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NATIONAL LAW UNIVERSITY ODISHA

PROJECT SUBMISSION ON-


AIRCRAFT HIJACKING UNDER INTERNATIONAL LAW

Submitted to- Submitted by-

Prof. B. Hydervali Akhil Nene- 12/BBA/007


Course- Public International Law Abhay Jain- 12/BBA/002

Shivank Jhanji- 12/BBA/049


TABLE OF CONTENTS:

I. LIST OF ABBREVIATIONS:.............................................................................................. 3
1. INTRODUCTION .............................................................................................................. 4
1.1 INTERNATIONAL TERRORISM:........................................................................................ 5
1.2 TERRORISTS AND INTERNATIONAL LINKS: ..................................................................... 6
2. HIJACKING ......................................................................................................................... 6
3. PROTOCOLS AND CONVENTIONS: ...................................................................................... 10
3.1 THE GENEVA CONVENTION ON THE HIGH SEAS (1958):................................ 10
3.2 THE TOKYO CONVENTION (1963):...................................................................... 12
3.2.1 PURPOSE AND SCOPE OF TOKYO CONVENTION, 1963............................................. 15
3.3 THE HAGUE CONVENTION ON HIJACKING (1970): AND ITS PROTOCOL
(2010):............................................................................................................................. 17
4. JURISDICTION OVER HIJACKING ........................................................................................ 18
5. OTHER PROVISIONS ................................................................................................... 22
5.1 THE MONTREAL CONVENTION (1971):.............................................................. 23
5.2THE BONN DECLARATION (1978): ....................................................................... 27
5.3LONDON SUMMIT: ................................................................................................. 28
5.4 PROTOCOL TO THE MONTREAL CONVENTION (1988):................................... 29
5.5 CONVENTION ON THE MARKING OF PLASTIC EXPLOSIVES FOR THE
PURPOSE OF DETECTION (1991): .............................................................................. 29
5.6 CONVENTION ON THE SUPRESSION OF UNLAWFUL ACTS RELATING TO
INTERNATIONAL CIVIL AVIATION OR BEIJING CONVENTION 2010: ................ 31
6. SOME CASES OR INCIDENTS OF HIJACKINGS:...................................................... 35
7. AIRCRAFT HIJACKING AND INDIA:......................................................................... 40
8. CONCLUSION................................................................................................................... 41
I. LIST OF ABBREVIATIONS:

AJIL American Journal of International Law

All ER All England Law Reports

EC European Communities

F.Supp. Federal Supplement

GAOR General Assembly Official Records

ICAO International Civil Aviation Organisation

ICJ International Court of Justice

IJIL Indian Journal of International Law

JILI Journal of Indian Law Institute

NIEO New International Economic Order

PCA Permanent Court of Arbitration

PCIJ Permanent Court of International Justice

UN United Nations

Yale L. J. Yale Law Journal


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 and
menacing of the innocent to inspire fear for political ends"1 or 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.3 Commenting on the terrorism Jenkins said, "Terrorism is
compounded 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.5 Alfred P. Rubin argues that government naturally shoulder the greatest

1
Oxford dictionary 216 (1933)
2
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/41855472
3
rubin, a. 'International terrorism and international law;' in terrorism interdisciplinary perspective, p. 121-123.
4
jenkins, b. International terriorism: a new mode of conflict f crescent publishers, los angles, 1975, p. 2.
5
morganthau, hans: forward to terriorism, interdiscipli- nary perspective p. Vii.
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 of
the aircraft vessel) where it occurs.6

1.1 INTERNATIONAL TERRORISM:


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."8 The 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 to
create a state of terror in the minds of particular persons, or a group of persons or the general
public."9 Jenkins has defined International Terrorism more broadly as violent actions having
global repercussions or lying beyond the accepted standards of war and diplomacy.10 The
International 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 from
the 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 modern
technology - 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

6
robin op. Cit . P. 121.
7
wilkinson, paul, political terriorism , halsted press, new- york, 1975, p. 310.
8
ibid.
9
the 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-annexture
10
jenkins. Op. Cit p. 5.
11
ernest, e. Calling a truce to terror , greenwood press, west port connectict, 1979, p. 8.
American Terrorism have been financed and encouraged by the USA and as well as the
USSR.

1.2 TERRORISTS AND INTERNATIONAL LINKS:


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 and
launchers 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 them- selves. 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 hundred
for 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 regarding
the 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.12 Whether, 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. Evans
13
freedman, lawrence zelic: terrorism , problems of the polistaraxie, the university of chicago magazine, vol. 66j
no. 6 summer 1974, p. 7.
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 their
negotiation 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 internationally
agreed-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.1617 During 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, hijacking
for 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. The purpose 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

14
see also, http://articles.timesofindia.indiatimes.com/2006-07-01/open-space/27806673_1_hijacker-aircraft-
plane
15
n.y. times, may 2, 1961, at 1, col. 6.
16
fauchille, rvgime juridique des aerostats, annuaire de l'institut de droit international 19 (igo2).
17
the developing law of air hijacking, gary n. Horlick
18
according 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 44
different cities.
19
A search for an international solution to the problem of aircraft hijacking, R. J. Mcgrane
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 were
committed in Europe in the year 1948. Nothing happened21 in 1951, and only two in the years
1952 and 1953, both of which were also in the Eastern Hemisphere.22 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.

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

20
glye, 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/41855472
22
Rajinsky, m. A. Secretary-general of the igao at an airport security seminar in London November 29-30, 1971
on hijacking p. 1.
23
see also, http://www.ICAO.int/about-ICAO/pages/default.aspx
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 could
result 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.25 The 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 was
made 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

24
house colm. On interstate and foreign commerce, preliminary riep., a r r piracy, h.r. rei. No. 91-33, 91st cong.,
ist sess. 3 (1969).
25
2in september of 1970, the security council passed a resolution condemning air hijacking. See security council
resolution 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 ed
July 1970.
27
"plane hijacking fouled in west". Foxnews.com. June 29, 2012. Retrieved June 29, 2012.
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 air
piracy. 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 at
International Conferences as Crimes on Aircraft."29 This statement cannot be more true today
vis--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 Geneva convention on the 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 international
accord 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 seas32 Article 5 of the Convention inclusively defines piracy as follows:

28
see also, http://en.wikipedia.org/wiki/list_of_aircraft_hijackings#cite_ref-87.
29
See Sir Richard Wilberforce (as he then was), Crime in Aircraft "' (1963) 67 Journal of the Royal
Aeronautical Society (hereinafter referred to as Jnl.Ryl.Aero. Soc.) 175.
30
The 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.
31
Attempts At Ensuring Peace And Security In International Aviation, R.I.R. Abeyratne.
32
League Of Nations, Official Journal, 1934, At 1839.
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 or
property 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 the
Convention. 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 was
committed, 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

33
S.Z. Feller, Comment On Criminal Jurisdiction Over Aircraft Hijacking, 7 Israel L. Rev., 207, 207, (1992).
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%,34 during 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. Sami
Shubber 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.35 Under 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 an
aircraft 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,36 which 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):

34
Interpol Had Submitted To The Legal Committee Of Icao In 1977 That Out Of Recorded Hijackings Up To
That Year, The Percentage Of Instances Of Hijackings Which Were Motivated Politically Was 6.2 At A Ratio
Of 64:4. See Icao Doc 8877-Lc/161, At 132.
35
Sami 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).
37
Attempts At Ensuring Peace And Security In International Aviation, R.I.R. Abeyratne.
38
See Haro F. Van Panhuys, Aircraft Hijacking And International Law, 9 Colum. J. Transnat'l. L. 1, 13 (1970).
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. in
the 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. The
problem 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.43 After 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.44 The Sub-Committee
thought that resolving these problems was of vital importance for the following reasons:

39
Supra.
40
Association International Conventions On Aerial Hijacking: An Approach To Combat Terrorism, R. S. Rajput
41
Seeking A Definition For Piracy In The Air, Ita Bulletin Vol. 13 March 30, 1970 Pp. 321-24.
42
Documents 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 Committed
On Board Aircraft, 30 J. Air L. & Comm. 305 (1964) [Hereinafter Tokyo Convention].
44
Transportation Law Journal, [Vol. 24:27]
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) high
speed 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 aircraft
on 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 9
September 1958.46 The Legal Committee in turn considered the draft convention at its 12th
Session held in Munich in 1959,47 undertaking 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

45
The Report Of The Sub-Committee, Lc/Sc Legal Status, Wd No. 23, October 10, 1956.
46
Ibid
47
Ibid
48
Robert P. Boyle, International Action To Combat Aircraft Hijacking, Lawyers Of The Americas, At 463
[Hereinafter International Combat].
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

3.2.1 PURPOSE 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.51 Scope of the convention is covered under Articles 1 and
2, which includes the offences against penal law, offences committed by the persons on board
while 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.''53 The 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 when
required, 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

49
See Abraham Abramovsky, Multinational Convention For The Suspension Of Unilateral Seizure And
Interference With Aircraft Part I: The Hague Convention, 13 Colum. J. Transnat'l L. 381, 389 (1974).
50
Supra
51
Turner, 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.
53
International Combat, Supra Note 18, At 463, In Attempts At Ensuring Peace And Security In International
Aviation,R.I.R. Abeyratne.
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."55 It would be fair to say
that Tokyo convention was the first modest step in combating crimes on the board of the
aircraft 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

54
Tokyo Convention, Supra Note 14, At 328-29, In Attempts At Ensuring Peace And Security In International
Aviation ,R.I.R. Abeyratne.
55
Mckeithen, R. L. Smith, "Prospects For The Prevention Of Aircraft Hijacking Through Law" Columbia
Journal Of Transnational Law, Vol. 9 Spring 1970, P. 64.
56
Harris, D. J. New Terrorism, Messne, Julian, 1983.
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.57 This act of political blackmail
pointed out the need for immediate international cooperation, not only to fill the prosecution
voids 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 incorporation
of 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 circum- stances, 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 out
to 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.
58
Supra.
59
Igao Doc 8838, Lg/ 157, 35, 36, (1969).
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 steps
to 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.62 The 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;

60
In The Usa Maximum Punishment Of 25 Years Have Been Awarded To One Skyjacker Till May 1971. In
Ussr Several Persons For Attempting To Hijack Soviet Aircraft Were Sentenced To Death But It Was Reduced
To 15 Years Imprisonment After Appeal. These Persons Were Not Charged Under The Law For Hijacking The
Aircraft, But Under A Law Forbidding Departure From The Country Without Permission. A French Statute
Categorizes Hijacking Into Three, And Designated Appropriate Penalties For Each; For Simple Hijacking It Is
Five To Ten Years; If In The Course Of Hijacking Any Offender Injures Another Party, The Punishment Is 10
To 20 Years Imprisonment. In Case Of Any Death, Death Or Life Imprisonment, See; Lissitzyn, Oliver J;
International Control Of Aerial Hijacking Pp. 80-85.
61
Evans, Alona E, Comments, American Journal Of Inter* National Law Proceeding , Vol. 65, No. 4.
September 1971 P. 91.
62
Morlick, Gray, "The Public And Private International Response To Aircraft Hijacking;" Vanderbilt Journal Of
Transitional Law , Vol. 6, 1972 P. 164.
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 successful
seizure 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
inter- national 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 be
followed 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 is
to 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.64 Customary 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.

63
Hague Convention Article 4 Paragraph 3.
64
Oppenhein Lassa, F.L.: International Law, Longmans London, 1905, P. 696.
65
Draft Convention Of Extradition And Comments; Ameri - Can Journal Of International Law , Vol. 29, 1935,
Pp. 416-34.
66
Factor V. Lauben Leimer 290 Us 276 (1933) Quoted In Bishop W. W, International Law : Cases And
Materials , Little Brown And Co,Jboston, 1962, P. 471.
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 he
may 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 other
conditions 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

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

69
I.D. Johnston, Legislation, 5 New Zealand L. Rev. 307 (1973).
70
Sami Shuber, Aircraft Hijacking Under The Hague Convention, 22 I.C.L.Q. 725 (1973).
foundation of all similar future inter- national efforts pertaining to various categories of
terrorist offences.71

5. OTHER PROVISIONS
The 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 the
two 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 with
the 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

71
International Conventions On Aerial Hijacking: An Approach To Combat Terrorism, R. S. Rajput
72
Attempts At Ensuring Peace And Security In International Aviation, R.I.R. Abeyratne
73
Mankiewicz, Supra Note 48, At 209, In Attempts At Ensuring Peace And Security In International Aviation,
R.I.R. Abeyratne
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 unlawful
interference 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 of
the international community. A multilateral international convention had to be adopted which
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 the
framework 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:

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

75
Attempts At Ensuring Peace And Security In International Aviation, R.I.R. Abeyratne
76
Attempts At Ensuring Peace And Security In International Aviation, R.I.R. Abeyratne
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 aircraft
whether 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 or
would-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 Montreal
Convention, 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
Attempts At Ensuring Peace And Security In International Aviation, R.I.R. Abeyratne
78
Fitz Gerald, Towards Legal Suppression Of Acts Against Civil Aviation: International Conciliation No. 585
(November 1971) P. 75.
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
com- mitted 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 if
international 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 into
custody 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 and
Governments 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 air- craft offences. They called

79
Attempts At Ensuring Peace And Security In International Aviation, R.I.R. Abeyratne
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 a
meeting 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), the
signatories 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 scheduled
from 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.

80
International Conventions On Aerial Hijacking: An Approach To Combat Terrorism, R. S. Rajput
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 and
guidance 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 would
have 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
resolution urging its Member States to expedite current research and development on
detection of explosives and on security equipment during its regular session meeting in
February 1989.

Also deeply concerned about preventing terrorist bombing of aircraft, the UN Security
Council (SC) met on 14 June 1989 to discuss the marking of plastic or sheet explosives for
the purpose of detection. On the same day, the SC unanimously adopted Resolution 635
condemning all acts of unlawful interference against the security of civil aviation and calling
on Member States to co-operate in devising and implementing measures to prevent all acts of
terrorism, including those involving explosives. The SC urged the ICAO to intensify its work

81
International Conventions On Aerial Hijacking: An Approach To Combat Terrorism, R. S. Rajput
to prevent all acts of terrorism against international civil aviation, and in particular its work
on devising an international regime for the marking of plastic or sheet explosives for the
purpose of detection. Also in June, the ICAO Council decided to include preparation of a new
legal instrument regarding the marking of explosives for detect ability as a priority in the
general work program of the Legal Committee.

From 9-19 January 1990, the ICAO Sub-Committee for the Preparation of a New Legal
Instrument Regarding the Marking of Plastic Explosives for Detectability met in Montreal,
Canada and drafted a new international agreement to ensure that plastic explosives were
marked with an additive to enhance their Detectability. The ICAO Legal Committee
considered this draft during its 27th session, which met from 27 March-12 April. This
meeting resulted in a final text of six articles for a draft convention. From 12 February-1
March 1991, the International Conference on Air Law met in Montreal to consider the draft
articles prepared by the ICAO Legal Committee in 1990. The Conference adopted the
Convention by consensus and without a vote. By the end of the year, 45 States had signed the
Convention and one State had submitted an instrument of approval.

Obligations: This Convention calls on States Parties to take the necessary and effective
measures to prohibit and prevent the manufacture of unmarked explosives in their territories,
to prevent the movement of such explosives into or out of their territory, to exercise strict
control over the possession and transfer of unmarked explosives made or imported prior to
the entry into force of the Convention, to ensure that all stocks not held by the military or
police are destroyed or consumed, marked, or rendered permanently ineffective within three
years of the Conventions entry into force, with respect to a State, and to ensure the timely
destruction of any unmarked explosives manufactured after the entry into force of the
Convention for that State. States Parties agree to mark plastic explosives with a chemical
agent that can be detected by commercially available vapour or particle trace detectors and/or
canines. There are four such chemical agents identified in the Convention. All plastic
explosives have to be marked by the manufacturers with any one of four detection agents
agreed upon by the conference. The convention also provided that within three years, plastic
explosive stock not specifically held for military or police functions are to be destroyed, used
or rendered ineffective. Those for military or police functions are to be similarly disposed of
within 15 years.

Compliance and Enforcement: The Convention establishes an International Explosives


Technical Commission composed of members appointed by the Council of the International
Civil Aviation Organization (based on nominations of States Parties to the Convention). The
parameters for membership allow between 15 and 19 experts with direct experience in
matters relating to the manufacture, detection of, or research in explosives. Members will
serve three-year renewable terms. Sessions of the Commission shall be convened at least
once a year at the ICAO Head-quarters or as directed or approved by the ICAO Council. The
Commission is tasked with evaluating technical developments relating to the manufacture,
marking, and detection of explosives, reporting findings to the States Parties and international
organizations involved, and making recommendations for amendments to the Technical
Annex to the Convention. Under Article 13, States are requested to declare whether they are
producer States when depositing their instruments of ratification, acceptance, approval, or
accession.82

Though they were successful in containing to some extent the aircraft hijacking but the act of
hijacking has not been suppressed altogether. It was submitted that in order to suppress
hijacking first and immediate task before those states which have not yet become parties to
the above conventions is to ratify or accede to the conventions. Secondly, suggestion for the
creation of the International Court of Criminal Justice or an International Tribunal83 was also
given. Such a court is likely to defend the interests of all the people and nations. Thirdly, co-
operation amongst the states is of foremost important aspect in curbing the air hijacking. Co-
operation is required in returning the aircraft, crew and passengers as soon as possible and in
providing facilities and assistance in resuming the air flight without causing much delay.
Fourthly, the principle of prosecution or extradition is required to be strictly followed. In case
of prosecution, punishment is required to be serious and a wide publicity should be given so
that it may have deterrent effect. Fifthly, security system at national airports must be made
more effective. The security system may include careful checking of passengers lists, the
magnetometer84 to detect weapons, armed guards, armed flight crew, non-access to the flight
deck and concealed trap door on the threshold of the crew door over which the hijacker might
be maneuvered.

5.6 CONVENTION ON THE SUPRESSION OF UNLAWFUL ACTS RELATING TO


INTERNATIONAL CIVIL AVIATION OR BEIJING CONVENTION 2010:

Introduction85
On September 10, 2010, the Diplomatic Conference on Aviation Security, organized under
the auspices of the International Civil Aviation Organization ("ICAO"), adopted two new
aviation counter-terrorism instrumentsthe Beijing Convention, replacing the Convention on
the Suppression of Unlawful Acts Relating to International Civil Aviation 1971 (known as
the Montreal Convention), and the Beijing Protocol, amending the Convention for the
Suppression of Unlawful Seizure of Aircraft 1970 (known as the Hague Convention).86 The
new instruments update the existing conventions in light of the September 11, 2001 terrorist
attacks and developments in counter-terrorism law over recent decades. The Beijing
Convention provides for key new offenses of using an aircraft as a weapon (such as occurred
on September 11), using weapons of mass destruction or dangerous substances against, on, or
from an aircraft, and transporting dangerous materials. The instruments also provide for new
ancillary offenses, expanded jurisdiction, and strengthened extradition and mutual assistance
regimes. These developments aim to ensure that a wider range of perpetrators can be brought
to justice in aviation-related terrorist or proliferation activities than is currently possible. The

82
Also See, www.un.org/en/sc/ctc/docs/conventions/Conv10.pdf
83
Proposal was made by the former Secretary-General of the United Nations U Thant on September 14, 1970
for the trial of hijackers by an International Tribunal.
84
Also See, http://www.securitymanagement.com/article/new-views-airport-screening-004586?page=0%2C1
85
September 11 Inspired Aviation Counter-terrorism Convention and Protocol Adopted, Damien van der Toorn
86
These instruments are available at www.icao.int/DCAS2010.
instruments are part of a series of UN conventions aimed at combating international
terrorism. This Insight provides background on the development of these new instruments
and describes their key provisions.

Impetus and Process for Review of the Montreal and Hague Conventions
The proposals before the Diplomatic Conference were developed through a review of the
Montreal and Hague Conventions in a series of ICAO meetings commencing in 2007 and
involving key states. The review was sparked by the September 11 attacks. It concluded that
the existing international regime did not cover notable aspects of these attacksfor instance,
the use of an aircraft to cause death and destruction; other types of foreseeable terrorist acts,
such as the use of weapons of mass destruction onboard, from, or against aircraft; and
ancillary offenses, such as organizing or conspiring to commit such offenses.

Delegations also proposed to update the Conventions to take into account developments in
international criminal and counter-terrorism law since the 1970sfor instance, to exclude the
activities of armed forces from the Conventions scope, to add jurisdictional grounds, and to
insert extradition safeguards. During these preparatory meetings, Australia, supported by
several other states, proposed that the transport of weapons of mass destruction and other
dangerous materials by civil aircraft be criminalized. Several states also suggested that
providing assistance to fugitives following the commission of an offense is criminalized.
These proposals were referred to the Diplomatic Conference.

Negotiation of the Amendments to the Montreal and Hague Conventions


Seventy-one states attended the Diplomatic Conference.87 The negotiations focused on issues
that had been most controversial in the preparatory ICAO sessions: inclusion of a transport of
dangerous materials offense and addition of a provision excluding the activities of armed
forces in armed conflicts from the scope of the Conventions. Other key issues were the
inclusion of an offense criminalizing assistance to fugitives and the form of the new
instruments. Several of these issues were referred to working groups. In the transport-of-
dangerous-materials working group, the African group and India raised concerns relating to
the need to preserve rights under the Nuclear Non-proliferation Treaty88 ("NPT"). After
extensive discussions, the working group developed a compromise text attempting to balance
the concerns of its major members. India still objected, arguing that it considered the text
discriminatory against non-parties to the NPT.
The activities-of-armed-forces working group was unable to reach a compromise. The
majority of states in this group focused on exempting the activities of armed forces from the
scope of the Conventions in favour of international humanitarian law ("IHL"), which would
instead govern the conduct of armed forces during armed conflict. However, the Middle East

87
See Diplomatic Conference on Aviation Security, Aug. 30-Sept. 10, 2010, Final Act of the International
Conference on Air Law (Sept. 10, 2010), available at,
http://www.icao.int/DCAS2010 /restr/docs/beijing_final_act_multi.pdf.
88
Treaty on the Non-Proliferation of Nuclear Weapons opened for signature July 1, 1968, 21 U.S.T. 483, 729
U.N.T.S. 161.
group argued that both the Conventions and IHL should apply to this type of conduct. These
differing views could not be reconciled. The Middle East group continually blocked
consensus on this issue when it was returned to the Conference. The assistance-to-fugitives
working group quickly reached a compromise provision, later unanimously accepted by the
majority. Meanwhile, the plenary debated the form of the instruments, with no consensus.
After wrapping up the working groups, the Chairman then proposed an overall compromise
to the Conference, including new principal offenses (e.g., the transport offense), an
exemption for the activities of armed forces, and a new Beijing Convention to replace the
amended Montreal Convention. The Middle East group, India, and Pakistan opposed this
proposal. The matter proceeded to a vote, where the requisite majority adopted the
instruments.

Overview of the Amendments to the Montreal and Hague Conventions

New Principal Offenses


The Beijing Convention includes several new principal offenses. The first criminalizes the
use of a civil aircraft to cause death, serious bodily injury, or serious damage to property or
the environment.89 In other words, using aircraft as a weapon is now a specific offense. This
would cover such conduct as flying an aircraft into a building as occurred in the September
11 attacks. The second new offense criminalizes the releasing or discharging from a civil
aircraft any biological, chemical, or nuclear ("BCN") weapon or explosive, radioactive or
similar substances in a manner that is likely to cause death, serious bodily injury, or serious
damage to property or the environment.90 The third new offense is similar to the second, but
specifically criminalizes the use of the same dangerous items against or on board a civil
aircraft. In this scenario, the target is the actual aircraft and the persons on board, rather than
anything outside the aircraft. This is a situation that has occurred with some frequency over
the recent years.91 A major development is the inclusion of a provision criminalizing the
transport of dangerous materialssuch as explosive or radioactive material, a BCN weapon,
or source or special fissionable materialif proof is shown of specific mental elements in
relation to the transport of each type of dangerous material. For instance, the provision makes
an individual liable under this offense if the person transported the explosive or radioactive
materials knowing they will be used for a terrorist purpose, or if the person transported source
or special fissionable material knowing that they will be used in a nuclear explosive activity.
These requirements restrict the scope of the offenses to cover only transport connected with
illicit proliferation or terrorism. The changes also preserve the rights of states parties to the

89
Convention on the Suppression of Unlawful Acts Related to International Civil Aviation art. 1(1)(f), Sept. 10,
2010, available at http://www.icao.int/DCAS2010/restr/docs/beijing_convention_multi.pdf [hereinafter Beijing
Convention].
90
Id. Art. 1(1)(g), September 11 Inspired Aviation Counter-terrorism Convention and Protocol Adopted,
Damien van der Toorn
91
See, e.g., Anahad OConnor & Eric Schmitt, Terror Attempt Seen as Man Tries to Ignite Device on Jet, N.Y.
TIMES, Dec. 25, 2009, available at http://www.nytimes.com/2009/12/26/us/26plane.html (discussing the
attempted bombing of Northwest Airlines Flight 253 on December 25, 2009).
NPT, ensuring that state officials are not prosecuted for transporting nuclear materials as
permitted by the NPT.92
For those not party to the NPT, the offense will apply, except that transport of source or
special fissionable material is permitted if done pursuant to a safeguards agreement
concluded with the International Atomic Energy Agency. This includes comprehensive, as
well as voluntary or facility-specific, safeguards agreements. The rationale for the transport
offense is to deter and punish movement of materials of proliferation around the world by air
into the hands of state or non-state actors in circumstances that would pose a threat to
international peace and security. The offense parallels a similar transport offense contained in
the 2005 Protocol to the Convention for the Suppression of Unlawful Acts.93
Accordingly, transportation of these materials by sea or air is now an international criminal
offense subject to the extradition or prosecution requirements of the Convention.

New Ancillary and Inchoate Offenses


The Beijing Convention and Protocol include several new ancillary and inchoate offenses.
They provide that it is an offense to directly or indirectly threaten to commit one or more of
the principal offenses,94 or to organize or direct the commission of an offense.95 These
provisions are meant to harmonize recent UN counter-terrorism conventions. In addition, the
instruments include a fugitives offense which criminalizes any assistance to persons
evading investigation, prosecution, or punishment, knowing that he or she has committed one
of the offenses or is wanted for prosecution or to serve a sentence.96 This crime is akin to an
accessory after the fact offense known to many common law jurisdictions and will help
restrict the movement of those seeking to flee states where they may face prosecution. The
instruments also incorporate a conspiracy or association de malfaiteurs offense which
criminalizes the planning of an offense in conjunction with others97reflecting both the
common law and civil law traditions. This is the first time a UN counter-terrorism convention
has included such a provision. It is designed to allow enforcement officers to apprehend and
prosecute offenders before terrorist attacks can be carried out.

Expanded Jurisdiction
Both the Beijing Convention and Protocol include nationality of the offender as a mandatory
ground for jurisdiction for states parties.98 This will help to expand the extra-territorial scope
of the instruments and ensure that a greater number of states parties will have jurisdiction to

92
Beijing Convention, supra note 4, arts. 1(1)(i), and 7.
93
Protocol of 2005 to the Convention for the Suppression of Unlawful Acts (SUA) Against the Safety of
Maritime Navigation art. 3, opened for signature Oct. 14, 2005, IMO Doc. LEG/CONF.15/21 (entered into
force July 28, 2010).
94
Beijing Convention, supra note 4, art. 1(3); Protocol to the Convention for the Suppression of Unlawful
Seizure of Aircraft art. 1(2), Sept. 10, 2010, available at
http://www.icao.int/DCAS2010/restr/docs/beijing_protocol_multi.pdf [hereinafter Beijing Protocol].
95
Beijing Convention, supra note 4, art. 1(4)(b); Beijing Protocol, supra note 9, art. 1(3)(b).
96
Beijing Convention, supra note 4, art.1(4)(d); Beijing Protocol, supra note 9, art. 1(3)(d).
97
Beijing Convention, supra note 4, art. 1(5); Beijing Protocol, supra note 9, art. 1(4).
98
Beijing Convention, supra note 4, art. 8(1)(e); Beijing Protocol, supra note 9, art. 4(1)(e).
prosecute or extradite known offenders. The instruments also include optional jurisdiction on
the basis of nationality of the victims of offenses.99

Activities of Armed Forces


The Beijing Convention and Protocol exclude from their scope the activities of armed forces
during an armed conflict.100 This provision was the most controversial aspect of the
negotiations. Essentially, it means that members of armed forces cannot be prosecuted if they
undertake an act that would amount to an offense under the instruments. For example, the use
of a bomb against a civil airliner by military forces during an armed conflict could not be
prosecuted under the Beijing Convention. However, if this conduct amounted to a violation
of IHL (because it was not a legitimate military objective), then it could be prosecuted under
that body of law.

Extradition Safeguards
The instruments include new provisions aimed at supporting extradition and mutual legal
assistance obligations. In particular, none of the offenses can be considered a political
offense in order to avoid these obligations.101 However, no state may be compelled to
extradite a person or provide mutual legal assistance if there are substantial grounds to
believe that it would lead to prosecution on discriminatory grounds.102

Entry into Force


The Beijing Convention and Protocol will enter into force two months after the twenty
second ratification.103

Implications
The adoption of the Beijing Convention and Protocol is a significant development in
international counter-terrorism and aviation law. The new principal offenses combined with
the ancillary offenses, expanded jurisdiction, and strengthened extradition and mutual
assistance regimes will help to ensure that a range of individuals can be brought to justice for
their role in terrorist or proliferation activitiesincluding those who participate before,
during, and after such acts. If the instruments are widely accepted, they can help prevent a
repetition of the September 11 attacks.

6. SOME CASES OR INCIDENTS OF HIJACKINGS:

El Al Flight 426 (1968): El Al Airlines, based in Israel, has always been a target for
prospective hijackers. For that reason, it has taken thorough measures in recent decades to
ensure passenger safety, and as a result, its one of the safest airlines around. Its biggest
99
Beijing Convention, supra note 4, art. 8(2)(a); Beijing Protocol, supra note 9, art. 4(2)(a).
100
Beijing Convention, supra note 4, art. 6; Beijing Protocol, supra note 9, art. 3bis.
101
Beijing Convention, supra note 4, art. 13; Beijing Protocol, supra note 9, art. 8bis.
102
Beijing Convention, supra note 4, art. 14; Beijing Protocol, supra note 9, art. 8ter.
103
Beijing Convention, supra note 4, art. 22; Beijing Protocol, supra note 9, art. XXIII.
blemish, one that changed its procedures for the better, occurred when Flight 426 was
commandeered by three members of the Popular Front for the Liberation of Palestine (PFLP).
Initially travelling from London to Rome, the plane was diverted to Algiers, where war had
been declared on Israel a year earlier. All Non-Israeli passengers were released, leaving 12
Israeli passengers 10 women and children were released at the end of the week and the
crew of 10. It took 40 days of negotiations to reach an agreement, and everyone including
the hijackers were freed. A conflict between Israel and Algiers couldve resulted without a
resolution.
Dawsons Field Hijackings (1970): In a single day, four planes were simultaneously seized
by the PFLP gunmen, who forced two to fly to Dawsons Field in the Jordanian desert. All
310 passengers were freed, but Jewish passengers and the flight crews consisting of 56
members were kept behind. Expecting a hostile effort to free the hostages, the Popular Front
for the Liberation of Palestine (PFLP) blew up the empty planes, demanding the release of
the body of Patrick Arguello and the detained Leila Khaled, both of whom failed in their
attempt to hijack El Al Flight 219. Conditions were met, and a conflict ensued between
Hashemite King Hussein of Jordan and Palestinians known as Black September.
Air France Flight 139 (1976): Six years after the Dawsons Field incident, two members of
the PFLP and two members of German Revolutionary Cells took control of Air France Flight
139 en route from Athens to Paris and diverted it to Benghazi, Libya. After releasing a female
hostage who was pretending to have a miscarriage, the 247 remaining passengers and crew of
12 were taken to Entebbe Airport in Uganda, where four more hijackers joined the effort.
Demanding the release of 40 Palestinians detained in Israel and 13 in other countries, they
threatened to kill hostages if they were ignored. Operation Entebbe followed, as 100 elite
commandos from Israel travelled to the site and stormed the scene amid a haze of gunfire to
rescue the hostages. When the smoke cleared, three passengers, an Israeli commando and 45
Ugandan soldiers were killed. One passenger who was at the hospital was later murdered.
Overall, 105 passengers were saved.
Lufthansa Flight 181 (1977): Destined from Palma de Mallorca to Frankfurt Lufthansa with
86 passengers and five crew members aboard, Lufthansa Flight 181 was hijacked in midair
by four militant Palestinians members of the PFLP who called themselves "Commando
Martyr Halime." One invaded the cockpit with a pistol and demanded the flight to Larnaca,
Cyprus, but it was diverted to Rome due to insufficient fuel. After travelling to Cyprus,
Bahrain, Dubai and Aden, it settled in Mogadishu, and Operation Feuerzauber, primarily
undertaken by West German counter-terrorism group GSG 9, resulted in a hostile raid of the
plane and the killing of two hijackers and the injuring of the others, one of whom was
mortally wounded. All 86 passengers survived.
Malaysia Airlines Flight 653 (1977): The hijacking of Malaysia Airlines Flight 653 remains
a mystery more than three decades later. Not long after departing Penang for Kuala Lumpur,
Captain G.K. Ganjoor reported an "unidentified hijacker" was aboard and later reported they
were "proceeding to Singapore." Eventually all communication was lost, and the plane
crashed in Kampong Ladang, Tanjong Kupang, killing all seven crew members and 93
passengers, including Malaysian Public Works Department Head Dato Mahfuz Khalid,
Malaysian Agricultural Minister Dato Ali Haji Ahmadand, and Cuban Ambassador to Japan
Mario Garcia. Some suspected that a member of the Japanese Red Army was to blame,
though no evidence exists to prove it.
TWA Flight 847 (1985): Six members of Hezbollah and Islamic Jihad were responsible for
the infamous two-week ordeal involving TWA Flight 847. En route from Athens to Rome,
the plane was overtaken just after takeoff and diverted to Beirut, where 19 passengers were
released, and Algiers, where 20 passengers were released. The plane returned to Beirut, and
the hijackers proceeded to single out United States Navy Seabee diver Robert Stethem, beat
him, fatally shoot him and dump his body onto the ramp. Seven American passengers with
Jewish-sounding names were removed from the plane and held hostage elsewhere in Beirut.
The plane travelled back to Algiers, released 65 passengers, and returned to Beirut. The
hijackers made several demands, including the release of the "Kuwait 17" involved in the
1983 bombing of the U.S. embassy in Kuwait and international condemnation of the U.S. and
Israel. Eventually, the 40 remaining hostages were released and nobody else was harmed.
EgyptAir Flight 648 (1985): Remembered as one of the worlds bloodiest and scariest plane
hijackings, the events aboard EgyptAir Flight 648 will forever serve as a reminder of how not
to deal with terrorists. After three Palestinian members of the Abu Nidal Organization took
control of the plane destined from Athens to Cairo, an Egyptian Security Service member
opened fire, killing one of the hijackers. In return, he was shot dozens of times and killed. As
a result of the exchange of bullets, the fuselage of the plane was punctured, and the pilot was
forced to descend so that everyone on board could breathe. Low on fuel, the plane landed in
Malta against the wishes of Maltese authorities, and a stand-off commenced. Eleven
passengers and two injured flight attendants were released, but Maltese Prime Minister
Karmenu Mifsud Bonnicis hard-line approach resulted in the execution of two American
passengers. Egyptian commandos later stormed the plane, causing a chaotic, fiery scene
from either the explosives from the commandos or grenades from the terrorists in which
56 of the 88 remaining passengers were killed. Sixty of the 92 passengers initially on board
were killed.
Pan Am Flight 73 (1986): While preparing to depart for Frankfurt from Karachi, Pakistan,
four members of the Abu Nidal Organization, dressed as Karachi airport security guards,
hijacked Pan Am Flight 73. The crew immediately escaped through an overhead hatch in the
cockpit, grounding the plane. In response, an Indian-American passenger was executed after
demands that the crew return to the plane werent met. Later, as the plane sat in darkness
without power and Pakistani authorities prepared to storm in, a grenade was tossed and
random shooting began. In the end, 20 passengers will killed, but many escaped due in part to
the heroics of 22-year-old flight purser Neerja Bhanot, who helped them off the plane and
shielded three children from bullets.
Iraqi Airways Flight 163 (1986): Air safety was a major concern in the Middle East in the
mid-1980s, as deadly hijackings were becoming more common see the previous three
paragraphs. Iraqi Airways Flight 163, travelling from Baghdad to Amman with 91 passengers
and 15 crew members, was taken by four men affiliated with Hezbollah. Security personnel
immediately attempted to neutralize them, but they responded by detonating grenades in the
passenger cabin and cockpit, causing the plane to crash near Arar, Saudi Arabia. Sixty
passengers and three crew members died.
Ethiopian Airlines Flight 961 (1996): Captured on camera by a South African honeymooner
on a beach in the Comoros Islands, the video of the descent and crash of Ethiopian Airlines
Flight 961 stunned the world. It was hijacked by three nervous and disorganized Ethiopians
who were seeking political asylum in Australia. Knowing he didnt have enough fuel to make
such a trip, Captain Leul Abate travelled toward the Comoros Islands, hoping to find an
available runway. When both engines failed, he was unable to locate Prince Said Ibrahim
International Airport and was forced to ditch in shallow waters. Numerous residents and
tourists swam to the aid of the passengers. Even still, the ordeal was costly, as 122 of the 172
passengers and crew members died.
Northwest Orient Airlines Flight 305: In what would become the only still unsolved
hijacking case in US history, on November 24, 1971 the now famous DB Cooper hijacked a
Northwest Orient Airlines flight, a Boeing 727-100 which was flying from Portland, OR to
Seattle WA. The hijacker checked in as Dale Cooper, paying cash for his ticket. He
boarded the airplane and hijacked it. When the first news wire reporter from the Washington
area picked up on the unfolding hijacking over police radio, he asked if the police had a name
for a suspect. In fact, they did. The police had interviewed the man who sold Cooper the
ticket and asked him if any of the passengers looked suspicious. Without hesitating, the
airline employee responded yes, Dale Cooper. The police told the news reporter the
suspects name was D. Cooper. The reporter asked if that was a D or a B? The person
responded, Yes. And thus the legend of DB Cooper was born.

On board the plane, shortly after takeoff, Cooper claimed to have a bomb in his briefcase and,
showing it to an airline stewardess, it sure looked convincing with red sticks that may or may
not have been dynamite, and a battery and lots of wire. The pilots took the threat seriously
and the owner of the airline agreed to Coopers demands $200,000 cash, any denomination,
in a satchel, plus two front and two rear parachutes (plus food for the flight crew). This was
to be delivered to the plane when it landed and was refuelled. Marked $20 bills were loaded
into a satchel and handed over to the stewardess who delivered the money to Cooper. The
entire time Cooper remained mostly calm and congenial at the rear of the plane. At no time
did he harm anyone on board.

Everyone but the flight crew and the stewardess were allowed to leave the plane. Cooper
gave orders for the plane to take off and fly south towards Reno at no more than 10,000 feet
and with the hydraulically operated rear staircase lowered and extended. The plane could not
take off with the rear staircase deployed so Cooper allowed the flight crew to take off with it
raised and secured. Somewhere over the woods of Oregon/Washington, Cooper opened the
rear staircase and jumped out with his parachutes and cash the cash strapped to his chest
with the cords of one of the parachutes. It was dark and though other planes were trying to
tail the hijacked plane, no one actually saw Cooper jump. Cooper had forced the flight crew
to stay forward behind the drawn first class curtain so they too did not see Cooper jump.
Therefore, no one could say the exact time Cooper bailed out. The best estimate was he
jumped at 8:13PM but given the many changes in the flights air speed, the bad weather, and
other factors, the search area for Cooper was huge, well over a hundred square miles of some
of the most inaccessible and rugged terrain in the continental United States. The search
turned up no trace of Cooper or the money.

In February 1980, an eight year-old boy named Brian Ingram, vacationing with his family on
the Columbia River about 9 miles downstream from Vancouver, Washington uncovered three
packets of the ransom cash, significantly disintegrated but still bundled in rubber bands. FBI
technicians confirmed that the money was indeed a portion of the ransom. The boy and his
family sue to get the money they found and the judge rewards them half of it. Later, needing
alimony money, a now grown Brian sells some of the Cooper loot to raise needed funds. No
other traces of Cooper have so far been found.

Did he survive the jump? Some believe he did. Later tests by the FBI demonstrated that it
was possible to jump from the rear staircase platform of a 727 and survive. Others believe he
jumped out of the plane at a different point than the FBI originally calculated and landed in
the Columbia River and drowned. There, some of the money washed up on the beach where
young Brian discovered it. Others believe Cooper lost the money in midair or landed with it
and stashed it in the ground. Later, rain carried the money down creeks that flow into the
river. But whatever his fate, DB Cooper became an American folk hero.

Air India Flight 182: This flight was travelling from Canada to India on the 23 June 1985.
While this airline was flying over the Atlantic Ocean, the air plane got blown up by a secretly
planted bomb in the airline, leading to the flight go straight crashing into the Atlantic Ocean.
This incident remains one of the most impactful and dangerous air plane hijacking in the
Canadian history as a totally number of 329 people were killed, all the passengers comprising
of 280 Canadians, 22 Indians and about 27 British population. When this air hijack took
place, not much was known of the reason and cause behind this accident. But after almost 20
years of investigation, it was apparently claimed that this hijack terrorism was done by a Sikh
group staying in Canada.

Destruction of Pan American and UTA Flights:

Destruction of the two civilian aircrafts- Pan American flight on December 21, 1988 and the
Union Transport Aeriens (UTA) flight on September 12, 1989 are two incidents that shook
the world. While 270 persons were killed in the Pan American flight which exploded over
Lockerbie (Scotland), on December 21, 1988, 170 persons died in UTA explosions in Niger
on September 19, 1989. Persons responsible for the destruction of the above were suspected
to be Libyans. The Security Council unanimously condemned the destruction of the two
civilian aircrafts and the resultant loss of life. The council requested the Libyan government
to co-operate fully in establishing responsibility for the terrorist acts that led to the
destruction of the aircrafts. Libya was urged immediately to provide a full and effective
response to those requests so as to constitute to the elimination of international terrorism.104

When the Libyan government did not respond to the request for co-operation in establishing
responsibility for those terrorist acts, the Security Council on March 31, 1992 imposed aerial
embargo against Libya105 under Article 41 of the U.N. Charter which became effective from
April 15, 1992. The Council also decided to establish a committee consisting of all the
members of the council to consider and decide on any application by states for approval of
the flights on grounds of significant humanitarian needs.106 Member states were asked to
report to the Secretary-General by May 15, 1992 on measures instituted by them to meet their
obligations under the resolution. The Council decided that it would review the sanction every
120 days or sooner should the situation so requires.

The above action of the Security Council got a favourable response from Libya. On May,
1992 Libya informed the Secretary-General107 that it accepted Resolution 731 and decided
that it definitely renounces all forms of international terrorism of whatever origin. Libya
also told the Secretary-General that it would undertake to deport from its territory any person
who was proved to be involved in terrorist act.108 When Libya did not co-operate with the
authorities in establishing responsibility, the Security Council on November 11, 1993
imposed new sanctions against Libya, widening the air and arms embargo109 which came into
force from December 1, 1993. However, when the Secretary-General informed the Council
that the two Libyan suspects arrived in Netherlands to stand Trial under Scottish Law and
when the Libyan Government satisfied the French authorities investigating the 1989 bombing
of UTA Flight 772, the Security Council on April 5, 1999 suspended the sanction imposed
against Libya.

The Scottish Court on January 31, 2001 while convicted Abdel Basset Ali al-Megrahi of
murder, another Libyan, Lamen Khalifa Fhimah was found innocent and was acquitted. Both
decisions were unanimous.

7. AIRCRAFT HIJACKING AND INDIA:

India is a party to the three conventions, namely Tokyo Convention, The Hague Convention
and The Montreal Convention. In order to give order to the conventions, enabling legislatures
have been enacted by the parliament which is as follows:

104
Security Council Resolution 731 (1992), January 21, 1992.
105
Security Council Resolution 748 (1992), dated March 31, 1992.
106
The Committee was established on April 25, 1992 to handle issues relating to the implementation of
sanctions against Libya.
107
S/23918.
108
S/23917.
109
Security Council Resolution 883 (1993) Dated November 11, 1993. The resolution was adopted by a vote of
11 to none with 4 abstentions.
I. The Tokyo Convention Act was enacted on May 8, 1975 to give effect to the Tokyo
Convention.
II. Anti Hijacking Act was enacted on November 6, 1982 to give effect to The Hague
Convention.110
III. The Suppression of Unlawful Acts Against Safety of Civil Aviation Act was enacted
on November 6, 1982 to give effect to the Montreal Convention.111

Hijackings in India:

STATISTICS OF THE NUMBER OF AIRCRAFT HIJACKINGS:112

DECADE NUMBER OF INTERNATIONAL AND


DOMESTIC HIJACKINGS
1942-1952 19
1952-1962 36
1962-1972 262
1972-1982 282
1982-1992 221
1992-2002 176
2002-2012 46

8. CONCLUSION

Aircraft hijacking is committed on board an aircraft in flight. It is committed with the use of
force or threat of force or by any other form of intimidation. It is committed against those
who exercise control over the aircraft, and the purpose of hijacking is to achieve certain aims
or to reach a desired destination. Aircraft hijacking is an unlawful act. It should be highly
condemned in order to maintain peace and security in the world and also for better relations
between countries. It is an attack on international order and injures the international
community as a whole. Therefore, world leaders should come together against this brutal act
and vigil that the protocols and conventions are strictly adhered to and implemented in their
real sense. Only then can we expect a peaceful world, free of such terrorist activities.

110
In 1994 Anti Hijacking Act was enacted (Act 30 of 1994). However it was replace in 2001 (Act 30 of 2001)
111
In 1994 Suppression of Unlawful Acts Against Safety of Civil Aviation (Amendment) Act was enacted (Act
40 of 1994). However, the Act was repealed in 2001 (Act 30 of 2001) by the Repealing and Amending Act 2001
enacted on September 3, 2001.
112
See also, http://aviation-safety.net/statistics/period/stats.php?cat=H2.