International Law

Interpol Announces Reform on Red Notice Process With Refugees

On May19th, Interpol announced major reforms in its process of handling Red Notices as applied to refugees. At the meeting of the Parliamentary Assembly for the Council of Europe or Pace, Interpol announced significant reforms for purposes of confirmed refugees. These reforms were largely due to the campaign by the European human rights group FAIR to expose the inequalities and abuses in the current system.

FAIR summarized the reforms on its
website as follows:

We need written confirmation of the policy, but this is what we learned: INTERPOL has notified the policy to the National Central Bureaus, the national police contact points for INTERPOL, but has not disseminated it further. In substance, the policy is that INTERPOL will remove a Red Notice if it can verify that the person has been recognised as refugee under the 1951 Convention. It does not matter whether the criminal prosecution in question was the ground for the asylum or not; the grant of asylum suffices. INTERPOL will not reveal to the country behind the Red Notice which country granted asylum, to address confidentiality concerns. There are, however, important caveats: (A) INTERPOL must be able to verify the asylum grant, which asylum-granting countries may be slow to do for confidentiality reasons, and (B) the country issuing the Red Notice can revert to INTERPOL with further material asking it to revisit the decision.

This point was also covered in a prior Interpol resolution,
AGN/53/RES/7 in 1984 and before that in AGN/20/RES/11 in 1951. The problem is that political offenses are difficult to define and nation states almost always artfully plead these offenses. Congratulations to FAIR.

International Court Issues Red Notice for Qadaffi

The International Criminal Court at the Hague has issued a Red Notice for the arrest of Prime Minister Qadaffi. According to the Israeli paper Arutz Sheva, the notice was also issued for his son (and presumptive heir)

Seif al-Islam. Also being sought on charges of war crimes is Libya's former intelligence chief, and Qaddafi's son-in-law, Abdullah Al-Senussi

Amanda Knox: "Justice Served" or "The Italian Job?"

Amanda Knox, the Seattle college student, was convicted of murdering her British roommate in an Italian courtroom. This case doesn’t begin to describe the word “high profile.” The media circus surrounding this prosecution makes the first O.J. Simpson trial seem tame in comparison. The question in my mind is whether the Italy hybrid jury (six laypersons plus two judges) reached the verdict correct. As an attorney who litigates many wrongful conviction cases, I have serious doubts about this case. Read More...

Gitmo Prisoners Seek Sanctions

According to SCOTUS blog, lawyers for Guantanamo Bay detainees on Tuesday asked a U.S. District judge to impose severe sanctions for delays that the attorneys said were of the government’s own making — delays that are already slowing down court review of military detentions. Even as that maneuver unfolded, the government asked another District judge to give it more time and new filing deadlines in other detainee cases — a move likely to meet the same resistance.

7th Circuit Says Vienna Convention Argument is Still Valid

Article 36 of the Vienna Convention on Consular Relations requires the United States to inform a foreign national of his/her right to consular access (to talk to his home country’s embassy or consulate) upon arrest. Vienna Convention on Consular Relations, art. 36, April 24, 1962, 21 U.S.T. 77, 596 U.N.T.S. 261. In Sanchez-Lllamas v. Oregon, 548 U.S. 331, 336 (2006), the United States Supreme Court ruled that a violation of Article 36 did not require suppression of evidence. See also Medellin v. Texas, 552 U.S. __, 128 S. Ct. 1346, 1355, 170 L.Ed.2d (2008). Despite repeated orders from the International Court of Justice, Texas executed two suspects earlier this year where the evidence was clear that the convictions were based on confessions obtained in violation of the suspects rights to diplomatic access. Based on Sanchez-Llamas and these developments, many member of the bar (including this one) believed that this issue was not going to prevail in any domestic court.

On September 8, 2008, a Seventh Circuit panel ruled to the contrary in a published decision. In Osagadie v United States, Seventh Circuit No. 07-113, the Court recognized the continuing viability of the Article 36 issue. The Court first recognized the importance of Article 36:

The adoption of the Vienna Convention by the international community was “the single most important event in the entire history of the consular institution.” LUKE T. LEE, CONSULAR LAW AND PRACTICE 26 (2d ed. 1991). When the United States ratified the treaty in 1969, it became the “supreme Law of the Land.” U.S. CONST. art. VI, cl. 2.



The Court then went onto stress the importance of the treaty:

Foreign nationals who are detained within the United States find themselves in a very vulnerable position. Separated from their families and far from their homelands, they suddenly find themselves swept into a foreign legal system. Language barriers, cultural barriers, lack of resources, isolation and unfamiliarity with local law create “an aura of chaos” around the foreign detainees, which can lead them to make serious legal missteps. Linda A. Malone, From Breard to Atkins to Malvo: Legal Incompetency and Human Rights Norms on the Fringes of the Death Penalty, 13 WM. & MARY BILL RTS. J. 363, 392-93 (2004). In these situations, the consulate can serve as a “cultural bridge” between the foreign detainee and the legal machinery of the receiving state. William J. Aceves, Murphy v. Netherland, 92 AM. J. INT’L L. 87, 89-90 (1998).


The Court went onto note while there is some overlap with the function of a lawyer, the overlap is not complete. There are somethings that an embassy or a consulate are uniquely qualified to do:

Of course, we assume that lawyers here are equipped to deal with language barriers; we also assume they are familiar with the law. Sometimes, however, the assistance of an attorney cannot entirely replace the unique assistance that can be provided by the consulate. The consulate can provide not only an explanation of the receiving state’s legal system but an explanation of how that system differs from the sending state’s system. See Linda Jane Springrose, Note, Strangers in a Strange Land: The Rights of Non-Citizens Under Article 36 of the Vienna Convention on Consular Relations, 14 GEO. IMMIGR. L. J. 185, 195 (1999). This assistance can be invaluable because cultural misunderstandings can lead a detainee to make serious legal mistakes, particularly where a detainee’s cultural background informs the way he interacts with law enforcement officials and judges.



The Court noted that Sanchez-Llamas was a good example of the help that a consulate can provide:

Sanchez-Llamas 2 provides a striking example. In Sanchez-Llamas, Bustillo’s defense was that another man, “Sirena,” had committed the crime. Sirena, however, had fled back to Honduras; he was nowhere to be found. “Bustillo did not learn of his right to contact the Honduran consulate until after conviction, at which time the consulate located additional evidence supporting this theory, including a critical taped confession by Sirena.”



Thus far, the Court’s opinion matches the position articulated by dissents and the International Court of Justice. Now here is where the decision gets interesting. The Court stated that Sanchez-Llamas stated that the Government was required to provide a remedy for a violation and the remedy was to internalize this violation into our domestic law. While violation of a Vienna Convention Claim would not be a self-standing violation of the Constitution or federal law requiring suppression of a confession, it could be a Fifth Amendment or a Sixth Amendment violation.

[

W]e must address the Government’s argument that Sanchez-Llamas forecloses foreign nationals from bringing ineffective assistance of counsel claims based on Article 36 violations. A close reading of Sanchez-Llamas suggests otherwise. While the Court rejected the argument that the treaty itself required suppression as a remedy, the Court stressed that there were other means of “vindicating Vienna Convention rights.” Sanchez-Llamas, 548 U.S. at 350, 126 S. Ct. 2669. Specifically, the Court stated that a defendant could raise an Article 36 violation as a part of a broader constitutional challenge, such as a challenge to the voluntariness of a statement under the Fifth Amendment. Id., 126 S. Ct. 2669; see also United States v. Ortiz, 315 F.3d 873, 886 (8th Cir. 2002). More importantly, the Court suggested that the Sixth Amendment could also serve as a vehicle for vindicating Article 36 rights. In a telling passage, the Court noted that an attorney’s failure to raise an Article 36 violation would not be “cause” for overriding a state’s procedural default rules, unless “the attorney’s overall representation falls below what is required by the Sixth Amendment.” Sanchez-Llamas, 548 U.S. at 357 & n.6, 126 S. Ct. 2669 (emphasis added).


Osagiede is a testament to the value of persistence. Mr. Osagiede prevailed on an argument that most lawyers would have rejected.