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Aerial hijacking and International Law : a critical study

November 12, 2021
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This article is written by Anurag Singh from ILS Law College, Pune. This is a comprehensive article that critically analyses aerial hijacking and international law related to the same.

Introduction 

One of the greatest inventions in the history of mankind has to be the invention of the aeroplane. This is because, before this invention, it took a lot of time to travel from one place to another. However, after this invention, the time of travel has significantly reduced. Therefore, its use over the period of time has increased exponentially as it has reduced a major inconvenience which is the travel time, moreover, it is the most comfortable form of transportation. Interestingly, everything about civil aviation is not happy-go-lucky. Repeated incidents of aerial hijacking have tarnished the image of this convenient form of transportation. In this article, we are going to discuss in detail this vast topic of aerial hijacking.  

Aerial Hijacking: a brief study 

According to Alona E. Evans, an American scholar “aircraft hijacking is a contemporary addition to the roster of international and national crimes and the necessity for its control at the international and national level is only beginning to be recognized by the States.”  

Aircraft hijacking is the unlawful seizure of an aircraft by an individual or a group. Moreover, it has also been explained in Article 1 of the Hague Convention for the Suppression of Unlawful Seizure of Aircraft, 1970 that “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 any such act commits an offense”. 

Whenever any aircraft is hijacked it is expected that the people hijacking the aircraft want something in return. There can be several motives fuelling these hijackers or there can be only one. In very few cases, they take the passengers as hostages and ask for a monetary ransom. This is because unlike car hijacking and sea piracy, theft or robbery is the least of their concern. However, in most cases, aerial hijacking is done to prove a point to the government concerned or demand a release of high-profile prisoners of the concerned hijacking group. This is the sole reason why it is considered a heinous crime in international law and is termed as a terrorist act all around the globe.  

In some cases, the pilot has to fly according to the will of the hijackers or in some cases, the hijackers themselves fly the plane and use the plane as a weapon and target a particular location (notably in 9/11 attacks). Some countries like India have shown an inclination towards negotiating with the hijackers. However, countries like the United States have a very strict policy to avoid negotiating. In most cases, the country negotiating agrees on some of the terms, or not all, to secure the lives of the passengers. For example in IC 814, where the release of all the terrorists in Indian jails was demanded, however, the release of 3 terrorists was negotiated.  

International Law and its role in aerial hijacking 

Due to an increase in cases of hijacking in the early 1960s, the situation worsened to an extent where a country that is considered a superpower in the world ( the United States of America) recorded 160 incidents of hijacking that took place between May 1961 to January 1973. Therefore, it was evident that there was a dire need for international laws that regulated aerial hijacking. Moreover, in order to solve the aforementioned problem and punish the hijackers, several treaties and conventions have been formulated and adopted by countries all around the globe, they are:

The Tokyo Convention, 1963

The Tokyo Convention, 1963 was signed in Tokyo at a diplomatic conference on September 14, 1963. However, it came into force on December 4, 1969

Article 1 of the Tokyo Convention, 1963 was the first Convention that penalized the act of ‘jeopardizing the safety of person or property’ under civil aviation, while the aircraft was engaged in international aviation. Moreover, the signatories agreed that if there was an unlawful takeover of an aircraft or a threat of it on their territory, then they would take all necessary measures to regain or keep control over an aircraft. The captain can also disembark a suspected person on the territory of any country, where the aircraft lands, and that country must agree to it, as stated in Articles 8 and 12 of the Convention. 

Furthermore, it provides that the State of registry of an aircraft is competent to exercise jurisdiction over the unlawful acts committed on the onboard aircraft. Moreover, it also stated that in the case of anticipation or commission of such unlawful activities, it obligates all the countries that are party to this treaty to restore the control of the aircraft.  

The Hague Convention, 1970

The Hague Convention, 1970 was adopted by the International Conference on Air Law at the Hague on 16 December 1970. Moreover,  the Convention came into force on October 17, 1971.  

The Tokyo Convention was the first global intention to suppress offenses committed onboard a civil aircraft. However, it failed to recognize the act of hijacking, sabotage, and terror attack, which left a massive loophole in the Convention. Therefore in order to cover these loopholes and due to the increase in the number of hijacking year after year, that is when Hague Convention, 1970 was formulated. 

However, the international community, ICAO Legal Committee, submitted a draft to ICAO at Hague. This Convention aimed to suppress such terrorist attacks on civil aircraft, by punishing the act of ‘unlawful seizure’ of an aircraft. Moreover, it recognized hijacking as a separate offense with punishment as severe as capital punishment. The Hague convention obligates its members to either prosecute or extradite offenders guilty of hijacking.  

The Montreal Convention, 1971

The Montreal Convention, 1971 was signed on September 23, 1971. Moreover, it came into force on January 26, 1973. 

The Hague Convention was a great improvement from the Tokyo Convention. However, it failed to recognize the fact that these aerial attacks were well planned and people who controlled these attacks from the outside are also equally responsible, along with the ones committing the act of unlawful seizure of the aircraft. Furthermore, it still provided for no relief or reward of damages to the innocent passengers and crew members hijacked aboard. 

Therefore the Montreal Convention, 1971 further extended the scope. One of the key advancements in this legislation included that it penalized the ones that were not on board. The Montreal Convention greatly resembles the Hague Convention but also extends to acts of unlawful interference against international civil aviation.         

The Montreal protocol, 1988

All the aforementioned conventions aimed to cover all the drawbacks that were present in the onboard terrorist experience of civil aviation. However, it will not be out of place to state here that all the 3 conventions saw the terrorist activities with a lens of unlawful activities, and seizure of an aircraft and failed to recognize the fact that, any terrorist activity within the vicinity of the aircraft such as the airport tends to cause an equal amount of chaos.   

Moreover, this issue was addressed in the Protocol and the scope of the Conventions was expanded from in-flight to in-service. Wherein the in-service under the ambit of this protocol was defined from the time pre-flight preparation starts by ground personnel or crew, until twenty-four hours after landing. Therefore it is crystal clear that this Protocol was aimed to not only protect the aviation safety onboard but also the airport facilities. 

Scope for loopholes 

International law relating to air safety is to be found in the Convention relating to the regulation of Aerial Navigation, 1919 which recognizes that every nation has exclusive sovereignty over the air space above its territory. Therefore, with aerial hijacking taking place more often, this rule became even more relevant. This is because the international customary law is followed by a practice that no other states should give assistance to any terrorist attacks. 

Even though countries are so intolerant when it comes to terrorism. However, extradition of the criminals that are guilty of the crimes, is the single biggest insufficiency in not just the aerial hijacking laws but in all international laws in general. Moreover, customary international law provides no rule which imposes a duty to extradite, and since international law maintains no central enforcement agency or universal sovereignty to affect compliance with established international norms it relies upon voluntary compliance of participating States to advance international order. 

Therefore, these criminals in some or the other way find their way around the law and become the political refugee of the country they were found in or takes an uncomfortably long time to extradite, and the essence of delivering justice is lost after that long. This needs to be amended in international law, guilty personnel should be extradited to the country that they have committed the crime against so that they are punished and the people on the aircraft that suffered from trauma from that incident or even lost lives get justice. 

  

Indian laws for aerial hijacking

For the longest period of time, India followed the Anti-hijacking Act, 1982. It was formulated in accordance with the Hague convention, as India was one of the countries part of the convention. However, these should have changed a long time back because these laws were not aligned with the international conventions. Somehow the need to amend the laws was not felt because the attacks did not take place as often as they took in the 1970s and the security had improved after the hijacking incident that took place in Kandahar. 

However, the government in 2016 felt the need to repeal the laws in place and formulate new laws as they were old and archaic. Subsequently the Anti hijacking Act, 2016 was passed, it brought about many changes that were needed and due for a long time. For example, in the earlier version, it only punished the offenders that were present on the aircraft but with all the technological advancement taking place, there had to be an inclusion of the same to prevent such unlawful activities in the future. Moreover, the new Act covered the term hijacking in the broadest sense.  

Furthermore, the new Act also widened the scope of punishment because under the earlier enactment everybody found the way around and escaped the law with ease but now by increasing the scope of in-service and severely punishing the hoaxes (with respect to aerial hijacking) that results in unnecessary chaos, the new Anti-Hijacking Act would still be applicable if the offense of hijacking takes places outside India in an aircraft that is registered in India or is leased to Indians, or when the offender is in India or if the offender is Stateless but is a resident of India, or when the offense is committed against Indians. The Anti-hijacking Act, 2016 looks more effective and aligned with the international treaties of the world.  

Conclusion 

Aerial hijacking has always been a topic of concern as it brings the whole country to its knees in case of any act of hijacking, and in many cases, many innocent people die because the hostages in such situations are at the mercy of these hijackers. If the government concerned is not able to protect their citizens then it not only brings a bad name to the particular airline but the whole country. 

However, now with better security and stricter laws, the incidents of hijacking have been reduced significantly. However, the authorities shouldn’t become complacent of the same because these attacks have just reduced in number, they still haven’t stopped altogether. Therefore the amendments should be made time and again so that the world does not witness another heart-wrenching hijack, where innocent people lose their lives.  

References 


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