Mr. WALDMAN. A more recent example would be the so-called war crimes committed during World War II where these legal issues also arose. The trial of the Japanese General Yamashita, for instance, where I believe that issue was litigated all the way up to the U.S. Supreme Court. Here was someone who allegedly committed crimes against Filipino nationals in the Philippines and was being tried by an American tribunal in Japan. I believe in some of the court cases out of Germany also this question of territoriality was raised and the same concept was held to apply and the court was held to have jurisdiction. In those cases people were tried, convicted, and executed. Mr. HUNGATE. With some ex post facto arguments that didn't satisfy Senator Taft and some others. Mr. WALDMAN. Justice Douglas, if I recall, at the time. Mr. HUNGATE. Do I understand that you gentlemen are both satisfied there is clear constitutional authority to exercise extraterritorial jurisdiction in the circumstances we are discussing, that is, with terrorism involving internationally protected persons? Mr. LEIGH. Absolutely, sir. Mr. HUNGATE. Are there U.S. cases or World Court cases that tend to support this view? Mr. LEIGH. We cited two or three cases. There is the famous international case of the Lotus. This was a case questioning whether the Government of Turkey could prosecute a French naval officer for negligently killing a Turkish official in a collision on the high seas. That was a sharply disputed case decided sometime in the 1920's by the World Court. The Court upheld the principle that Turkey had a jurisdictional interest by virtue of the fact its national had been injured on the high seas. That principle has since been codified in at least one international convention. Mr. HUNGATE. You state that we do not have bilateral extradition treaties with three Soviet Socialist Republics that are parties to the U.N. Convention. Are those the first three you mentioned when you read that list? Mr. LEIGH. No; I read Denmark, et cetera. Mr. LEIGH. Yes. The U.S.S. R. together with the Byelorussian and Ukranian Republics were listed as having ratified the Convention. Mr. HUNGATE. What will be the consequence if this Convention becomes effective, as regarding ourselves and those three countries? Mr. LEIGH. We would not be able to extradite to those countries. We would, therefore, have the alternative obligation of prosecuting. Mr. HUNGATE. If they had the terrorists there, then we would have no extradition rights because we had no treaty? Mr. LEIGH. Not necessarily, sir. They could raise that objection, but, if their practice had been to extradite without having a bilateral extradition treaty Mr. HUNGATE. They could extradite without the treaty? Mr. LEIGH. That is right. I don't know what their practice is and if you would like me to we could try to discover that and put it in the record. Mr. HUNGATE. It might be helpful. Mr. LEIGH. I am not sure. We will make that try. Mr. WALDMAN. Wasn't there a recent case where the Soviets did return an American citizen after having been accused of having committed murder on an American ship in Soviet territorial waters? Mr. HUNGATE. Ms. Holtzman, would you want to inquire? Ms. HOLTZMAN. I would like to understand the extent to which you believe these various conventions require the specific changes that you suggest here in present law, for example adding a provision covering attempts to kidnap. What provisions in the treaty or the conventions require expansion of coverage to internationally protected persons? What, if anything, in the conventions requires the provision permitting the Attorney General to get the assistance of armed forces to enforce various sections of the law respecting murder, assault, and kidnaping? In other words, I would appreciate your pointing to specific provisions within the two conventions that justify your proposals to expand or change the present law, including, for example, the proposed deletion of the word "publicly" from one of the sections of the bills respecting picketing, parading, and the like. Mr. LEIGH. I think Mr. Waldman ought to speak on the deletion of the word "publicly." I would just like to call attention to the fact that in article 2 of the U.N. Convention it does specifically state among the crimes covered by the convention the crime of the attempt to commit an attack, and therefore we felt it was necessary to make sure that our own law covered the same ground. On the question of deletion of the word "publicly," there is a technical answer and I would like my colleague from the Justice Department to speak on that. Ms. HOLTZMAN. If you are referring again to article 2 of the U.N. Convention, and specifically article 2(c), how does that lead you to attempted kidnaping, for example? Mr. LEIGH. In 1(a) it speaks of kidnaping. It speaks of kidnaping or other attack upon the person or liberty, so I assume that kidnaping really is a form of attack on the liberty of a person and therefore when you speak of an attempt to commit such an offense, you are talking about an attempt to kidnap. Ms. HOLTZMAN. All right. What about the expansion to internationally protected persons; what is the justification for expanding the statute? Mr. LEIGH. We wanted to cover the families. We had a discussion of this somewhat earlier. We wanted also to cover U.S. representatives abroad who are not now covered because of the particular language of the existing statute. Ms. HOLTZMAN. My question is why the two conventions require the additional language you propose here. Mr. LEIGH. You mean an additional definition such as internationally protected person? Ms. HOLTZMAN. Yes. Mr. LEIGH. Because the general approach had always been a territorial one and the purpose here was to try to reach beyond that. Ms. HOLTZMAN. Can you point to any specific language in these conventions that requires expanding the coverage of the present law to internationally protected persons as defined in the bills? Mr. LEIGH. If you look at 1(a) you see it speaks of murder, kidnaping or other attack upon a person or the liberty of the internationally protected person. MS. HOLTZMAN. Yes. Does the convention define internationally protected person? Mr. LEIGH. That is in the preceding article 1. Our language in the proposed bill is intended to track article 1 of the convention. Mr. HUNGATE. We have another vote. The subcommittee will recess until the conclusion of that and make at least one final effort. [Recess.] Mr. HUNGATE. The subcommittee will be in order. Mr. Hutchison, would you inquire? Mr. HUTCHISON. Yes. Picking up on something Ms. Holtzman inquired about in relation to kidnaping. The basis for extending the attempted kidnaping section to include internationally protected persons is the convention. However, the attempted kidnaping section applies to any kidnaping where the victim is an ordinary citizen as well as where the victim is an internationally protected person. What is the basis for extending the section to cover attempted kidnaping of an ordinary citizen? Mr. WALDMAN. Simply that there is no attempted kidnaping provision of the type at the present time and the feeling that it is perhaps—although it doesn't have an impact on foreign affairs—it is just as inappropriate to attempt to kidnap a private citizen, a Congressman, Senator, or what have you, as it is to attempt to kidnap an internationally protected person. For instance, we have laws that would protect any citizen from kidnaping, murder, or any other act enumerated. This is just to get a parallel provision. It would also protect all of us in those circumstances. Mr. HUTCHISON. So, strictly speaking then, that provision is unnecessary to implement the convention? Mr. WALDMAN. That part of that provision is. It would just be the point to deal evenhandedly with our own citizens. Mr. HUTCHISON. With regard to using the protection principle to support the constitutional basis for this legislation, the notion is that if there is a significant U.S. interest involved there is a jurisdictional basis for the United States to act to define and punish criminal acts that affect that interest. Would that be a basis for punishing criticism of the U.S. Government abroad? Say you are a visitor in the Soviet Union and you are criticizing the American Government for some reason. Is that a significant American interest which would justify the United States in proscribing such conduct with criminal sanctions? Mr. LEIGH. We haven't tried to do that and I would not favor ever trying to do it. Mr. HUTCHISON. How well accepted is this protection principle and how far does it extend? Mr. LEIGH. The principle as such is well accepted. I think from the beginning of our Nation we have had laws which punish the counterfeiting of U.S. currency in a foreign country. This was a total exception, of course, to the territorial principle. This has been the usual instance cited of the protective principle. What you are driving at is how far should you apply that in expanding the list of crimes which the United States will punish under the criminal code. There I think you have to exercise judgment as to whether it is an appropriate extension. I personally would not favor it. Mr. HUTCHISON. Is the protection principle widely accepted by nations? Is it a widely accepted principle of international law or are there just a few countries who subscribe to it and we happen to be one of those countries? Mr. LEIGH. I think the principle is very widely accepted. Most countries have this kind of extraterritorial proscription with regard to their currency. This goes back a long distance and in the American Law Institute reaffirmation of the foreign relation laws of the United States they give this principle recognition as a principle of international law and they give the example of counterfeiting as a typical use of the principle. However, they make no attempt to define how far you should push that principle in justifying additional crimes. Mr. HUTCHISON. Finally, I think Ms. Holtzman inquired about adopting the word "publicly," and I think the redraft proposed in the prepared statement may answer that. Perhaps she should have a response for the record. Mr. WALDMAN. I would be happy to respond for the record. The suggested redraft would obviate a good deal of the problem. In fact, it is just that concern for which we proposed our redraft. It tightens up first amendment protections rather than the converse. I might say that the specific concept is preserved in the redraft. It is simply designed to prevent there being any question, doubt or defense at a later point, to an act that would take place inside the premises rather than in public grounds. For instance, someone who throws a stink bomb inside of an embassy, someone who, inside of a private consulate, smears blood all over a room, which happened. That is really the intended purpose of that deletion. The principle, of course, being that if it is a serious matter to interfere with the operation of our diplomatic relations in a public manner it can be equally damaging to do so on a private premise. Mr. SMIETANKA. With regard to the consequences to the United States if we did not enact criminal law internally to conform with the conventions, I have been struck by a passage from Judge Thomas in the Over the Top case, in which he said: It is not the function of treaties to enact the physical or criminal law of a nation. For this purpose no treaty is self-executing. Congress may be under a duty to enact that which has been agreed upon by treaty, but duty and its performance are two separate and distinct things. If the convention becomes effective and we haveas we havebeen a signatory to it and the Senate has advised and consented to its ratification, what are the consequences if the Congress does not enact conforming internal law? Mr. LEIGH. We would be in violation of our international obligations. Assuming we had made a deposit of ratification but here we have deliberately withheld that step because we have not yet gotten the means of enforcing the international obligation. I agree with most of what you read from Judge Thomas' statement. I don't agree that a treaty cannot be self-executing. A treaty can be self-executing but I think he is quite right that it cannot be selfexecuting if it involves appropriation of funds or if it involves establishing a crime. In those two cases clearly the Congress has to pass implementing legislation. Mr. SMIETANKA. In this case criminal conduct is envisaged. Mr. LEIGH. That is right, so we feel we must have implementing legislation. Mr. HUNGATE. Thank you, gentlemen, for your attendance and contributions here. The subcommittee will give this matter further consideration at an early date. The subcommittee will be adjourned. [Whereupon, at 12:10 p.m., the subcommittee adjourned subject to call of the Chair.] [The bills H.R. 12942, H.R. 13709, H.R. 15552, Report 94-1614, H.R. 11106, H.R. 11217, H. R. 15531, Report 94-1616 follow:] |