Hostname: page-component-cd9895bd7-lnqnp Total loading time: 0 Render date: 2024-12-22T10:44:29.587Z Has data issue: false hasContentIssue false

Civil aviation, hijacking and international terrorism — an historical and legal review

Published online by Cambridge University Press:  04 July 2016

Extract

Sadly, recent events continue to keep this subject to the fore — and memories of Dawsons Field, Entebbe, Mogadishu, Stansted, Beirut and Malta, to mention but a few of the most dramatic hijack incidents, are recalled, as are other events such as those of the early morning of 23rd June 1985 when one Boeing 747 of Air India was blown up in mid-air off the West Coast of Ireland, killing all 329 on board, with chance preventing the simultaneous destruction of another at Tokyo.

The seriousness of such incidents has, in recent months, grown from the mere appalling and tragic but occasional incident to one of major world importance having substantial effect on world peace and economic survival. The fact that this is no exaggeration is shown by the bombing raid carried out by the USA on Libya in April 1986, in retaliation for that country’s alleged involvement in or support of international terrorism. The subsequent reported mass cancellation of travel to Europe by Americans with consequential serious commercial implications not only for the airlines operating on the North Atlantic, where, for instance, British Airways reported a 25% drop in passenger traffic, is but one example of the effect of terrorism on the stability of world trade.

Type
Research Article
Copyright
Copyright © Royal Aeronautical Society 1987 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

References

1. The offence of hijacking as created by the Hague Convention required the aircraft to be ‘in flight’ (Art 1) as that expression is defined in Art 3 of the Hague Convention 1970see p54.Google Scholar
2. The escape of the flight deck crew is controversial as some believe that the Captain as Commander is responsible for the aircraft, its crew and passengers and should thus remain with it. He is increasingly trained to deal with such emergencies. The aircraft was, however, grounded without a flight deck crew and thus there was no repetition of the TWA Flight 847 of notorious Beirut fame — June 1985seep60.Google Scholar
3. FAA Statistics — ‘Worldwide Significant Criminal Acts involving Civil Aviation’.Google Scholar
4. So described — see Landes ‘An Economic Study of US Aircraft Hijacking 1971-76’.Google Scholar
5.ICAO Working Paper A26-WP/41/EX9/14/7/86 for the Executive Committee of the Assembly’s 26th Session shows the following list of incidents of bombings at airports serving international air transportation in the period 1973–1985, which,although said possibly not to be complete, serves to illustrate the seriousness of the situation: 1973 — 3 incidents (Calvi; Athens; Rome) 1974 — 2 incidents (Heathrow; Los Angeles) 1975 — 2 incidents (Orly; La Guardia) 1976 — 4 incidents (Tel Aviv; Delhi; Beirut; Ajaccio) 1979 — 2 incidents (Frankfurt) 1981 — 2 incidents (Collingwood; Cairo) 1982 — 2 incidents (Miami; Los Angeles) 1983 — 2 incidents (Narita; Orly) 1984 — 2 incidents (Kabul; Beirut) 1985 — 4 incidents (Frankfurt; Vienna; Rome; Narita) Not included in the list (which is only of bomb attacks) are several shooting and other such incidents adversely affecting the smooth operation of international air services and the security of passengers and airline personnel and facilities.Google Scholar
6. FAA Semi-Annual Report to Congress on the Effectiveness of the Civil Aviation Security Program, April 1983.Google Scholar
7. See Landes ‘An Economic Study of US Aircraft Hijacking 1961-1976’.Google Scholar
8. See page 55 of this paper.Google Scholar
9. Although Cuba has not ratified any of the three conventions the USA and Cuba did sign on 15th February 1973 a Memorandum of Understanding on Hijacking of Aircraft and Vessels and other offences, which Cuba renounced in 1977. Cuba has taken action against a number of hijackers and as reported in the NewYork Sunday Times of 19th November 1972 of ‘approximately 60 American skyjackers in Cuba, 20 are believed to be in jail whilst most of the others are under house arrest, confined in mental hospitals or working in sugar cane fields.’Google Scholar
10. See page 52 for the efforts of the League of Nations and subsequently. ?Google Scholar
11. English courts have claimed ‘jurisdiction to try all cases of piracy jure gentium in whatever part of the High Seas and upon whosoever’s property it may be committed and whether the accused are British subjects or the subjects of any foreign state with whom Her Majesty is at amity’, but piracy was an international offence (Halburys Laws Vol 18 at para 1539) — see also p53.Google Scholar
12. Martin, R.v. (1956) 2QB 272.Google Scholar
13. US v. Cordova 89 F Supp 298 (EDNY 1950) (assault committed on aircraft not covered by maritime statute).Google Scholar
14. Attorney General for the Colony of Hong Kong v. Kwok-A-Sing (1873) LR 5PC 179.Google Scholar
15. Note however ‘the Magellan Pirates’ case (1853) 1 Ecc & Ad 81 where insurgents who seized a ship were held to be pirates because they seized ships of foreign nations indiscriminately and such seizures were in no way related to the insurrection (Halsburys Laws Vol 43 at page 458 Ref 3).Google Scholar
16. See Halsburys Laws Vol 18 at para 1535 et seq. Google Scholar
17. The definition of ‘aircraft piracy’ was extended in the United States by the Anti-Hijacking Act 1974 after Courts held that the offence of attempted hijacking could not occur whilst the aircraft was on the ground — see United States v. Clark 19 US CMA 62 (1969) and House Report No 93-885, 93rd Congress 2nd Session.Google Scholar
18. The need in 1968/9 for ratification by US can be seen from the relative figures 1961-67 8 USA flights hijacked, 1968 —16,1969 — 38.Google Scholar
19. See p53.Google Scholar
20. Contrast with definition of carriage for the purposes of Warsaw Convention liability where the Air Carrier is liable ‘if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking’ (Article 17).Google Scholar
21. ICAO provided the forum for the negotiation of the three conventions and for details of some of the negotiations which led to these conventions and attempts to extend them — see Cheng ‘The Hague Convention on Hijacking Aircraft 1970 —The legal aspects’ and Chamberlain ‘Collective suspension of airServices with states which harbour hijackers’. See also Section 8 of this paper at p58.Google Scholar
22. The United Nations Charter provides that the taking of sanctions against states was within the exclusive competence of the Security Council and its article 41 specifically refers to the complete or partial interruption of air communications as being within such province of the Security Council.Google Scholar
23. Regina, v. Governor of Brixton Prison, Ex parte Holcsykski 1955 1 QB540.Google Scholar
24. Robinson, Quinn v. No C-82-6688 RPA (ND Cal Oct 3 1983).Google Scholar
25. See Sofoer — ‘The political offence exception and terrorism’.Google Scholar
26. A new UK-USA extradition agreement partially dealing with this problem was ultimately ratified by the US on 17th July 1986.Google Scholar
27. See p55.Google Scholar
28. See Busuttil ‘The Bonn Declaration on International Terrorism: A non-binding international agreement for aircraft hijacking.’Google Scholar
29. The Time?, 26th November 1985.Google Scholar
30. FAA ‘Legal status of hijackers’.Google Scholar
31. Text of statement by representatives of Pakistan to ICAO Council on 25th June 1981.Google Scholar
32. The Times, 8th November 1985.Google Scholar
33. See p56.Google Scholar
34. See again text of statement by representative of Pakistan to ICAO Council on 25th June 1981.Google Scholar
35. New York Times, 20th December 1981 and 6th January 1982.Google Scholar
36. See the FAA Semi-Annual Report to Congress on the effective ness of the Civil Aviation security program 1st July-31st December 1982 at p53 Google Scholar
37. See p60.Google Scholar
38. See p55.Google Scholar
39. See (a) ‘The Hague Convention on hijacking aircraft 1970 — the legal aspects’, Professor Bin Cheng, Aeronautical Journal, September 1972. (b) ‘Collective suspension of air services with states which harbour hijackers’, Kevin Chamberlain, 32 International & Comparative Law Quarterly 616.Google Scholar
40. It was at the ICAO Conference in Rome (a few weeks after the August 1973 incident in Athens Airport — see p55) that the Greek delegation put forward a similar proposal, namely that the Montreal Convention be extended to cover acts of violence within airports and airport terminals.Google Scholar
41. The draft Model Clause was first produced by the Canadian delegate to ICAO Legal Committee meeting in London in 1970 (ICAO Doc 8910-LC/163 part III, Annex 5) and was adopted at the 118th Session of the Council of ICAO on 25th June 1986, but it is of course only a recommendation for the states to consider incorporation in Bilateral Agreements.Google Scholar
42. The preparation of the profile was begun in 1968 by representa tives of the FAA and the Departments of Justice and Com merce based upon a detailed study of characteristics of all the known hijackers — See McGinley & Downs — ‘Airport searches and seizures — a reasonable approach’, whose article is based upon the belief that the airport screening procedures then in use were neither effective nor constitutional, although such constitutionality of searches of those meeting ‘the hijackers profile’ was upheld in United States v. Lopez 328 F Supp 1077 (EDNY 1971). By the Air Transportation Security Act 1974 all passengers had to be screened by means of weapon-detecting procedures before boarding any flight and the FAA had additional power to search all embarking passengers and baggage. Airlines continue to train their check-in and other staff with adapted and updated profiles.Google Scholar
43. See the FAA’s Semi Annual Report to Congress on the effectiveness of the civil aviation security program, 1st July-31st December 1982, dated April 1983.Google Scholar
44. Semi-Annual Report for period 1st January-30th June, 1983.Google Scholar
45. Dawson’s Field incident — see p54 of this paper.Google Scholar
46. Egyptair Malta incident — see p60 of this paper.Google Scholar
47. See ‘ The Hague Convention on hijacking aircraft 1970 — the operational angle’, Newman, D.F.. See also the Egyptair Malta incident recorded at p60 in which armed security guards were involved in an inflight gun battle.Google Scholar
48. TWA Beirut incident — see p60 of this paper.Google Scholar
49. See ‘ New weapons to beat sky pirates’, Ellis Plaice.Google Scholar
50. See Warsaw Convention 1929, the Hague Protocol 1955, Guadalajara 1961 and the Montreal Inter Carrier Agreement 1966 and the three Montreal Protocols 1975.Google Scholar
51. Husserl, v. Swissair Transport Co Ltd 351 F Supp 702 (SDNY 1972) aff’d per curiam 485 F 2d 1240 (2nd Cir 1973), Solerno, v. Pan American No 82 Civ 5316 (MEL) SDNY 1985) and The Law Society’s Gazette, 11th September 1985 that diversion of aircraft because of a report that a bomb was on board was an 3c*cidentGoogle Scholar
52. Air France v. Saks, 105 SCt 1338, 84 LEd 2nd 289(1985).Google Scholar
53. Burnett, v. TWA, 368 F Supp 1152 (DMN 1973).Google Scholar
54. Rosman, v. TWA, 34NY 2d 385 and (358 NYS 2d 97(1974).Google Scholar
55. Husserl, v. Swissair, 388 F Supp 1238 (SDNY 1975).Google Scholar
56. Contract the definition of the offence of hijacking as defined in the Hague Convention where ‘flight’ begins with the closure of the aircraft door after embarkation and ends with the opening for disembarkation, with the wider Warsaw Convention liability for air carriers which includes the operation of embarking and disembarking — see p54.Google Scholar
57. Day, v. TWA, 528 F 2d 31 (2nd Cir 1975).Google Scholar
58. Evangelinos, v. TWA, 550 F 2d 152 (3rd Cir 1977).Google Scholar
59. See also Re Korean Air Lines Disaster, United States District Court for the District of Colombia 1st August 1985, where it was held the Soviet missile attack on the Korean aircraft (KAL 007) was not reasonably foreseeable by the designers and manufacturers of the navigation system which failed. Further, it was held that the Soviet attack was an independent and intervening cause of the damage thus relieving the designer and manufacturer of legal responsibility.Google Scholar
60. Rookard, v. Mexicoach, 680 F 2d 1257 (9th Cir 1982).Google Scholar
61. Semmelroth, v. American Airlines, 448 F Supp 130 (ED III 1978).Google Scholar
62. United Airlines v. Larner, (410 NE 2nd 225 1980).Google Scholar
63. See p52.Google Scholar
64. See p60.Google Scholar
65. See p56 of this paper.Google Scholar
66. See ‘ The financing of terror’ — James Adams.Google Scholar
1. Halsbury’s Laws of England, 4th Edition (Vols 2 (Aviation), 18 (Foreign Relations), 43 (Shipping)).Google Scholar
2. Air Law, Shawcross & Beaumont, 4th Edition.Google Scholar
3. 1967, Crimes on aircraftAnthony, Lester, 117 New Law Journal, 497.Google Scholar
4. 1970, Another look at hijacking, Peter, Martin, 60 Law Guardian, 19.Google Scholar
5. 1972The Hague Convention on Hijacking Aircraft 1970 — the legal aspects, Professor Bin Cheng, and The operational angle, Newman, D.F., Flight Control Manager, BOAC. The Aeronautical Journal, September 1972.Google Scholar
6. 1972, Airport searches and seizures — a reasonable approach, McGinley, Patrick W. and Downs, Stephen F., 41 Fordham Law Review, 293.Google Scholar
7. 1973, The Government’s response to hijacking, Davis, Benjamin O., 18 Villanova Law Review 1012.Google Scholar
8. 1978, An economic study of US aircraft hijacking 1961-1976, William, Landes, 21 Journal of Law & Economics, (1978).Google Scholar
9. 1981, Text of statement by the representative of Pakistan to ICAO Council on 25th June 1981 as to the Afghan hijack incident.Google Scholar
10. 1982, The Bonn declaration on international terrorism: a non- binding agreement on aircraft hijacking, Busuttil, James J., 31 International & Comparative Law Quarterly 474.Google Scholar
11. 1983, Collective suspension of air services with states which harbour hijackers, Kevin, Chamberlain, 32 International & Comparative Law Quarterly, 616.Google Scholar
12. 1983, The Semi-Annual Report of the FAA to Congress on the effectiveness of the civil aviation security program, July- December 1982 (being the end of the first decade of such program), published April 1983.Google Scholar
13. 1986, The political offense exception and terrorism, Sofaer, Abraham D. — the Forum, newsletter of The District of Columbia Chapter, Federal Bar Association, Vol 24 No 2 (March).Google Scholar
14. 1986, Combatting terrorism, Steenblik, Jan W. Airline Pilot, published by the US ALPA, April 1986.Google Scholar
15. 1986, New weapons to beat sky pirates, Ellis, Plaice, Airline World, 19th June 1986.Google Scholar
16. 1986, The death of Air India Flight 182, Selim, Jiwa, Allen, W. H. & Co Pic.Google Scholar
17. 1986, The financing of terror, James, Adams, New English Library.Google Scholar
18. International Civil Aviation Organisation. (i) Resolutions of the ICAO Assembly A22-1622nd Assembly — 4th October 1977 A23-21— 23rd Assembly — 6th October 1980 A24-18/19 24th Assembly — 7th October 1983 (ii) ICAO General Assembly Working Paper 41 (A26-WP/ 41) relating to the proposed Instrument for the suppression of unlawful acts of violence at airports serving international air transportation, (iii) ICAO model clause on aviation security for bilateral agreements to the ICAO Council on 25th June 1986.Google Scholar
19.Statistics and Reports maintained by: (i) The US Federal Aviation Authority, (ii) Public Information Office of the International Civil Aviation Organisation, and (iii) The International Federation of Air Line Pilots Associations.Google Scholar