Case Digest: United States v. Fawaz Yunis 681 FJ Supp. 8961 (1988)

Public International Law | The Universality Principle

Facts: 

• ALIA Flight 402, a Jordanian civil aircraft, was hijacked on June 11 and 12, 1985.
• The only connection to the United States was the presence of American nationals among the passengers; however, the plane never landed on U.S. soil or flew over U.S. airspace.
• The hijacking occurred as the plane was leaving Beirut for Amman, Jordan. The hijackers, allegedly including the defendant Yunis, redirected the plane to Tunis, Tunisia, for an Arab League Conference meeting. Refused entry, the plane made stops in Cyprus, Palermo (Sicily), and attempted to land in Damascus, Syria, but was denied landing privileges each time. After crisscrossing the Mediterranean for over 30 hours, the plane returned to Beirut, where the hijackers allowed the hostages to disembark, held a press conference, and then blew up the aircraft.
• ALIA Flight 402 never entered or flew over U.S. territory during the incident, remaining within the Mediterranean region.
• Yunis argues for the dismissal of the indictment, citing lack of U.S. jurisdiction to prosecute a foreign national for crimes committed outside U.S. territory and airspace, despite the presence of American nationals onboard..

Issue:

• Whether there is a basis for jurisdiction under international law.

Analysis:

• Jurisdiction Under International Law
• The parties agree that there are five traditional bases of jurisdiction over extraterritorial crimes under international law: 
1. Territorial, wherein jurisdiction is based on the place where the offense is committed; 
2. National, wherein jurisdiction is based on the nationality of the offender; 
3. Protective, wherein jurisdiction is based on whether the national interest is injured; 
4. 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. 
5. 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. 
• Most courts, including our Court of Appeals, have adopted the Harvard Research designations on jurisdiction. ... Several reputable treatises have also recognized the principles.
• 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 source of jurisdiction. The government flatly disagrees and maintains that jurisdiction is appropriate under both.
• Universal Principle
• The Universal principle recognizes that certain offenses are so heinous and so widely condemned that “any state if it captures the offender may prosecute and punish that person on behalf of the world community regardless of the nationality of the offender or victim or where the crime was committed.”
• The crucial question for purposes of defendant’s motion is how crimes are classified as “heinous” and whether aircraft piracy and hostage taking fit into this category.
• Those crimes that are condemned by the world community and subject to prosecution under the Universal principal are often a matter of international conventions or treaties. 
• Treaty against genocide signed by a significant number of states made that crime heinous; therefore, Israel had proper jurisdiction over nazi war criminal under the Universal principle.
• Both offenses are the subject of international agreements. A majority of states in the world community including Lebanon, have signed three treaties condemning aircraft piracy: The Tokyo Convention, The Hague Convention, and The Montreal Convention.
• The Hague and Montreal Conventions explicitly rely on the principle of Universal jurisdiction in mandating that all states “take such measures as may be necessary to establish its jurisdiction over the offences ... where the alleged offender is present in its territory.”
• Further, those treaties direct that all “contracting states ... of which the alleged offender is found,... shall, be obliged, without exception whatsoever and whether or not the offense was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution.” 
• These two provisions together demonstrate the international community’s strong commitment to punish aircraft hijackers irrespective of where the hijacking occurred.
• The global community has also joined together and adopted the International Convention for the Taking of Hostages, an agreement which condemns and criminalizes the offense of hostage taking. 
• Like the conventions denouncing aircraft piracy, this treaty requires signatory states to prosecute any alleged offenders “present in its territory.”
• In light of the global efforts to punish aircraft piracy and hostage taking, international legal scholars unanimously agree that these crimes fit within the category of heinous crimes for purposes of asserting universal jurisdiction. 
• In The Restatement (Revised) of Foreign Relations Law of the United States, a source heavily relied upon by the defendant, aircraft hijacking is specifically identified as a universal crime over which all states should exercise jurisdiction
• Our Circuit has cited the Restatement with approval and determined that the Universal principle, standing alone, provides sufficient basis for asserting jurisdiction over an alleged offender.
• The premise of universal jurisdiction is that a state ‘may exercise jurisdiction to define and punish certain offenses recognized by the community of nations as of universal concern,’... even where no other recognized basis of jurisdiction is present.
• Therefore, under recognized principles of international law, and the law of this Circuit, there is clear authority to assert jurisdiction over Yunis for the offenses of aircraft piracy and hostage taking.
• Passive Personality Principle
• This principle authorizes states to assert jurisdiction over offenses committed against their citizens abroad. 
• It recognizes that each state has a legitimate interest in protecting the safety of its citizens when they journey outside national boundaries. 
• Because American nationals were on board the Jordanian aircraft, the government contends that the Court may exercise jurisdiction over Yunis under this principle. 
• Defendant argues that this theory of jurisdiction is neither recognized by the international community nor the United States and is an insufficient basis for sustaining jurisdiction over Yunis,
• Although many international legal scholars agree that the principle is the most controversial of the five sources of jurisdiction, they also agree that the international community recognizes its legitimacy.
•  Most accept that “the extraterritorial reach of a law premised upon the ... principle would not be in doubt as a matter of international law.”
• More importantly, the international community explicitly approved of the principle as a basis for asserting jurisdiction over hostage takers.
• 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.” 
• 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.
• 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.”
• 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.
• 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.