A.

Introduction
1 LaGrand (Germany v United States of America) (hereafter ‘LaGrand Case’) may arguably
have led to one of the most important judgments of the International Court of Justice (ICJ) in
recent decades. Not only did the ICJ state, for the first time in the history of its existence, the
binding nature of provisional measures issued under Art. 41 ICJ Statute, but its judgment of 27
June 2001 also confirmed that international treaties—other than human rights instruments—
may confer enforceable rights on individuals (Individuals in International Law).
The LaGrand judgment further gained a certain prominence in the law of State responsibility—
the codification of which was soon to be completed by the International Law Commission
(ILC) when the judgment was released—for the judgment’s rather progressive approach
concerning the means of reparation to which Germany was entitled.

B. Factual Background
2 In 1984 two German nationals living in the United States, the brothers Karl and Walter
LaGrand, were both convicted of murder in the first degree, attempted robbery, and two counts
of kidnapping, and were sentenced to death by the Superior Court of Pima County, Arizona. The
LaGrand brothers challenged their conviction and sentence before the Supreme Court of
Arizona and the US Supreme Court; the latter denied their applications in exercise of its
discretion. A second procedure under the law of US criminal procedure, the post-conviction
relief proceedings, was equally unsuccessful and rejected by the US Supreme Court in 1991.

3 At no time were the LaGrand brothers informed by the competent US authorities of their
rights under Art. 36 (1) (b) Vienna Convention on Consular Relations (1963) (‘VCCR’) to
communicate with their consular post. Nor had Germany’s consular post been informed of the
arrest, conviction, and sentencing of two of their nationals. At no point in these two sets of
proceedings had the LaGrand brothers raised the issue of the lack of consular assistance, or
that they had the right to be so informed ‘without delay’ (Art. 36 (1) (b) VCCR). The US
emphasized that the LaGrand brothers ‘both had the demeanor and speech of Americans rather
than Germans, that neither was known to have spoken German, and that they appeared in all
respects to be native citizens of the United States’ (LaGrand [Judgment] para. 13). Regarding
the issue of the LaGrand brothers’ nationality, it has been noted that the ICJ had not requested
any ‘genuine link’ on which to base the right to diplomatic protection, as it had in the
famous Nottebohm Case judgment in 1955. The ICJ also did not make any finding regarding the
time at which the relevant authorities became aware of the LaGrands’ foreign nationality but the
US acknowledged that their relevant authorities might have become aware ‘by late 1984, or
even mid-1983 or earlier, but in any event not at the time of their arrest in 1982’
(LaGrand [Judgment] para. 16). The US actually acknowledged that there was no error of fact
about this point, and that by not informing the LaGrands about their consular rights the US had
breached the VCCR.

4 It was only in June 1992 that the German authorities were contacted by the LaGrand brothers
themselves who had learned about their rights from a fellow inmate. Between 1992 and 1999
the German authorities had several meetings with the LaGrands and claimed that they helped
the LaGrands’ attorneys to investigate the LaGrands’ childhood in Germany in order to prepare
their defence for further proceedings before the federal courts.

5 The claims made in the third set of legal proceedings, the filing of writs of habeas corpus,
were also rejected. One claim raised was the lack of information concerning the right to
communicate with consular authorities; but was rejected on the basis of the rule of ‘procedural
default’ which prevents defendants in criminal proceedings to raise new issues in federal
habeas corpus proceedings unless the defendant shows ‘cause and prejudice’. As the US
explained: ‘Cause is an external impediment that prevents the defendant from raising a claim
and prejudice must be obvious on its face’ (LaGrand [Judgment] para. 23).

6 After final dismissal of the habeas corpus claim, as well as the petition for clemency of the
LaGrands and unsuccessful attempts of German politicians to have the executions suspended,
Karl LaGrand was executed on 24 February 1999. The execution of Walter LaGrand was
scheduled for 3 March 1999.

C. History of the Proceedings before the International Court of Justice

7 On the evening of 2 March 1999, 27 hours before Walter LaGrand’s scheduled execution,
Germany filed an application with the Registry of the ICJ instituting proceedings against the US
and accompanied by a request for provisional measures (Interim [Provisional] Measures of
Protection). Germany tried to justify filing the case at such a late date by stating that it had only
become fully aware of the facts of the case before 24 February 1999. The measures included, in
particular, a stay of the execution of Walter LaGrand. Referring to the ‘extreme urgency’ of the
situation and to the powers conferred on it under the Statute and the Rules of Court to order
provisional measures even proprio motu in order to prevent irreparable damage, the ICJ granted
the request for provisional measures without holding hearings in the case, by its order of 3
March 1999 (see LaGrand [Germany v United States of America] [Provisional Measures]).

8 Germany filed proceedings before the US Supreme Court against the US and the
Government of Arizona, seeking the enforcement of the Court’s order. The motion of Germany
was dismissed and Walter LaGrand was executed on the same day.

1. Judgment of 27 June 2001

9 Germany based the jurisdiction of the Court solely on Art. 1 Optional Protocol to the Vienna
Convention on Consular Relations concerning the Compulsory Settlement of Disputes (‘Optional
Protocol’) claiming that ‘the present case raise[s] questions of the interpretation and application
of the Vienna Convention on Consular Relations and of the legal consequences arising from the
non-observance on the part of the United States of certain of its provisions vis-à-vis Germany
and two of its nationals’ (LaGrand [Judgment] para. 36). Germany in particular alleged that the
failure of the US to inform the LaGrand brothers of their right to contact the German authorities
prevented Germany from exercising its rights under Art. 36 (1) (a) and (c) VCCR and violated
the various rights conferred upon the sending State vis-à-vis its nationals in prison, custody, or
detention as provided for in Art. 36 (1) (b) VCCR. Germany further alleged that failure to inform
the LaGrand brothers of their right also violated individual rights conferred on the detainees by
the second sentence of Art. 36 (1) (a) and by Art. 36 (1) (b) VCCR. Germany raised this claim
as a matter of diplomatic protection on behalf of its two nationals.

10 The US acknowledged that there had been a breach of its obligations and that this had
given rise to a dispute between the two States. The US contended that it did not dispute that the
Court had jurisdiction to hear the case but held that Germany’s claims were based on the
general law of diplomatic protection rather than on the interpretation and application of the
convention and were therefore not within the Court’s jurisdiction (International Courts and
Tribunals, Jurisdiction and Admissibility of Inter-State Applications).

11 The Court found that all of Germany’s claims regarding the violation of Art. 36 VCCR were
related to the interpretation and application of the convention, including the question of whether
or not Art. 36 VCCR created individual rights and whether Germany could claim those rights on
behalf of its nationals, regardless of the fact that the general law of diplomatic protection is a
concept of customary international law.

12 The US challenged the admissibility of Germany’s submission concerning the binding nature
of the Court’s order of 3 March 1999, but the Court held that where it had jurisdiction to decide a
case, it also had jurisdiction to deal with submissions requesting it to determine that an order
indicating measures had not been complied with.

13 Regarding Germany’s fourth submission on reparation, the US challenged the Court’s

jurisdiction as far as the claim for guarantees and assurances of non-repetition was concerned,
which in its eyes was ‘conceptually distinct’ (LaGrand [Judgment] para. 46; Reparations). The
Court however did not follow the respondent, making no distinction between the concept of
assurances of non-repetition and the concept of reparation, but held that ‘where jurisdiction
exists over a dispute on a particular matter, no separate basis for jurisdiction is required by the
Court to consider the remedies’ (ibid para. 48). By using the term ‘remedies’, it might be noted
that the Court may first have sought to avoid the term ‘reparation’, and secondly, that it slightly
modified the wording of the jurisprudence in the case Factory at Chorzów of the Permanent
Court of International Justice (‘PCIJ’) (Factory at Chorzów [Germany v Poland] [Judgment] PCIJ
Series A No 9, at 23). In fact, the Factory at Chorzów judgment cited by the Court in support of
its finding actually referred to ‘reparations’, not to ‘remedies’.

14 Apart from issues of jurisdiction of the Court, the respondent also challenged the
admissibility of Germany’s claims on various grounds. Most relevant could have been the late
filing of the case, but also the admissibility of Germany’s claim for diplomatic protection on the
grounds of non-exhaustion of local remedies and on the ground that Germany’s practice in the
field of consular notification was not different from its own practice (see also Local Remedies,
Exhaustion of). All these claims were easily rejected by the Court.

15 Turning to the four submissions of Germany, the Court first had to examine the question of
whether the US had violated the rights of the LaGrand brothers as well as the rights of Germany
under Article 36 (1) (a) VCCR by not informing the LaGrand brothers that they might contact the
consular post of Germany. The respondent did not deny that the rights of Germany under Art.
36 (1) (b) VCCR had been violated.

2. Diplomatic Protection and Individual Rights

16 The Court noted that Germany had been prevented from exercising its rights of consular
assistance due to the failure of the respondent to provide the requisite consular notification
without delay, between 1982 and 1992 (Consular Functions). The applicant argued that the
conduct of the US authorities also entailed a violation of individual rights under Art. 36 (1) (b)
VCCR, which speaks of the ‘rights’ of the ‘individual concerned’ to be given access to the
consulate of its homeland. This interpretation was strongly opposed by the US emphasizing the
fact that the VCCR and Art. 36 aimed at ‘facilitating the exercise of consular functions’
(LaGrand [Judgment] para. 76) between States even though these rights might benefit
individuals.

17 The Court recognized that the VCCR not only provided for the rights of States with regard to
consular relations but also, that its Art. 36 (1) (b) ‘creates individual rights, which, by virtue
of Article I of the Optional Protocol, may be invoked in this Court by the national State of the
detained person’ (ibid at para. 77). The Court based this finding solely on the text of the
provisions set out in Art. 36 VCCR and found that ‘the clarity of these provisions, viewed in their
context, admits of no doubt’ (ibid). Having made this determination, the Court did not deem it
necessary to examine whether those rights were, as argued by Germany, also part of the
international standard of due process and therefore to be treated as human rights.

18 The second submission of Germany claimed that the application of the doctrine of
procedural default which barred the LaGrands from raising the issue of the lack of consular
notification, as well as the execution of the LaGrands, violated the legal obligations of the US
under Art. 36 (2) VCCR ‘to ensure that its municipal laws and regulations … enable full effect to
be given to the purposes for which the rights accorded under this article are intended’.

19 In this instance, the Court found that the procedural default rule, as such, did not in itself
violate Art. 36 VCCR, but that its application in the case of the LaGrands, when it actually
prevented the individuals to challenge a conviction or sentence, had the effect of ultimately
violating Art. 36 (2) VCCR, by preventing ‘full effect’ to the purposes for which the rights were
intended (LaGrand [Judgment] para. 91).

3. The Binding Character of Provisional Measures

20 Germany’s third submission was related to the failure of the US ‘to take all measures at its
disposal to ensure that Walter LaGrand was not executed pending final decision of the Court’
(LaGrand [Judgment] para. 11). In this failure, Germany saw a violation of the order of the Court
indicating provisional measures, while the US, relying on State practice and the drafting history
of Art. 41 ICJ Statute, considered that those orders could not be binding and that in any event,
considering the tardiness of Germany’s request, it could not be found to have violated the
Court’s order. This submission inevitably raised the question of determination of the binding or
indicative nature of provisional measures under Art. 41 ICJ Statute, a question that until then
had neither been resolved by the principal judicial organ of the United Nations, nor by the PCIJ,
which had an identical provision in its statute.

21 After having examined the unclear wording of the English and French versions of the text,
and by considering the object and purpose of the statute as well as the principle according to
which ‘parties to a case must abstain from any measure capable of exercising a prejudicial
effect in regard to the execution of the decision to be given’ (LaGrand [Judgment] para. 103),
the Court came to the conclusion that the order under Art. 41 ICJ Statute had binding character.
The Court also found that by simply transmitting the order to the Governor of Arizona, the US
did ‘certainly less than it could … even considering the short time available’
(LaGrand [Judgment] para. 112). Also in view of the conduct of other US organs, the Court
concluded that the US had not complied with the order of 3 March 1999. The Court furthermore
held that, had Germany made a request for indemnification, it would have taken into
consideration the time-factor, as well as the uncertainty of the binding character of the Court’s
orders under Art. 41 ICJ Statute.

4. Reparation/Remedies
22 Finally, the Court turned to the fourth submission of Germany, requesting that the US shall
provide Germany an assurance that it would not repeat its unlawful acts. Germany wished to
obtain assurances that for criminal convictions impaired by a violation of the rights under Art. 36
VCCR, the US would provide effective review of the conviction and subsequent remedies, by
the means of its own choosing.
23 The US emphasized that it was making all efforts to inform the competent authorities of the
obligations under the VCCR, for instance through special training and brochures, and that it had
already apologized to Germany for the violation of Art. 36 VCCR. In this instance, the Court
considered that apologies were insufficient and that in the case of severe penalties, it would be
incumbent upon the US, by means of its own choice, to allow the review and reconsideration of
the conviction and sentence of German nationals, by taking into account the violation of the
rights set forth in the VCCR. The formulation of this last finding of the Court was probably
intentionally flexible, but left several questions open for interpretation.

24 The President of the Court appended a declaration to the Court’s judgment, clarifying that
the limitation of the review and reconsideration of German nationals could by no means be
interpreted in a way that review and reconsideration should not be offered to nationals of other
countries in the same situation. Ultimately it might have encouraged the Mexican government
one and a half years later to seek review and reconsideration for its nationals on death row, who
had allegedly been sentenced in violation of the VCCR.

25 Judges Oda and Buergenthal joined dissenting opinions to the judgment. Judge Oda who
voted against all but two subparagraphs of the operative part, criticized several points in the
judgment, notably the findings of the Court on the existence of a dispute, on the recognition of
rights of individuals flowing from Art. 36 (1) (b) VCCR, on the binding nature of provisional
measures under Art. 41 ICJ Statute and the obligation for the US to grant review and
reconsideration in future similar cases, an obligation, according to Judge Oda, going far beyond
the question of an alleged violation of the VCCR by the US. Judge Oda also indicated that, in
retrospect, he would vote against the indication of provisional measures.

26 Judge Buergenthal’s dissenting opinion focused on the third submission of Germany,

namely the allegation that the US had failed to take all measures at its disposal to comply with
the Court’s order of 3 March 1999. In Judge Buergenthal’s view that submission should have
been declared inadmissible on the basis of unjustified late filing of the request for indication of
provisional measures. Germany’s lack of diligence, amounting to procedural misconduct,
according to Judge Buergenthal, deprived the US of an opportunity to be heard on the request.

27 Vice President Shi, Judge Koroma, and Judge Parra-Aranguren joined separate opinions to
the judgment. According to the Vice President, the interpretation of the Court of Art. 36 (1) (b)
VCCR recognizing rights to individuals is not supported by the travaux préparatoires of that
article.

28 Judge Koroma’s separate opinion focused on the rule of procedural default and its
application as well as on the binding nature of orders indicating provisional measures which in
general cannot be in doubt, given their purpose and object. Finally, Judge Koroma agreed with
the President’s declaration, pointing out that everyone, irrespective of nationality, is entitled to
the benefit of fundamental judicial guarantees including the right to appeal against or obtain
review of a conviction and sentence.

29 Judge Parra-Aranguren voted against para. 128 (1) (2) (a) of the judgment because in his
view, there was no dispute between the parties as to the breach by the US of Art. 36 (1) (b)
VCCR. Since the existence of a dispute is an ‘essentially preliminary’ question (LaGrand
[Separate Opinion of Judge Parra-Aranguren] para. 4), in his opinion the Court did not have
jurisdiction on this point under Art. 1 Optional Protocol. Furthermore Judge Parra-Aranguren
also voted against the Court’s findings on the violation of the Court’s order (para. 128 (1), (2)
(a), (2) (c), and (5) of the judgment). He emphasized that the claim made by Germany in its third
submission did not arise out of the interpretation of the VCCR but of Art. 41 ICJ Statute and
hence he concluded that the Court did not have jurisdiction to decide this matter on the basis of
the Optional Protocol.

D. Assessment
1. Provisional Measures of the ICJ are Binding
30 Much has been written about the binding nature of provisional measures under Art. 41 ICJ
Statute. Before the LaGrand judgment put an end to the apparent ambiguity of the wording of
Art. 41 ICJ Statute, the doctrine was divided on the topic. The ICJ itself had widely contributed
to the uncertainty by its judgment on the merits in the famous Military and Paramilitary Activities
in and against Nicaragua Case (Nicaragua v United States of America) of 1986 where it stated
that ‘it is incumbent on each party to take the Court’s indication seriously into account, and not
to direct its conduct solely by reference to what it believes to be its rights’ ([1986] ICJ Rep 14,
para. 289).

31 Therefore, the long-awaited effet utile interpretation that the Court has given to Art. 41 ICJ
Statute has settled the issue in an unambiguous way. It has been speculated that this issue was
settled by the ICJ because of the specific context of the case and it has also been assumed that
the ICJ wanted, at this point in time, to equate its practice to that of the International Tribunal for
the Law of the Sea (ITLOS) who had not had the binding nature of its orders questioned (see
Frowein at 60).

32 Since the LaGrand Case, the Court has been called upon to reaffirm the binding character
of its orders under Art. 41 ICJ Statute. According to recent decisions of the Court, it is now—if it
ever was—beyond doubt that the orders of the Court are binding since the entry into force of its
Statute, not just since the findings in the LaGrand Case. In that sense, the binding character has
only been confirmed by the judgment and does not have any retroactive effect, even though the
Court has recalled the binding nature of its orders for orders issued before 2001 (see
also: Armed Activities on the Territory of the Congo [Democratic Republic of the Congo v
Uganda] [2005] ICJ Rep 168; Application of the Convention on the Prevention and Punishment
of the Crime of Genocide [Bosnia and Herzegovina v Serbia and Montenegro]
[Judgment] [2007] ICJ Report 43).

2. Consular Relations, Diplomatic Protection, and Individual Rights

33 The LaGrand Case has also gained some prominence for having raised the issue of
individual rights flowing from the VCCR. The majority of the Court found the wording of Art. 36
(1) (b) to be a sufficient basis for that finding, while Vice President Shi took into consideration
the object and purpose of the treaty, ie to regulate consular relations between States, as well as
the travaux préparatoires of the convention, and he came to the conclusion that ‘no creation of
any individual rights independent of rights of States was envisaged by the Conference’
(LaGrand [Separate Opinion of Vice-President Shi] para. 15).

34 It is true that the Court found the meaning to be clear, while the parties before the Court
gave diverging interpretations of the text. It is further true that in earlier jurisprudence, the Court
had found that if the wording of the text is incompatible with the spirit, purpose, and context of
the instrument, ‘no reliance can be placed on it’ (South-West Africa Cases [Ethiopia v South
Africa, Liberia v South Africa] [Preliminary Objections] [1962] ICJ Rep 319, at 336).
35 However, the finding that Art. 36 (1) (b) VCCR entails individual rights for nationals of the
sending State, does not seem, a priori, to be incompatible with the spirit of the VCCR, even if
one accepts, for the sake of argument that it might not have been in the drafters’ mind. It offers
the individuals and their sending State a new, procedural way to challenge domestic decisions
violating the VCCR, by exercising the classical legal concept of diplomatic protection.
Recognizing the right of individuals to be informed of their right to contact their consular
authorities is only one step to ensure the implementation of the obligations of the receiving State
under the convention; it is not ‘incompatible’ with the scope of the VCCR. It has also been
stressed that the Court, by recognizing that the VCCR entails rights for individuals, might have
had in mind the potential conflict with the finding of another judicial body, the Inter-American
Court of Human Rights (IACtHR).

36 Mexico had filed a request for an advisory opinion on the right of consular assistance more
than one year before the request of Germany for the indication of provisional measures by the
ICJ. The IACtHR, in its advisory opinion of 1 October 1999 (The Right to Information on
Consular Assistance in the Framework of the Guarantees of the Due Process of Law [Advisory
Opinion]), found that Art. 36 (1) (b) VCCR, unequivocally recognized individual rights to foreign
detainees. The IACtHR found Art. 36 VCCR to be a ‘notable exception to what are essentially
States’ rights and obligations accorded elsewhere in the Vienna Convention on Consular
Relations’ (ibid at para. 82) and even went on to hold that the individual right to be informed
under Art. 36 VCCR was part of the requirements of due process (ibid at paras 123–24).

3. Guarantees and Assurances of Non-Repetition as an Appropriate Remedy

37 The implications of the LaGrand Case on the law of State responsibility for internationally
wrongful acts and notably on its codification process are significant. This impact is reflected in
the decision of the ILC to wait for the judgment to be rendered before completing the second
reading of its Draft Articles on State Responsibility. The admission of guarantees of non-
repetition, general and specific, as a means of remedy for an international wrongful act can be
regarded as confirmation of the often neglected function of State responsibility as a means of
controlling and ensuring legality in the international legal order.

38 Guarantees and assurances of non-repetition have been classified for a long period of time
among the different forms of satisfaction, the classical reparation for immaterial damages. In
State practice the assurances of non-repetition have been expressed by verbal assurances not
to repeat the wrongful act.

39 With the LaGrand Case, and in particular its obligation on the US to allow, in the future,
review and reconsideration of the conviction and sentence of German nationals whose rights
under the VCCR had been violated, guarantees and assurances of non-repetition were given a
new quality.

40 Unlike classical reparation for immaterial damages, guarantees of non-repetition are future-
oriented, and under the form in which they were understood by the ICJ, those measures can
also take the form of obligations of result and may require, under specific circumstances, the
domestic legal system to make considerable efforts in order to be in conformity with the
obligations thereby imposed on it.

41 Those characteristics of guarantees of non-repetition led a number of scholars, including

members of the ILC after the LaGrand judgment had been rendered, to think that those
measures had to be classified as a different consequence of the internationally wrongful act,
separate from reparations. The ILC, in the articles adopted on first and second reading,
classified guarantees and assurances of non-repetition together with cessation, as measures of
strengthened primary obligations (Art. 30 Draft Articles on State Responsibility). In its
commentary on forms of satisfactions, however, the ILC also cautiously included the possibility
of including guarantees of non-repetition, which was the approach taken by Special Rapporteurs
Riphagen and Arangio Ruiz. The Court itself had not given much guidance on the issue of
classification.

42 Much can be said on the relationship between the ILC and the ICJ, and for the present case
it might be useful to recall that counsel for Germany in the case was also a member of the
Drafting Committee of the ILC on questions of State responsibility. It might not have been simply
coincidence that Germany submitted a request for assurances of non-repetition in that case. Be
that as it may, the ICJ decided to grant that request without seeking to justify that form of
remedy with its earlier jurisprudence or State practice.

4. Implementation of the LaGrand Judgment within United States Domestic Legal Order
43 In order to comply with the Court’s judgment, the US found itself placed in a very delicate
situation. In the judgment, it remained unclear what concrete steps should be taken within the
criminal procedures of the US in order to ensure compliance with the Court’s finding, since the
Court left it up to the respondent State to employ the means of its own choosing. One could
have imagined that the consular notification should have been included in the so-called
Miranda-warning, in order to generally inform each suspect detainee of that right. One could
also have imagined that the rule of procedural default could have been systematically put aside
when a violation of the VCCR had been alleged at a late stage of a proceeding. Cause and
prejudice being difficult to establish in those cases, one could have imagined that US
jurisdictions could accept the failure to raise the issue of the VCCR violation as proof of
ineffective assistance of counsel, offering sufficient grounds for opening the habeas corpus
procedure.

44 It was to be expected that the Court’s judgment in the LaGrand Case would have a serious
impact on the municipal law of the US, at both State and federal levels. During the written and
oral proceedings there was already serious concern about the enforceability of the findings of
the Court with respect not only to the obligations of States resulting from Art. 36 VCCR, but also
to guarantees and assurances of non-repetition with regard to German nationals. On the other
hand, the findings of the Court combined with the Declaration of President Guillaume appended
to the judgment was potentially affecting many cases of detainees in the US.

45 The precedent of the US Supreme Court in the case Breard v Green (United States Court of
Appeals Fourth Circuit [14 April 1998] 523 US 371), however, was not going to be overruled by
state courts in the immediate aftermath of the LaGrand judgment of the ICJ. A notable judgment
of the Oklahoma Court of Criminal Appeals concerning a Mexican national sentenced to the
death penalty, found that the proceedings had to be reopened on the grounds of ineffective
assistance of counsel because unlike the Mexican authorities who assisted the accused in a
later stage of proceedings, the accused’s counsel had not discovered that their national had
suffered brain-damage in his childhood (Valdez v Oklahoma 46 P.3d 703).

46 It is significant to note that only one and a half years after the LaGrand decision, the
Mexican government decided to file an application instituting proceedings and requesting the
indication of provisional measures before the Court in the Avena and Other Mexican Nationals
Case (Mexico v United States of America). In the judgment on the merits, dated 30 March 2005,
the Court confirmed several of its findings as to the interpretation of the VCCR and its violation
by the US in many of the cases under consideration. The Court also had the opportunity to
clarify the requirements of ‘review and reconsideration’ prescribed in LaGrand, in holding that,
while the modalities should be left to the US, the procedure of review and reconsideration
should be effective. The Court further noted that a judicial procedure was best suited to fulfil the
requirements and that the clemency procedure could only ‘supplement’ a judicial one (Avena
and other Mexican Nationals Casepara. 143).

47 Years later, one subparagraph of the operative part of the Avena judgment, namely the
subparagraph indicating that the appropriate reparation in certain cases consisted in providing
review and reconsideration, was the subject of a request for interpretation submitted by Mexico,
but the Court did not consider that the conditions of Art. 60 ICJ Statute for the Court to exercise
its jurisdiction were met.
Khurts Bat and Mongolia (intervening) v Investigating Judge of the
German Federal Court and Secretary of State for Foreign and
Commonwealth Affairs (intervening), Appeal decision, [2011] EWHC 2029
(Admin), [2012] 3 WLR 180, [2011] All ER (D) 293, [2011] ACD 111, ILDC
1779 (UK 2011), 29th July 2011, United Kingdom; England and Wales;
High Court [HC]; Queen's Bench Division [QBD]; Administrative Court
Date:
29 July 2011
Content type:
Domestic court decisions
Jurisdiction:
United Kingdom [gb]; England and Wales; High Court [EWHC]; Queen's Bench Division [QBD];
Administrative Court
Citation(s):
[2011] EWHC 2029 (Admin) (Neutral Citation)
[2012] 3 WLR 180 (Other Reference)
[2011] All ER (D) 293 (Other Reference)
[2011] ACD 111 (Other Reference)
ILDC 1779 (UK 2011) (OUP reference)
Product:
Oxford Reports on International Law [ORIL]

Module:
International Law in Domestic Courts [ILDC]

Parties:
Bat Khurts Bat
Investigating Judge of the German Federal Court

Additional parties:
(Intervening Party 1) Government of Mongolia

Judges/Arbitrators:
Lord Justice Moses; Justice Foskett

Procedural Stage:
Appeal decision

Previous Procedural Stage(s):

 District Court (Administrative) decision; Khurts Bat v Governor Of HMP Wandsworth, CO/3672/2011,
13 May 2011District Court (Administrative) decision; Khurts Bat v Federal Court Of Germany,
CO/1655/2011, 13 May 2011

Core Issue(s):

Whether a member of a Special Mission was entitled to immunity ratione personae.

Whether at the time of his arrest the individual represented the Government of Mongolia as a high-
ranking civil servant and was therefore entitled to immunity ratione personae.

Whether the crimes the individual was alleged to have committed were official acts such that he was
therefore entitled to immunity ratione materiae.

Oxford Reports on International Law in Domestic Courts is edited by:

Professor André Nollkaemper, University of Amsterdam and August Reinisch, University of Vienna.

Facts
F1 In 2003 Khurts Bat worked at the Mongolian embassy in Budapest and was entrusted by the
Mongolian secret service with a mission to bring the Mongolian national Enkhbat Damiran, who
lived in France, back to Mongolia. Damiran was suspected of involvement in the assassination
of Zorig Sanjaasuren, the Mongolian Minister of the Interior, on 2 October 1998.

F2 The operation was carried out by Khurts Bat and three other members of the Mongolian
secret service. Damiran was invited to a meeting in Le Havre, France, on 14 May 2003 where
he was attacked, kidnapped, and abducted to the Mongolian embassy in Berlin, kept imprisoned
until 18 May 2003, and taken to Mongolia. At the time of this judgment Damiran was still serving
a prison sentence.

F3 In 2009, the Secretary General to the National Security Council of Mongolia and the British
Ambassador to Mongolia engaged in communications regarding possible collaboration between
the two states in national security matters. This was also discussed by the Ambassador of
Mongolia to the United Kingdom and the Director of the UK National Security Secretariat.

F4 On 17 March 2010, Khurts Bat, who was the Head of the Office of National Security in
Mongolia, applied for a visa to the UK. The entry clearance officer described the application as
being for a ‘Mongolian Diplomat intending a seven day visit to the UK on official business’,
without further clarification.

F5 On 18 March 2010, the Serious and Organized Crime Agency (‘SOCA’) notified the Entry
Clearance Officer’s Support Unit (‘ECO’) in Beijing (where the application was filed) that Khurts
Bat was wanted by the German authorities. His extradition was requested by the Federal Court
of Justice in Germany by virtue of a European Arrest Warrant (‘EAW’) certified by the SOCA. An
EAW could be issued by any member state of the European Union (‘EU’) to request the arrest
and transfer of a suspect or sentenced person from another member state in order to proceed
with a trial or to complete a detention period.
F6 The ECO confirmed the intention to issue the visa and that Khurts Bat would be travelling on
a diplomatic passport and ‘so would have immunity’. The SOCA responded that under
diplomatic immunity the German request could not be processed, but the EAW should not be
disclosed to Khurts Bat.

F7 On 19 March 2010, an officer of the ECO in London gave different advice to the SOCA,
confirming that Khurts Bat did not have diplomatic immunity as he was not an accredited
diplomat at the Mongolian Embassy in London. Further communications followed between
SOCA and both ECO units in London and Beijing.

F8 On 31 August 2010, the Mongolian Desk at the Foreign and Commonwealth Office (‘FCO’)
informed the British Ambassador in Mongolia about the organization of a round table to be held
in the UK. Khurts Bat’s name was not listed as a delegation member. However, the Mongolian
Ambassador to the UK mentioned the visit of Khurts Bat for the same period and his intention to
meet with the Head of the National Security Council in the UK.

F9 On 17 September 2010, Khurts Bat was arrested at Heathrow Airport. He was brought
before the City of Westminster Magistrates Court and remanded in custody until his extradition.

F10 On 18 February 2011, the District Court issued the extradition order on the basis of the
EAW certified by the SOCA and the request by the Federal Court of Justice in Germany. Khurts
Bat had claimed that: (1) he was entitled to immunity since he was on UK territory on a Special
Mission; (2) that the extradition proceedings were an abuse of process; and (3) that he was
entitled to immunity as a high-ranking officer. All claims were rejected.

F11 The District Court’s decision was appealed pursuant to Section 26 of the Extradition Act,
2003 (United Kingdom). A new claim by Khurts Bat was added: (4) that he was entitled to
immunity both in Germany and in the UK since the alleged crimes were the result of official acts
committed under the orders of the Government of Mongolia. Khurts Bat advanced a separate
application for habeas corpus. The FCO and the Government of Mongolia joined as interveners
at the appellate level.

Held
H1 Under the rules of customary international law Khurts Bat was entitled to immunity ratione
personae if his mission to the UK was a Special Mission to which he was sent by Mongolia with
the prior consent of the UK. The rules of customary international law relating to immunities were
part of, or one of, the sources of English law, and therefore should have been applied by
English courts. (paragraph 22)

H2 There was no treaty in force between the UK and Mongolia governing the inviolability and
immunity of persons on Special Missions. The UK had signed, but not ratified, the Convention
on Special Missions (8 December 1969) 1400 UNTS 231; entered into force 21 June
1985 (‘New York Convention’). Article 18 of the Vienna Convention on the Law of Treaties (23
May 1969) 1155 UNTS 331; 8 ILM 679 (1969); 63 AJIL 875 (1969), entered into force 27
January 1980 (‘Vienna Convention’, ‘VCLT’) required the UK to refrain from acting in a manner
which would defeat the object and purpose of the New York Convention. (paragraph 22)

H3 The inviolability of the person and immunity ratione personae was guaranteed by customary
international law to those accredited to a permanent Diplomatic Mission and Special Missions.
Special Missions temporarily performed ‘those functions ordinarily taken care of by a permanent
mission’. (paragraph 26)

H4 The recognition of a Special Mission depended on the previous consent to the mission as
such by the receiving state. This requirement was reflected in Article 1(a) of the New York
Convention. (paragraph 27) The consent of the Special Mission status presupposed the
recognition of its special nature and the status of inviolability and immunity to the visitors.
(paragraph 29)

H5 Despite the declaration of the Director of Protocol on behalf of the Secretary of State for
Foreign and Commonwealth Affairs that ‘ultimately the question of whether Mr Khurts Bat came
to the UK on 18 September 2010 on a Special Mission is a question of law for the court to
determine’, this was exclusively a matter for the UK government and not for the court.
(paragraphs 24 and 39)

H6 The expectations of the Mongolian government in relation to Khurts Bat’s visit were not
relevant for the purpose of defining its status as a Special Mission. Khurts Bat’s visit was not a
Special Mission since the FCO did not recognize that visit as a Special Mission, as attested in
the FCO’s letter of 12 January 2011. (paragraph 40)

H7 There was no dispute that in customary international law, certain holders of high-ranking
office were entitled to complete immunity ratione personae from criminal jurisdiction during their
term of office. Khurts Bat had claimed he was entitled to immunity by reason of his position as
the Head of the Office of National Security of Mongolia and that accordingly, as ‘a very senior
governmental officer’, he would possess immunity even if the visit was not in the course of a
Special Mission. (paragraph 55)

H8 The International Court of Justice (‘ICJ’) in Paragraph 51 of Case concerning Arrest Warrant
of 11 April 2000 (Democratic Republic of the Congo v Belgium) [2002] ICJ Rep 3; ICGJ 22 (ICJ
2002) 14 February 2002(‘Arrest Warrant’) had asserted that ‘certain holders of high-ranking
office in a State, such as the Head of State, Head of Government and Minister for Foreign
Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal’. (paragraph 56)

H9 Khurts Bat’s status as an administrator was far from the narrow circle of those who held
high-ranking office as representatives of their state, as defined by the ICJ in Arrest Warrant.
Although the term ‘such as’ used by the ICJ suggested that the list of high-ranking offices was
not exhaustive, the decision established referential boundaries within which one must fall in
order to be entitled to immunity ratione personae. Khurts Bat’s role was equivalent to ‘someone
of director level, at a mid-rank’ in the British FCO. (paragraph 61)

H10 State officials enjoyed immunity ratione materiae from the civil jurisdiction of the courts of
other states for their official acts, as established by the Convention on Jurisdiction Immunities of
States and Their Property (2 December 2004); not yet in force. In relation to immunity from
criminal prosecution for offences committed in the forum state, the scarce jurisprudence did not
allow major generalizations as to whether it constituted customary international law.
(paragraphs 70–71)

H11 Pinochet III (R v Bow Street Metropolitan Stipendiary Magistrates and ors, ex-parte
Pinochet Ugarte (No 3), Case no [2000] 1 AC 147; ILDC 1736 (UK 1999), 24 March
1999 (‘Pinochet No 3’) was not binding here since Khurts Bat was neither a current nor former
Head of State. (paragraph 82)
H12 States did not usually accept responsibility for criminal acts, such as espionage, on the
territory of another state. This reduced the prospect of establishing state practice in relation to
immunity from criminal prosecution. (paragraph 95) The fact that states ‘have not claimed
immunity is just as much evidence of the absence of State practice as those cases where
immunity is claimed but denied by the forum state’. Khurts Bat did not enjoy immunity by reason
of his conduct as an official of the Government of Mongolia from prosecution in Germany and,
accordingly, did not enjoy immunity from extradition in the UK. (paragraph 99)

H13 Justice Foskett, separate opinion: A letter by the FCO certifying that the UK did not agree
with a visit as a Special Mission should not be regarded as conclusive evidence in this case.
The matter should be left for consideration and resolution in a future case. (paragraph 110)

Date of Report: 07 July 2012

Reporter(s):
Michael Freitas Mohallem

Analysis
A1 The Khurts Bat case raised important issues in relation to immunity for foreign officials.
Since R v Bow Street Metropolitan Stipendiary Magistrate Ex parte Pinochet Ugarte (No
1) [2000] 1 AC 61, 3 WLR 1456, 25 November 1998 and Pinochet No 3 a great deal of attention
had been directed to the interpretation of international law given by domestic courts on
immunities.

A2 The ICJ’s definition in Arrest Warrant as to whom immunity ratione personae applied was
criticized for producing confusion by suggesting that the list was not exhaustive. Such criticism
followed in this case, as the ambiguity of the ICJ’s definition allowed for some speculation as to
whether Khurts Bat’s role as Head of the Office of National Security of Mongolia fitted the
description of a high-ranking official.

A3 In Arrest Warrant, the ICJ reasoned that including the role of Minister of Foreign Affairs
among those entitled to immunity ratione personae was justified as it was necessary ‘to ensure
the effective performance of their functions on behalf of their respective States’. Furthermore, it
stated that ‘the nature of the functions exercised’ should have been considered, particularly as a
Foreign Minister represented the government in international negotiations and
intergovernmental meetings (Paragraph 53 of Arrest Warrant). In light of these considerations,
academic commentary was uncertain ‘about whether this type of immunity applies to other
senior government members’ (D Akande and S Shah, ‘Immunities of State Officials,
International Crimes, and Foreign Domestic Courts’ (2010) 4 EJIL 21, 820).

A4 The ICJ adopted a functional test to define those holding ‘high-ranking office’ for the
purpose of immunity ratione personae. Under such reasoning, immunity was a tool for the
effective performance of governmental responsibilities. The same test was applied by the
District Court. Although the District Court rejected Khurts Bat’s claim that he was entitled to
immunity, it did so on the grounds that he was not engaged in foreign affairs. The High Court
used a different test, according to which the ICJ circle of ‘high-ranking’ authorities must be
defined on the basis of hierarchical comparability, for it ‘must be possible to attach to the
individual in question a similar status’ to those mentioned in Arrest Warrant. (paragraph 59)
A5 As to Khurts Bat’s claim that he enjoyed immunity in customary international law because
his visit to the UK was a Special Mission, the court’s decision was not convincing. It declared
that tribunals should not question the government’s choices as to the recognition of a diplomatic
visit as a Special Mission. The crucial legal question following from this conclusion was whether
the UK Government, in this particular case, gave consent to a Special Mission. Significant
evidentiary weight was given to an ex post facto letter from the Protocol Directorate dated 12
January 2011 (although Justice Moses found that it was not established that there was a
Special Mission ‘even if the Foreign Office letter is not conclusive evidence of that fact’).
(paragraph 45) The non-conclusive character of the letter was asserted by Justice Foskett, who
also declared his early conclusions ‘that there was at least an implied consent to the visit and
that its subject matter was appropriate to “Special Mission” status such that, accordingly, it
should be regarded as a Special Mission’. (paragraph 111)

A6 In view of the rejection of this letter as conclusive evidence, Justice Foskett’s hesitation, and
also in light of Articles 1 and 2 of the New York Convention, which state that consent to a
Special Mission may be ‘obtained through the diplomatic or another agreed or mutually
acceptable channel’, the court should have, out of respect for the principle in dubio pro reo,
applied stricter scrutiny over the remaining evidence regarding the alleged UK consent.

A7 Khurts Bat was extradited to Germany. In September 2011 the charges against him were
dropped and he was allowed to return to Mongolia.

Date of Analysis: 07 July 2012

Analysis by: Michael Freitas Mohallem