Extraterritorial Jurisdiction under International Law: The Yunis Decision as a Model for the Prosecution of Terrorists in U.S. Courts

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INTRODUCTION

While increased cooperation among countries has led to the harmonization of laws and legal principles in many areas, sovereign states remain reluctant to harmonize criminal laws due to diverse views on what constitutes criminal activity, and how such activity should be punished. Different cultural attitudes and customs make it difficult for states to agree on principles of criminal law. Laws and policies relating to terrorism exemplify this problem. Due to the fact that criminal laws in may states focus on the intentions and targets of terrorists, the same act may constitute terrorism in one state but not in another. This may prevent a state from prosecuting terrorists because it is unable to obtain jurisdiction over either the terrorists or the act committed. As such, terrorists are able to operate in, or escape to, jurisdictions where they will not be prosecuted.

This Note explains that although there is a need to coordinate and harmonize the varying legal efforts to combat terrorism, there currently exist certain universally accepted legal principles regarding extraterritorial jurisdiction that allow states to prosecute terrorists, regardless of the situs of the attack or the nationality of the victim. These principles fous specifically on the act of terrorism itself, rather than on the actor, his intentions, or his victims. The recent U.S. District Court decision of United States v. Yunis demonstrates the acceptance of certain principles of extraterritorial jurisdiction which allow for the prosecution of terrorists in U.S. courts.

First, this Note discusses the problems with defining terrorism and then illustrates the current threat of terrorism throughout the world. Second, the various methods of combatting terrorism are discussed, with special attention given to the principal of extraterritorial jurisdiction. Third, the Yunis decision is described. The case exemplifies how new U.S. antiterrorism laws give U.S. courts jurisdiction to prosecute terrorists whose illegal acts were commited outside the United States. Moreover, the case demonstrates that international law has been expanded to recognize certain acts as universally condemned, and thereby subject to prosecution in any country. The court's reliance on U.S. law and international legal principles makes it a good model for the future prosecution of terrorists in the United States. Finally, the Note shows how international law can be further expanded to allow states to combat terrorism more effectively.

What is Terrorism?

Many argue that it is impossible to define terrorism in a way that is universally accepted. This dilemma is captured by the oft-quoted statement that "one man's terrorist is another man's freedom fighter." (2) Not only do countries disagree as to what acts should fall under the definition of terrorism, but there is also disagreement as to what actors are considered terrorists. Specifically, should the definition of terrorism be confined to acts committed to further a political goal, as opposed to financial or military goals? Must an act be aimed at forcing a government to take a certain action to be deemed terrorism, or do acts aimed solely at private interests qualify? Must innocent persons or property be targeted? Can states (or their agents) commit acts of terrorism? These and many other fundamental questions remain unresolved. Because of this lack of agreement, most legal scholars and judges refuse to define terrorism. (3) For purposes of this note, the author defines terrorism generally as extra-legal violence below the level of traditional warfare.

Terrorism Continues to be a Major Threat Throughout the World

Terrorism has increased dramatically since the early 1970s, when reported terrorist incidents were first compiled by public and private organizations. (4) In 1971, 278 domestic and international terrorist incidents were reported throughout the world. …