This article has been authored by Aanya Anvesha and Aryan Sharma, second year students at Institute of Law, Nirma University.
Introduction to Aerial Hijacking
One of the most troubling byproducts of the aviation age has been the unlawful seizure of, or interference with the control of an aircraft. Incidents of Aerial Hijacking took place not long after international air travel got commonplacebecause of the increased use of aircraft, now an indispensable means for travel, giving rise to many problems. Aircraft hijacking attacks all nations indiscriminately, as such incidents impact foreign relations between states and the framework of international communication and diplomacy. In addition to putting human lives and property at risk, aircraft hijacking sabotages the flight safety of other airlines that use the airspace, affect the trust of people towards air travel, thereby creating financial problems for the aviation economy.
The major motivations behind the unlawful seizure of an aircraft may be:
1) Personal motive: A motive is said to be personal if it is derived from being mentally sick, being poor, being homesick, or taking somebody else’s belongings in one’s possession.
2) Political motive: This motive allows hijacking to achieve political objectives by taking hostage a particular passenger or officer on-board.
3) Refugee motive: The hijacker with this motive commits the crime because he wants to take shelter in another country as he is unhappy with the state of government in his home country.
Shortcomings of Various Legislations
The responsibility of a nation to resolve an event of aircraft hijacking has been stated clearly in many international conventions and also in respective national legislations. These conventions were brought in place to address the objective of punishing offences in the aviation sector. Some of these conventions are the Geneva Convention of 1958, the Tokyo Convention of 1963, The Hague Convention of 1970 and the Montreal Convention of 1971 .
A. Geneva Convention
Geneva Convention Regarding Open Seas, 1958 does not provide much information about aircraft hijacking. Moreover,it uses the term "aircraft piracy" to refer to the practice of hijacking. This erroneously suggests that the act of aircraft hijacking is piratical and therefore, an established offense under general international law. Article 15 of the Geneva Convention gives a traditional meaning of the term piracy and it can be understood from the said article that piracy is committed for a personal end, directed against another ship or aircraft, and executed on the high seas or in a place outside the jurisdiction of any state. All these elements do not apply to the present-day practice of hijacking. Thus, under this article, if an act of hijacking is committed with any other motive other than personal goal would not be punishable. Moreover, hijacking has to be occurred within the air space of a state and not necessarily in the air space of another state.
B. Tokyo Convention
Signed in 1963, Tokyo Convention contains Article 11 which defines aircraft hijacking as an “act of interference, seizure, or other wrongful exercises of control of an aircraft", and imposes an obligation on the contracting states to take all appropriate measures to restore the lawful control of an aircraft. Paragraph 2 of the same article says that if a hijacked plane lands in a contracting state, it would be the responsibility of such state to allow the affected passengers and crew to continue their journey as soon as “practicable” and to return the cargo to its lawful owner.
It is pertinent to note that although these provisions are aimed at the resumption of hijacked flight in addition to protecting passengers, crew-members, and property, they fall short of providing a solution for the prevention of Hijacking. It is left to the discretion of the contracting state to prosecute the offender or extradite him at another state’s request, but this convention makes none of these actions an obligation on the contracting state. There is also no prescription of adequate punitive measures and thus is of little significance in this regard.
C. The Hague Convention
The International Civil Aviation Organization (ICAO), after recognizing that the Tokyo Convention was not much of a help in the issue of creating deterrence, took steps to fill the gaps and the end product was the Hague Hijacking Convention.
i. the aircraft is hijacked while in flight,
ii. the hijacker is on board the hijacked aircraft, and
iii. the hijacker uses force or threat of force to seize control of the aircraft.
Hence, this would exclude cases involving armed attacks directed against air facilities or aircraft not in-flight like the attack on an El Al Jetliner, 1968. Article 3 further limits the Convention to not include a case involving military, police, and customs aircrafts services. The Convention still fails to recognize the act of aerial hijacking as an international crime and offers no relief or rewarding of damages to the victims of the hijacking.
In the 1960s and 1970s, politically motivated aircraft seizures became commonplace. This led to enhancements in security measures and protocols and this is the reason why incidents of airline hijacking today are much rarer. However, there is no assurance that such hijacking incidents or threats of hijacking incidents would never arise in the future. Terrorists or politically motivated individuals could always develop new technologies to enable aircraft hijacking. The above-mentioned laws that are in place today are of little relevance as they are inadequate to deal with all the modern problems of aerial hijacking and also fall short to create a deterring effect for future events. The loopholes in security legislations of countries and the punishments prescribed not being deterrent affects many people and regions.
The most regretful shortcoming of the above-mentioned laws is that the States have a prerogative right to grant the offending hijackers political asylum in its territory if it sympathizes with their motive. According to Article 14 of the International Covenant on Human Rights in 1966, every natural person has the right to ask for asylum. Hijackers will be immune from any extradition or prosecution if they are granted such asylum. Therefore, the offense of hijacking needs to be established as a non-political offense to eliminate barriers in the extradition of fugitives.
Enforcement of such conventions is also difficult on states that are not a party to these conventions as international law does not provide a way to force an obligation on a non-contracting state. This elementary rule of international law is reinstated in Article 34 of the 1969 Vienna convention on the law of treaties. The use of an aviation boycott as a sanction is also delicate as it might ruin foreign relations. Hence, the international community has to cooperate in coming up with uniform legislation that covers up the shortcomings of the existing treaties to prevent the menace of aerial hijacking. To eradicate the crime of Aerial Hijacking from its root, the existing loopholes in international and national laws should be fixed and changed keeping in mind the global needs.