America Right or Wrong

It was a good few days for the Vienna Convention on Consular Relations. It spends much of its time in relative obscurity but in the first two weeks of July it found itself in the news on two different occasions. Heady stuff even for a Convention. Its second appearance came about because of events in Syria on July 11 and its first appearance because of events in Texas four days earlier.

Those who follow such things are well aware that Bashar al-Assad, the Syrian trained ophthalmologist who received subspecialty training in that field at the Western Eye Hospital in London is now running Syria. Notwithstanding his excellent academic and medical credentials he has proved himself more adept at killing his citizens than addressing their concerns about how the country was run by his father, Hafez al-Assad and is now being run by him. Older Syrians remember 1982. That was the year of a revolt in Hama by the Sunni Muslim community against the rule of Hafez al-Assad. Hafez al-Assad sent tanks in to crush those opposed to his rule and killed many thousand of Hama’s citizens. The slaughter enhanced Hafez’s control if not his popularity. He ruled until he died in 2000 and was succeeded by his son who, following in his father’s footsteps has been murdering Syrian citizens who protest his rule. In June Bashar’s forces killed 40 people and more were killed when the army tried to return to Hama in early July. During 2011 more than a thousand Syrians have been slaughtered by the Syrian government forces trying to put down those demanding government reform.

On July 8, U.S. Ambassador, Robert Ford, travelled to Hama, a town where demonstrations have been on going for many weeks. Mr. Ford said he went to Hama to support the people’s right to peacefully demonstrate. After his speech he sharply criticized the government crackdown on its citizens. The Syrian government and its supporters were upset by his comments and on July 11, hundreds of government supporters attacked the U.S. Embassy in Damascus, spray-painting walls with obscenities, breaking windows and destroying security cameras. The United States was outraged.

State Department spokeswoman, Victoria Nuland, said that Syria’s charge d’affaires who was being summoned to the State Department would be told that the Syrian government “has not lived up to its obligations under the Vienna Convention to protect diplomatic facilities, and it’s absolutely outrageous.” She was referring to Article 31 of the Convention, which states “Consular premises shall be inviolable to the extent provided in this article.” Paragraph 3 of Article 31 says the state in which the facility is located is “under a special duty to take all appropriate steps to protect the consular premises against any intrusion or damage and to prevent any disturbance of the peace of the consular post or impairment of its dignity.” Permitting the embassy to be vandalized was a violation of Syria’s obligations under the Convention and the United States was justified in criticizing Syria for its inattention to the Convention’s requirement. It was just that the timing was a touch awkward.

Ms. Nuland’s comments were made four days after the U.S. Supreme Court said it was no big deal for the United States to ignore a different provision of the Convention and following its decision, Texas executed a criminal whose rights under that Convention had been violated. The criminal was Humberto Leal Garcia Jr. who was convicted of a brutal rape and murder that took place some years earlier. The provision that the Court ruled on is found in Article 36 of the Convention.

Article 36 provides that any foreign national arrested shall be informed, without delay, of “his rights” to have his consular officials notified of his arrest. Paragraph 2 of Article 36 says the rights granted a person arrested must be exercised in conformity with the laws of the country in which the national is confined but the laws of that country must give full effect to the provisions of the treaty.

Humberto’s lawyers tried to get the U.S. Supreme Court to delay his execution because of the fact that he had not been advised of his right to contact his consular officers. Five justices were unimpressed with Humberto’s appeal and permitted his execution to proceed.

Justice Breyer, writing for the dissenters, observed that the Vienna Convention had been signed and ratified by the United States. The failure of Texas authorities to notify him of his Vienna Convention rights was a violation of the United States’ obligations under the Convention. In his dissent, Justice Breyer quotes approvingly from the Solicitor General’s brief in which the Solicitor General said that Humberto’s execution “would cause irreparable harm” to “foreign-policy interests of the highest order.” The majority, of course, was not concerned with foreign policy considerations.

Confronted with complaints that it has violated its obligations under the Vienna Convention I am confident that Syria will be too polite to criticize the Court’s decision in Humberto’s case although it may express its puzzlement as to why, to use Ms. Nuland’s words, it’s outrageous for Syria to ignore the Convention’s mandates, but not for the United States to do so.

Christopher Brauchli is an attorney living in Boulder, Colorado. He can be e-mailed at brauchli.56@post.harvard.edu.


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