Enter The Hague

Posted: Jan 16, 2004 12:00 AM

The "courtesy" exercised by the State of Oklahoma in the matter of Osbaldo Torres has enormous implications. The attorney general called it that ? an exercise in courtesy ? putting off the execution of the convicted killer at the behest of the International Court of Justice in The Hague.

What happened, to personalize the story, is that Torres killed a man and his wife, and did so, so to speak, live, in the presence of their children. He was apprehended and tried. The first jury did not reach a conclusion, so he was tried again, and this jury sentenced him to death.

It wasn't until three years after the crime that the Government of Mexico found out about Osbaldo. Vicente Fox, the president of Mexico, has heatedly opposed the execution of Mexicans in the United States, and now intervened. He cited a consular treaty the United States signed on to in 1969. The Vienna treaty holds that any foreigner prosecuted in a signatory country should have access to the consular services of his own country. We didn't do this with Osbaldo, and, regularly, we tend to deal loosely with the treaty's provisions.

This isn't just plain Yankee contumacy. There are 122 foreigners on death row, and they come from 31 countries and have been condemned in 14 states and in the federal system. About half of these are from Mexico. Granted, we should have told the nearest Mexican consul about Torres earlier than we did, but it is not suggested that his trials were defective. The common argument that a foreigner needs special help because of his incapacity to understand the language is certainly not here relevant, inasmuch as Torres has lived in America since he was five years old.

The proposition that the lateness in apprising the Mexican consul of the proceedings is sufficient reason to invalidate them is anarchical in its implications. The New York Times reports that Catherine W. Brown of the State Department told the international court last month that "asking more of the United States was unreasonable. 'As a practical matter, a country the size of the United States would never have accepted an obligation that would have put the ordinary conduct of criminal investigations and public safety at jeopardy.'" Ms. Brown was saying that the Vienna Convention on Consular Relations, if it had the effect of freezing prosecutions, could immobilize justice. Arguing in The Hague, U.S. lawyers said that Mexico's demands were "an unjustified, unwise, and ultimately unacceptable intrusion into the United States criminal justice system."

There is a further point to consider. We are bound, by the Constitution, to give preeminence to treaties. However, the passion underlying the Torres case really has nothing to do with procedural protocols; it is a question of life and death. The Mexican government abolished capital punishment some time before it apprehended, in 1940, Trotsky's assassin, who was free 20 years later. It is a tendency of countries that have abolished capital punishment to think themselves wardens of a moral afflatus that entitles them to treat with contempt those who still believe in the ultimate penalty. What can be thought of as moral encirclement is in progress. The International Court at The Hague is the judicial enforcer of a pretty extensive list of human rights, which includes the right of children not to be spanked by their mother.

The act of courtesy by the State of Oklahoma has the very direct effect of putting off the execution of Osbaldo Torres and of American justice. It has the further effect, psychologically, of superordinating the international court's idea of justice over that of Americans, who wish to make their own laws, which call, this time around, for the execution of Osbaldo Torres.