(cite as “1 CALIF.CRIM.L.REV. 1”; pincite using paragraph numbers)

by Diane Marie Amann,* Cynthia R.L. Fairweather,** and Vivian Rhoe***

¶1You represent a U.S. permanent resident, a bank teller charged with embezzling $50,000. She admits that she dipped into the till to pay her mortgage, but claims that she took no more than $15,000. In response to your question about her confessions to the contrary, she tells you:

One day the boss and an armed security guard put me in a small room and kept me there all day. They wouldn’t let me call anyone, have a glass of water, or use the restroom. They ordered me to sign papers that said I’d stolen $50,000. I told them it was only $15,000. I said I was sorry and started crying and they laughed at me. They called in coworkers and told them that I was a thief. The boss promised that if I confessed to the full amount they’d keep the law out of it. So I signed. But right away they turned me over to federal agents, who told me my Miranda rights. I signed their confession, too.

¶2Your outrage at this treatment turns to frustration as you discover that U.S. law allows the use of confessions to private persons.1 The FBI interrogation, moreover, appears to have been by the book. Have you exhausted challenges to the confessions? Not quite.

¶3Treaties to which the United States belongs offer at least two avenues of defense. First, the International Covenant on Civil and Political Rights (ICCPR) forbids anyone -- not just government officials -- from subjecting a person to "cruel, inhuman, or degrading treatment."2 Second, the Vienna Convention on Consular Relations requires that a foreign national be told of her right to talk with officials of her home country before U.S. agents may question her.3 Arguably, violations of these treaties justify excluding the confessions from evidence.

¶4International human rights law has mushroomed in recent decades, thanks to a new recognition that even in the global arena, an individual is guaranteed certain rights against governmental abuse.4 International law -- found both in treaties and in customary international law, a kind of global common law -- contains a trove of potential defenses. Yet U.S. criminal defense attorneys seldom invoke such defenses. Perhaps this stems from a lack of understanding of international law, perhaps from a sense that judges will reject the defenses out of hand. These are valid concerns. As this article will show, persuading a court to apply international law in a criminal case is indeed a formidable task, but one worth pursuing.

Hurdles to Using InternationalLaw Defenses in U.S. Courts

¶5The Supremacy Clause of the U.S. Constitution provides that treaties, no less than acts of Congress or the Constitution itself, are "the Supreme Law of the Land."5 The United States has lagged behind other Western countries in ratifying human rights treaties. Several of those it has ratified guarantee an accused significant rights. These include not only the ICCPR, but also the Convention Against the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment6 and the Convention for the Elimination of Racial Discrimination.7

¶6Regarding customary international law, the U.S. Supreme Court proclaimed nearly a century ago: "International law is part of our law."8 You might thus assume that courts in the United States routinely enforce international law. To the contrary, courts have established a number of doctrines that severely limit the use of both treaty law and customary international law. These hurdles to enforcement include:

¶7Self-executing treaties. Even though a U.S. treaty is U.S. law, a court will not give the treaty full and automatic effect unless it is deemed to be "self-executing."9 This means that the court must be persuaded that the treaty was ratified with the intent that it would operate immediately, without Congress having to pass additional, implementing legislation. Although there may be some exceptions, most human rights treaties are considered not to be self-executing, and in most cases implementing laws have not been enacted. For this reason alone a court may refuse to apply a treaty provision.10

¶8RUDs. Reservations, understandings, and declarations are the ifs, ands, or buts of treaty ratification. RUDs, as they are often called, are statements that a country attaches to a treaty upon ratification, with the intent to limit the effect of the treaty within its borders. When the United States ratified the ICCPR, for example, it reserved its "right" to impose capital punishment, constrained only by U.S. constitutional provisions.11 Therefore, U.S. courts are unlikely to sustain defenses that turn on the fact that much of the world community has rejected the death penalty. The degree to which the United States attached RUDs to some human rights treaties, in fact, has prompted questions whether the United States really has joined the treaties at all.12

¶9Standing. At times a court may refuse to consider whether government officials have breached international law on the ground that the defendant has no standing to challenge such a violation. For example, a statute targeting international drug smuggling authorizes the U.S. government to stop ships on the high seas, search for and seize drugs, and prosecute the crew.13 Defense arguments that if a ship flies the flag of another country, the United States must obtain that country’s consent before boarding, have been rejected. Ignoring the modern view that the individual plays a role in international law, courts have effectively ruled that the party aggrieved by the international-law violation is not the defendant, but the other country, which could address the breach through diplomatic channels.14

¶10Deference. Criminal defense attorneys often complain that courts place the government’s interest in fighting crime above society’s interest in preserving individual rights. This problem is amplified in the international arena, where courts explicitly avoid results that might interfere with stated government needs touching on foreign affairs. Such extreme deference was a prime reason that the U.S. Supreme Court in 1998 refused to extend the Fifth Amendment privilege against self-incrimination to a witness who feared foreign prosecution.15

An Open Lane: Using International Law to Inform Constitutional Principles

¶11Although these hurdles largely preclude direct enforcement of international human rights norms in the United States, courts sometimes are willing to give the norms indirect effect.16 The methods by which officials investigate, prosecute, and punish offenders often are subject to review under broadly worded clauses in the Bill of Rights. For instance, the people have a right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."17 The government may not subject someone to "cruel and unusual punishments," nor deprive a person of "life, liberty, or property, without due process of law."18 Defendants at times have succeeded in persuading courts to consult international law to determine how to apply one of these constitutional provisions.

¶12A few decades ago, it was not uncommon for the U.S. Supreme Court to rely on international human rights law, as well as laws of other countries, to inform the meaning of constitutional principles. In Miranda v. Arizona, the Court derived from English rules the warnings police were instructed to give interrogees.19 The Court used international law on a number of occasions to help it determine whether a practice constituted cruel and unusual punishment in violation of the Eighth Amendment.20

¶13In recent years this practice has waned. In 1988 the Supreme Court, relying in part on international principles, condemned the execution of children 16 and under.21 A year later, however, execution of 17 year olds was deemed constitutional, in an opinion by Justice Scalia, who, dissenting in the earlier case, had declared international law to be irrelevant.22 Still, at least four Justices are sometimes receptive to international law arguments.23 Lower courts also may be willing to consult international law as an aid to constitutional interpretation. Thus it remains worthwhile to press international-law defenses in appropriate cases.

Laying the Groundwork: Some Potential International-Law Defenses

¶14Does your embezzlement client have an appropriate case? Let’s look at how the international law defenses suggested at the beginning of this article might fare in litigation:

¶15Denial of Right to Talk with Consular Official. This is an avenue deserving your attention. A panel of the Ninth Circuit held that a statement made before notice of consular rights may be suppressed if the lack of notice prejudiced the defendant. 24 Although that opinion was withdrawn pending rehearing25, and although defendants in other cases have been unable to surmount procedural defaults and other hurdles26, the Supreme Court has yet to decide the issue. Thus it should be preserved for further review.

¶16Article 36(1)(b) of the Vienna Convention on Consular Relations states that officials who arrest a foreign national "shall inform the person concerned without delay" of her right to communicate with consular representatives of her home country.27 Your client, like most foreign nationals since the convention took effect in 1969, was not so informed.28 File a motion to suppress your client’s statements. Be sure to include the text of the treaty and any appropriate drafting history or case law from other nations.29 Argue that had she talked with consular officers, they could have helped her contact family members, explained her options to her, and helped her to obtain counsel before she spoke to authorities.30 Failure to give her this opportunity, you would argue, resulted in the unfair extraction of a false confession. An adequate showing of such prejudice might entitle her to relief.31

¶17Mistreatment by Private Actors. Article 7 of the ICCPR condemns "cruel, inhuman, or degrading treatment," without limitation to acts by government officials32. It thus offers broader protection than U.S. constitutional doctrine, which provides remedies only for mistreatment suffered at the hands of government actors. Yet direct enforcement of Article 7 is unlikely, because of U.S. RUDs asserting that the article is not self-executing and applies only insofar as it coincides with U.S. constitutional law.33

¶18You could contend that the ICCPR’s broader international protection justifies overruling existing constitutional doctrine; that is, that it justifies holding that, by admitting a confession obtained as your client’s was, the court would abdicate its duty to ensure fundamental fairness.34 This argument is unlikely to win immediate acceptance. But articulation of the international norm might help persuade the court that the treatment of your client was outrageous enough to call into question the reliability of her confession to the full $50,000. Judicial acceptance of $15,000 as the amount taken might compel a sentencing reduction that means the difference between probation and jail.35

¶19Other potential defenses, for other cases, might work as follows:

¶20Extradition That Might Result in Mistreatment. As part of their hands-off policy in foreign-relations areas, courts routinely refuse to consider whether a fugitive would suffer mistreatment if extradited.36 This rule of noninquiry conflicts with international principles. In an often-cited opinion, the European Court of Human Rights carefully examined what lay in store for a German national whom Virginia sought to try for capital murder. The court held that, because of the likelihood of a protracted, anguishing wait on death row, extradition would violate a ban on "torture or . . . inhuman or degrading treatment or punishment."37 Moreover, the Torture Convention forbids extraditing a fugitive "where there are substantial grounds for believing that he would be in danger of being subjected to torture."38 Based on these sources of law, you might argue that to extradite your client would violate contemporary understandings of due process.39 Again, even if your argument does not fully succeed, it might work some modification for your client, and might pave the way to curtailment of the rule of noninquiry.

¶21Death Row Phenomenon. The European Court of Human Rights holding above has given rise to litigation contending that prolonged stays on death row constitute cruel and unusual punishment. Defendants in courts of some other countries have, in fact, won relief based on this claim.40 In 1995, the U.S. Supreme Court declined to grant certiorari in a case raising the issue.41 Nonetheless, two Justices invited lower courts to continue exploring it.42

¶22Treatment of Juveniles. Unlike in the United States, in many countries child offenders are still considered to be less morally culpable than adult criminals, and thus to require treatment aimed at rehabilitation, rather than punishment aimed at retribution.43 The ICCPR reflects this distinction. It requires that accused juveniles be detained separately from adults.44 If found responsible, child offenders "shall be segregated from adults and be accorded treatment appropriate to their age and legal status."45 The United States, while "generally . . . supportive of" these provisions, has reserved "the right, in exceptional circumstances, to treat juveniles as adults."46 Taken together, these statements may help persuade a court that an accused child should be treated as a child, and that transfer to adult court rarely should occur.

¶23Conditions of Confinement. Courts have proved willing to consult international standards in deciding challenges to the conditions under which a defendant is detained or incarcerated. For example, the U.S. Supreme Court cited U.N. Standard Minimum Rules for the Treatment of Prisoners47 to determine the proper medical care due inmates.48 The Second Circuit, meanwhile, consulted the U.N. standards regarding the proper number of people in a cell to support its holding that double celling violated due process and equal protection rights of pretrial detainees.49

¶24Perhaps the most novel such use of international law occurred in the case of Gen. Manuel Noriega, the former leader of Panama who surrendered after the United States had invaded his country, and was brought to Florida for prosecution on charges of drug trafficking. Noriega persuaded the court that he was a prisoner of war, entitled to the protections of the Third Geneva Convention during the course of his confinement.50 Though this precedent would not apply in the ordinary case, it exemplifies how creative use of international law can benefit a defendant.

¶25It is apparent that invoking international law in defense of your client is a challenge. But it is one worth pursuing, in order to assure that your client receives the fullest representation, and in hopes that you might, over the long term, change the law.