LLooyyoollaa ooff LLooss AAnnggeelleess IInntteerrnnaattiioonnaall aanndd CCoommppaarraattiivvee LLaaww RReevviieeww Volume 9 Number 2 Article 7 3-1-1987 TThhee AAcchhiillllee LLaauurroo IInncciiddeenntt aanndd tthhee PPeerrmmiissssiibbllee UUssee ooff FFoorrccee Mark D. Larsen Follow this and additional works at: https://digitalcommons.lmu.edu/ilr Part of the Law Commons RReeccoommmmeennddeedd CCiittaattiioonn Mark D. Larsen, The Achille Lauro Incident and the Permissible Use of Force, 9 Loy. L.A. Int'l & Comp. L. Rev. 481 (1987). Available at: https://digitalcommons.lmu.edu/ilr/vol9/iss2/7 This Notes and Comments is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola Law School. It has been accepted for inclusion in Loyola of Los Angeles International and Comparative Law Review by an authorized administrator of Digital Commons@Loyola Marymount University and Loyola Law School. For more information, please contact [email protected]. The Achille Lauro Incident And The Permissible Use Of Force I. INTRODUCTION On October 7, 1985, the Italian cruise ship Achille Lauro was commandeered by four individuals identifying themselves as members of the Palestine Liberation Front (PLF), a breakaway faction of the Palestinian Liberation Organization (PLO).' The hijacking occurred as the Achille Lauro drew close to Port Said, Egypt, on a short excur- sion from Alexandria2 carrying approximately four hundred crew members and guests.3 Among the passengers were fourteen citizens of the United States who were singled out by the hijackers as those who would be the first to die if the hijackers' conditions were not met.4 As their principal demand, the four gunmen sought the release of fifty Palestinians from Israeli prisons, among them convicted terrorists.5 After the hijackers had diverted the ship's course away from Egypt and towards Tartus, Syria, a radio message was received infer- ring that a person on board the ship had been killed.6 After the hi- jackers had surrendered to a representative of the PLO at Port Said, 1. N.Y. Times, Oct. 8, 1985, at A1, col. 6. The PLF has been identified as one of the eight factions originally constituting the Palestinian Liberation Organization. See N.Y. Times, Oct. 9, 1985, at A9, col. 2. However, the PLF has distinguished itself as a particularly brutal band of terrorists, with a reputation gained in large measure by the Nahiariga incident, during which members of the PLF killed a five-year old Israeli girl by dashing her head against a rock. See id., at A4, col. 5. 2. N.Y. Times, Oct. 9, 1985, at Al, col. 6; see also NEWSWEEK, Oct. 21, 1985, at 34. 3. N.Y, Times, Oct. 9, 1985, at Al, col. 6; see also NEWSWEEK, Oct. 21, 1985, at 35. 4. N.Y. Times, Oct. 8, 1985, at Al, col. 6. Accounts later given to the press by the passengers asserted that fourteen American, six British and two Austrian passengers were seg- regated from the remainder of those on board the ship. Apparently, the two Austrian passen- gers were held with the Americans because the hijackers mistakenly believed them to be Jewish. See NEWSWEEK, Oct. 21, 1985, at 35. 5. N.Y. Times, Oct. 8, 1985, at Al, col. 6; see also NEWSWEEK, Oct. 21, 1985, at 35, TIME, Oct. 21, 1985, at 32; N.Y. Times, Oct. 9, 1985, at A4, col. 4. 6. N.Y. Times, Oct. 9, 1985, at Al, col. 6. The transcript of radio communications between the hijackers and the Syrian port of Tartus was as follows: "We will start killing at 1500. We cannot wait any longer. We will start killing. What are the developments, Tar- tus? We will kill the second. We are losing patience." N.Y. Times, Oct. 9, 1985, at AI, col. 5. 482 Loy. L.A. Intl & Comp. L. J. [Vol. 9:481 Egypt,7 the murder of Leon Klinghoffer, a wheelchair-bound United States citizen, was confirmed by Bettino Craxi, Prime Minister of It- aly, during a news conference in Rome" Pursuant to a settlement, the hijackers returned the ship to Egypt in response to a promise to provide them safe passage out of Egypt to an undisclosed location. However, according to Egyptian officials, the gunmen were not to be released until it was determined whether anyone on board the ship had been killed.9 Meanwhile, the United States had requested that Egypt extradite the hijackers to the United States.'0 On October 10, 1985, after ignoring American pleas to prosecute or extradite the gunmen, the Egyptian government placed the hijack- ers on a commercial airliner out of Cairo bound for the Palestinian Liberation Organization base in Tunis, Tunisia."I The EgyptAir air- liner was intercepted by fighter jets from the United States aircraft carrier Saratoga over international waters north of Egypt 2 and di- verted to Sicily, Italy, where the hijackers were arrested by Italian authorities.13 Later, it was learned that the Tunisian government had refused landing rights to the Egyptian plane carrying the hijackers.14 Soon thereafter, Egyptian President Hosni Mubarek charged that the use of force by the United States constituted a breach of interna- tional law.15 This Comment will address whether the use of force by the United States was justified as a legitimate act of self-defense or reprisal - an act that would have been unnecessary had Egypt com- 7. N.Y. Times, Oct. 10, 1985, at Al, col. 6. 8. N.Y. Times, Oct. 10, 1985, at Al, col. 6; see also TIME, Oct. 21, 1985, at 33, establish- ing that on Oct. 10, 1985, the ambassador from the United States to Egypt confirmed that Leon Klinghoffer had been killed on board the ship. See also NEWSWEEK, Oct. 21, 1985, at 34. 9. N.Y. Times, Oct. 10, 1985, at Al, col. 6. However, there was speculation in the press regarding actual knowledge held by Egyptian officials concerning Mr. Klinghoffer's death, despite Egyptian claims to the contrary. See N.Y. Times, Oct. 11, 1985, at A34, col. 1. On October 9, 1985, Giulio Andreotti, Foreign Minister of Italy, stated that Italy had agreed to the settlement on the sole condition that no one on board the ship had been killed. See N.Y. Times, Oct. 10, 1985, at A10, col. 1. 10. N.Y. Times, Oct. 10, 1985, at Al, col. 3; see also NEWSWEEK, Oct. 21, 1985, at 25. 11. N.Y. Times, Oct. 11, 1985, at Al, col. 6. 12. Id.; see also NEWSWEEK, Oct. 21, 1985, at 25. 13. N.Y. Times, Oct. 11, 1985, at Al, col. 6. 14. NEWSWEEK, Oct. 21, 1985, at 25. Additionally, the EgyptAir airliner was also de- nied landing rights at Athens, Greece. Id. 15. President Mubarek was quoted as accusing the United States of "an act of air piracy ... unheard of under any international law or code." N.Y. Times, Oct. 13, 1985, at A], col. 5. President Mubarek also requested an apology of President Reagan, to which Mr. Reagan re- sponded, "Never". TIME, Oct. 21, 1985, at 26. .1987] The Achille Lauro Incident plied with principles of international law to which Egypt had volunta- rily bound itself. The thesis of this Comment is that the use of force against Egypt constituted a legitimate reprisal in that the action com- plied with standards of reasonableness - a reasonableness that may be quantified by the following three elements: (1) Egypt was guilty of a prior international delinquency against the United States; (2) An attempt by the United States to obtain redress or protec- tion by other means was known to have been made, or was inappropriate or impossible under the circumstances, leaving the United States without a remedy against Egypt; (3) The use of force by the United States was limited to the neces- sities of the case and proportional to the wrong perpetrated by Egypt. 16 II. THE GENERAL PROHIBITION AGAINST THE USE OF FORCE Article 2(4) of the United Nations Charter contains the "basic rule against the threat or use of force."' 7 This provision states that "[a]ll Members shall refrain in their... use of force against the terri- torial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations."' It is this basic principle that underlies Egypt's complaint against the United States. The nationality of the airliner carrying the Achille Lauro hijack- ers is a basis for finding that the United States' actions constituted the use of force against Egypt's territorial integrity. 19 The Convention on International Civil Aviation,2o to which Egypt and the United States are parties,2' provides that "[a]ircraft used in military, customs and 16. Professor D. W. Bowett suggests this three part test in Bowett, Reprisals Involving Recourse to Armed Force, 66 AM. J. INT'L L. 1, 3 (1972). See also Falk, The Beirut Raid and the InternationalL aw of Retaliation, 63 AM. J. INT'L L. 415, 430-31 (1969). 17. Schachter, Self-Help in the InternationalL aw: U.S. Action in the Iranian Hostages Crisis, 37 J. INT'L AFF. 231, 241 n.10 (1984). 18. U.N. CHARTER art. 2, para. 4. The U.N. Charter also requires that "[a]ll Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered." U.N. CHARTER art. 2, para. 3. 19. The assertion that the United States' action constituted a violation of Egypt's sover- eignty is supported by the fact that EgyptAir is the Egyptian national airline. NEWSWEEK, Oct. 21, 1985, at 22. 20. Convention on International Civil Aviation, Dec. 7, 1944, 61 Stat. 1180, T.I.A.S. No. 1591, 15 U.N.T.S. 295. 21. Id. 484 Loy. L.A. Int'l & Comp. L. J. [Vol. 9:481 police services shall be deemed to be state aircraft."22Furthermore, under the Convention on Civil Aviation, the airliner constituted the territory of Egypt because aircraft hold the nationality of the state where they are registered.23 Besides the nationality of the aircraft, the threat or use of force against Egyptian personnel operating the plane24 and Egyptian police- men on board the flight25 violated Egyptian sovereignty.26 Thus, whether analyzing the interception of the airliner as an attack upon Egyptian property or Egyptian lives, the United States' actions consti- tuted a threat or use of force against the territorial integrity of Egypt. III. INAPPLICABILITY OF THE DOCTRINE OF SELF-DEFENSE A. TraditionalS elf-Defense Article 51 of the United Nations Charter establishes that "[n]othing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs. '27 Self- defense is so basic to the existence of nations that it warrants the label of an "inherent right."'28 The Charter does not create the "inherent right" to self-defense, but rather recognizes it.29 Justifying the actions of the United States in the Achille Lauro incident as legitimate instances of self-defense not only demands find- ing that an attack upon the United States occurred, but also that the measures taken in self-defense were necessary and proportional to the provoking injury.30 The taking of United States citizens as hostages and the subsequent murder of Mr. Klinghoffer is an attack upon the United States itself, particularly if "the nationals are attacked because 22. Id. art. 3(b). 23. Id. art. 17; see also RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 29 comment a (1965). It is assumed herein that the EgyptAir airliner is registered in Egypt. 24. N.Y. Times, Oct. 11, 1985, at Al, col. 6; see also TIME, Oct. 28, 1985, at 23. 25. N.Y. Times, Oct. 11, 1985, at Al, col. 6. 26. See D. BOWETT, SELF-DEFENSE IN INTERNATIONAL LAW 92 (1958). "It has been contended that an injury to the nationals of a state constitutes an injury to the state itself." Id. at 92. 27. U.N. CHARTER art. 51, para. 1. 28. L. GOODRICH, E. HAMBRO & A. SIMONS, CHARTER OF THE UNITED NATIONS 344 (3d ed. 1969). Former United States Secretary of State Dean Acheson has noted that the right of self-defense is inherent "in the very existence of nationhood." Id. at 344 n.188. 29. L. GOODRICH, E. HAMBRO & A. SIMONS, supra note 28, at 344. 30. Schachter, The Right of States to Use Armed Force, 82 MICH. L. REV. 1620, 1635, 1637 (1984). 1987] The Achille Lauro Incident of political antagonism to their government."'3' Indeed, [i]t has been contended that an injury to the nationals of a state constitutes an injury to the state itself, and that the protection of nationals is an essential function of the state. On this reasoning, it is feasible to argue that the defense of nationals, whether within or without the territorial jurisdiction of the state, is in effect the de- fense of the state itself.32 However, to properly invoke the doctrine of self-defense, either the lives of citizens must be in imminent danger or an attack upon territorial sovereignty must be underway.33 Reflection upon the res- cue action of the Israeli government at Entebbe, Uganda serves as a useful comparative device in concluding that the actions of the United States in the Achille Lauro incident were not in self-defense, precisely because an imminent threat of loss of life was missing. In the Entebbe rescue mission, Israel intruded upon the territorial sovereignty of Uganda in response to the threat of imminent loss of life of Israeli nationals.34 The use of force was justified in that case by the United States' representative to the United Nations as follows: [T]here is a well-established right to use limited force for the pro- tection of one's own nationals from an imminent threat of injury or death in a situation where the state in whose territory they are lo- cated either is unwilling or unable to protect them. The right, flowing from the right of self-defense, is limited to such use of force as is necessary and appropriate to protect threatened nationals from injury.35 In the Achille Lauro case, the doctrine of self-defense cannot ad- equately justify the actions of the United States. When the EgyptAir airliner was intercepted by United States warplanes, the hostages, and 31. Id. at 1632. "The right of the state to intervene by the use or threat of force for the protection of its nationals suffering injuries within the territory of another state is generally admitted, both in the writings of jurists and in the practice of states." D. BOWErF, supra note 26, at 87. The facts of the Achille Lauro hijacking establish beyond doubt that Mr. Klinghof- fer and other American citizens were segregated from the other passengers and crew because of their nationality. See NEWSWEEK, Oct. 21, 1985, at 34. 32. D. BOWETT, supra note 26, at 92. 33. Schachter, supra note 17, at 243; see also Levenfeld, Israel's Counter-Fedayeen Tactics in Lebanon: Self-Defense and Reprisal Under Modern International Law, 21 COLUM. J. TRANSNAT'L L. 1, 15-17 (1982). 34. Schachter, supra note 30, at 1630; see also Sheehan, The Entebbe Raid: The Principle of Self-Help in International Law as Justification for State Use of Armed Force, 2 THE FLETCHER F. 135 (1977). 35. Schachter, supra note 30, at 1630 (quoting DIG. OF U.S. PRAC. IN INT'L L. 150-51 (1976)). Loy. L.A. Int'l & Comp. L. J. [Vol. 9:481 Mr. Klinghoffer in particular, were well beyond protection and no longer in need of defense from the hijackers.36 The right of self-de- fense, when used to justify an incursion upon the territorial integrity or sovereignty of a State is limited to cases of "immediate threat of irreparable injury to . . . life or property. '37 In the Achille Lauro case, the United States' actions were not self-defensive in character because the elements of immediate threat and irreparable injury were absent. Certainly, United States citizens were not immediately in need of rescue or protection when the United States acted. Accord- ingly, the armed intervention was not "justified by the sheer necessity of instant actions to save the lives of innocent nationals, whom the local government is unable or unwilling to protect."38 B. Anticipatory Self-defense The right of self-defense has been read narrowly to apply only when an armed attack is actually in progress. 39 The United Nations has refused to recognize a right of preventative or anticipatory self- defense "for fear that it may be too fraught with danger for the basic policy of peace and stability."''4 However, particularly in the nuclear age, "[s]tates faced with a perceived danger of immediate attack,. . .cannot be expected to await the attack like sitting ducks."'4 Within the context of terrorism, par- ticularly as applied in the Middle East: When a government treats an isolated incident of armed attack as a ground for retaliation with force, the action can only be justified as self-defense when it can be reasonably regarded as a defense against a new attack. Thus, "defensive retaliation" may be justified when a state has good reason to expect a series of attacks from the same source and such retaliation serves as a deterrent or protective 42 action. The right of anticipatory self-defense may be applicable to the 36. By the time the United States planes intercepted the EgyptAir airliner, Mr. Klinghof- fer was already dead. See N.Y. Times, Oct. 11, 1985, at Al, col. 6. Additionally, all of the hostages had already been released. See N.Y. Times, Oct. 10, 1985, at Al, col. 6. 37. D. BOWETT, supra note 26, at 89. 38. Schachter, supra note 30, at 1630 (quoting Waldock, General Course on Public Inter- national Law, 106 RECUEIL DES COURS 1, 240 (1962)). 39. Levenfeld, supra note 33, at 15. 40. Id. at 16 (quoting R. HIGGINS, THE DEVELOPMENT OF INTERNATIONAL LAW THROUGH THE POLITICAL ORGANS OF THE UNITED NATIONS 203 (1963)). 41. Schachter, supra note 30, at 1634. 42. Id. at 1638. 1987] The Achille Lauro Incident Achille Lauro incident only if the threat of danger posed by the hi- jackers, assisted by Egypt, was imminent. In what "is often cited as authoritative customary law"43 United States Secretary of State Daniel Webster refuted a British claim of anticipatory self-defense, asserting that anticipatory self-defense is limited to cases in which "the necessity of that self-defense is instant, overwhelming and ... leaves no choice of means, and no moment for deliberation."44 In the Achille Lauro incident, anticipatory self-defense as a justi- fication for the United States' actions must fail because the dangers posed by the hijackers were not imminent. A comparison to Israel's bombing of an Iraqi nuclear reactor in 1981, which Israel attempted to justify as anticipatory self-defense, is helpful to an analysis of the Achille Lauro case. In the former case, Israel's claim of anticipatory self-defense was rejected by the United Nations because the antici- pated Iraqi attack was not imminent.45 Similarly, in the Achille Lauro incident, while it may have been reasonable for the government of the United States to presume the same four hijackers would return to terrorism, the reaction of the United States was not in response to an imminent danger. Thus, the doctrine of anticipatory self-defense does not justify the American actions. IV. REPRISAL AS A LEGITIMATE USE OF FORCE The primary distinction between acts of self-defense and acts of reprisal is that "[s]elf-defense is future-oriented. It seeks to secure the state against threats to its territory or sovereignty. Reprisals are past- oriented. They seek to punish past behavior with the aim of prevent- ing its recurrence. '46 There is a further distinction between reprisals which are simply punitive in character, and thus illegitimate, and re- prisals holding characteristics of reasonableness, which serve to legiti- mize the action taken.47 The following three elements provide an 43. Id. at 1635. 44. Levenfeld, supra note 33, at 28 (quoting 2 J. MOORE, A DIGEST OF INTERNATIONAL LAW 412-14 (1906)). The Caroline case involved the use of British armed forces against a vessel carrying armed men to Canada. The men were on their way to support an armed insur- rection in Canada against the British. The primary justification by the British for their actions was the right of anticipatory self-defense. Id. at 28 n.92. 45. See Schachter, supra note 30, at 1635. 46. Levenfeld, supra note 33, at 37. 47. Bowett, supra note 16, at 11. Professor Bowett's contention, that reasonable conduct amounting to a reprisal is not illegal, is based upon his observation that reprisals conforming to the three factors set forth in the text at page 3 have not been condemned by the U.N. Security Council. Id. 488 Loy. L.A. Int'l & Comp. L. J. [Vol. 9:481 analytical basis for examining and judging reprisals. These standards of evaluation are set forth below, within the context of the Achille Lauro incident. A. "The target state must be guilty of a prior international delinquency against the claimant state." ,48 "The first prerequisite, sine qua non for the right to exercise re- prisals is an occasion furnished by a previous act contrary to interna- tional law."'49 In the Achille Lauro case, for the United States to justify its actions as legitimate reprisals, the force utilized must have been in response to a breach of international law by Egypt. The breach at issue here was Egypt's failure to comply with the International Convention Against the Taking of Hostages ("Hostages Convention"), to which both Egypt and the United States are par- ties.50 "The basic thrust of the Hostages Convention is that those who take hostages will be subject to prosecution or extradition if they are apprehended within the jurisdiction of a state party to the Con- vention. Safe haven is to be denied by the application of the principle aut dedere aut judicare [to extradite or prosecute], which obligates states to prosecute or extradite an alleged offender. '51 As initially proposed by the Federal Republic of Germany, the offense of hostage- taking is best defined as "the holding of A to obtain concessions from 48. Id. at 3; see also Falk, supra note 16, at 431. 49. Naulilaa Incident Arbitration (Port. v. Ger.), 2 U.N. INT'L ARB. AWARDS 1012 (1928), quoted in W. BISHOP, INTERNATIONAL LAW CASES AND MATERIALS 562 (1953). The Naulilaa incident arose when German soldiers who entered Portugal during World War I attempted to discuss the importation of food supplies. The parties to the conversation were incapable of effective communication due to language difficulties. The encounter culminated in the death of three Germans and the imprisonment of two others. Germany retaliated by a widespread attack of Portugese ports on six separate occasions, which the Germans attempted to justify as an act in response to an international delinquency. W. BISHOP, INTERNATIONAL LAW CASES AND MATERIALS 561-63 (1953). 50. International Convention Against the Taking of Hostages, 34 U.N. GAOR Supp. (No. 46) at 245, U.N. Doc. A/34/46 (1979). As of January 1, 1985, the following states had signed the Hostages Convention: The Bahamas, Barbados, Bhutan, Chile, Egypt, El Salvador, Finland, The Federal Republic of Germany, Guatemala, Honduras, Iceland, Kenya, Korea, Lesotho, Mauritius, Norway, Panama, Phillipines, Portugal, Spain, Suriname, Sweden, Trini- dad & Tobago, United Kingdom and the United States. See OFFICE OF THE LEGAL ADVISER, DEP'T OF STATE, TREATIES IN FORCE 1840 (1985). 51. Rosenstock, InternationalC onvention Against the Taking of Hostages:A nother Inter- national Community Step Against Terrorism, 9 DEN. J. INT'L L. & POL'Y 169 (1980). The initial proposals for the Hostages Convention were presented by the Federal Republic of Ger- many in September of 1976, "presumably stimulated by the Munich atrocity of 1972 and sub- sequent kidnappings of German businessmen within and outside the Federal Republic of Germany." Id. at 173. 1987] The Achille Lauro Incident B."52 Threats, attempts to take hostages, and acting as an accomplice are also established as contrary to international law.53 The most critical provision of the Hostages Convention applica- ble to the Achille Lauro incident is as follows: The State Party in the territory of which the alleged offender is found shall, if it does not extradite him, be obliged, without excep- tion whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State.54 1. Egypt's Obligations under the Hostages Convention In the Achille Lauro incident, the perpetrators of the crime of hostage-taking were present within Egypt's territory, a State Party to the Hostages Convention, immediately after the surrender of the ship.55 Under the Hostages Convention, Egypt's obligation to prose- cute or extradite the alleged offenders was triggered.56 Egypt's obligation was not conditioned upon the arguable status of the hijackers as freedom fighters engaged in a struggle for self-de- termination. This is clear from the outcome of proposals made during the Hostages Convention negotiations by several countries, including Egypt, that would have exculpated offenders if the motive for the of- fense was grounded in a struggle for self-determination.57 The re- sponse of Western delegates to such proposals was that the Hostages 52. Id. at 176. The offense has also been defined as [1] "the seizure or detention of an- other person"; [2] "the threat to kill or harm that person in order to compel a third party to perform, or refrain from performing, a specific act." Verwey, The InternationalH ostages Con- vention and National Liberation Movements, 75 AM. J. INT'L L. 69, 70 n.6 (1981). 53. Rosenstock, supra note 51, at 177. The taking of hostages offers to the terrorist a "natural means of attracting and maintaining widespread attention. The greatest challenge to the terrorist's ingenuity has been to achieve this objective without precipitating results so offen- sive as to sacrifice the sympathy for their cause which it is hoped will be evoked in the public." Wilder, International Terrorism and Hostage Taking: An Overview, 11 MANITOBA L.J. 367, 373-74 (1981). 54. International Convention Against the Taking of Hostages, 34 U.N. GAOR Supp. (No. 46) art. 8, U.N. Doc. A/34/46 (1979). 55. See supra notes 7-11 and accompanying text. 56. See supra notes 51-53 and accompanying text. 57. One such proposal read, "[flor purposes of this Convention, the term 'taking of hos- tages' shall not include any act or acts carried out in the process of national liberation against colonial rule, racist and foreign regimes, by liberation movements recognized by the United Nations or regional organizations." U.N. Doc. A/Ac. 188/L.5 (1977). The proposal was of- fered by Algeria, Egypt, Guinea, Lesotho, the Libyan Arab Jamahiriya, Nigeria and the United Republic of Tanzania. See Verwey, supra note 52, at 73.