Indictments Regarding the Bombing of U.S. Quarters in Saudi Arabia

Frederic L. Kirgis
June 11, 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.
[1]   N.Y. Times, June 23, 2001, p. A6.
[2]   Associated Press dispatch, June 23, 2001.
[3]   Case of the S.S. Lotus (France v. Turkey), PCIJ Series A, No. 10, at p. 18 (1927).
[4]   Restatement Third of Foreign Relations Law of the United States § 404 (1987).
[5]    Restatement Third § 402, Comment g.
[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.