2.4 THE SPECIALISED ANTI-TERRORIST CONVENTIONS
2.4.1 Offences against civil aviation
The first international agreement to emerge on the subject was the 1963 Tokyo Conventi0on on Offences and Certain OtherActs Committed On BoardAircraft (Tokyo Convention).36Its application extends to any act, whether a recognised offence or not, which jeopardises the safety of an aircraft or ‘of persons or property therein or which jeopardise[s] good order and discipline on board’.37Such acts become offences under the Tokyo Convention only if they are committed by a person on board an aircraft in flight or on the surface of the high seas.38An aircraft is considered to be ‘in flight’, for the purposes of the Tokyo Convention, ‘from the moment when the power is applied for the purpose of take-off until the moment when the landing run ends’.39Although not clear from the wording of the Convention, an act taking place solely on the territory of one State does not substantiate an international offence under the scheme of the Convention. Similarly, the Convention does not apply to three types of public aircraft:
military, custom and police.40Unlike other anti-terrorist treaties, the 1963 Tokyo Convention was not designed to address urgent problems, and was generally viewed as reflecting customary law; yet, it was frugally ratified by signatory States.41
The plethora of attacks against aircraft in the 1960s and the inadequate hortatory anti-hijacking provision contained in Art 11 of the 1963 Tokyo Convention rendered imperative the adoption of a new instrument which would not only elaborate the elements of the offence, but would moreover affirm and reinforce interstate mechanisms towards effective suppression and eradication.42Since, at the time, airport security was not equipped with sophisticated detection machinery, nor was surveillance or other security safeguards high on the agenda of most national airport authorities, the majority of attacks against civil aviation took place by persons embarking an aircraft with weapons and seizing control of it when its external doors had closed.43This specific problem of aircraft hijacking was the focal point of the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft (Hague Convention). The 1970 Hague Convention deals exclusively with acts of international hijacking committed by persons on board an aircraft in flight.44The notion of an
36 See generally M Mendelsohn, ‘In-Flight Crime: The International and Domestic Picture Under the Tokyo Convention’, 53Virginia Law Review(1967), 509.
37 1963 Tokyo Convention, Art 1(1).
38 Ibid,Art 1(2). It is also required that the aircraft in question be registered in a contracting State.
39 Ibid,Art 1(3).
40 Ibid,Art 1(4).
41 E McWhinney,Aerial Piracy and International Terrorism,1987, Dordrecht, Lancaster: Martinus Nijhoff, pp 39–40.
42 1963 Tokyo Convention, Art 16(2) noted that nothing in the Convention ‘shall be deemed to create an obligation to grant extradition’.
43 See ICAO Resolutions A17–3 (1970), A17–4 (1970), A17–5 (1970) and A17–6 (1970), reprinted in YO Elagab,International Law Documents Relating to Terrorism,1997, London: Cavendish Publishing, pp 443–45.
44 1970 Hague Convention, Art 1; inPublic Prosecutor v SHT74 ILR 162, the accused was charged with hijacking a British aircraft in flight from Beirut to London, forcing it to land in Amsterdam. The Dutch court applied the 1971 Dutch Penal Code, Art 385(a), which implemented the 1971 Montreal Convention, and which provides for the punishment of persons, ‘who by force, threat thereof or intimidation seize or exercise control over an aircraft, and cause it to change course’.
aircraft ‘in flight’ is wider in the 1970 Hague Convention than in the 1963 Tokyo Convention, since its temporal application encompasses the period of time when all external doors are closed following embarkation until the moment any such door is opened for disembarkation.45The offence of aircraft hijacking under the 1970 Hague Convention is consummated by a person who:
(a) unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or exercises control of [an] aircraft, or attempts to perform any such act; or b) is an accomplice of a person who performs or attempts to perform any such act.
The phrase ‘any other form of intimidation’ seems to be superfluous, since there can be no other form of unlawfully taking over an aircraft without the use or threat of force,46so it seems as though the drafters intended to cover every possible future situation, even if it was unknown to them at the time. It is possible, nonetheless, that seizure be perpetrated without use of force, through bribery or collaboration with the aircraft’s pilots or cabin crew. An Australian proposal to include such non-forceful seizure in the 1970 Hague Convention was rejected by the Legal Committee of the International Civil Aviation Organisation (ICAO) by 25:7. Shubber argued in 1973 that a reasonable interpretation, compatible with the aim and purpose of the Convention requires a wide construction, one which would define non-forceful seizure as hijacking.47This inference seems to be arbitrary, especially in light of its previous rejection and the highly specialised nature of this and all other terrorist conventions, which cannot, accordingly, allow any room for interpretations of this kind.
For the purposes of the Hague Convention, the seizure must originate and be perpetrated by the principal from within the aircraft. Likewise, an accomplice falls within the ambit of the Convention only if such person provides assistance while on board the aircraft in flight. Accomplices whose participation in the offence takes place outside the aircraft are subject only to local criminal jurisdiction.48To meet the growing refusal of certain recalcitrant States to counter the aforementioned terrorist offences, the delegates to the 1978 Bonn Economic Summit issued a Joint Statement whereby they agreed to cease all incoming and outgoing flights to those countries that refused to extradite or prosecute hijackers and/or did not return illegally seized aircraft. It is worth noting that a joint US-Canadian draft sanctions treaty to the same effect was rejected by the Legal Committee of the ICAO in 1972.49 The Bonn Declaration was subsequently enforced against Iran, Afghanistan and later Libya.50 A very specific form of unlawful aircraft seizure is that of ‘air piracy’, as defined under Art 15 of the 1958 Geneva Convention on the High Seas51and Art 101 of the 1982 UN Convention on the Law of the Sea (UNCLOS)52—although the term is also
45 1970 Hague Convention, Art 3(1).
46 S Shubber, ‘Aircraft Hijacking under the Hague Convention 1970—A New Regime?’, 22ICLQ(1973), 687, p 691.
47 Ibid,pp 692–93.
48 Ibid,pp 704–05.
49 Op cit,McWhinney, note 41, pp 48–62.
50 See 1981 Ottawa Economic Summit (Point 3); 1986 Tokyo Economic Summit (Point 4).
51 450 UNTS 82.
52 Both UNCLOS, 21 ILM (1982), 1261, and the 1958 Convention reflect well established customary law; S Shubber, ‘Is Hijacking of Aircraft Piracy in International Law?’, 43BYIL(1968–69), 193.
used generally to describe offences under the three anti-terrorist civil aviation conventions. Unlike aerial hijacking under the Hague Convention, air piracy under UNCLOS involves an illegal act of violence, namely, an unlawful diversion to a destination, other than that envisaged in the target aircraft’s original flight plan, and originating from outside the attacked aircraft—thus requiring an aircraft of assault—
and occurring in a place outside the jurisdiction of any State. Although the Hague Convention obliges States parties to consider the offences described therein as extraditable offences,53in effect denying the culprits a political motive excuse, the application of this rule to ‘air piracy’ under UNCLOS would be problematic, since piracy exists only where the illegal act of violence was committed for private ends, thus excluding action undertaken on political grounds. One is therefore presented with the regulation of this issue by two distinct legal regimes: on the one hand, UNCLOS and, on the other, the anti-terrorist treaties. The former allows the invocation of a political motive, whereas the latter does not. Clearly, the two regimes are contradictory and there do not exist any discernible guidelines as to which should prevail. However, in light of the by now customary prohibition of unlawful interference with civil aviation, it is uncertain whether the illegal diversion of a civil aircraft, even for political purposes, would not amount to an international offence under UNCLOS.54
With the signing of the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (Montreal Convention), the international community supplemented the legislative structure initialled by its two precursor conventions.55The aim of the 1971 Montreal Convention was to combat the scourge of attacks and other forms of aerial sabotage endangering the safety of civil aviation.
Under Art 1, an offence is committed where a person unlawfully and intentionally:
(a) 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; or
(b) destroys an aircraft in service or causes damage to such an aircraft which renders it incapable of flight or which is likely to endanger its safety in flight; or (c) places or causes to be placed on 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 is likely to endanger its safety in flight; or
(d) destroys or damages air navigation facilities or interferes with their operation, if any such act is likely to endanger the safety of an aircraft in flight; or (e) communicates information which he knows to be false, thereby endangering
the safety of an aircraft in flight.
The concept of an aircraft ‘in flight’ is identical to that contained in the 1970 Hague Convention,56while an aircraft is considered to be ‘in service’ from the beginning of
53 1970 Hague Convention, Art 8(1).
54 See, to this effect, Council of Europe Resolution 450 (1970) on Air Piracy, reprinted inop cit,Elagab, note 43, p 440.
55 CS Thomas and MI Kirby, ‘Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation’,22 ICLQ (1973), 163.
56 1971 Montreal Convention, Art 2(a).
its pre-flight preparation until 24 hours after landing; the duration of an aircraft ‘in service’ cannot be shorter than that ‘in flight’.57Besides this latter innovation and the various offences it covers, the 1971 Montreal Convention is similar to its Hague counterpart in all its other procedural provisions, that is, jurisdiction,58rendering proscribed offences extraditable, incorporation ofaut dedere aut judicareprinciple, mutual legal assistance and other forms of interstate co-operation and the obligation to adopt implementing legislation. It is fair to say that, solely from the point of view of the offences stipulated by the Hague and Montreal Conventions combined, the 1963 Tokyo Convention has, in fact, but not in law, been superseded.
The enhancement of security services in airports worldwide since the early 1980s has made hijacking far less frequent than in previous years.59This has resulted, however, in an increase in remote controlled detonations using plastic explosives and has rendered the application of the 1971 Montreal Convention all the more relevant. Observation of the Montreal Convention without other combined efforts to prevent the production and distribution of plastic explosives would be futile.
Hence, under the aegis of ICAO, a Convention on the Marking of Plastic Explosives for the Purpose of Detection was adopted in 1991,60which obliges States parties to introduce detection agents into explosive products, whether manufactured in that State or simply imported therein, in order to render such explosives detectable—
this process is termed ‘marking’ of explosives.61
At the same time, the provisions of the 1971 Montreal Convention have been triggered by clandestine or confessed attacks against civil aircraft by State entities.
The most notorious attack of the latter kind, which was subsequently admitted to by the culprit State, concerned the downing of Iranian Airbus Flight 655, on 3 July 1988, by two surface to air missiles launched from USS Vincennes, causing the death of the 290 passengers and crew. Iran brought the case to the International Court of Justice (ICJ), claiming the US had violated the 1971 Montreal Convention by refusing to prosecute or extradite those responsible.62The US argued that the Convention was not applicable to acts committed by the armed forces of a State. The two parties finally resolved their dispute through a Settlement Agreement on 9 February 1996.63 In another incident, North Korea was implicated in the destruction of a South Korean airliner on 29 November 1987. Although there was sufficient evidence demonstrating that a North Korean woman was responsible for the bombing,64that country did not
57 Ibid,Art 2(b).
58 See Chapter 7.
59 A supplementary Protocol to the Montreal Convention on the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation was also agreed in 1988, reprinted in 27 ILM (1988), 627. Article II(1) criminalises unlawful and intentional acts of violence against persons at international airports which cause serious injury or death, as well as acts of destruction or serious damage to facilities of such airports, where such acts endanger or are likely to endanger safety at said airports.
60 30 ILM (1991), 721.
61 Ibid,Arts II, III and IV. The terms of the Convention do not apply to authorities performing military or police functions, unless they are used for purposes inconsistent with objectives of the Convention (Arts III(2) and IV(1)).
62 Islamic Republic of Iran v USA,Aerial Incident of 3 July 1988. Iran instituted proceedings on 17 May 1989. Text reprinted in 28 ILM (1989), 843.
63 Reprinted in 35 ILM (1996), 572. By an order of 22 February 1996, the ICJ struck the case off its docket: (1996) ICJ Reports 9.
assume responsibility for the incident, nor, of course, did it launch an investigation against the alleged offender.
One case that has attracted widespread public opinion has been the Lockerbie incident. On 21 December 1988, Pan Am flight 103A with direction from London to New York exploded above Lockerbie in Scotland, killing all its passengers and crew, as well as 11 unsuspecting Lockerbie residents from the falling debris. Three years later two Libyans were indicted in the US. Libya refused to extradite the accused, claiming it had investigated the case against them and had found no indication of criminal liability.65The case was, moreover, complicated by the fact that both the US and UK argued that the two men were Libyan agents ordered by the government of that country to sabotage the aircraft. From the point of view of its accusers, this meant that any Libyan prosecution or, indeed, criminal investigation was, thereafter, an exercise in futility. Continued intransigence through Libya’s refusal to extradite prompted the Security Council to pass Resolution 731 on 21 January 1992, urging Libya to co-operate with the US and UK in establishing responsibility for the terrorist acts. Rather than complying with the Security Council’s request, on 3 March 1992, Libya lodged two separate complaints against the two countries, claiming violation of Arts 5(2)–(3), 7 and 11(1) of the 1971 Montreal Convention and asked the Court to order provisional measures. Meanwhile, on 31 March 1992, and pre-empting the World Court’s decision, the Security Council acting under Chapter VII of the UN Charter adopted Resolution 748 with which it demanded Libya extradite the two accused, denounce terrorism and, further, imposed a number of sanctions. On 14 April 1992, the ICJ ruled that under Arts 25 and 103 of the UN Charter, Security Council resolutions take precedence over all other treaty commitments, including Libya’s claim for refusal to extradite under the Montreal Convention, which, as most of the judges determined, would have probably been in the right had it not been for Resolution 748.66Despite an ICJ ruling on 27 February 1998 finding jurisdiction over the merits of the dispute,67for the purposes of international criminal law the above cases exemplify the difficulties in the application of the 1971 Montreal Convention to situations of terrorist attacks involving States, which the Convention in question was not initially envisaged to cover. By 1998, the deadlock regarding the criminal prosecution of the two accused had been broken and an agreement was reached whereby a court established in The Netherlands and composed of Scottish judges
64 See European Parliament Resolution of 10 March 1988 on TerroristAttacks on CivilAviation, reprinted inop cit,Elagab, note 43, p 440.
65 See C Joyner and W Rothbaum, ‘Libya and the Aerial Incident at Lockerbie: What Lessons for International Extradition Law’, 14Michigan JIL(1992–93), 643.
66 Libya v UK, Libya v USA,Questions of Interpretation andApplication of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Provisional Measures), Order of 14 April 1992 (1992) ICJ Reports 3, p 114.
67 Libya v UK, Libya v USA,Questions of Interpretation andApplication of the 1971 Montreal Convention Arising from the Aerial Incident at Lockeroie (Preliminary Objections), Judgment of 27 February 1998 (1998) ICJ Reports 115; see F Beveridge, ‘The Lockerbie Cases’, 48ICLQ(1999), 658; V Debbas- Gowland, ‘The Relationship between the International Court of Justice and the Security Council in the Light of the Lockerbie Case’, 88AJIL(1994), 643; K Kaikobad, The Court, the Council and Interim Protection: A Commentary on the Lockerbie Order of 19 April 1992’, 17Australian YIL(1996), 87.
applying Scottish law would sit in trial of the two Libyans.68Whether due to the stringent and effective security measures at airports worldwide, enhanced interstate co-operation, or simply because air offences do not attract the attention of public opinion as in the past, air travel is now far safer. At the second meeting of its 156th Session, on 22 February 1999, the ICAO Council reported a sharp decline in the number of incidents of unlawful interference with international civil aviation.69The events of 11 September 2001 revealed the extent to which fundamentalist terror groups are prepared to employ civilian aircraft for terrorist action. Although this incident has no bearing on the legal effect of the various civil aviation treaties, the industry itself reviewed internal procedures and has restricted access to the pilots’
cabin, among other measures.