CHAPTER 9 CASES FROM BOOK0 JURISDICTION OF STATES Kourt (including its captain) were taken to Turkey on board the
ptain) were taken to Turkey on board the Lotus. In
THE LOTUS CASE
Citation. Permanent Court of Intl Justice, P.C.I.J. (ser. A) No. 10 (1927)
Brief Fact Summary. Turkeys (D) assertion of jurisdiction over a French
citizen who had been the first officer of a ship that collided with a Turkish ship
on the high seas was challenged by France (P) as a violation of international
law.
Synopsis of Rule of Law. A rule of international law, which prohibits a state
from exercising criminal jurisdiction over a foreign national who commits acts
outside of the states national jurisdiction, does not exist.
Citation. Permanent Court of Intl Justice, P.C.I.J. (ser. A) No. 10 (1927)
Brief Fact Summary. Turkeys (D) assertion of jurisdiction over a French
citizen who had been the first officer of a ship that collided with a Turkish ship
on the high seas was challenged by France (P) as a violation of international
law.
Synopsis of Rule of Law. A rule of international law, which prohibits a state
from exercising criminal jurisdiction over a foreign national who commits acts
outside of the states national jurisdiction, does not exist.
Held. (Per curiam) No. A rule of international law, which prohibits a state from
exercising criminal jurisdiction over a foreign national who commits acts
outside of the states national jurisdiction, does not exist. Failing the
existence of a permissive rule to the contrary is the first and foremost
restriction imposed by international law on a state and it may not exercise its
power in any form in the territory of another state.
This does not imply that international law prohibits a state from exercising
jurisdiction in its own territory, in respect of any case that relates to acts that
have taken place abroad which it cannot rely on some permissive rule of
international law. In this situation, it is impossible to hold that there is a rule
of international law that prohibits Turkey (D) from prosecuting Demons
because he was aboard a French ship. This stems from the fact that the
effects of the alleged offense occurred on a Turkish vessel.
Hence, both states here may exercise concurrent jurisdiction over this matter
because there is no rule of international law in regards to collision cases to
the effect that criminal proceedings are exclusively within the jurisdiction of
the state whose flag is flown.
Discussion. In 1975, France enacted a law regarding its criminal jurisdiction
over aliens because of this the situation surrounding this case. The law
stipulates that aliens who commit a crime outside the territory of the Republic
may be prosecuted and judged pursuant to French law, when the victim is of
French nationality. This is contained in 102 Journal Du Droit International 962
(Clunet 1975). Several eminent scholars have criticized the holding in this
case for seeming to imply that international law permits all that it does not
forbid.
NAME OF THE CASE: THE LOTUS CASE (FRANCE VS TURKEY); YEAR
OF THE DECISION: 1927; AND COURT: PCIJ.
Overview: A collision occurred on the high seas between a French vessel
and a Turkish vessel. Victims were Turkish nationals and the alleged
offender was French. Could Turkey exercise its jurisdiction over the French
national under international law?
Facts of the Case:
A collision occurred on the high seas between a French vessel Lotus and
a Turkish vessel Boz-Kourt. The Boz-Kourt sank and killed eight Turkish
nationals on board the Turkish vessel. The 10 survivors of the Boz-
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S TAT E S
Turkey, the officer on watch of the Lotus (Demons), and the captain of the
Turkish ship were charged with manslaughter. Demons, a French national,
was sentenced to 80 days of imprisonment and a fine. The French
government protested, demanding the release of Demons or the transfer of
his case to the French Courts. Turkey and France agreed to refer this
dispute on the jurisdiction to the Permanent Court of International Justice
(PCIJ).
Questions before the Court:
Did Turkey violate international law when Turkish courts exercised
jurisdiction over a crime committed by a French national, outside Turkey? If
yes, should Turkey pay compensation to France?
The Courts Decision:
Turkey, by instituting criminal proceedings against Demons, did not violate
international law.
Relevant Findings of the Court:
Establishing Jurisdiction: Does Turkey need to support its assertion of
jurisdiction using an existing rule of international law or is the mere absence
of a prohibition preventing the exercise of jurisdiction enough?
The first principle of the Lotus case said that jurisdiction is territorial: A State
cannot exercise its jurisdiction outside its territory unless an international
treaty or customary law permits it to do so. This is what we called the first
Lotus Principle.
Now the first and foremost restriction imposed by international law upon a
State is that failing the existence of a permissive rule to the contrary it
may not exercise its power in any form in the territory of another State. In this
sense jurisdiction is certainly territorial; it cannot be exercised by a State
outside its territory except by virtue of a permissive rule derived from
international custom or from a convention. (para 45)
The second principle of the Lotus case: Within its territory, a State may
exercise its jurisdiction, on any matter, even if there is no specific rule of
international law permitting it to do so. In these instances, States have a
wide measure of discretion, which is only limited by the prohibitive rules of
international law.
It does not, however, follow that international law prohibits a State from
exercising jurisdiction in its own territory, in respect of any case which relates
to acts which have taken place abroad, and in which it cannot rely on some
permissive rule of international law. Such a view would only be tenable if
international law contained a general prohibition to States to extend the
application of their laws and the jurisdiction of their courts to persons,
property and acts outside their territory, and if, as an exception to this
general prohibition, it allowed States to do so in certain specific cases. But
this is certainly not the case under international law as it stands at present.
Far from laying down a general prohibition to the effect that States may not
extend the application of their laws and the jurisdiction of their courts to
persons, property and acts outside their territory, it leaves them in this
respect a wide measure of discretion, which is only limited in certain cases
by prohibitive rules; as regards other cases, every State remains free to
adopt the principles which it regards as best and most suitable. This
discretion left to States by international law explains the great variety of rules
which they have been able to adopt without objections or complaints on the
part of other States In these circumstances all that can be required of a
State is that it should not overstep the limits which international law places
upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in
its sovereignty. (paras 46 and 47)
PUBLIC INTL L AW- JURISDICTION OF

This applied to civil and criminal cases. If the existence of a specific rule was
a pre-requisite to exercise jurisdiction, PCIJ argued, then it wouldin many
cases result in paralysing the action of the courts, owing to the impossibility
of citing a universally accepted rule on which to support the exercise of their
[States] jurisdiction (para 48).
The PCIJ based this finding on the sovereign will of States.
International law governs relations between independent States. The rules
of law binding upon States therefor emanate from their own free will as
expressed in conventions or by usages generally accepted as expressing
principles of law and established in order to regulate the relations between
these co-existing independent communities or with a view to the
achievement of common aims. Restrictions upon the independence of States
cannot therefore be presumed
[NB: This was one of the more debated aspects of the judgement. Some
argued that the Court placed too much emphasis on sovereignty and
consent of States (i.e. took a strong positivist view)].
Criminal Jurisdiction: Territorial Jurisdiction
France alleged that the flag State of a vessel would have exclusive
jurisdiction over offences committed on board the ship in high seas. The
PCIJ disagreed. It held that France, as the flag State, did not enjoy exclusive
territorial jurisdiction in the high seas in respect of a collision with a vessel
carrying the flag of another State (paras 71 84). The Court held that Turkey
and France both have jurisdiction in respect of the whole incident: i.e. there
is concurrent jurisdiction.
The PCIJ held that a ship in the high seas is assimilated to the territory of the
flag State. This State may exercise its jurisdiction over the ship, in the same
way as it exercises its jurisdiction over its land, to the exclusion of all other
States. In this case, the Court equated the Turkish vessel to Turkish territory.
In this case, the PCIJ held that the offence produced its effects on the
Turkish vessel and consequently in a place assimilated to Turkish territory in
which the application of Turkish criminal law cannot be challenged, even in
regard to offences committed there by foreigners. Turkey had jurisdiction
over this case.
If, therefore, a guilty act committed on the high seas produces its effects on
a vessel flying another flag or in foreign territory, the same principles must
be applied as if the territories of two different States were concerned, and the
conclusion must therefore be drawn that there is no rule of international law
prohibiting the State to which the ship on which the effects of the offence
have taken place belongs, from regarding the offence as having been
committed in its territory and prosecuting, accordingly, the delinquent.
The Lotus Case was also significant in that the PCIJ said that a State would
have territorial jurisdiction, even if the crime was committed outside its
territory, so long as a constitutive element of the crime was committed in that
State. Today, we call this subjective territorial jurisdiction. In order for
subjective territorial jurisdiction to be established, one must prove that the
element of the crime and the actual crime are entirely inseparable; i.e., if the
constituent element was absent the crime would not have happened.
The offence for which Lieutenant Demons appears to have been
prosecuted was an act of negligence or imprudence having its origin on
board the Lotus, whilst its effects made themselves felt on board the Boz-
Kourt. These two elements are, legally, entirely inseparable, so much so that
their separation renders the offence non-existent It is only natural that
each should be able to exercise jurisdiction and to do so in respect of the
incident as a whole. It is therefore a case of concurrent jurisdiction.
Customary International Law
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The Lotus case gives an important dictum on creating customary
international law. France alleged that jurisdictional questions on collision
cases are rarely heard in criminal cases because States tend to prosecute
only before the flag State. France argued that this absence of prosecutions
points to a positive rule in customary law on collisions.The Court held that
this would merely show that States had often, in practice, abstained from
instituting criminal proceedings, and not that they recognized themselves as
being obliged to do so; for only if such abstention were based on their being
conscious of having a duty to abstain would it be possible to speak of an
international custom. The alleged fact does not allow one to infer that States
have been conscious of having such a duty; on the other hand, as will
presently be seen, there are other circumstances calculated to show that the
contrary is true. In other words, opinio juris is reflected in acts of States
(Nicaragua Case) or in omissions (Lotus case) in so far as those acts or
omissions are done following a belief that the said State is obligated by law
to act or refrain from acting in a particular way. (For more on opinio
juris click here)
TRAIL SMELTER ARBITRATION CASE
Brief Fact Summary. The United States (P) sought damages from Canada
by suing them to court and also prayed for an injunction for air pollution in
the state of Washington, by the Trail Smelter, a Canadian corporation which
is domiciled in Canada (D).
Synopsis of Rule of Law. The duty to protect other states against harmful
acts by individuals from within its jurisdiction at all times is the responsibility
of a state.
Held. Yes. It is the responsibility of the State to protect other states against
harmful act by individuals from within its jurisdiction at all times. No state has
the right to use or permit the use of the territory in a manner as to cause
injury by fumes in or to the territory of another or the properties or persons
therein as stipulated under the United States (P) laws and the principles of
international law.
By looking at the facts contained in this case, the arbitration held that
Canada (D) is responsible in international law for the conduct of the Trail
Smelter Company. Hence, the onus lies on the Canadian government (D) to
see to it that Trail Smelters conduct should be in line with the obligations of
Canada (D) as it has been confirmed by International law. The Trail Smelter
Company will therefore be required from causing any damage through fumes
as long as the present conditions of air pollution exist in Washington.
So, in pursuant of the Article III of the convention existing between the two
nations, the indemnity for damages should be determined by both
governments. Finally, a regime or measure of control shall be applied to the
operations of the smelter since it is probable in the opinion of the tribunal that
damage may occur in the future from the operations of the smelter unless
they are curtailed.
Discussion. Responsibility for pollution of the sea or the existence of a duty
to desist from polluting the sea has never been laid at the feet of any country
by any international tribunal. Although regulation of pollution is just
commencing, it must ensure that there is equilibrium against freedom of the
seas guaranteed under general and long established rules of international
law.
BLACKMER V US
PUBLIC INTL L AW- JURISDICTION OF
Brief Fact Summary. For his failure to respond to subpoenas served upon
him in France which required his appearance in the United States, Blackmer
(D) was found to be in contempt of court.
Synopsis of Rule of Law. There must be due process for the exercise of
judicial jurisdiction in personam.
Facts. Blackmer (D), a U.S. (P) citizen who was residing in France, was
served subpoenas to appear in court as a witness in a criminal trial in the
U.S. Contempt proceedings were initiated against Blackmer (D) when he
failed to respond to the subpoenas and he was found guilty and fined.
Blackmer (D) appealed on the ground that the federal statute was
unconstitutional.
Issue. Must there be due process for the exercise of judicial jurisdiction in
personam?
Held. (Hughes, C.J). Yes. There must be due process for the exercise of
judicial jurisdiction in personam. The court may adjudge the witness guity of
contempt if the witness fails to comply with the court order. Congress acted
pursuant to its authority in enacting the statute and it could prescribe a
penalty to enforce it. Affirmed.
Discussion. The statute was not found to be unconstitutional by the Court.
Blackmer (D) alleged that there was inadequate notice, but since he still
retained his U.S. citizenship, he was still subject to the U.S. authorities.
Blackmer v. United States case brief, 284 U.S. 421 (1932)
BLACKMER V. UNITED STATES
284 U.S. 421 (1932)
Procedural History:
Appeal from contempt conviction.
Overview:
Blackmer (D) was found to be in contempt of court for failing to respond to
subpoenas served upon him in France requiring his appearance in the
United States. Blackmer (D) was a U.S. (P) citizen who resided in France.
He was served subpoenas to appear in court as a witness in a criminal trial
in the United States. When he failed to respond to the subpoenas, contempt
proceedings were initiated and Blackmer (D) was found guilty and fined.
Blackmer (D) appealed, claiming the federal statute was unconstitutional.
Issue:
For the exercise of judicial jurisdiction in personam, must there be due
process?
Rule:
for the exercise of judicial jurisdiction in personam, there must be due
process
Analysis:
The Court did not find the statute to be unconstitutional.
Blackmer (D) alleged that there was inadequate notice. Since
Blackmer (D) retained his U.S. citizenship, he was still subject to U.S.
authorities.
Outcome:
(Hughes, C.J.) Yes. For the exercise of judicial jurisdiction in personam, there
must be due process. Due process requires appropriate notice of the judicial
action and an opportunity to be heard. The statute provides that when the
presence of a citizen of the United States who resides abroad is required in
court, a subpoena be issued addressed to a consul of the United States. The
consul must serve the subpoena on the witness personally with a tender of
traveling expenses. Upon proof of such service and of the failure of the
witness to appear, a court order may be issued. If the witness fails to comply
with the court order, the court may adjudge the witness guilty of contempt.
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Congress acted pursuant to its authority in enacting the statute and it could
prescribe a penalty to enforce it. Affirmed
THE NOTTEBOHM CASE
Brief Fact Summary. A month after the start of World War II, Nottebohn (P),
a German citizen who had lived in Guatemala (D) for 34 years, applied for
Liechtenstein (P) citizenship.
Synopsis of Rule of Law. Nationality may be disregarded by other states
where it is clear that it was a mere device since the nationality conferred on a
party is normally only the concerns of that nation
Facts. Nottebohn (P), a German by birth, lived in Guatemala (D) for 34
years, retaining his German citizenship and family and business ties with it.
He however applied for Liechtenstein (P) citizenship a month after the
outbreak of World War II. Nottebohm (P) had no ties with Liechtenstein but
intended to remain in Guatemala. The naturalization application was
approved by Liechtenstein and impliedly waived its three-year. After this
approval, Nottebohm (P) travelled to Liechtenstein and upon his return to
Guatemala (D), he was refused entry because he was deemed to be a
German citizen. His Liechtenstein citizenship was not honored.
Liechtenstein (P) thereby filed a suit before the International Court to compel
Guatemala (D) to recognize him as one of its national. Guatemala (D)
challenged the validity of Nottebohms (P) citizenship, the right of
Liechtenstein (P) to bring the action and alleged its belief that Nottebohm (P)
remained a German national.
Issue. Must nationality be disregarded by other states where it is clear that it
was a mere device since the nationality conferred on a party is normally the
concerns of that nation?
Held. NO. issues relating to citizenship are solely the concern of the granting
nation. This is the general rule. But it does not mean that other states will
automatically accept the conferring states designation unless it has acted in
conformity with the general aim of forging a genuine bond between it and its
national aim. In this case, there was no relationship between Liechtenstein
(P) and Nottebohm (P). the change of nationality was merely a subterfuge
mandated by the war. Under this circumstance, Guatemala (D) was not
forced to recognize it. Dismissed
Discussion. A state putting forth a claim must establish a locus standi for
that purpose. Without interruption and continuously from the time of the
injury to the making of an award been a national of the state making the
claim and must not have been a national of the state against whom the claim
has been filed. International law 347 (8th Ed. 1955) Vol.1.
FILARTIGA V PENA-IRALA
Brief Fact Summary. A suit against Pena-Irala (D) on the premise that he
had tortured to death the decedent of Filartiga (P), was filed by Filartiga (P).
Synopsis of Rule of Law. For purpose of the Allen Tort Statute, torture may
be considered to violate law of nations.
acts. A suit claiming that Pena-Irala (D) had tortured Filartigas (P) decedent
to death while he was a police Inspector General, was brought by Filartiga
(P). All parties were Paraguayan citizens. Jurisdiction was based on the Allen
Tort Statute, 28 U.S.C. S 1350, which provided jurisdiction for tort committed
in violation of the law of nations. The case was dismissed by the district
court for lack of jurisdiction to which Filartiga (P) appealed.
Issue. For purpose of the Allen Tort Statute, may torture be considered as a
violation of the law of nations?
Held. (Judge not stated in casebook excerpt). Yes. For purpose of the Allen
Tort Statute, torture may be considered to violate law of nations. The
prohibition against torture has become part of customary international law.
PUBLIC INTL L AW- JURISDICTION OF
Various United Nations declarations such as the Universal Declaration of
Human Rights and the 1975 Declaration on the Protection of All Persons
from Torture further portrays the fact that prohibition against torture has
become part of customary international law. Torture has been officially
renounced in the vast majority of nations and this is the reason why this
court concluded that torture violates the law of nations.
Discussion. It is not new for many members of the United Nations to make
pronouncements and not be pronouncements into action. It is no secret that
torture is still widely practiced if not by a majority of countries then in a
significant manner. Actual practice, and not U.N. declarations have been
argued by commentators as what constitute international law.
ATTY GENERAL V EICHMANN
Summary
The crimes perpetrated by the Nazis during Hitlers reign against Jewish
citizens were some of the worst recorded in history. Although accurate
figures may never be known, it is estimated that some 6 million Jewish
individuals died men, women, and children from all over Europe. They
were deported from their homes in large freight trains in appalling conditions,
others starved or froze to death, others still were taken away to
concentration camps where the fit were forced to perform manual labour
whilst the weak were shot to death or later, gassed to death in their
thousands.
The Accused, Adolf Eichmann, was an Austrian by birth who volunteered to
work for the Security Service (SD) in Berlin. He rose through the ranks and
eventually occupied the position of Head of Section (Referant) for Jewish
Affairs charged with all matters related to the implementation of the Final
Solution to the Jewish Question. In this capacity, he oversaw the transport
and deportation of Jewish persons, set up and personally ran an operations
centre in Hungary in order to implement the Final Solution there, organised
the transfer of money from evacuated Jews to the State and was responsible
for the administration of the camps at Terezin and Bergen-Belsen.
He was captured by Israeli Security Forces in Argentina and handed over to
the District Court of Jerusalem to stand trial for war crimes, crimes against
humanity and crimes against the Jewish people. He was convicted of all 15
counts and sentenced to death. He was unsuccessful in contesting the
jurisdiction of the Court or defending his actions by relying on superior
orders.
Procedural history
In May 1960, the Israeli intelligence service, Mossad, abducted Eichmann
from his hiding place in Argentina and transferred him to Jerusalem to face
an Israeli court.
The trial commenced on 11 April 1961 with the indictment charging
Eichmann with 15 counts of crimes against the Jewish people, crimes
against humanity, war crimes and membership in an organisation declared
criminal by the International Military Tribunal in Nuremberg 15 years earlier.
Related developments
Eichmann appealed the decision of the District Court. The Supreme
Court dismissed his appeal on 29 May 1962.
Eichmann was executed on 31 May 1962.
Legally relevant facts
Prior to the outbreak of World War II, the Accused was a member of the
Austrian SS and later volunteered for a position with the Head Office of the
Security Service (SD) in Berlin (para. 59). When the SD merged with the
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S TAT E S
State Secret Police (Gestapo) to form the Head Office for Reich Security
(RSHA), the Accused occupied the role of Special Officer of Zionist Affairs
(para. 61). He was transferred to Vienna in 1938 to administer the Central
Office for the Emigration of Austrian Jews (para. 64). His success was such
that approximately 150,000 Austrian Jews were forced to emigrate and he
was appointed head of the new Reich Central Office for Jewish Emigration in
October 1939 (para. 65).
From the outbreak of the War to mid-1941, the Accused devised and carried
out the mass deportation of Jewish persons from his role as the Special
Referent for Emigration and Evacuation within the RSHA (paras. 71-75) and
explored the possibility of setting up a slave Jewish state in Madagascar
(para. 76).
In early 1942, the Accused was appointed the Referant of the RSHA in
matters connected to the Final Solution (para. 88). In implementing the Final
Solution, the Accused received information as to the number of persons to
be expelled (para. 90), organised the transfer of money from evacuated
Jews for the disposal of the SS (para. 91), and oversaw the handling of the
transport of Jews (para. 93), not only in the Reich but also in other countries
(para. 98). In particular, he headed the Eichmann Special Operations Unit in
Hungary and did his utmost to carry out the Final Solution (para. 111). These
"Transport Jews" were taken to concentration camps and those who were
unfit for hard labour were exterminated immediately (para. 145).
In autumn 1942, a cover up effort was begun as bodies in mass graves were
burned in an effort to hide the slaughter (para. 148). The concentration
camps were evacuated (para. 149) the Accused in particular was
responsible for all administrative matters connected with the Terezin Ghetto
(para. 152) and the camp at Bergen-Belsen (para. 153).
Core legal questions
Does the District Court of Jerusalem have jurisdiction to try the
case in light of the fact that Eichmann is a foreign national and crimes
were committed on foreign territory?
In the affirmative, is jurisdiction negated by the abduction of the
Accused from a foreign country?
Is obeying superior orders a defence excluding criminal
responsibility?
Specific legal rules and provisions
Section 19 of the Criminal Code Ordinance of 1936.
Sections 1(a)(1),(2),(3), 1(b) and 8 of the the Nazis and Nazi
Collaborators (Punishment) Law.
Court's holding and analysis
The Courts jurisdiction is founded upon it by the Nazis and Nazi
Collaborators (Punishment) Law 5710-1950. This law does not violate the
principles of international law (para. 10). Israels right to punish is founded
on two elements. First, the universal character of the crimes in question,
which are grave offences against the law of nations itself and, in the absence
of an international court, grant jurisdiction to any domestic court (para. 12).
Second, the specific character of the crimes, which was the extermination of
the Jewish people, provides the necessary linking point between the
Accused and the newly-founded State of Israel, a State established and
recognised as the State of the Jews (para. 34). The crimes committed by the
Accused concern the vital interests of the State, thus it has a right to punish
the Accused pursuant to the protective principle (para. 35).
This jurisdiction is not negated by the manner in which the Accused was
brought before the Court. It is an established rule of law that a person
PUBLIC INTL L AW- JURISDICTION OF
standing trial for an offence against the laws of a State may not oppose his
being tried by reason of the illegality of his arrest or the means by which he
was brought to the jurisdiction of the court (para. 41). This rule applies
equally in cases where the accused is relying on violations of international,
rather than domestic, law (para. 47). Such a violation of international law
constitutes an international tort, which may be cured by waiver. In the
present instance, the joint decision of the Governments of Argentina and
Israel of 3 August 1960 cured the international tort committed by Israel
when it entered Argentinian territory to abduct the Accused (para. 50).
Having examined the command structure in place at the SS and the scope of
the Accuseds authority, the Court concluded that the latter acted in
accordance with general directives from his superiors but he retained wide
powers of discretion (para. 180). Under Section 8 of the Punishment Law,
the defence of superior orders (contained in Section 19(b) of the Criminal
Code Ordinance of 1936) is not available in case of offences enumerated by
the afore-mentioned Law but may be taken into account as a factor at
sentencing (para. 218).
The Accused was convicted on all fifteen counts and sentenced to death
(para. 244).
US V YUNIS
Facts
In 1985, Fawaz Yunis (defendant) and four other men hijacked a Jordanian
Airlines flight in Beirut, Lebanon with two American citizens on board. The
plane immediately took off and unsuccessfully attempted to fly to Tunis,
where a conference of the Arab League was under way. Yunis and the others
sought the removal of all Palestinians from Lebanon. Eventually, the plane
landed back in Beirut, the passengers were set free, and the hijackers held a
press conference reiterating their demands. The men then blew up the plane
and fled from the airport. After an FBI investigation identified Yunis as the
likely leader of the hijackers, an arrest warrant was obtained and Operation
Goldenrod was put into motion to arrest Yunis. Undercover FBI agents lured
Yunis onto a yacht in the eastern Mediterranean Sea and arrested him once
the craft entered international waters. Yunis was then transferred to a U.S.
Navy munitions ship and interrogated for several days. Thereafter, Yunis was
flown to Washington, D.C., and charged with conspiracy, aircraft piracy, and
hostage taking. Yunis was convicted and he appealed, claiming that the
district court lacked subject matter jurisdiction and personal jurisdiction to try
him on the charges.
Brief Fact Summary
Yunis (Defendant) argued that the Government (Plaintiff) could not prosecute
him for a hijacking that he perpetrated when its only connection to the United
States was that several Americans were on board the plane.
Synopsis of Rule of Law
The federal government may prosecute an airline hijacker even if the
hijackings only connection with the United States was the presence of
Americans on board the plane.
Facts
Yunis (Defendant) and several accomplices hijacked a Jordanian airliner
while it was on the ground in Beirut. The plane flew to several locations
around the Mediterranean Sea, and eventually flew back to Beirut, where the
hijackers blew up the plane and then escaped into the hills. The only
connection between the whole event and the United States was that several
Americans were on board the whole time. Yunis (Defendant) was indicted
for violating the Hostage Taking Act, 18 U.S.C. 1203. He was
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apprehended, and later indicted under the Destruction of Aircraft Act, 18
U.S.C. 32. He moved to dismiss on grounds of jurisdiction.
Issue
May the federal government prosecute an airline hijacker even if the
hijackings only connection with the United States was the presence of
several Americans on board the plane?
Held
(Parker, J.) Yes. The federal government may prosecute an airline hijacker
even if the hijackings only connection with the United States was the
presence of Americans on board the plane. There must be jurisdiction under
both international and domestic law in order for jurisdiction to exist in the
situation of this case. International law relates to the power of Congress to
have extraterritorial application of its law; domestic law relates to its intent to
do so. International law recognizes several bases for a nation to give
extraterritorial application to its laws. One is the universal principle. Some
acts are considered to be so heinous and contrary to civilization that any
court may assert jurisdiction. The acts that fall within this category are
mainly defined by international convention. The universal principle applies
because numerous conventions condemn hijacking and hostage taking. The
passive personal principle is also relevant, which applies to offenses
against a nations citizens abroad. The United States has been slow to
recognize this principle, but it is now generally agreed upon. International
law having been disposed of on this issue, domestic law must now be
discussed. The Hostage Taking Law, at subsection (b)(1)(A), clearly includes
an offender that has seized or detained a U.S. citizen. The language could
not be plainer. With regard to the Destruction of Aircraft Act and the Federal
Aviation Act, 18 U.S.C. 31, that the law was intended to apply only when
the aircraft in question either began or ended its flight in the United States.
Since the flight in question did not do this, the Act does not apply. Motion
denied in part; granted in part.
Discussion
There are three other existing bases for jurisdiction that are generally
accepted. These are territorial (jurisdiction over territory), national
(jurisdiction over a person) and protective (jurisdiction necessary to protect a
state.) Of the five generally recognized jurisdictional grounds, the passive
personal principle has been met with the most resistance by U.S. courts and
officials.
US V ALVAREZ- MACHAIN
Brief Fact Summary. Alvarez-Machain (D) abducted from Mexico for trial in
the U.S. (P) by Drug Enforcement Agency (DEA) agents, contended that his
abduction was illegal because of an extradition treaty between the United
States (P) and Mexico.
Synopsis of Rule of Law. The presence of an extradition treaty between the
United States and another country does not necessarily preclude obtaining a
citizen of that nation through abduction.
Facts. Agents of the DEA abducted Alvarez-Machain (D) from his office in
Mexico because he was wanted in the U.S. (P) for alleged complicity in the
torture-murder of a DEA agent. But by contending that his abduction violated
a U.S.-Mexico extradition treaty, Alvarez (D) sought to dismiss the
indictment. His prayer was granted by the district court and the indictment
was dismissed. The court of appeals affirmed while the U.S. Supreme Court
granted review.
Issue. Does the presence of an extradition treaty between the United States
and another country does not necessarily preclude obtaining a citizen of that
nation through abduction?
Held. (Rehnquist, C.J.) No. The presence of an extradition treaty between
the United States and another country does not necessarily preclude
obtaining a citizen of that nation through abduction. It has been established
that abduction, in and of itself, does not invalidate prosecution against a
foreign national. The only question to be answered is whether the abduction
PUBLIC INTL L AW- JURISDICTION OF
violates any extradition treaty that may be in effect between the U.S. (P) and
the nation in which the abductee was to be found. The international law
applies only to situations where no extradition treaty exists, so it is irrelevant
here. Since the extradition treaty does not prohibit an abduction as it
occurred in this case, then it is not illegal. Reversed.
Dissent. (Stevens, J.). the majority opinion fails to distinguish between acts
of private citizens, which do not violate any treaty obligations and conduct
expressly authorized by the executive branch, which undoubtedly constitutes
a fragrant violation of international law and a breach of the U.S. (P) treaty
obligations.
Discussion. Alvarez (D) lost this battle but won the war. In 1993, he was
tried in Los Angeles. The trial judge Edward Rafeedie dismissed the case for
lack of evidence at the close of the prosecution case. The judge used some
harsh language in his order, apparently believing the case should never have
been brought.

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