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their ratification. But, of course, we must have this legislation in order to be able to fulfill the obligations which ratification will entail. Once we have that capability, we will deposit our ratifications.
The 0.A.S. Convention is already in force and the U.N. Convention requires only six additional ratifications for entry into force. Our ratification will, we believe, encourage others to ratify and we shall give our full attention to the important task of gaining widespread adherence to these Conventions. It is only through concerted international action that these initiatives can be truly effective in accomplishing their important purposes. Therefore, we strongly urge prompt and favorable action by the Congress in providing this implementing legislation so that the United States can resume its leadership role in this important fight.
Mr. LEIGH. Mr. Chairman, I have a complementary presentation with the Department of Justice and I wondered if it would be agreeable to the subcommittee if the Justice Department witness could also be at the table. I will talk principally about the conventions and what they will require. He will talk about that and the necessary amendments to the criminal code which is the subject I suspect the subcommittee will be most interested in.
Mr. HUNGATE. You may proceed and then we will call Mr. C. Waldman, Deputy Assistant Attorney General, Criminal Division, and at the conclusion of these statements we will begin the questioning.
We welcome you too, Mr. Waldman, and appreciate your contribution.
TESTIMONY OF MONROE LEIGH, LEGAL ADVISER, U.S. DEPARTMENT
OF STATE, ACCOMPANIED BY ROBERT A. FEAREY, SPECIAL ASSISTANT TO THE SECRETARY AND COORDINATOR FOR COMBATTING TERRORISM, DEPARTMENT OF STATE, AND LOUIS G. FIELDS, JR., ASSISTANT LEGAL ADVISER, DEPARTMENT OF STATE
Mr. LEIGH. I appreciate the opportunity to present the views of the Department of State on H.R. 12942 and H.R. 13709 which are identical bills designed to amend title 18, United States Code. This legislation was submitted by the Departments of State and Justice and it will, if enacted, bring our criminal code into conformity with the requirements of the Convention to Prevent and Punish the Acts of Terrorism Taking the Form of Crimes Against Persons and Related Extortion that are of International Significance—"The 0.A.S. Convention"-and the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents—"The U.N. Convention". As the titles suggest, these two conventions have as their basic object the prevention and punishment of crimes against internationally protected persons. The Senate has given its advice and consent to ratify these conventions; however, it is our policy to assure that our domestic law will permit us to discharge the obligations of an international convention prior to the deposit of our instrument of ratification.
With the tragedy of the recent assassinations of Ambassador Francis E. Meloy, Jr. and Economic Counsellor Robert O. Waring in Beirut still fresh in our minds, we must face the grim reality that five U.S. diplomats have been brutally murdered within the last 2 years. The murders of Ambassador Davies in Cyprus, Consular Agent Egan in Argentina and First Secretary Welch in Greece last year outraged civilized people throughout the world, but still these senseless crimes continue.
Within this same period of time, two U.S. Air Force officers attached to our Embassy in Teheran were ambushed and shot to death and USIA officer Alfred Laun was seriously wounded in Argentina. Seven U.S. officials qualifying_as internationally protected persons were abducted in this period. Terrorists seized our consular offices in Kuala Lumpur and held our consul and 50 others, including the Swedish Chargé, hostage.
Diplomats and diplomatic establishments are particularly vulnerable targets of terrorism and responsible governments must take immediate and firm measures to halt these vicious attacks upon the structure of the diplomatic process.
Obviously, neither the measures contained in this legislation nor the provisions of these conventions can guarantee against a recurrence of acts of violence directed at diplomatic institutions. They will, however, constitute significant steps toward deterring such outrageous conduct and demonstrate the firm conviction of the United States that it will not tolerate such acts within its territory or against its representatives abroad.
As the legal adviser to the Department of State I am responsible to assure that the essential requirements of these conventions are met by our implementing legislation. I am satisfied that the legislation being sought will indeed permit the United States to discharge its obligations under these conventions.
These conventions carry alternative obligations upon state parties if a perpetrator of a serious crime against a protected person is within its territory, that is, either to extradite the perpetrator or to try him under its law. Thus, state parties are given options in dealing with perpetrators of proscribed crimes under the conventions.
Both of these conventions have the effect of amending existing extradition treaties between the state parties so as to include offenses specified in the convention as extraditable offenses. Both also provide that such offenses shall be extraditable offenses between state parties which do not make extradition conditional on the existence of an extradition treaty.
However, in order to exercise our option of extradition under the conventions, there would have to be a bilateral extradition treaty between the United States and a state party to one of these conventions. We do, in fact, have bilateral extradition treaties with the parties to the OAS Convention and most of the parties to the U.N. Convention. We do not, however, have bilateral extradition treaties with the three Soviet Socialist Republics which are parties to the U.N. Convention. We would, therefore, be prevented from exercising the extradition option to one of these three Soviet Republics, or to any subsequent party to the U.N. Convention with whom we might not have an extradition treaty. We would be obligated, however, under the convention to undertake to include these crimes as extraditable offenses in any bilateral extradition treaty which we might later conclude with another state party to either convention. The U.N. Convention does not require a state party to exercise extradition authority even where there is a bilateral treaty, nor does it obligate a state party to conclude an extradition treaty with state parties with whom it does not presently have such a treaty.
The alternative option required in the U.N. Convention is that State parties “take such measures as may be necessary to establish its jurisdiction over these crimes in cases where the alleged offender is present in its territory and it does not extradite him. ..." The 0.A.S. Convention merely requires that state parties “endeavor to have the criminal acts contemplated in the convention included in their penal laws, if not already included." Since one of the conventions does require us to define and punish designated offenses, our legislation must accomplish this purpose if we are to fulfill our obligations under the convention. The substantive criminal provisions of these bills achieve that objective.
Let me say, Mr. Chairman, that I agree with the statement which the Department of Justice will make that there is a clear constitutional authority for Congress to exercise, in certain circumstances, extraterritorial criminal jurisdiction over the offenses designated under these conventions. I subscribe to and fully support the basis upon which my colleague establishes constitutional authority for the proposed legislation. There is no doubt that the constitutional principle that Congress has authority to "define and punish ... [o]ffenses against the Law of Nations” is applicable.
One of the great tragedies of our time is the failure to punish terrorists who commit serious crimes against diplomats and other protected persons.
We are disturbed by the fact that a few countries continue to grant asylum to terrorists who have committed crimes proscribed under these conventions. Nor can we ignore those instances in which these criminals are never apprehended and brought to trial. In a recent symposium conducted at the Department on International Terrorism, it was reported that an alarming proportion of terrorists arrested around the world were released without ever being brought to justice for their crimes. I was appalled by the fact that it was also reported that the average sentence for terrorists who have been brought to trial was only 18 months. This deplorable situation emphasizes the need for enforcement of these conventions to oblige state parties to punish the perpetrators of crimes against internationally protected persons.
We have seen that concerted international action has dramatically reduced the incidents of airline hijackings.
Three international conventions and thorough airport screening procedures in most international airports were required to bring about this result. I believe that a similar result can be achieved to halt the trend in terrorism directed against diplomats and diplomatic institutions. It will require the same determination and support which responsible governments around the world gave to the problem of aircraft hijackings. The United States played a leading role in the war against air piracy and we intend to play a similar role in combating terrorism. If that role is to be credible, we must demonstrate our determination through example.
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We were instrumental in the passage of both the 0.A.S. and U.N. Conventions and we were the first to sign the U.N. Convention. The Senate has recognized their importance in giving its advice and consent to their ratification. But, of course, we must have this legislation in order to be able to fulfill the obligations which ratification will entail. Once we have that capability, we will deposit our ratifications.
Finally, Mr. Chairman, let me say the 0.A.S. Convention is already in force and the U.N. Convention requires only six additional ratifications for entry into force. Our ratification will, we believe, encourage others to ratify and we shall give our full attention to the important task of gaining widespread adherence to these conventions. It is only through concerted international action that these initiatives can be truly effective in accomplishing their important purposes. Therefore, we strongly urge prompt and favorable action by the Congress in providing this implementing legislation so that the United States can resume its leadership role in this important fight.
Mr. HUNGATE. Thank you, Mr. Leigh.
If I understand it, the witnesses prefer to present their statements and then submit to questioning.
Mr. LEIGH. That is correct.
Mr. HUNGATE. If there is no objection on behalf of the subcommittee we will proceed then to you, Mr. Waldman. You have a prepared statement. Without objection, it will be made part of the record at this point.
[The prepared statement of Mr. Waldman follows:
STATEMENT OF Jay C. WALDMAN, DEPUTY AssisTANT ATTORNEY GENERAL,
CRIMINAL DIVISION Mr. Chairman and members of the Subcommittee, I am pleased to appear today to testify concerning the views of the Department of Justice on H.R. 12942, H.R. 13709, H.R. 11106, and H.R. 11217.
1. Internationally Protected Persons Bills H.R. 12942 and H.R. 13709 are identical bills prepared by the Departments of State and Justice to amend title 18, United States Code, to implement the Organization of American States' Convention to Prevent and Punish the Acts of Terrorism that are of International Significance, and the United Nations' Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons Including Diplomatic Agents. The Senate gave its advice and consent to the former convention on June 12, 1972, and the latter on October 28, 1975.
The need for the conventions and legislation will be highlighted by the representative here from the Department of State. For our purposes the need can be expressed best by quoting from the letter from President Ford to the Senate transmitting a copy of the United Nations Convention:
“The effective conduct of international relations depends in large part on the ability of diplomatic agents to travel and live freely and securely while representing the interests of their respective countries. We have witnessed in recent years an unprecedented increase in acts of violence directed against diplomatic agents and other internationally protected persons. This development has demonstrated the urgent need to take affirmative action to minimize the threats which can be directed against diplomatic agents. Although the legal obligation to protect these persons was never questioned, the mechanism for international cooperation to ensure the perpetrators of serious attacks against them are brought to justice, no matter where they may flee, was lacking."
The recent brutal assassination of Ambassador Francis
E. Meloy Jr. in Lebanon well demonstrates that the dangers addressed by the President are all too real and present.
Signatories of both conventions are required either to extradite or to prosecute offenders against internationally protected persons whether or not the crimes occur within the territorial jurisdiction of a State party. To provide legislation giving Federal courts the appropriate jurisdiction, the Departments of State and Justice have drafted these bills. Several other minor changes in existing provisions for protection of foreign officials reflect lessons learned from the administration of the relatively new Federal law on that subject.
Each convention provides for the punishment of murder and kidnapping of, as well as assault upon, internationally protected persons. Additionally the United Nations Convention condemns attacks upon the premises or means of transportation of such persons, and condemns threats and attempts as well. The Organization of American States Convention also condemns extortion in connection with murder, kidnapping, and assault.
Section 2 of H.R. 12942 and H.R. 13709 revises section 1116 of title 18, United States Code, to conform with two conventions. Killing and attempted killing of foreign officials, official guests, and internationally protected persons is prohibited. Penalty provisions in existing law are utilized except that the penalty for first degree murder is imprisonment for life and the penalty for attempted murder is imprisonment for not more than twenty years.
The definitions largely parallel those presently found in section 1116 of title 18. The exception is the addition of the term "internationally protected person' and its appropriate use throughout the remaining definitions. The term is needed only to define that class of persons in whose favor the extraterritorial provisions of the statute operate.
Subsection (c) of section 1116 provides that if the murder or attempted murder were directed against an internationally protected person, the United States may exercise jurisdiction if the offender is present within the United States regardless of the place where the offense was committed. This provision is, of course, the crux of the bills.
The assertion of extraterritorial jurisdiction is in proper discharge of the duly adopted international obligations of the United States pursuant to the treaty power and is further supportable under the Constitution as an exercise of the power "[t]o define and punish offenses against the law of nations.” There is nothing in the bills which would, in the alternative, prevent the orderly extradition of offenders when there is a legal basis for extradition. The Department believes that extradition will continue to be the normal procedure when the only nexus for jurisdiction is presence within the United States.
Subsection (d) of section 1116 permits the Attorney General to request assistance from any Federal, State, or local agency including the Army, Navy, and Air Force in enforcing the provisions against murdering a foreign official, official guest, or internationally protected person. The subsection is a response to the recognition that the forces and equipment of the Federal Bureau of Investigation may not be immediately sufficient in an emergent situation such as the terrorist takeover of an embassy. The potential consequences of an attack in the United States upon a foreign official, official guest, or internationally protected person are sufficiently grave to warrant inclusion of this provision which parallels similar provisions relating to attacks upon Members of Congress, the President, and Vice President.
B. KIDNAPPING Section 4 of the bills includes the class of internationally protected persons within the kidnapping provisions of section 1201 of title 18 and provides the convention-required extension of jurisdiction over extraterritorial kidnappings and attempted kidnappings.
A new subsection is proposed to make attempted kidnapping a crime. This addition to the criminal code is deemed necessary for two reasons. First, the United Nations Convention requires that attempted kidnappings of internationlly protected persons be made criminal. Second, the Department believes that attempted kidnappings of any person should be made criminal.
As with murder, provision is made for the Attorney General to request assistance from any Federal, State, or local agency in enforcing the prohibitions against kidnapping of internationally protected persons.