and crit-ical investigation slowed.

B. International Efforts to Limit the DeathPenalty

In recognition that the death penalty is not like-ly to be abolished soon in certain countries,much of the international community’s focushas been on limiting its most objectionable andunfair aspects. These include:• the execution of juvenile offenders,• the execution of those with mental deficien-cies or severe mental illness,

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• the execution of foreign nationals notinformed of their rights under the ViennaConvention on Consular Relations,• the problem of racial and economic bias; and• the treatment of Death Row inmates betweensentencing and execution.

Much attention has been focused on the U.S.record on these issues, because of its interna-tional prominence and its commitment in otherarenas to the principles of human rights andfairness.

In 2004, a U.N. resolution calling for a world-wide moratorium on executions was co-spon-sored by 76 countries. Resolution 2004/67 onthe Question of the Death Penalty, adopted bythe U.N. Commission on Human Rights, callsupon all states that still impose the death penal-ty to abolish it completely and, in the mean-time, to establish a moratorium on executions.States are particularly urged not to impose thedeath penalty for crimes committed by juve-niles or for crimes committed by those who arementally ill. States which ratify the resolutionalso agree to observe other agreed U.N. safe-guards and restrictions on the death penalty.

Execution of Juvenile Offenders

There is nearly universal consensus in theinternational community that the execution ofjuvenile offenders violates human rights.Article 6 of the ICCPR states, in part,“Sentence of death shall not be imposed forcrimes committed by persons below eighteenyears of age and shall not be carried out onpregnant women.” The United States hassigned and ratified the Convention, but with areservation allowing it to continue executingjuvenile offenders.

Eleven countries formally protested the UnitedStates’ ICCPR reservation with respect to juve-nile offenders, stating that the reservation

should not be allowed. The U.N. HumanRights Commission—the body established tooversee the ICCPR—voted that the UnitedStates’ reservation was invalid. The U.S.Senate responded to this vote by threatening towithhold funds slated for U.S. participation onthe Commission.

The United States also has signed, but not rat-ified, the American Convention on HumanRights, which states, “capital punishmentshall not be imposed upon persons who, at thetime the crime was committed, were under 18years of age.” Further, the U.N. Conventionon the Rights of the Child8 specifically pro-hibits the use of the death penalty for juvenileoffenders. Every country in the world exceptthe United States and Somalia has ratified thistreaty. Clearly, the international opinion,which has been expressed through theInternational Covenant on Civil and PoliticalRights and in the Convention on the Rights ofthe Child, is almost unanimous and will prob-ably have an impact on the ultimate decisionby the Supreme Court in a pending juveniledeath penalty case.

Amnesty International has documented execu-tions of juvenile offenders in seven countriessince 1990: Congo, Iran, Nigeria, Pakistan,Saudi Arabia, Yemen, and the United States.9

But the United States has carried out the great-est number of juvenile executions. In fact, theUnited States has executed more juvenileoffenders over the last decade than all othernations in the world combined. This is not apositive distinction for a country seeking toassert moral leadership on international humanrights issues.

However, during the 2004 term, the SupremeCourt accepted the case of Roper v.Simmons10, revisiting its 1989 decision inStanford v. Kentucky11, which upheld the exe-cution of 16-year-old offenders.

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Significantly, several prisoners who weresentenced to death for crimes committedwhen they were 17 have now received staysof execution pending this decision, which isexpected in early 2005.

Execution of the Mentally Retarded andMentally Ill

The execution of those with mental retardationor severe mental illness has raised similar con-cerns to those involving juvenile offenders. In1999, the U.N. Commission on Human Rightspassed a resolution calling on nations “not toimpose the death penalty on a person sufferingfrom any form of mental disorder.”12 TheUnited Nations’ Special Rapporteur onExtrajudicial, Summary, or ArbitraryExecutions also has called for a halt on theimposition of the death penalty on the mental-ly retarded.13 The Special Rapporteur statedthat such executions were in contravention ofinternational standards.

In 2001, the Supreme Court agreed to hear thecase of Atkins v. Virginia14 in order to consideranew the execution of mentally retarded defen-dants. The court ultimately decided that stan-dards of decency had evolved significantlyenough to merit outlawing such actions.Eighteen of the 38 death penalty states hadalready made such executions illegal. In lightof this emerging national consensus, theSupreme Court ruled that this practice consti-tuted cruel and unusual punishment. The inter-national community had called for such a rul-ing for many years. Resolutions by the UnitedNations Commission on Human Rights sup-ported this reform. The Court also made refer-ence to amicus curiae briefs from the EuropeanUnion and from members of the U.S. diplo-matic corps, supporting such a ban. Thus, inter-national opinion has begun to have a strongerand more visible impact on the U.S. SupremeCourt’s legal decisions regarding the United

States’ judicial policy on capital punishment.Many court observers believe the same impactmay be brought to bear on the upcoming juve-nile death penalty case.

While U.S. law prohibits the execution of theinsane, this is a very high standard that rarelyis met. In actuality, the United States contin-ues to execute offenders clearly exhibitingmental illness. Because of the SupremeCourt’s failure to clearly articulate a defini-tion of mental retardation, many states contin-ue to allow the execution of people who like-ly are mentally retarded. These executions areparticularly repugnant to many in the interna-tional community. French President JacquesChirac criticized the United States before theU.N. Human Rights Commission, saying,“What can be said of the execution of minorsor of persons suffering from mental deficien-cies? I call for a worldwide abolition of thedeath penalty, the first step of which would bea general moratorium.”15

Execution of Foreign Nationals

The Vienna Convention on ConsularRelations16 (Vienna Convention) requires offi-cials in the United States who place foreignnationals under arrest to inform them of theirrights to confer with the consular officials oftheir home country. Local law enforcementofficials in the United States generally eitherare ignorant of this duty or choose to disregardit. The United States has been systematicallyignoring the provisions of the ViennaConvention by failing to inform defendants oftheir right to confer with their consulates.Some of these same defendants who have notbeen accorded their rights under theConvention have been sentenced to death. As aresult, the United States has alienated manyallies. As of August 2004, 117 foreign nation-als were under the sentence of death in theUnited States. Since 1976, 21 foreign nationals

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have been executed in the United States. Inmost cases, the prisoners received no notice oftheir right to consular assistance under theVienna Convention.

Several of our close allies that oppose thedeath penalty, such as Mexico and the UnitedKingdom, intervene as a matter of policy inthe early stages of death penalty cases inorder to prevent the execution of their citi-zens. The failure by the United States to com-ply with its duties regarding consular notifi-cation undermines such efforts, and leads tointernational tension.

Racial and Economic Bias

Three key human rights treaties ratified by theUnited States condemn criminal punishmentsapplied in an arbitrary or discriminatory way:• The ICCPR forbids any arbitrary use of thedeath penalty;17

• The Convention Against Torture and OtherCruel, Inhuman or Degrading Treatment orPunishment forbids torture and the infliction ofsevere pain or suffering “based on discrimina-tion of any kind”;18 and• The Convention on the Elimination of AllForms of Racial Discrimination (“RaceConvention”) requires parties to guarantee therights of everyone, without distinction as torace, equality before the law and all tribunalsof justice.19

Numerous international human rights inquiriesand academic studies have found clear racialbias in the application of the death penalty inthe United States. For example, a Mission tothe United States from the InternationalCommission of Jurists concluded that “theadministration of capital punishment in theUnited States continues to be discriminatoryand unjust—and hence ‘arbitrary’” and thusnot in consonance with the ICCPR and theRace Convention.

More recently, the Inter-AmericanCommission on Human Rights found theUnited States to be in violation of internationallaw for the execution of William Andrews inUtah.20 Mr. Andrews’ conviction and death sen-tence were upheld by U.S. courts despite evi-dence of racial bias on the part of the jury in theform of a note reading, “Hang the Niggers.”The Commission’s Report advised the UnitedStates to pay compensation to Mr. Andrews’next of kin; none has been provided.

Treatment of Death Row Inmates

U.S. and international courts have consideredchallenges to prolonged stays on Death Rowon the basis that such stays constitute cruel andunusual punishment or violate internationaltreaties. The U.S. Supreme Court has declinedto hear such cases, though dissenting justiceshave noted their importance, given internation-al concerns.21

Indeed, the United States has filed a specificreservation to the Torture Convention in orderto avoid sanction under international treaties.The reservation basically states that theConvention does not prevent any punishmentpermitted by the U.S. Constitution.

Many U.S. states and, for the most part, thefederal government, basically have ignored thetreaties and other international efforts toaddress the most troublesome aspects of thedeath penalty. This determination to continueapplying capital punishment without regard forthe concerns of the international communityhas been particularly upsetting for U.S. allieswho oppose the death penalty.

C. Foreign Officials Raise the DeathPenalty Issue with the United States

Foreign authorities have stepped up theirexpressions of concern with respect to

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increased United States use of the death penal-ty — pressing the United States to end its iso-lation from the growing world trend againstcapital punishment, and demonstrating that theUnited States’ international prestige and moralleadership are suffering as a result.

International Petitions

In two well-publicized recent cases, interna-tional petitions have called for the abolition ofthe death penalty in the United States. In thefirst, a petition signed by 500,000 people waspresented to the U.S. embassy in Paris by agroup of French lawmakers and activists.22 Themeeting to organize the petition drive waschaired by former French Justice MinisterRobert Badinter, and featured a videotapedstatement of support from EuropeanParliament President Nicole Fontaine. At themeeting, Raymond Forni, president of theFrench National Assembly, called the deathpenalty “a stain on the largest democracy in theworld.” He further stated, “The death penaltydehumanizes not just the American society, butthe whole world, because it breeds an accept-ance of violence.”23

In the second case, a petition bearing 3.2 mil-lion signatures from 146 different countrieswas presented to the United Nations.Signatories included the Dalai Lama;Abdurrahman Wahid, the Indonesian presi-dent at that time; George Carey, theArchbishop of Canterbury; the writerUmberto Eco; the film director RobertoBenigni; and Frances Alguire, the WorldMethodist Council president.24 Upon receiv-ing the petition, U.N. Secretary General KofiAnnan agreed with the signatories, saying,“The forfeiture of life is too absolute, too irre-versible for one human being to inflict it onanother, even when backed by legal process.And I believe that future generations,throughout the world, will come to agree.”

Direct Appeals to U.S. Officials

Pleas to abolish the death penalty increasinglyare being made directly to high-level U.S. offi-cials. In July 2000, the French Presidency of theEuropean Union sent a letter to President Clintoncalling for a moratorium on federal executions inthe United States. The letter, written by theFrench Ambassador, Francois de l’Estang, urgedPresident Clinton not to break the de facto mora-torium on federal executions and to commute thesentence of federal Death Row inmate Juan RaulGarza to life imprisonment.25

Such appeals also are often made to U.S. diplo-mats abroad. In March 2001, European Unionofficials meeting for the first time withSecretary of State Colin Powell expressed theirdisapproval of the United States’ record on thedeath penalty. The officials— including ChrisPatten, Commissioner for External Affairs;Anna Lindh, Swedish Foreign Minister, andJavier Solana, European high representative forforeign and security policy— told SecretaryPowell there was “strong sentiment” in Europeon the issue.26 In a brief to the U.S. SupremeCourt, a bipartisan group of respected formerdiplomats stated that important meetings withclose allies regularly are consumed by answer-ing diplomatic demarches regarding the deathpenalty.27 Such situations limit the abilities ofU.S. diplomats to influence other nations.

U.S. legislators hear similar pleas regarding thedeath penalty. A letter from more than 162French deputies recently was sent to all mem-bers of the U.S. Congress asking for abolitionof the death penalty. The French lawmakerswrote that the death penalty in the UnitedStates “profoundly affects” the friendship felttowards the United States. They further notedthat while some people consider the UnitedStates to be the greatest democracy in theworld, members of Congress “will never be

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elected in a model democracy as long as thedeath penalty exists” in the United States.Subsequently, 84 French Senators and 189deputies signed a similar letter appealing togovernors of U.S. states that carry out the deathpenalty for its abolition.28

In a letter to then-Gov. George Bush of Texas,European Union officials appealed for an end toexecutions in that state, warning of potential eco-nomic consequences to their continuation. Afterdescribing the strong opposition in Europe to thedeath penalty, the letter noted the officials’ con-cern that “the almost universal repugnance” feltin other countries for the continued applicationof the death penalty in the United States couldhave economic consequences.29 The officialsexplained that Europe is the foremost investor inTexas, and that shareholders are pressuring manyEuropean companies to restrict investment tostates that do not apply the death penalty. Theprospect of facing economic sanctions, similar tothose imposed upon South Africa during its peri-od of racial apartheid, would seriously damageU.S. ability to be an effective world leader onany human rights issue.

In September 2004, a group of internationalmedical experts wrote an open letter to govern-ments around the world that are still executingchild offenders. These specialists in child andadolescent mental and physical health anddevelopment felt strongly that youthful imma-turity and irresponsibility can lead to impetu-ous actions. They argued that although childrencan usually tell the difference between rightand wrong, they also have diminished capaci-ties to reason logically and control theirimpulses. They concluded that, though chil-dren should face punishment for their actions,they should not face the death penalty. Thecountries to which they sent the letter wereChina, the Democratic Republic of Congo,Iran, Pakistan, Philippines, Sudan, and theUnited States.

Other Foreign Reactions

A global conference against the death penaltywas held during June 2001. The parliamentarypresidents of France, Germany, and Italy wereamong the politicians who met in Paris aheadof this conference to discuss related issues. Atthe conference itself, lawmakers and activistscalled for a worldwide ban on the death penal-ty, and accused the United States of setting thewrong example for developing countries thatcarry out capital punishment. Russell Johnston,president of the Council of Europe’s parlia-mentary assembly, said, “The fact that Americacontinues to operate with the death penalty is avery big drawback and handicap to everyoneelse.”30 During the conference, European offi-cials directed their criticism primarily at twocountries: China and the United States.

At the Congress of the League of the Rights ofMan in June 2000, Raymond Forni, presidentof France’s National Assembly, criticized theUnited States’ continued use of the deathpenalty and called on the international commu-nity to “become America’s guilty conscience”and pressure it to abolish legal executions.”President Forni said, “The United States ofAmerica’s prestigious image bears a tarnish. Itis no longer slavery, it is no longer organizedracial segregation, it is the death penalty.”31

The United States’ record on the death penal-ty also has been used against it by othernations accused of human rights violations.China, for instance, never misses an opportu-nity to criticize the United States for execut-ing those with mental retardation. Anotherexample is the reaction of the Venezuelangovernment to a U.S. report describing illegalexecutions in various Latin American coun-tries. Venezuelan Defense Minister JoseVincente Rangel responded that the UnitedStates is no international watchdog, and said,“I can cite countless examples of human

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rights violations in the United States, from thedeath penalty to the harassment of new immi-grants.”32 A third example involved U.S.efforts to prevent Turkey from executing aKurdish guerilla leader. Turkey’s responsewas to ask how the United States, a countrythat still uses the death penalty and activelycampaigns against terrorism, could make acase against the execution.33

Not only does the death penalty lead to embar-rassing criticism from U.S. allies, it also erodesthe nation’s moral authority and ability toinfluence other governments on human rightsissues.

D. Interventions by Foreign Governments

Foreign governments regularly object to thedeath penalty in the context of individual cases.Letters from foreign officials to U.S. state gov-ernors and others generally state a blanketopposition to the death penalty and ask thatsuch sentences be commuted. The letters alsoraise objections to many of the specific con-cerns discussed above, including the executionof juvenile offenders or the mentally retarded,as well as the failure to accord foreign citizenstheir rights under international law.

On March 26, 2001, European Union officialssent a letter to Nevada Gov. Kenny Guin ask-ing him to commute the death sentence ofThomas Nevius. The letter stated theEuropean Union’s opposition to the deathpenalty in all cases, and noted that the execu-tion of Mr. Nevius, who had been diagnosedas being mentally retarded, would be in con-tradiction to the U.N. SafeguardsGuaranteeing Protection of the Rights ofthose Facing the Death Penalty, and recentresolutions of the U.N. Commission onHuman Rights.34 The letter was signed by JanEliasson, Ambassador of Sweden; Alex Reyn,Ambassador of Belgium, and Günter

Burghardt, Head of the Delegation of theEuropean Commission. Similar letters hadbeen sent to governors of other states execut-ing those with mental retardation, includingGeorge Bush when he was governor of Texas.

Gov. Bush also received letters fromPortuguese and French officials objecting tothe execution of Gary Graham, a juvenileoffender. The Ambassador of Portugal, writingas the representative of the Presidency of theEuropean Union, urged Bush to commuteGraham’s sentence to life imprisonment, stat-ing that the European Union would considerthe execution of a person under the age of 18 atthe time of his crime to be “contrary to gener-ally accepted human rights norms.”35 TheAmbassador further noted that, despite theUnited States’ reservation to Article 6 of theICCPR, which prohibits the execution of minoroffenders, “the EU believes that Article 6enshrines the minimum rules for the protectionof the right to life and the generally acceptedstandards in this area.”

European Union officials also sent a letter toIllinois Gov. George Ryan asking him to pre-vent the execution of Gregory Madej, a Polishcitizen sentenced to death without having beenadvised of his right to contact the PolishConsulate under the Vienna Convention.36 Theletter began by commending Gov. Ryan fordeclaring a moratorium on the death penalty inIllinois in order to study problems with itsapplication. It then noted that Poland (an E.U.Associate Member) was unable to assist Madejin his case because they did not learn of hissentence until 16 years after it was imposed.The letter concluded by appealing to the gover-nor to commute Madej’s sentence on the basisof this treaty violation. Significantly, in 2003,shortly before leaving office, Gov. Ryan par-doned four Death Row inmates and commutedthe death sentences of every other prisoner onDeath Row to life in prison.

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Nearly every execution in the United Statesdraws similar letters of protest from theEuropean Union, and often others from E.U.Member States, other nations, and variousinternational organizations, including theCatholic Church. These letters reflect the scopeof the opposition to the death penalty in theinternational community, and highlight theUnited States’ increasing isolation on the issue.

E. Extradition Cases Involving the DeathPenalty

The extradition of criminal suspects to theUnited States for trial has provided another arenaof international conflict regarding the deathpenalty. Countries opposing the death penaltyincreasingly refuse to extradite suspects whoface possible execution in the United States. Thisoften is done in order to secure an assurancefrom U.S. prosecutors that the death penalty willnot be sought in a particular case. Such cases addcomplexity, cost, and delay to U.S. criminalprosecutions, and highlight the United States’isolation on this human rights issue.

The Supreme Court of Canada ruled recentlythat, but for “exceptional cases,” no one shouldbe extradited from Canada to the United Statesor other countries without assurances againstexecution.37 The court’s ruling was based on itsconclusion that the death penalty is cruel andirreversible punishment. In so ruling, the courtstated, “Legal systems have to live with thepossibility of error. The unique feature of capi-tal punishment is that it puts beyond recall thepossibility of correction.” The court noted thatan extradition decision by a Canadian ministerpotentially could lead to the death of an inno-cent individual in a foreign jurisdiction. Basedon this ruling, Canadian Justice Minister AnneMcLellan recently required formal assurancesfrom Washington State officials that theywould not seek the death penalty before extra-diting two Canadians on homicide charges.38

In another significant recent development, thenewly drafted European Charter ofFundamental Rights prohibits the extraditionof European citizens to a country where theymight face the death penalty.39 Although theCharter is not yet legally binding and individ-ual cases are left for member states to decide,the Charter has been agreed to by the EuropeanParliament, Council, and Commission, and hasbeen cited by the European Court as an author-itative text.

As in many countries, French law prohibits theextradition of foreigners to countries wherethey would face the death penalty. In tworecent cases, French authorities refused toextradite criminal suspects to the United Stateswithout assurances from prosecutors that thedeath penalty would not be sought. One caseinvolved James Kopp, wanted for the slayingof a New York abortion doctor and for sniperattacks on three Canadians. Mexico also fre-quently has conditioned extradition of criminalsuspects on assurances by prosecutors that thedeath penalty will not be sought.40 Other coun-tries that have refused or delayed extradition ofsuspects charged with murder in the UnitedStates include the United Kingdom, Germany,Italy, South Africa, and the DominicanRepublic.

F. Challenges to the U.S. Death Penalty byInternational Tribunal Hearings

Several foreign nations have challenged theUnited States in international tribunals on thedeath penalty. These cases generally involvethe United States’ failure to afford foreigncitizens their rights under the ViennaConvention on Consular Relations. Since thereinstatement of the death penalty in theUnited States in 1972, there have beendozens of foreign nationals either executed oron Death Row who were not informed oftheir consular rights.

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Three cases have been brought under theInternational Court of Justice in recent years,which ask the court to address issues related tothe death penalty and international interven-tion. The ICJ is the principal judicial organ ofthe United Nations, operating under an interna-tional statute that is an integral part of theCharter of the United Nations. The UnitedStates has been involved in cases before theICJ against Libya (regarding the bombing ofthe Pan Am jet over Lockerbie, Scotland), andagainst Iran (with respect to oil platforms).Other high-profile cases before the ICJ involvegenocidal crimes committed in Bosnia,Herzegovina, and Croatia.

In March 2004, the International Court ofJustice handed down a decision in the case ofMexico v. USA, directly addressing the legaland civil rights of Mexicans who had beendetained in the United States and later sen-tenced to death.41 Mexico wanted to obtain con-sular access under the Vienna Convention forits citizens caught up in the U.S. legal system.The ICJ ruled that the United States did violateArticle 36 of the Vienna Convention. This arti-cle states that authorities must notify alldetained foreign nationals of their right to havetheir consulate informed of their detention. Inthis ruling, the ICJ found that the United Stateshad violated this provision in 51 of 52 cases ofMexican nationals. The ICJ then ruled that theUnited States must provide effective judicialreview and reconsideration of the impact of theviolations on these cases where foreign nation-als are directly implicated. Timely assistancefrom the Mexican consulate could have pre-vented the imposition of death in more thanjust one case – either by persuading the prose-cutor not to seek a death sentence or by assist-ing the defense at trial.

In another recent case, the German governmentchallenged the execution in Arizona of twoGerman brothers: Karl and Walter LaGrand.

The two were sentenced to death in 1982, butGerman authorities did not learn of this until 10years later. The German government thereforewas unable to assist its citizens through thesentencing phase of the trial. The ICJ initiallyordered that the United States should “take allmeasures necessary” to ensure that WalterLaGrand would not be executed pending theICJ’s final decision.42 Based on this order,Germany petitioned the U.S. Supreme Courtfor a stay of execution for Walter LaGrand. Theappeal was dismissed.

Arizona Gov. Jane Hull subsequently allowedthe execution to proceed, ignoring both theICJ’s order and the recommendation of theArizona Board of Executive Clemency for a60-day reprieve. In November 2000, the ICJheard arguments on Germany’s amendedapplication for legal sanction. The chief U.S.agent to the court admitted that Arizonaauthorities violated the Vienna Conventionand noted that the United States and theArizona Attorney General have apologizedfor the violation, but maintained that the ICJhas no jurisdiction to order further sanctions.On June 27, 2001, the ICJ ruled that the U.S.breached several international obligations toGermany and the LaGrand brothers.43

Germany eventually prevailed in an ICJ rul-ing which held that the United States was indirect violation of the Vienna Conventiontreaty.

A second ICJ case involved the execution inVirginia of Paraguayan citizen Angel Breard.Like the LaGrands, Breard was not informed ofhis consular rights when arrested for murder.Breard refused a plea offer and instead admit-ted his involvement in the crime and testifiedthat he was compelled by a satanic curse.44

While such a defense may have won himleniency in Paraguay, in the United States it ledto a death sentence. Advice from his consulatemay have made a difference.

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The ICJ, as in the German case, ordered theUnited States to “take all measures at its dis-posal” to ensure that Breard would not beexecuted pending the court’s final decision.45

Although U.S. Secretary of State MadelineAlbright asked the State of Virginia to com-ply with the ICJ’s Order, Virginia Gov.James Gilmore rejected the request anddenied clemency.46 The U.S. Supreme Courtalso rejected the ICJ Order on the basis thatBreard had not raised his Vienna Conventionclaim in a timely manner.47 The case was dis-missed on procedural grounds. Breard wasexecuted on April 14, 1998, amid interna-tional protest.

These international tribunal proceedingschallenging United States treaty violationsrepresent examples of direct clashesbetween the United States and foreign gov-ernments regarding the death penalty’simplementation. Not only do these casesweaken the United States’ ability to protectits citizens traveling abroad, they also erodethe comity that other nations will be willingto show the United States on broader issues.Moreover, the United States’ refusal tocomply with orders from international tri-bunals undermines their authority in othercases in which the United States relies uponthem.

G. Human Rights Inquiries and Reports

The international community regularly chal-lenges the United States by issuing reports,which catalog the death penalty’s problemsand call for its abolition. Ironically, the UnitedStates relies on similar reports, from both theUnited Nations and non-governmental organ-izations, in seeking to advance other humanrights causes. By itself appearing as a promi-nent subject of these reports, the United Statesweakens its ability to influence nations inother areas.

The United Nations

The report for 2000 from the United NationsSpecial Rapporteur on Extrajudicial,Summary or Arbitrary Executions48 includedseveral critical references to the UnitedStates. Regarding “Violations of the Rights ofWomen,” the Special Rapporteur noted thatthe United States received an urgent appeal inthe Texas case of Betty Lou Beets.49 TheSpecial Rapporteur wrote to the Governmentof the United States referring to reports thatin her trial, crucial mitigating evidenceregarding her history of severe physical, sex-ual, and emotional abuse was never presentedto the jury. Nevertheless, Ms. Beets’s execu-tion proceeded.

The report also criticized the execution ofjuvenile offenders in the United States, notingthat Pakistan has abolished the death penaltyfor children and that Yemen is in the processof doing so, but that the United States has nosuch plans. The report further mentioned theUnited States as the only country cited forexecutions of those with mental illness or dis-ability. The Special Rapporteur urged thatsuch executions be stopped.50 Finally, thereport discussed problems with fair trials inthe United States and with executions of for-eigners not accorded their rights, amid grow-ing international consensus on the abolition ofthe death penalty. Such criticisms are not rarein the Special Rapporteurs’ annual reports.The reports from each recent year containsimilar discussions of U.S. violations of inter-national conventions and U.N. appeals to haltsuch violations.

In 1997, the Special Rapporteur reported on aSpecial Mission to the United States.51 Thevisit was made on the basis of persistentreports to the United Nations of violations ofinternational treaties and of discriminatoryand arbitrary use of the death penalty. The

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Special Rapporteur visited federal, state, andlocal authorities, prison officials, and humanrights organizations to investigate, and in hisreport presented a series of criticisms of theU.S. death penalty, as well as calls forreforms.

Since the Special Rapporteur’s mission to theUnited States in 1997, only Nepal has receiveda similar visit. Nepal is one of the poorestcountries in the world. It is a developing andstill fragile democracy with a long history ofstruggle against totalitarian and autocratic rule.Many of the Special Rapporteur’s concernsrelated to the Nepalese government’s efforts tocombat armed Maoist insurgents.52 The UnitedStates, of course, does not face similar prob-lems. As the world’s wealthiest democracy, theUnited States should not require the same formof international human rights monitoring assuch a troubled nation.

Two recent developments involving U.S. par-ticipation in multinational human rights organ-izations further highlight the difficulties causedby the death penalty. First, the United Stateswas voted off the U.N. Human RightsCommission – the first nation to be removedsince its formation in 1997. The continued useof the death penalty clearly was one of severalfactors behind this development. Second, theCouncil of Europe’s parliamentary session haspassed a resolution threatening to strip theUnited States of its human rights observer sta-tus unless “significant progress” is madetowards the elimination of the death penalty.53

This loss of observer status would be an embar-rassing mark against the United States interna-tional image.

Amnesty International

The U.S. State Department frequently citesAmnesty International reports on such issues asprisoners of conscience, political prisoners, tor-

ture and other cruel treatment of prisoners,extrajudicial executions and “disappearances.”Amnesty International in turn regularly cites theUnited States in its reports criticizing the use ofthe death penalty as a human rights violation.

In 2003, 65 prisoners were executed in the

United States. The 900th execution since thedeath penalty was reinstated in 1977 occurredin March 2004. More than 3,500 prisonerswere under the death sentence in the UnitedStates as of January 2004.

In a recent report, Amnesty International statedthe following:

The USA is engaged in a cruel,brutalizing, unreliable, unnec-essary and hugely expensiveactivity for no measurablegain. The fact that it is violat-ing human rights standards inthe process only adds to theshadow being cast on its inter-national reputation by itsrelentless resort to this outdat-ed punishment.54

Recent Amnesty International reports haveaddressed problems with the death penalty inOklahoma, Nevada, Texas, and other states;executions of foreigners, child offenders andthe mentally deficient; and racial bias in theimplementation of the death penalty, amongother issues. A perusal of the titles in AmnestyInternational’s Death Penalty library revealsthe company the United States keeps by per-sisting with executions: Iraq, Botswana,Afghanistan, Sri Lanka and Lebanon, in partic-ular. The United States should be leading theworld in pressuring such countries to improvetheir human rights records, rather than appear-ing alongside them on lists of human rightsviolators.

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III. Effects on theInternational Image of theUnited States

It is important for the UnitedStates to maintain [its interna-tional image] in the eyes ofEuropeans, and to protect thelegitimacy of our moral leader-ship. This moral leadership isunder challenge because of twoissues: the death penalty andviolence in our society.

—Felix G. Rohatyn, U.S.Ambassador to France from1997 to 2000.55

A. International Press Coverage

While the death penalty is receiving increasedattention in the United States, media coveragein Europe of U.S. executions typically is bothmore extensive and more critical than domesticcoverage. Executions that go relatively unno-ticed in the United States often make headlinesin Europe, drawing criticism from conservativeand liberal publications alike. U.S. executionsevoke much passion in Europe, and often sparkprotests in front of our embassies, as well aspetitions calling for an end to executions.

One important and generally conservative publi-cation that has been particularly outspokenregarding the U.S. death penalty is the Britishmagazine, The Economist. The magazine, whichis read widely by business people in Europe, theUnited States, and around the world, is known forpromoting business-friendly public policies andtax reductions, and it endorsed George W. Bushin his first presidential election. The Economistalso, however, has made clear its opposition tothe death penalty in the United States

The Economist has called the United States“the most glaring exception to the emerginginternational consensus on the death penalty.”56

Noting that the United States defends the prac-tice to its allies and continues to execute juve-nile offenders and the mentally retarded, themagazine asked, “Why is the world’s richest,and arguably greatest democracy, so out ofstep?” Another opinion piece in The Economistcalling for the abolition of the death penalty inthe United States noted that even the UnitedStates, with its legal guarantees and complexsystem of appeals, is unable to ensure the fairor consistent application of the death penalty.57

The Economist concluded that the inevitableexecution of innocents is too high a price topay for an unnecessary punishment.

These clear statements of The Economist’sopposition to the death penalty are in additionto numerous news articles criticizing the exe-cution of the mentally retarded, flaws relatingto legal representation and the appellateprocess in death penalty cases, and errors in theapplication of the death penalty. This is theimage of the United States portrayed to sophis-ticated business people worldwide by a leadingand generally conservative international publi-cation.

Other international media outlets also provideregular and extensive coverage of U.S. deathpenalty issues as well as of individual execu-tions. The coverage often is critical of the deathpenalty, and such criticism comes from conser-vative as well as liberal publications. This hasbeen an important factor in shaping the inter-national image of the United States. One exam-ple is the coverage by The Sun, one of Britain’smost conservative newspapers, of a recent ele-mentary school shooting in Michigan. When a6-year-old shot and killed a classmate, the Suneditorialized that the most likely Americanresponse would be to build a kiddie-size elec-tric chair.58

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Because of the notoriously large number ofexecutions in Texas, the election of formerTexas governor George W. Bush as presidenthas inspired even broader foreign coverage ofthe U.S. death penalty. One Swiss newspaper,for example, marked President Bush’s inaugu-ration by printing all the photographs it couldfind of prisoners in Texas who had been exe-cuted on his watch. The Mirror, a popularBritish newspaper, printed a six-page story onPresident Bush titled, “The Texas Massacre.”The article stated: “Bush makes no apology forhis hideous track record. And disturbingly, hehas mass support from Americans, driven bytheir out-of-control gun culture and blood lustfor retribution.”

As a result of the extensive media coverage ofthe death penalty, Europeans’ image ofPresident Bush, as well as of the UnitedStates, is greatly affected by the death penal-ty. As stated by Claudia Roth, a member of theGerman parliament: “What we know aboutthe new president, is just two things. He is theson of President Bush, and he has sent 150people to their death in Texas, including thementally ill.”59

The case of Timothy McVeigh, the first fed-eral execution in 38 years, attracted wide-spread media attention, particularly follow-ing revelations that authorities failed to givethousands of relevant documents toMcVeigh’s lawyers before his trial. A Timecolumnist stated that development “added abaffling and embarrassing new example tothe dozens of instances of judicial error, men-dacious testimony, incompetent defenselawyers and sloppy lab work that havedemonstrably sent innocent people to theirdeaths in recent years.”60

This episode, together with the viewing of theexecution by two dozen live witnesses andanother 300 over closed-circuit television, led

to intense public scrutiny of the case, both inthe United States and abroad. Press coverage inEurope and other regions was both extensiveand derogatory towards the United States. TheCouncil of Europe labeled the execution “sad,pathetic and wrong.” Amnesty Internationalcalled it, “a failure of human rights leadershipat the highest level of government in the UnitedStates”61

Even before the attention generated by theMcVeigh case, the death penalty affected theinternational interests of the United States.Felix Rohatyn, former U.S. ambassador toFrance, wrote in the Washington Post about thechallenge to America’s moral leadership inEurope over the death penalty.62 He said thatduring his time in France, no single issueevoked as much passion and protest.Ambassador Rohatyn noted that the U.S.ambassador to Germany encountered chal-lenges on the issue just as frequently. He con-cluded that, “At a time when our military, eco-nomic, and political power, our so-called‘hegemony,’ is a source of concern to many ofour allies, it is important that our moral leader-ship be sustained.”

B. International Cooperation in the “Waron Terror”

International opposition to the death penaltyalso may be hindering U.S. efforts againstinternational terrorism. As former CIA officialMichael Bearden argued in the Wall StreetJournal, seeking the death penalty for terroristscould ultimately work against the process ofinternational teamwork that has led to severalsuccessful convictions in this area.63 Countriessuch as Pakistan, Kenya, and South Africa havedelivered accused terrorists to U.S. courtswithout formal extradition processes. Beardenbelieves that seeking the death penalty in suchcases could complicate or limit such coopera-tion in the future.

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In May 2004, the direct impact of the UnitedStates’ policy became clearly visible. Muslimcleric Abu Hamza was arrested in Great Britainon a U.S. warrant, which included allegationsof 11 separate charges of terrorism and terror-ist activity. However, British law forbids theHome Secretary from extraditing someone to acountry where the death penalty applies for theoffense charged, unless there has been a writtenagreement not to carry out the sentence ofdeath should it be imposed.64 U.S. AttorneyGeneral John Ashcroft had to come to anexplicit agreement with Great Britain not toexecute Abu Hamza if Ashcroft wanted Hamzaextradited to face a trial in U.S. courts.

IV. Conclusion

The problems caused by the death penaltyissue, and the close attention paid to it abroad,likely will not subside. While over 930 prison-ers have been executed in the United Statessince 1976, another 3,500 are currently ondeath row. Meanwhile, the number of crimesfor which the death penalty is available hasincreased since its reinstatement by the U.S.Supreme Court. As executions continue in theUnited States, so too will the damage to itsinternational image and moral leadership.

The United States actually executes very fewprisoners. In 2003, the total number was 64 andas of November 2004, there have been 57.65

Given that alternative punishments are avail-able, including life imprisonment, and thatmany of those executed are juvenile offenders,mentally deficient, have received inadequatelegal representation or may be innocent, manywould argue that there can be no benefit fromsuch a random practice. Whatever benefitmight be claimed certainly does not outweighthe damage done to the United States’ interna-tional interests. The United States constantly is

criticized in international forums as a humanrights violator. The world press depictsAmerica as obsessed with a violent and outdat-ed practice that is racially biased, tantamountto torture, and fraught with error. The UnitedStates’ moral leadership, and therefore its abil-ity to influence other nations on human rightsand other issues, is eroded.

It is time for the United States to join the inter-national community in abolishing the deathpenalty, so that the United States can become amore effective world leader on other matters ofgreat consequence. If abolition cannot beaccomplished, the United States must impose amoratorium on executions in order to addressthe most troubling aspects of the death penalty.Such a moratorium would communicate to ourallies that the United States is not deaf to theirconcerns and, as President Bush has advocated,that we respect our allies as partners. A mora-torium would prove to the world that theUnited States is serious in its commitment tojustice and individual liberties, and that it issincere in its positions on international humanrights issues.

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1 International Convention on Civil andPolitical Rights, General Assembly resolution2200A (XXI) of Dec. 16, 1966.

2 Second Optional Protocol to the InternationalConvention on Civil and Political Rights,Aiming at the Abolition of the Death Penalty,General Assembly resolution 44/128 of Dec.15, 1989.

3 The Question of the Death Penalty,Commission on Human Rights Resolution2001/68, April 25, 2001.

4 American Convention on Human Rights,Organization of American States Treaty SeriesNo. 36, July 18, 1978.

5 Protocol to the American Convention onHuman Rights to Abolish the Death Penalty,Organization of American States Treaty SeriesNo. 73, June 8, 1990.

6 Protocol No. 6 to the European Conventionfor the Protection of Human Rights andFundamental Freedoms (ECHR) concerningthe Abolition of the Death Penalty.

7 Associated Press, “Putin Speaks AgainstDeath Penalty,” New York Times, July 9, 2001.

8 Convention on the Rights of the Child,General Assembly resolution 44/25 of Dec. 12,1989.

9 Amnesty International, “Children and theDeath Penalty: Executions Worldwide Since1990,” Dec. 14, 2000.

10 Case no. 03-633, cert. granted Jan. 26, 2004.

11 492 U.S. 361 (1989).

12 Commission on Human Rights resolution1996/91 of April 28, 1999.

13 Report of the Special Rapporteur onExtrajudicial, Summary or ArbitraryExecutions by Mr. Bacre Waly Ndiaye,E/CN.4/1998/Add.3 at ¶145.

14 528 U.S. 304 (2002).

15 Lara Marlowe, “Chirac Attacks U.S. onDeath Penalty,” The Irish Times, March 31,2001, p. 12.

16 Vienna Convention on Consular Relations,U.N.T.S. Nos. 8638-8640, vol. 596, pp. 262-512,April 18, 1961 (ratified by the U.S. in 1969).

17 ICCPR Article 6(1).

18 Covenant Against Torture and Other Cruel,Inhuman or Degrading Treatment orPunishment, General Assembly resolution39/46 (Dec. 17, 1984), Article 1(1).

19 Convention on the Elimination of All Formsof Racial Discrimination, General Assemblyresolution 2106 A (XX) (Dec. 21, 1965),Article 5.

20 Inter-American Commission on HumanRights, Report No. 57/96 (1998).

21 Elledge v. Florida, 1998 WL 440561 (U.S.xxxx) (Breyer, J., dissenting).

22 AP Worldstream, Jan. 24, 2001.

23 “European Lawmakers and Activists Call onU.S. to Abolish Death Penalty,” APWorldstream, October 21, 2000.

24 Rory Caroll, “Global Petition Puts Pressureon U.S. to Abolish Death Penalty,” TheGuardian (London), Dec. 19, 2000, p. 12.

Endnotes

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25 French Presidency of the European UnionPress Release, July 27, 2000.

26 Tom Harnden, “Bush Team Angry Over EUPressure on Death Penalty,” The DailyTelegraph (London), March 8, 2001, p. 15.

27 McCarver v. North Carolina, No. 00-8727(2000) (Brief of Amici Curiae DiplomatsMorton Abramowitz, Stephen W. Bosworth,Stuart E. Eizenstat, John C. Kornblum, PhyllisE. Oakley, Thomas R. Pickering, Felix G.Rohatyn, J. Stapleton Roy, and Frank G.Wisner in Support of Petitioner).

28 “European Lawmakers and Activists Call onU.S. to Abolish Death Penalty,” APWorldstream, October 21, 2000.

29 Letter to George W. Bush, Governor of Texas,June 25, 1998.

30 “European Lawmakers Decry U.S. Use ofDeath Penalty,” AP Worldstream, April 9, 2001.

31 “French Lawmaker Denounces UnitedStates’ Use of Death Penalty,” AP Worldstream,June 10, 2000.

32 “Officials React to ‘Meddling’ U.S. HumanRights Report,” The British BroadcastingCorporation, March 6, 2001.

33 Raymond Bonner, “Veteran U.N. EnvoysSeek End to Executions of Retarded,” NewYork Times (June 6, 2001).

34 Letter to Kenny Guin, Governor of Nevada,March 26, 2001.35 Letter to George W. Bush, Governor of Texas,May 17, 2000

36 Letter to George H. Ryan, Governor ofIllinois, May 1, 2001.

37 United States v. Burns, 2001 S.C.C. 7 (2001).See also Susan Taylor Martin, “U.S. Influenceon Canada Ends with Death Penalty” St.Petersburg Times, Feb. 25, 2001, p. 2A.

38 Mark Dunn, “Canucks Face Trial Stateside;U.S. Won’t Seek Death Penalty,” The OttowaSun, March 10, 2001.

39 Charter of Fundamental Rights of theEuropean Union, OJ C 364/1 (Dec. 18, 2000),Article 19.

40 See Jerry Seper, “Drug Smuggler SparedDeath in ’98 Killing of Border Agent;Extradition Deal with Mexico Leads toReduced Sentence,” The Washington Times,Nov. 24, 2000 (case of Bernardo VelardeLopez); Richard Winton, “Suspect in Dancer’sDeath Extradited to Pasadena,” Los AngelesTimes, Sept. 2, 2000, p. B5. (case of JohnnyAndres Ortiz); “Aiding a Fugitive; Del ToroBenefited from Flaws in Extradition Treatywith Mexico,” Sarasota Herald-Tribune, July8, 2000 (case of Jose Luis Del Toro Jr.).

41 On March 31, 2004, the Court issued its judg-ment on the merits. As a preliminary matter, theCourt dismissed all the jurisdictional andadmissibility challenges raised by the UnitedStates. The Court found that the jurisdictionalchallenges were more appropriately addressedat the merits stage. Several admissibility chal-lenges were also dismissed for this reason. Theremaining admissibility challenges were dis-missed on various grounds. For example, theCourt found that exhaustion of local remedieswithin the United States was not necessarybecause Mexico was requesting the Court torule on the violation of rights that it claims tohave suffered both directly and through the vio-lation of individual rights conferred onMexican nationals. In addition, the Court heldthat Mexico had not waived its right to bringthe case before the ICJ, even if it had delayed

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in doing so. “[O]nly a much more prolongedand consistent inaction on the part of Mexico .. . might be interpreted as implying such awaiver.” Case Concerning Avena and OtherMexican Nationals (Mexico v. U.S.), Merits,para. 44 (2004). See http://www.icj-cij.org/icjwww/idocket/imus/imusframe.htm.

42 Case Concerning the Vienna Convention onConsular Relations (Germany v. United Statesof America) No. 104, (International Court ofJustice, March 3, 1999) (Order on Request forthe Indication of Provisional Measures).

43 Case Concerning the Vienna Convention onConsular Relations (Germany v. United Statesof America) No. 104, (International Court ofJustice, June 27, 2001) (Judgment).

44 B. Masters, “World Court Tells U.S. to Halt Va.Execution,” Washington Post, April 10, 1998, C1.

45 Case Concerning the Vienna Convention onConsular Relations (Paraguay v. United Statesof America) No. 99, (International Court ofJustice, April 9, 1998) (Order).

46 Letter from Madeleine Albright to VictorRodriguez, Chair of Texas Board of Pardons,November 1998.

47 In re Angel Francisco Breard, 140 L.Ed. 537(April 14, 1998).

48 Report of the Special Rapporteur, UnitedNations Commission on Human Rights,E/CN.4/2001/9, January 11, 2001.

49 Id. ¶ 40.

50 Id. ¶ 82.

51 Report of the Special Rapporteur, UnitedNations Commission on Human Rights,E/CN.4/1998/68/Add.3, January 22, 1998.

52 Report of the Special Rapporteur, UnitedNations Commission on Human Rights,E/CN.4/2001/9/Add.2, August 9, 2000.

53 Rick Halperin, “U.S. May Lose Council ofEurope Observer Status,” Associated Press,June 26, 2001.

54 Amnesty International, “USA: FloutingWorld Trends, Violating InternationalStandards—700th Execution Imminent,” AMR51/031/2001, March 1, 2001.

55 Felix G. Rohatyn, “America’s Deadly Image,Editorial, Washington Post,” Feb. 20, 2001, p. A23.

56 “The Cruel and Ever More UnusualPunishment,” The Economist, May 13, 1999.

57 “Down with the Death Penalty,” Opinion,The Economist, May 13, 1999.

58 T.R. Reid, “Many Europeans See Bush asExecutioner Extraordinaire,” Washington Post,Dec. 17, 2000, p. A36.

59 Id.

60 Rick Halperin, “A Matter of Life or Death:The McVeigh Case Shows How DifferentlyEurope and America View CapitalPunishment,” Time.

61 Suzanne Daley, “The Reaction Abroad:Almost as One, Europe Condemns McVeighExecution,” New York Times, June 12, 2001.

62 Felix G. Rohatyn, “America’s DeadlyImage,” Editorial, Washington Post, February20, 2001, p. A23.

63 Milt Bearden, “Death Penalty Would HinderAnti-Terrorism,” The Wall Street Journal (June4, 2001). Bearden is a former CIA station chiefin Pakistan and Sudan.

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64 Craig Whitlock and Susan Schmidt, “Vocalcleric arrested in London at U.S. behest,”Washington Post, May 28, 2004, at A1, avail-able at: http://www.washingtonpost.com/wp-dyn/articles/A60010-2004May27.html.

65 Death Penalty Information Center, availableat:http://www.deathpenaltyinfo.org/article.php?did=414&scid=8.

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