The Iranian foreign minister announced today that three American hikers arrested after crossing the border last July would face trial in Tehran. Although many news outlets seem to be misreporting that the trio will face espionage charges, quotes directly from Iran indicate the actual charges have not yet been determined.
Unsurprisingly, America isn’t happy about the proposed trial. Back in November, Secretary Clinton criticized the hikers’ detainment, stating:
“We believe strongly that there is no evidence to support any charge whatsoever. And we would renew our request on behalf of these three young people and their families that the Iranian government exercise compassion and release them so they can return home.”
I understand that there are other issues at play here: the three are probably facing nasty interrogation, and any ‘espionage’ charge would be ludicrous. But can we really say that there is “no evidence to support any charge whatsoever?” I’m not an immigration lawyer, but U.S. law seems to contain a prohibition against unlawful entry, accidental or otherwise. See 8 U.S.C. § 1325:
Any alien who . . . enters or attempts to enter the United States at any time or place other than as designated by immigration officers . . . shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than 6 months, or both, and, for a subsequent commission of any such offense, be fined under title 18, or imprisoned not more than 2 years, or both.
Even though we might not like it, would it really be unjust for Iran to try these hikers under their own unlawful entry statute? Particularly when the three assumed a degree of risk when they decided to go hiking on the border of the country perhaps most adverse to Americans?
-Michael
There’s nothing wrong with giving appropriate punishments to crimes defined under domestic laws that are fully carried out in the sovereign territory of that state. Unlike Euna Lee and Laura Ling, who from what I’ve read either stayed on Chinese soil or, apparently, were lured across the border by a guide bribed by the North Koreans, the three American hikers really did stupidly get lost and wander across the border into Iran.
However, I’d like to see the Iranian unlawful entry statute, if there is one. If it has a scienter component, they pretty clearly were not in violation.
The real issue in this case is that Iran, as always, is trying to use the American hikers as a bargaining chip to trade for Iranian prisoners in America, and possibly to have defector Iranians who are free in the States be deported back where they can be punished.
So the real equivalent would be the U.S. seizing Elbonians who had accidentally overstayed their visas by one day, and telling Elbonia that if they don’t violate their own laws and free Americans held in Elbonian prisons or deport defecting Americans back to America, the U.S. would keep the Elbonians locked up forever in poor conditions.
So yes, that part of the Iranian mess is unjust. Idiocy is its own punishment — the hikers don’t deserve to be kept in prison forever in Iran to boot.
Also, although I’m sure there’s a case out there somewhere that’s addressed it, I’m assuming that, under US v. Staples and other statutory construction cases, 8 U.S.C. § 1325 would have some sort of mens rea read into it?
I would’ve thought so as well, but 8 U.S.C. § 1325 (and its sister statute, § 1326) have been read as regulatory measures, which generally gives rise to an inference of strict liability when mens rea is not otherwise provided.
Though authority is decidedly sparse on this subject, the one case I could find does not seem to require any specific intent. See United States v. Sanchez, 258 F. Supp. 2d 650, 661 (S.D. Tex. 2003) (“No particular motivation need be shown; said entry is prohibited even if the alien in question had no intention of avoiding inspection.”).
My feeling on it is that the United States would be free to lock up Elbonians if they really did violate some law of the United States, regardless of the government’s motivation for doing so. You’re correct that it would be wrong to “keep the Elbonaians locked up forever in poor conditions”, but that’s a separate issue from the initial legality of arresting and charging them.
My only point was that the U.S. may be overstating its case when it says there is no evidence to support “any charge”. If the government wants to call out Iran for using U.S. citizens as international bargaining chips, or imposing excessive punishments for relatively minor crimes, so be it.
Hmm. I wonder what sort of precedent there is under international law for “unintentional trespass on sovereign territory.”
I remember a case a few years back where Switzerland accidentally “invaded” Lichtenstein, and there are of course those incidences where Russia got PO’d at overflight trespass to their territory and blew planes up… But I’m assuming unintentional trespass by one state into another is not sufficient cause to justify the trespassed state to inflict severe sanctions.
I doubt there’s any sort of precedent that would be applicable to the case of a private foreign party accidentally trespassing, but it’s caught my interest enough I may have to take a look.
I would guess, however, that there is more law on the use of foreigners as bargaining chips. What if Iran had a law that said “it’s unlawful to be American and wear blue,” and then arrested unknowing blue-wearing Americans to use to blackmail the American government? ICCPR has got to say something about that… maybe? Iran’s even ratified that.
I could see two provisions of the ICCPR as being relevant to your hypo:
However, that was one of the points of my post: the crime of unintentional trespass is probably not wholly arbitrary, given that our country recognizes (under my understanding) an analogous crime.
As for your question about whether or not international law recognizes such a crime at its level, I think the Russian airliner cases are great examples. But I think international law has long recognized the powerful right of a state to exclude others from its territory. As Max Huber said in the Island of Palmas case: