Subsection 1203(a) makes it a Federal crime to engage in hostage taking when the jurisdictional conditions in subsection 1203(b) are present. In turn, subsection 1203(b) sets forth the limits on Federal jurisdiction over the crime of hostage taking.
Offenses Committed Outside the United States
If the hostage taking occurs outside the territory of the United States, subsection 1203(b)(1) provides for Federal jurisdiction in these circumstances: (a) if the perpetrator or one of the hostage victims is a national of the United States; (b) if the perpetrator, regardless of his/her nationality or the nationality of the hostage victim, is subsequently found in the United States; or (c) if the United States government is the third party which the hostage taker is attempting to compel to take certain action.
In United States v. Yunis, 924 F.2d 1086, 1091 (D.C. Cir. 1991), the court held that these provisions "reflect an unmistakable Congressional intent, consistent with treaty obligations of the United States, to authorize prosecution of those who take Americans hostage abroad no matter where the offense occurs or where the offender is found." That court also concluded that the assertion of such jurisdiction is fully consistent with norms of customary international law. These include the "universal" principle of extraterritorial jurisdiction under which a state can prosecute certain offenses recognized by the community of nations as of universal concern; and the "passive personality" principle under which a state can prosecute non-nationals for crimes committed outside its territory against its nationals. See Yunis, 924 F.2d at 1091.
Further, in cases where the hostage taker is a United States national it is inconsequential whether the victim was a U.S. national or whether the crime was related to international terrorism. See United States v. Peralta, 941 F.2d 1003, 1008 (9th Cir. 1991), cert. denied, 503 U.S. 940 (1992). Finally, although the question presented involved similar language in the aircraft hijacking statute, the Yunis case also suggests that the "subsequently found" language in § 1203 (b)(1) is applicable whenever a hostage taker is present in the United States, even when forcibly brought to the United States to stand trial on other charges. Yunis, 924 F.2d at 1092. See also United States v. Rezaq, 908 F. Supp. 6, 7-8 (D.D.C. 1995).
Offenses Committed Within the United States
Article 13 of the Hostage Taking Convention states that the Convention "shall not apply where the offense is committed within a single state (i.e., country), the hostage and the alleged offender are nationals of that state, and the alleged offender is found in the territory of that state." Subsection 1203(b)(2) reflects the treaty limitations contained in Article 13 by stating that it is not an offense if the crime occurred in the United States, all participants and victims are United States nationals, and all alleged offenders are found in the United States, unless the hostage taking is to compel action by the United States government. In practical terms, this means that an American robber who seizes an American cashier at a convenience store in a city in the United States, and who makes a demand upon a third party other than the United States government, and who is caught in the United States, cannot be prosecuted federally under § 1203(a).
Conversely, subsection (b)(2) reflects a Congressional intent to reach acts of hostage taking within the United States if either the alleged offender or the victim is a non-United States national. This provision has withstood constitutional challenge under the Due Process Clause of the Fifth Amendment on the ground that it arbitrarily classifies offenders on the basis of alienage. See United States v. Lopez-Flores, 63 F.3d 1468 (9th Cir. 1995); United States v. Yian, 905 F. Supp. 160 (S.D.N.Y. 1995). In Lopez-Flores, the court held that the alienage classifications contained in the statute were "clearly intended to serve Congress' legitimate foreign policy interests." Id. at 1475. In such cases, § 1203 plainly extends to alien smuggling situations in which the defendant assists an alien in crossing an international border and then holds the alien hostage in order to compel relatives to make payments for the victim's release. Id. at 1475-76.
[cited in JM 9-60.700]