1
NOTTEBOHM CASE (SECOND PHASE) October an arrangement concerning liability to taxation was
Judgment of 6 April 1955
The Nottebohm case had been brought to the Court by an
Application by the Principality of Liechtenstein against the Republic
of Guatemala.
Liechtenstein claimed restitution and compensation on the ground
that the Government of Guatemala had acted towards Mr. Friedrich
Nottebohm, a citizen of Liechtenstein, in a manner contrary to
international law. Guatemala, for its part, contended that the claim
was inadmissible on a number of grounds, one of which related to
the nationality of Nottebohm, for whose protection
Liechtenstein had seised the Court.
In its Judgment the Court accepted this latter plea in bar and in
consequence held Liechtenstein's claim to be inadmissible.
The Judgment was given by eleven votes to three. Judges Klaestad
and Read, and M. Guggenheim, Judge ad hoc, appended to the
Judgment statements of their dissenting opinions.
* In order to establish that the Application must be held admissible,
**
In its Judgment the Court affirmed the fundamental importance of
the plea in bar referred to above. In putting forward this plea,
Guatemala referred to the well-established principle that it is the
bond of nationality between the State and the individual which
alone confers upon the State the right of diplomatic protection.
Liechtenstein considered itself to be acting in conformity with this
principle and contended that Nottebohm was, in fact, its national by
virtue of the naturalization conferred upon him.
The Court then considered the facts. Nottebohm, born at Hamburg,
was still a German national when, in October 1939, he applied for
naturalization in Liechtenstein. In 1905 he went to Guatemala,
which he made the centre of his business activities, which
increased and prospered. He sometimes went to Germany on
business and to other countries for holidays, and also paid a few
visits to
Liechtenstein, where one of his brothers had lived since 1931; but
he continued to have his fixed abode in Guatemala until 1943, that
is to say, until the events which constituted the basis of the
present dispute. In 1939 he left Guatemala at approximately the
end of March; he seems to have gone to Hamburg and to have paid
a few brief visits to Liechtenstein, where he was at the beginning
of October 1939. It was then, on 9th October, 1939, a little more
than a month after the opening of the Second World War, marked
by Germany's attack on Poland, that he applied for naturalization
in Liechtenstein.
The necessary conditions for the naturalization of foreigners in
Liechtenstein are laid down by the Liechtenstein Law of 4th
January, 1934. This Law requires among other things: that the
applicant
for naturalization must prove that acceptance into the Home
Corporation (Heimat verband) of a Liechtenstein commune has
been promised to him in case of acquisition of the nationality of the
State; that, subject to waiver of this requirement under stated
conditions, he must prove that he will lose his former nationality as
the result of naturalization; that he has been resident in the
Principality for at least three years, although this requirement can
be dispensed with in circumstances deserving special consideration
and by way of exception; that he has concluded an agreement
concerning liability to taxation with the competent authorities and
has paid a naturalization fee. The Law reveals concern that
naturalization should only be granted with full knowledge of all the
pertinent facts and adds that the grant of nationality is barred
where circumstances are such as to cause apprehension that
prejudice may enure to the State of Liechtenstein. As regards the
procedure
to be followed, the Government examines the application, obtains
information concerning the applicant, submits the application to the
Diet, and, if this application is approved, submits a request to
the Reigning Prince who alone is entitled to confer nationality.
In his application for naturalization Nottebohm also applied for the
previous conferment of citizenship of Mauren, a commune of
Liechtenstein. He sought dispensation from the condition of three
years' prior residence, without indicating the special circumstances
warranting such a waiver. He undertook to pay (in Swiss francs)
25,000 francs to the Commune and 12,500 francs to the State, the
costs of the proceedings, and an annual naturalization tax of 1,000
francs - subject to the proviso that the payment of these taxes was
to be set off against ordinary taxes which would fall due if the
applicant took up residence in Liechtenstein - and to deposit as
security the sum of 30,000 Swiss francs. A Document dated 15th
October, 1939 certifies that on that date the citizenship of Mauren
had been conferred upon him. A Certificate of 17th October, 1939
evidences the payment of the taxes required to be paid. On 20th
October Nottebohm took the oath of allegiance and on 23rd
concluded. A Certificate of Nationality was also produced to the
effect that Nottebohm had been naturalized by a Supreme
Resolution of
the Prince of 13th October, 1939. Nottebohm then obtained a
Liechtenstein passport and had it visa-ed by the Consul General of
Guatemala in Zurich on 1st December, 1939, and returned to
Guatemala at the beginning of 1940, where he resumed his former
business activities.
These being the facts, the Court considered whether the
naturalization thus granted could be validly invoked against
Guatemala, whether it bestowed upon Liechtenstein a sufficient
title to exercise
protection in respect of Nottebohm as against Guatemala and
therefore entitled it to seise the Court of a claim relating to him.
The Court did not propose to go beyond the limited scope of this
question.
Liechtenstein argued that Guatemala had formerly recognized the
naturalization which it now challenged. Examining Guatemala's
attitude towards Nottebohm since his naturalization, the Court
considered that Guatemala had not recognized Liechtenstein's title
to exercise protection in respect to Nottebohm. It then considered
whether the granting of nationality by Liechtenstein directly
entailed an obligation on the part of Guatemala to recognize its
effect, in other words, whether that unilateral act by Liechtenstein
was
one which could be relied upon against Guatemala in regard to the
exercise of protection. The Court dealt with this question without
considering that of the validity of Nottebohm's naturalization
according to the Law of Liechtenstein.
Nationality is within the domestic jurisdiction of the State, which
settles, by its own legislation, the rules relating to the acquisition of
its nationality. But the issue which the Court must decide is not
one which pertains to the legal system of Liechtenstein; to exercise
protection is to place oneself on the plane of international law.
International practice provides many examples of acts performed
by States in the exercise of their domestic jurisdiction which do not
necessarily or automatically have international effect. When two
States have conferred their nationality upon the same individual
and this situation is no longer confined within the limits of the
domestic jurisdiction of one of these States but extends to the
international field, international arbitrators or the Courts of third
States
which are called upon to deal with this situation would allow the
contradiction to subsist if they confined themselves to the view that
nationality is exclusively within the domestic jurisdiction of the
State. In order to resolve the conflict they have, on the contrary,
sought to ascertain whether nationality has been conferred in
circumstances such as to give rise to an obligation on the part of
the
respondent State to recognize the effect of that nationality. In order
to decide this question, they have evolved certain criteria. They
have given their preference to the real and effective nationality,
that which accorded with the facts, that based on stronger factual
ties between the person concerned and one of these States whose
nationality is involved. Different factors are taken into
consideration, and their importance will vary from one case to the
next: there is the habitual residence of the individual concerned but
also the centre of his interests, his family ties, his participation
in public life, attachment shown by him for a given country and
inculcated in his children, etc.
The same tendency prevails among writers. Moreover, the practice
of certain States, which refrain from exercising protection in favour
of a naturalized person when the latter has in fact severed his
links with what is no longer for him anything but his nominal
country, manifests the view that, in order to be invoked against
another State, nationality must correspond with a factual situation.
The character thus recognized on the international level as
pertaining to nationality is in no way inconsistent with the fact that
international law leaves it to each State to lay down the rules
governing the grant of its own nationality. This is so failing any
general agreement on the rules relating to nationality. It has been
considered that the best way of making such rules accord with the
varying demographic conditions in different countries is to leave
the fixing of such rules to the competence of each State. But, on
the other hand, a State cannot claim that the rules it has laid down
are entitled to recognition by another State unless it has acted in
conformity with this general aim of making the nationality granted
accord with an effective link between the State and the
individual.
According to the practice of States, nationality constitutes the
juridical expression of the fact that an individual is more closely
connected with the population of a particular State. Conferred by a

State, it only entitles that State to exercise protection if it
constitutes a translation into juridical terms of the individual's
connection with that State. Is this the case as regards Mr.
Nottebohm? At the
time of his naturalization, does Nottebohm appear to have been
more closely attached by his tradition, his establishment, his
interests, his activities, his family ties, his intentions for the near
future,
to Liechtenstein than to any other State?
In this connection the Court stated the essential facts of the case
and pointed out that Nottebohm always retained his family and
business connections with Germany and that there is nothing to
indicate that his application for naturalization in Liechtenstein was
motivated by any desire to dissociate himself from the Government
of his country. On the other hand, he had been settled for 34
years in Guatemala, which was the centre of his interests and his
business activities. He stayed there until his removal as a result of
war measures in 1943, and complains of Guatemala's refusal to
readmit him. Members of Nottebohm's family had, moreover,
asserted his desire to spend his old age in Guatemala. In contrast,
his actual connections with Liechtenstein were extremely tenuous.
If
Nottebohm went to chat country in 1946, this was because of the
refusal of Guatemala to admit him. There is thus the absence of any
bond of attachment with Liechtenstein, but there is a longstanding
and close connection between him and Guatemala, a link which his
naturalization in no way weakened. That naturalization was not
based on any real prior connection with Liechtenstein,
nor did it in any way alter the manner of life of the person upon
whom it was conferred in exceptional circumstances of speed and
accommodation. In both respects, it was lacking in the genuineness
requisite to an act of such importance, if it is to be enticed to be
respected by a State in the position of Guatemala. It was granted
without regard to the concept of nationality adopted in international
relations. Naturalization was asked for not so much for the purpose
of obtaining a legal recognition of Nottebohm's membership in fact
in the population of Liechtenstein, as it was to enable him to
substitute for his status as a national of a belligerent State that of
the subject of a neutral State, with the sole aim of thus coming
within the protection of Liechtenstein but not of becoming wedded
to
its traditions, its interests, its way of life or of assuming the
obligations - other than fiscal obligations - and exercising the rights
pertaining to the status thus acquired.
For these reasons the Court held the claim of Liechtenstein to be
inadmissible.
Name of the Case: Arrest Warrant of 11 April 2000
(Democratic Republic of Congo vs Belgium); Year of the
decision: 2002; and Court: ICJ.
Overview: A Belgium Judge issued and circulated, internationally, an
arrest warrant against the incumbent Foreign Minister of Congo
based on universal jurisdiction. Congo asked the Court to
decide that Belgium violated international law because it did not
respect the inviolability and immunities of the foreign minister from
criminal process before Belgian courts.
Facts of the Case:
On 11 April 2000, a Belgian Magistrate issued an international
arrest warrant against Mr. Yerodia. At the time, Yerodia was the
Foreign Minister of Congo. The Court issued the warrant based on
universal jurisdiction. It accused Yerodia of inciting racial hatred.
These speeches, allegedly, incited the population to attack Tutsi
residents in Rwanda, which resulted in many deaths. The warrant
alleged Yerodia committed grave breaches of the Geneva
Conventions of 1949 and its Additional Protocols and crimes against
humanity. Belgium sent the arrest warrant to Interpol and circulated
it
to all States, including to Congo. The warrant asked States to arrest,
detain, and extradite Yerodia to Belgium. After Belgium issued the
warrant, in November 2000, Yerodia became the Education
Minister. At the time of the judgement, he did not hold a Ministerial
post in Congo.
Questions before the Court:
Did Belgium violate customary international law principles
concerning the absolute inviolability and immunity from criminal
process of an incumbent Foreign Minister, when it issued and
internationally circulated the arrest warrant? If yes, did it violate the
principle of sovereign equality amongst States, does this
unlawfulness preclude States who received the warrant from
exercising
it, should the Court order reparations and should Belgium recall and
cancel its arrest warrant?
2
[NB: Congo placed two separate legal questions before the Court at
the time of it made its application to the ICJ. It contested Belgiums
basis of jurisdiction universal jurisdiction stating that it
violated the principle of sovereign equality (see para 17). Both
Congo and the Court did not discuss this in its final submissions and
judgement (see paras 41 43, 45, 46). Several judges in their
separate opinions discussed the issue (see below).]
Belgiums Objections:
Belgium raised four objections to the jurisdiction of the Court. One
argument was that there was no longer a legal dispute because
Yerodia was no longer the Foreign Minister. The Court rejected all
four objections (see paras 23 40, 44).
The Courts Decision:
The issuance and circulation of the arrest warrant violated
Belgiums international obligations towards Congo. Belgium failed
to respect, and infringed, Yerodias immunity and the inviolability
enjoyed by him under international law.
Relevant Findings of the Court:
1. It is an established principle of international law that Heads of
States and Governments, Foreign Ministers and Diplomatic and
Consular agents enjoys immunities from civil and criminal
jurisdictions of other States.
2. In the absence of treaty law, customary international law
determines the immunities of Ministers of Foreign Affairs. These
immunities are not given for their personal benefit; but to ensure
the
effective performance of their functions of behalf of theirStates.
The functions of the Foreign Minister require frequent travel to
other countries. International law recognizes him as a
representative of the State solely by virtue of his office. The
functions of a Foreign Minister are such that during his tenure he
enjoys absolute immunity from criminal jurisdiction and
inviolability when he is abroad.
3. As the incumbent Foreign Minister, Yerodia enjoys immunity
(during his tenure) for acts performed, both, in an official capacity
and in a private capacity. The immunity applies regardless of
whether the Minister is on foreign territory in an official visit or
private visit. This immunity extends not only to his actions during
his tenure; but, also to his actions before he became Foreign
Minister.
Thus, if a Minister for Foreign Affairs is arrested in another State on
a criminal charge, he or she is thereby prevented from exercising
the functions of his or her office. The consequences of such
impediment to the exercise of those official functions are equally
serious. Furthermore, even the mere risk that, by travelling to or
transiting another State a Minister for Foreign Affairs might be
exposing himself or herself to legal proceedings could deter the
Minister from travelling internationally when required to do so for
the purposes of the performance of his or her official functions.
4. The Court rejected Belgiums argument that the Minister does
not enjoy immunity because he is accused of having committed war
crimes or crimes against humanity. (Belgium relied on the
Pinochet Case (decided by the House of Lords, UK), the Qaddafi
Case (decided by the French Court of Cassation) and Statutes of
International Criminal Court and Tribunals.) The Court held that
there was no exception in customary international law to the
absolute immunity of an incumbent Foreign Minister.
It (the Court) has been unable to deduce from this practice that
there exists under customary international law any form of
exception to the rule according immunity from criminal jurisdiction
and
inviolability to incumbent Ministers of Foreign Affairs, when they are
suspected of having committed war crimes or crimes against
humanityThe Court has also examined the rules concerning the
immunity or criminal responsibility of persons having an official
capacity contained in the legal instruments creating international
criminal tribunals, and which are specifically applicable It finds
that these rules likewise do not enable it to conclude that any such
an exception exists in customary international law in regard to
national courts.
5. International Conventions give jurisdiction to national Courts over
various crimes and, at times, requires them to exercise this
jurisdiction [for example, the Torture Convention]. This requirement
does not affect the immunities given to Foreign Ministers under
international law. Despite international conventions establishing
domestic jurisdiction, Foreign Ministers are immune before foreign
courts.
6. Immunity does not mean impunity. The person continues to be
individually responsible for the crime he committed.
While jurisdictional immunity is procedural in nature, criminal
responsibility is a question of substantive law. Jurisdictional
immunity may well bar prosecution for a certain period or for
certain

offences; it cannot exonerate the person to whom it applies from all
criminal responsibility.
7. The Court set out four situations where an incumbent or former
Foreign Minister could be prosecuted:
a. Prosecution in his own country according to the domestic law
(the international law of immunity is not recognized before a
persons national courts);
b. If his country waives his immunity, prosecution before a foreign
court;
c. Once he ceases to be the Foreign Minister, he no longer enjoys
immunity before foreign courts for private acts committed during
his tenure as Foreign Minister; and for all acts committed before
or after his tenure in office; and
d. Prosecution before an international criminal body, with the
necessary jurisdiction (for example the ICC).
8. The ICJ concluded that the issuance and circulation of the arrest
warrant violated Belgiums obligations towards Congo, in that it
failed to respect the immunity of that Minister and, more
particularly infringed the immunity from criminal jurisdiction and
the inviolability enjoyed by him under international law. It did not
matter that Yerodia was never arrested.
Since Mr. Yerodia was called upon in that capacity to undertake
travel in the performance of his duties, the mere international
circulation of the warrant could have resulted, in particular, in his
arrest while abroad. The Court observes Mr. Yerodia, on applying
for a visa to go to two countries, [apparently] learned that he ran
the risk of being arrested as a result of the arrest warrant
issued against him by Belgium the arrest warrant sometimes
forced Minister Yerodia to travel by roundabout routes.
9. Congo asked the Court to rule that the unlawfulness of the arrest
warrant precludes States who received the warrant from exercising
it. The Court refused to indicate what the judgments
implications might be for third States. Its determination is limited to
Congo and Belgium. [NB: the Statute of the ICJ requires that its
rulings should not create binding obligations on States who are
not parties to the dispute.]
10. On reparation, the Court held that the issuance and circulation
of the arrest warrant engaged Belgiums international responsibility.
The Court considers that Belgium must, by means of its
own choosing, cancel the warrant in question and so inform the
authorities to whom it was circulated. The Court did not order any
other reparations.
Ahmadou Sadio Diallo Case (Republic of Guinea v
Democratic Republic of the Congo)
A. Introduction
1 In its judgment on preliminary objections in Ahmadou Sadio Diallo
(Republic of Guinea v Democratic Republic of the Congo) (Diallo
Case), rendered on 24 May 2007, the International Court
of Justice (ICJ) pragmatically clarified some crucial questions of law
concerning diplomatic protection, both in general and with regard
to corporations and shareholders in particular. To this end, the
ICJ took the opportunity to give the 2006 International Law
Commission (ILC)Draft Articles on Diplomatic Protection a close
inspection; and was able to embrace a modern, human rights-
centred
approach to the subject by adopting Art. 1 ILC Draft Articles on
Diplomatic Protection as its accepted definition. With regard to the
40-year-old landmark decision in the Barcelona Traction Case,
the ICJ ratified most findings but introduced new features that
facilitate the application of the law of diplomatic protection by both
host and home States (Alvarez-Jimnez 442). In detail, the ICJ
introduced changes in the burden of proof regarding the exhaustion
of local remedies and clarified which States might be able to seek
diplomatic protection of corporations. For host States, and for
foreign investors and their home States, the decision is an
important piece of international jurisprudence which completes and
adjusts previous judgments and decisions in matters of diplomatic
protection covered by customary international law.
B. Facts of the Case
2 On 28 December 1998 the Republic of Guinea instituted legal
proceedings against the Democratic Republic of the Congo (DRC),
claiming by way of diplomatic protection that the latter had
violated various international rights of its national Ahmadou Sadio
Diallo, a businessman who had been a resident in the DRC since
1967 (renamed as Zaire in 1971, then renamed DRC again in
1997). In the Congo, Mr Diallo successfully established two
companies, Africom-Zaire and Africontainers-Zaire, both private
limited liability companies incorporated under Congolese (Zairean)
law. Mr Diallo, acting as manager (grant) of both companies, held
100% of the shares in Africom-Zaire and 40% of the shares in
Africontainers-Zaire. In the 1980s, both companies were owed
3
large sums of money by the Congolese public institutions and other
companies operating in the Congo, which included Zaire Fina, Zaire
Shell, and Zaire Mobil Oil. All attempts by Mr Diallo and
his companies to sue and recover the obligations were undermined
by Congolese authorities who stayed, inter alia, proceedings for the
enforcement of judgments. After being arrested and
imprisoned, Mr Diallo was expelled from the Congo in 1995; the
authorizing ministerial order, however, was mistakenly labelled as a
refusal to entry rather than as a formal expulsion. According
to Congolese (Zairean) legislation, contrary to a formal expulsion, a
refusal of entry has no appeal.
C. Submissions of the Parties
3 In the written proceedings, the applicant, the Republic of Guinea,
claimed that the respondent, the DRC, had failed to comply with its
obligations vis--vis Mr Diallo arising under international
human rights law and the Vienna Convention on Consular Relations
(1963). The complaint concerned Mr Diallos allegedly unlawful
detention, humiliation, and degradation during this time, and
his expulsion and subsequent denial of justice, as well as the
deprivation of his and his companies property rights. Guinea
exercised, through its action, diplomatic protection on behalf of Mr
Diallo
under three different headings, seeking to protect Mr Diallo as an
individual being a victim of arrest, expulsion, and ill-treatment; as a
shareholder, defending his direct rights in Africom-Zaire and
Africontainers-Zaire; and, by substitution, as a shareholder and
manager defending the rights of those two companies (Diallo Case
para. 31). Guinea alleged that Mr Diallos expulsion was the
final act in the course of actions implemented by the DRC in order
to prevent Mr Diallo from recovering the debts owed to his two
companies. As to the merits, Guinea claims the full restitution of
the damage suffered by Mr Diallo and by the Republic of Guinea in
the person of Mr Diallo respectively. During the early stage of
proceedings, Guinea also claimed the payment of debts owed to
Africom-Zaire and Africontainers-Zaire in accordance with the
principles of State responsibility and civil liability. In the light of the
ICJs judgment on the preliminary objections, the latter
submission was dropped at the end of the oral proceedings on the
merits.
4 The Congo, as the respondent, argued the inadmissibility of
Guineas application on two grounds: firstly, Guinea lacked standing
to exercise diplomatic protection since, essentially, it sought to
secure reparations for injuries suffered on account of the alleged
violation of rights of the two companies not possessing Guinean
nationality. Secondly, neither the companies nor Mr Diallo had
exhausted the available and effective local remedies existing in the
Congo (Zaire). As to the merits, the respondent contended that it
had acted appropriately at all times and that the expulsion was
justified in the Congolese public interest; thus, the Congo had not
committed any internationally wrongful acts towards Mr Diallo and
the Republic of Guinea.
D. Judgment of 24 May 2007 (Preliminary Objections)
1. Genuine Link
5 With regard to the diplomatic protection of Mr Diallos personal
rights by Guinea, the ICJ noted that his Guinean nationality was
undisputed, from the date of the alleged injury to the date the
proceedings before the ICJ were initiated (Diallo Case para. 41). The
fact that Mr Diallo had not lived in Guinea for 32 years preceding
his expulsion was discussed by neither the DRC nor by the
Court under the genuine link requirement set out in the
Nottebohm Case (Liechtenstein v Guatemala) (Second Phase)
([1955] ICJ Rep 4 at 23; Nottebohm Case).
2. Burden of Proof
6 Turning to the burden to prove the availability of effective
remedies and their exhaustion, the ICJ determined that both parties
to the dispute had obligations in this respect (Diallo Case para. 44):
concerning the remedies availability, their effectiveness, and their
non-exhaustion in the particular case, the onus lies with the
respondent State, the DRC. The State of nationality, Guinea, had to
prove either that its national had exhausted any available remedies
in the respondent States legal system; or that its national was
justified in not doing so, due to exceptional circumstances. In the
given case, the DRC had failed to establish that effective remedies
were available to Mr Diallo in order to achieve a correction of the
faulty refusal of entry order and to challenge his de facto
expulsion. There was no remedy available against the de facto
expulsion because the expulsion was legally based on the
ministerial decision to refuse entry, which is explicitly not open to
appeal
under Congolese law. Most importantly, Mr Diallo had no effective
remedy available to enforce a correction of that order. According to
the ICJ, administrative remedies can only be taken into

consideration for the purpose of the local remedies rule if they are
aimed at vindicating a right and not at obtaining a favour (Diallo
Case para. 47).
7 The ICJ did not address domestic means available to remedy Mr
Diallos arrest, detention, and ill-treatment. Even though Guinea
was rather vague with regard to ineffectiveness of the Congolese
judicial system, the ICJ confronted the DRC with its failure to deal
with this issue in its memorial (Diallo Case para. 45). This omission
was to the detriment of the DRC; the ICJ assumed the
absence of effective local remedies in the DRC available to Mr Diallo
so as to contest his arrest, detention, and ill-treatment.
3. Guineas Lack of Standing in the Light of Its Submissions
8 Guineas legal right to initiate the proceeding before the ICJ in
order to protect Mr Diallos personal rights was disputed solely
under the local remedies rule. Since the DRC was unable to satisfy
the ICJ that effective remedies were available to Mr Diallo in its
domestic administrative and judicial system, the ICJ completely
conceded Guineas standing with regard to the protection of Mr
Diallos rights as an individual.
9 With regard to the protection of Mr Diallos rights as a shareholder
of Africom-Zaire and Africontainers-Zaire, the DRC raised two
objections: firstly, none of the alleged injuries submitted by
Guinea concerned any direct shareholder rights and, in the
alternative, Mr Diallo had not exhausted all available remedies to
defend his shareholder rights. Whereas the ICJ rejected the
alternative
objection as not sufficiently established (Diallo Case para. 74), the
first objection induced the Court to ascertain the precise legal
nature of Africom-Zaire and Africontainers-Zaire and their legal
(in-)dependence vis--vis their shareholders with regard to property
and debts. As to that, the ICJ referred exclusively to the domestic
law of the State of incorporation, that is Congolese law (Diallo
Case para. 61). Given that Congolese law accords socits prives
responsabilit limite (private limited liability companies; SPRL)
independent legal personality distinct from that of their
shareholders, the ICJ concluded that both companies, being
incorporated under the legal form of a Congolese SPRL, hold their
own rights with regard to property and debts. This fundamental rule
is
valid as long as the relevant corporation is in existence (Barcelona
Traction Case para. 41; Diallo Case para. 63). A distinct claim is that
of SPRL shareholders if their direct rights vis--vis the SPRL
are affected. Again, these direct rights are exclusively defined by
the domestic legal order of the State of incorporation; the right of
the shareholders State of nationality to seek diplomatic
protection on behalf of affected shareholders is an essential
element of the customary legal regime of diplomatic protection
(Diallo Case para. 64). Leaving it at that, the ICJ found that Guinea
had
standing since its action sought to protect the shareholder rights of
its national Mr Diallo. As to the precise nature, content, and limits of
Mr Diallos direct shareholder rights vis--vis the Africom-
Zaire and Africontainers-Zaire SPRLs under Congolese law, the
Court considered it unnecessary to rule on these substantive issues
in the context of preliminary objections, leaving the decision to
the merits stage.
10 Apart from Mr Diallos direct shareholder rights, Guinea sought
diplomatic protection in defence of the companies rights by
substitution. Guinea justified its action by claiming that the
companies nationality is necessarily that of the DRC given that
Congolese law required the incorporation of Africom-Zaire and
Africontainers-Zaire in the DRC as a prerequisite of doing business
in the country (Diallo Case para. 84). The DRC objected that Guinea
was legally barred from seeking diplomatic protection on behalf of
corporations with foreign nationality and, in the alternative,
that the companies had not exhausted all available remedies to
defend their rights. The latter objection met no response, because
the ICJ rejected Guineas standing on the basis of the former
objection. The Court cited its famous Barcelona Traction Case in
order to reinforce the principle that the infringement of company
rights does not involve responsibility towards the shareholders,
even if their interests are affected (Barcelona Traction Case para.
46). The Court found that no general exception of that rule had
emerged in the past 40 years. Bilateral treaties of commerce
(Elettronica Sicula Case), bilateral investment treaties
(Investments, Bilateral Treaties), the Convention on the Settlement
of Investment Disputes between States and Nationals of Other
States
([opened for signature 18 March 1965, entered into force 14
October 1966] 575 UNTS 159; ICSID Convention), and investment
contracts between investors and host States as well as the
decisions of international tribunals applying these special
agreements were all considered unsuitable to establish a new
4
customary rule. As leges speciales, they could equally confirm that
the
general rule remains unaffected (Diallo Case para. 90).
E. Assessment
1. Diplomatic Protection of Individual (Human) Rights
11 Treatises on diplomatic protection traditionally open with a
definition set out by the Permanent Court of International Justice
(PCIJ) in its famous case Mavrommatis Palestine Concessions
(Greece v Great Britain) (Jurisdiction) (PCIJ Series A No 2) of 1924:
By taking up the case of one of its subjects and by resorting to
diplomatic action or international judicial proceedings on his behalf,
a State is in reality asserting its own rightsits right to ensure, in
the person of its subjects, respect for the rules of international law.
(At 12; Mavrommatis Concessions Cases; see also Panevezys-
Saldutiskis Railway [Estonia v Lithuania] PCIJ Series A/B No 76 at
16).
The ICJ stuck loyally to its predecessors stance, notwithstanding
significant developments in human rights law (Nottebohm Case 24;
Barcelona Traction Case para. 44). It was not until 2001, in the
LaGrand Case (Germany v United States of America), that the ICJ
moved towards recognition of the individuals direct legal status
under international law (at paras 42 and 77). By stating that
individual rights are capable of diplomatic protection, the Court
acknowledged that a State may assert rights directly conferred to
the injured person by international law (see also the Avena and
Other Mexican Nationals Case [Mexico v United States of America]
at para. 40). In the Diallo Case, the ICJ goes one step further. The
Court considered the innovative definition in Art. 1 ILC Draft
Articles on Diplomatic Protection of 2006 a reflection of customary
international law as it stands in the 21st century (at para. 39):
diplomatic protection consists of the invocation by a State, through
diplomatic actionof the responsibility of another State for an
injury caused by an internationally wrongful act of that State to a
natural or legal person that is a national of the former State with a
view to the implementation of such responsibility.
12 By referring to Art. 1 ILC Draft Articles on Diplomatic Protection,
the ICJ gives way to the prevailing view that under international
human rights law, the State of nationality defends the
international rights of its injured national on his or her behalf when
exercising diplomatic protection (Vermeer-Knzli The Protection of
Individuals [2007] 57). What the ICJ did not discuss are the
legal consequences flowing from the human rights-centred
approach. The traditional concept gave carte blanche to the State
of nationality in every respect. Whereas the injured person lost
control
over his or her claim in the course of the international proceeding,
the latter gained absolute control, including the right to abandon
the claim or to retain the obtained compensation (Amerasinghe
[2008] 26). It is safe to say that the new concept of diplomatic
protection does not automatically reduce States latitude on the
international plane, as Art. 19 ILC Draft Articles on Diplomatic
Protection points out. The provision cautiously speaks of
recommended practice when suggesting that States should give
due considerations to views and wishes of the injured person and
should,
subject to any reasonable reduction, transfer the obtained
compensation to that person. Indeed, construed as an international
procedural right of the State to act on behalf of its national leaves
full
discretion with the State regarding the conduct of the case
(Koessler 189). In contrast, national law may restrict the
discretionary power of governments, as demonstrated by some
decisions of
national courts (Vermeer-Knzli The Protection of Individuals [2007]
203).
2. Genuine Link Criterion
13 Since the Nottebohm Case of 1955 it appears to be settled that
in order for it to be valid as the basis of diplomatic protection,
nationality requires a genuine and effective link between the State
of de iure nationality and the injured person; at least, if the
responsible State has a tangible link with the injured person as well
(Nottebohm Case 23). However, the Nottebohm Case triggered
disagreement as to whether the ICJ had specific circumstances in
mind when formulating the genuine link requirement, for example
the dual nationality of the injured person, or a nationality
acquired by fraudulent means (Amerasinghe [2008] 95; Okowa
[220]; see also Multiple Nationality). Art. 4 ILC Draft Articles on
Diplomatic Protection is non-committal with regard to the general
validity of the genuine link rule; the ICJ, however, moves towards a
correction of the Nottebohm dictum. In the LaGrand Case, the
injured LaGrand brothers were not aware of their German
nationality after a lifetime of 35 years in the United States.
However, they never acquired US nationality, which left Germany

as the only State capable of exercising diplomatic protection.
Similarly,
Mr Diallos sole nationality was that of the applicant Guinea, even
though he had lived and worked for 32 years in the DRC. Apart from
the fact that the DRC did not challenge Mr Diallos
nationality under the genuine link criterion, the Diallo Case
illustrates that ICJ jurisprudence does not support the view that, as
a general rule, diplomatic protection requires an effective bond
between the national and the State, when there is the risk of
leaving the injured person without protection on the international
plane (Micula and Others v Romania [Decision on Jurisprudence and
Admissibility of 24 September 2008] para. 99). This is valid even if
the injured national has no effective connection whatsoever with
the protecting State of nationality, but apparently only with the
respondent State (for a different view see Amerasinghe [2008]
116).
14 Regarding the nationality of a corporation, the ICJ stayed in line
with its landmark decision in the Barcelona Traction Case: a
corporations nationality does not derive from the nationality of the
majority of shareholders (see also Corporations in International
Law). According to the Barcelona Traction Case, the State in which
the corporation was established as a legal person and in which it
has its seat of corporate management is eligible to protect the
corporation on the international plane (at para. 70). Regrettably,
the ICJ had no opportunity to determine whether a corporation has
double nationality when it is incorporated under the law of one
State and has its seat of corporate management in another State.
Consequently, it remained unclear what constitutes, under these
circumstances, a genuine link. Given that Africom-Zaire and
Africontainers-Zaire were incorporated in the DRC, having their
registered seats there too, the Diallo Case did not raise nationality
issues. However, the Court implicitly decided on the matter by
clarifying that the independent corporate personality is to be
determined on the basis of the domestic laws of the State of
incorporation
(at para. 62). Given that a company is born by way of
incorporation in accordance with the relevant domestic laws, only
the State of incorporationbeing the State of nationalityhas the
right to
defend the corporations rights flowing from this personality (at
para. 61). This approach is in line with the first sentence of Art. 9
ILC Draft Articles on Diplomatic Protection. An exception to this
rule, however, is provided for in the second sentence of Draft Art. 9,
requiring a culmination of four factors in order to allow diplomatic
protection to be exercised by another State than the State of
incorporation: substantive business activities, seat of management,
and financial control must be located in that State and the
corporation is controlled by its nationals. The ILC bases this
exception
on consideration of policy and fairness rather than State practice
(Commentary to Art. 9 ILC Draft Articles on Diplomatic Protection
para. 4). In the light of the Diallo Case and in view of the fact
that Draft Art. 9 offers better terms to corporations than individuals,
it is doubtful whether the ILC would currently ratify such a
construed exception as a customarily accepted back-up nationality
(for a less critical view see Amerasinghe [2008] 135).
3. Burden to Prove the Exhaustion of Local Remedies
15 One distinguishing feature of the Diallo Case is the allocation
and distribution of the burden of proof with regard to the
exhaustion of local remedies. Relying exclusively on the parties
presentation and proof of the relevant facts, the ICJ unburdens itself
from becoming, ex officio, an expert on the national judicial
systems of the respondent State (Alvarez-Jimnez 446). The State
of nationality must prove that the injured national has indeed
exhausted all remedies or, alternatively, that he or she was relieved
from exhausting them. The respondent State must prove that there
are effective remedies available in its domestic legal system which
were not exhausted (Diallo Case para. 44). If the respondent State
does not raise the issue of the injured persons failure to exhaust
all available remedies, the Court conveniently falls back on a legal
assumption which goes to the detriment of the negligent
respondent State: it is assumed that all possible local remedies are
exhausted. In the light of the general procedural principle that it is
for the claimant to prove his claim (onus probandi actori incumbit;
Amerasinghe [2004] 292) and the corresponding rule that every
party that seeks to establish a fact bears the burden of proving it
(Military and Paramilitary Activities in and against Nicaragua
[Nicaragua v United States of America] [Jurisdiction and
Admissibility] [1984] ICJ Rep 392 para. 101), the Diallo Case
introduces an important clarification. That is, in the course of
diplomatic actions, it is the obligation of the respondent State to
clarify,
5
first of all, that local remedies are available and were not
exhausted, in order to refute the legal assumption of the opposite.
Only when this preliminary condition is fulfilled will the ICJ evaluate
assertions and evidence provided by both parties with regard to
(non)existence, (non)accessibility, or (non)exhaustion of local
remedies, or the (in)effectiveness of them.
4. Protection of Direct Shareholder Rights
16 In the Diallo Case, the ICJ took the opportunity to clarify an
ambiguous passage of the Barcelona Traction Case which caused
some confusion regarding the relevant legal order determining the
rights allocated to shareholders in their relation to the corporation
(Barcelona Traction Case para. 50). Whereas the Barcelona Traction
Case conveys the impression that, in the light of Art. 38 ICJ
Statute, the Court tried to establish general principles of law in
order to determine the legal relationship between limited liability
corporations and their shareholders, the ICJ in the Diallo Case
clarifies that it is the legal system of the State of incorporation
alone that matters (at para. 62; Alvarez-Jimnez 443).
Consequently, the existence of direct shareholder rights as well as
their legal
nature, content, and limits have to be determined on the basis of
the domestic legal order of the State of incorporation. Interestingly
enough, the Court adjourns the evaluation of the relevant
Congolese law to the merits stage. The postponement makes sense
under the qualified assumption that any domestic legal system,
including that of the DRC, inevitably awards a minimum of direct
rights to shareholders as owners of the company.
5. Protection of the Corporation by Substitution
17 The ICJ was rather terse when dealing with the right of the
shareholders State of nationality to protect the rights of the
corporation by substitution, even though this aspect of the Diallo
Case
was anticipated with great interest by scholars and foreign
investors. The doctrine of protection by substitution was
developed out of the need to offer last resort protection to foreign
investments
(Diallo Case para. 88). Foreign investments are necessarily exposed
to the domestic legal order of the host State, on the grounds of
which the host State can prevent any diplomatic action on behalf
of the corporation, either by enforcing the latters incorporation
under domestic law or by dissolving it. Art. 11 ILC Draft Articles on
Diplomatic Protection acknowledges these two situations as
exceptions to the rule that only the corporations State of
nationality is allowed under customary international law to seek
diplomatic action in defence of the rights of the corporation. In
order to
support these exceptions, the ILC slightly overstretched the
relevant passage of the Barcelona Traction Case, contending that
the ICJ had accepted these two exceptional situations. The ICJ,
however, spoke of a theory that does not need to be evaluated
(Barcelona Traction Case para. 92). More than three decades later,
in the Diallo Case, the Court refuses to ennoble Art. 11 (b) ILC
Draft Articles on Diplomatic Protection with a customary law
character (at para. 93) just because the specific case needed no
determination in this regard. Irrespective of whether the ICJ avoided
looking too closely at the local de facto necessities when doing
business in the Congo (Diallo Case [Declaration of Judge ad hoc
Mahiou] para. 10; Vermeer-Knzli Diallo and the Draft Articles
[2007] 949), foreign investors must proceed on the assumption that
the ICJ is not favourably disposed towards the extension of
diplomatic action to protect shareholders interests. Above all, the
Court was unwilling to acknowledge any changes to the customary
diplomatic protection rule by way of inductive reasoning: special
investment agreements do not allow any conclusions on the
content of general customary law (Diallo Case para. 90; Barcelona
Traction Case para. 62). Given that bilateral and regional
investment treaties regularly exclude the possibility of recourse of a
State Party to methods of traditional diplomatic protection (see also
Art. 27 (1) ICSID Convention), the argument has, on one hand,
some merit; on the other hand, however, the conclusion of
investment treaties regularly involves the anticipatory protection
of shareholders having the nationality of one State Party (Dolzer
and Schreuer 58). Whatever the case may be, the ICJs lighthanded
statement leads to some methodological concerns. With a view to a
multitude of almost identical provisions in more than 2,000 bilateral
and regional investment treaties, the Arbitral
Tribunal observed in Mondev International Ltd v United States of
America (Award of 11 October 2002) (Case No ARB(AF)/99/2 [2004]
6 ICSID Rep 192): such a body of concordant practice will
necessarily have influenced the content of rules governing the
treatment of foreign investment in current international law (at
para. 117).
US v. YUNIZ

Appellant Fawaz Yunis challenges his convictions on conspiracy,
aircraft piracy, and hostage-taking charges stemming from the
hijacking of a Jordanian passenger aircraft in Beirut, Lebanon. He
appeals from orders of the district court denying his pretrial
motions relating to jurisdiction, illegal arrest, alleged violations of
the Posse Comitatus Act, and the government's withholding of
classified documents during discovery. Yunis also challenges the
district court's jury instructions as erroneous and prejudicial.
Although this appeal raises novel issues of domestic and
international law, we reject Yunis' objections and affirm the
convictions.
On June 11, 1985, appellant and four other men boarded Royal
Jordanian Airlines Flight 402 ("Flight 402") shortly before its
scheduled departure from Beirut, Lebanon. They wore civilian
clothes
and carried military assault rifles, ammunition bandoleers, and
hand grenades. Appellant took control of the cockpit and forced the
pilot to take off immediately. The remaining hijackers tied up
Jordanian air marshals assigned to the flight and held the civilian
passengers, including two American citizens, captive in their seats.
The hijackers explained to the crew and passengers that they
wanted the plane to fly to Tunis, where a conference of the Arab
League was under way. The hijackers further explained that they
wanted a meeting with delegates to the conference and that their
ultimate goal was removal of all Palestinians from Lebanon.
After a refueling stop in Cyprus, the airplane headed for Tunis but
turned away when authorities blocked the airport runway. Following
a refueling stop at Palermo, Sicily, another attempt to land in
Tunis, and a second stop in Cyprus, the plane returned to Beirut,
where more hijackers came aboard. These reinforcements included
an official of Lebanon's Amal Militia, the group at whose
direction Yunis claims he acted. The plane then took off for Syria,
but was turned away and went back to Beirut. There, the hijackers
released the passengers, held a press conference reiterating their
demand that Palestinians leave Lebanon, blew up the plane, and
fled from the airport.
An American investigation identified Yunis as the probable leader of
the hijackers and prompted U.S. civilian and military agencies, led
by the Federal Bureau of Investigation (FBI), to plan Yunis'
arrest. After obtaining an arrest warrant, the FBI put "Operation
Goldenrod" into effect in September 1987. Undercover FBI agents
lured Yunis onto a yacht in the eastern Mediterranean Sea with
promises of a drug deal, and arrested him once the vessel entered
international waters. The agents transferred Yunis to a United
States Navy munitions ship and interrogated him for several days
as
the vessel steamed toward a second rendezvous, this time with a
Navy aircraft carrier. Yunis was flown to Andrews Air Force Base
from the aircraft carrier, and taken from there to Washington,
D.C. In Washington, Yunis was arraigned on an original indictment
charging him with conspiracy, hostage taking, and aircraft damage.
A grand jury subsequently returned a superseding indictment
adding additional aircraft damage counts and a charge of air piracy.
Yunis filed several pretrial motions, among them a motion to
suppress statements he made while aboard the munitions ship. In
United States v. Yunis (Yunis I), 859 F.2d 953 (D.C. Cir. 1988), this
court reversed a district court order suppressing the statements,
and authorized their introduction at trial. We revisited the case on a
second interlocutory appeal relating to discovery of classified
information, reversing the district court's disclosure order. United
States v. Yunis (Yunis II), 867 F.2d 617 (D.C. Cir. 1989).
Yunis admitted participation in the hijacking at trial but denied parts
of the government's account and offered the affirmative defense of
obedience to military orders, asserting that he acted on
instructions given by his superiors in Lebanon's Amal Militia. The
jury convicted Yunis of conspiracy, 18 U.S.C. 371 (1988), hostage
taking, 18 U.S.C. 1203 (1988), and air piracy, 49 U.S.C.
App. Sec. 1472(n) (1988). However, it acquitted him of three other
charged offenses that went to trial: violence against people on
board an aircraft, 18 U.S.C. 32(b) (1) (1988), aircraft damage, 18
U.S.C. 32(b) (2) (1988), and placing a destructive device aboard
an aircraft, 18 U.S.C. 32(b) (3) (1988). The district court imposed
concurrent sentences of five years for conspiracy, thirty years
for hostage taking, and twenty years for air piracy. Yunis appeals his
conviction and seeks dismissal of the indictment.
Yunis argues that the district court lacked subject matter and
personal jurisdiction to try him on the charges of which he was
convicted, that the indictment should have been dismissed because
the
government seized him in violation of the Posse Comitatus Act and
withheld classified materials useful to his defense, and that the
convictions should be reversed because of errors in the jury
instructions. We consider these claims in turn.
6
Yunis appeals first of all from the district court's denial of his motion
to dismiss for lack of subject matter and personal jurisdiction. See
United States v. Yunis, 681 F. Supp. 896 (D.D.C. 1988).
Appellant's principal claim is that, as a matter of domestic law, the
federal hostage taking and air piracy statutes do not authorize
assertion of federal jurisdiction over him. Yunis also suggests that a
contrary construction of these statutes would conflict with
established principles of international law, and so should be
avoided by this court. Finally, appellant claims that the district court
lacked
personal jurisdiction because he was seized in violation of American
law.
The Hostage Taking Act provides, in relevant part:
(a) [W]hoever, whether inside or outside the United States, seizes
or detains and threatens to kill, to injure, or to continue to detain
another person in order to compel a third person or a
governmental organization to do or to abstain from any act ... shall
be punished by imprisonment by any term of years or for life.
(b) (1) It is not an offense under this section if the conduct required
for the offense occurred outside the United States unless--
(A) the offender or the person seized or detained is a national of the
United States;
(B) the offender is found in the United States; or
(C) the governmental organization sought to be compelled is the
Government of the United States.
18 U.S.C. 1203. Yunis claims that this statute cannot apply to an
individual who is brought to the United States by force, since those
convicted under it must be "found in the United States." But
this ignores the law's plain language. Subsections (A), (B), and (C)
of section 1203(b) (1) offer independent bases for jurisdiction
where "the offense occurred outside the United States." Since two
of the passengers on Flight 402 were U.S. citizens, section 1203(b)
(1) (A), authorizing assertion of U.S. jurisdiction where "the offender
or the person seized or detained is a national of the United
States," is satisfied. The statute's jurisdictional requirement has
been met regardless of whether or not Yunis was "found" within the
United States under section 1203(b) (1) (B).
Appellant's argument that we should read the Hostage Taking Act
differently to avoid tension with international law falls flat. Yunis
points to no treaty obligations of the United States that give us
pause. Indeed, Congress intended through the Hostage Taking Act
to execute the International Convention Against the Taking of
Hostages, which authorizes any signatory state to exercise
jurisdiction over persons who take its nationals hostage "if that
State considers it appropriate." International Convention Against
the Taking of Hostages, opened for signature Dec. 18, 1979, art. 5,
para. 1, 34 U.N. GAOR Supp. (No. 39), 18 I.L.M. 1456, 1458. See
H.R. CONF. REP. No. 1159, 98th Cong., 2d Sess. 418 (1984),
reprinted in 1984 U.S.CODE CONG. & ADMIN.NEWS 3182,
3710, 3714.
Nor is jurisdiction precluded by norms of customary international
law. The district court concluded that two jurisdictional theories of
international law, the "universal principle" and the "passive
personal principle," supported assertion of U.S. jurisdiction to
prosecute Yunis on hijacking and hostage-taking charges. See Yunis,
681 F. Supp. at 899-903. Under the universal principle, states
may prescribe and prosecute "certain offenses recognized by the
community of nations as of universal concern, such as piracy, slave
trade, attacks on or hijacking of aircraft, genocide, war crimes,
and perhaps certain acts of terrorism," even absent any special
connection between the state and the offense. See RESTATEMENT
(THIRD) OF THE FOREIGN RELATIONS LAW OF THE
UNITED STATES Secs. 404, 423 (1987) [hereinafter RESTATEMENT].
Under the passive personal principle, a state may punish non-
nationals for crimes committed against its nationals outside of
its territory, at least where the state has a particularly strong
interest in the crime. See id. at Sec. 402 comment g; United States
v. Benitez, 741 F.2d 1312, 1316 (11th Cir. 1984) (passive personal
principle invoked to approve prosecution of Colombian citizen
convicted of shooting U.S. drug agents in Colombia), cert. denied,
471 U.S. 1137, 105 S. Ct. 2679, 86 L. Ed. 2d 698 (1985).
Relying primarily on the RESTATEMENT, Yunis argues that hostage
taking has not been recognized as a universal crime and that the
passive personal principle authorizes assertion of jurisdiction
over alleged hostage takers only where the victims were seized
because they were nationals of the prosecuting state. Whatever
merit appellant's claims may have as a matter of international law,
they cannot prevail before this court. Yunis seeks to portray
international law as a self-executing code that trumps domestic law
whenever the two conflict. That effort misconceives the role of
judges as appliers of international law and as participants in the
federal system. Our duty is to enforce the Constitution, laws, and
treaties of the United States, not to conform the law of the land to

norms of customary international law. See U.S. CONST. art. VI. As
we said in Committee of U.S. Citizens Living in Nicaragua v. Reagan,
859 F.2d 929 (D.C. Cir. 1988): "Statutes inconsistent with
principles of customary international law may well lead to
international law violations. But within the domestic legal realm,
that inconsistent statute simply modifies or supersedes customary
international law to the extent of the inconsistency." Id. at 938. See
also Federal Trade Comm'n v. Compagnie de Saint-Gobain-Pont-a-
Mousson, 636 F.2d 1300, 1323 (D.C. Cir. 1980) (U.S. courts
"obligated to give effect to an unambiguous exercise by Congress
of its jurisdiction to prescribe even if such an exercise would exceed
the limitations imposed by international law").
To be sure, courts should hesitate to give penal statutes
extraterritorial effect absent a clear congressional directive. See
Foley Bros. v. Filardo, 336 U.S. 281, 285, 69 S. Ct. 575, 577, 93 L.
Ed. 680
(1949); United States v. Bowman, 260 U.S. 94, 98, 43 S. Ct. 39, 41,
67 L. Ed. 149 (1922). Similarly, courts will not blind themselves to
potential violations of international law where legislative
intent is ambiguous. See Murray v. The Schooner Charming Betsy, 6
U.S. (2 Cranch) 64, 118, 2 L. Ed. 208 (1804) (" [A]n act of congress
ought never to be construed to violate the law of nations, if
any other possible construction remains...."). But the statute in
question reflects an unmistakable congressional intent, consistent
with treaty obligations of the United States, to authorize
prosecution
of those who take Americans hostage abroad no matter where the
offense occurs or where the offender is found. Our inquiry can go
no further.
The Antihijacking Act provides for criminal punishment of persons
who hijack aircraft operating wholly outside the "special aircraft
jurisdiction" of the United States, provided that the hijacker is
later "found in the United States." 49 U.S.C. App. Sec. 1472(n).
Flight 402, a Jordanian aircraft operating outside of the United
States, was not within this nation's special aircraft jurisdiction. See
49
U.S.C. App. Sec. 1301. Yunis urges this court to interpret the
statutory requirement that persons prosecuted for air piracy must
be "found" in the United States as precluding prosecution of alleged
hijackers who are brought here to stand trial. But the issue before
us is more fact-specific, since Yunis was indicted for air piracy while
awaiting trial on hostage-taking and other charges; we must
determine whether, once arrested and brought to this country on
those other charges, Yunis was subject to prosecution under the
Antihijacking Act as well.
The Antihijacking Act of 1974 was enacted to fulfill this nation's
responsibilities under the Convention for the Suppression of
Unlawful Seizure of Aircraft (the "Hague Convention"), which
requires signatory nations to extradite or punish hijackers "present
in" their territory. Convention for the Suppression of Unlawful
Seizure of Aircraft, Dec. 16, 1970, art. 4, para. 2, Dec. 16, 1970, 22
U.S.T. 1643, 1645, T.I.A.S. No. 7192. See H. REP. No. 885, 93d Cong.,
2d Sess. 10 (1974), reprinted in 1974 U.S.Code Cong. &
Admin.News 3975, 3978; S. REP. No. 13, 93d Cong., 1st Sess. 1, 3
(1973). This suggests that Congress intended the statutory term
"found in the United States" to parallel the Hague Convention's
"present in [a contracting state's] territory," a phrase which does
not
indicate the voluntariness limitation urged by Yunis. Moreover,
Congress interpreted the Hague Convention as requiring the United
States to extradite or prosecute "offenders in its custody,"
evidencing no concern as to how alleged hijackers came within U.S.
territory. S. REP. No. 13, 93d Cong., 1st Sess. at 3; see H. REP. No.
885, 93d Cong., 2d Sess. at 10, 1974 U.S.Code Cong. &
Admin.News 3978 (Hague Convention designed to close "gap" in
Tokyo Convention, which did not require states to prosecute or
extradite hijackers "in [their] custody"). From this legislative
history we conclude that Yunis was properly indicted under section
1472(n) once in the United States and under arrest on other
charges.
The district court correctly found that international law does not
restrict this statutory jurisdiction to try Yunis on charges of air
piracy. See Yunis, 681 F. Supp. at 899-903. Aircraft hijacking may
well be one of the few crimes so clearly condemned under the law
of nations that states may assert universal jurisdiction to bring
offenders to justice, even when the state has no territorial
connection to the hijacking and its citizens are not involved. See id.
at 900-01; United States v. Georgescu, 723 F. Supp. 912, 919
(E.D.N.Y. 1989); RESTATEMENT Sec. 404 & reporters' note 1,
Sec. 423; Randall, Universal Jurisdiction under International Law, 66
Tex. L. Rev. 785, 815-34 (1988). But in any event we are satisfied
that the Antihijacking Act authorizes assertion of federal
jurisdiction to try Yunis regardless of hijacking's status vel non as a
universal crime. Thus, we affirm the district court on this issue.
7
Yunis further argues that even if the district court had jurisdiction to
try him, it should have declined to exercise that jurisdiction in light
of the government's allegedly outrageous conduct in bringing
him to the United States. This claim was rejected by the district
court before trial. See United States v. Yunis, 681 F. Supp. 909, 918-
21 (D.D.C. 1988), rev'd on other grounds, 859 F.2d 953 (Yunis I)
.
Principally, Yunis relies on United States v. Toscanino, 500 F.2d 267
(2d Cir. 1974), in which the court held that due process requires
courts to divest themselves of personal jurisdiction acquired
through "the government's deliberate, unnecessary and
unreasonable invasion of the accused's constitutional rights." Id. at
275. Toscanino establishes, at best, only a very limited exception to
the
general rule (known as the "Ker-
1991030650;8022;1952117212;RP;;;
Even assuming, arguendo, that a district court could correctly
dismiss a case otherwise properly before it for the reasons given in
Toscanino, we find no merit in Yunis' claim. In Yunis I, we
reviewed the facts of Operation Goldenrod in some detail, including
the deception used to arrest Yunis, his injuries and hardships while
in custody, and the delay between his arrest and arraignment
in the United States. The court sought to determine whether or not
these circumstances voided Yunis' waiver of Fifth and Sixth
Amendment rights; we concluded that while the government's
conduct was neither "picture perfect" nor "a model for law
enforcement behavior," the "discomfort and surprise" to which
appellant was subjected did not render his waiver invalid. Yunis I,
859 F.2d
at 969. Similarly, we now find nothing in the record suggesting the
sort of intentional, outrageous government conduct necessary to
sustain appellant's jurisdictional argument. Cf. Sami v. United
States, 617 F.2d 755, 774 (D.C. Cir. 1979) (finding "no shocking
behavior characterized by abduction or brutality which would
support an actionable constitutional claim").
Next, Yunis appeals from the district court's denial of his motion to
dismiss on the basis of the government's alleged violation of the
Posse Comitatus Act, 18 U.S.C. 1385 (1988), which
establishes criminal penalties for willful use of "any part of the
Army or the Air Force" in law enforcement, unless expressly
authorized by law. See United States v. Yunis, 681 F. Supp. 891
(D.D.C.
1988). Despite the Posse Comitatus Act's express limitation to the
Army and Air Force, appellant seeks dismissal of the indictment on
the grounds that the Navy played a direct role in Operation
Goldenrod.
We cannot agree that Congress' words admit of any ambiguity. By
its terms, 18 U.S.C. 1385 places no restrictions on naval
participation in law enforcement operations; an earlier version of
the
measure would have expressly extended the bill to the Navy, but
the final legislation was attached to an Army appropriations bill and
its language was accordingly limited to that service. See H.R.
REP. No. 71, Part II, 97th Cong., 1st Sess. 4 (1981), reprinted in
1981 U.S.Code Cong. & Admin.News 1781, 1786 [hereinafter H.R.
REP. No. 71]; Note, The Posse Comitatus Act: Reconstruction
Politics Reconsidered, 13 AM.CRIM.L.REV. 703, 709-10 (1976).
Reference to the Air Force was added in 1956, consistent with
reassignment of Army aviation responsibilities to that new branch
of the military. See H.R. REP. No. 71 at 4, 1981 U.S.Code Cong. &
Admin.News 1786. Nothing in this history suggests that we should
defy the express language of the Posse Comitatus Act by
extending it to the Navy, and we decline to do so. Accord United
States v. Roberts, 779 F.2d 565, 567 (9th Cir.), cert. denied, 479
U.S. 839, 107 S. Ct. 142, 93 L. Ed. 2d 84 (1986); see H.R. REP.
No. 71 at 4, U.S.Code Cong. & Admin.News 1786 (Navy "not legally
bound" by Posse Comitatus Act).
Furthermore, some courts have taken the view that the Posse
Comitatus Act imposes no restriction on use of American armed
forces abroad, noting that Congress intended to preclude military
intervention in domestic civil affairs. See Chandler v. United States,
171 F.2d 921, 936 (1st Cir. 1948), cert. denied, 336 U.S. 918, 69 S.
Ct. 640, 93 L. Ed. 1081 (1949); D'Aquino v. United States,
192 F.2d 338, 351 (9th Cir. 1951), cert. denied, 343 U.S. 935, 72 S.
Ct. 772, 96 L. Ed. 1343 (1952). And even if these difficulties could
be overcome, a remedial problem would remain, as dismissal
of all charges against Yunis might well be an inappropriate remedy
if violations of the Posse Comitatus Act were found. See United
States v. Cotten, 471 F.2d 744, 749 (9th Cir.) (rejecting dismissal
as remedy for alleged violation of Posse Comitatus Act on Ker-
Frisbie grounds), cert. denied, 411 U.S. 936, 93 S. Ct. 1913, 36 L.
Ed. 2d 396 (1973); see also United States v. Hartley, 796 F.2d 112,

115 (5th Cir. 1986) (noting courts' hesitation to adopt exclusionary
rule for violations of Posse Comitatus Act); United States v. Roberts,
779 F.2d at 568 (refusing to adopt exclusionary rule).
Nor is Yunis helped by 10 U.S.C. 375 (1988), which requires the
Secretary of Defense to issue regulations prohibiting "direct
participation" by military personnel in a civilian "search, seizure,
arrest, or other similar activity" unless expressly authorized by law.
Reliance on this provision faces the same remedial hurdle as direct
reliance on the Posse Comitatus Act: Under the Ker-Frisbie
doctrine, outright dismissal of the charges against Yunis would not
be an appropriate remedy for legal violations relating to his arrest.
See United States v. Crews, 445 U.S. at 474, 100 S. Ct. at 1251.
Nor would a violation of the regulations at issue amount to a
constitutional violation, making application of an exclusionary rule
or similar prophylactic measures inappropriate. See United States v.
Caceres, 440 U.S. 741, 754-55, 99 S. Ct. 1465, 1472-73, 59 L. Ed.
2d 733 (1979).
In any event, we agree with the district court that no governmental
illegality occurred. Regulations issued under 10 U.S.C. 375 require
Navy compliance with the restrictions of the Posse
Comitatus Act, but interpret that Act as allowing "indirect
assistance" to civilian authorities that does not "subject civilians to
the exercise of military power that is regulatory, proscriptive, or
compulsory in nature." 32 C.F.R. Sec. 213.10(a) (7) (1987). The
regulations are consistent with judicial interpretations of the Posse
Comitatus Act; in fact, they incorporate one of three tests
employed to identify violations. See Yunis, 681 F. Supp. at 892
(setting out three tests); United States v. McArthur, 419 F. Supp.
186, 194 (D.N.D. 1975) (" [T]he feared use which is prohibited by
the posse comitatus statute is that which is regulatory, proscriptive
or compulsory in nature ...."), aff'd sub nom. United States v.
Casper, 541 F.2d 1275 (8th Cir. 1976), cert. denied, 430 U.S. 970,
97
S. Ct. 1654, 52 L. Ed. 2d 362 (1977).
The district court found that Navy personnel played only a "passive"
role in housing, transporting, and caring for Yunis while he was in
the custody of the FBI, and that " [n]one of the Navy's
activities constituted the exercise of regulatory, proscriptive, or
compulsory military power." Yunis, 681 F. Supp. at 895-96. Nor did
the Navy's participation in Operation Goldenrod violate either of
the other judicial tests for violations of the Posse Comitatus Act:
The Navy's role did not amount to "direct active involvement in the
execution of the laws," and it did not "pervade the activities of
civilian authorities." Id. at 895. We see no error in this assessment
of the record, and accordingly conclude that no violation of military
regulations occurred.
Yunis appeals from the district court's denial of his motion to
dismiss on the basis that pre-trial discovery provisions of the
Classified Information Procedures Act (CIPA), 18 U.S.C. App. (1988),
infringe upon procedural protections guaranteed him by the Fifth
and Sixth Amendments. See Pretrial Memorandum Order No. 13,
Yunis, Crim. No. 87-0377 (D.D.C. Feb. 15, 1989), reproduced in
Appellant's Appendix at Tab 14. In light of our holding in Yunis II that
CIPA "creates no new rights of or limits on discovery" of classified
material, but only requires courts to consider secrecy
concerns when applying general discovery rules, we find no merit in
this claim. Yunis II, 867 F.2d at 621-22; accord United States v.
Anderson, 872 F.2d 1508, 1514 (11th Cir.) (" [N]o new
substantive law was created by the enactment of CIPA."), cert.
denied, --- U.S. ----, 110 S. Ct. 566, 107 L. Ed. 2d 560 (1989); cf.
United States v. Pringle, 751 F.2d 419, 427-28 (1st Cir. 1984)
(rejecting due process challenge to protection of classified
information against discovery).
Yunis also objects to the district court's refusal to order the
government to produce records of conversations between Flight
402 and the Beirut control tower. After ex parte, in camera review
of
classified materials relevant to Yunis' various discovery requests,
the trial court ordered disclosure of numerous documents, including
" [a]ll audio or video tapes and/or transcripts of conversations
between defendant and all airport authorities covering the period of
the alleged hijacking...." Order, Yunis, Crim. No. 87-0377 (D.D.C.
July 18, 1988), reproduced in Appellant's Appendix at Tab 7.
Upon the government's motion for reconsideration, however, the
court narrowed this disclosure order by excluding materials,
including tapes and transcripts of conversations with airport
authorities,
that "do not help the defendant's cause." Pretrial Memorandum
Order No. 6, Yunis, Crim. No. 87-0377, 1988 WL 16302 (Sept. 27,
1988), reproduced in Appellant's Appendix at Tab 9. Yunis
subsequently renewed his request for conversations between Yunis
and the Beirut tower, claiming that these transcripts were "vital to
understand what outside influence or 'orders' were being
8
transmitted to the hijackers by person(s) not on the plane." See
Defendant's Reply to Government's Opposition to Defendant's Sixth
Motion to Compel Discovery at 5 (filed Feb. 22, 1989),
reproduced in Appellant's Appendix at Tab 13. Relying on its earlier
rulings, the district court denied the request. Pretrial Memorandum
Order No. 16, Yunis, Crim. No. 87-0377 (Feb. 27, 1989),
reproduced in Appellant's Appendix at Tab 15. Yunis now appeals
from that denial.
To prevail on a discovery request for classified information, a
defendant must make a threshold showing that the requested
material is relevant to his case. Yunis II, 867 F.2d at 623. If this "low
hurdle" is successfully jumped, the court must determine whether
or not the government has asserted a "colorable" claim to privilege.
If the government has asserted such a claim, the defendant
must show that the information would be helpful to his defense. Id.
We never have had occasion to adopt a rule to guide trial courts
when all these showings are made, and we do not do so here;
other circuits, however, have endorsed a balancing approach. See
United States v. Sarkissian, 841 F.2d 959, 965 (9th Cir. 1988);
United States v. Smith, 780 F.2d 1102, 1110 (4th Cir. 1985).
Having ourselves reviewed in camera the government's classified
submissions to the district court, we find very little in them that is
both responsive to the discovery request at issue and relevant in
any way to Yunis' trial. We certainly agree with the court below that
they reveal no information within the scope of Yunis' discovery
request that would have helped him at trial. Moreover, Yunis II
establishes that the government has at least a colorable interest in
avoiding release of information that might reveal "the time, place,
and nature of the government's ability to intercept the
conversations at all." Yunis II, 867 F.2d at 623. Under these
circumstances, the district court properly declined to order the
government to release classified information responsive to Yunis'
discovery request.
Lastly, Yunis challenges the district court's instructions to the jury
insofar as they relate to intent requirements of the federal hostage
taking, hijacking, and conspiracy statutes and to appellant's
affirmative defense of obedience to military orders. In so doing,
appellant does not come before an "impregnable citadel [ ] of
technicality." United States v. Hasting, 461 U.S. 499, 509, 103 S. Ct.
1974, 1980, 76 L. Ed. 2d 96 (1983) (quoting R. TRAYNOR, THE
RIDDLE OF HARMLESS ERROR 14 (1970) (citation omitted)). Trial
courts, not the courts of appeals, are the principal bulwarks
against injustice in our judicial system, and their resolution of the
myriad questions that arise in the course of a criminal trial must be
afforded deference. As the Supreme Court has "stressed on
more than one occasion, the Constitution entitles a criminal
defendant to a fair trial, not a perfect one." Delaware v. Van Arsdall,
475 U.S. 673, 681, 106 S. Ct. 1431, 1436, 89 L. Ed. 2d 674 (1986)
(citations omitted). In particular, appellate judges ought not
substitute their prejudices regarding jury instructions or their
notions of apt phraseology for the experience of trial judges in such
matters;
our more limited responsibility is to ensure that the law is correctly
stated for jurors to apply. Where the indispensable prerequisites for
a fair trial have been afforded, we will not overturn a
conviction just because an awkward word was used in instructing
the jury, or even because we would have sustained a defense
objection that was overruled. Instead, we look at the entire record
of
the proceedings below and ignore errors that do not undermine
confidence in the conviction when viewed in light of all that took
place. See Rose v. Clark, 478 U.S. 570, 576-79, 106 S. Ct. 3101,
3105-07, 92 L. Ed. 2d 460 (1986); Hasting, 461 U.S. at 507-09, 103
S. Ct. at 1979-81; Chapman v. California, 386 U.S. 18, 21-24, 87 S.
Ct. 824, 826-28, 17 L. Ed. 2d 705 (1967); Kotteakos v.
United States, 328 U.S. 750, 762-65, 66 S. Ct. 1239, 1246-48, 90 L.
Ed. 1557 (1946). With these precepts in mind, we now turn to
appellant's specific allegations of error in the instructions given by
the trial judge.
Yunis claims that the Antihijacking Act, 49 U.S.C.App. Sec. 1472(n),
and the Hostage Taking Act, 18 U.S.C. 1203, make specific intent
an element of the offenses they establish, and that the
district court erred in failing to adopt jury instructions offered by the
defense that would have made this clear. In appellant's view, the
trial judge's instruction that Yunis could be convicted on these
counts only if he acted "intentionally, deliberately and knowingly"
was inadequate. Transcript of Jury Instructions, March 10, 1989, at
17-18, 20 [hereinafter "Instructions"].
49 U.S.C. App. Sec. 1472(n) suggests no specific intent requirement
on its face, criminalizing any "unlawful" hijacking of an aircraft. Nor
do judicial interpretations of related statutes support
appellant's position. In fact, courts have interpreted a companion
provision criminalizing domestic hijacking, 49 U.S.C. App. Sec.
1472(i), as requiring only general criminal intent, even though

(unlike section 1472(n)) it specifies that hijackers must act with
"wrongful intent." See United States v. Castaneda-Reyes, 703 F.2d
522, 525 (11th Cir.), cert. denied, 464 U.S. 856, 104 S. Ct. 174,
78 L. Ed. 2d 157 (1983); United States v. Busic, 592 F.2d 13, 21 (2d
Cir. 1978); United States v. Bohle, 445 F.2d 54, 60 (7th Cir. 1971). In
light of these decisions, and absent any encouragement
from Congress, we decline Yunis' invitation to graft a specific intent
requirement onto the Antihijacking Act.
Yunis' claim that the Hostage Taking Act requires specific intent also
fails. The statutory language suggests no intent requirement other
than that the offender must act with the purpose of
influencing some third person or government through the hostage
taking, a point on which the jury received proper instructions. See
Instructions at 17 (quoting 18 U.S.C. 1203(a)). Nor are we
aware of any legislative history suggesting that Congress meant to
impose a specific intent requirement. Thus, we conclude that the
trial judge's instructions on this count of the indictment accorded
with law.
We find no merit in Yunis' objection (not raised at trial) that the
district court failed to instruct the jury that specific intent is a
necessary element of the crime of conspiracy. True, "the specific
intent
required for the crime of conspiracy is in fact the intent to advance
or further the unlawful object of the conspiracy." United States v.
Haldeman, 559 F.2d 31, 112 (D.C. Cir. 1976) (footnote omitted),
cert. denied, 431 U.S. 933, 97 S. Ct. 2641, 53 L. Ed. 2d 250 (1977).
But the jury received instructions that the government "must show
beyond a reasonable doubt that the conspiracy was knowingly
formed and that the defendant willfully participated in the unlawful
plan with the intent to advance or further some object or purpose of
the conspiracy." Instructions at 10. We discern no defect in
this instruction.
Yunis further contends that, whatever level of criminal intent was
required for these offenses, the district court failed to sufficiently
articulate the government's burden of proving that intent. Because
this alternative claim was not raised at trial, Yunis must show "plain
error." Fed. R. Crim. P. 52. The instructions, however, made it
abundantly clear that the government had the burden of proving
the requisite intent beyond a reasonable doubt. See Instructions at
10 (conspiracy charge), 17-18 (hostage taking), 27 (general
instructions on willfulness and burden of proof). There was no error.
The final issues before us concern jury instructions relating to Yunis'
affirmative defense of obedience to military orders. Yunis and the
government agree on the elements of this common law
defense, which are established by several civilian court decisions of
rather ancient vintage and by military practice. These precedents
generally accord with a formulation approved by the Court of
Military Appeals in United States v. Calley, 22 C.M.A. 534, 48 C.M.R.
19 (1973):
The acts of a subordinate done in compliance with an unlawful
order given him by his superior are excused and impose no criminal
liability upon him unless the superior's order is one which a man
of ordinary sense and understanding would, under the
circumstances, know to be unlawful, or if the order in question is
actually known to the accused to be unlawful.
Id. at 542, 48 C.M.R. at 27 (opinion of Quinn, J.) (emphasis deleted);
see United States v. Clark, 31 F. 710, 716-17 (C.C.E.D. Mich. 1987);
McCall v. McDowell, 15 F. Cas. 1235, 1240 (C.C.D. Cal.
1867) (No. 8,673); Neu v. McCarthy, 309 Mass. 17, 33 N.E.2d 570,
573 (1941); U.S. DEP'T OF DEFENSE, MANUAL FOR COURTS-
MARTIAL, UNITED STATES, 1984, R.C.M. 916(d) at II-
128 ("It is a defense to any offense that the accused was acting
pursuant to orders unless the accused knew the orders to be
unlawful or a person of ordinary sense and understanding would
have
known the orders to be unlawful.").
Appellant does not disagree with the district court's jury
instructions on the general elements of this affirmative defense.
Instead, Yunis claims that the district court erred as a matter of law
when it
instructed the jury that Yunis could prevail on this defense only if
the Amal Militia--to which Yunis belonged and which, he claimed,
ordered the hijacking--is a "military organization." The court
further instructed the jury that it could find that the Amal Militia is a
military organization only if the group has a hierarchical command
structure and " [c]onducts its operations in accordance with
the laws and customs of war," and if its members have a uniform
and carry arms openly. Instructions at 34.
Yunis disputes the district court's position that members of a
legitimate military organization must have a uniform. Since the
hijackers wore civilian clothes and there was evidence that
members of
9
the Amal Militia often dressed this way, appellant concludes that
the instruction was prejudicial to his defense. Yunis argues that the
relevance of uniforms to the ultimate factual question of whether
or not the Amal Militia is a military organization is itself a factual
question for the jury, not a question of law. He notes that U.S.
courts have not developed any test for determining whether or not
defendants who invoke the obedience defense actually belong to
bona fide military organizations. But the government responds that
courts have not developed such a test simply because the issue
has not arisen in U.S. courts; heretofore, the defense has been
raised only by members of the United States armed forces. In the
government's view, the district court properly adapted its
instructions
on the obedience defense when faced with novel factual
circumstances.
We agree that the district court did not commit legal error when it
looked beyond domestic precedents to give jurors guidance in
evaluating the Amal Militia's military credentials. Moreover, we find
that the test of a bona fide military organization adopted by the
district court reflects inter national practice, providing assurance
that Yunis did not suffer from parochial projection of American
norms onto the issue of whether he should be treated as a soldier
for purposes of the obedience defense.
Specifically, the district court's uniform instruction finds sufficient
support in international agreements that bear on the question. See
Geneva Convention Relative to the Treatment of Prisoners of
War, opened for signature Aug. 12, 1949, art. 4(A) (2), 6 U.S.T.
3317, 3320, T.I.A.S. No. 3364 [hereinafter Geneva Convention];
Hague Convention No. IV Respecting the Law and Customs of War
on Land, Oct. 18, 1907, annex Sec. I, ch. I, art. 1, 36 Stat. 2277,
2295-96, T.S. No. 539 [hereinafter Hague Convention No. IV]. The
Geneva Convention, signed by 167 nations including the United
States and Lebanon, establishes "having a fixed and distinctive
signal recognizable at a distance" as one of four necessary
conditions that qualify the members of a militia for treatment as
prisoners
of war. See 6 U.S.T. at 3320. The Hague Convention No. IV, to which
the United States and forty-two other nations are parties, uses
having "a fixed distinctive emblem recognizable at a distance" as
a test for whether militiamen and members of volunteer corps have
the rights and responsibilities of national armies. See 36 Stat. at
2295-96. At oral argument, counsel for appellant disavowed
reliance on the district court's substitution of "uniform" for "signal"
or "emblem," and we agree that this free interpretation of the
treaty language did not prejudice the defense.
Yunis' second objection to the district court's "military organization"
test relates to the instruction, tracking language found in article 4
of the Geneva Convention and chapter I of the annex to the
Hague Convention No. IV, that militias must "conduct [their]
operations in accordance with the laws and customs of war" to
qualify as military organizations. Instructions at 34. Appellant
alleges
that this instruction must be considered in tandem with the trial
judge's statement to the jury that the hijacking of Flight 402
violated international law. Together, he says, these instructions
directed
the jury to conclude that the defense of obedience to military
orders was unavailable to Yunis because no organization could have
given the instruction to hijack Flight 402 without violating "the
laws and customs of war."
We disagree with appellant's reading of the record, however, and
find that when the district court's instructions are considered as a
whole, it is highly improbable that a reasonable juror would have
understood them to direct a verdict on the affirmative defense. See
United States v. Lemire, 720 F.2d 1327, 1339 (D.C. Cir. 1983), cert.
denied, 467 U.S. 1226, 104 S. Ct. 2678, 81 L. Ed. 2d 874
(1984). In the first place, appellant ignores the trial judge's charge
to the jury that it was responsible for determining, based on the
evidence, whether or not the Amal Militia is a military
organization. Instructions at 34. So too, the court told jurors that if
they found that Yunis was a soldier in a military organization under
the definition given them, they would then have to address the
issue of whether or not Yunis knew that his orders were illegal. Id. at
35. Both of these instructions contradict appellant's suggested
reading, leading us to conclude that the jury would not have
understood the question of whether or not the Amal Militia is a
military organization to be foreclosed.
Appellant's interpretation becomes even more attenuated in light of
the government's closing argument, during which the prosecution
told jurors that they would have to determine whether the Amal
Militia is "a military organization that basically plays by the rules."
Trial Transcript, March 9, 1989, at 106-07 (emphasis added). See
United States v. Park, 421 U.S. 658, 674-75 & n. 16, 95 S. Ct.

1903, 1912 & n. 16, 44 L. Ed. 2d 489 (1975) (jury instructions must
be viewed in context of trial as a whole). This statement framed the
issue correctly, albeit informally, providing additional
assurance that any ambiguity arising from the court's juxtaposition
of the illegality instruction and the adherence to international law
instruction did not prejudice Yunis' defense. Because the jury
instructions, read as a whole and in light of the evidence and
arguments at trial, leave us confident that no prejudicial error
occurred, we find that the district court acted within the scope of its
discretion.
For the foregoing reasons, the convictions are
Affirmed.
Stephen M. FLATOW, Plaintiff, v. THE ISLAMIC REPUBLIC OF
IRAN, the Iranian Ministry of Information & Security,
Ayatollah Ali Hoseinie Khamenei, Ali Akbar Hashemi-
Rafsanjani, Ali Fallahian-Khuzestani, and John Does 1-99,
Defendants.
No. 97-396 (RCL).
United States District Court, District of Columbia.
November 15, 1999.
*19 Steven R. Perles, Washington, DC, Thomas Fortune Fay,
Washington, DC, for Plaintiff.
Philip D. Bartz, Deputy Asst. Atty. General, David W. Ogden, Wilma
Lewis, Frank W. Hunger, Vincent M. Garvey, Sanjay Bhambani, Carol
Federighi, David J. Anderson, Andrea G. Cohen, U.S.
Dept. of Justice, Civil Division, Washington, DC, for Defendants.
MEMORANDUM OPINION
LAMBERTH, District Judge.
The United States moves to quash the writ of attachment entered
by the Clerk of this Court on November 18, 1998, which purports to
attach "all credits held by the United States to the benefit of the
Islamic Republic of Iran," including U.S. Treasury funds owed to Iran
in accordance with an award of the Iran-United States Claims
Tribunal, Seeking these funds to satisfy part of his prior
judgment against Iran, Plaintiff Stephen Flatow maintains that
certain amendments to the Foreign Sovereign Immunities Act waive
the United States' sovereign immunity with respect to U.S. funds
owed to judgment debtors. 28 U.S.C. 1610(f) (1) (A) & 1610(a)
(7) (Supp.1999). Because this Court finds that Congress has not
clearly and unequivocally waived the United States' sovereign
immunity, the Court GRANTS the United States's Motion to Quash
the Writ of Attachment. This order, however, is stayed, for ten days,
to provide plaintiff the opportunity to seek a further stay
from the Court of Appeals.
I. Factual and Procedural Background
In April 1995, Alisa Flatow, Plaintiff Stephen Flatow's 20-year-old
daughter, was killed in a terrorist bombing of a tourist bus in Israel.
The terrorist group responsible for the suicide bombing
mission, the Shaqaqi faction of the Palestine Islamic Jihad, is funded
exclusively by the Islamic Republic of Iran ("Iran"). See Flatow v.
The Islamic Republic of Iran, 999 F. Supp. 1, 6-9
(D.D.C.1998).
A year after Alisa Flatow's murder, Congress amended the Foreign
Sovereign Immunities Act, 28 U.S.C. 1602-1611 (1994 &
Supp.1999) ("FSIA"), by enacting the Antiterrorism and Effective
Death Penalty Act of 1996, which lifts the sovereign immunity of
foreign states that commit acts of terrorism or provide material
support for terrorism. Pub.I., No. 104-132, Title II, 221(a), (April
24, 1996), 110 Stat. 1241, codified at 28 U.S.C. 1605 (1996 &
Supp.1999). In addition, Congress created a federal cause of action
for personal injury or death and provided, inter *20 alia, that
punitive damages would be available in actions brought under the
statesponsored terrorism exception. 28 U.S.C. 1605(a) (7) (1996 &
Supp.1999). This particular amendment became known as the
"Flatow Amendment." Flatow, 999 F. Supp. at 12.
Pursuant to these newly enacted provisions, Flatow filed a wrongful
death action against Iran, its Ministry of Information & Security, and
various government officials. See Flatow, 999 F. Supp. at
8-10. Iran failed to appear. Accordingly, after an evidentiary hearing
in which the plaintiff "establishe[d] his claim or right to relief by
evidence ... satisfactory to the Court," 28 U.S.C. 1608(e), this
Court entered a default judgment against Iran, finding Iran and its
codefendants jointly and severally liable for loss of accretions,
compensatory damages, solatium and $225,000,000.00 in punitive
damages. See Flatow, 999 F. Supp. at 5.
Attempting to execute this judgment, plaintiff filed a writ of
attachment on November 18, 1998 against certain U.S. Treasury
funds owed to Iran. Specifically, plaintiff sought attachment of
$5,042,481.65 plus interest in the Treasury Judgment Fund, which
was awarded to Iran by the Iran-U.S. Claims Tribunal ("Tribunal").
See Islamic Republic of Iran v. United States, Case No. A/27,
AWD No. 586-A27-FT, (Iran-United States Claims Tribunal June 5,
1998).
10
In opposing the United States' motion to quash the writ of
attachment, plaintiff contends that these U.S. Treasury funds, which
are earmarked for payment of the Tribunal award, represent the
property of Iran. See Iranian Assets Control Regulations, 31 C.F.R.
535.311(1999) (recognizing, inter alia. debt, indebtedness and
judgments as property). As such, plaintiff maintains that these
funds are subject to attachment pursuant to the Foreign Sovereign
Immunities Act. 28 U.S.C. 1610(f) (1) (A) & (a) (1) (7) (1998). More
specifically, he claims that because he is a judgmentcreditor
of Iran, he is entitled to these funds as partial satisfaction of his
March 11, 1998 judgment.
Needless to say, the United States does not share plaintiff's
characterization of these U.S. Treasury funds as "Iranian property."
Rather, the United States maintains that attachment of the funds
constitutes a suit against the United States, which is barred by the
doctrine of sovereign immunity. Buchanan v. Alexander, 45 U.S. (4
How.) 20, 21, 11 L. Ed. 857 (1846).
As a preliminary matter, then, this Court must determine whether
the funds at issue constitute property of the United States or Iran.
As explained below, controlling authority dictates the finding that
the Treasury funds are U.S. property. As such, sovereign immunity
bars their attachment here, as neither the Iranian Assets Control
Regulations nor the Foreign Sovereign Immunities Act contain a
clear and unequivocal waiver of the United States' immunity.
II. Sovereign Immunity
Suits against the United States are barred by sovereign immunity,
absent an effective waiver. Department of Army v. Blue Fox, Inc.,
525 U.S. 255, 119 S. Ct. 687, 690, 142 L. Ed. 2d 718 (1999)
(holding that sovereign immunity barred subcontractor's equitable
lien against United States); FDIC v. Meyer, 510 U.S. 471, 475, 114
S. Ct. 996, 127 L. Ed. 2d 308 (1994) (finding that "sue-and-besued"
clause waived government agency's sovereign immunity); see also
United States v. Mitchell, 463 U.S. 206, 212, 103 S. Ct. 2961, 77 L.
Ed. 2d 580 (1983) ("It is axiomatic that the United
States may not be sued without its consent and that the existence
of consent is a prerequisite for jurisdiction."). Waiver of the federal
government's sovereign immunity must be "expressed in
unequivocal statutory text and cannot be implied." Blue Fox, 119 S.
Ct. at 690; Lane v. Pena, 518 U.S. 187, 192, 116 S. Ct. 2092, 135 L.
Ed. 2d 486 (1996) ("A waiver of the *21 Federal
Government's sovereign immunity must be unequivocally
expressed in statutory text."); United States v. Nordic Village, Inc.,
503 U.S. 30, 33, 112 S. Ct. 1011, 117 L. Ed. 2d 181 (1992)
("Waivers
of the Government's sovereign immunity, to be effective, must be
`unequivocally expressed.'") (quoting Mitchell, 463 U.S. at 206, 103
S.Ct. 2961). Moreover, courts must construe the scope of such
waivers "strictly in favor of the sovereign." Blue Fox, 119 S. Ct. at
691; Lane, 518 U.S. at 192, 116 S. Ct. 2092; Nordic Village, 503 U.S.
at 33, 112 S. Ct. 1011. Accordingly, any ambiguities in the
statutory text must be resolved in favor of immunity. United States
v. Williams, 514 U.S. 527, 531, 115 S. Ct. 1611, 131 L. Ed. 2d 608
(1995). In sum, these rules of construction derive from the fact
that sovereign immunity operates as a jurisdictional bar. As such,
"the `terms of [the United States'] consent to be sued in any court
define [a] court's jurisdiction to entertain the suit.'" Meyer, 510
U.S. at 475, 114 S. Ct. 996 (quoting United States v. Sherwood, 312
U.S. 584, 586, 61 S. Ct. 767, 85 L. Ed. 1058 (1941)).
Principles of sovereign immunity apply with equal force to
attachments and garnishments. See Buchanan v. Alexander, 45 U.S.
(4 How.) 20, 21, 11 L. Ed. 857 (1846); FHA v. Burr, 309 U.S. 242,
243, 60 S. Ct. 488, 84 L. Ed. 724 (1940); see also Neukirchen v.
Wood County Head Start, Inc., 53 F.3d 809, 811 (7th Cir. 1995);
Automatic Sprinkler Corp. v. Darla Envtl. Specialists, 53 F.3d 181,
182 (7th Cir.1995); State of Arizona v. Bowsher, 935 F.2d 332, 334
(D.C.Cir.1991); Haskins Bros. & Co. v. Morgenthau, 85 F.2d 677, 681
(App.D.C. 1936). Indeed, early Supreme Court precedent
established that creditors may not attach funds held by the U.S.
Treasury or its agents. Buchanan, 45 U.S. at 21, 45 U.S. 20. As the
Supreme Court explained, "[s]o long as money remains in the
hands of a disbursing officer, it is as much the money of the United
States, as if it had not been drawn from the treasury." Id. In other
words, funds held in the U.S. Treasury even though set aside or
"earmarked" for a specific purpose remain the property of the
United States until the government elects to pay them to whom
they are owed. Id. ("Until paid over by the agent of the government
to
the person entitled to it, the fund cannot, in any legal sense, be
considered a part of his effects."). Notably, the Supreme Court has
recently reaffirmed the continued vitality of this precedent. See
Department of the Army v. Blue Fox, Inc., 525 U.S. 255, 119 S. Ct.
687, 692, 142 L. Ed. 2d 718 (1999) (Rehnquist, C.J.) (citing
Buchanan). In holding that a subcontractor's lien against
government

funds owed to an insolvent prime contractor was barred by
sovereign immunity, the Supreme Court stated that such a result "is
in accord with our precedent establishing that sovereign immunity
bars creditors from attaching or garnishing funds in the Treasury."
Id.
Similarly, the D.C. Circuit continues to acknowledge the principle
set forth in Buchanan. See State of Arizona v. Bowsher, 935 F.2d
332, 334 (D.C.Cir.1991) (citing Buchanan). While rejecting
states' claims against money owed to their citizens by the federal
government, the D.C. Circuit stated that "[w]hen the United States
sets aside money for the payment of specific debts, it does not
thereby lose its property interest in that money." Id. To the contrary,
the court of appeals determined that "[t]he money here is federal
money. That various persons have claims against the United
States in amounts exactly matching the funds, and intended by
Congress to be paid from these funds, does not give those
individuals a property interest in the money." Id. at 334.
Even early precedent from this circuit recognized this principle.
Haskins Bros. v. Morgenthau, 85 F.2d 677, 681 (App.D.C. 1936). In
Haskins, the court of appeals rejected a corporation's claim for
recovery of taxes assessed on imported coconut oil, determining
that it was "of no consequence that the bill alleges that the fund
belongs to appellant and others similarly situated." *22 Rather, the
court concluded that "it is money in the Treasury of the United
States as to which the United States had and have the power of
control and disposition." Id.
Likewise, other courts, following Buchanan, have rejected claims
against funds held in the U.S. Treasury. For example, in rejecting a
suit against the United States brought by a judgment-creditor of
a defunct government contractor, the Seventh Circuit stated that
"the principle of governmental immunity is simple: anyone who
seeks money from the Treasury needs a statute authorizing that
relief." Automatic Sprinkler Corp. v. Darla Envtl. Specialists, 53 F.3d
181, 182 (7th Cir.1995). And, in Neukirchen v. Wood County Head
Start, the Seventh Circuit reversed a district court's
issuance of a writ of execution against property purchased by
federal grant funds, stating that "[i]t is axiomatic that the doctrine
of sovereign immunity prevents a judgment creditor from attaching
federal property, absent consent by the United States." 53 F.3d 809,
811 (7th Cir.1995) (citing Buchanan); see also Palmiter v. Action,
Inc., 733 F.2d 1244, 1248 (7th Cir.1984) (holding that a
judgment creditor could not garnish federal funds granted to a state
program); Henry v. First Nat. Bank of Clarksdale, 595 F.2d 291, 309
(5th Cir.1979) (determining that sovereign immunity
protects federal grant funds from garnishment).
Here, it is undisputed that the funds plaintiff seeks to attach are
held in the U.S. Treasury. Moreover, plaintiff has pointed to no
contrary authority that undermines the continued strength of
Buchanan and its progeny. Thus, controlling authority requires this
Court to find that the Treasury funds at issue here are U.S. property
and that the writ of attachment constitutes a suit against the
United States, which is barred by sovereign immunity. Blue Fox, 119
S. Ct. at 690. Accordingly, the Court must grant the United States'
motion to quash, unless plaintiff can identify an explicit,
unequivocal waiver of the United States' sovereign immunity with
respect to these funds. As explained below, however, plaintiff's
endeavors in this regard will prove to be unsuccessful.
III. The Foreign Sovereign Immunities Act
Notwithstanding the authority supporting the United States'
contention that sovereign immunity bars attachment of funds held
in the U.S. Treasury, plaintiff maintains that this doctrine is
inapplicable because these funds are not U.S. property. To the
contrary, plaintiff asserts that the Tribunal judgment constitutes
Iranian property, as defined by the Iranian Assets Control
Regulations.
31 C.F.R. 535.311 (1999). Thus, according to plaintiff, as Iranian
property, these funds are subject to attachment pursuant to two
amendments to the Foreign Sovereign Immunities Act. See 28
U.S.C.A. 1610(a) (7) (providing that property in the United States
of a foreign state used for a commercial activity is subject to
attachment to satisfy Section 1605(a) (7) judgments); 28 U.S.C.A.
1610(f) (1) (A) (providing that judgments obtained pursuant to 28
U.S.C. 1605(a) (7) may be satisfied by attachment of property
subject to the Iranian Assets Control Regulations). But, as
explained below, plaintiff's argument must fail, as he cannot
identify a waiver of sovereign immunity that unequivocally and
expressly authorizes the attachment and payment of U.S. Treasury
funds
owed to Iran to third-party judgment-creditors.[1]
*23 Plaintiff's argument that the Foreign Sovereign Immunities Act
authorizes attachment of these Treasury funds proceeds from the
legally untenable assertion that such funds constitute Iranian
property under the Iranian Assets Control Regulations. These
regulations define property to
11
"include, but not by way of limitation, money, checks, drafts,
bullion, bank deposits, savings accounts, debts, indebtedness, ...
any other evidences of title, ownership or indebtedness, ...
judgments,
... and any other property, real, personal, or mixed, tangible or
intangible, or interest or interests therein, present, future or
contingent."
Id. (emphasis added). Admittedly, by its plain terms, this definition
appears to cover any debt or judgment held by Iran, irrespective of
the identity of the debtor. Nevertheless, this Court need not
decide whether this seemingly expansive definition of property
covers a judgment against the United States held in the U.S.
Treasury, for two reasons. First, to obtain money from the U.S.
treasury,
there must be a statute authorizing payment. See Automatic
Sprinkler, 53 F.3d at 182 (citing, inter alia, Nordic Village, 503 U.S.
at 33-34, 112 S.Ct. 1011). Here, plaintiff points to a definition
contained in a Treasury regulation. Second, and more important,
plaintiff's characterization of the Treasury funds as Iranian property
is refuted by the weight of authority, see supra, which is binding
on this Court. Moreover, even assuming arguendo that the
regulation's definition of property does cover debts or judgments
against the United States, plaintiff still could not prevail with his
claim,
as neither the Iranian Assets Control Regulations[2] nor the Foreign
Sovereign Immunities Act contain the sort of express and
unequivocal waiver required to abrogate the United States'
sovereign
immunity. See Blue Fox, 119 S. Ct. at 690 (instructing that "[w]aiver
of the federal government's sovereign immunity must be expressed
in unequivocal statutory text and cannot be implied").
A. Section 1610(f) (1) (A)
Proceeding from the unsupported assertion that the Tribunal
judgment represents Iranian property, plaintiff argues that Congress
intended to abrogate the United States' sovereign immunity for
purposes of enforcing judgments obtained under the Foreign
Sovereign Immunities Act. To support this position, plaintiff points to
the plain language of Section 1610(f) (1) (A) and the canon of
statutory construction, expresio unius est exclusio alterius. To wit,
Section 1610(f) (1) provides that
Notwithstanding any other provision of law, including but not
limited to section 208(f) of the Foreign Missions Act (22 U.S.C.
4308(f)), and except as provided in subparagraph (B), any property
with respect to which financial transactions are prohibited or
regulated pursuant to section 5(b) of the Trading with *24 the
Enemy Act (50 U.S.C. 5(b)), section 620(a) of the Foreign
Assistance
Act of 1961(22 U.S.C. 2370(a)), sections 202 and 203 of the
International Emergency Economic Powers Act (50 U.S.C. 1701-
1702), or any other proclamation, order, regulation, or license
issued pursuant thereto, shall be subject to execution or
attachment in aid of execution of any judgment relating to a claim
for which a foreign state (including any agency or instrumentality of
such
state) claiming such property is not immune under section 1605(a)
(7).
28 U.S.C. 1610(f) (1) (A) (emphasis added). Plaintiff posits that the
opening clause, "[n]otwithstanding any provision of law,"
encompasses any sovereign interest of the United States in the
Tribunal judgment that exists either by statute or at common law. In
addition, plaintiff contends that the one enumerated exception,
which applies to property held by or in trust for a natural person,
as evidence of Congress' intent that the provision be applicable in
all other instances, including attachments of U.S. Treasury funds. 28
U.S.C. 1610(f) (1) (B). In short, plaintiff reasons that
because Congress chose to enumerate one exception to this
provision, had Congress intended to create other exceptions, such
as retaining the sovereign immunity of U.S. Treasury funds, it would
have done so explicitly.
The Court begins by noting the seeming contradiction implicit in
plaintiff's argument i.e., that in a statute purporting to abrogate the
sovereign immunity of foreign states, Congress would waive the
United States' sovereign immunity. But irony or unintended
consequence aside, this Court finds that this provision fails to meet
the exacting standard for finding an effective waiver of sovereign
immunity. See Lane, 518 U.S. at 192, 116 S. Ct. 2092 (stating that
"waivers of immunity must construed strictly in favor of the
sovereign... and not enlarge[d] ... beyond what the language
requires") (citations omitted). First, plaintiff's assertions regarding
the opening phrase, "notwithstanding any other provision of law,"
are unpersuasive. Construing, as it must, the scope and
ambiguities in favor of the sovereign, Williams, 514 U.S. at 531, 115
S. Ct. 1611, the Court finds that the language "provision of law" is
sufficiently imprecise so that it could be construed to refer

only to other statutes, and not the common law doctrine of
sovereign immunity. Nordic Village, 503 U.S. at 34, 112 S. Ct. 1011.
This narrow interpretation of the opening clause is further
supported
by reference to the phrase immediately following it, which
enumerates various statutes to which the provision applies.
Alternatively, even if the Court were to accept the plaintiff's broad
reading of the opening phrase as encompassing the doctrine of
sovereign immunity, such a waiver hardly rises to the requisite
unequivocal expression mandated by the Supreme Court. See Blue
Fox, 119 S. Ct. at 691; Lane, 518 U.S. at 192, 116 S. Ct. 2092;
Nordic Village, 503 U.S. at 33, 112 S. Ct. 1011. Simply put, there
is no language whatsoever suggesting that United States waives its
immunity from attachment suits filed by third party creditors of
Iran. Accordingly, as Congress is presumed to be familiar with the
unequivocal expression requirement for waivers of sovereign
immunity, see United States Dep't of Energy v. Ohio, 503 U.S. 607,
614, 112 S. Ct. 1627, 118 L. Ed. 2d 255 (1992), the Court must
conclude that no such waiver was contemplated here.
B. Section 1610(a) (7)
Alternatively, plaintiff asserts that, even if the Court determines
that Section 1610(f) (1) (A) does not apply in this matter, Section
1610(a) (7) authorizes the writ of attachment. Section 1610(a) (7),
enacted as part of the Antiterrorism and Effective Death Penalty Act
of 1996, provides that
[t]he property in the United States of a foreign state, as defined in
section 1603(a) of this chapter, used for commercial activity in the
United States, *25 shall not be immune from attachment in aid
of execution, or from execution, upon a judgment entered by a
court of the United States or of a State after the effective date of
this Act, if...
(7)the judgment relates to a claim for which the foreign state is not
immune under section 1605(a) (7), regardless of whether the
property is or was involved with the act upon which the claim is
based.
28 U.S.C. 1610(a) (7) (emphasis added). Essentially, plaintiff
argues that this provision applies to the Treasury funds because the
underlying basis for the Tribunal award was a contract dispute
over sales of aircraft equipment between various entities controlled
by the Iranian government and Avco Corporation, a U.S.
corporation. See Avco Corporation v. Iran Aircraft Indus., Award No.
377-261-3, at 145, reprinted in 19 Iran-U.S.C.T.R. 200, 230 (Iran-
United States Claims Tribunal July 18, 1988). Hence, according to
plaintiff, the "used for commercial activity" requirement is
satisfied. But, as explained above, funds in the U.S. Treasury are not
properly characterized as the "the property of a foreign state."
Moreover, even assuming that the Treasury funds at issue satisfy
this "commercial activity" requirement, the Court nonetheless finds
that the statutory text lacks a clear, unequivocal waiver of
immunity. Indeed, plaintiff points to nothing in the provision's
language that is even remotely suggestive of congressional intent
to waive the United States' sovereign immunity.
As a corollary to his argument under Section 1610(a) (7), plaintiff
contends that he may attach these Treasury funds by virtue of the
Algiers Accords.[3] Specifically, plaintiff notes that Iran and the
United States both waived their sovereign immunity with respect to
the enforcement of Tribunal awards, by agreeing that "[a]ny award
which the Tribunal may render against either government
shall be enforceable against such government in the courts of any
nation in accordance with its laws." Algiers Accords, Art. IV(1) (3).
Plaintiff reasons that because he is a judgment-creditor of Iran,
he "stands in the shoes" of Iran vis vis the United States. In short,
citing Harris v. Balk, 198 U.S. 215, 25 S. Ct. 625, 49 L. Ed. 1023
(1905) for the proposition that a creditor may obtain
satisfaction on a debt from a third-party debtor of his debtor,
plaintiff asserts that he is entitled to benefit from the United States'
waiver of sovereign immunity in the Algiers Accords. Without
deciding the extent to which, if any, the United States has waived
its sovereign immunity with respect to Iran under the Algiers
Accords, this Court is unpersuaded by this argument. First, Harris v.
Balk did not address claims made against the United States, nor
any other sovereign entity; hence it does nothing to alter the
standards that apply to waivers of federal sovereign immunity.
Moreover, applying the standards outlined by the Supreme Court,
this Court does not find that the Algiers Accords contain an express
waiver of sovereign immunity that would permit a third-party
to attach U.S. funds owed to Iran. While plaintiff's assertion that
Iran may seek to execute this judgment in any court may be
correct, the Accords do not authorize third party creditors to
enforce
judgments for Iran. Absent a clear and unequivocal statement of
consent to such a suit, this Court declines to imply one. Meyer, 510
U.S. at 475, 114 S. Ct. 996.
IV. Conclusion
12
The Court concludes by acknowledging the apparent unfairness
that attends its grant of the United States' motion to quash. Indeed,
the Court regrets that its ruling today forestalls plaintiff's efforts to
*26 execute a judgment that was issued by this Court. Flatow, 999
F. Supp. at 5. Moreover, the Court appreciates plaintiff's frustration
with the White House's present efforts to block his recovery,
see Stephen M. Flatow, In This Case, I Can't Be Diplomatic, The
Washington Post, November 7, 1999, at B2, particularly in light its
previous pledges of support.[4] Nonetheless, this Court must
remain faithful to its proper role within our constitutional system,
which requires courts to follow the rule of law, not their own
individual conceptions of what is fair or just. Accordingly, for the
foregoing reasons, the United States' Motion to Quash the Writ of
Attachment is GRANTED.
A separate order shall issue this date.
ORDER
Upon consideration of the United States' Motion to Quash the
November 18, 1998, Writ of Attachment for the funds held in the
U.S. Treasury, the responses thereto, and for the reasons set forth
in
the accompanying memorandum opinion issued this date, it is
hereby
ORDERED that the United States' Motion to Quash is GRANTED and
the Writ of Attachment is hereby Quashed; and
it is further
ORDERED that this order is STAYED for Ten (10) Days to provide
plaintiff the opportunity to seek a further stay from the Court of
Appeals.
SO ORDERED.
PINOCHET CASE
A former head of state only has immunity with regard to his acts as
a head of state but not with regard to acts which fall outside his role
as head of state. A head of state may be treated as the state
itself and entitled to the same immunities.
A former head of state cannot have immunity for acts of murder
committed outside his own territory. International law recognizes
crimes against humanity and the Torture Convention says that no
circumstances can be invoked as justification for torture. Therefore
it cannot be a part of the function of a head of state under
international law to commit those crimes.
.
There is general agreement between the parties as to the rules of
statutory immunity and the rationale which underlies them. The
issue is whether international law grants state immunity in relation
to the international crime of torture and, if so, whether the Republic
of Chile is entitled to claim such immunity even though Chile, Spain
and the United Kingdom are all parties to the Torture
Convention and therefore contractually bound to give effect to its
provisions from 8 December 1988 at the latest.
CURRENT HEAD OF STATE
It is a basic principle of international law that one sovereign state
(the forum state) does not adjudicate on the conduct of a foreign
state. The foreign state is entitled to procedural immunity from the
processes of the forum state. This immunity extends to both
criminal and civil liability. State immunity probably grew from the
historical immunity of the person of the monarch. In any event,
such
personal immunity of the head of state persists to the present day:
the head of state is entitled to the same immunity as the state
itself. The diplomatic representative of the foreign state in the
forum
state is also afforded the same immunity in recognition of the
dignity of the state which he represents. This immunity enjoyed by
a head of state in power and an ambassador in post is a complete
immunity attaching to the person of the head of state or
ambassador and rendering him immune from all actions or
prosecutions whether or not they relate to matters done for the
benefit of the state.
Such immunity is said to be granted ratione personae.
FORMER HEAD OF STATE
What then when the ambassador leaves his post or the head of
state is deposed? The position of the ambassador is covered by the
Vienna Convention on Diplomatic Relations (1961). After
providing for immunity from arrest (article 29) and from criminal
and civil jurisdiction (article 31), article 39(1) provides that the
ambassadors privileges shall be enjoyed from the moment he
takes
up post; and paragraph (2) provides:
When the functions of a person enjoying privileges and immunities
have come to an end, such privileges and immunities shall normally
cease at the moment when he leaves the country, or on

expiry of a reasonable period in which to do so, but shall subsist
until that time, even in case of armed conflict. However, with
respect to acts performed by such a person in the exercise of his
functions as a member of the mission, immunity shall continue to
subsist.
The continuing partial immunity of the ambassador after leaving
post is of a different kind from that enjoyed ratione personae while
he was in post. Since he is no longer the representative of the
foreign state he merits no particular privileges or immunities as a
person. However in order to preserve the integrity of the activities
of the foreign state during the period when he was ambassador, it
is necessary to provide that immunity is afforded to his official acts
during his tenure in post. If this were not done the sovereign
immunity of the state could be evaded by calling in question acts
done during the previous ambassadors time. Accordingly under
article 39(2) the ambassador, like any other official of the state,
enjoys immunity in relation to his official acts done while he was an
official. This limited immunity, ratione materiae, is to be contrasted
with the former immunity ratione personae which gave complete
immunity to all activities whether public or private.
In my judgment at common law a former head of state enjoys
similar immunities, ratione materiae, once he ceases to be head of
state. He too loses immunity ratione personae on ceasing to be
head
of state: see Sir Arthur Watts Q.C., Hague Lectures, The Legal
Position in International Law of Heads of States, Heads of
Government and Foreign Ministers 1994-III 247 Recueil des cours,
p. 88
and the cases there cited. He can be sued on his private
obligations: Ex-King Farouk of Egypt v. Christian Dior (1957) 24
I.L.R. 228; Jimenez v. Aristeguieta (1962) 311 F.2d 547. As ex-head
of
state he cannot be sued in respect of acts performed whilst head of
state in his public capacity: Hatch v. Baez (1876) 7 Hun 596. Thus,
at common law, the position of the former ambassador and the
former head of state appears to be much the same: both enjoy
immunity for acts done in performance of their respective functions
whilst in office.
The question then which has to be answered is whether the alleged
organisation of state torture by Senator Pinochet (if proved) would
constitute an act committed by Senator Pinochet as part of his
official functions as head of state. It is not enough to say that it
cannot be part of the functions of the head of state to commit a
crime. Actions which are criminal under the local law can still have
been done officially and therefore give rise to immunity ratione
materiae. The case needs to be analysed more closely.
Can it be said that the commission of a crime which is an
international crime against humanity and jus cogens is an act done
in an official capacity on behalf of the state? I believe there to be
strong
ground for saying that the implementation of torture as defined by
the Torture Convention cannot be a state function. This is the view
taken by Sir Arthur Watts Q.C. in his Hague Lecture who said,
at p. 82: [*204]
While generally international law does not directly involve
obligations on individuals personally, that is not always appropriate,
particularly for acts of such seriousness that they constitute not
merely international wrongs (in the broad sense of a civil wrong)
but rather international crimes which offend against the public
order of the international community. States are artificial legal
persons: they can only act through the institutions and agencies of
the state, which means, ultimately, through its officials and other
individuals acting on behalf of the state. For international conduct
which is so serious as to be tainted with criminality to be regarded
as attributable only to the impersonal state and not to the
individuals who ordered or perpetrated it is both unrealistic and
offensive
to common notions of justice. The idea that individuals who commit
international crimes are internationally accountable for them has
now become an accepted part of international law. Problems in
this area such as the non-existence of any standing international
tribunal to have jurisdiction over such crimes, and the lack of
agreement as to what acts are internationally criminal for this
purpose have not affected the general acceptance of the principle
of individual responsibility for international criminal conduct.
Later he said, at p. 84: It can no longer be doubted that as a
matter of general customary international law a head of state will
personally be liable to be called to account if there is sufficient
evidence that he authorised or perpetrated such serious
international crimes.
It can be objected that Sir Arthur was looking at those cases where
the international community has established an international
tribunal in relation to which the regulating document expressly
13
makes the head of state subject to the tribunals jurisdiction: see,
for example, the Nuremberg Charter, article 7; the Statute of the
International Criminal Tribunal for Former Yugoslavia; the Statute
of the International Criminal Tribunal for Rwanda and the Statute of
the International Criminal Court. It is true that in these cases it is
expressly said that the head of state or former head of state is
subject to the courts jurisdiction. But those are cases in which a
new court with no existing jurisdiction is being established. The
jurisdiction being established by the Torture Convention and the
Hostages Convention is one where existing domestic courts of all
the countries are being authorised and required to take jurisdiction
internationally. The question is whether, in this new type of
jurisdiction, the only possible view is that those made subject to the
jurisdiction of each of the state courts of the world in relation to
torture are not entitled to claim immunity.
I have doubts whether, before the coming into force of the Torture
Convention, the existence of the international crime of torture as
jus cogens was enough to justify the conclusion that the
organisation of state torture could not rank for immunity purposes
as performance of an official function. At that stage there was no
international tribunal to punish torture and no general jurisdiction
to permit or require its punishment in domestic courts. Not until
there was some form of universal jurisdiction for the punishment of
the crime of torture could it really be talked about as a fully
constituted international crime. But in my judgment [*205] the
Torture Convention did provide what was missing: a worldwide
universal jurisdiction. Further, it required all member states to ban
and outlaw torture: article 2. How can it be for international law
purposes an official function to do something which international
law itself prohibits and criminalises? Thirdly, an essential feature
of the international crime of torture is that it must be committed
by or with the acquiesence of a public official or other person
acting in an official capacity. As a result all defendants in torture
cases will be state officials. Yet, if the former head of state has
immunity, the man most responsible will escape liability while his
inferiors (the chiefs of police, junior army officers) who carried out
his orders will be liable. I find it impossible to accept that this was
the intention.
Finally, and to my mind decisively, if the implementation of a
torture regime is a public function giving rise to immunity ratione
materiae, this produces bizarre results. Immunity ratione materiae
applies not only to ex-heads of state and ex-ambassadors but to all
state officials who have been involved in carrying out the functions
of the state. Such immunity is necessary in order to prevent
state immunity being circumvented by prosecuting or suing the
official who, for example, actually carried out the torture when a
claim against the head of state would be precluded by the doctrine
of immunity. If that applied to the present case, and if the
implementation of the torture regime is to be treated as official
business sufficient to found an immunity for the former head of
state, it
must also be official business sufficient to justify immunity for his
inferiors who actually did the torturing. Under the Convention the
international crime of torture can only be committed by an
official or someone in an official capacity. They would all be entitled
to immunity. It would follow that there can be no case outside Chile
in which a successful prosecution for torture can be
brought unless the State of Chile is prepared to waive its right to its
officials immunity. Therefore the whole elaborate structure of
universal jurisdiction over torture committed by officials is
rendered abortive and one of the main objectives of the Torture
Convention to provide a system under which there is no safe
haven for torturers will have been frustrated. In my judgment all
these factors together demonstrate that the notion of continued
immunity for ex-heads of state is inconsistent with the provisions of
the Torture Convention.
For these reasons in my judgment if, as alleged, Senator Pinochet
organised and authorised torture after 8 December 1988, he was
not acting in any capacity which gives rise to immunity ratione
materiae because such actions were contrary to international law,
Chile had agreed to outlaw such conduct and Chile had agreed with
the other parties to the Torture Convention that all signatory
states should have jurisdiction to try official torture (as defined in
the Convention) even if such torture were committed in Chile.
As to the charges of murder and conspiracy to murder, no one has
advanced any reason why the ordinary rules of immunity should not
apply and Senator Pinochet is entitled to such immunity.
For these reasons, I would allow the appeal so as to permit the
extradition proceedings to proceed on the allegation that torture in
pursuance of a conspiracy to commit torture, including the single
act of [*206] torture which is alleged in charge 30, was being
committed by Senator Pinochet after 8 December 1988 when he
lost his immunity.

EICHMAN CASE
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 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?
14
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 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).
BARBIE CASE
Summary
Klaus Barbie was a member of the German SS and later the head of
the Gestapo in Lyon, Occupied France in 1942. He was wanted by
the French authorities for charges of crimes against humanity
committed during World War II, during which time he earned the
nickname the Butcher of Lyon in recognition of his notorious
interrogation style.
After the war, he was recruited by the Army Counter Intelligence
Corps of the United States, which later helped him emigrate to
Bolivia. When the French authorities became aware of his residence
in Bolivia, an arrest warrant was issued. Bolivia expelled Barbie and,
as he was disembarking a plane in French Guyana, he was picked
up by French authorities and detained.
The present decision was his final appeal challenging the
proceedings against him on the grounds that the statute of
limitations for his alleged crimes had expired and that the French
law of 1964
which held that there are no statutes of limitations for crimes
against humanity was contrary to the principle of non-retroactivity
of criminal law. The Supreme Court of France (Criminal Law
Chamber) rejected the appeal. It held that it was a general principle
of civilised nations that crimes against humanity were not subject
to statutes of limitation, meaning that an individual suspected
of having committed them could be prosecuted irrespective of how
long ago the alleged crimes occurred.
Procedural history
On 3 November 1982, the instructing judge issued an arrest
warrant for Klaus Barbie who was wanted for crimes against
humanity committed in 1943 and 1944 during his time as the head
of the
Gestapo in Lyon, then Occupied France.
On 5 February 1983, Barbie was expelled from Bolivia where he had
been hiding for many years under an assumed name to French
Guyana. Whilst disembarking at the airport in French Guyana,

he was intercepted by members of the Gendarmerie who
questioned and detained him. That same day he was brought
before the investigating judge who ordered his transfer to prison.
On 12
February 1982, proceedings commenced against Barbie.
By a decision of 28 October 1983, the Chambre dAccusation of the
Court of Appeal of Lyon held that there was no statute of limitations
for crimes against humanity. Therefore, though the crimes
with which Barbie was charged had occurred in 1943 and 1944, this
time lapse is no barrier to proceedings against him.
Barbie appealed this decision to the Supreme Court (Criminal Law
Chamber).
Related developments
On 20 December 1985, the Supreme Court (Criminal Law Chamber)
held that the 10-year statute of limitations applies to war crimes,
with the effect that any conduct by Barbie amounting to war
crimes could not be prosecuted due to the lapse of the statute of
limitations. The case was sent back to the Cour dassises who
would proceed on charges of crimes against humanity, notably
those
crimes of persecution perpetrated against innocent Jews as part of
the "final solution". Crimes perpetrated against Resistance fighters
would be excluded as war crimes. See also Barbie Given Life
Prison Term for Crimes Against Humanity, The Milwaukee Sentinel,
4 July 1987; and Guilty Verdict Stuns Barbie, The Milwaukee
Journal, 5 July 1987.
Barbie was sentenced to life in prison. He died in prison in 1991 at
the age of 77. See 'Klaus Barbie, Nazi War Criminal, Dies, The
Milwaukee Sentinel, 26 September 1991.
Legally relevant facts
Barbie is charged with having committed acts of deportation,
torture, execution and pillage in 1943 and 1944 during his time in
the German SS and as the head of the Gestapo in Lyon, occupied
France.
15
Core legal questions
Is the Court of Appeals determination that crimes against humanity
have no statute of limitations contrary to the criminal law principle
of non-retroactivity?
Specific legal rules and provisions
Articles 7, 591 and 593 of the French Code of Criminal Procedure.
Article 8 of the Declaration of the Rights of Man and of the Citizen.
Articles 7 and 60 of the European Convention on Human Rights.
Court's holding and analysis
The Law of 26 December 1964 provides that there is no statute of
limitations for proceedings against perpetrators of crimes against
humanity. The Appellant contends that this provision breaches
the principle of non-retroactivity of the criminal law by retroactively
replacing the prior law, which held that crimes were subject to a
statute of limitations of 10 years. Since the principle of
nonretroactivity
is a constitutional norm, it supersedes all other domestic and
international legislation pursuant to Article 55 of the French
Constitution.
The Supreme Court rejected this line of argumentation. It held that
the principle that statutes of limitations do not apply to crimes
against humanity, as laid down in the Law of 1964, was a principle
recognised by all civilised nations. To this end, it referred to the
official interpretation of the Statute of the International Military
Tribunal at Nuremberg by the Minister of Foreign Affairs; the latter
held that the text implies that crimes against humanity are never
extinct. It also referred to the exception provided for in Article 7(2)
of the European Convention on Human Rights, which provides
that the principle of non-retroactivity shall not prejudice the trial
and punishment of an individual for an act which was criminal at
the time it was committed according to the general principles of
law recognised by civilised nations.
The appeal was thus rejected.