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Development of International Legal Rules for the Repression of the Unlawful Seizure of Aircraft
Published online by Cambridge University Press: 09 March 2016
Extract
The dramatic increase in the number of incidents of unlawful seizure of aircraft during 1968 and the first few months of 1969 has posed one of the most difficult problems ever faced by the international aviation community. The purpose of this note is to examine the existing state of the law governing the unlawful seizure of aircraft, discuss the efforts of air lawyers to attack the problem from the legal point of view, examine proposed legal solutions put forward in ICAO in the last half of 1968 and early 1969, and indicate the extent to which acceptable legal solutions may be found. As will be seen, although the Convention on Offences and Certain Other Acts Committed on Board Aircraft contains a number of provisions on the unlawful seizure of aircraft, it by no means provides solutions for all existing problems.
- Type
- Notes and Comments
- Information
- Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 7 , 1969 , pp. 269 - 297
- Copyright
- 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 1969
References
1 During 1968 there were over a score of hijacking incidents. One of the most dramatic was that of an El-Al aircraft which, after take-off from Rome on July 23, was diverted to Algiers by Arab commandos. Twenty-three non-Israeli passengers were released soon after the aircraft landed in Algiers. Four women and three children among twelve Israeli passengers were released a short time later: The Montreal Star, July 27, 1968, at 4, column 8. On August 31, the aircraft, seven crew members and five Israeli male passengers were released: La Nación, Buenos Aires, September 1, 1968, at 3, columns 3–4.
During the period January 1 to May 26, 1969, there were no less than twenty-six hijacking incidents involving aircraft of the following nationalities: United States of America (16); Colombia (4); Peru (2); Venezuela (1); Ecuador (2) and Greece (I). During the same period, there were six unsuccessful attempts at hijacking involving aircraft of the following nationalities: United States of America (4); Colombia (1) and Mexico(1).
Early in 1969, the United States Federal Aviation Agency announced several actions that it was proposing to take in order to thwart hijackers. These included : (1) field testing of several devices designed to detect weapons carried by potential hijackers; (2) development of methods to examine passengers’ carry-on luggage; (3) the completion of an in-depth FAA psychological study that would develop a ‘“profile” of a typical hijacker so that suspects might be identified at airport terminals; (4) the posting of placards in airports, ticket counters and aircraft warning that aerial piracy or attempt to commit aerial piracy is a federal offence punishable by not less than twenty years’ imprisonment up to the death penalty. It was also the hope of the Department of Transportation and other federal government agencies and the airline industy to make aerial piracy an international, extraditable offence. In addition to these steps, the Department of Transportation had asked the Department of Justice to take prompt and affirmative action in all cases involving hijacking threats.
In the technological field, more than a hundred detection devices had been evaluated by the FAA by early 1969 and more than 1,000 unsolicited suggestions from the public had been studied. (FAA Information 69–25, February 28, 1969).
2 Signed at Tokyo on September 14, 1963. ICAO Doc. 8364. Unless otherwise indicated, all references herein to documents and working papers are to ICAO items.
There is an abundant literature on the subject of offences and certain other acts committed on board aircraft. Items up to early 1963 are collected in FitzGerald, Gerald, F., “The Development of International Rules concerning Offences and Certain Other Acts Committed on Board Aircraft,” (1963) 1 Canadian Yearbook of International Law 230, 231.Google Scholar Items published since that time include the following: Boyle, Robert, P. and Roy, Pulsifer, “The Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft,” (1964) The Journal of Air Law and Commerce 305–54Google Scholar; Boyle, Robert, P., “Jurisdiction over Crimes Committed in Flight: An International Convention,” (1965) 3 Criminal Law Quarterly 68 (Chicago)Google Scholar; FitzGerald, Gerald F., “Offences and Certain Other Acts Committed on Board Aircraft: The Tokyo Convention of 1963,” (1964) 2 Canadian Yearbook of International Law 191–204 Google Scholar; Golstein, René, “La Convention relative aux infractions et à certains autres actes survenant à bord des aéronefs et les pouvoirs du commandant d’aéronef,” (1964) 18 Revue française de droit aérien 19–42 Google Scholar; Gutierrez, Juan J., “Should the Tokyo Convention Be Ratified?” (1965) 31 Journal of Air Law and Commerce 1–21 Google Scholar; Ryuichi, Hirano, “Convention on Offences and Certain Other Acts Committed on Board Aircraft of 1963,” (1964) 8 Japanese Annual of International Law 44–52 Google Scholar; Lodrop, Peter, “Utkast til Konvensjon om forbrytelser og visse andre handlinger foretatt ombord i luftartoy” (Convention on Offences and Certain Other Acts Committed on Board Aircraft), (1963–64) 2 Arkiv for Luftrett 57–82 Google Scholar; Mankiewicz, René H., “La Convention de Tokyo et l’escale en territoire étranger,” (1965) 31 Revue générale de l’air et de l’espace 247–52Google Scholar; Mateesco-Matte, Nicolas, Traité de droit aérien-aéronautique-Evolution et problèmes spatiaux 335–71 (Paris, Pedone, 1964) (see chapter entitled “La Convention de Tokio”)Google Scholar; Nakano, Naoki, “Convention on Offences and Certain Other Acts Committed on Board Aircraft,” (1964) 62 Journal of International Law and Diplomacy 87(579)–92(584) (in Japanese)Google Scholar; Schmidt-Rântsch, G., “Die internationale Luftrechtkonferenz in Tokio (1963) und das Ablommen uber strafbare und bestimmte andere Handlungen au Bord von Luftfahrzeugen,” (1964) 13 Zeitschrift fur Luftrecht und Weltraumrachtsfragen 75–110 Google Scholar; Schuldt, E., “Luftpiraterie und Strafrecht,” (1963) 15 Flugwelt (Wiesbaden) 332 Google Scholar; Smith, Philip, “The Sky Pirates and the Miss Macao,” (1964) 29 United Aircraft Quarterly Beehive 26 Google Scholar; Wilberforce, Sir Richard, , “Crime in Air craft,” (1963) 67 Journal of the Royal Aeronautical Society 175–83Google Scholar; Valladao, Haraldo, “ Piraterie aérienne: nouveau délit international,” in McWhinney, Edward and Bradley, Martin (eds.), The Freedom of the Air 226–37 (Leyden and Dobbs Ferry, 1968).Google Scholar
An interesting discussion of hijacking is found in Bradford, Lee, A., “The Legal Ramifications of Hijacking Airplanes,” (1962) American Bar Association Journal 1034–39.Google Scholar
3 See statement of the Director-General of IATA made to the Sixteenth Session of the ICAO Assembly, in Minute of 3rd Plenary Meeting, September 4, 1968 (Draft A16-Min. P/3). See, also, La Presse, Montréal, February 5, 1969, at 85, column 4.
4 The IFALPA has even hinted at boycotting countries which do not promptly release hijacked airliners, their crews and passengers. See The Montreal Star, February 18, 1969, at 30, column 1.
5 In 1968, the Secretary-General of the United Nations expressed his concern at the increase in hijacking incidents in the addendum to the introduction to his annual report to the General Assembly: U.N. Doc. A/7201/ Add. 1, at 19.
6 At its 53rd Conference, held in Buenos Aires, in August 1968, the ILA adopted a resolution on the unlawful seizure of aircraft in which it urged ICAO to take action on the subject.
7 The hijacker was a United States national by the name of Charles Laverà Beasley. At the preliminary hearing, at Montreal, Sessions Judge Emile Trottier quashed the indictment on the grounds that the Crown had failed to produce the mandatory permission of the Attorney-General of Canada to prosecute charges arising out of a plane in flight, when a non-Canadian citizen is the accused: The Gazette, Montreal, October 18, 1968, at 33, columns 4–6. Later, Sessions Judge John O’Meara dismissed counts including armed theft of an Air Canada Viscount, forcible detention, possession of an offensive weapon, and endangering lives of passengers, but sent the defendant for voluntary statement on charges of kidnapping, mischief and two assault counts: ibid., November 9, 1968, at 3, columns 4–5. On November 15, 1969, Beasley admitted his guilt on these four charges: ibid., November 16, 1968, at 3, columns 1–2 and was sentenced on December 10, 1969, to six years in penitentiary; La Presse, Montreal, December 10, 1968, at 3, columns 7–8, and at 6, column 1.
Canadian courts have jurisdiction over offences committed on aircraft of Canadian registry outside Canadian airspace; provision was made for this by An Act to Amend the Criminal Code, 7–8 Eliz. 2, c. 41, s. 3 (1959).
8 Reproduced in LC/SC SA WD 8, 7/2/69.
9 Ibid.; see also Argentine Law 17.285 (1967).
10
No. 64(1963). Section 11 of this Act provides an interesting example of the escalation of the punishment to fit the crime, as is seen by the following tabular presentation:
11 Mexico. Translation of Article 170(3) of the Penal Code. See Diario Oficial, dated December 24, 1968.
12 1967, c. 52. This Act, with the exception of section 2 (provisions as to extradition, 1870, c. 52) came into force on April 1, 1968: see the Tokyo Convention Act, 1967 (Commencement) Order 1968, dated March 22, 1968: 1968 No. 469 (c.8). See also the Tokyo Convention Act, 1967 (Overseas Territories) Order 1968: 1968 No. 1864, made on November 1, 1968; came into operation on March 1, 1969.
13 Tokyo Convention Act, 1967, c. 52, Section 1(1).
14 Ibid., Section 1(3). For decisions of United Kingdom courts on Article 62(1) of the Civil Aviation Act 1949, see R. v. Martin and others, [1956] 2 Q.B. 272, (1956) 40 Cr. App. R. 68, (1956) U.S.C.Av. R. 141 (Central Criminal Court); R. v. Naylor, [1961] 3 W.L.R. 898, 2 All E.R. 932, 45 Cr. App. R. 69 (Central Criminal Court).
15 Public Law 87–197 of the 87th Congress (75 Stat. 466; 49 U.S.C. 1472 (i)–(n), 1473 a (Supp. III, 1962) amending Sections 902 and 903 of the Federal Aviation Act of 1958 (Public Law 85–726; 72 Stat. 731; 49 U.S.C. 1301–1542). Public Law 87-197 was codified as amended in 49 U.S.C. 1472–1473 and 1511 (1964). (As to various regulations, see CCH). For a comment on the contents of Public Law 87–197, see Mendelsohn, Allan I, “In-Flight Crime: The International and Domestic Picture under the Tokyo Convention,” (1967) 53 Virginia Law Review 534–35.
16 450 U.N.T.S. 11.
17 Congressional Committee Report No. 958, House Committee on Interstate and Foreign Relations.
18 From a detailed discussion of these amendments, see Mendelsohn, supra note 15, at 532–48. Civil courts in the United States of America have meted out three 20-year sentences to hijackers and sentenced three juveniles to indeterminate terms in reform school. In addition, two seamen who were found guilty of aircraft hijacking by the United States Navy General Court Martial were sentenced to four years confinement at hard labour, reduced to lowest grade, dishonourably discharged and forfeited all pay: FAA Information 69-25, February 28, 1969.
19 See discussion below under heading III C, sub-heading ’“Definition.”
20 See discussion of Article 11 of the Tokyo Convention under heading II B below.
21 For substantive and bibliographical material on extradition and rendition, see Castel, J.G., International Law. Chiefly as Interpreted and Applied in Canada 519–24 (Toronto, 1965)CrossRefGoogle Scholar and II O’Connell, , International Law 792–808 (London and Dobbs Ferry, 1965).Google Scholar For some recent information concerning the procedure followed by Canadian authorities in the appre-hension and extradition of fugitives, see (1968) 6 Canadian Yearbook of International Law 266–68. For additional information on recent Canadian practice on extradition matters, see volumes 2–5 of Canadian Yearbook of International Law (1964–1967) under the heading “Canadian Practice in International Law.”
22 Terlinden v. Ames, 184 U.S. 270, 289 (1902).
23 For example, Switzerland.
24 R.S.C. 1952, c127; (1881), 44 and 45 Vict., c.69.
25 R.S.C. 1952, C.322, as amended 1953–54, c.51, s.751.
26 Castel, op. cit. supra note 21, at 520; O’Connell, op. cit. supra note 21, at 795–96.
27 According to information received from the Canadian Department of External Affairs under date of May 9, 1969.
28 For a list of Canada’s partners in these conventions, see (1966) 4 Canadian Yearbook of International Law 273–74.
29 (1968) 6 Canadian Yearbook of International Law 305–06; Re McDougall’s Habeas Corpus Application (1965), 53 W.W.R. 618.
30 Mendelsohn, supra note 15, at 558–62.
31 299 U.S. 5 (1936).
32 Mendelsohn, supra note 15, at 559.
33 Ibid., 561.
34 See, in this regard, an editorial in The Montreal Star, February 21, 1969, at 6, column 2, which after referring to a Mexican-Cuban agreement on the immediate return of air and sea pirates, urges the United States of America “to develop a U.S.-Cuba bilateral agreement as quickly as possible while the International Civil Aviation Organization inches its way toward multilateral acceptance of its far more complex convention on crimes in the air.”
35 Tokyo Convention, Article 3.
36 Ibid., Articles 5–10.
37 Ibid., Articles 11–15.
38 Ibid., Article 11(2).
39 Doc. 8302–1x1/150–3, ICAO Legal Committee, Fourteenth Session (1962), Rome, Vol. II – Documents, 102.
40 Doc. 8565-LC/152–2, International Conference on Air Law, Tokyo, August-September 1963, Vol. II-Documents, 3.
41 LC/SC SA WD1, paragraph 5. See also Doc. 8302-LC/150-1, ICAO Legal Committee, Fourteenth Session (1962), Rome, Vol. I-Minutes, 151 and 154–55
42 Op. cit. supra note 40, at 3.
43 Doc. 8565-LC/152–1, International Conference on Air Law, Tokyo, August-September 1963, Vol. I-Minutes, 151-53 and op. cit. supra note 40, at 164.
44 Op. cit. supra note 40, at 228.
45 Doc. 8565-LC/152–1, International Conference on Air Law, Tokyo, August-September 1963, Vol. I-Minutes, 328.
46 Ibid., 328–29.
47 Ibid., 39a.
48 Tokyo Convention, Articles 13–15.
49 Ibid., Article 16.
50 See, especially, Draft A16-Min. P/3, at 21.
51 Doc. 8774 A16-LE, Report and Minutes of the Legal Commission, Sixteenth Session of the Assembly (1968), at 7, 30–40, 45–46.
52 Draft A16-Min. P/3, at 21.
53 Op. cit. supra note 51, at 7, 30–40, 45–46.
54 Resolution A16–37.
55 Discussion Paper No. 2 relating to C-WP/4885, 10/12/68. The text is also found in Doc. 8784–7 C/981–7, Council, Sixty-fifth Session (1968), Minutes, 7 th Meeting 149.
56 See, in this regard, the remarks of the Lebanese representative in Doc. 8784–8 C/981-8 Council, Sixty-fifth Session (1968), Minutes, 8th Meeting, 17a and Doc. 8784–9 C/981–9, Council Sixty-fifth Session (1968), Minutes, 9th Meeting, 196. At the 9th Meeting, there was a tie vote on a Lebanese proposal to delete the reference to prosecution and on a second vote it was decided by a count of eleven to nine to delete the reference: Doc 8484–9 C/981–9, at 187, 196–99.
57 Doc. 8784–9 C/981–9 Council, Minutes, Sixty-fifth Session (1968), 9th Meeting, 187–88, 196–305. See generally C-WP/4885 and related Discussion Paper. The text of the resolution in final form is as follows:
“THE COUNCIL,
NOTING WITH CONCERN the serious threat to safety in air navigation from the increasing number of acts of forcible and unlawful seizure of aircraft, and
TAKING PARTICULAR ACCOUNT of the provisions of Article 44(h) of the Convention on International Civil Aviation,
URGES Contracting States to take all possible measures to prevent acts of unlawful seizure of aircraft and, where appropriate, to co-operate with any State whose aircraft has been the subject of such a seizure.”
58 For the discussions leading up to this decision, see Doc. 8784–4–5–6 C/9814–5–6 Council, Sixty-fifth Session (1968), Minutes, 4th, 5th and 6th Meetings, 74, 88–89, 92, 94–108, 110 and 112–21.
59 LC/SC SA Report, 21/2/69 (hereinafter sometimes called “Report”), paragraph 5.
60 Ibid., paragraph 6.1.
61 Ibid., paragraph 6.2.
62 Draft convention, Article 2(2), which follows, in this respect, the wording of Article 1 (4) of the Tokyo Convention.
63 Report, paragraph 7(a).
64 The draft convention reproduces in Article 2(1) the definition of the expression “in flight” found in Article 1(3) of the Tokyo Convention, thus: “… an aircraft is considered to be in flight from the moment when power is applied for the purpose of take-off until the moment when the landing run ends.”
65 Draft convention, Article 2(3).
66 Report, paragraph 7(b).
67 LC/SG SA WD 1, paragraph 7.1.
68 Draft convention, Article 1(1).
69 Report, paragraph 8(ii). In this regard, it is recalled that the Tokyo Conference deleted the words “or any other means” from a text of the article on hijacking prepared by the Drafting Committee. See op. cit. supra note 46. These words would clearly have included a case of blackmail.
70 Draft convention, Article 3. The Mexican law quoted earlier in this paper makes express reference to a person who causes the aircraft to change its destination or depart from its route.
71 Draft convention, Article 4. See, in this regard, The International Convention for the Suppression of the White Slave Traffic, signed at Paris on May 4, 1910, and as Amended by the Protocol signed at Lake Success, New York, May 4, 1949 (98 U.N.T.S. 102), Article 3 of which contains an undertaking on the part of the contracting parties, “if their legislation is not at present adequate to punish the offences mentioned in the two preceding articles, to take or to propose to their respective legislatures, the necessary measures to punish such offences in accordance with their gravity.”
72 Draft convention, Article 5(1).
73 See Article 3 of the Tokyo Convention which, at the same time as it states the jurisdiction of the state of registration of the aircraft over offences and acts committed on board, does not exclude any criminal jurisdiction exercised in accordance with national law.
74 Draft convention, Article 3.
75 Report, paragraph 9 B.
76 Doc. 8565–LC/152–2, International Conference on Air Law, Tokyo, August-September 1963, Volume II - Documents, 53. For earlier discussions, in the same subcommittee, see ibid., 31–34, 36–45.
77 Draft convention, Article, 7. Note, in this regard, that, in the case of Charles Lavern Beasley, it was necessary for the Crown to produce the mandatory permission of the Attorney-General of Canada to prosecute the accused who was a non-Canadian citizen: see supra note 7.
78 Report, paragraph 9 C.
79 As to the question of political offences in cases of extradition, see Castel, op cit. supra note 21, at 523.
80 Doc. 8565–LC/152–1, International Conference on Air Law, Tokyo, August-September 1963, Vol. I-Minutes, 139–41.
81 Draft convention, Article 6.
82 Ibid,, Article 7.
83 Report, paragraph 12.
84 Ibid., paragraph 13.
85 Hudson, Manley O., International Legislation, Vol. 4, at 269; 112 L.N.T.S. 371.Google Scholar
86 Report, paragraph 13.
87 Ibid., 15. See, in this regard, Article 10 of the Convention on the Prevention and Punishment of Genocide (December 9, 1948), 78 U.N.T.S. 278, which provides that “Genocide and [certain] other acts… shall not be considered as political crimes for the purpose of extradition.”
88 Report, paragraph 14.
89 Ibid., paragraph 14.1.
90 Draft convention, Article 10.
91 Ibid., Article 11.
92 Even by mid-May 1969, the Tokyo Convention of 1963, which contains useful provisions concerning the suppression of hijacking of aircraft, had received only nine of the necessary twelve ratifications to bring it into force.
93 Report, paragraph 19–22.
94 C-WP/4974, 5/3/69.
95 La Presse, Montréal, March 32, 1969, at 9, columns 1–8; ibid., April 11, 1969.
96 ICAO Press Release, April 14, 1969.
97 Article 52 reads as follows:
“Voting in Council Decisions by the Council shall require approval by a majority of its members. The Council may delegate authority to a committee of its members. Decisions of any committee of the Council may be appealed to the Council by any interested Contracting State.“
On May 13, 1969, the Council appointed the following members of the committee: Australia, Colombia, France, Guatemala, Indonesia, Lebanon, Nigeria, Senegal, Spain, United Kingdom and United States of America. See ICAO News Release, May 15, 1969.
98 See, for example, Indiana statute, Chapter 125, Laws 1969, effective March 12, 1969, which, in regard to weapon possession on aircraft, provides that any person purchasing a ticket shall, by such purchase, consent to a search of his person or personal belongings by the air carrier, and the air carrier may deny the passenger the right to board the aircraft when the passenger refuses to submit to such a search. Commerce Clearing House, Aviation Laws Reports, Paragraph 24.267.
99 Addendum. The foregoing note includes detailed information valid as at mid-May 1969. Thereafter, there were a number of developments to which brief reference may now be made: (1) Incidents of unlawful seizure of aircraft continued unabated with the result that from the beginning of 1969 to the end of September there had been more than fifty such incidents, including one, early in September, in which two Ecuadorean aircraft were hijacked simultaneously and an Ecuadorean crew-member was killed during an intermediate stop in Colombia. (2) On September 16, 1969, Cuba adopted Law 1226 which deals comprehensively with the subject of hijacking and provides for the extradition of hijackers under certain circumstances. (3) The United States of America, having deposited the twelfth instrument of ratification of the Tokyo Convention on September 5, 1969, the Convention was slated to come into force on December 4, 1969. Israel ratified the Convention on September 19, 1969. (4) The ICAO Council committee on unlawful interference with international civil aviation and its facilities held a series of meetings during July, August and September 1969 and heard presentations from such bodies as IATA, IFALPA, INTERPOL, the United States Federal Aviation Agency and the Air Transport Association of America. (5) The ICAO legal subcommittee on unlawful seizure of aircraft held its second session from September 23 to October 3, 1969. It revised the draft convention prepared at its first session held earlier in 1969. This time, the subcommittee achieved a greater degree of unanimity on the principles underlying the convention, most notably in regard to the extradition provisions; in particular, the United States withdrew from its earlier posture to the effect that aircraft hijacking should be an international crime which should not be considered to be a political offence for purposes of surrender or prosecution of the offender. (6) On October 2, 1969, ten states formally submitted a request that the UN General Assembly take up quickly the problem of aerial hijacking. Signing the request were the Netherlands, Belgium, Luxembourg, Argentina, Ecuador, Dominican Republic, Malagasy Republic, Malaysia, Canada and New Zealand.