Do Consular Notification Rights Matter? In Capital Cases, They Can Mean The Difference Between Life And Death.

A young black man, born in Germany, moved with his family to the United States as a small child, settling in rural Alabama. Let’s call him T. Although T struggled in school from the very start, and in developing the necessary skills to manage his life on a day-to-day basis, he received virtually no help – no medical, psychological, or real educational interventions to identify or develop skills to cope with what would only much later be found to be very significant disabilities. Predictably, T fell behind, left school, and drifted unsuccessfully through a series of menial jobs. When he was arrested and charged with having participated, with several other people, in a robbery murder, he was unable to explain how he had been manipulated by people who knew how to use his gullibility. He did not understand what had happened, and the State of Alabama didn’t care. It charged T with capital murder and sought the death penalty.  

The US death penalty system erects many barriers that impede the ability of people accused of capital crimes to adequately defend themselves. When the defendant is a foreign national, an additional barrier – one that violates international law – frequently arises. Under Article 36 of the Vienna Convention on Consular Relations, a treaty to which the US is a party, a person who is arrested or imprisoned must be notified “without delay” of his right to communicate with the consulate of his home country, and that if he so requests, his home consulate must be notified of his circumstances, also “without delay.”  

In dozens of US death penalty cases, this provision has been violated. In fact, the Death Penalty Information Center was able to identify only two cases of fully compliance with consular notification rights out of more than reported 130 cases it reviewed. The International Court of Justice, created by the United Nations to hear disputes between countries regarding their treaty obligations, has repeatedly held the US responsible for these failures. In cases such as the LaGrand case (Germany v. US) and the Avena case (Mexico v. US), among others, the ICJ found that foreign nationals were convicted and sentenced to death with no notification of their right to consular communication, and their home countries’ consular officials only learned of their plight years later, when it was far too late for any assistance provided to be effective.  

The right to have one’s consulate notified, and to receive consular assistance, is far more than a mere formality. Many foreign consulates take an active approach to death penalty cases involving nationals from their countries, and if given timely notice will take steps to ensure that their nationals receive adequate representation from the very outset of the case. This involvement can be critical in US state jurisdictions where authorities often violate indigent defendants’ right to effective counsel.  

During my many years of private practice in Alabama, I worked on many post-conviction death penalty cases in which the most glaring problem was woefully ineffective representation provided by appointed counsel for an indigent defendant. While in some cases the appointed counsel were simply unqualified or incompetent, a huge factor in every case was the severe lack of adequate compensation and resources provided to appointed counsel by the State of Alabama. To be handled properly, a death penalty case involves many hundreds of hours of work, a tremendous amount of research, multiple pretrial motions on a wide range of issues, and access to qualified experts to address matters such as intellectual disability, mitigation evidence, and so on.  

My own personal experience in T’s case in Alabama demonstrates how early consular intervention can make a life-saving difference in a death penalty case. T was very poor. His appointed counsel, unlike many others I had encountered, were both quite competent and diligent, but they suffered from the same lack of resources as all others. In addition, they faced a hostile trial judge who was trying to rush the case to trial, and who made bad rulings on important issues from the outset. Fortunately, T’s mother was a savvy person who notified the German consulate very early about her son’s case. Consular officials reached out to an international organization that works on death penalty issues. That organization, in turn, contacted me and asked that I get involved in the case along with its staff attorney, who was not in Alabama.  

Over a period of several months, my law firm and I provided pro bono support to the appointed trial team. We researched and drafted numerous pretrial motions, as well as successful mandamus petitions to overturn the trial judge’s earlier rulings. We assisted the trial team in identifying, seeking funds for, and hiring the experts needed to address T’s suspected intellectual disability, and ultimately filed a motion to exclude the death penalty in his case because of that disability. I’m happy to say that motion was also successful, and the trial court had little choice but to order that the death penalty be excluded. I have nothing but admiration for the hard work of the appointed lawyers in T’s case, but it is fair to say that this result would not have been achieved if the German consulate had not arranged for the additional pro bono assistance T received. The meager resources the appointed lawyers were provided, and the trial court’s efforts to rush them to trial before the intellectual disability case could be properly developed, would have prevented it from happening.  

Want to learn more about the vital importance of access to effective and adequately resourced counsel, as well as other important issues surrounding the death penalty? Check out the resources listed below, participate in World Day Against The Death Penalty, and join The Advocates and the World Coalition Against the Death Penalty for an informative one-hour panel discussion featuring three long-time US death penalty litigators.  

By Lisa Borden, staff attorney for the International Justice Program at The Advocates for Human Rights. Before joining The Advocates earlier this year, Lisa practiced law in Alabama and worked on civil rights litigation including numerous death penalty cases. Lisa was also a frequent pro bono volunteer for The Advocates while in private practice.

The Advocates for Human Rights is a nonprofit organization dedicated to implementing international human rights standards to promote civil society and reinforce the rule of law. The Advocates represents more than 1000 asylum seekers, victims of trafficking, and immigrants in detention through a network of hundreds of pro bono legal professionals.


Indonesia, the Interahamwe and… ICE: Why Forced Sterilization in Immigration Detention is a Bellwether for Large-Scale Human Rights Abuses

The United States conducts human rights programs and judges other countries’ record of human rights, is part of the world community which consistently condemns crimes against humanity, and has entered wars and supported international missions under the auspices of stopping and preventing such atrocities.  And yet, whistleblower allegations indicate that the United States Government is using forced sterilizations in ICE immigration detention facilities. This, combined with the pattern of practice by ICE and the Trump Administration, raises not only human rights concerns for the individuals subjected to these harms, but questions of the mass human rights catastrophe created by immigration detention and the Administration’s xenophobic approach. 

The complaint alleges improper access to medical care, insufficient protections against COVID-19 and a pattern of practice of forced sterilizations.  The number of women forced to undergo hysterectomies and the reasons given for such is what worried the whistleblower.  She noted, “I’ve had several inmates tell me that they’ve been to see the doctor and they’ve had hysterectomies and they don’t know why they went or why they’re going.”  

Forced sterilization is outlawed as a crime against humanity, war crime, and crime of genocide in international law.  Measures that are intended to prevent births within a group are also prohibited as a crime of genocide under the Convention on the Prevention and Punishment of the Crime of Genocide, which the U.S. agreed to uphold and prosecute violations of. Several treaties, including the Convention against Torture (CAT) and the International Covenant on Civil and Political Rights (ICCPR), which the US has ratified and is legally bound to uphold, prohibit the practices alleged to be carried out in ICE detention. The Committee Against Torture has  stated that women are particularly at risk in contexts of “deprivation of liberty [and] medical treatment, particularly involving reproductive decisions. . . .”

Other treaties protect women against sex-based discrimination so they can “decide freely and responsibly on the number and spacing of their children.” (CEDAW, Art. 16(1)(e)). International law safeguards other related rights, including the right to security of person and protection against arbitrary interference with one’s privacy and family. More broadly, the right to protection of the family by both society and the state is widely recognized (UDHR, Art. 16(3)).

These legal standards have been built in response to the lessons learned by witnessing the abuse of women’s bodies as a tactic of war and oppression. For example, reading about forced sterilizations by ICE should conjure images of the eugenics-driven program in Nazi Germany, which also used forced sterilizations in furtherance of its ethnic cleansing campaign.  These allegations have particularly shocked me as I have witnessed the interplay of violence against women in the context of genocide and serious crimes against humanity. 

I worked in Timor-Leste and on the International Criminal Tribunal for Rwanda (ICTR) after focusing on human rights law and post-conflict recovery in my undergraduate and law school studies.  I have also worked as an immigration lawyer in the U.S. and on human rights programs with the United States government.  The coercive reproductive tactics used by ICE are familiar to me—not directly from my work in immigration, but from my experience in Timor-Leste and with the ICTR.  At the ICTR, I read witness statements and prepared summaries for the judges that spoke about coercive reproductive tactics used by the Interahamwe militia.  This was the first international tribunal to issue a conviction for rape as a means of perpetrating genocide and as a weapon of war, but it was not the first instance of such violations and, clearly, is not the last.  In my work on the island nation of Timor-Leste, I worked with strong Timorese women who explained how the Indonesian military used coercive reproductive tactics and sexual assault during a 30-year occupation, which saw more than 30% of the population murdered and untold numbers, especially women, subjected to other harms.  There, I also listened to Timorese women talk of the rape and sexual assaults perpetrated by Japanese soldiers during WW2.  Time has not healed these scars. 

While we read stories and see movies most often about the bloody murders committed as part of genocidal and tyrannical campaigns, the scars born by women’s bodies and minds are particularly salient.  Sexual violence, including forced sterilization, is a unique kind of evil that subjugates women as weapons of war and oppression.  It turns one of the most basic elements of womanhood—bodies—into a tool to erase one’s race, ethnic group, or nationality.  Reading that forced sterilizations have been carried out against detained women by agents of the government to whom I pay taxes— and for whom I have actually worked on human rights programs in a country that bears the traumas of such tactics— is beyond sickening. 

Yet, the whistleblower complaint comes in the context of other oppressive and xenophobic immigration policies used by the Trump Administration. In 2018, for example, the ACLU brought a successful lawsuit against the Administration for its attempts to force unwanted pregnancies amongst detained immigrant women and girls. Reports of sexual assault and abuse by ICE and CBP officers are also common.  The Administration has proposed and implemented policies restricting asylum protections for vulnerable women. It has never ended its shocking family separation scheme. And, the Administration continues to detain migrants and conduct apprehension operations at the border and within the United States—including right here in Minnesota— despite numerous condemnations about the risks of COVID-19 in facilities. These tactics reflect a general distain for the lives and humanity of people in immigration custody, and migrant women in particular.

Adding to the hypocrisy and shock of these actions is the fact that forced sterilization, if perpetrated in the woman’s home country, would provide a basis for the same Department of Homeland Security which houses ICE to grant asylum in the United States.  U.S. immigration law provides: “a person who has been forced to . . . undergo involuntary sterilization . . . shall be deemed to have been persecuted on account of political opinion.”  There is something distinctly disturbing about the very government that grants refugee protections on the basis of forced sterilization using such tactics against the same populations designed to be protected.  And, given the larger context of xenophobia, white nationalism and racism running through anti-immigrant policies, such actions by ICE raise concerns of a wider scheme that, left unchecked, will become akin to the ethnic cleansing we have condemned and sworn to prevent. 

Not only is this a departure from our standing as a leader against human atrocities, it is a regression to dark periods in the U.S. itself.  The United States has a long history of using such tactics to perpetrate xenophobic schemes against vulnerable populations. 

Without decisive action to investigate, prevent and punish these actions, we risk not only violating human rights but sliding down the path of ethnic cleansing that we have so urgently condemned. Abuse of human bodies, and particularly of women, is a bellwether for oppressive regimes. The Advocates for Human Rights calls on the Administration to immediately cease these tactics and investigate and punish these actors, for Congress to investigate and hold those responsible to account for these crimes against humanity, and for all of us to demand better. 

By Lindsey Greising, Staff Attorney, Research, Education and Advocacy at The Advocates For Human Rights