Indictments Regarding
the Bombing of U.S. Quarters in Saudi Arabia
By Frederic L. Kirgis
June 2001
On June 21, 2001, a federal grand jury in
the United States indicted 13 Saudi Arabian nationals
and one Lebanese national in connection with the truck
bombing that killed 19 members of the American military
services and wounded nearly 400 others in an apartment
building in Saudi Arabia in 1996. The building was being
used as a barracks for U.S. military service personnel.
The bombing allegedly was pursuant to an organized terrorist
agenda designed to drive Americans out of the Persian
Gulf region.
According to news reports,
the Saudi Arabian government has asserted that the United
States has no right to prosecute persons involved in
an incident that occurred in Saudi Arabia. The Saudi
Arabian Defense Minister has been quoted as saying that
any legal steps in the case "fall within the jurisdiction
of Saudi Arabia." [1] The Interior Minister
has been quoted as saying, "No other entity has the
right to try or investigate any crimes occurring on
Saudi lands."
[2]
The Interior Minister appears
to be correct insofar as he asserts that no foreign
state has a right to enter Saudi Arabian territory to
investigate in the absence of consent from the Saudi
Arabian government. The World Court has said that,
in the absence of a specific permissive rule to the
contrary, a state may not exercise its power in any
form in the territory of another state. [3] A government's investigation
in another state's territory, for the purpose of gathering
evidence for the prosecution of a crime, would be considered
an exercise of power there. But an investigation at
home of a crime that occurred in the other state's territory
would not require the consent of that state's government.
Nor would a trial at home, if the accused can be brought
before the domestic court and if one of the jurisdictional
grounds discussed below is present.
Leaving aside questions about
investigation and about obtaining custody of the accused
individuals, the issue is one of jurisdiction to prescribe
and to adjudicate rules of criminal law when more than
one nation-state is interested in the matter. International
law clearly would permit Saudi Arabia, as the state
where the act occurred, to lay down rules and prosecute
those who violate them, under the "territorial" basis
for jurisdiction. But that does not necessarily mean
that Saudi Arabia would be the only state with jurisdiction.
In the case of the Lebanese suspect, Lebanon would have
a strong argument for concurrent jurisdiction under
the "nationality" basis, which recognizes that the state
of the actor's nationality generally may regulate that
person's conduct even outside its own territory.
Even though the United States
could not assert jurisdiction under either the territorial
or the nationality principle, it would have some arguments
for concurrent jurisdiction. First, the United States
could argue that the bombing was an act of terrorism
of a type so universally condemned that any nation-state
may prohibit it and may prosecute its perpetrators if
they can be brought into its custody. This "universal"
basis of jurisdiction is generally recognized for such
acts as piracy, slave trade, genocide, attacks on civil
aircraft and war crimes, but it has not been quite as
widely accepted for acts of terrorism.
[4] Second, the United States could argue
that since the victims of the bombing were apparently
targeted because they were Americans, the United States
has jurisdiction to prescribe its law under the "passive
personality" principle. That principle-basing jurisdiction
on the nationality of the victim-has not been generally
accepted for nonterrorist acts that might injure or
even kill someone, but in recent years it has been increasingly
accepted for acts of organized violence directed specifically
against nationals of the regulating state.
[5]
In December 1997 the United
Nations General Assembly approved the International
Convention for the Suppression of Terrorist Bombings.
This multilateral treaty entered into force for 22 states
parties in May of this year. It currently has 24 states
parties, but neither the United States nor Saudi Arabia
is a party to it and the offense occurred before the
Convention was adopted. The Convention nevertheless
has some significance even for non-parties, since it
reflects the widely-shared opinion of the U.N. membership
not only that terrorist bombings need to be suppressed,
but also that jurisdiction to prosecute in such cases
is not necessarily limited to the territorial state
or the state of the perpetrators' nationality. The
Convention recognizes the prosecutorial interest of
the state of the victims' nationality when the bombing
has been committed against (among other things) a facility
that is occupied, even temporarily, by representatives,
officials or employees of that state. The Convention
also recognizes universal jurisdiction if the alleged
offender is in the state's territory and it does not
extradite him or her to a state with a more direct interest.
Moreover, the Convention says that it does not exclude
the exercise of any criminal jurisdiction established
by a state party in accordance with its domestic law. [6]
It appears that at least some
of the indicted persons are in Saudi Arabia. If Saudi
Arabia were a party to the Convention, it would be required
to take such measures as may be necessary under its
domestic law to investigate the matter, and if the circumstances
so warrant, to submit the matter to its appropriate
authorities for prosecution or extradite the persons.
But since Saudi Arabia is not a party, it is not bound
by these treaty requirements. There is no bilateral
extradition treaty between Saudi Arabia and the United
States.
[6] The Convention is set forth in
37 International Legal Materials 251 (1998).
About the Author:
Frederic L. Kirgis is Law School Association Alumni
Professor at Washington and Lee University School of
Law. He has written a book and several articles on United
Nations law, and is a member of the Board of Editors
of the American Journal of International Law.
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