Terrorism: In Pursuit of Justice

Because the sole person killed during the hijacking of the Achille Lauro was an American, many in the U.S. believe that his accused murderers should face justice in an American courtroom. In pursuit of that goal, teams of Government lawyers quickly began work on extraditing the four terrorists from Italy. Having charged the accused hijackers in a Washington federal court, officials will present the formal application for extradition through diplomatic channels this week. But under the complex rules of international law, U.S. courts will probably have to wait until Italian justice is done, and may not get a chance at the defendants even then.

The problem is not that the U.S. has no applicable law. Most authorities agree that the Palestinian hijackers could be successfully prosecuted under the two federal statutes invoked: piracy and the 1984 antiterrorism law. People who seize ships for criminal purposes have been considered international outlaws since the days of Sir Francis Drake, explains Professor Cherif Bassiouni of DePaul University Law School in Chicago. “Any state can prosecute them; it could be Sweden or Zaire for that matter.” The anti- terrorism law passed by Congress last year makes it a crime punishable by life imprisonment to take an American citizen hostage anywhere in the world. That “long arm” statute incorporates U.N. legal provisions.

Nor would the terrorists have much hope of slipping through a legal loophole by challenging the way they were caught. Villanova Law Professor John Murphy believes that although the interception violated some international aviation conventions, they justice.” Even a federal judge who disagreed with Murphy would almost certainly apply the traditional legal doctrine “badly captured, well detained.” U.S. courts have ruled in previous cases that only the fairness of the trial is important, not the means by which the accused are brought from outside the court’s jurisdiction.

So if the U.S. had retained custody of its prisoners, its jurisdiction would be all but assured. But Italy’s claim is at least as firmly grounded. The crimes were committed aboard an Italian ship in international waters, and by long-standing precedent the law of Italy clearly applies. To signal their intent not to defer to the U.S., Italian authorities swiftly brought charges that included premeditated murder, kidnaping, ship hijacking and weapons violations. Says Columbia Law Professor Richard Gardner: “There is some difficulty with the concept of trying them for one thing, then extraditing them and trying them for the same thing somewhere else.” Such double jeopardy is barred by the 1984 U.S.-Italian extradition treaty. Italy also forbids extradition to a country that would apply the death penalty, but none of the U.S. charges filed thus far involve capital offenses.

If the U.S. must now depend on the Italian courts for justice, what are the prospects? The law requires that an indictment or dismissal be handed down within 18 months, and no pretrial release of the prisoners is likely. The verdict will be decided by a vote of two judges and six jurors, and sentences could be as much as life. When evidence is plentiful and the crime serious, the Italian judicial system can act swiftly: Mehmet Ali Agca was convicted and sentenced to life imprisonment only ten weeks after he tried to assassinate Pope John Paul II. In the case of the Achille Lauro, where more than 400 crew and passengers were witnesses to the hijackers’ actions, similar expeditiousness is expected.