Aircraft Hijacking and International law

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1. INTRODUCTION

Were half the power, that fills the world with terror,

Were half the wealth, bestowed on camps and courts,

Given to redeem the human mind from error,There were no need of arsenals or forts.

-Henry Wadsworth Longfellow

"The Arsenal at Springfield"

According to the Chinese philosophy terrorism is defined as "kill one", "frighten ten

thousand", the aim is to kill, wound or threaten a small number of individuals, in order to

intimidate a whole community, and even a nation, the purpose behind the killing is, strike far

and wide so that no one dares to face or in- form against the terrorism. This aim is common to

all the terrorists from local dada to a mafia boss to command from local, regional, national

and international levels. "Terrorism is the deliberate and systematic murder, maiming andmenacing of the innocent to inspire fear for political ends"1or to say terrorism is a form of

political violence, with a wilful and calculated choice of innocents as its target.2

Terrorism has its deep roots in the history of nations. One can find the incidents of terrorism

in the ancient, medieval, and modern history of the nations. The governments of the nations

have used terrorism against the individuals, social, political or religious groups of their

nationals and also against the other states. As within the state it is presumed that the normal

law of any society is able to maintain order in that society.... (Thus any) threat to society

posed by some acts is enough to justify the kind of enforcement activity that would be

necessary to suppress that threat.3Commenting on the terrorism Jenkins said, "Terrorism iscompounded by the fact that terrorism has recently become a bad word used promiscuously

and often applied to a variety of acts of violence which are not strictly terrorism by definition.

It is generally pejorative. Some governments are prone to label as terrorism, all violent acts

committed by their political opponents; while anti-government extremists frequently claim to

be the victims of government terror, what is called terrorism thus seems to depend on point of

view, use of the term implies a moral judgement, and if any party can successfully attach the

label terrorism to its opponent, then it has indirectly persuaded others to adopt its moral view

point. Terrorism is what the bad guys do, Morgenthau observed.4 Terrorism presents

established governments with a number of problems unprecedented in modern history.Traditionally, governments have possessed a monopoly of organised physical violence which

they would use against other governments mono- politically endowed in a similar war or

against individual citizens violating the legal order. It is now in modern history that a group

of citizens would band together challenging the monopoly of organised violence in the hands

of the government.5Alfred P. Rubin argues that government naturally shoulder the greatest

1Oxford dictionary 216 (1933)2 international conventions on aerial hijacking: an approach to combat terrorism, r. S. Rajput, the indian journalof political science, vol. 51, no. 1 (jan. - march 1990), pp. 98-125, http://www.jstor.org/stable/418554723

rubin, a. 'International terrorism and international law;' in terrorism interdisciplinary perspective, p. 121-123.4jenkins, b. International terriorism: a new mode of conflict f crescent publishers, los angles, 1975, p. 2.5morganthau, hans: forward to terriorism, interdisciplinary perspective p. Vii.


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responsibility for preventing and suppressing terrorism because "The act of terrorism

constitutes a Common Crime under the municipal law of the territory (or of the flag state ofthe aircraft vessel) where it occurs.6

1.1INTERNATIONALTERRORISM:

International terrorism is the act of international significance which directly or indirectly

affects the other states or their affairs. International terrorism can also be defined as terror

inspiring violence containing an international element that is against non-combatant civilians,

states or internationally pro- tested persons or entities in order to achieve political ends.7

Wilkinson said "when it is (a) directed at foreigners or foreign target or (b) connected by the

government or functions of more than one state or (c) aimed at influencing the policies of a

foreign government or the international community."8The oldest definition of International

Terrorism as provided in the League of Nations Convention on Terrorism, 1987 referred to

terrorism in Article 1 as, "Criminal acts' directed against State and intended or calculated tocreate a state of terror in the minds of particular persons, or a group of persons or the general

public."9Jenkins has defined International Terrorism more broadly as violent actions having

global repercussions or lying beyond the accepted standards of war and diplomacy.10 TheInternational Terrorism has to meet the following conditions:

1. The act of terrorism must be committed either against the nationals of one country

outside of that country's borders or by a foreigner within the country's territory.

2. The purpose of the act must be explicitly political.

3. The motive of the act must be to damage the interest or to obtain concessions fromthe government, an international company, or an international organisation.11

Keeping the above aims in view the international terrorists manifest by kidnapping,

assassinating, bombing, and skyjacking. Each of these ingredients has its own particular

characteristics, some of them often interlinked. A senior officer of Regan administration has

classified the doctrine of international terrorism as the hijacking aircrafts, exploding bombs in

market places and other public places - kidnapping civilian officials and business- men as

hostages. In the present century any terrorism belong to a recognised group of terrorists is

well armed, financed and trained as any members of the establishment, such as police, and in

many instances, they are better armed, trained and financed. They make full use of moderntechnology - wireless, television, sophisticated weaponry, air travel etc. Now a days many

national treasuries actively and even openly fund terrorist groups and it will be impossible to

divorce one from the other, besides this, many established governments are not only involved

in terrorism, but in some instances, control or guide, or export terrorism such as Latin

6robin op. Cit . P. 121.7wilkinson, paul, political terriorism , halsted press, new- york, 1975, p. 310.8ibid.9the convention was adopted at geneva on 16 december 1937; also see the u.n. secretariat: study on terrorism ,

u.n. doc. A/c 6/418-annexture10jenkins. Op. Cit p. 5.11ernest, e. Calling a truce to terror , greenwood press, west port connectict, 1979, p. 8.


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American Terrorism have been financed and encouraged by the USA and as well as theUSSR.

1.2TERRORISTS AND INTERNATIONALLINKS:

The terrorists have international links and thus they manage to obtain highly sophisticated

weapons. The Irish Republican Army (IRA) managed to get USSR manufactured rockets andlaunchers from Arab Terrorists operating through arms supply depots in Switzerland. Initially

these weapons were provided to Syria by USSR to use against Israelis. The Syrians gave to

Palestinian Arab Fedayeen terrorist who sold it to IRA. Not only had these Algerian terrorists

bought 20 tons of weapons from Czechoslovakia for IRA through Irish American

organisations in US. The Israel was supplied arms by USA to use against Arabs. The

terrorists have international cooperation among themselves. They have no boundaries. The

Japan terrorist of Nippons United Red Army (RENGO Sekigum) in July 1972 disembarked at

Lydda Airport from Air France Flight 132 and opened fire inside the crowded terminal with

Czech VZT-58 automatic rifles, killing 26 unsuspecting people and wounded about hundredfor no apparent reason. But soon after information officer of P.F.L.P. announced, that this

organisation P.F.L.P. had sent the Japanese to Lydda to kill as many people as possible". The

pattern of the international terrorism has become all the more complex and complicated due

to link and cooperation between the left wing terrorism and right wing terrorism. The

network of terrorism is international, they operate in United States, Canada, almost all the

Latin American countries, Ireland, Britain, France, West Germany, Spain, Italy, Turkey,

Lebanon, Egypt, Jordan, Israel, India, Burma, Thailand, Malaysia, Philippines, Indonesia, and

Japan. The Terrorism by first mandate or free choice is more powerful, difficult to dislodge

or overcome and is far more lethal when practiced by establishment and entrenched rule.Through the course of this paper, we have restrained ourselves to the field of aerial hijacking.

2.HIJACKING

Transportation systems have historically attracted terrorist attacks. As such, the international

community has come to terms with the vulnerability of modern aviation, taking sustained

steps towards the protection of aviation. The earliest form of terrorism against international

transportation was piracy. Pirates are considered by international law as common enemies of

all mankind. The international world has an interest in the punishment of offenders and is

justified in adopting international measures for the application of universal rules regardingthe control of terrorism. As we see that Piracy in the high sea has been a very old

phenomenon; but the piracy in the air has its origin in the post second world war era. Aircraft

hijacking is very much a crime of our time.12Whether, hijacking is an act of terror or not

depends upon whether the intent of the hijacker is to escape from one country to another or to

create terror as an ancillary affect, for example, the holding of certain persons as hostages in

order to secure the release either of hijacker or of other terrorist, or to get a reward in the

form of ransom.13

12

The law and Aircraft hijacking, Alona E. Evans13freedman, lawrence zelic: terrorism , problems of the polistaraxie, the university of chicago magazine, vol. 66jno. 6 summer 1974, p. 7.


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The harbinger of modern day aircraft seizure was seen first on February 21, 1931, when a

Pan-Am Fokker F7 aircraft carrying mail was hijacked. The plane, while on the ground in

Peru, was seized by armed Peruvian revolutionaries. They wanted to be taken to Lima so that

they could drop their propaganda leaflets over it. The pilot refused and the deadlock in theirnegotiation lasted for ten days, after which the hijackers released the plane declaring that

their revolution was a success.14 Another one was seen on May 1, 1961, when an armed

Cuban exile named Elphi Crosisi, who reportedly considered himself to be the reincarnation

of a Spanish Main pirate by the name of Cofrisi, entered the cockpit of a United States

National Airlines aircraft on a flight from Marathon to Key West, Florida, and forced the

pilot to fly to Cuba15 and thus began what was to become a decade of concern, both

domestically for the United States and eventually for the entire world, with the phenomenon

of "aircraft hijacking" or, as it was more dramatically called in the earlier years of the decade,

"aircraft piracy" as he flew into what was in many ways a legal vacuum. Certainly there was

no recognized international law to deal with hijacking. There was not even an internationallyagreed-upon solution to the jurisdiction problem in the wider area of crime aboard aircraft,

although there were many theories from which to choose -the history of attempted definitions

of jurisdiction over airborne crime even predates powered flight by a year. 1617During that

decade there had been over 200 attempts of aircraft hijacking.18

One of the most serious by-products of the jet age has been the unlawful seizure of, or

interference with aircraft engaged in commercial air transport. During the past few years

there have been many examples of hijacking for extortion, hijacking for a joyride, hijackingfor the achievement of political ends, and hijacking purely as a terrorist activity. Fortunately,

many attempts have been thwarted, and in the cases of successful hijacking, most have

resulted in little more than discomfort and inconvenience for the passengers, and considerable

expense for the airlines involved. However, in several tragic instances, hijacking has ended in

the death of innocent persons and the destruction of aircraft worth many millions of dollars.

While the internal laws of many nations provide punitive sanctions that guarantee swift and

sure punishment to the offenders, the same cannot be said with regard to the international

scene. Thepurpose of this paper is to look at the international agreements and extradition

laws which are directly concerned with the hijacking problem, to determine their

effectiveness as preventive and punitive measures.19

14see also, http://articles.timesofindia.indiatimes.com/2006-07-01/open-space/27806673_1_hijacker-aircraft-plane15n.y. times, may 2, 1961, at 1, col. 6.16fauchille, rvgime juridique des aerostats, annuaire de l'institut de droit international 19 (igo2).17the developing law of air hijacking, gary n. Horlick18according to the statistics maintained by the faas office of air transportation security. For the period may 1,1961 through december 29, 1970, there had been 100 hijacking attempts involving u.s. aircraft -77 successful

and 23 unsuccessful. 19 different u.s. carriers have been involved and hijackers have boarded air carriers in 44different cities.19A search for an international solution to the problem of aircraft hijacking, R. J. Mcgrane


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Skyjacking incidents increased after Second World War. In a sense skyjacking is waging a

war against another country with fewer weapons. Most of the weapons used by these

hijackers are made in Soviet Russia, Czechoslovakia, Egypt, Syria, and East Germany. There

are six types of hijacking:

1.

The Jesse James type who commit crime for money.2. The criminals who just want to get to a particular place.

3. The bluff-artist, who claims (falsely) that his toy gun is a real one, or that he has

placed a bomb in the plane, a sort of relatively harmless cousin to Jesse Jamess.

4. The Lunatic

5. The political fanatic, and

6. The Angel of death-dedicated to killing and to being killed who come somewhere

between the lunatic and the fanatic.20

Although the initial instance of aircraft seizure occurred in Peru in the year 1930, 16 Rajinsky

noted that "first real rash of this disease breaks out in four years 1947 to 1950 during which

there were 14 attempts, all in the Eastern Hemisphere. Out of these 14 crimes, 7 werecommitted in Europe in the year 1948. Nothing happened21in 1951, and only two in the years

1952 and 1953, both of which were also in the Eastern Hemisphere.22By the early 1960's the

number of aircraft seizure attempts rose in both the Eastern and Western Hemispheres, while

the legal situation of hijacking of aircraft did not become a genuine threat to world peace

until 1970, by the time hijacking problems have assumed proportions sufficiently significant

to engage the attention of the entire world community, the leading aviation states had already

initiated action in International Civil Aviation organisation.

A specialized agency of the United Nations, the International Civil Aviation Organization(ICAO)was created in 1944 to promote the safe and orderly development of international

civil aviation throughout the world. It sets standards and regulations necessary for aviation

safety, security, efficiency and regularity, as well as for aviation environmental protection.

The Organization serves as the forum for cooperation in all fields of civil aviation among its

191 Member States.23

The hazards to aviation safety posed by this activity were summarized by the Acting

Administrator of the Federal Aviation Administration [hereinafter FAA] in testimony before

the House Interstate and Foreign Commerce Committee. He pointed out that:

Hijacking has involved physical danger to the passengers and the crew. Passengers have

been held as hostages or intimidated and crewmembers have been subjected to minor

assaults. It is obvious that should a bomb or other form of explosive discharge aboard an

aircraft that the aircraft could be lost. Gunplay aboard could involve injury or death among

20glye, peter, an anatomy of skyjacking, abelard schu- men, london, 1973, p. 193.21 international conventions on aerial hijacking: an approach to combat terrorism, r. S. Rajput, the Indian

journal of political science, vol. 51, no. 1 (jan. - march 1990), pp. 98-125, http://www.jstor.org/stable/4185547222

Rajinsky, m. A. Secretary-general of the igao at an airport security seminar in London November 29-30, 1971on hijacking p. 1.23see also, http://www.ICAO.int/about-ICAO/pages/default.aspx


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the crew or passengers. As to the possible effects of bullets penetrating the aircraft fuselage,

there is little danger of catastrophic effects regarding cabin pressurization; however, there is

danger that critical aircraft parts could be hit and rendered inoperable (hydraulic or electrical

systems, radios, or fuel tanks). There is always the danger that the hijacker could insist on

diverting the flight to a destination beyond the range of the aircraft's fuel supply. This couldresult in a ditching, a crash landing, or an emergency landing at an airport without the

required runway length for the aircraft involved. The aircraft could be diverted to an airport at

which bad weather and a lack of navigational aids would make an approach and landing

unsafe. The hijacker could divert the aircraft to an unfriendly or hostile country where the

passengers would be subject to imprisonment. The action of the hijacker in exploding a bomb

or firing a gun or the general commotion caused by the seizure could cause a fire on board the

aircraft with resulting injuries, death, or accident. The act of seizing the aircraft by the

hijacker might cause certain passengers to react in an imprudent manner resulting in injuries

to themselves or other passengers on the aircraft.24

Hijacking has repeatedly been condemned by international organisations. The United Nations

has on several occasions called on member countries to draw up arrangements that will deal

with the menace effectively.25The international civil aviation organisation at its seven tenth

assembly session held in Montreal, June 16-30, 1970, noted that the unlawful seizure of civil

aircraft posed a grave menace to the safe operation of international civil air services and

undermines the confidence of the peoples of the world in the safety of international civil

aviation.26

The recent aircraft hijacking that shook the entire world was on 29 June 2012: an attempt wasmade to hijack Tianjin Airlines Flight GS7554 from Hotan to rmqi. Six people tried to

hijack the aircraft 10 minutes after take-off. There were 6 police officers on board. Four were

in plain clothes, taking the plane for a business trip. The hijackers used aluminium canes with

sharpened tips to attack the members of the crew. The police officers and civilians on board

subdued the hijackers, all of whom were of Uyghur ethnicity. The plot was foiled and the

plane returned to Hotan in 22 minutes after takeoff.27 There was also the major one that

shook the entire world and that was 2001, September 11: American Airlines Flight 11, United

Airlines Flight 175, American Airlines Flight 77, United Airlines Flight 93, were hijacked on

the morning of September 11 by Al-Qaeda-affiliated extremists. Flight 11 and 175 were

deliberately crashed into the twin towers of the World Trade Center, Flight 77 was crashed

into the Pentagon and Flight 93 crashed into a field in Pennsylvania after hijackers crashed

the plane due to a revolt by passengers. Both towers of The World Trade Center collapsed; in

24house colm. On interstate and foreign commerce, preliminary riep., a r r piracy, h.r. rei. No. 91-33, 91st cong.,ist sess. 3 (1969).252in september of 1970, the security council passed a resolution condemning air hijacking. See security councilresolution and united nations letter to ICAO in united states department of state bulletin 63: 341-343 (1970)26

3see ICAO resolution adopted by the assembly - seventeenth session 16-30 June 1970 (extraord) prelim edJuly 1970.27 "plane hijacking fouled in west". Foxnews.com. June 29, 2012. Retrieved June 29, 2012.


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total 2,996 people, including the 19 hijackers, were killed and over 6000 people were injured.

The attacks led to the War on Terror.28

The frequency of hijacking events continues to underline the need to develop effective

international arrangements binding on each and every state to deal with the problem of airpiracy. The purpose of this paper is to examine the existing state of the law governing the

unlawful seizure of aircraft and to indicate the extent to which acceptable legal solutions may

be found.

3.PROTOCOLS AND CONVENTIONS:

LORD WILBERFORCE once said that "there are very few subjects connected with the law

of the air on which lawyers have written so much or which they have discussed so often atInternational Conferences as Crimes on Aircraft."29This statement cannot be more true todayvis--vis the subject of hijacking of aircraft. Till date there have been the following

conventions which we will be discussing about and they are as follows:

1. The Genevaconvention onthe high seas(1958),

2. The Tokyo Convention(1963),

3. The Hague Convention (1970): and its Protocol (2010),

4. The Montreal Convention (1971),

5. The Bonn Declaration (1978),

6. Protocol to Montreal Convention (1988),

7. Convention on the Marking of Plastic Explosives for the Purpose of Detection (1991)

and

8. Convention on Suppression of Unlawful Acts Relating to International Civil Aviation

(2010)

Now we would be discussing about the above conventions.

3.1 THE GENEVA CONVENTION ON THE HIGH SEAS (1958):

The Geneva Convention of the High Seas of 195830

was the first attempt at an internationalaccord to harmonize the application of rules of both piracies at sea and in air.31 The

Convention adopted authoritative legal statements on civil aviation security, as it touched on

piracy over the high seas32Article 5 of the Convention inclusively defines piracy as follows:

28see also, http://en.wikipedia.org/wiki/list_of_aircraft_hijackings#cite_ref-87.29See Sir Richard Wilberforce (as he then was), Crimein Aircraft "' (1963) 67Journal of the Royal

Aeronautical Society (hereinafter referred to as Jnl.Ryl.Aero. Soc.) 175.30The Geneva Convention Was Opened For Signature At Geneva On 16 November, 1937. See Hudson,

International Legislation, Vol. Vii At 862, U.N. Doc. A/C.6/418, Annex 1, At 1.31Attempts At Ensuring Peace And Security In International Aviation, R.I.R. Abeyratne.32League Of Nations, Official Journal, 1934, At 1839.


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Piracy consists of any of the following acts:

1. Any illegal acts of violence, detention or any act of depredation, committed for

private ends by the crew or the passenger of a private ship or a private aircraft, and

directed:

on the high seas, against another ship or aircraft, or against persons orproperty on board such ship or aircraft;

against a ship, aircraft, persons, or property in a place outside the jurisdiction

of any state;

2. Any act of voluntary participation in the operation of a ship or of an aircraft with

knowledge of facts making it a pirate ship or aircraft;

3. Any act of inciting or of internationally facilitating an act described in sub-paragraph

1 or sub-paragraph 2 of this article.

As provided for by Article 14 of the Convention, there is incumbent on all States a general

duty to "co-operate" to the fullest extent in the repression of piracy as defined by theConvention. Article 14 seemingly makes it a duty incumbent upon every State to take

necessary measures to combat piracy by either prosecuting the pirate or extraditing him to the

State which might be in a better position to undertake such prosecution. The Convention, in

Article 19, gives all States universal jurisdiction under which the person charged with the

offense of aerial or sea piracy may be tried and punished by any State into whose jurisdiction

he may come. This measure is a proactive one in that it eliminates any boundaries that a State

may have which would preclude the extradition or trial of an offender in that State. Universal

jurisdiction was also conferred upon the States by the Convention to solve the somewhat

complex problem of jurisdiction, which often arose under municipal law where the crime wascommitted, outside the territorial jurisdiction of the particular State seeking to prosecute an

offender. The underlying salutary effects of universal jurisdiction in cases of piracy and

hijacking, which were emphasized by the Convention, has been described by one

commentator:

The absence of universal jurisdiction in relation to a given offense, means that, if a

particular State has no jurisdiction either on the basis of territoriality or protection, or on the

personality principle, whether passive or active, it will not be authorized to put the offender

on trial, even if he is to be found within the territorial boundaries of the State.

33

The essential features of the definition of piracy incorporated in the Geneva Convention are

as follows: (1) the pirate must be motivated by "private" as opposed to "public" ends; (2) the

act of piracy involves an action affecting a ship, an aircraft; (3) the acts of violence,

detention, and depredation take place outside the jurisdiction of any State, meaning both

territorial jurisdiction and airspace above the State; (4) acts committed on board a ship or

aircraft, by the crew or passengers of such ship or aircraft and directed against the ship or

aircraft itself, or against persons or property, do not constitute the offense of piracy. Upon

close examination, it appears that the definition of piracy does not apply to the phenomenon

33S.Z. Feller, Comment On Criminal Jurisdiction Over Aircraft Hijacking, 7 Israel L. Rev., 207, 207, (1992).


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of aerial piracy or hijacking. It is a fact that most hijackings are not carried out in pursuance

of private ends. INTERPOL reported in 1977 that the percentage of cases in which political

motives had impelled the offender was 64.4%,34during that time. Hijacking of aircraft for

political motives would thus not relate to Article 15(1) of the Convention, since acts solely

inspired by political motives are excluded from the notion of piracy jure gentium. SamiShubber has observed of the 1958 Convention that its inapplicability to the notion of aerial

piracy may lie in the fact that private ends do not necessarily mean that they can affect

private groups acting either in pursuance of their political aims or gain. The fact that it is not

always possible to distinguish between private ends and public ends in defiance of the

political regime of the flag State may be said to be covered by Article 15(1) of the

Convention; the reason given by Shubber was that "private ends" do not necessarily equal

private gain.35Under the definition of piracy, the act of illegal violence or detention must be

directed on the high seas against another ship or aircraft. It is obvious therefore that this

interpretation does not apply to hijacking since the offense of hijacking is committed by the

offender who travels in the aircraft. It is hard to imagine that an offender could enter anaircraft from outside while the aircraft is in flight. The Convention also excludes acts

committed on board a ship by the crew or passengers and directed against the ship itself, or

against persons or property on the ship, from the scope of piracy, 36which will also make the

definition inconsistent with the exigencies related to the offense of aerial piracy.37

Although piracy, according to the Convention, must be committed on the "high seas",

instances of hijacking may occur anywhere. Furthermore, piracy under Article 15 of the

Convention must involve acts of violence, detention or depredation. Most hijackings,however, have been carried out simply by the use of threats, and may even be carried out

through a variety of means other than those involving violence or force. It is therefore

reasonable to conclude that hijacking does not necessarily and absolutely fall within the

definition of "aircraft piracy" as defined by the Geneva Convention.38 The hopes of the

international community to control the crime of hijacking through the application of the

Geneva Convention on the High Seas may therefore have been frustrated by the exclusivity

of the nature of the two offenses of aerial piracy and piracy related to the high seas. The

Convention therefore remains to be of mere academic interest for those addressing the issue

of aerial piracy.

3.2 THE TOKYO CONVENTION (1963):

34Interpol Had Submitted To The Legal Committee Of Icao In 1977 That Out Of Recorded Hijackings Up ToThat Year, The Percentage Of Instances Of Hijackings Which Were Motivated Politically Was 6.2 At A RatioOf 64:4. See Icao Doc 8877-Lc/161, At 132.35Sami Shubber, Jurisdicion Over Crimes On Board Aircraft 226 (1973).36

Gary N. Horlick, The Developing Law Of Air Hijacking, 12 Harv. Int'l L.J. 33, 65 (1971).37Attempts At Ensuring Peace And Security In International Aviation, R.I.R. Abeyratne.38See Haro F. Van Panhuys,Aircraft Hijacking And International Law, 9 Colum. J. Transnat'l. L. 1, 13 (1970).


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Shocked by the rising trend of aircraft hijacking in the early 1960s and the failure of the

Geneva Convention on the High Seas to offer rules applicable to the offense of hijacking, the

international community considered adopting the Tokyo Convention of 1963, which was

adopted under the aegis of the International Civil Aviation Organization (ICAO). This

Convention attempted to provide certain rules that would address the offense of hijacking.

39

By the early 1960's the number of aircraft seizure attempts rose in both the Eastern and

Western Hemispheres, while the legal situation of hijacking of aircraft did not become a

genuine threat to world peace until 1970, by the time hijacking problems have assumed

proportions sufficiently significant to engage the attention of the entire world community, the

leading aviation states had already initiated action in International Civil Aviation

organisation.40

International civil Aviation Organisation a specialized agency of United Nations since 1947

is comprised of 122 States, including Cuba, and all States of which aircrafts have been

closely associated itself with all the significant organisations of air travel. This I.C.A.O. inthe year 1952 under its Legal Sub-Committee began a study to survey various responsibilities

of the aircraft commander vis-a-vis jurisdictional problems of crimes committed aboard

aircraft. Its efforts eventually led to a full scale inquiry into the problems, culminating into

the Tokyo convention of 1963. The Convention represented a fresh international legal

approach to cope with aircraft seizures by segregating the legal niceties of 'air piracy' in

contrast to the implications stemming from traditional 'Sea piracy'.41

In March-April 1962 a meeting of the ICAO Legal Sub- committee at Montreal, focused on

rationalization of various State claims to prescriptive jurisdiction over airborne crimes. Theproblem was manifest in the creation of an international law dealing with the aircraft seizures

- a law which would clearly define state jurisdiction over those who commit the crime.

Jurisdiction remained the core of the hijacking problem for international law.42

In 1950, the Legal Committee of ICAO, upon a proposal from the Mexican Representative on

the ICAO Council for the study of the legal status of airports, referred the subject to the ad

hoc Sub-Committee established by the Legal Committee.43After a survey had been made of

all the problems relating to the legal status of aircraft, it was decided by the Committee that

the best course would be to confine the work to a detailed examination of some particularly

important matters, namely crimes and offenses committed on board aircraft, jurisdiction

relating to such crimes and the resolution of jurisdictional conflicts.44The Sub-Committee

thought that resolving these problems was of vital importance for the following reasons:

39Supra.40Association International Conventions On Aerial Hijacking: An Approach To Combat Terrorism, R. S. Rajput41Seeking A Definition For Piracy In The Air, Ita Bulletin Vol. 13 March 30, 1970 Pp. 321-24.42Documents Of The Legal Committee: Fourteenth Session Igao Doc. 8302, Lg/ 150 2 At 71 (1963).43

See Robert P. Boyle & Roy Palsifer, The Tokyo Convention On Offenses And Certain Other Acts CommittedOn Board Aircraft, 30 J. Air L. & Comm. 305 (1964) [Hereinafter Tokyo Convention]. 44

Transportation Law Journal, [Vol. 24:27]


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1. One characteristic of aviation is that aircraft fly over the high seas or overseas having

no territorial sovereign. While national laws of some States confer jurisdiction on

their courts to try offenses committed on aircraft during such flights, this was not the

case in others, and there was no internationally agreed system which would co-

ordinate the exercise of national jurisdiction in such cases. Further, with (the) highspeed of modem aircraft, the great altitudes at which they fly, meteorological

conditions, and, the fact that several States may be over flown by aircraft within a

small space of time, there could be occasions when it would be impossible to

establish the territory in which the aircraft was at the time a crime was committed on

board. There was, therefore, the possibility that in such a case, and in the absence of

an internationally recognized system with regard to exercise of national jurisdiction,

the offender may go unpunished;

2. National jurisdictions with respect to criminal acts are based on criteria which are not

uniform; for example, on the nationality of the offender, the nationality of the victim,

on the locality where the offense was committed, or on the nationality of the aircrafton which the crime occurred. Thus, several States may claim jurisdiction over the

same offense committed on board aircraft, in certain cases. Such conflict of

jurisdictions could be avoided only by international agreement;[and]

3. The possibility that the same offense may be triable in different States might result in

the offender being punished more than once for the same offense. This undesirable

possibility could be avoided by a suitable provision in the Convention.45

After sustained deliberation and contradiction, the Sub-Committee on the Legal Status of

Aircraft produced a draft convention which was submitted to the Legal Committee on 9September 1958.46The Legal Committee in turn considered the draft convention at its 12th

Session held in Munich in 1959,47undertaking a substantial revision of the draft The revised

text was subsequently submitted to the ICAO Council, which in turn submitted the draft to

Member States and various international organizations for their comments. A new Sub-

Committee was formed to examine the Convention of State organization in 1961, in order to

examine and prepare a report. This report was studied by the Legal Committee in its 14th

Session held in Rome in 1962. A final text of a Convention was drawn up at this meeting and

communicated to Member States with a view towards convening a diplomatic conference in

Tokyo with the long-term prospect of adopting a Convention on aerial rights. This

Convention was signed in Tokyo on 14 September 1963 by the representatives of 49 ICAO

Member States, and entered into force after six years, on 4 December 1969.48 This slow

process of ratification of the Convention (5 years) was by no means due to the ineptitude of

the Convention, as has been claimed, but was due to the fact that the Convention was drafted

prior to the series of hijacking in the late sixties and was not implemented with due dispatch

by most States. Another reason for the delayed process was the complicated legal and

45The Report Of The Sub-Committee, Lc/Sc Legal Status, Wd No. 23, October 10, 1956.46Ibid47

Ibid48Robert P. Boyle,International Action To Combat Aircraft Hijacking, Lawyers Of The Americas, At 463[HereinafterInternational Combat].


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political issues facing many countries at the time of the adoption of the Convention.49 A

significant feature of the Tokyo Convention was that although at first States were slow in

acceding to or ratifying the Convention, 80 States ratified the convention within one year

(1969-70), presumably in response to the spate of hijackings that occurred during that

period.

50

3.2.1PURPOSE AND SCOPE OF TOKYO CONVENTION,1963

The purpose of the Tokyo Convention was to promote aviation safety through establishment

of continuity of jurisdiction over criminal acts occurring board aircraft. Turner had proposed

an additional purpose viz "...to define the rights and status of a person detained in a foreign

state after commission of offence.51Scope of the convention is covered under Articles 1 and

2, which includes the offences against penal law, offences committed by the persons on boardwhile the aircraft is in flight. The hijackers could be tried only for the extraditable offences,

which must be listed in the treaty as a crime under both the laws of the surrendering and

receiving states.52

The main purpose of the Tokyo Convention was to secure the collaboration of States in

restraining terrorist activity directed at air transport. It has therefore been said that "[t]he first

action taken by the international community to combat hijacking was the Tokyo Convention

1963. This Convention was originally designed to solve the problem of the commission of

crimes on board aircraft while in flight where for any number of reasons the criminal might

escape punishment.''53The objectives of the Tokyo convention may be summarized into four

principal areas:

1. The Convention makes it clear that the State of registration of the aircraft has the

authority to apply its laws. From the standpoint of States such as the United States,

this is probably the most important aspect of the Convention, since it accords

international recognition to the exercise of extraterritorial jurisdiction under the

circumstances contemplated in the Convention;

2. The Convention provides the aircraft commander with the necessary authority to

deal with persons who have committed, or are about to commit, a crime or an act

jeopardizing safety on board his aircraft through use of reasonable force whenrequired, and without fear of subsequent retaliation through civil suit or otherwise;

3. The Convention delineates the duties and responsibilities of the contracting State in

which an aircraft lands after the commission of a crime on board, including its

49See Abraham Abramovsky,Multinational Convention For The Suspension Of Unilateral Seizure AndInterference With Aircraft Part I: The Hague Convention, 13 Colum. J. Transnat'l L. 381, 389 (1974).50Supra51Turner, James, S. G. "Piracy In The Air", Naval War College Review , Vol. 22, 1969 P. 101.52

Attempts At Ensuring Peace And Security In International Aviation,R.I.R. Abeyratne.53International Combat, SupraNote 18, At 463, In Attempts At Ensuring Peace And Security In InternationalAviation,R.I.R. Abeyratne.


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authority over, and responsibilities to, any offenders that may be either disembarked

within territory of that State or delivered to its authorities;

4. The crime of 'hijacking' has been addressed in some degree of depth. 54

Provisions of Hijacking

Article 11 of the convention has been included as the first codified attempt to specifically,

seizure, or other wrongful exercise of control of an aircraft in flight when such an act is about

to be committed. Contracting States shall take all appropriate measures to restore control of

the aircraft to its lawful commander or to preserve his control of the aircraft. In the above

article no effort is made to describe hijacking as an international crime, nor does this Tokyo

convention grant any kind of universal jurisdiction for the apprehension and the punishment

to the hijackers. In nutshell, the Tokyo convention recognises a legitimate right of the state in

which the incident occurred and the flag State to request extradition of the offender.Theoretically 'Articles 13-15 provide a pattern which officials of the State in which the

aircraft lands may follow; it suggests that the hijacker be taken into custody and a preliminary

inquiry be made. Article 4 indicates that the offender be expelled at the wishes of the

receiving state; and Article 15 calls for extradition or prosecution of the offender at the

discretion of the landing State. If circumstances warrant and the offender evades each of

these conventional provisions, he is virtually assured of liberty. Mckeithan remarked"Because of this wide latitude which the convention gives to contracting State (it)

recognises and legitimizes their right to do as they wish hijackers."55It would be fair to say

that Tokyo convention was the first modest step in combating crimes on the board of theaircraft with regard to the hijacking; it did not tackle this offence specially, but dealt it with

only incidentally and in a limited manner. Hijackers are treated just like any other offenders,

and the hijacked aircraft is, under convention to be restored to the lawful commander.

Hijacking and other terrorist offences against the safety of the aircraft held to be specifically

dealt with by other special conventions.

According to international legal expert D.J. Harris, the Tokyo convention was largely

concerned with "the long standing problems of jurisdiction over all crimes aboard aircraft ,56

and languished for some years until an upsurge of hijacking in the late 1960's brought into

force. The convention was held on September 14, 1963 and has opened the same day for

signatures but it could not effectively be enforced as most of the states have not signed the

convention till December 1969. Only those states, who had been the victim of hijacking,

became the signatories. This attitude proved to be very shallow one. After the Tokyo

convention, the incidents of hijacking have increased, and the global community was

convinced on this phenomenon. No less than 210 hijacking attempts had been made in this

54Tokyo Convention, SupraNote 14, At 328-29, In Attempts At Ensuring Peace And Security In InternationalAviation ,R.I.R. Abeyratne.55

Mckeithen, R. L. Smith, "Prospects For The Prevention Of Aircraft Hijacking Through Law" ColumbiaJournal Of Transnational Law, Vol. 9 Spring 1970, P. 64.56Harris, D. J. New Terrorism, Messne, Julian, 1983.


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duration. Eighty incidents occurred in 1970 alone. The Popular Front for the Liberation of

Palestine (PFLP) carried out the most famous series of hijacking in September 1970 in which

a TWA 709 a Swissair DC 8 and BOAC-VC-lO were hijacked to Dawson outfield in

Northern Jordan while a Pan Am 747 was hijacked to Cairo.57This act of political blackmail

pointed out the need for immediate international cooperation, not only to fill the prosecutionvoids inherent in the Tokyo convention, but also to reach viable solutions that world prevent

such acts from separation.58

3.3 THE HAGUE CONVENTION ON HIJACKING (1970): AND ITS PROTOCOL

(2010):

The International Civil Aviation organisation and the Inter- national Air Transport

Association suggested to the Legal Committee to review and revision of the legal status of

hijacking, hopefully to elevate it to the level of an international crime", and the incorporationof mandatory prosecution. The Legal 'Committee of ICAO included the following objective

in its report.

1. Recognition of unlawful aircraft seizures as a penal offence, subject to the jurisdiction

of every state.

2. Encouragement of States to establish such jurisdiction; and

3. Proposition to States of alternative for penal measures viz., extradition, prosecution

or under select circumstances, asylum.59

Accordingly a special diplomatic conference was convened from December 1 to 16, 1970 at

Hague to consider the draft proposal. This convention was titled as "convention for the

suppression of unlawful seizure of Aircraft." The Hague convention was represented by

seventy seven States representatives, and other organisations interested in international civil

aviation. Soviet and Arab countries also attended the convention but Cuba was missing there.

The preamble of the convention contains the urgency and mission of the conference, such as

Unlawful Seizure of Aircraft in-flight, safety of person and property, and the confidence of

the people of the world on civil aviation. The definition of unlawful Seizure of Aircraft as

decided by Hague convention was less vehement than that desired by United States or Soviet

Union. In contrast to Tokyo contention, the wordings of the Hague convention are more

closely approximates a law of nations definition. The basic elements of crime are spelled outto confirm with most national legislation, without exaggerated interpretation. The unlawful

nature of the act is well described in Article 1, but no specific name is given to the crime. It is

designated as "the offence" Article 2 mentions that". Each contracting States undertake to

make the offence punishable, by severe penalties. But what is severe penalty is not defined.

The Article 2 has to accommodate disparate municipal penalties in accordance with their

national legislations. It is interesting to note that national courts have largely been unwilling

57

Evans, Ernest, Calling A Truce To Terror, Op. Cit. P. 26.58Supra.59Igao Doc 8838, Lg/ 157, 35, 36, (1969).


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to sentence convicted hijackers to the maximum punishments provided in their penal laws. 60

Some states have chosen to return hijackers to the country in which the aircraft was seized or

to the flag states, even in the cases where extradition treaties were not applicable; while as

West Germany, Denmark, and Austria have seen fit to grant asylum to hijackers apparently

with the understanding that they will not be returned to the country from which they come,but in the cases of theft of aircraft (without political implication) or illegal possession of

dangerous weapons which endanger the lives of passengers, these states have denied the right

of asylum to the offenders.61 Some states persist in welcoming "offenders" as heroes, for

example Syria printed a special stamp in 1969 to commemorate the seizure of TWA Boeing

737 Jetliner to Damascus. Pakistan set ablaze the hijacked Indian Fokker Friendship at

Lahore under TV coverage in February 1971; the hijackers were projected as heroes by the

Pakistani media. Algeria and Jordan have refused to prosecute or extradite hijackers

particularly when the aircraft seizure had political over- tone. As a reaction to this decision

American Society of Travel Agents (A.S.T.A.) suspended consumer travel service to Algeria,

Iraq, Jordan and Syria until these nations evidenced their willingness to take necessary stepsto these acts of skyjacking.

4.JURISDICTION OVER HIJACKING

An individual who hijacks an aircraft commits an international crime against the laws of the

contracting states. Since long element required for customary international law wants to

achieve true universal jurisdiction but, conventional law has made evident the international

consensus that skyjacking is an illegal act subject to prosecution under municipal legal

codes.62The provision of Article 4 of the Hague convention assert that jurisdiction may be

wilfully exercised by the contracting States. The jurisdiction over the offender is subject to:

1. The State in which the aircraft is registered,

2. The state of a lessees domicile under a bare hull character i.e. the aircraft leased

without crew.

3. The State in which the hijacked aircraft lands;

60In The Usa Maximum Punishment Of 25 Years Have Been Awarded To One Skyjacker Till May 1971. InUssr Several Persons For Attempting To Hijack Soviet Aircraft Were Sentenced To Death But It Was ReducedTo 15 Years Imprisonment After Appeal. These Persons Were Not Charged Under The Law For Hijacking TheAircraft, But Under A Law Forbidding Departure From The Country Without Permission. A French StatuteCategorizes Hijacking Into Three, And Designated Appropriate Penalties For Each; For Simple Hijacking It IsFive To Ten Years; If In The Course Of Hijacking Any Offender Injures Another Party, The Punishment Is 10To 20 Years Imprisonment. In Case Of Any Death, Death Or Life Imprisonment, See; Lissitzyn, Oliver J;International Control Of Aerial Hijacking Pp. 80-85.61Evans, Alona E, Comments, American Journal Of Inter* National Law Proceeding , Vol. 65, No. 4.

September 1971 P. 91.62Morlick, Gray, "The Public And Private International Response To Aircraft Hijacking;" Vanderbilt Journal OfTransitional Law , Vol. 6, 1972 P. 164.


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The Article further extends state jurisdiction that any party to the convention in whose

territorial limits an alleged hijacker is found can assume jurisdiction over him, or extradite

him according to their stated municipal provisions sanctioning nation-states legislation. This

convention does not exclude any criminal jurisdiction exercised in accordance with national

law.

63

This paragraph further reaffirms that local authorities are to deal with successfulseizure that occur solely within the territory of the flag State.

The jurisdictional provision granted to "take off" state and the landing state to be applicable,

both locations must be external to the flag state territory i.e. if the hijacked flight occurs

wholly within the territorial jurisdiction of the state of registry, the incident is excluded from

the aegis of the Hague convention, it being ... immaterial whether the aircraft is engaged in an

international or domestic flight. This convention provides to the contracting parties to

prosecute the offender if he is not extradited. Extradition is not specifically required, but

Article 7 make it clear that it is the only acceptable option for prosecution. The individual

rights of the accused offender are safeguarded. Article 6 provides the guidelines to befollowed by jurisdictional state; only upon being satisfied that the circumstances so warrant

'may the accused be taken into custody. A fact finding inquiry of the incident must be made

and both the flag state and the alleged hijackers' nationality state be notified of his detention.

If the State holding the offender considers proper it should notify any other interested State of

the fact that such person is in its custody and of the circumstances which warrant the

detention.

The Article 7 of the Convention provides to extradite, or prosecute obligations as binding

upon all contracting states, in- spite of the location of the offence. The aim of the Article 7 isto deny sanctuary to any alleged offenders, in every part of the world community. In this way

the rewards and the opportunities to escape punitive actions would be eliminated for potential

hijackers, thereby discouraging future attempts. But this provision has not been fully

materialized. Extradition has been grossly underused in jurisdictional settlements, whereas

the legal anti- thesis-asylum- has been all too often the case. Extradition involves denial of

asylum and the surrender of an individual to a requesting State.64Customary international law

provides no rule which imposes a duty to extradite,65 hence extradition becomes either a

matter of comity or treaty between the states.66 In spite of the provisions, the fact is that

hijacking has been largely omitted as an offence in the list of most of the extradition treaties.

Whether an offender be provided asylum as the municipal right of a State, thus the asylum

provides a safe haven for an offender as designated in the receiving states, municipal codes, if

the asylum is granted the extradition request will be rejected.

63Hague Convention Article 4 Paragraph 3.64Oppenhein Lassa, F.L.: International Law, Longmans London, 1905, P. 696.65Draft Convention Of Extradition And Comments; Ameri - Can Journal Of International Law , Vol. 29, 1935,

Pp. 416-34.66Factor V. Lauben Leimer 290 Us 276 (1933) Quoted In Bishop W. W, International Law : Cases AndMaterials , Little Brown And Co,Jboston, 1962, P. 471.


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Political asylum is hindrance in cornering the hijackers. Art 14 of the universal declaration of

Human rights states that "Everyone has the right to seek and enjoy in other countries asylum

from prosecution". The United Nations in its General Assembly has resolved that the

situation of persons invoking such a right is of concern to the international Community, and

such a person shall not be subject to expulsion or compulsory return to any state where hemay be subject to persecution.67 An important question of extradition and asylum, now

emerges. Most of the contracting states of Hague convention have also supported the

universal declaration of Human Rights; they have to provide asylum for certain refugee

hijackers in violation of Article 7, which obligates prosecution or extradition without

exception what so ever? But in practice the terminal States decision to extradite, prosecute or

grant asylum to an offender depends upon the following four factors: (1) the nationality of the

offender; (2) the States of the incidents as a political offence; (3) the motivation of the

offender; (4) the success or failure of the seizure.

Article 8 of the Convention states:

1. The offense shall be deemed to be included as an extraditable offense in any

extradition treaty existing between contracting States. Contracting States undertake to

include the offense as an extraditable offense in every extradition treaty to be

concluded between them.

2. If a contracting State which makes extradition conditional on the existence of a treaty

receives a request for extradition from another contracting State with which it has no

extradition treaty, it may as its option consider this Convention as the legal basis for

extradition in respect of the offense. Extradition shall be subject to the otherconditions provided by the law of the requested state.

3. Contracting states which do not make extradition conditional on the existence of a

treaty shall recognize the offense between themselves subject to the conditions

provided by the law of the requested state.

4. The offense shall be treated, for the purpose of extradition between Contracting

States, as if it had been committed not only in the place in which it occurred, but also

in the territories of the states required to establish their jurisdiction in accordance with

Article 4, paragraph 1.

Thus, according to Article 8, if a contracting State receives a request for extradition from a

State with which it has no extradition treaty the Convention shall be considered as the legal

basis for extradition. The effect of this provision is to enlarge the scope of existing

international treaties on extradition to include hijacking. Where a State is usually prohibited

by domestic law from extraditing a hijacker in the absence of a treaty, the State must

extradite the offender under the provisions of the Convention.68

67General Assembly Resolution No. 2312 Of 1967 U.N. Doc A/6716 (1967)68Attempts At Ensuring Peace And Security In International Aviation, R.I.R. Abeyratne


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The obligation to extradite an airline hijacker is subject to all other customary and

conventional rules of law governing extraditable offenses. As a general rule, extradition is

denied where an individual is accused of committing a political offense. Most states

recognize the granting of political asylum as a right to be determined by the state from which

it is requested. As the laws of a state may preclude extradition of an airline hijacker if theoffense is regarded as political, the existence of hijacking in an extradition treaty may not

result in mandatory extradition. However, if a state does not extradite the offender, according

to Article 7, the case must be submitted to the proper authorities for prosecution. I.D.

Johnston has stated the following in relation to Article 8:

The Convention obliges the parties to include hijacking in extradition treaties to be

concluded between them and insert it retrospectively into existing extradition treaties. Parties

which have not concluded extradition treaties but which make extradition conditional on a

treaty can regard the Convention itself as a legal basis for extradition. These provisions

increase the possibility of extradition but by no means make it a certainty. The RussianProposal, supported by the U.S.A., that hijackers be returned in all cases was rejected at the

Conference. Automatic extradition, though probably the best deterrent, was considered too

drastic a commitment by most of the negotiating States. What they are prepared to accept

however, was the duty to prosecute offenders whom they did not extradite as provided for by

Article 7.69

There is no indication in the Convention as to what the position is regarding the extradition of

nationals. Shubber believes that even though there is no mention of the extradition of the

States own nationals according to the Convention or to the term "offender" in Article 8, suchextradition possible:

There is no reason to suppose that hijackers who happened to be nationals of the State

requested to extradite him should be excluded from the scope of extradition under the

Convention, provided that course of action is compatible with the national law of the State

concerned. This interpretation is not incompatible with the intention of the drafters and thepurpose for which the Convention has been created.70

The Hague convention is a hallmark in international co- operative efforts to suppress

"skyjacking". The urgent need to free commercial air transport from the threat of seizure

prompted nations to respond with a vigorous denunciation of the (Un- named) "offences",

and to provide more vehement punitive measures, contracting states were now required to

establish jurisdiction over the offender when apprehended even if the offence did not occur

within their territorial borders. The 88 members of the international community have

formally sanctioned the deterrent provisions condemning unlawful aircraft seizure has

elevated this act to the status of international crime. The Hague's convention became the

69I.D. Johnston,Legislation, 5 New Zealand L. Rev. 307 (1973).70Sami Shuber,Aircraft Hijacking Under The Hague Convention, 22 I.C.L.Q. 725 (1973).


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foundation of all similar future international efforts pertaining to various categories of

terrorist offences.71

5. OTHER PROVISIONSThe Hague Convention imposed further obligations on the contracting State to preserve the

security and efficiency of air transport. States are obliged to take reasonable measures to

restore control of aircraft to its lawful commander or to preserve his control over it and to

facilitate the continuation of the journey of the passenger and the crew In addition, States are

obliged to return the aircraft and its cargo to those entitled without delay (Article 9) and

report promptly as possible to the Council of ICAO any relevant information (Article 11).

Article 10 imposes an obligation on all contracting States to give one another the greatest

measure of assistance in connection with the criminal proceedings. When comparing the

contents of the Hague Convention with that of the Tokyo Convention, one observes that thetwo Conventions overlap and are even contradictory on some issues and their inter-relation is

far from clear. The Hague Convention may be considered as a significant step forward in the

endeavour of the international community to suppress the hijacking of aircraft and remove

the threat caused by it to international civil aviation. The Convention has enlarged the

number of the States competent to exercise jurisdiction over a hijacker and included the

introduction of new basis for the exercise of jurisdiction of the State where the charterer of an

aircraft has his principal place of business or permanent residence. Another encouraging fact

is that the Hague Convention grants every Contracting State the power to exercise

jurisdiction over a hijacker if such States are affected by an offense committed under the

Convention, thus making it impossible for a hijacker to escape the normal process of the law.

The Hague Convention, despite its efficiency in some areas, is not without its weaknesses.

Mankiewicz comments, the Hague Convention deals only with "unlawful seizure committed

on board aircraft" and does not apply to sabotage committed on ground, nor does it cover

unlawful interference with air navigation, facilities and services such as airports, air control

towers or radio communications. Attempts made further to extend the scope of the

Convention were unsuccessful. Nevertheless, the Seventeenth Session of the Assembly of

ICAO, held in Montreal in June, 1970, adopted a Resolution directing the Council of ICAO

to convene the Legal Committee, if possible not later than November, 1970, in order to

prepare ... a draft Convention on Acts of Unlawful Interference Against Civil Aviation withthe view to its adoption ... as soon as practicable. Consequently, the draft Convention was

prepared and was opened for signature at Montreal on September 23, 1971. 7273

In order to suppress unlawful acts of seizure or exercise of control of aircraft and to improve

its effectiveness, a protocol supplementary to The Hague convention was adopted on

71International Conventions On Aerial Hijacking: An Approach To Combat Terrorism, R. S. Rajput72

Attempts At Ensuring Peace And Security In International Aviation, R.I.R. Abeyratne73Mankiewicz, SupraNote 48, At 209, In Attempts At Ensuring Peace And Security In International Aviation,R.I.R. Abeyratne


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September, 10, 2010 at Beijing. The protocol replaced Article 1 of the convention by stating

that:

1. Any person commits an offence if that person unlawfully and intentionally seizes or

exercises control of an aircraft in service by force or by threat thereof, or by coercion,

or by any other form of intimidation, or by any technological means;2. Any person also commits an offence if that person:

Makes a threat to commit the offence set forth in Para 1 of this article or,

Unlawfully and intentionally causes any person to receive such a threat, under

circumstances which indicate that the threat is credible.

Article 3 of the Protocol lays down that an aircraft is considered to be a service from the

beginning of the ore-flight preparation of the aircraft by ground personnel or by the crew for

a specific flight until twenty four hours after any landing. In the case of forced landing, the

flight shall be deemed to continue until the competent authorities take over the responsibility

for the aircraft and for the persons and persons on board. The Protocol has replaced many

articles of the convention in order to deal with new types of threats against civil aviation.

5.1 THE MONTREAL CONVENTION (1971):

(Convention for the suppression of Unlawful Acts against the safety of civil Aviation: 23 Sept.

1971)

International civil Aviation drafted a multilateral convention for Suppression of Unlawful

Acts against the safety of civil aviation. This was a supplement to the Hague convention. This

convention was designed to deal with sabotage and terrorist incidents directed against

aviation facilities. One of the most serious offences banned by the Montreal Convention was

destruction of air navigation facilities. Any airport which serves international flights is

vulnerable to acts of politically motivated terrorism, disrupting communication equipments,

radio service, meteorological services, runway lightings or radar installation. Paragraph 1 (b)

commits contracting states against such illegal acts to ensure the safety of airport personnel

and passengers.

Since both the Tokyo and the Hague Conventions dealt only with unlawful seizure committed

on board aircraft, it did not cover sabotage committed on the ground, nor unlawfulinterference with air navigation facilities and services. The Montreal Convention was drafted

to remedy those lapses. The objectives of the Montreal Convention are best discussed as

follows:

The primary aim of the Montreal Convention was to arrive at a generally acceptable method

of dealing with alleged perpetrators of acts of unlawful interference with aircraft. In general,

the nations represented at the Montreal Conference agreed that acts of sabotage, or violence

and related offenses interfering with the safety and development of international civil aviation

constituted a global problem which had to be combated collectively by concerned nations ofthe international community. A multilateral international convention had to be adopted which


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extended both the scope and efficacy of national legislation and provided the legal framework

for international co-operation in the apprehension, prosecution and punishment of alleged

offender.74

DEFINITION OF THE OFFENSE

Another approach adopted by the Montreal Convention in its endeavours to curb hostile acts

against civil aviation is to define the offense broadly in order to embrace all the possible acts

that might occur. The first issue which faced the drafters of the Convention in this respect

elated to the provision of substantial coverage of serious offenses and at the same time

avoiding the difficulties that may arise in connection with the listing of specific crimes in a

convention intended for adoption by a great many States. After much debate and deliberation,

this issue was settled and the final conclusion of the meeting is reflected in Article I. G.F.

Fitzgerald described the method of enumerating the offenses in the Convention as being

"novel": "[a]rticle I is novel in that it describes a number of penal offenses within theframework of a multilateralconvention."

Article 1 of the Convention defines and enumerates the offenses of unlawful interference

with aircraft as follows:

1. Any person commits an offense if he unlawfully and intentionally:

Performs an act of violence against a person on board an aircraft in flight if

that act is likely to endanger the safety of that aircraft in flight, or

Destroys an aircraft in service or causes damage to such an aircraft in flight if

that act is likely to endanger its safety in flight, or Places or causes to be placed on board an aircraft in service, by any means

whatsoever, a device or substance which is likely to destroy that aircraft, or to

cause damage to it which renders it incapable of flight, or to cause damage to

it which is likely to endanger its safety in flight, or

Destroys or damages air navigation facilities or interferes with their

operation, if any such act is likely to endanger the safety or aircraft in flight,

or Communicates information which he knows to be false, thereby

endangering the safety of an aircraft in flight.

2. Any person also commits an offense if he:

Attempts to commit any offences mentioned in Para 1 of this Article;

Is an accomplice of who commits or attempts any such offence.

It should be noted that while Article 1 delineates several different offenses, the dual requisites

of unlawfulness and intent apply to act of the offenses enumerated. Fitzgerald further

observes:

74Abraham Abramovsky,Multilateral Conventions For The Suppression Of Unlawful Seizure And InterferenceWith Aircraft Part Ii: The Montreal Convention, 14 Colum J. Transnat'l L. 268, 278 N.2 (1975).


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The introductory language of paragraph 1 makes it clear that the dual element of

unlawfulness and intention must be present in all of the acts covered by sub-paragraphs (a) to

(e); otherwise those acts will not be offenses. The dual element would also apply to attempts

and complicity covered by sub- paragraph.

Sub-paragraph (a) of Article 1 is designed to deter and punish acts of violence committed

against persons on board aircraft in flight. It should be noted that not all acts of violence

come within the scope of the offense; only those likely to endanger the safety of the aircraft

are within the scope as well. The notion of an act of violence referred to in this subparagraph

includes armed attacks, as well as attacks against the lives of persons on board the aircraft by

other means, such as, blows, strangling, poisoning or lethal injection. The word "violence"

used in sub-paragraph (a) can be interpreted as including not only an armed attack or physical

assault, but also administration of poison through, for example, its introduction into the food

or drink served on board aircraft. 59 The manner in which sub-paragraph (a) is worded, when

it is read with the opening language of Article 1, would lead one to conclude that the personperforming the act of violence does not have to be on board the aircraft in order to come

under the Convention. This means that the convention would apply to a person who, being

outside the aircraft (for example a low flying and slow-moving helicopter or light aircraft) in

flight or who, while on the ground, has poisoned food which is later consumed by a person on

board such aircraft.75

According to this sub-paragraph, the act of violence is not restricted to those acts which

imperil the life of the victim. Any act of violence perpetrated against a person on board and

which is likely to interfere with the safety of the aircraft falls within the scope of the offense.

Hence, the standard for determining whether the Convention is applicable in a given situationdoes not hinge on the gravity or the heinousness of the act but rather on its effect on the

safety of the aircraft in flight. The same definition as given in Article 3 of the Hague

Convention for an "aircraft in flight" applies in Article 2(a) of the Montreal Convention.

The two offenses which can be committed on board an aircraft in service are enclosed in sub-

paragraphs (b) and (c) of Article 1 of the Montreal Convention. Sub-paragraph (b) is

designed to deter and penalize acts of sabotage perpetrated against the aircraft itself. The sub-

paragraph encompasses attacks both from within and without the aircraft. The destruction and

damage referred to in the sub-paragraph must occur while the aircraft is "in service," as the

particular act, the consequence of which is the destruction of the aircraft, may be performed

before the aircraft is "in service." Destruction includes substantial destruction of the aircraft

beyond the possibility of rendering it airworthy through repair while the concept of "causing

damage" is intended to cover "the damaging of a vital but inexpensive piece of wiring would

render the aircraft incapable of flight. It could also cover any damage, whether caused to an

aircraft on the ground or in the air, where there is likelihood that the safety of the aircraft in

flight would be endangered.76

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Sub-paragraph (c) is an attempt by the Convention to encompass, through using the term "by

any means whatsoever", all situations in which explosives or other devices are placed on

board an aircraft.

The words "by any means whatsoever" cover the placing of explosives on board an aircraftwhether carried on board by the author of the act or any unwitting accomplice, sent on board

in air cargo or by mail, or even attached to the outside of the aircraft before it undertakes its

journey.

Sub-paragraph (d) is intended to address hostile acts against "air navigation facilities" which

may include airports, towers, radio services and meteorological services used in international

flights.

Sub-paragraph (e) is concerned with making it an offense for anyone to pass, or cause to pass

false information relating to an offense (for example, the presence of an explosive device orwould-be hijacker on board the aircraft). Although most national legislatures may have

already enacted legislation concerning this subject, it was felt that measures to restrain such

acts could especially be included in this Convention, as it was intended to cover a type of

offense which very definitely interferes with the orderly conduct of commercial air services.

In order for the act to fall within the Convention, the offender who communicates the

information must know that the information is false.

Article 1(2) covers the attempt to commit an offense and being an accomplice to commit one

of the offenses listed in the sub-paragraphs of the Article. During the debate on the MontrealConvention, there was an attempt to include conspiracy in the definition, but some

delegations, including France, were of the view that since conspiracy was not an offense

under their national systems of penal law, it should not be included in the convention. After

long deliberations, it was decided by a vote that reference to conspiracy would not be made in

the Convention.77

The application and jurisdiction provisions are identical to those of Hague convention. In the

case of air navigation facilities Para 1 (d) of the convention empowers the application of the

facilities which are destroyed, damaged, or interfered, which come in use of international

navigation. Article 5 attempts to establish a form of universal jurisdiction over the alleged

offender. The contracting States are obliged to take necessary measures to establish

jurisdiction over offences in these instances. Regarding alleged offenders, the convention

provides the provision for air transport cooperation organisation or international agencies

subject to international registration, continuation of the journey by the passengers, crew, and

aircraft; assistance between states to facilitate criminal proceedings, and reports to the

council.78

77

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The Montreal convention (the "Sabotage Convention") covers offences against civil aircraft

other than hijacking an aircraft in flights and in particular:

1. Violence against a person on board an aircraft in flight, likely to endanger the safety

of the aircraft,

2.

Destroying or causing damage to an aircraft in service,3. Placing explosive devices on an aircraft in service,

4. Destroying or damaging air navigation facilities or interfering with their operation;

and

5. Bomb hoax extortion and similar acts.

Montreal convention applies only if an international element is involved, namely if the place

of takeoff or landing is located outside the territory of the state of registry or the offence is

committed in the territory of a state other than the state of the aircrafts registry. The

convention also applies if the offender is found in the territory of a non-registry state. As far

as destruction or damaging air navigation facilities is concerned, convention applies only ifinternational facilities are the target of the offender. Each signatory country undertakes to

establish its jurisdiction over the offences covered by the convention. Such jurisdiction is

exercised when an offence is committed in a countrys territory or against on board an

aircraft registered in that country or when the aircraft on which the offence is committed

lands in its territory with the offender still on board; and if the offence is committed against

or on boards an aircraft leased by contracting state without crew to a lessee who has his

principal place of business or permanent residence in that State.

Generally speaking, the provisions of the Montreal convention regarding the taking intocustody of alleged offenders and their extradition and prosecution follow the rules of Hague

Air Hijacking convention of 1970, suffering from the same weakness of enforcement

provisions at that convention. Attempts to institute together and more far-reaching

international legal obligations in the matter of aircraft offences, covered by the Montreal

convention, have so far proved unsuccessful.79

5.2THE BONN DECLARATION (1978):

Bonn Economic Summit was held on July 16-17, 1978. The heads of States andGovernments of U.S.A., U.K., Canada, France, West Germany, Italy and Japan participated

in it. The participant countries had reached consensus on countering acts of terrorism

involved in aircraft hijacking. The communiqu declared that when a country refuses the

extradition or prosecution of "those who have hijacked an aircraft and/or does not return such

aircraft", their governments will take action to cease all flights to that country. The

participant countries in addition to expressing concern over lacuna in the law and the legal

processes, they extend to the policy factors; the claim relating to States that support terrorism

or those that give asylum to persons and groups involved in aircraft offences. They called

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for cooperation and consultation, essential steps in moving towards shaping law to be

enforced. Shortly after Bonn Summit U.S. declared "a major advance in its efforts to combat

aircraft skyjacking" and noting that the seven summit participants are the major aviation

powers of the free world, their airlines carry two thirds of the free world passengers. U.S.

stated as host government for the summit meeting the German Government had convened ameeting of experts in Bonn to develop scientific procedure under the initiative of Bonn

declaration to deter air hijacking.80

5.3LONDON SUMMIT:

On June 7-9, 1984 the heads of the NATO states raised the question of gaps in the law with

regard to regulating the conduct of terrorists. The communiqu issued at the close of that

conference declared that while hijacking and kidnapping had declined since declaration of

previous Economic Summit at Bonn (1978), Venice (1980) and Ottawa (1981), thesignatories expressed their resolve to counter "by every possible means, the problem of

international terrorism and its techniques developed sometimes in association with traffic in

drugs." They viewed with serious concern the increasing involvement of states and

governments in the acts of terrorism, including the abuse of diplomatic immunity; security by

each country of gaps in its national legislation which might be exploited by terrorists; action

by each country to review the sale of weapons in states supporting terrorism, consultation as

for as possible, cooperation over the expulsion or exclusion from their countries of known

terrorist including persons of diplomatic status involved in terrorism.41 The three

international conventions and the efforts of the United Nations convinced most of the nations

to legislate anti- hijacking laws. The penal laws have also been amended by the countries to

provide punitive punishments to the hijackers. Consequently, India also enacted: (1) Anti-

hijacking Act 1982, to give effect to the provisions of Hague Convention; (2) The

Suppression of Unlawful Acts against Safety of Civil Aviation Act 1982 to give effect to

Montreal Convention. The Indian Government had also been the victim of aerial hijacking.

The first Indian aircraft, a Fokker Friendship named 'Ganga of Indian Airlines was hijacked

by two Pakistanis, Hashim Qureshi and Altaf Qureshi from Srinagar to Lahore on January 30,

1971 and was watched by the millions of Television viewers, as it was blown up mercifully

after the 30 passengers and crew had been released. After that an Air India Jumbo was

hijacked on December 24, 1974, while flying over Rome in Europe, a Boeing 737 scheduledfrom Bombay to Delhi via Jaipur was forced to head for Lahore on September 10, 1976.

Fortunately the Pakistani authorities returned the aircraft with crew unharmed. The Punjab

militants who hijacked the Delhi-Amritsar- Srinagar flight to Lahore on September 29, 1981,

are till remaining lodged in Pakistani Jail. An Air India Boeing 707 was commandeered from

Seychelles to Durban where it was released by the South African authorities. On June 23,

1985 an Air India Jumbo Jet 747, 'Kanishka* exploded in the air with 329 people on board of

the South West Coast of Ireland, it bears all the hallmarks of pre-planned sabotage. The

inquiry by Justice Kirpal Singh could not succeed in providing punishment to the saboteurs.

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The aircraft hijacking has become the most serious problem for the travellers, and they do not

feel safe on the international flights. To curb this menace a few suggestions have been given

by the ICAO at its Regional Seminar at Carcus.

1. The national civil aviation authorities should implement security system, based on the

standards and recommended practices, procedures for air navigation services andguidance material developed by ICAO.

2. The respective national administration should adopt regulations to strengthen

effective security system, if they have not done so they should adopt within suitable

legal framework of civil aviation security.81

5.4 PROTOCOL TO THE MONTREAL CONVENTION (1988):

A protocol supplementary to the Montreal convention for the Suppression of Unlawful Acts

Against the Safety of Civil Aviation (1971) was adopted on February 24, 1988 by the

International Conference on Air held at Montreal Headquarters of the ICAO. The Protocol

came in force on August 6, 1989. The Protocol stipulated severe penalties for unlawful

international acts of violence against person at an airport serving international civil aviation

which causes or is likely to cause serious injury or death or destruction or serious damages to

the facilities or disruption if services at such airport. Severe penalties are also foreseen for an

attempt or complicity in the commission of such offence. Parties to the protocol would be

expected to establish their own jurisdiction over the offence not only if the offence is

committed in their territory but also when the alleged offence is present in their territory and

the offence is present in their territory and the offence was committed elsewhere. They wouldhave the choice either to extradite the offender to the state where the act was committed or to

present the case to their own authorities for the purposes of prosecution.

5.5 CONVENTION ON THE MARKING OF PLASTIC EXPLOSIVES FOR THE

PURPOSE OF DETECTION (1991):

Background: In December 1988, Pan American flight 103 exploded over Lockerbie,

Scotland. To prevent future explosions onboard aircraft, the ICAO Council passed a

resolut