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United States v. Yunis

Published online by Cambridge University Press:  27 February 2017

Lynda M. Clarizio
Lynda M. Clarizio*
Affiliation:
Of the District of Columbia Bar
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Extract

Defendant Fawaz Yunis, a Lebanese resident and citizen, was charged for his alleged involvement in the 1985 hijacking of a Jordanian civil aircraft in the Middle East. Defendant moved to dismiss the indictment on the ground that, under general principles of international law, the court lacked subject matter and personal jurisdiction over a crime committed by a nonresident alien on foreign soil and that federal law provided no independent basis for such jurisdiction. The United States District Court for the District of Columbia (per Parker, J.) denied the motion to dismiss in part and granted it in part, and held: (1) that those counts of the indictment charging the defendant with violation of section 32(a) of the Destruction of Aircraft Act (18 U.S.C. §32(a) (1986)) (Aircraft Piracy Act) should be dismissed on the ground that this section provided no jurisdiction over aircraft piracy offenses having no connection to U.S. territory; (2) that traditional principles of international law provided sufficient grounds for asserting both subject matter and personal jurisdiction over the other crimes charged; and (3) that the Act for the Prevention and Punishment of the Crime of Hostage Taking (18 U.S.C. §1203 (1986)) (Hostage Taking Act) and section 32(b) of the Aircraft Piracy Act imposed liability for the offenses allegedly committed by the defendant.

Keywords

Aircraft piracyfederal jurisdictionnonresident alien on foreign soil
Type
International Decisions
Information
American Journal of International Law , Volume 83 , Issue 1 , January 1989 , pp. 94 - 99
Copyright
Copyright © American Society of International Law 1989

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References

1 681 F.Supp. 896, 898. The indictment charged defendant with (1) “conspiracy to commit hostage taking against passengers and crew, to damage, destroy, disable and place destructive devices aboard 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)’; (2) “seizing, detaining and threatening passengers and crew members, including three American nationals as hostages, in violation of 18 U.S.C. §1203’; and (3) “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).” In addition, after defendant was arrested in international waters and brought to the United States, a superseding indictment was filed charging defendant 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).” Id.

2 The court noted that these general principles were first developed in 1935 by the Harvard Research Project. See Harvard Research in International Law, Jurisdiction with Respect to Crime, 29 AJIL Supp. 435, 445 (1935).

3 681 F.Supp. at 899–900 (citing Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 781 n.7 (D.C. Cir. 1984), cert, denied, 470 U.S. 1003 (1985); Chua Han Mow v. United States, 730 F.2d 1308, 1311 (9th Cir. 1984), cert, denied, 470 U.S. 1031 (1985); and Rivard v. United States, 375 F.2d 882, 885 (5th Cir.), cert, denied, 389 U.S. 884 (1967); L. Henkin, R. Pugh, O. Schachter & H. Smit, International Law: Cases and Materials 447 (1980); and A. D’amato, International Law and World Order 564 (1980)).

4 Id. at 900.

5 Id. at 900–01. The court noted that a majority of states in the world community have signed three treaties condemning aircraft piracy: (1) the Convention on Offenses and Certain Other Acts Committed on Board Aircraft, Sept. 14, 1963, TIAS No. 6768 [hereinafter Tokyo Convention]; (2) the Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, 22 UST 1641, TIAS No. 7192, 860 UNTS 105 [hereinafter Hague Convention]; and (3) the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, Sept. 23, 1971, 24 UST 564, TIAS No. 7570 [hereinafter Montreal Convention], The Hague and Montreal Conventions explicitly mandate that each signatory state “take such measures as may be necessary to establish its jurisdiction over the offence … where the alleged offender is present in its territory” and direct that the “Contracting State in the territory of which the alleged offender is found shall … be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution.” Hague Convention, supra, Arts. 4(2) and 7; Montreal Convention, supra, Arts. 5(2) and 7. States have also adopted the International Convention against the Taking of Hostages, GA Res. 34/146 (Dec. 17, 1979), reprinted in 74 AJIL 277 (1980) [hereinafter Hostage Taking Convention]. This Convention likewise requires each signatory state to “establish its jurisdiction … in cases where the alleged offender is present in its territory.” Id., Art. V(2).

6 681 F.Supp. at 901 (citing 2 M. Bassiouni, International Criminal Law, ch. 2 at 31–32(1986); McCredie, Contemporary Uses of Force Against Terrorism: The United States Response to Achille Lauro—Questions of Jurisdiction and its Exercise, 16 Ga. J. Int’l & Comp. L. 435, 438–39 (1986); Bazyler, Capturing the Terrorist in the Wild Blue Yonder, 8 Whittier L. Rev. 685, 687 (1986)). The court also relied upon the Restatement (Third) of Foreign Relations Law of the United States, which specifically identifies aircraft hijacking as a universal crime over which all states may define and prescribe punishment. Restatement (Third) of Foreign Relations Law of the United States §404 (1987) [hereinafter Restatement (Third)]. (The court cited drafts of the Restatement (Third) that were not further revised in substance on the issues presented.)

7 681 F.Supp. at 901 (see also Paust, Federal Jurisdiction over Extraterritorial Acts of Terrorism and Nonimmunity for Foreign Violators of International Law under the FSIA and the Act of State Doctrine, 23 Va. J. Intx L. 191, 203 (1983)).

8 Id. at 901–02. The Hostage Taking Convention gives each signatory state discretion to exercise extraterritorial jurisdiction when an offense is committed “with respect to a hostage who is a national of that State, if that State considers it appropriate.” Hostage Taking Convention, supra note 5, Art. 5(1)(d).

9 681 F.Supp. at 902 (citing the Cutting case, 1887 Foreign Relations of the United States 751, reported in 2 J. B. Moore, International Law Digest 232–40 (1906), where the Secretary of State protested Mexico’s assertion of jurisdiction over an American national seized while traveling in Mexico because he had written an article in a Texas newspaper criticizing a Mexican national). The court observed that this is the most widely cited case for the U.S. rejection of the passive personality principle.

10 Id. (citing McGinley, The Achille Lauro Affair—Implications for International Law, 52 Tenn. L. Rev. 691, 713 (1985)). The court rejected defendant’s reliance on section 402 of the Restatement (Third) as support for the claim that the United States does not recognize the passive personality principle. The court observed that, notwithstanding the black-letter text of section 402, a comment to that section observes that the passive personality principle “is increasingly accepted as applied to terrorist and other organized attacks on a state’s nationals by reason of their nationality, or to assassinations of a state’s diplomatic representatives or other officials.” Restatement (Third), supra note 6, §402, comment g.

11 681 F.Supp. at 903 (citing McGinley, supra note 10, at 719). The Government relied on the passive personality principle in its issuance of an arrest warrant for Muhammed Abbas Zaiden, the leader of the terrorist group that hijacked the Achille Lauro in Egyptian waters and killed passenger Leon Klinghoffer, an American citizen.

12 Id.

13 Id.

14 Id.

15 681 F.Supp. at 904–05 (citing Legislative Initiatives to Curb Domestic and International Terrorism: Hearings Before the Subcomm. on Security and Terrorism of the Senate Comm. on the fudiciary, 98th Cong., 2d Sess. 43, 48–49 (1984) (testimony of Victoria Toensing, Deputy Assistant Attorney General) [hereinafter Senate Hearings].

16 681 F.Supp. at 904 (quoting 18 U.S.C. § 1203(b)(1) (1986) (emphasis added)).

17 Id. at 905 (quoting 18 U.S.C. §32(b) (1986)).

18 Id. at 906–07 (quoting S. REP. No. 619, 98th Cong., 2d Sess. 2 (1984); and Senate Hearings, supra note 15, at 42–43). In a related decision, Judge Parker held that defendant’s apprehension abroad by U.S. military forces did not violate the Posse Comitatus Act, 18 U.S.C. §1385. 681 F.Supp. 891 (D.D.C. 1988) (U.S. Navy played limited role in arrest, which was organized and directed by Federal Bureau of Investigation).

19 681 F.Supp. at 906. See discussion in text at note 4 supra.

20 18 U.S.C. §32(a) (1986).

21 The Federal Aviation Act defines “foreign air commerce” as:

the carriage by aircraft of persons … , or the operation or navigation of aircraft in the conduct or furtherance of a business or vocation, in commerce between …—

…

(c) a place in the United States and any place outside thereof; whether such commerce moves wholly by aircraft or partly by aircraft and partly by other forms of transportation.

49 U.S.C. app. §1301(23) (1982).

22 The court rejected the Government’s argument that “foreign air commerce” should be defined with respect to the connection of the passengers and cargo (and not the aircraft itself) to U.S. soil, holding that such an interpretation would be completely inconsistent with the congressional intent behind section 32(a) and with Department of Transportation and case law interpretations of the definition employed in the Federal Aviation Act. 681 F.Supp. at 907-09 (citing S. Rep. No. 619, supra note 18, at 5; Cheng v. Boeing Co., 708 F.2d 1406 (9th Cir. 1983); Japan Air Lines v. Dole, 801 F.2d 483 (D.C. Cir. 1986); Competitive Marketing Case, 92 C.A.B. 1287 (1981); and Qantas Empire, 29 C.A.B. 33 (1959)).