a basis for asserting jurisdiction over hostage takers. As noted above, supra p. 9, the Hostage Taking Convention set forth certain mandatory sources of jurisdiction. But it also gave each signatory country discretion to exercise extraterritorial jurisdiction when the offense was committed "with respect to a hostage who is a national of that state if that state considers it appropriate." Art. 5(a)(d). Therefore, even if there are doubts regarding the international community's acceptance, there can be no doubt concerning the application of this principle to the offense of hostage taking, an offense for which Yunis is charged. See M. Bassiouni, II International Criminal Law ch. 4 at 120.
Defendant's counsel correctly notes that the Passive Personal principle traditionally has been an anathema to United States lawmakers.
But his reliance on the Restatement (Revised) of Foreign Relations Laws for the claim that the United States can never invoke the principle is misplaced.
In the past, the United States has protested any assertion of such jurisdiction for fear that it could lead to indefinite criminal liability for its own citizens. This objection was based on the belief that foreigners visiting the United States should comply with our laws and should not be permitted to carry their laws with them. Otherwise Americans would face criminal prosecutions for actions unknown to them as illegal.
However, in the most recent draft of the Restatement, the authors noted that the theory "has been increasingly accepted when applied to terrorist and other organized attacks on a state's nationals by reason of their nationality, or to assassinations of a state's ambassadors, or government officials." Restatement (Revised) § 402, comment g (Tent. Draft No. 6). See also McGinley, The Achillo Lauro Affair-Implications for International Law, 52 Tenn. L. Rev. 691, 713 (1985). The authors retreated from their wholesale rejection of the principle, recognizing that perpetrators of crimes unanimously condemned by members of the international community, should be aware of the illegality of their actions.
Therefore, qualified application of the doctrine to serious and universally condemned crimes will not raise the specter of unlimited and unexpected criminal liability.
Finally, this case does not present the first time that the United States has invoked the principle to assert jurisdiction over a hijacker who seized an American hostage on foreign soil.
The government relied on this very principle when it sought extradition of Muhammed Abbas Zaiden, the leader of the terrorists who hijacked the Achillo Lauro vessel in Egyptian waters and subsequently killed Leon Klinghoffer, an American citizen. As here, the only connection to the United States was Klinghoffer's American citizenship. Based on that link, an arrest warrant was issued charging Abbas with hostage taking, conspiracy and piracy. Id. at 719; See also N. Y. Times, Oct. 16, 1985 § 1 at 1 col. 6.
Thus the Universal and Passive Personality principles, together, provide ample grounds for this Court to assert jurisdiction over Yunis. In fact, reliance on both strengthens the basis for asserting jurisdiction. Not only is the United States acting on behalf of the world community to punish alleged offenders of crimes that threaten the very foundations of world order, but the United States has its own interest in protecting its nationals.
B. JURISDICTION UNDER DOMESTIC LAW
Even if there is authority to assert jurisdiction over Yunis under International law, defendant's counsel argues that the Court has no jurisdiction under domestic law. He contends that Congress neither had the power nor the intention to authorize jurisdiction over the offenses of hostage taking and aircraft piracy committed "half way around the world".
But defendant's argument fails to recognize the power of the Congress to legislate overseas and to define and punish offenses committed on foreign soil. Article I section 8, Clause 11 of the Constitution gives Congress the power to "define and punish Piracies and Felonies committed on the High Seas and Offenses against the Law of Nations." As explained, supra, in the discussion on the Universal principle, both hostage taking and aircraft piracy have been defined as offenses against the law of nations.
The reliance that Yunis' counsel places on United States v. Bowman, 260 U.S. 94, 67 L. Ed. 149, 43 S. Ct. 39 (1922) to argue that Congress has no power to extend jurisdiction outside its territorial boundaries, is misplaced. Bowman stands for the contrary proposition. Indeed, it is routinely quoted for the holding that "there is no constitutional bar to the extraterritorial application of penal laws." United States v. King, 552 F.2d 833, 850 (9th Cir. 1976).
A more accurate interpretation of Bowman and its progeny is that Congress has the power to punish crimes committed overseas but it must evince such an intent with clarity. "If punishment . . . is extended to include those [acts] committed outside of the strict territorial jurisdiction, it is natural for Congress to say so in the statute and failure to do so will negate the purpose of Congress in this regard." Bowman 260 U.S. at 98.
The two statutes under which the defendant was indicted, the Hostage Taking Act and the Aircraft Piracy Act, were part of a three bill package enacted by Congress in 1984 aimed at combating the rise of terrorism.
Both were promulgated to extend jurisdiction over extraterritorial crimes and satisfy the country's obligations as a party to various international conventions. See V. Nanda & M. Bassiouni, International Criminal Law, a Guide to U.S. Practice and Procedure, 17, 29, (1987). Because of the newness of the statutes, no court has been called upon to analyze the scope of the jurisdictional provisions. Therefore, the Court must rely on the recognized tools of statutory interpretation, the language of the statute along with the statutory history, to evaluate whether these provisions apply to the particular offenses charged in this indictment.
1. Hostage Taking Act, 18 U.S.C. 1203
This statute imposes liability on any individual who takes an American national hostage irrespective of where the seizure occurs. Congress wrote the jurisdictional reach of the statute in clear and unambiguous language. Subsection (b)(1) provides that a defendant is properly chargeable for offenses occurring outside the United States if any one of the following circumstances exists:
(A) the offender or the person seized or detained is a national of the United States;