Faced with limits to military retaliation, the US is quietly pursuing legal means to see the hijackers of TWA Flight 847 brought to justice in Lebanon. If that fails, the United States may be obliged to wade into murkier legal waters in an effort to bring the hijackers to trial in the US. And it may find that international law could take a back seat to political reality, say some legal experts.
Hopes were boosted unexpectedly last week when the Lebanese government announced plans to arrest and prosecute the suspected hijackers in local court. If the trial is judged fair by both sides, it could resolve a thorny issue.
Lebanon is required by three international conventions to submit the hijacking case to competent local authorities for prosecution. And US officials are cautiously hopeful that the Beirut government's apparent willingness to comply could lead to a satisfactory resolution of the TWA incident.
If snags develop, however, the likely next step would be for the US to consider extradition proceedings to bring the suspected terrorists under the jurisdiction of US courts. But whether such a move would be fruitful is highly doubtful, say experts.
If the Lebanese government resists, months or years could be consumed in arbitration or World Court proceedings to resolve the dispute over the requirements of the conventions.
In addition, there is the problem of double jeopardy. If the Lebanese government claims a fair trial has been held, it would almost certainly object to a second trial for the same offense.
But the biggest problem of all is political, not legal. Experts say turning over the hijackers to the US for trial would be political suicide for the Lebanese government, just as turning over American citizens for trial in another country would entail substantial political risks for any US administration.
Legal experts point to two Geneva conventions, signed in 1949, as other possible avenues of recourse in international law.
Under the provisions of both, the killing of American Navy diver Robert Stethem, a passenger aboard the TWA flight, would be ``at least a war crime and probably also a `grave breach' of both conventions,'' says Alfred Reuben, a professor of international law at the Fletcher School of Law and Diplomacy. Under the conventions Lebanon has an obligation either to try the hijackers or turn them over to another concerned party -- presumably the US, Reuben says.
State Department officials say in the absence of either a fair trial by local authorities or extradition, there is one remaining alternative: abduction of the hijackers.
``There are circumstances under which it may be justified,'' says a State Department source. ``If the local authorities are unable or unwilling to control violent criminals, it may become necessary and justified for the countries affected to take action in self-defense.''
The State Department official declined to say whether plans to abduct the suspected hijackers are being actively considered. Under US law, the means by which an accused party is brought within US jurisdiction is largely irrelevant to US courts. In a highly publicized 1961 case, agents of the Israeli government secretly abducted Nazi war criminal Adolph Eichmann from Argentina. Eichmann was later tried and executed in Israel.
The US currently has no bilateral extradition treaty with Lebanon. Instead, the US is resting its case against Lebanon on three international conventions. These address acts of terrorism committed against international aviation. The conventions (to which both the US and Lebanon are party), single out hijacking and sabotage.
Even as the Reagan administration considers opening the way for extradition under anti-hijacking agreements, it is trying to close loopholes in bilateral extradition treaties that sometimes work to the benefit of terrorists. The US has such treaties with over 100 nations, some dating back to the 1800s.
Legal experts say that where most crimes are concerned, processing extradition requests has been a fairly routine matter. The problem has been with ``political'' crimes -- that is, those directed at a government and related to a political struggle.
Legal experts say the ``political offense'' exception was created in part to enable governments to provide asylum to people accused of treason in another country. But the question of just what constitutes a political offense has seldom been free of ambiguity -- even when terrorist acts are involved.
In a recent New York case, a federal judge refused to return to Britain an escaped Irish Republican Army gunman charged with killing a British soldier. The judge ruled the killing was a political, not a criminal act.
``The simple problem is that one man's terrorist is another man's freedom fighter,'' says Lee Marks, former deputy legal adviser at the State Department.
To close the ``political offense'' loophole, the President has asked the Senate to ratify a supplemental extradition treaty with Britain that would deny fugitives the ability to avoid extradition on the basis of political crimes. Congressional sources say the treaty is likely to be given a warm reception on Capitol Hill. Other countries have reportedly expressed interest in similar arrangements.