By Soumya Singh Chauhan, UILS, Chandigarh
“Editor’s Note: This paper deals with the phenomenon of aircraft hijacking- taking control of an aircraft by hostile forces for ransom or some other demands. It analyses the different international conventions that have been put in place to curb the menace of aircraft hijacking. It also discusses the loopholes in these protocols and suggests how they can be mended. The paper also deals with the September 11 attack on the World Trade Centre and Pentagon, to highlight the necessity of devising effective means to stop this practice.”
Aircraft hijacking is the unlawful seizure of an aircraft by an individual or a group. In most cases, the pilot is forced to fly according to the orders of the hijackers. Occasionally, however, the hijackers have flown the aircraft themselves, such as the September 9 attack of 2001. Skyjacking is not usually committed for robbery or theft. Most aircraft hijackers intend to use the passengers as hostages, either for monetary ransom or for some political or administrative concession by authorities. Motives vary from demanding the release of certain inmates, to highlighting the grievances of a particular community. Hijackers also have used aircraft as a weapon to target particular locations, notably during the 9/11 attacks.
According to Alone E. Evans, aircraft hijacking is a contemporary addition to the roster of international and national crimes and the necessity for its control at international and national level is only beginning to be recognized by the States.
The increase in the number of incidents of hijacking and increase in the dangers against the safety of the flights of aircrafts presents grave problems before the international community and particularly before the International Civil Aviation Organization. In order to solve this problem and punish the hijackers several Conventions have been adopted.
The Tokyo Convention, 1963
The Convention on Offences and Certain Other Acts Committed on Board Aircraft was signed at Tokyo in a diplomatic conference on September 14, 1963. It came into force on December 4, 1969.
The Tokyo Convention as stipulated under Article 1 Clause (1) covers:
- Offences against penal law;
- Acts which, whether or not they are offences, may or do jeopardize good order and discipline on board.[i]
The applicability of the Convention has been elaborated in Article 1 Clause (2) which provides that:
“The Convention shall apply in respect of offences committed or acts done by a person on board any aircraft registered in a Contracting State, while that aircraft is in flight or on the surface of the high seas or of any other areas outside the territory of any State.”[ii]
Article 1 Clause (4) exempts the application of the Convention to aircraft in military, customs or police services.[iii]
The Convention forbids forceful seizure of civil aircraft in flight and as in Article 11, charges the Contracting States with the duty of restoring such aircraft and cargo to the rightful owners and facilitating resumption of the interrupted flight.[iv]
The Tokyo Convention suffers from a number of deficiencies.
- The convention neither defines the term hijacking nor makes an effort to deal with an offence itself presumably because the act of hijacking was not regarded as a crime. It simply lays down what would be the consequences if hijacking takes place.
- The Convention does not extend to domestic airlines (except when the airlines pass over the high seas but linking cities of the State of registration).
- There is an absence of the provision regarding clearly formulated principle of inescapable punishment. There is no prescription of adequate punitive measures. The main emphasis is on restoration of property and resumption of flight. The offender may be taken into custody by the Contracting State which may initiate criminal proceeding or extradite the offender, but neither action is mandatory. Article 16 makes it clear that it does not create an obligation to grant extradition.
- Exclusive rights given to flight commanders for protecting the aircraft and imposing restraints on the offenders are to some extent unjustifiable.
The Hague Convention, 1970
Increase in the number of incidents relating to hijacking and the shortcomings of the Tokyo Convention compelled the States to think and take some effective measures to solve the problem and to give deterrent punishment to hijackers. This process started in September 1968 when the International Civil Aviation Organization Council was asked to study the problem of hijacking, leading to the adoption of the Hague Convention, 1970, i.e., the Convention for the Suppression of Unlawful Seizure of Aircraft. After having been ratified by the prescribed number of States, The Hague Convention came into force on October 17, 1971.
Article 1 defines the offences that may be covered by the Convention. It says
Any person who onboard an aircraft in flight:
- Unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or exercises control of, that aircraft, or attempts to perform any such act, or
- Is an accomplice of a person who performs or attempts to perform such an act, commits an offence.
Thus, in addition to actual wrongdoer, his accomplice also would be deemed guilty of the offence under the Convention.
Article 2 of the Convention states that each contracting state is required to make the offence punishable by severe penalties.
The Convention applies in international as well as domestic flights. Further, the Convention applies in case of forced landing.
The Convention also stipulates regarding the extradition of offenders. Article 8 says that “the offence shall be deemed to be included as an extraditable offence in any extradition treaty”, and it shall be an obligation of the Contracting States to include the offence as an extraditable offence in every future treaty. Thus, the Convention may be considered as constituting an extradition treaty in respect of the offence amongst the Contracting Parties. The provision implies that the offence of hijacking shall not be deemed to as a political offence. The offender will have to be extradited even if the offence has been committed for political gain. However, the Convention also provides that “the extradition shall be subject to other conditions provided by the law of the requested State.” In other words, extradition has to be made in accordance with the existing law of extradition of the requesting State.
Provisions of the Convention show that it is devoted largely to the problem of hijacking of aircraft. However the scope of the Convention is not as wide as it should be.
- The Convention protects only an aircraft in flight.
- An act is qualified as an offence only when a person on board this particular aircraft commits it.
- The Convention does not provide any relief for the damage caused to passengers and goods.
- The Convention failed to recognize, like the Tokyo Convention, that hijacking is a crime under International Law. Merely treating the various acts of hijacking as offence is not likely to serve any useful purpose.
However, the Convention is a firm improvement in the law of aircraft hijacking.
Montreal Convention, 1971
The Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation was adopted on September 23, 1971 at a diplomatic conference in Montreal. The Convention came into force on December 14, 1973
The Convention under Article 1 enumerates the following unlawful acts as offences for the purposes of the convention, viz., act of violence against a person on board an aircraft in flight, if that act is likely to endanger the safety of the aircraft; destroying or causing damage to an aircraft in service so as to render it incapable of flight; placing an aircraft in service any device or substance which is likely to endanger its safety in flight; the destruction or damage of navigation facilities, or interference with their operation, if any such act is likely to endanger the safety of aircraft in flight; and the communication of information which is known to be false, thereby endangering the safety of an aircraft in flight.[viii]
The above provisions show that the Montreal Convention is directed against not only unlawful acts but also acts done with the intention against a person on board an aircraft in flight if that act is likely to endanger the safety of the aircraft in flight.[ix]
Other provisions of the Montreal Convention regarding prosecution and extradition are identical to that of the Hague Convention.[x]
Convention on the Marking of Plastic Explosives for the Purpose of Detection, 1991
The International Conference on Air Law adopted the Convention on the Marking on Plastic Explosives for the Purpose of Detection in a conference held in February-March 1991 at the Montreal Headquarters of the ICAO.
A human tragedy was the catalyst for the Convention- the destruction of Pan Am flight 103 over Lockerbie, Scotland, on 21st December 1988. A plastic explosive device was reportedly secreted inside a cassette player. [xi]
Prohibition of unmarked explosives
The Convention requires the countries to prohibit and prevent the manufacture in their territory of unmarked explosives, as well as movement of such explosives into or out of their territory. All plastic explosives will have to be marked by manufacturers with anyone of four ‘detection agents’ agreed upon by the Conference.
Within three years, plastic explosive stocks not specifically held for military or police activities are to be destroyed, used or rendered ineffective. Those for military or police functions are to be similarly disposed of within 15 years.
The International Technical Commission
The International Technical Commission set up by the Convention assesses development in plastic explosive manufacturing, marking and detection, keep the international community informed and propose amendments to the technical annex to the Convention.
Destruction of World Trade Centre and Pentagon: the September 11 attacks
The September 11 attacks were a series of four suicide attacks that were committed in the USA on September 11, 2001, coordinated to strike the areas of New York and Washington D.C. On that Tuesday morning, 19 terrorists from the militant group Al-Qaeda hijacked four passenger jets. The hijackers intentionally piloted two of those planes, into the North and South towers of the World Trade Centre complex in New York City; both towers collapsed within two hours. The hijackers also intentionally crashed a flight into the Pentagon and intended to pilot the fourth hijacked jet, into the Capitol Building Washington, D.C.; however, the plane crashed into a field near Shanks Ville after its passengers attempted to take control of the jet from the hijackers. Almost 3000 people died in the attacks, including the 246 civilians and 19 hijackers aboard the four planes, none of whom survived.
Suspicion quickly fell on Al-Qaeda, and in 2004, the group’s leader Osama bin Laden, who had initially denied involvement, claimed responsibility.
Despite the steps that have been taken so far to suppress the crime of hijacking, there has been no reduction in the number of incidents of hijacking. Efforts to induce the States to prosecute or extradite hijackers presuppose that criminal sanctions against hijackers are an effective means of preventing hijacking. This assumption is not necessarily true. [xiii]
There is a need to tackle the problem of suppressing the crime of hijacking afresh. With this in view, a united effort should be made by the States to plug the loopholes of the existing laws. In the meantime protective measures such as search of all passengers and luggage at airports should be tightened.
Edited by Kudrat Agrawal
[i] H.O. Aggarwal, “International Law and Human Rights”, Central Law Publication, ed. 18, 2011, p. 649.
[iv] M.P. Tandon, “International Law and Human Rights”, Allahabad Law Agency, ed. 15, 2004, p.177-178.
[v] Supra note i, p. 649-650.
[vii] Id, p.651.
[viii] Supra note iv, 178.
[ix] Supra note i, p. 651.
[xi] Supra note iv, p. 179.
[xiii] S. K. Kapoor, “International Law and Human Rights”, Central Law Agency, ed. 16, 2007,p. 256.