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Jayati Gupta

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INTRODUCTION

International terrorism has become a topic of international significance over the years since it affects, directly or indirectly the other States or their affairs. International terrorism can 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.[1] Transportation systems of all kinds have served as means for facilitating international terrorism. Aerial hijacking, popularly termed as “skyjacking” is an unlawful seizure of aircraft by an individual or a group. According to Article 1 of the Hague Convention for the Suppression of Unlawful Seizure of Aircraft, 1970: “Any person who on board an aircraft in flight: unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or exercises control of, that aircraft, or attempts to perform any such act, or is an accomplice of a person who performs or attempts to perform any such act commits an offence”.

The pilots may be forced to fly or land according to the wishes and orders of the hijackers in most cases. In some cases, the hijackers may themselves fly the aircraft. There may be various motives for such unlawful seizure. For the last one and a half decades, it has become a pastime of men of mental depravity, fugitive criminals and political offenders which causes unnecessary hazards to innocent passengers, wanton destruction of property and disruption of civil aviation.[2] Most aircraft hijackers intend to use the passengers as hostages, either for monetary ransom or for some political or administrative concession by authorities. Motives vary from demanding the release of certain inmates, to highlighting the grievances of a particular community.[3] The Hague Convention 1970 recognized the urgency to provide for appropriate measures for punishment of such offenders. It is thus stated that the State parties to this Convention[4] consider that unlawful acts of seizure or exercise of control of aircraft in flight jeopardize the safety of persons and property, seriously affect the operation of air services, and undermine the confidence of the peoples of the world in the safety of civil aviation; that the occurrence of such acts is a matter of grave concern; that, for the purpose of deterring such acts, there is an urgent need to provide appropriate measures for punishment of offenders; thus agreeing to the provisions of the Hague Convention, 1970.  Hijacking of an international flight of a civilian aircraft is covered by principles of both international customary law and treaty law. This scope of this project seeks to analyze the aforementioned principles in detail, mention some incidents of the past and finally discuss the September 11 attack on the World Trade Center and Pentagon to highlight the need for devising better and effective laws and mechanisms in the regard.

 

 

INTERNATIONAL TREATY LAW
Up till 1960s, there was an absence of any international customary law in relation to the practice of aircraft hijacking. Thus the international community was led to search for some remedy to this threat to international civil aviation. This led to the adoption of the Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft, 1963, and the Hague Convention for the Suppression of Unlawful Seizure of Aircraft, 1970.[5] Two more conventions, namely The Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 1971; and The International Convention against the Taking of Hostages, 1979. The first three were evolved under the auspices of the International Civil Aviation Organization (ICAO) and the fourth was adopted by the U.N. General Assembly.

THE TOKYO CONVENTION ON OFFENCES AND CERTAIN OTHER ACTS COMMITTED ON BOARD AIRCRAFT, 1963
The Convention on Offences and Certain Other Acts Committed on Board Aircraft was signed at Tokyo in a diplomatic conference on September 14, 1963. It came into force on December 4, 1969.

·         Application and exemptions

Article 1 provides that the Convention shall apply in respect of (a) offences against penal law; (b) acts which, whether or not they are offences, may or do jeopardize the safety of the aircraft or of persons of property therein or which jeopardize good order and discipline on board. It also states that except as provided in Chapter III, the Convention shall apply in respect of offences committed or acts done by a person on board any aircraft registered in a Contracting State, while that aircraft is in flight or on the surface of the high seas or of any other area outside the territory of any State.

The Convention exempts aircrafts used in military, customs or police services from its application.[6]

·         Jurisdiction

Article 3 of the Convention states that jurisdiction over offences and acts committed on board may be competently exercised by the State of registration of the aircraft. Under article 4, it is also provided that a Contracting State which is not the State of registration may not interfere with an aircraft in flight in order to exercise its criminal jurisdiction over an offence committed on board except in the following cases: (a) the offence has effect on the territory of such State; (b) the offence has been committed by or against a national or permanent resident of such State; (c) the offence is against the security of such State; (d) the offence consists of a breach of any rules or regulations relating to the flight or maneuver of aircraft in force in such State; (e) the exercise of jurisdiction is necessary to ensure the observance of any obligation of such State under a multilateral international agreement.

·         With regard to aerial hijacking

Article 11 of the Convention provides that in case of such an incident 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. It is also stated henceforth that the Contracting State in which the aircraft land shall permit its passengers and crew to continue their journey as soon as practicable and shall return the aircraft and its cargo to the person lawfully entitled to possession. The Convention also declares for the Contracting State to take custody or other measures to ensure the presence of any person suspected of such an act as contemplated in Article 11(1) and of any person of whom it has taken delivery. The custody and other measures shall be as provided in the law of that State but may only be continued for such time as is reasonably necessary to enable any criminal or extradition proceedings to be instituted.[7] Article 15(2) also provides that the Contracting State in whose territory a person has disembarked as is suspected of having committed an act contemplated in Article 11(1), shall accord to such person treatment which is no less favorable for his protection and security than that accorded to nationals of such Contracting State in like circumstances.

·         Shortcomings of the Convention

Firstly, the Tokyo Convention, 1970 fails to provide any definition for the term “aircraft hijacking”. Secondly, there is no provision for any concrete measures to be taken on commission of such an act. There is no provision formulating punishment for offenders thereof. The Convention only emphasizes on restoration of property and for the passengers and crew to continue their journey as soon as practicable. It provides for the offender being taken into custody and other measures for criminal or extradition proceedings but Article 16 makes it clear that it is not obligatory for the State to grant extradition. Moreover, no direct effort to deal with cases of aerial hijacking has been made. Thirdly, “aircraft” nowhere specifies international or domestic aircraft nor does it seem to extend any measures for the latter.

 

THE HAGUE CONVENTION FOR THE SUPPRESSION OF UNLAWFUL SEIZURE OF AIRCRAFT, 1970
The Hague Convention, 1970 recognized the fallacies of the Tokyo Convention and the increase in the number of incidents of aerial hijacking and thus the urgent need for States to take necessary preventive action against the same. This led to the adoption of The Hague Convention in 1970. After having been ratified by the prescribed number of States, The Hague Convention came into force on October 17, 1971.

·         Application and exemptions

The Convention applies to all the State parties having signed and ratified the Convention with respect to both international and domestic flights. Article 3 exempts aircrafts used in military, customs or police services.

·         Jurisdiction

Article 4 explicitly recognizes the jurisdictional claims of at least seven categories of states: (1) the state where the aircraft is registered, (2) the state of the operator (lessee) of the aircraft, (3) the state in whose territory the aircraft lands with the alleged offender on board, (4) the state in whose territory the alleged offender is found, (5) the state in whose territory or in whose airspace the offence was committed, (6) the state whose national is the alleged offender, and (7) the state whose security is directly affected by the offence. It does not, however, prescribe any hierarchy among these possible competing claims to jurisdiction.

·         With respect to aerial hijacking

Article 6 of the convention provides for immediate action in case of such an incident. Upon being satisfied that the circumstances so warrant, any Contracting State in the territory of which the offender or the alleged offender is present, shall take him into custody or take other measures to ensure his presence. The custody and other measures shall be as provided in the law of that State but may only be continued for such time as is necessary to enable any criminal or extradition proceedings to be instituted. Such State shall immediately make a preliminary enquiry into the facts. Any person in custody pursuant to paragraph 1 of this Article shall be assisted in communicating immediately with the nearest appropriate representative of the State of which he is a national. When a State, pursuant to this Article, has taken a person into custody, it shall immediately notify the State of registration of the aircraft, the State mentioned in Article 4, paragraph 1(c), the State of nationality of the detained person and, if it considers it advisable, any other interested States of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary enquiry contemplated in paragraph 2 of this Article shall promptly report its findings to the said States and shall indicate whether it intends to exercise jurisdiction. Article 9 of the Hague Convention corresponds with Article 11 of the Tokyo Convention.

·         Shortcomings

Even though the Hague Convention is definitely an improvement over the Tokyo Convention it is still not without deficiencies. The Convention still fails to recognize the act of hijacking as a crime under International law. Secondly, it still provides for no relief or rewarding of damages to the innocent passengers and crew members hijacked aboard. The Montreal Convention resembles greatly to the Hague Convention but also extends to acts of unlawful interference against international civil aviation which have not been covered in the Hague Convention. The most regretful shortcoming of all the treaty laws still remain that the State that receives the hijackers and where the flight lands could still welcome them as political refugees which would again provide them immunity against any extradition or prosecution proceedings.

 

 

INTERNATIONAL CUSTOMARY LAW
The genesis of International law relating to air safety is to be found in the Convention relating to the regulation of Aerial Navigation, 1910 which recognizes that every nation has an exclusive sovereignty over the air space above its territory, with the prevalence of hijacking attempts in the 1960s, the void of any relevant customary international law to meet the challenge became potently obvious. Without the threat of punishment or refusal of asylum, hijackers could continue to disrupt peaceful air travel.[8] In modern day international customary law, a range of principles flows from two broad norms.

The first norm is that every state has an obligation to ensure that its territory is not being used by any person in any manner to the detriment of another state. The alleged right of intervention can only be regarded as the manifestation of a policy of force which cannot find a place in international law. It is the duty of every State to respect the territorial sovereignty between independent States is an essential foundation of international relations.[9]

An armed attack in the construction of the Court must be understood as including not merely action by regular armed forces across an international border, but also the sending by a State of armed bands or groups on to the territory of another State, if such an operation, because of its scale and effects, would have been classified as an armed attack had it been carried out by regular armed forces. Not to be included in the concept of “armed attack”, however, are acts of mere assistance to rebels in the form of the provision of weapons or logistical or other support. Such assistance may, the Court believed, be regarded as a threat or use of force, or may amount to intervention in the internal or external affairs of other States, but it may not justify an action of self-defence. This is the basis of all rules relating to the prohibition of direct or indirect involvement of states in international terrorism.[10]

The second norm is that states owe an obligation to the international community to ensure protection of human rights.[11] As the ICJ stressed in the American Hostages in Teheran case[12] in 1980, “Wrongfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the United Nations as well as with the fundamental principles enunciated in the Universal Declaration of Human Rights.”

Contemporary international law underscores the duty of every state to (a) prevent perpetration of terrorist acts against another state or against innocent individuals, and (b) consequently, to cooperate with other states in preventing and combating terrorism and in punishing terrorists. It is this aspect of the principle of suppression of terrorism that has moved the international community to evolve international legal instruments for the purpose of combating and punishing acts of international terrorism in the interests of protection of territorial integrity of states and respect for human rights.[13]

However, customary international law provides no rule which imposes a duty to extradite; hence extradition becomes either a matter of comity or treaty between states. Since international law maintains no central enforcement agency or universal sovereignty to affect compliance with established international norms it relies upon voluntary compliance of participating States to advance international order.[14]

 

 

 

SOME INFAMOUS INCIDENTS OF AIRCRAFT HIJACKING
The first aerial hijacking within the United States occurred on May 1, 1961, when a commercial airliner en route from Miami to Key West, Florida, was forced to detour to Cuba. By the end of 1961, four airplanes had been hijacked to Cuba, and many of the airplanes subsequently hijacked in the United States and elsewhere in the Western Hemisphere were flown to Cuba by either homesick Cubans or politically motivated leftists. Some of these hijackings were financially motivated, with the hijackers calling for huge ransom payments in exchange for ensuring the safety of the passengers and crew, though few were successful.

 

Hijackings have continued to occur sporadically since the late 1970s, though at a reduced frequency.

One such notorious incident was the 17-day hijacking of a flight to Beirut airport by Hezbollah, a militant group associated with Ayatollah Ruhollah Khomeini, in 1985.

 

On June 10, 1973, three men hijacked Royal Nepal Airlines’ Twin-engined Otter plane to Forbesgunje airstrip, seven metres inside the Indian border and decamped with Rs. 30,00,000. The plane was on a scheduled flight from Biratnagar to Kathmandu. The plane was returned.

 

The decline in hijackings was the result of a variety of factors, including heightened security and greater international cooperation. Some groups, such as the Palestine Liberation Organization (PLO)—which had applauded earlier hijackings—found that hijacking had outlived its usefulness. In addition, in the 1980s some militant groups turned to the far more devastating tactic of destroying airplanes in flight, usually by bombs. One infamous incident was the downing of an American airliner by Libyan intelligence agents over Lockerbie, Scotland, in 1988; the midair explosion killed 259 passengers and 11 people on the ground.

In 2007 in Russia, an Aeroflot Airbus A320 flying from Moscow to Geneva was hijacked by a drunken man in Prague. The crew and passengers were released after his arrest by the Czech police.

In 2007 in Turkey an Atlasjet MD-80 en route from Nicosia to Istanbul was hijacked by two Arab students, who said they were Al Qaeda operatives, one trained in Afghanistan, and wanted to go to Tehran, Iran. The plane landed in Antalya, the passengers escaped and the hijackers were arrested.[15]

Turkey 2011: Turkish Airlines Flight 1754, flying from Oslo, Norway to Istanbul, was in Bulgarian airspace when an unsuccessful attempt was made to hijack it. The hijacker said that he had a bomb and that he would blow up the aircraft unless the plane returned to Norway. Passengers overpowered the hijacker and the flight safely landed at Atatürk International Airport, Istanbul. There were no injuries and the suspect was arrested.[16]

 

 

THE SEPTEMBER 11, 2001 ATTACKS
The deadliest act of air piracy to date occurred on September 11, 2001, when suicide terrorists simultaneously hijacked four airliners in the United States and flew two of them into the World Trade Center complex in New York City and one into the Pentagon near Washington, D.C. The fourth plane crashed outside Pittsburgh, Pennsylvania, after passengers—apprised of their fate via cellular telephone—attempted to overtake their attackers. Overall, more than 3,000 people were killed in the September 11 attacks, and a new factor was introduced: the use of fuel-laden planes as flying bombs to kill large numbers of people and cause enormous property damage. However, the actions of the passengers on the fourth plane suggested that such a tactic would be difficult to repeat, as the prospect of certain death would give hostages little incentive to submit to hijackers’ demands.

 

The widely ratified Hague Convention for the Suppression of Unlawful Seizure of Aircraft makes aircraft hijacking an international criminal offense.  It applies to accomplices as well as to the hijackers themselves.  The Convention requires each contracting state to take such measures as may be necessary to establish its jurisdiction over the offense when the offense is committed on board an aircraft registered in that state, or when the aircraft lands in that state with the offender on board, or when the alleged offender is present in its territory and it does not extradite him to one of the other states just mentioned.  The offense is deemed to be extraditable under any extradition treaty in force between contracting states.[17] If the hijackers responsible for the incident of hijacking and crashing into the World Trade Center and the Pentagon would’ve been alive and had been identified and apprehended, they could face prosecution in country that would have custody of them.

The Statute of International Criminal Court also defines the term “crime against humanity”, though loosely as acts “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”[18]  The acts include murder, enslavement, Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, torture and other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

The United States would have jurisdiction under customary international law to proscribe such terrorist acts that occur within its own borders and to prosecute the offenders under federal anti-terrorism statutes already in force. The US could have also raised issues if any other State was suspected of harboring the persons responsible for the attacks. Other countries could exercise what is known as universal jurisdiction.  This means that any country may make such terrorist acts criminal offenses under its own law, and may prosecute the offenders if they are within its custody.

Nevertheless, article 51 of the U.N. Charter recognizes “the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”  Thus, if the coordinated use of force to hijack and use large airliners loaded with fuel to attack the World Trade Center and the Pentagon can be classified as an armed attack against the United States, and if it is necessary to take countermeasures involving the use of armed force in order to prevent further attacks, the United States arguably could use force under article 51 until such time as the Security Council can act to maintain international peace and security.[19] It has been expressed by thy the North Atlantic Treaty parties that the incident was an armed attacked[20] against the United States invoking Article 5 of that treaty.

 

 

CONCLUSION
The phenomenon of aerial hijacking though very popular in the past, its reported incidents have been on the decline in the recent present. At one point of time around the 1960-70s, there were as many as 80 reported cases of aerial hijacking in ten years. Of the varied motives, political reasons were the most common. Therefore, it is stressed that there is a need to establish the offence of hijacking as a non-political offence so as to eliminate it as an exception for extradition of fugitives. Even The Hague Convention failed to rule it out from being a political offence.

Apart from the clear reasons such as taking away freedom and liberty of civilians, risking safety of the passengers, crew members and pilots, misuse of aircraft and destruction of property as to why aerial hijacking is such a grave offence, it also tends to disrupt international communication. Hijackers usually turn off all communication systems of the aircraft to camouflage their locations so as to deviate the plane according to their wishes without it being shown on the radars. Moreover, foreign relations between nations which are quite essential for global integration through trade and commerce and world peace and harmony are hampered.

Over the years various treaties and agreements have been signed among nations all around the world to take preventive and deterrent measures against such offenders and to come up with such laws which would make escape from punishment difficult. Along with this, efforts have also been taken to deter potential hijackers from committing such crimes. Punishment and threat of punishment though deters potential offenders and has shown to decrease the number of cases of aerial hijacking, it is still not a fool-proof and proven deterrent. Cases have still been reported in the present.  To encounter the present scenario and to avoid incidents of hijacking from happening in the future, it is imperative for nations to strengthen their laws relating to anti-hijacking policies and extradition laws and for international organizations to take more appropriate and efficient measures to ensure that provisions regarding extradition and prosecution given in the conventions are complied with. There is also a need to draft suitable machinery for the purpose of resolution of conflicts arising between Contracting States out of simultaneous requests for extraditions, since all affected States would want to exercise their jurisdiction over the case and prosecute punish or acquit the offenders according to their respective laws. Another problem arising out of this is that some nations provide refuge to hijackers which would give them immunity against any action to be taken against them by another State. Treaties dealing with controlling hijacking also need to make for stronger action and unavoidable sanctions against nations that fail to fulfill their obligations. All States that are signatories to the treaties and have duly ratified the agreement ought to meet the obligations emanating thereof. Procedure for such violating States must be made and enshrined into the international treaties. Last, but not the least airport security and other authorities could improve their systems for baggage checking and search for both passengers and crew members to ensure minimum risk again happening of an incident of aerial hijacking.

It is only when all the existing loopholes in international and national laws are plugged and amended according to the changing needs of nations globally that the offence can be totally eradicated and safety of life and property even while travelling be ensured.

 

 

 

[1] Wilkinson, Paul, political terriorism , halsted press, new- york, 1975, p. 310 (as cited in https://www.scribd.com/document/342257903/Pil-Project-on-Aircraft-Hijacking)
[2] Aircraft Hijacking and International Law by S.K. Agarwala, 1973, N.M. Tripathi, Bombay.
[3] As cited in https://www.lawctopus.com/academike/aircraft-hijacking/
[4] The Hague Convention for the Suppression of Unlawful Seizure of Aircraft, 1970.
[5] The International and Comparative Law Quarterly, Vol. 25, No. 1 (Jan., 1976), pp. 248-250.
[6] Article 1(4), Tokyo Convention, 1970.
[7] Article 13(2), Tokyo Convention, 1970.
[8] SK Ghosh, Aircraft Hijacking and the Developing Law (Ashish Publishing House 1985).
[9] International Court of Justice ruling in the Corfu Channel case, 1949.
[10] Some of these rules were identified and elaborated by the ICJ in the Nicaragua case in 1986.
[11] ICJ ruling in the Barcelona Traction Company case, 1969.
[12]
[13]VS Mani, ‘Hijacking and International Law’ (The Hindu, 19th January) http://www.thehindu.com/2000/01/19/stories/05192524.htm accessed 22 March 2017.
[14] Aircraft Hijacking and the Developing Law, S.K. Ghosh

[15] Sebnem Arsu, “Pilots and passengers foil hijacking of Turkish jet”, The New York Times, August 19, 2007. Retrieved July 26, 2011 (as cited in http://www.newworldencyclopedia.org/entry/Hijacking).
[16] “Turkish Airlines hijack attempt foiled by passengers”, Hürriyet Daily News, January 5, 2011. Retrieved July 26, 2011 (as cited in http://www.newworldencyclopedia.org/entry/Hijacking).
[17] Article 6, Hague Convention, 1970.
[18] Article 7, Statute of International Criminal Court.
[19] BWELLING HALL, ‘TERRORIST ATTACKS ON THE WORLD TRADE CENTER AND THE PENTAGON’ [2011] 6(18) American Society of International Law.
[20] For the purpose of Article 5, an armed attack on one or more of the Parties is deemed to include an armed attack: (1) on the territory of any of the Parties in Europe or North America, on the Algerian Departments of France, on the territory of or on the Islands under the jurisdiction of any of the Parties in the North Atlantic area north of the Tropic of Cancer; (2) on the forces, vessels, or aircraft of any of the Parties, when in or over these territories or any other area in Europe in which occupation forces of any of the Parties were stationed on the date when the Treaty entered into force or the Mediterranean Sea or the North Atlantic area north of the Tropic of Cancer.

 


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