The opinion of the court was delivered by: PARKER
(Denying Defendant's Motion to Dismiss the Indictment and the Defendant for Lack of Jurisdiction)
Barrington D. Parker, United States District Judge
Defendant's motion to dismiss, presenting interesting and novel legal issues, challenges the authority for and the limits to which the United States government may extend its prosecutorial arm over certain crimes allegedly committed by a nonresident alien on foreign soil.
In the original multi-count indictment of September 15, 1987, the United States charged Fawaz Yunis, a resident and citizen of Lebanon, for his alleged involvement in the hijacking of a Jordanian civilian aircraft in the Middle East. Specifically, Count I -- charged defendant with conspiracy to commit hostage taking against passengers and crew, to damage, destroy, disable and place destructive devices aboard an aircraft, and to perform acts of violence against passengers and crew in violation of 18 U.S.C. §§ 371, 1203, 32(a)(1), (2) and (5); Count II -- seizing, detaining and threatening passengers and crew members, including three American nationals as hostages, in violation of 18 U.S.C. §§ 1203; Counts III, IV and V -- damaging, destroying, disabling and placing a destructive device upon an aircraft operating in foreign air commerce and committing acts of violence against aircraft personnel in violation of 18 U.S.C. §§ 32(a)(1), (2) and (5). After Yunis was apprehended in international waters of the Mediterranean Sea and brought to the United States, a superseding indictment was filed on October 1, 1987 adding four additional counts -- Counts VI, VII, VIII and IX. Those counts charged Yunis with damaging, destroying and placing a destructive device on an aircraft registered in a foreign country and harming aircraft personnel, in violation of 18 U.S.C. §§ 32(b)(1), (2) and (3) and 49 U.S.C. App. § 1472(n)(1).
Defendant's counsel has moved to dismiss the indictment on grounds that this Court lacks subject matter jurisdiction under general principles of international law and the stated provisions of the United States Code. The motion is predicated on grounds that the Jordanian aircraft never flew over United States airspace and had no contact whatsoever with United States territory. Without such connection, Yunis' counsel argues that this Court has no basis for asserting either subject matter or personal jurisdiction. In analyzing whether physical contact with the United States is necessary to proceed with the indictment, the Court first reviews the events surrounding the hijacking. The Court also examines various principles of international law to determine whether they afford grounds for exercising jurisdiction over defendant. Lastly, two relevant statutes, the Hostage Taking Act, 18 U.S.C. § 1203, and the several discrete provisions invoked under the Destruction of Aircraft Act, 18 U.S.C. §§ 32(a) and (b) [also referred to as The Aircraft Piracy Act] are examined to determine whether they apply to offenses committed overseas.
This criminal proceeding and indictment arise from the hijacking of a Jordanian civil aircraft, Royal Jordanian Airlines ("ALIA") Flight 402, on June 11, and 12, 1985. There is no dispute that the only nexus to the United States was the presence of several American nationals on board the flight. The airplane was registered in Jordan, flew the Jordanian flag and never landed on American soil or flew over American airspace.
On the morning of June 11, the aircraft was positioned at the Beirut International Airport, Beirut, Lebanon, for a scheduled departure to Amman, Jordan. As the 50-60 passengers boarded, several Arab men, one allegedly the defendant, stormed the plane and ordered the pilot to fly to Tunis, Tunisia where a meeting of the Arab League Conference was underway. The airplane departed from Beirut with all passengers, including the Americans, held hostage. The plane made a short landing in Larnaco, Cyprus where additional fuel was obtained. It then proceeded to Tunis where landing privileges were denied. The airplane flew to Palermo, Sicily, where it was allowed to replenish its fuel and food supply. Thereafter, it lifted off, destined once more for Tunis. Again, entry was denied and the pilot returned to Beirut. On the morning of June 12th, it took off for Damascus, Syria. However, the Syrian authorities also denied landing privileges. Thus after crisscrossing the Mediterranean Sea area for more than 30 hours, the hijackers were forced to return to Beirut, their point of initial departure.
After landing, the hostages were directed to exit the aircraft. The hijackers then called an impromptu press conference and the defendant Yunis allegedly read a speech, which he originally intended to give to the delegates of the Arab League Conference then meeting in Tunis. Following the speech, the hijackers blew up the Jordanian aircraft, quickly left the scene and vanished into the Beirut landscape.
Between June 11 and 12, 1985, ALIA flight 402 never landed on or flew over American space. Its flightpath was limited to an area within and around the Mediterranean Sea. Based on the absence of any nexus to United States territory, Yunis has moved to dismiss the entire indictment, arguing that no United States federal court has jurisdiction to prosecute a foreign national for crimes committed in foreign airspace and on foreign soil. He further claims that the presence of the American nationals on board the aircraft is an insufficient basis for exercising jurisdiction under principles of international law.
Defendant's motion raises several threshold inquiries: whether or not there is a basis for jurisdiction under international law, and if so, whether Congress intended to and had authority to extend jurisdiction of our federal courts over criminal offenses and events which were committed and occurred overseas and out of the territorial jurisdiction of such courts.
A. JURISDICTION UNDER INTERNATIONAL LAW.
The parties agree that there are five traditional bases of jurisdiction over extraterritorial crimes under international law:
Territorial, wherein jurisdiction is based on the place where the offense is committed;
National, wherein jurisdiction is based on the nationality of the offender;
Universal, wherein jurisdiction is conferred in any forum that obtains physical custody of the perpetuator of certain offenses considered particularly heinous and harmful to humanity.
Passive personal, wherein jurisdiction is based on the nationality of the victim.
These general principles were developed in 1935 by a Harvard Research Project in an effort to codify principles of jurisdiction under international law. See Harvard Research in International Law, Jurisdiction with Respect to Crime, 29 Am. J. Int'l L. 435, 445 (Supp. 1935). Most courts, including our Court of Appeals, have adopted the Harvard Research designations on jurisdiction. See, e.g., Tel-Oren v. Libyan Arab Republic, 233 U.S. App. D.C. 384, 726 F.2d 774, 781, n.7 (D.C. Cir. 1984) cert. denied, 470 U.S. 1003, 105 S. Ct. 1354, 84 L. Ed. 2d 377 (1985); Chua Han Mow. v. United States, 730 F.2d 1308, 1311 (9th Cir. 1984) cert. denied, 470 U.S. 1031, 84 L. Ed. 2d 790, 105 S. Ct. 1403 (1985); Rivard v. United States, 375 F.2d 882, 885 (5th Cir.) cert. denied, 389 U.S. 884, 88 S. Ct. 151, 19 L. Ed. 2d 181 (1967). Several reputable treatises have also recognized the principles: L. Henkin, International Law Cases and Materials 447 (1980); A. D'Amato, International Law and World Order 564 (1980).
The Universal and the Passive Personal principle appear to offer potential bases for asserting jurisdiction over the hostage-taking and aircraft piracy charges against Yunis. However, his counsel argues that the Universal principle is not applicable because neither hostage-taking nor aircraft piracy are heinous crimes encompassed by the doctrine. He urges further, that the United States does not recognize Passive Personal as a legitimate ...