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Aviation Terrorism and the International Civil Aviation Organization

Published online by Cambridge University Press:  09 March 2016

Gerald F. Fitzgerald
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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 25 , 1988 , pp. 219 - 241
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Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1988

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References

1 The International Civil Aviation Organization (ICAO) is a specialized agency in relationship with the United Nations. As at June 30, 1987, it had 157 contracting states. Its constituent instrument is the Convention on International Civil Aviation (Chicago, 1944), Doc. 7300/6; 15 UNTS 295; [1944] Can. T.S. No. 36. Unless otherwise indicated, all documents mentioned herein are ICAO documents and references to the Assembly, Council, and Legal Committee are to ICAO bodies.

2 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons (New York, 1973), UNGA Resolution 3166 XXVIII) and Annex; (1974) 13 Int’l Leg. Mat. 41. The International Convention against the Taking of Hostages (New York, 1979), UNGA Resolution 34/146; (1979) 18 Int’l Leg. Mat. 1456. The Convention on the Physical Protection of Nuclear Material (1979), concluded under the auspices of the International Atomic Energy Agency (IAEA) (1979) 18 Int’l Leg. Mat. 1419. For a list of terrorist conventions, see International Law Association, Report of Sixtieth Conference, Montreal, 1982, 358–65. For a discussion of the implementation of terrorist conventions in Canada, see Williams, Sharon A., “The Criminal Law Amendment Act 1985 : Implications for International Criminal Law” (1985) 23 Canadian Yearbook International Law 226–45.Google Scholar For a discussion of terrorism generally, see Williams, Sharon A. and Castel, J.-G., Canadian Criminal Law: International and Transnational Aspects 193–228 (Toronto: Butterworths, 1981).Google Scholar See also McWhinney, Edward, Aerial Piracy and International Terrorism, 2nd revised edition (Dordrecht: Martinus Nijhoff, 1987).Google Scholar

3 For example, “political terrorism” has been defined as “the systematic use of murder and destruction, and the threat of murder and destruction to terrorize individuals, groups, communities, or governments into conceding to the terrorists’ political aims” ( Wilkinson, Paul, Terrorism and the Liberal State 56 (2nd ed., Macmillan Education Ltd., 1986)).Google Scholar In contrast, “individual terrorism” has been described as “terrorism committed by private persons, either individually or in organized groups, which aims at terrorizing a specific class of the population, a given nation or any human being, for the purpose of striking at an established regime, against a certain state or at the idea of the state. The direct victim of individual terrorism, in its most extreme form, is the individual person, but may also be representative objects such as embassy buildings, public monuments, banks, nuclear installations, airline agencies, etc. The final target is always the state” ( Gal-Or, Noemi, International Cooperation to Suppress Terrorism 1–2 (New York: St. Martin’s Press, 1985)).Google Scholar The literature on aviation terrorism is listed in Heere, Wybo, International Bibliography of Air Law 1900–1971 (Leiden: A. W. Sijthofl; Dobbs Ferry, N.Y.: Oceana Publications Inc., 1972),Google Scholar as well as in supplements for 1972–76 (Sijthoff) ; 1977–80 (Martinus Nijhoff), and 1981–84 (Kluwer). Mr. Heere publishes annual supplements to his bibliography in Air Law (Kluwer). For a convenient summary of the highlights of the 26th Session of the ICAO Assembly (1986), which was dominated by aviation security matters, see (1986),41 ICAO Bulletin 14–49.

4 Quoted in Henderson, Robert D’A., “Washington’s Debate on Terrorism,” (1986) International Perspectives 17.Google Scholar

5 Doc. 8364; (1964) 58 Am. J. Int’l L. 566; (1963) 2 Int’l Leg. Mat. 1042; [1970] Can. T.S. No. 5.

6 Doc. 8920; (1971) 10 Int’l Leg. Mat. 133; [1972] Can. T.S. No. 23.

7 Doc. 8966; (1971) 10 Int’l Leg. Mat. 1151 ; [1973] Can. T.S. No. 6.

8 See, for example, FitzGerald, Gerald F., “Towards Legal Suppression of Acts against Civil Aviation,” International Conciliation, November 1971, No. 585, 42–82;Google Scholar FitzGerald, Gerald, “Unlawful Interference with Civil Aviation,” in Kean, A.W.G. (Ed.), Essays in Air Law 59, at 60–63.Google Scholar (The Hague, Boston, London : Martinus Nijhoff Publishers, 1982 ).

9 FitzGerald, Gerald F., “Recent Proposals for Concerted Action against States in Respect of Unlawful Interference with Civil Aviation,” (1974) 40 J. Air L. Com. 161–224.Google Scholar

10 The states were Canada, France, Federal Republic of Germany, Italy, Japan, the United Kingdom, and the United States. See Schwenk, Walter, “The Bonn Declaration on Hijacking,” (1979) 4 Ann. Air and Sp. L. 307–22Google Scholar; Busuttil, James J., “The Bonn Declaration on International Terrorism : A Non-Binding Agreement on Aircraft Hijacking,” (1982) 31 I.C.L.Q. 474 CrossRefGoogle Scholar; Magde-lénat, J.-L., “Le terrorisme international contre l’aviation civile et la valeur des déclarations de Bonn et Montebello en droit international public,” (1982) 36 R.F.D.A. 448 Google Scholar; Chamberlain, Kevin, “Collective Suspension of Air Services with States which Harbour Hijackers,” (1983) 32 I.C.L.Q. 616.CrossRefGoogle Scholar Canada gave effect to the Bonn Declaration by the Prohibition of International Air Services Act, S.C. 1980–81–82–83, C. 61.

11 In 1981, Afghanistan allegedly gave a haven to the hijackers of a Pakistan International Airlines aircraft. With effect from November 30, 1982, France, the Federal Republic of Germany, and the United Kingdom denounced their air services agreements or arrangements with Afghanistan.

12 An examination of Annex 17, as recently revised, is found later in this article. Other provisions on unlawful interference are included in Annex 2 — Rules of the Air ; Annex 6 — Operation of Aircraft, Part I — International Commercial Air Transport; Annex 9 — Facilitation; Annex 10 — Aeronautical Communications — Volume I ; Annex 11 — Air Traffic Services ; Annex 13 — Aircraft Accident Investigation ; Annex 14 — Aerodromes ; Procedures for Air Navigation Services — Rules of the Air and Air Traffic Services (Doc. 4444-RAC/501 ) ; Procedures for Air Navigation Services — Aircraft Operations (Doc. 8168, Vol. I).

13 Doc. 8973/2 — Restricted.

14 For example, see Assembly Resolution A26-7, Appendix C, Item b.

15 During the triennium 1983–86, between the 24th and 26th Sessions of the Assembly, thirty-two states provided information under Article 11 of the Hague Convention, or Article 13 of the Montreal Convention as the case may be. According to a report of the Council to the 26th Session of the Assembly, twenty-seven reports of incidents of unlawful seizure of aircraft had been filed with the Council, while eight reports of unlawful acts against the safety of civil aviation (bombings, bazooka attacks, and the like) had been filed. (See A26-WP/29, EX/3.) Further incidents of unlawful seizure and unlawful acts were reported to the Council late in 1986 and early in 1987 (UI-WP/146; C-WP/8343; C-WP/8378; C-WP/8391).

16 Some of the 1985–86 incidents are: (1) June 14, 1985: Seizure of Trans World Airlines Boeing 727 during a flight from Athens and diversion to Beirut. Persons on board held hostage against the release of 700 Shi’ite Moslems in Israel. One passenger, a United States national, was murdered. Flight crew and a number of passengers held hostage until June 30, 1985. Alleged participant in incident arrested in Federal Republic of Germany and United States sought extradition of that person. Meanwhile, two citizens of Federal Republic of Germany taken hostage in Lebanon. Nevertheless, FRG decided to try suspected offender. Aircraft returned to owner. (2) June 23, 1985: During a scheduled flight from Montreal to Bombay via London, an Air India Boeing 747 crashed into the Atlantic Ocean about 100 kilometres southwest of the Irish coast; all 329 passengers and crew perished. A court investigation in India concluded that the crash occurred due to the explosion of a bomb. No suspected offender brought to justice. (3) April 1, 1986: A bomb exploded on board a Trans World Airlines Boeing 727 en route from Rome to Athens causing the death of four passengers and injuring nine others. In spite of loss of pressurization and damaged fuselage, the pilot managed to land the aircraft at Athens Airport. (4) April 17,1986 : Attempt to place an explosive device upon an El Al Israel Airlines Boeing 747 at Heathrow Airport. The device was discovered in the hand baggage of a pregnant passenger who intended to board the flight for Tel Aviv. The woman proved to be an unwitting accomplice. The perpetrator was subsequently arrested and tried in London. He was convicted and sentenced to forty-five years’ imprisonment. (5) September 3, 1986: Attempted unlawful seizure of Pan American Boeing 747 during a scheduled stopover at Karachi International Airport. Four armed men disguised as security guards boarded the aircraft while firing semiautomatic weapons. After the perpetrators began firing at passengers, Pakistani law enforcement agents stormed the aircraft and arrested the perpetrators. Eighteen persons were killed and 141 injured. (6) December 25, 1986: An attempt was made to seize an Iraqi Airways Boeing 747 during its scheduled flight from Baghdad to Amman, Jordan, resulting in the crash of the aircraft near Arar Airport in Saudi Arabia. Sixty-three persons (sixty passengers and three crew members ) lost their lives in the incident and thirty-one others (twenty-two passengers and nine crew members) were seriously injured.

17 C-Min. 119/17. At the same time, the Council requested its Committee on Unlawful Interference to undertake an ongoing review for the purpose of establishing and keeping up to date aviation security standards to prevent unlawful placing of explosive substances and other dangerous devices intended for the destruction of civil aircraft.

18 See The Ottawa Citizen, June 16, 1987, p. A19; ibid., June 24, 1987, p. A6. On July 24, 1987, the hijacker of an Air Afrique DC-ίο, which landed at Geneva, demanded that West Germany free two Lebanese men, the Hamadi brothers, including one held in connection with the TWA hijacking of 1985. In the Air Afrique hijacking, one passenger was murdered, a steward was wounded, and a number of passengers were injured while escaping from the aircraft. Ibid., July 25, 1987, p. A7. It was reported that the hijacker would be tried in Switzerland on charges of taking hostages and murdering a passenger. Ibid., July 27, 1987, p. Aio. Requests for extradition of hijackers are not always successful. In June 1987, the Quebec Superior Court rejected a request by the United States to extradite two former members of the terrorist Front de libération du Québec for the hijacking of an aircraft to Cuba in 1969. The court was reported to have denied the request on the ground that air piracy did not exist as a crime under Canadian law at the time the two accused were alleged to have committed it. See La Presse, Montreal, May 15, 1987, p. A8; The Gazette, Montreal, June 27, 1987, p. A-5; The Ottawa Citizen, June 30, 1987, p. A5.

19 A26-WP/29, EX/3, pp. 8–9 (paras. 9.4–9.6). For further information, see C-WP/8378, para. 5.2. By early 1987, the texts of national laws on aviation security had been deposited with ICAO by seventy-six states. See also Allan Nanes, Yonah Alexanderand (Eds.), International Studies on Terrorism (The Hague: Martinus Nijhoff, 1986)Google Scholar which contains a collection of national laws relating to the prevention and suppression of terrorism.

20 A26-WP/29, EX/3, p. 47.

21 Ibid., p. 48.

22 A26-WP/43, EX/10, which contains thirty-five pages.

23 With respect to good offices, see Doc. 8827-C/987, Action of Council, 66th Session, 10-14, at r4- See also Assembly Resolution A17-19; C-WP/5211; C-WP/5212; Doc. 8923-C/998, Action of Council, 71st Session, 44–48 (Circumstances in which ICAO’s good offices may be made available and the procedure to be followed when they are made available ). The Kuwaiti Airbus A31 o unlawfully seized during a flight from Kuwait to Karachi and diverted to Iran on December 4, 1984 was returned to Kuwait on May 7, 1986 after a continuous effort by ICAO Council President, Dr. Assad Kotaite.

24 Doc. 8827-C/987, Action of Council, 66th Session, 29. The Council resolution was amended on March 28, 1973 (Doc. 9079-C/1013, Action of Council, 78th Session, 42-47), December 3, 1985 (Doc. 9480-C/1092, Action of Council, 116th Session, 47) and December 8, 1986 (C-Min. 1 ig/12). For the latest version of the Committee’s terms of reference, see Doc. 8849-C/990/4, 4th Edition, Aviation Security-Digest of Current ICAO Policies and Actions on the Subject of Unlawful Interefrence with International Civil Aviation and Its Facilities, 11-13.

25 Doc. 9485-C/1094, Action of Council, 117th Session, 42.

26 AVSECP/1 Aviation Security (AVSEC) Panel, First Meeting, Montreal, May 19–29, 1987, Report, para. 2.2.

27 Doc. 9468-C/1090, Action of Council, 115th Session, 26.

28 Doc. 9480-C/1092, Action of Council, 116th Session, 16–21. Annex 17 — Security — Safeguarding International Civil Aviation Against Acts of Unlawful Interference, 3rd ed., March 1986. See Magdelénat, Jean-Louis, “La nou velie annexe 17 : Le dernier apport l’aviation civile internationale pour la lutte contre le terrorisme,” (1986) 11 Ann. Air and Sp. L. 87–103.Google Scholar

29 Annex 17, para. 2. 1.3.

30 Ibid., paras. 3.1.1–3.1.8.

31 Ibid., para. 4.1.1.

32 Ibid., para. 5.1.1.

33 AVSEGP/1, supra note 26, para. 6.2.3. Pursuant to Article 38 of the Chicago Convention, contracting states are required to notify ICAO of any differences between their national regulations and practices and the International Standards contained in an Annex and any amendments thereto.

34 Annex 17, para. 6.1.

35 Doc. 9485-C/1094, Action of Council, 117th Session, 43.

36 Ibid., 43–44.

37 A17-WP/49.

38 C-WP/8054, pp. 2–3.

39 Doc. 9088 Assembly, 20th Session (Extraordinary), Rome, August-September 1973, Report and Minutes of the Executive Committee; Doc. 9225 International Conference on Air Law, Rome, August-September 1973, Minutes and Documents.

40 C-WP/8054, p. 4.

41 C-Min. 115, para. 2.3, point 4.

42 Ibid., para. 6.1.

43 Ibid., para. 8.

44 Doc. 9468-C/iogo, Action of Council, 115th Session, 14-17, 25–26; C-WP/ 8041.

45 See Doc. 9480-C/1092, Action of Council, 116th Session, 46–47; C-WPs/8054 and 8128; Doc. 9487-C/1096, Action of Council, 118th Session, 25–26, 30–31 ; C-WP/8227, C-WP/8253 and Corrigendum, and Discussion Paper No. 1 to C-WP/8253. See text of Model Clause in (1986), 41 ICAO Bulletin 45–46.

46 C-WP/8253, para. u.a. Nevertheless, some states have recently included a specific clause on sanctions in their bilateral air transport agreements. See, for example, the agreement between Austria and The Gambia, dated January 28, 1987; ICAO Registration No. 3344.

47 For a discussion of the Greek proposal, see Gerald F. FitzGerald, op. cit. supra note 9, at 216–18.

48 A26-WP/41, EX/9, p. 2.

49 Resolution A26–4.

50 LC/SC-VIA, Subcommittee on the Development of an Instrument for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, Montreal, January 1987, Report, para. 25.

51 Doc. 9502-LC/186, Legal Committee, 26th Session, Montreal, April 28-May 13. 1987, PP. 4–27 to 4–28.

52 (1987), 42 ICAO Bulletin, No. 6, 29; ICAO State Letter Ref.: LM/9.1-87/64, dated June 10, 1987.