Term Paper on "International Criminal Law"

Term Paper 6 pages (1557 words) Sources: 1+

[EXCERPT] . . . .

International Crime Law

The objective of this work is to Interpret Article 41 of the Vienna Convention on Consular Relations as it relates to the United States and other countries. Included will be a brief history of Article 41 of the VCCR and the courts ruling prior to Article 41. Also inclusive will be coverage of issues that have arisen from Article 41 with case examples. Lastly an analysis of the future of Article 41 will be performed by the author of this work as well. The question of why the U.S. has certain sentiments concerning these laws will be explored.

The States Parties to the present convention states that historically even since days considered ancient, consular relations have been the norm between peoples of different nations. It states further that the United Nations Conference on Diplomatic Intercourse and Immunities, by signature adopted the Vienna Convention on Diplomatic Relations in the belief that in spite of the differentiations of constitutional and social structural factors that an international convention relating to consular relations, privileges and immunities would assist in the development of positive relations among and between nations of the world.

The following is precisely and specifically stated in Article 41 of the VCCR as to the "Personal Inviolability of Consular Officers":

1. Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.

2. Except in the case specified in paragraph 1 of this Article, consular to officers shall not be committed to prison or liable to any other form of restriction on their personal freedom save in execution of a judicial decision of final effect.

3. If criminal proceedings are instituted against a consular officer, he must appear before the competent authorities. Nevertheless, the proceedings shall be conducted with the respect due to him by reason of his official position and, except in the case specified in paragraph 1 of this Article, in a manner which will hamper the exercise of consular functions as little as possible. When, in the circumstances mentioned in paragraph 1 of this Article, it has become necessary to detain a consular officer, the proceedings against him shall be instituted with the minimum of delay.

Interpretation of Article 41

Part One

Article 41 No. 1 has been laid down by the United Nations in relation to the proper and legal arresting procedure of consular officials should the need arise for such arrest under International law. Clearly from the statement of Article 41 No. 1 it may be deduced that only dire events would results in even the initial arrest of a consular officer and that further, in this even it is clear that the consular office cannot be held until time for trial unless the competent judicial authority authorizes such arrest or detention.

The Vienna Convention on Consular Relations (VCCR) has been ratified under Article 6 of the U.S. Constitution as part of the "Supreme Law of the Land." The Consul is the official representative of a foreign country assigned the responsibility for matters in the location of the occurrence requiring notification thereof. Therefore, it may be understood that 'consular relations' refer to the intricate dealings in negotiations among those who are best at handling such charged arenas in international relations.

According to Warren (2005) "Bilateral consular treaties entered into by the U.S.A. typically require mandatory notification of the consulate upon the national's arrest, irrespective of the detainee's wishes." Further pointed out by Warren (2005) is the adoption of federal regulations by the U.S. that have as a requirement the notification of consular rights and consular access when foreign nationals are arrested by officers of the Department of Justice or the Immigration and Naturalization Service. 28 C.F.R. Section 50.5(a); 8 C.F.R. Section 236.1(e). INS Regulation 8 C.F.R. Section 236.1(e) part 236: Apprehension and Detention of Inadmissible and Deportable Aliens, Removal of Aliens Ordered Removed states that each alien detained shall receive the information that they may communicate with the consular or diplomatic officer. Article 41 is purposed towards protection of the individual in the interim of the case, or in the 'in-between' during the procedural phases of the court system.

Interpretation of Article 41

Part Two

The Consular officer him/herself must not be detained and have their personal rights removed pending trial. LaGrand Case: (Germany v. United States of America) Summary of Court's Holding ICJ June 27, 2001. In the LaGrand Case (2001) Nations & States: International Justice- UN Reform Summary of Court's Holding, ICJ 2001, June 27 the findings of the Court was that the U.S. had "breached its obligations to Germany and to the LaGrand brothers under the Vienna Convention on Consular Relations." (ICJ, 2001) The Case: "Germany v. United States of America." The court's judgment is final which binds the Parties with no venue of appeals available found that "Karl and Walter LaGrand without delay following their arrest of their rights under Article 36, paragraph 1 (b) of the Vienna Convention on Consular Relations, and thereby depriving Germany of the possibility, in a timely fashion to render the assistance provided for by the Convention to the individuals concerned. The United States breached its obligations to Germany and to the LaGrand brothers under article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations, and thereby depriving Germany of the possibility, in a timely fashion to render the assistance provided for by the Convention to the individuals concerned..."

Priviliges and immunities have long been granted to those in certain roles such as the diplomatic officer and consular officers. The priviliges and immunities are granted through the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations. There is much differentiation in the priviliges and immunities granted by each of these conventions. The immunity possessed by the consular officers is a "limited immunity" from jurisdiction of criminal cases. Consular officers may give evidence, subject, however to specific limitations. (Davidson, 2005)

Consular officers also operate at sea as the national of a contracting party, who was a member of the crew on the vessel of another contracting party.' In the Military and Paramilitary Activities in and against Nicaragua (1984) characteristics of the stage was defined in provisional measures, but resolution appropriateness will be given consideration at the phase of preliminary objections. The Swiss government Co-Agent made as a suggestion that the Court would prefer not to make a judgment upon so complex and delicate a questions as the validity of the American reservation.

Provisions of protection for the purpose of protection of the rights of each party is that which Article 41 addresses. One example is the Bosnian Genocide case in which the court issued "provisional measures" inclusive of handing down an order to the Government of Yugoslavia to exhaust all possible efforts to prevent the crime of genocide being committed.

Breard v. Greene (U.S. 1998)

Breard was arrested and convicted (1992-1993) for murder and attempted rape. In 1996 Breard filed a writ for habeas corpus relating to the Virginia police having failed to inform him of his rights under the Vienna Convention however, the writ was denied by the federal court on the basis of 'procedural default' in that he had failed to bring this claim at trial prejudicing the court against the claim.

Paraguay v. United States of America (ICJ 1998)

In the case Paraguay v. United States of America (ICJ 1998) Paraguay requested that the International Court of Justice restore to the status quo ante- because the execution of Breard "would render it impossible for the ICJ to order the relief that Paraguay seeks and thus cause irreparable harm to the rights it claims." It was the finding of the International Court of Justice that "the circumstances require it to… READ MORE

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