Copyright (c) Craig Silverman 1997(2)
I. INTRODUCTION
Death by hanging(3); life in prison(4); 20 years, 10 years,(5) or 3 years in prison; and complete amnesty.(6) These are examples of the sentences imposed on hijackers in the United States, Cuba, and Iran all for the exact same offense. Furthermore, courts have a wide degree of latitude in each of these countries to go beyond the prescribed sentences or to impose less than the prescribed sentence -- in some cases, even to grant complete amnesty.(7) Terrorism is not a crime to be tried and punished domestically. This diversity in sentencing illustrates the fact that no one is sure what sentence to impose and which one will provide the adequate deterrent effect. This is one of the main reasons terrorism is a growing problem. Something must be done. An International Criminal Court is the most appropriate forum to determine culpability and sentencing for terrorism.(8)
The United Nations is currently in the process of establishing an international criminal court. Delegates from the 185 countries of the world are currently participating in a preparatory conference to work out a statute for such a court. This paper is particularly addressed to those U.N. delegates who argued that crimes of terrorism were too "similar to common crimes under national law in contrast to the crimes listed in other subparagraphs of article 20,"(9)
(which outlined the jurisdiction of the International Criminal Court). The huge variation in the treatment of hijackers/terrorists illustrates that national courts employing national law are not the appropriate forum to deal with these crimes. To demonstrate this position, this paper will show the way in which the United States, Cuba, and Iran treat hijackers on their respective domestic fronts, the vast differences in sentencing, and will conclude by showing why terrorism must come within the jurisdiction of the International Criminal Court. The sources presented in this paper, until now, have not been made available to many researchers -- such as the current Iranian and Cuban criminal codes. This paper will also serve as a warning to the delegates of the Diplomatic Conference not to heed the cries of those who feel terrorism should not be within the International Criminal Court's jurisdiction. Air piracy and acts of related terrorism are rampant today and the problem can not be effectively handled domestically.
The focus of this paper is a statutory comparison. Attempts to obtain official copies of cases from Iran and Cuba proved to be fruitless.(10) Media reports of case facts were not used in order to ensure the integrity and objectivity of this article. Although claiming to be objective, they tend to be written in a way which was slanted towards the viewpoint of their readers.(11) The portions of the codes reproduced within this article are the most up to date available and came from sources authorized by the respective countries.
This is not a paper on international conventions. Nor is this a paper on attempts to define terrorism. These concepts have been well researched and written on.(12) We all know that terrorism is a crime. The problem is what to do with the terrorists once they have been found guilty. Treaties such as The Convention for the Suppression of Unlawful Seizure of Aircraft(13) (the Hague Convention) require that terrorists be either extradited or prosecuted.(14) This is exactly where the problem begins. Consider, for example, a hijacker who hijacks a plane from Iran to the United States. The United States, should they decide to prosecute as opposed to extraditing, would prosecute according to the dictates of the Federal Sentencing Guidelines and would impose a minimum sentence of 235 months.(15) While a hijacker who is complicit in hijacking a plane from the United States to Iran could be granted amnesty in certain circumstances.(16)
II. BACKGROUND
A. DEVELOPMENTS IN THE JURISDICTION OF AN INTERNATIONAL CRIMINAL COURT
The proposed International Criminal Court is at a crucial point in the decision as to whether or not to include terrorism within its jurisdiction. Article 20 of the Draft Statute for an International Criminal Court identifies the crimes within the jurisdiction of the Court. Section (e) of Article 20 dictates that "crimes, established under or pursuant to the treaty provisions listed in the Annex, which having regard to the conduct alleged, constitute exceptionally serious crimes of international concern" are included in the court's jurisdiction.(17) No one can contest that terrorism constitutes an "exceptionally serious crime[] of international concern."(18) Several U.N. delegations, however, were of the opinion that the jurisdiction of the court should be limited to the core crimes under general international law.(19) Their argument continues that this will avoid any question of individual criminal responsibility which would result where a State is not a party to the relevant legal instrument.(20) Furthermore, they contend that limiting jurisdiction to the core crimes will facilitate the acceptance of the jurisdiction of the court by States that were not parties to particular treaties.(21) These delegations conclude that this limitation to core crimes will obviate the need for complex State consent requirements.(22) The Preparatory Committee Proceedings report of March 25 to April 12, 1996, also shows that several delegations have continually urged that terrorism should not be included within the Court's jurisdiction.(23)
An additional reason terrorism appears to have been avoided is due to the difficulty in defining it. The April 1996 report of the Preparatory Committee indicates that a number of delegations involved in establishing an international criminal court believe that terrorism should not be included in the jurisdiction of an international criminal court because there is no generally accepted definition of the crime.(24) Those delegations believed that attempts to define it would not only cause substantial delays in the creation of the court and increase costs, but it would also "lessen the resolve of States to conduct national investigations and prosecutions."(25)
In response to those who contend that any definition is over or under inclusive, United Nations General Assembly Resolution 46/51 provides a solution.(26) While the Resolution "'unequivocally condemns as criminal and unjustifiable, all acts, methods and practices of terrorism wherever and by whoever committed'[,]"(27) it does not even attempt to define terrorism. Alternatively, the resolution "lists the 'existing international conventions relating to various aspects of the problem of international terrorism.'"(28) This is the approach the Draft Statute for an International Criminal Court took at the very beginning when it stated that crimes established under the treaty provisions listed would be within its jurisdiction.(29) If an act of terrorism arises that has not been provided for in any previous treaty or convention, the parties can implement another treaty and amend the jurisdiction of the Court to encompass it.
Those who argue against a definition of terrorism by reference or incorporation of treaties fail to recognize that offenses which can be classified as terrorism, such as air piracy or hijacking, have become violative of customary international law. Custom, in reference to customary international law, "is comprised of two elements: (a) general patterns of practice or behavior (what people do), and (b) general acceptance as law (what people think) or general patterns of legal expectation or opinio juris (ie: expectations generally shared that something is legally required or appropriate)."(30) Furthermore, unlike international agreements, "customary international law is of a universally obligatory nature."(31) International agreements can also become customary international law for the entire international community.(32) History provides an example with the 1907 Hague Convention No. IV Respecting the Laws and Customs of War on Land(33) "which, as recognized by the International Military Tribunal at Nuremberg, had become customary international law at least by 1939 and thus binding on Germany (a non-signatory) and its nationals."(34) The Preamble to that same section of the Hague Convention also recognized that the "law of nations results from the usages established among civilized peoples, from the laws of humanity, and from the dictates of the public conscience."(35)
In the example provided by the 1907 Hague Convention No. IV Respecting the Laws and Customs of War, not only were there forty-four States that adopted it, but U.N. resolutions in this area were adopted unanimously.(36) Based on the aforementioned, one would be hard pressed to substantiate a claim that acts of terrorism, particularly those involving innocent civilians (such as hijacking) are not violative of customary international law.
III. ANALYSIS
A. THE UNITED STATES' DOMESTIC APPROACH TO TERRORISM
"You do the crime and You'll do the time!"(37) That sounds like a simple enough concept. The real problem comes in determining how much time that involves. The sentence imposed on a hijacker is difficult to explain. It is easy to imagine the response from a federal agent to a hijacker's inquiry as to what kind of prison time he is facing as -- "I'm not sure." To answer that question requires a complex analysis of a 371 page book (not including appendixes); and the answer may not be the same for each offender.
The system implemented in the United States is authorized by the Sentencing Reform Act of 1984.(38) This Act provided for the creation of guidelines which would "further the basic purposes of criminal punishment: deterrence, incapacitation, just punishment, and rehabilitation."(39) The people chosen for the task of creating these guidelines were The United States Sentencing Commission (hereafter Commission). The Commission is an independent agency in the judicial branch composed of seven voting (appointed by the President and confirmed by Congress) and two non-voting, ex officio members.(40) These guidelines are not idle: "[t]he Commission has the authority to submit guideline amendments each year to Congress."(41)
The United States implements the Federal Sentencing Guidelines (hereinafter Guidelines) to determine what sentence will be imposed for the commission of a particular crime. Crimes related to terrorism are defined in the United States Code.(42) Once armed with the appropriate statute, the Guidelines must be applied. This process involves nine steps:
(a) Determine the applicable offense guideline...
(b) Determine the base offense level and apply any appropriate specific offense characteristics...
(c) Apply the adjustments as appropriate related to victim, role, and obstruction of justice...
(d) If there are any multiple counts of conviction, repeat steps (a) through (c) for each count...[and] group the various counts and adjust the offense level accordingly.
(e) Apply the adjustment as appropriate for the defendant's acceptance of responsibility...
(f) Determine the defendant's criminal history category... [and] any other applicable adjustments.
(g) Determine the guideline range... that corresponds to the offense level and criminal history category determined above.
(h) For the particular guideline range, determine... the sentencing requirements and options related to probation, imprisonment, supervision conditions, fines, and restitution.
(i) Refer to Parts H and K of Chapter Five, Specific Offender Characteristics and Departures, and to any other policy statements or commentary in the guidelines that might warrant consideration in imposing sentence.(43)
The best way to analyze the effectiveness of this process is by application. Assume, for example, a terrorist hijacks an airplane by bringing an automatic weapon on board and threatening to kill all the passengers, but that no deaths occur. The passengers on-board the plane are U.S., Iranian, and Cuban citizens -- thus permitting requests for extradition and prosecution. Furthermore, assume that to gain the attention of the crew, the hijacker/terrorist fires his gun into the floor of the plane, thereby damaging the aircraft. His intention is to demonstrate the strength of his terrorist faction. The plane is diverted to an island country in the Pacific Ocean, which is a member of the United Nations. (This same example will apply for Cuba and for Iran).
The first step in the process of ascertaining the criminal sentence requires determining which section of the United States Code applies. In this hypothetical case the following Code sections could apply: Terrorism - criminal penalties,(44) Interference with air navigation,(45) Application of certain criminal laws to acts on aircraft,(46) Interference with flight crew members and attendants,(47) Destruction of aircraft or aircraft facilities,(48) and Aircraft Piracy.(49) The statutes themselves each impose sentences ranging from the imposition of a fine(50) to death.(51)
The Guidelines provide a statutory index which allows a cross reference from the statute to the appropriate code offense as listed in Chapter Two of the Guidelines.(52) A cross reference led to 18 possible offenses.(53) The next step was to check each offense to ascertain whether or not they related to airplane hijacking by terrorists. Three offenses directly related to airplane hijacking: § 2A5.1 - Aircraft Piracy or Attempted Aircraft Piracy; § 2A5.2 - Interference with Flight Crew Member or Flight Attendant; and § 2A5.3 Committing Certain Crimes Aboard Aircraft. The element of terrorism will be factored in under the computations for adjustments as described in Chapter Three of the Guidelines.
The offenses at issue all involve or relate to Aircraft Piracy and will be grouped together, pursuant to Chapter Three of the Guidelines, using the offense level for the most serious offense in that group.(54) The Aircraft Piracy offense carries the highest base level. That base level is 38.(55) This offense assumes the presence of a weapon.(56) Had a death occurred during the hijacking, the offense level would have been increased by 5 levels.(57)
The next step, after having ascertained the base level, is to apply any adjustments. The first inquiry of adjustment involves the victim(s) of the crime. Possible categories of adjustment include Hate Crime Motivation or Vulnerable Victim, Official Victim, Restraint of Victim, and Terrorism.(58) In the case at issue, terrorism is the only victim adjustment that applies. As a result, the base level of 38 is increased by 12 levels, raising it to a level of 50, and the defendant's criminal history category is automatically raised to level VI.(59) One need not inquire further into upward adjustments because the Guidelines do not go over level 43, at which point they impose a life sentence.(60) Furthermore, any upward consideration of the criminal history of the defendant is deemed moot because level VI is the highest category.(61)
The hypothetical terrorist will receive a decrease in his level under the category of adjustments for acceptance of responsibility. Terrorists wishing to make a statement for their group would most likely not only be willing to accept responsibility for their actions, but would be eager to do so. This downward adjustment will result in as much as a decrease of three levels.(62) This decrease, however, would be moot in this case because, as mentioned earlier, the terrorist is currently at level 50, subtracting 3 reduces the level to only 47 which is still well above the maximum mandating a life sentence.(63)
The criminal history of an offender is considered in light of the notion that "[r]epeated criminal behavior is an indicator of a limited likelihood of successful rehabilitation."(64) The criminal history category is used in determining what sentence a particular offender will receive for the commission of a crime. This results in two criminals potentially receiving different sentences for the exact same crime. A discussion on this point in relation to terrorists is moot. An offense being committed in conjunction with terrorism automatically increases the criminal history category to its highest level, level VI.(65)
Applying the Offense Level ascertained above, 47, and the Criminal History Category, VI, as is mandated when terrorism is involved, dictates that the hypothetical terrorist will receive a life sentence.(66) Furthermore, the Guidelines permit the court to impose, in addition to a life sentence, a fine for the offense. The offense level being over 38, the court is within its right to impose anywhere from a $25,000 to $250,000 fine on our hijacker.(67)
The Guidelines provide a means by which judges may depart from its mandates. The Commission included in the Guidelines provisions allowing courts to go outside the guideline range. Within the provisions permitting departure from the Guidelines, the Commission listed a number of factors which are expressly not to be considered in that determination; this leaves a large number of factors which may be considered.(68) Furthermore, in exceptional circumstances, even those factors enumerated by the Commission not to be considered, may in fact be considered.(69)
In other words, the Commission created a section expressly permitting a departure from the very Guidelines which they initially stated were created to avoid indeterminate sentencing.(70) As explained below, this section is counter-intuitive to its claimed purpose; and demonstrative of the fact that the Guidelines are inadequate to penalize terrorists, hijackers, and the hypothetical hijacker.
The Guidelines permit a departure from its sentencing ranges in situations where the offender provides substantial assistance to authorities.(71) One could easily imagine a terrorist in a desperate situation assisting authorities in capturing his cohorts. The court, in departing from the Guidelines, must determine whether the circumstances of the crime are "of a kind or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines."(72) Acts of terrorism were not provided for until very recently in the Guidelines. The provision on terrorism was not promulgated until 1995.(73) This provision has not been applied long enough to anticipate or provide for all possibilities in relation to terrorism, particularly when viewed in light of the international community's inability to even define it. One can easily imagine countless unforeseen circumstances in the area of terrorism.(74)
The section of the Guidelines on departures provides many more alarming provisions. A reduction, to a sentence below the Guidelines range, is permitted when a victim has provoked the defendant.(75) The most shocking, and perhaps appalling, provision in the area of terrorism is a provision which permits a reduced sentence when a defendant commits a crime in order to avoid a perceived greater harm.(76) One can envision this concept being applied to hijacking and terrorism in a case in which a terrorist who gets caught alleges he was attempting to escape a dictator or otherwise oppressive or dangerous conditions.(77) Moreover, coercion and duress, in cases where it does not permit a complete defense, will permit the court to decrease the sentence below the applicable guideline range.(78) One can foresee an instance where a captured terrorist claims the conditions under which he was forced to live created an element of duress which compelled him to hijack a plane to escape.(79) A number of the Guideline's provisions are available to mitigate the sentencing for the hijacking of an aircraft by terrorists.
The manner in which the Guidelines are written, the most definitive answer to the question posed by the hypothetical hijacker as to what type of a sentence he is likely to receive, is that he is facing a sentence of life in prison and a fine of up to $250,000. The Guidelines, however, do not provide determinate sentencing for the hijacking of airplanes by terrorists. As demonstrated above, one can easily imagine a case where the circumstances of a terrorist's attack prosecuted under the Guidelines results in a significantly reduced sentence. The current system is too easily manipulated by circumstances it is not prepared to address in the realm of terrorism. This is not intended to imply, one way or the other, that the United States system is appropriate for internal application -- that is beyond the scope of this paper. The provisions permitting departure from those guideline ranges demonstrate that the system is not adequately written or prepared to be applied to terrorism.
A domestic system can not be expected to anticipate the backgrounds or previous conduct of nationals of other countries and from other legal systems. Thus, the provision in the Guidelines permitting a court to consider, "without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law,"(80) opens a door which can be used by terrorists to escape prosecution. One safeguard does exist. In cases where a court "departs from the guideline range, an appellate court may review the reasonableness of the departure."(81)
This, however, may also prove to be ineffective. Upon what grounds can an appellate court claim that a departure from the Guidelines is unreasonable if those departures are made under the strict letter of the Guidelines themselves. This paper does not address the current system as applied to internal crimes. It does demonstrate, however, that this system is not prepared to penalize terrorism, nor is any domestic sentencing system. As indicated in the following sections, this is not a problem unique to the United States.
B. IRAN'S DOMESTIC APPROACH TO TERRORISM(82)
The analysis of the hypothetical terrorist mentioned above will be applied to the Iranian Code of Criminal Laws and Regulations. Terrorism, or more specifically here, hijacking, is covered under the criminal code of Iran. This paper's statutory focus is based partly on the fact that "Iran does not have a developed system of case reporting."(83) This lack of case reporting combined with the fact that there are 86 branches of First Class Criminal Courts and 22 Branches of the Supreme Court of Cassation, not to mention the Supreme Judicial Council,(84) creates an enormous risk of variations in sentencing for the same crime. Moreover, precedence will be hard to set because cases, and their rational, are scarcely published. This lack of uniformity is also contributed to by the fact that "[t]he doctrine of stare decisis has never been accepted in the Iranian legal system."(85)
The sources of law in Iran are Islamic law, constitutional law, legislation (such as the code discussed here), and other informal sources such as Muslim customs and traditions and revolutionary considerations.(86) The legislative and judicial organs of the State are responsible for codifying and applying the shari'a (Islamic law).(87) The penal code of Iran has divided crimes into four categories: hudud, qisas, ta'zir, and diyat.(88) The distinctions between them are based on the type of punishment for each category of offense.(89)
1. CATEGORIES OF CRIME IN IRAN
The hudud category of crimes includes those prohibited by God and punishable by mandatory penalties defined by the Quran.(90) The Quran houses God-given laws considered to be "infinitely more than just man-made laws."(91) Examples of hudud crimes, as enumerated in the Iranian penal code, include "theft, robbery, adultery, apostasy, drinking of alcoholic beverages, and rebellion against Islam."(92) The penalties imposed for these types of crimes are specified, and restricted to those listed in the Quran.(93) These punishments include the amputation of hands for theft and the stoning to death for adultery.(94)
The category of offenses designated as qisas include such acts as murder, manslaughter, battery, and mutilation.(95) These offenses, under Islamic law, are regarded as acts against the victim and his family.(96) The punishments for such offenses are retributive in nature and allow for "'inflicting on a culprit an injury exactly equal to the injury he inflicted on his victim'."(97) Although retribution and vendettas are permissible punishments for qisas crimes, the "Quran and Iranian penal code recommend forgiveness, because the act of forgiving pleases God."(98)
The ta'zir category of crimes in Iran are those which have no specific penalties assigned to them in the Quran.(99) The crimes in this category include such offenses as "immodest clothing, immoral behavior, and public drunkenness."(100)
The range of punishment for crimes in the ta'zir category of offenses, not being designated in the Quran, is left to the discretion of the judge.(101) This discretion, however, is limited to the range designated in the Islamic Penal Code.(102) Punishments within this discretion include such things as admonition, fines, seizure of property, and public flogging.(103)
The final category of crimes in Iran, diyat, is in actuality not a crime, but a category of punishment. Diyat is a form of compensation or blood-money which is ordered to be paid to a victim or his family as reparation for an injury or murder.(104) This is an alternative available to a family who chooses to "forgo their right of retribution under qisas and instead demand blood money from the perpetrator of the crime."(105) The measure of diyat, and methods of payment, for various crimes has been codified in the Iranian penal code.(106) The crime of hijacking could be deemed either a qisas crime, arguably being within the same category as such crimes as murder, manslaughter, battery, and mutilation, which are qisas crimes;(107) or a ta'zir crime as one with no specific penalties assigned to them in the Quran.(108)
2. IRAN'S COURTS FOR TERRORISM
The hypothetical hijacker could potentially be tried in three courts in the Iranian system: The First Class Criminal Court, The Court of Cassation, and The Supreme Judicial Counsel (and in that order).(109)
Iran's court system divides criminal cases into two categories: (1) First Class Criminal Courts; and, (2) Second Class Criminal Courts. The First Class Criminal Court has jurisdiction over major crimes where a conviction results in either a long-term prison sentence and heavy fines, or a death sentence.(110) The Second Class Criminal Court has jurisdiction over minor crimes such as "vagrancy, beggary, [and] failure to obey the rules and regulations of the police."(111) Sentences imposed by the Second Class Criminal Court, being relatively light, are final and cannot be appealed to a higher court.(112) Conversely, sentences imposed by the First Class Criminal Court can, theoretically, be appealed to the Court of Cassation if the sentence is over two months, or the Supreme Judicial Council if the sentence is death.(113) Appeals, however, are very difficult to obtain; this is particularly true in the Court of Cassation where they do not deem themselves as an arbiter of decisions handed down by other courts.(114)
The hypothetical hijacker, based on the aforementioned principles of Iranian law, will be tried in a First Class Criminal Court and under the Iranian Code as promulgated by the legislative and judicial organs of the State of Iran. Whether the crime be deemed a qisas or a ta'zir crime, the courts look to the Iranian Penal Code. In the case of a qisas, although retribution and vendettas are permissible punishments, the courts look to the "Quran and Iranian penal code [which] recommend forgiveness, because the act of forgiving pleases God."(115) Ta'zir crimes having no specific penalty identified in the Quran, courts are permitted discretion within the range designated in the Islamic Penal Code.(116)
This analysis will, as was done with the United States, focus on an application of the principles enumerated in the Iranian Code to the hypothetical terrorist, who hijacked an airplane (carrying U.S., Iranian, and Cuban citizens) using an automatic weapon, fired the weapon into the floor of the plane to gain the attention of the crew, and succeeded in eventually diverting the plane to an island country in the Pacific Ocean, which is a member of the United Nations.
3. PROSECUTION OF THE HYPOTHETICAL HIJACKER UNDER THE CODE OF CRIMINAL LAWS AND REGULATIONS OF IRAN
The first noteworthy attribute to the Iranian system is that criminal sentencing does not require a convoluted mathematical abomination known in the United States as the Federal Sentencing Guidelines. While it may work in internal domestic application in the United States, it has no place in sentencing terrorists. The judges in Iran, while limited to the range designated in the Islamic Penal Code, are permitted a degree of discretion in sentencing.(117) This discretion permits adaptation to circumstances not anticipated in the Penal Code.
The sentencing ranges for hijacking are enumerated in Iran's section of the code designated as the "Law of Punishments of Disrupters of Aircraft Security and Aviation Facilities and Installations."(118) The hypothetical hijacker has taken control of the airplane by intimidating the crew and passengers with an automatic weapon. These circumstances precipitate a range of three to fifteen years in prison.(119)
A certain degree of discretion is permitted in sentencing, provided it is within the range in the Code.(120) One of the aggravating factors which the Court can consider is the means with which a hijacker seizes control of the plane. The hypothetical hijacker's use of an automatic weapon to take control mandates that the hijacker receive the maximum punishment of fifteen years in prison.(121) Furthermore, the firing of an automatic weapon into the floor of the airplane by the hypothetical hijacker provided an additional aggravating circumstance. The fact the perpetrator's action "caused resultant damage [to]... aviation facilities"(122) also requires implementation of the maximum sentence.(123)
A disturbing provision of the Iranian Code is that allowing amnesty.(124) This provision provides that "[a]ny person who while complicit in preparations for these illegal acts, undergoes remorse/regret and repentance and refuses to continue such complicity"(125) will be granted amnesty. This provision opens the door for abuse. It is easy to envision a hijacker, after helping a fellow terrorist/hijacker board an airplane, going to the Iranian Courts, demonstrating remorse, and requesting amnesty. Provided he has demonstrated the requisite remorse, he will be freed and could facilitate other acts of terrorism. The cultural significance of religion and respect to God in Iran may have made the current system effective as applied internally in Iran. But this is a respect not necessarily shared by other States of the world. Just as the United States' system is not able to prepare for cultural and political circumstances it has not experienced, neither can Iran.
The discretion allowed judges in the Iranian system provides an additional weakness. The system provides little, if any, in the way of guidelines for applying this discretion. This discretion combined with the fact that there are 86 branches of First Class Criminal Courts, 22 Branches of the Supreme Court of Cassation, and a Supreme Judicial Council,(126) all of which can potentially adjudicate hijacking or terrorists cases, and the fact that "Iran does not have a developed system of case reporting,"(127) can foreseeably lead to vastly different outcomes. Furthermore, an analysis of the "practices and procedures of the various criminal courts by independent international human rights organizations [and] ... several judicial and religious authorities in the Islamic Republic have shown the conduct of these courts to be highly arbitrary."(128) It has been argued that this could be attributed to "unqualified legalists who misinterpret the Islamic Republic's penal code."(129) The purpose of this paper is not to criticize the Islamic legal system. However, it must be asked whether those people who dedicate their lives to the study and application of Islamic law are prepared to apply international considerations to a system which provides for discretion.
The Iranian government could not possibly take the position that they want to become a safe-haven for terrorists of other countries and religions who would not respect the Muslim laws or traditions. The Iranian system is based primarily on Islamic law, but Iran is not opposed to considering "usage and custom in order to identify or classify the issue under consideration."(130) Any country which wants to stop terrorism within its boarders must concede that an international criminal court is the only appropriate forum to do so.
C. CUBA'S DOMESTIC APPROACH TO TERRORISM
Cuba's President, Fidel Castro, is a lawyer.(131)
The breakdown in cooperation in hijacking matters between the
United States and Cuba in 1976, as a result of an alleged bombing of a Cuban airliner facilitated by the United States
Central Intelligence Agency,(132) has caused a great shortage of recent sources of the current legal system in Cuba.
In fact an exchange of legal material between the United States and Cuba has been "almost nil since the 1959
Revolution."(133) This lack of legal sources is aggravated by the facts that the doctrine of stare decisis does not exist
in Cuba, and judicial decisions go largely unreported.(134) Consequently, one of the main sources of law in Cuba is
statutory.(135) A significant deficiency in the area of judicial precedence opens the door for greatly diverse judicial
decisions and a lack of uniformity in factually similar cases. Cuba's legal system is typical to socialist nations in that it is based on the concept of socialist legality. The primary purpose
of a legal system, under the Socialist legality concept, is to function as a political instrument of the government and an
agent to further socialism; as opposed its primary purpose being to provide predictable rules governing behavior.(136) The courts and the Cuban judiciary, while no longer subordinate to the revolutionary socialist power, are not an
independent branch of government.(137) The Justices of the Supreme Court are elected by the National Assembly
and are accountable to the governmental body that elected them.(138) Furthermore, only the National Assembly can
interpret the Cuban Constitution.(139) Finally, the judges may be recalled by the body that elected them.(140)
These facts beg the question as to who is deciding these cases. 1. CUBA'S COURTS FOR TERRORISM Cuba's current court structure consists of a unified national court system with three levels.(141)
The highest Cuban
Court is the People's Supreme Court.(142) This Court is divided into six chambers: "(1) Criminal, (2) civil and
administrative, (3) labor, (4) State security, (5) military, and (6) economic."(143) Amongst its roles, the Supreme
Court is to oversee the operation of the entire court system.(144) This function, however, is significantly limited due
to the fact that the Supreme court is unable to review the constitutionality of actions taken by the executive and legislative
branches.(145) The next level in the court structure is the People's Provincial Courts.(146) There is a People's Provincial Court in
each of the fourteen provinces.(147) These provincial courts have "initial jurisdiction over crimes with potential
sentences of one to eight years and serve as courts of appeal for the third and lowest layer of the courts, the People's
Municipal Courts."(148) The final or lowest level of the Cuban court system is the People's Municipal Court. There are 169 municipal
courts.(149) These courts serve as the principle trial courts and have "initial jurisdiction over civil and minor criminal
matters."(150) a. Judges in the Courts of Cuba Judges in the Cuban court system are elected "for fixed terms by legislative bodies at various levels."(151) There are
twenty-six full-time professional judges in the Supreme Court who are elected by the National Assembly for five year
terms.(152) In addition, 156 laymen are elected by the National Assembly to serve as co-judges in the Supreme
Court.(153) These lay-judges serve two months a year for two-and-a-half years, and continue to work their regular
jobs when they are not judging.(154) The lay-judges only serve in cases where the Supreme Court has original
jurisdiction; in those cases two lay judges sit with three professional judges in a bench of five. In criminal cases, lay judges
vote on the issue of guilt or innocence, but not on the sentence.(155) Lay judges sit in the lower courts as well, where
they may also vote on innocence or guilt but not the sentence. In the lower courts, however, the court sits in benches of
three judges, two of which are lay judges who in turn may outvote the professional judge.(156)
This concept of using
lay judges is a relatively recent example of the Cuban adoption of Soviet concepts and institutions.(157) The hypothetical hijacker, based on the aforementioned characteristics of the Cuban court system, and the fact that, as will
be described below, the sentence for committing the crime of hijacking ranges from ten years to death,(158) will be
tried in the Supreme Court, criminal chamber; the People's Provincial Court having jurisdiction in cases where potential
sentences are only one to eight years.(159) Should this case be tried in another court based on a Cuban principle of
procedure not available in the United States, a lay judge would have at least some degree of input in ascertaining guilt or
innocence. Cuba uses lay judges at all levels of the judicial system, including the Supreme Court.(160) 2. PENAL LAW IN CUBA The main source of penal law in Cuba is statutory and is enumerated in the Codigo Penal. The most recent version available
was enacted in April of 1988 and published in 1989.(161) Crimes and ranges of punishment are defined in the code,
but there is no indication of which of the enumerated attributes of a crime will mitigate or aggravate the punishment. The
brevity of the section of the code applicable to the hypothetical permits its complete reproduction here: SECTION SEVEN Piracy ARTICLE 117 The punishment shall be loss of liberty from ten to twenty years or death for: 1) a person who, using a ship or aircraft, armed or not, commits acts of violence or threats of violence or any other form of
intimidation or hostility against another ship or aircraft with the goal of: a) taking control of the ship or aircraft, or the goods aboard; b) harming or destroying the ship or aircraft, forcing it to deviate from its route, or impeding its movement or normal
activities; c) kidnapping, injuring, or killing the crew or passengers; 2) a person who, by whatever means, removes, captures or takes possession of a ship or aircraft, forces it from its route or
interferes with its normal activities, or places in danger the security of the same; 3) a person who, from such ships or aircrafts, attacks targets located on Cuban soil; 4) a person who, without the authorization of the Government, mans or travels on armed ships or aircrafts through Cuban
territory, waters or airspace; 5) a person who, bearing arms, illegally penetrates Cuban waters or airspace, on unarmed ships or aircraft, with the end of
realizing any of the acts described in the preceding paragraphs; 6) a person who places or has placed on a ship or aircraft in service, by whatever means, a device or substance that is
capable of destroying such ship or aircraft or damaging it so as it render it useless, or that, by its nature, constitutes danger
for its safety; 7) a person who knowingly communicates false information with respect to a ship or aircraft, placing its safety in danger. ARTICLE 118 A person who delivers a Cuban ship or aircraft to pirates will be subject to the same punishment.(162) 3. PROSECUTION OF THE HYPOTHETICAL HIJACKER UNDER THE CUBAN PENAL CODE The analysis under the Cuban Penal code will be discussed, as was done with the United States and Iran, through an
application of the principles set out in section 117 and 118 of the Cuban code to the hijacker hypothetical. The Cuban Penal Code, although vague in application, does not require a complex mathematical computation as does the
United States in its Federal Sentencing Guidelines. Furthermore, it is not necessary or practical to apply each section of the
Cuban Code to the hypothetical because the code only provides a range of sentencing and does not give any guidelines for
application. Judges appear to have been given a wide degree of latitude in pronouncing sentencing. While none of the research
uncovered guidelines for application, Cuban courts have traditionally imposed a fifteen year sentence on
hijackers.(163) Justification for the traditionally applied fifteen year sentence appears to be somewhat of an enigma. While Cuba has
sentenced hijackers to an average of fifteen years in prison for hijacking since 1981, prior to 1981 those arrested for the
same crime were sentenced to only two to five years.(164) Nonetheless, it is difficult, if not impossible, to ascertain
what sentence will be imposed on the hypothetical hijacker. Cuba is a socialist State governed by its only political party, the Communist Party of Cuba. The goal of the legal system
therein is to further socialism.(165) The internal application of this system is beyond the scope of this paper. Cuba's
system applied to acts of hijacking/terrorism, however, will not fair well. Three areas of the Cuban system cause alarm: (1)
the lack of structure in sentencing; (2) the fact that judicial decisions go largely unreported; and (3) that lay judges have
input, to any extent, in the trials of hijackers/terrorists. The lack of structure in sentencing is evidenced by the fact that the code does not identify the aggravating or mitigating
factors which will result in a twenty year sentence(166) as opposed to a ten year sentence(167) or
death.(168) While flexibility allows for adaptation to unforeseen circumstances the hypothetical, or any, hijacker may
present, it also creates confusion in application. Each legal system appears to have worked in its respective community, and
on that note judicial decisions need not be reported in the same fashion as they are, for example, in the United States;
however, when combined with the lack of guidance in the code this deficit in case reporting creates a huge risk of too
lenient a sentence being imposed and presents a risk that a desperate hijacker may be willing to take. A hijacker may find
Cuba's uncertainty in sentencing a worthwhile gamble as opposed to confronting, for example, the United States Federal
Sentencing Guidelines. Cuba could not possibly want to become a safe-haven for hijackers who would face certainty in
sentencing in another country or in an International Criminal Court. The use of lay judges in Cuba's legal system undoubtedly provides domestic benefits -- why else would it be implemented
in every level of the judicial system;(169) however it creates dangerous risks in cases involving hijackers/terrorists
from other countries. Non-professional or lay judges do not have the knowledge or experience in applying the law as do
professional judges. This lack of expertise will make it difficult, if not impossible, to apply an already vague code of law to
people from vastly different countries and vastly different backgrounds. The use of lay judges opens the door for a
sympathetic application of the law to a terrorist fleeing from a country that is oppressive to the socialist ideology.
Furthermore, circumstances unfamiliar to lay judges who may not know how to adapt them to the Cuban Code could
foreseeably result in the lay judges' insistence on imposing a misapplication of Cuban law. This is of particular concern if a
hijacker/terrorist were ever tried in a lower court where lay judges have been known to outvote professional judges in
determining guilt.(170)
This analysis is not intended as a criticism of the Cuban system as applied domestically. This is merely an analysis of a
socialist legal system as applied to a problem of international proportion -- terrorism/hijacking. Cuba could not have
possibly intended to imply that it wants to permit, if not promote, leniency in sentencing for these crimes. A review of the
response to the Cuban policy of imposing a fifteen year sentence shows that its legal system is inadequate to handle the
crime of terrorism/hijacking. On July 5, 1983, two days after the State Department publicized Cuba's policy of imposing
fifteen year sentences for hijacking, another passenger jet was hijacked.(171) The Cuban system is as equally
inadequate to deal with hijackers on a domestic level as is the United States and Iran. IV. CONCLUSION The intent of this article is to prompt response, re-evaluation, and reconsideration from those delegates of the United
Nations who were of the opinion that an international criminal court is not the appropriate forum for the adjudication of
terrorism.(172) The countries of the United States, Iran, and Cuba were chosen for a number of reasons: (1) to
demonstrate that the domestic sentencing structures of three completely diverse systems are inadequate to deal with
terrorism/hijacking; (2) to be representative of as many different countries as possible -- an analysis of every country being
impractical; and (3) to demonstrate that cases of terrorism must be tried in, or regulated by precedence set by, an
international criminal court. Indeterminate sentencing in systems capable of being manipulated by foreign or unforeseen circumstances, backgrounds,
and legal systems(173); provisions for amnesty(175); inadequate case reporting(177); wide and
unstructured sentence determinations(178); and the use of inexperienced or lay judges(179) -- these are all
characteristics of the systems which will try terrorism/hijacking domestically if it is not included within the jurisdiction of
an international criminal court. Those delegates who do not want terrorism in the international criminal court's jurisdiction
must ask themselves two questions: (1) whether systems with these characteristics are capable of handling terrorism
domestically, and (2) whether those delegates are willing to take that chance. The United States, Iran, and Cuba are
representative of a significant number of countries in the world. The United States is representative of democratic systems
and superpower countries. Cuba is intended to represent socialism, Communist systems, and South American Countries.
Iran represents Islamic and Muslim countries, of which there are "forty-two other Muslim countries of the
world."(181) Furthermore, the countries of the United States, Iran, and Cuba have such vastly different legal systems
that it would be difficult, if not impossible, to identify any single common factor that each country has in common with the
others making them all inappropriate to handle terrorism domestically. Thus, an acknowledgment that the United States,
Cuba, and Iran are not capable of handling terrorism domestically is in turn an acknowledgment that most, if not all, of the
countries of the world are not capable of handling it domestically. The aforementioned research and analysis begs only one response, terrorism must be regulated by an international criminal
court. This article is intended to implore all members of the United Nations to reconsider the determination that terrorism
should not be within the international criminal court's jurisdiction -- there is no other forum which can adequately resolve
this problem.(182)
1. Craig Silverman is a Cum Laude Graduate of Salem State College, Salem, Ma. and is currently in the top 8% of his 1998
graduating class at New England School of Law with expected date of graduation 1998. He is the recipient of the New
England Scholar Award for excellence at New England School of Law and the Trustee Scholarship for ranking 2nd in his
class for the 1996-1997 academic year. A special thank you is extended to Kristen Silverman, my wife, for her consistent encouragement, support, and
understanding; without which this paper would not have been possible. Appreciation is also given to Barbara Silverman,
my mother, for her encouragement. Further appreciation extends to Professor Michael Scharf for his guidance and his
encouragement in this project. Responses, correspondences, and input are welcome from representatives of the United Nations, the United States, or any
other country. Please address them to: CRAIG SILVERMAN 5 DiAntonio Drive Milford, Ma. 01757
2. A copy of this paper is on file with the United States Copyright Office. This paper may not be reproduced, in whole or
in part, without the author's permission which may be obtained by contacting him at the above address.
3. See Complete Code of Crim. Laws and Regs., Law of Punishment of Disrupters of Aircraft and Aviation Facilities
and Installations, 7626- 1/23/1350 (Iran) [hereinafter Iran - Code of Crim.], § 2.
4. See U.S. Sentencing Guidelines Manual § 2A5.1 (1995) and U.S. Sentencing Guidelines Manual § 3A1.4
(1996) [hereinafter U.S.S.G.].
5. See Codigo Penal, Ley No. 62 [Cuba - C. Penal], art. 117, Pirateria, (Cuba, 1989).
6. See Iran - Code of Crim., §§ 1,5.
7. See, e.g., Iran - Code of Crim., § 5.
8. There is an abundance of resource available on the history and establishment of an International Criminal Court.
This paper focuses on the narrow issue of jurisdiction, and specifically hijacking/terrorism under its jurisdiction. For a
history of the International Criminal Court, some suggested sources include: Jordan J. Paust et al., International Criminal Law; Cases and Materials, 844 (1996); Michael P. Scharf, Getting
Serious About an International Criminal Court, 6 Pace Int'l. L. Rev. 103 (1994); Bernard Graefrath, Universal Criminal
Jurisdiction and an International Criminal Court, 1 Eur. J. Int'l L., 153 (1990); and Paul D. Marquardt, Law Without
Borders: The Constitutionality of an International Criminal Court, 33 Colum. J. Trans. L. 74 (1995).
9. Preparatory Committee on the Establishment of an International Criminal Court; Summary of the
Proceedings of the Preparatory Committee During the Period 25 March 12 April 1996, U.N. Doc. A/AC.249/1, at
paras. 66-67 (1996). 10. Neither Cuba nor Iran have an accessible or regular source of case reporting as is available in the United States.
See 7 Bruce Zagaris & Jay Rosenthal, Modern Legal Systems Cyclopedia 7.120.5 (1989); and 5 S.H. Amin,
Modern Legal Systems Cyclopedia 5.80.9 (1989). Contacts made in each of these countries were also unable to obtain
copies of cases on this subject.
11. For Example: The Boston Globe newspaper tends to write for a conservative audience and the Boston Herald
tends to write for more of a reformed audience.
12. As demonstrated by the fact that a March 1997 search in WestLaw under terrorism resulted in 797 articles.
13. Convention for the Suppression of Unlawful Seizure of Aircraft, done at The Hague, Dec. 16, 1970, [1971]
22 U.S.T. 1641, T.I.A.S. No. 7192, 860 U.N.T.S. 105 (1971).
14. See David Turndoff, The U.S. Raid On Libya: A Forceful Response to Terrorism, 14 Brook. J. Int'l. L.
187, 207 (1988).
15. See U.S.S.G., supra note 2, § 2A5.1.
16. See Iran - Code of Crim., supra note 1, § 5.
17. International Law Commission, Forty-ninth session, Item 140 of the Provisional Agenda;
Report of the International Law Commission on the Work of its Forty-Sixth Session, U.N. Doc. A/49/355, at p. 11 (1994) Those crimes listed in the Annex that are pursuant to treaties referred to in Art. 20(e) include: 1. The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of
12 August 1949, as defined by article 50 of that Convention; The Geneva Convention for the Amelioration of the Condition
of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, as defined by article 51 of that
Convention; The Geneva Convention Relative to the Treatment of Prisoners of War of 12 August 1949, as defined by
article 130 of that Convention; The Geneva Convention Relative to the Treatment of Civilian Persons in Time of War of 12
August 1949, as defined by article 147 of that Convention; Protocol I Additional to the Geneva Conventions of 12 August
1949 and Relating to the Protection of Victims of International Armed Conflicts of 8 June 1977, as defined by Article 85 of
that Protocol. 2. The unlawful seizure of aircraft as defined by Article 1 of the Hague Convention for the Suppression of Unlawful Seizure
of Aircraft of 16 December 1970. 3. The crimes defined by Article 1 of the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of
Civil Aviation of 23 September 1971. 4. Apartheid and related crimes as defined by Article II of the International Convention on the Suppression and Punishment
of the Crime of Apartheid of 30 November 1973. 5. The crimes defined by Article 2 of the Convention on the Prevention and Punishment of Crimes Against Internationally
Protected Persons, including Diplomatic Agents of 14 December 1973. 6. Hostage-taking and related crimes as defined by Article 1 of the International Convention Against the Taking of
Hostages of 17 December 1979. 7. The Crime of torture made punishable pursuant to Article 4 of the Convention Against Torture and Other Cruel,
Inhumane or Degrading Treatment or Punishment of 10 December 1984. 8. The crimes defined by Article 3 of the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime
Navigation of 10 March 1988 and by Article 2 of the Protocol for the Suppression of Unlawful Acts Against the Safety of
Fixed Platforms Located on the Continental Shelf of 10 March 1988. 9. Crimes involving illicit traffic in narcotic drugs and psychotropic substances are envisaged by Article 3 (1) of the United
Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 20 December 1988 which,
having regard to Article 2 of the Convention, are crimes with an international dimension. This was taken from Report of The International Law Commission on the Work of its Forty-Sixth Session, II Draft Statute
for an International Criminal Court, pg 30-31. 1 September 1994.
18. International Law Commission, Forty-ninth session, Item 140 of the Provisional Agenda;
Report of the International Law Commission on the Work of its Forty-Sixth Session, U.N. Doc. A/49/355, at p. 11
(1994).
19. See Preparatory Committee on the Establishment of an International Criminal Court;
Summary of the Proceedings of the Preparatory Committee During the Period 25 March 12 April 1996, U.N. Doc.
A/AC.249/1, para. 63 (1996).
20. See Id.
21. See Id.
22. See Id.
23. See Id. para. 67.
24. See Id.
25. See Preparatory Committee on the Establishment of an International Criminal Court;
Summary of the Proceedings of the Preparatory Committee During the Period 25 March 12 April 1996, U.N. Doc.
A/AC.249/1, para. 67 (1996).
26. G.A. Res. 46/51, U.N. Doc. A/46/54 (1991) reprinted in Jordan J. Paust, et. al., International Criminal
Law; Cases and Materials, 1185 (1996).
27. Jordan J. Paust, et. al., International Criminal Law; Cases and Materials, 1185 (1996).
28. Id.
29. See International Law Commission, Forty-ninth session, Item 140 of the provisional agenda;
Report of the International Law Commission on the Work of its Forty-Sixth Session, U.N. Doc. A/49/355, at p. 11
(1994).
30. Paust, supra note 25, at 4.
31. Id.
32. See Id.
33. Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1903, 36 Stat. 2277, 205 Consol.
T.S. 277, 2 A.J.I.L. Supp. 90.
34. Paust, supra note 25, at 4.
35. Paust, supra note 25, at 5. 36. See Jill M. Sheldon, Nuclear Weapons and the Laws of War: Does Customary International Law Prohibit
the Use of Nuclear Weapons in All Circumstances, 20 Fordham Int'l L. J. 262 n.156 (1996).
37. This is a line from the theme song to the 1970's United States television show Barretta.
38. Sentencing Reform Act of 1984, Pub. L. No. 98-473, Title II, ch. II, Oct. 12, 1984, 98 Stat. 1987 (codified
as amended in scattered sections of 18 U.S.C. and 28 U.S.C.).
39. U.S.S.G., supra note 2, ch. 1 pt. A at 1.
40. See Id.
41. Id. The Sentencing Guidelines Manual itself contains a detailed history of the development of the
Sentencing Guidelines from the Sentencing Reform Act to the policy and theoretical considerations made in their
development.
42. U.S.S.G., supra note 2, § 3A1.4 (1996).
43. U.S.S.G., supra note 2, § 1B1.1. 44. See 18 U.S.C.A. § 2332 (1997 West Supp.).
45. See 49 U.S.C.A. § 46308 (1997 West).
46. See 49 U.S.C.A. § 46506 (1997 West).
47. See 49 U.S.C.A. § 46504 (1997 West).
48. See 18 U.S.C.A. § 32 (1997 West Supp.).
49. See 49 U.S.C.A. § 46502 (1997 West).
50. See, e.g., 49 U.S.C.A. § 46308 (1997 West): Interference with Air Navigation.
51. See, e.g., 49 U.S.C.A. § 46502 (1997 West): Aircraft Piracy.
52. U.S.S.G., supra note 2, at app. A.
53. Appendix A of the Federal Sentencing Guidelines showed that 18 offenses correlated to the statutes which
were applicable: §§ 2A1.1-5; 2A2.1-3; 2A3.1; 2A3.4; 2A4.1; 2A5.1-3; 2B1.3; 2B3.1; 2K1.4; and 2A6.1.
54. U.S.S.G., supra note 2, at 238. This replaces what would have been the fourth step. Under section 3D1.3,
in the case of counts grouped together pursuant to §3D1.2(a)-(c), the offense level applicable to a Group is the offense
level... for the most serious of the counts comprising the Group. Id. at 244. Aircraft Piracy carries the highest base level and therefore that is the starting point in our computations. Furthermore, it is
clear that the other counts in the group cannot have a higher offense level than Aircraft Piracy. "The formal determination
of the offense level for [those] counts [are] unnecessary." Id. at 245.
55. See U.S.S.G., supra note 2, § 2A5.1.
56. See Id. at commentary p. 50.
57. See U.S.S.G., supra note 2, § 2A5.1.
58. See Id. at §§ 3A1.1 - 3A1.3. Hate Crime Motivation or a Vulnerable Victim being involved results in a 2-3 level increase, depending on the
circumstances. An Official Victim being involved results in an increase by 3 levels. The Restraint of the Victim results in an increase by 2 levels. Terrorism being involved results in an increase of 12 levels
and the defendant's criminal history category is automatically raised to a category 6.
59. See Id.
60. See Id. at ch. 5 pt. A.
61. See Id. Other categories of upward adjustment include: ROLE OF THE OFFENDER: Aggravating Role - results in an increase of from 2 - 4 levels. An abuse of a Position of Trust results in an increase of 2 levels. Using a Minor to Commit a Crime results in an increase of 2 levels. OBSTRUCTION: Obstructing or Impeding the Administration of Justice results in an increase by 2 levels. Reckless Endangerment During Flight results in an increase by 2 levels. The categories of downward adjustment do not apply here but include: ROLE OF THE OFFENDER: Mitigating Role of the defendant resulting in a 2 - 4 level decrease. The above figures come from: U.S.S.G., supra note 2, §§ 3B1.1 - 3C1.2.
62. See Id. at § 3E1.1.
63. See U.S.S.G., supra note 2, at ch. 5 pt. A.
64. U.S.S.G., supra note 2, § 4A1.1 at introductory commentary.
65. See Id. at 1996 Supp. p. 6.
66. See Id. at ch. 5 pt. A.
67. See Id. § 5E1.2.
68. See U.S.S.G., supra note 2, §§ 5H1.1 - 5H1.12.
69. See, e.g., Id. § 5H1.1. ("Age may be a reason to impose a sentence below the applicable guideline range
when the defendant is elderly..." Id. at 304. - All one need do then is employ the elderly to commit your acts of terrorism.) 70. See Id. at ch. 1 pt. A at p. 2.
71. See Id. § 5K1.1.
72. U.S.S.G., supra note 2, § 5K2.0.
73. See Id. § 3A1.4.
74. See, e.g., The occurrence of another atrocity like the Holocaust which occurred in Nazi Germany, Political
figures hijacking to escape after the takeover by a hostile military regime, and families trying to escape the dangers of a
civil war. Circumstances like these are of a kind "not adequately taken into consideration by the Commission in
formulating the guidelines." Id. § 5k2.0. No where in the guidelines are there provisions even alluding to these types of
situations.
75. See Id. § 5K2.10.
76. See Id. § 5K2.11.
77. In fact: [t]he United States has very rarely pressed charges against hijackers who were attempting to escape from totalitarian
regimes and were seeking asylum. Many Congressional leaders, who give voice to public sentiment, strongly disfavor
pressing charges of hijacking, transport of stolen goods, or kidnapping against Cubans who hijack aircraft and seek refuge
in America. Mark W. Levine, Cuban Hijackers and the United States: The Need for a Modified Aut Dedere Aut Judicare Rule, 32
Colum. J. Transnat'l L. 133, 135 (1994).
78. See U.S.S.G., supra note 2, § 5K2.12.
79. See, e.g., United States v. Tiede, Crim. Case No. 78-001A (U.S. Court for Berlin Mar. 14, 1979), 85
F.R.D. 227 (1979), reprinted in 19 I.L.M. 179 (1980).
80. U.S.S.G., supra note 2, § 1B1.4.
81. Id. at Ch. 1 pt. A, pg. 1. The appellate court is permitted to set aside a departure from the Guidelines that is
"unreasonable." See, e.g., United States v. Soltero-Lopez, 11 F.3d 18 (1993). See also, U.S.S.G., supra note 2, Appendix B
at 432-433: A defendant may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence-- (1) was imposed in violation of law; (2) was imposed as a result of an incorrect application of the sentencing guidelines; or (3) is greater than the sentence specified in the applicable guideline range to the extent that the sentence includes a greater
fine or term of imprisonment...; or (4) was plainly imposed for an offense for which there is no sentencing guideline and is plainly unreasonable... The Government may file a notice of appeal in the district court for review of an otherwise final sentence if the sentence-- (1) was imposed in violation of law; (2) was imposed as a result of an incorrect application of the sentencing guidelines; (3) is less than the sentence specified in the applicable guideline range to the extent that the sentence include a lesser fine...
than the minimum established in the guideline range; or (4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable... Upon review of the record, the court of appeals shall determine whether the sentence -- (1) was imposed in violation of law; (2) was imposed as a result of an incorrect application of the sentencing guidelines; (3) is outside the applicable guideline range, and is unreasonable...; or (4) was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable. Id. 82. Due to the difficulty in obtaining copies of the Iranian Code, and as a courtesy to fellow researchers, the
section of Iran's Code on hijacking is reproduced in the final footnote to this article for reference purposes.
83. Amin, supra note 8, at 5.80.9
84. See Id. at 5.80.11.
85. Id. at 5.80.9.
86. See Amin, supra note 8, at 5.80.5.
87. See Nadar Entessar, Criminal Law and the Legal System in Revolutionary Iran, 8 B.C. Third World L. J.
91, 95 (1988).
88. See Id. at 96.
89. See Id. See also Kourosh Eshghipour, The Islamic Revolution's Impact on the Legal and Social Status of
Iranian Women, 3 New Eng. Int'l and Comp. L. Ann. 161, 166-169 (1997).
90. See Id. at 96-97.
91. Entessar, supra note 85, at 92.
92. Id. at. 97.
93. See Id.
94. See Id.
95. See Entessar, supra note 85, at 97.
96. See Id. at 97.
97. Id.
98. Id.
99. See Entessar, supra note 85, at 98.
100. Rose Marie Karadsheh, Creating an International Criminal Court: Confronting the Conflicting Criminal
Procedures of Iran and the United States, 14 Dick. J. Int'l L. 243, 267 (1996). 101. See Entessar, supra note 85, at 98.
102. See Id.
103. See Id.
104. See Id.
105. Entessar, supra note 85, at 98.
106. See Id.
107. See Id. at 97.
108. See Id. at 98.
109. See Id. at 98-99.
110. See Id. at 99.
111. Entessar, supra note 85, at 99.
112. See Karadsheh, supra note 98, at 270.
113. See Id.
114. See Entessar, supra note 85, at 99.
115. Id. at 97.
116. See Entessar, supra note 85, at 98.
117. See Id. at 98.
118. Iran - Code of Crim., supra note 1, §§ 1 - 5.
119. See Id. § 1.
120. See Entessar, supra note 85, at 98.
121. See Iran - Code of Crim., supra note 1, § 1. Note that had there been more than one perpetrator of the
hijacking who had used an automatic weapon, or other "dangerous means", the maximum sentence is extend to "punishment
of life in prison." Id.
122. Id. § 1
123. See Id. Note that the maximum sentence would be applied to any group committing the same actions
under section 2 of the Iranian code on hijackers. 124. See Iran - Code of Crim., supra note 1, § 5.
125. Id.
126. See Amin, supra note 8, at 5.80.11
127. Id. at 5.80.9.
128. Entessar, supra note 85, at 101.
129. Id.
130. Amin, supra note 8, at 5.80.8.
131. Paul Bernstein, Cuba: Last Look at an Alternative Legal System?, 7 Temp. Int'l & Comp. L. J. 191, 197
(1993).
Castro received a Doctor of Law, Doctor of Social Sciences, and Doctor of Diplomatic Law from the University of Havana in 1950. Id. at n.72.
132. Jane Franklin, The Cuban Revolution and the United States -- A Chronological History, 120 (1992).
At a memorial service for the people killed aboard the airliner, [Cuban Airlines, on October 6, 1976,] Prime Minister Castro says at least one of the people arrested for the bombing is a known CIA agent and that, as a result of this crime, Cuba will abrogate the anti-hijacking agreement with the United States. He says Cuba will not sign another agreement of this kind 'until the terrorist campaign unleashed against Cuba is ended once and for all.' U.S. officials, including Secretary of State Kissinger, deny that the CIA, headed by George Bush, had anything to do with the bombing.
Id. On April 15, 1977 Cuba formally revoked its anti-hijacking agreement with the United States. Id. at 125.
133. Zagaris & Rosenthal, supra note 8, 7.120.5.
The few scholarly articles which have been written about the Cuban legal system since 1959, also lament the complete absence of either primary or secondary materials on the subject. Similarly, in Cuba, scholars have noted the abundance of American law books printed prior to 1959, and the absence of any published thereafter.... [R]ecently, Federal Agents confiscated Cuban legal periodicals sent to long-time subscribers in the United States. The government found authority for the seizure in the 1917 Trading with the Enemy Act.
Id.
134. See Id.
135. See Id.
136. See Matias F. Travieso-Diaz & Steven R. Escobar, Cuba's Transition to a Free-Market Democracy: A Survey of Required Changes to Laws and Legal Institutions, 5 Duke J. Comp. & Int'l L. 379, 381 (1995).
137. See William Baerg, Judicial Institutionalization of the Revolution: Legal Systems of the People's Republic of China and the Republic of Cuba, 15 Loy. L.A. Int'l & Comp. L.J. 233, 253 - 254 (1992).
138. See Id. at 254.
139. See Id.
140. See Id. at 255.
141. See Travieso-Diaz & Escobar, supra note 134, at 397.
The respective Cuban laws establishing these courts include:
Ley de Organizacion del Poder Judicial, Law No. 1250, published June 23, 1973. This law was amended first by the Ley de Organizacion del Sistema Judicial, Law No. 4, published August 25, 1977, and subsequently by the Ley Sobre los Tribunales Populares, Law No. 70, published July 24, 1990. The Economic Chambers of the Supreme Court and the Provincial Courts were established by Legislative Decree 129, De Extincion del Sistema de Arbitraje Estatal, published August 19, 1991.
Id. at n.69.
142. See Id.
143. Id.
144. See Id.
145. Travieso-Diaz & Escobar, supra note 134, at 397.
146. See Id.
147. See Id.
148. Id.
149. See Travieso-Diaz & Escobar, supra note 134, at 397.
150. Id.
151. Harold J. Berman & Van R. Whiting, Jr., Impressions of Cuban Law, 28 Am. J. Comp. L. 475, 479 (1980).
152. See Id.
153. See Id.
154. See Id.
155. See Berman & Whiting, Jr., supra note 149, at 479.
156. Id. See, e.g.,
The Provincial Tribunal for the Province of the City of Havana, which is the largest of the provincial tribunals, has eighteen professional judges in the Criminal Division, three in the Civil, three in State Security and four in Labor, plus part-time lay judges, of whom seventy five are in the criminal division. [There has been] a case in a provincial court in which a judge had to pronounce sentence on a person she had found innocent but whom her two lay colleagues had found guilty.
Id.
157. See Id.
158. Cuba - C. Penal, supra note 3, art. 117.
159. Travieso-Diaz & Escobar, supra note 134, at 397.
160. Debra Evenson, Revolution in the Balance: Law and Society in Contemporary Cuba 75-77 (1994).
161. This law was passed December 29, 1987 but did not go into effect until April, 1988. All sources cited in this article, and others researched but not utilized, indicate that the most available Penal Code is 1979. The 1989 version, however, is actually the most recent.
162. Cuba - C. Penal, supra note 3, art. 117-118.
163. Franklin, supra note 130, at 176-177.
164. See Id.
165. See Travieso-Diaz & Escobar, supra note 134, at 381.
166. See Cuba - C. Penal, supra note 3, art. 117.
167. See Id.
168. See Id.
169. See Evenson, supra note 158, at 75-77.
170. See, e.g., Berman & Whiting, Jr., supra note 149, at 479.
The provincial Tribunal for the Province of the City of Havana, which is the largest of the provincial tribunals, [and] has eighteen professional judges in the Criminal Division, three in the Civil, Three in State Security and four in Labor, plus part-time lay judges, of whom seventy five are in the criminal division. [There has been] a case in a provincial court in which a judge had to pronounce sentence on a person she had found innocent but whom her two lay colleagues had found guilty.
Id.
171. Franklin, supra note 130, at 177.
172. Summary of the Proceedings of the Preparatory Committee During the Period 25 March 12 April 1996, supra note 17, paras. 63-67; and text accompanying footnotes n.14-18.
173. For Example:
The provision in the United States Federal Sentencing Guidelines permitting a court to consider, "without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law,"(174)
174. Id. § 1B1.4. §
175. Section five of the Iranian code provides that "[a]ny person who while complicit in preparations for these illegal acts, undergoes remorse/regret and repentance and refuses to continue such complicity"(176)
176. Id. - §
177. Neither Cuba, Zagaris & Rosenthal, supra note 8, 7.120.5, nor Iran, Amin ,supra note 8, 5.80.9, have well developed or widely published systems of case reporting.
178. The Cuban Code does not indicate the criteria which mitigate or aggravate sentencing.
Cuba - C. Penal, supra note 3, art. 117-118.
179. Cuba uses lay judges at all levels of the judicial system, including the Supreme Court.
(180)180. Debra Evenson, Revolution in the Balance: Law and Society in Contemporary Cuba 75-77 (1994). -
181. Karadsheh, supra note 98, at 264.
"In the Middle East alone, Islamic Law is incorporated in the constitutions, civil codes, or nationals laws of countries such as: Bahrain, Kuwait, Qutar, Syria, the United Arab Emirates, Egypt, Iraq, Libya, Saudi Arabia, and Oman."
Id. at n.182 (citation omitted).
182. (Editorial comments or clarification are in parentheses)
(Islamic Republic of Iran)
Complete Code of Criminal Laws and Regulations
Official Gazette (Journal/Bulletin) 7626 - 1/23/1350
Law of Punishments of Disrupters (Saboteurs) of Aircraft Security and Aviation Facilities and Installations
Approved and Promulgated - 12/4/1349
One Article
1-Person or persons who by force, intimidation, threat or deception, take control of an aircraft from the rightful crew, whether the aircraft is parked, prepared for takeoff or during flight, and whose actions cause the diversion, landing and arrival of the aircraft to other than its intended destination, upon conviction will be sentenced to punishments in the first degree, imprisonment from 3 to 15 years.
In the event of the use by (only) one perpetrator of weapons, explosive materials or other dangerous devices to convey and conduct such threat, intimidation or coercion, that perpetrator will, upon conviction, be sentenced to the above-specified maximum punishment of 15 years imprisonment.
If more than one perpetrator employs such dangerous means, each perpetrator, upon conviction, will be sentenced to a maximum punishment of life imprisonment.
In the event that perpetrators, incidental to their disruptions, cause resultant damage or disruption of the operations of aviation facilities or the activities of airline employees or passengers, they shall be sentenced to the maximum imprisonment.
2- Any group of persons who board, travel, or contact the aircraft or carry, place, install, or transport dangerous objects with the intent to disrupt or destroy the aircraft while in flight or otherwise, and whose actions resultant in the destruction or damage of the aircraft or related property, will be sentenced to the maximum punishment, according to the above-specified degree, of 15 years imprisonment.
If their actions result in any death or grievous injury of flight crew, passengers or airport personnel, the perpetrators, upon conviction, will be sentenced to the punishment of death by hanging.
3- Any group of persons who by means of threat, intimidation, coercion or deception, cause the disruption, disablement or degradation of the security status of an airport, aviation navigation equipment, routine operations of airport personnel, or related systems, shall be sentenced to a minimum punishment of 3 years imprisonment.
If more damages result from these acts, the perpetrators may be charged with multiple offenses and be adjudged more severe punishments upon conviction.
4- Any persons - whether employees, contractors, subcontractors or other persons with any official affiliation with the airline or aviation facilities - who wittingly cooperate with the perpetrators, will be charged as accomplices/parties to the act and receive maximum sentences according to the above-prescribed degree, and they may receive more severe punishments than those adjudged to the perpetrators.
5- Any person who while complicit in preparations for these illegal acts, undergoes remorse/regret and repentance and refuses to continue such complicity, will receive amnesty, although should that person have committed other criminal acts (ed: separate from the aviation-related illegal act) shall be subject to prosecution and conviction for those previous criminal acts.
6- Any person who procures or provides supplies, materials, devices or other objects to the perpetrators in their preparations for this illegal act and upon becoming aware of the illicit nature of this intended action, fails to report the matter to the appropriate authorities, will be considered an accessory/accomplice to the criminal act and will be charged, prosecuted and if convicted, adjudged the same punishments as the perpetrators.
7- The source of legal review and opinion of technical matters related to this aviation law will be referred to the national state authorities (ed: Ministry of State of the Islamic Republic of Iran).
8- Exclusive authority for judicial review of punishments adjudged under this law is reserved by the Central Legal court (ed: Supreme Court of the Islamic Republic of Iran).
9- Extradition of persons accused or convicted of crimes committed subject to this law will be accomplished pursuant to Section 1 of the applicable Law of Extradition as promulgated in 1339 (Islamic Year).