1. The word “skyjacking” is also current. The etymology of the term “hijacking” or “high-jacking” is obscure. Most probably the word dates back to circ. 1924, viz., the Prohibition period in the United States and was a slang term used to denote preying on bootleggers, appropriating and profiting by their illicit liquor (see in this connection the case of State v. One Certain Buick Sedan, 209 Iowa, 791, 229 N.W. 173, 176). The term has also been employed later in the sense of illegally carrying off, i.e., abducting or kidnapping and is currently used also in the sense of robbery and theft (see New York Times, 04 2, 3 and 4, 1967Google Scholar; etc.). Hereinafter, the term “hijacking” will be used only in the sense of “hijacking of aircraft” or “unlawful seizure or exercise of control of aircraft” in order to distinguish it from “hijacking of ships” or other means of transportation. For the hijackings of the ships The Santa Maria and The Anzoategui — usually called “unlawful interference with ships on the high seas”—see our work The Right of Hot Pursuit in International Law (Nova et Vetera Juris Gentium, Series Modern International Law of the Institute for International Law of the University of Utrecht, No. 5), Leyden, 1969, pp. 222–223 and 301. A more or less similar case was that of the Panamanian cargo The Freight Transporter which was seized off Miami by a group of Cuban exiles on July 11, 1967. The Federal Tribunal of Miami did not hold this case to be an act of piracy, and rightly so (see The Times, 10 26, 1967Google Scholar). One could also mention at this place the case of the U.S. vessel The Columbia Eagle. This steamship, while sailing in the Gulf of Siam, was taken over by means of a ruse by two mutinous members of the crew who hijacked the vessel to Sihanoukville. For more details see Time, 03 30, 1970, at p. 19.Google Scholar With respect to the sequel to that case, see International Herald Tribune, 12 30, 1970.Google Scholar

For the notion of hijacking and its distinction from air piracy, see our article: “Hijacking or Air Piracy?” in Nederlands Juristenblad, 05 16, 1970, pp. 566–574.Google Scholar See also infra, pp. 64–65.Google Scholar

2. This mass reaction is, inter alia, due: first, to the recent occurrence of hijackings in a very rapid sequence; second, to the impact that everything connected with aircraft distress makes; and third, to the fact that the associations of those directly involved in the aviation business, such as the airlines, the airline pilots and the aviation insurers have succeeded, justifiably, in arousing world public opinion against the perpetrators of such acts.

3. See also in this connection our article “Some Problems of International Law Connected With Urban Guerrilla Warfare: The Kidnapping of Members of Diplomatic Missions, Consular Offices and Other Foreign Personnel”, in Annals of International Studies, Geneva, 1972 (under print).Google Scholar

4. See also in general A. J. P. Tammes, Conflicten, Amsterdam, 1971.Google Scholar

5. For a discussion of some of the reasons for this sudden rise of hijacking instances, see “Hijacking or Air Piracy?”, op. cit., p. 566 ff.Google Scholar

6. In 1948, a Greek airliner on a regular commercial flight from Athens to Ioannina was forced by Greek students on board the aircraft to fly to and land in Yugoslavia. For an account of this case as well as of other instances of hijacking see The Right of Hot Pursuit in International Law, op. cit., pp. 299–300.Google Scholar The hijacking of a Bulgarian airplane in 1948 was mentioned by the Bulgarian delegate at the Hague Diplomatic Conference (December 1–16, 1970). For statistical data regarding instances of hijacking which occurred during the years 1961–1969 see Council of ICAO, 67th Session, Air Transport Committee, Doc. AT.WP/1005, 28.4.69. Appendices A-C, pp. 5–17.Google Scholar However, the tables contained in this document are not complete. Therefore, reference is made here mostly to data, collected by the present writer, regarding the years 1959–1971:

1959: 2 completed hijackings.

1960: none

1961: 6 completed hijackings; 2 attempts.

1962: 1 completed hijacking; 2 attempts.

1963: 2 completed hijackings.

1964: 2 completed hijackings, including one of an helicopter; 1 attempt.

1965: 2 attempts at hijacking.

1966: 2 completed hijackings; 2 attempts.

1967: 5 completed hijackings.

For total figures of hijackings during the years 1968–1970, see the text of the present study.

7. See also Doc. AT.WP/1005, op. cit., Appendix C, pp. 11–13.Google Scholar

8. Ibid., Appendix C, pp. 9–10.

9. This phase started in the wake of Fidel Castro's coming to power and the cold war which has been waged ever since mainly between the United States and Cuba. Originally, the flow of hijackers was westward, namely from Cuba to the United States. The Chairman of the Cuban delegation to the United Nations General Assembly's 24th and 25th sessions, Ricardo Alarcón Quesada, alleged that the United States and certain other Governments of Latin America had promoted the hijackings of Cuban aircraft and ships to the United States, where they had often been expropriated. He further accused the United Nations of not showing at that time the slightest concern over this problem and added that the total of craft hijacked to the United States and other countries has amounted to 33 Cuban airplanes and 264 Cuban ships. For these statements see U.N. Monthly Chronicle, Vol. VI (1969), No. 10, pp. 165–166Google Scholar and U.N. Monthly Chronicle, Vol. VII (1970), No. 10, pp. 170–171.Google Scholar

Later, the course of hijackings took a reverse direction, viz., from the United States and other Latin American States to Cuba, with still a few westward bound hijackings. Thus, in 1961, three completed hijackings and two attempts to hijack an aircraft had, as an objective, to bring the aircraft to Cuba. This number in 1962 was one completed hijacking, while in 1964 both the United States and Cuba drew with one hijacking on either side. In 1965 there were two attempts to hijack an aircraft to Cuba. In 1966 an attempt to hijack a Cuban airplane was foiled while another Cuban airliner was hijacked to Jamaica. The year 1967 witnessed the hijacking to Cuba of two Colombian airliners and of a small chartered U.S. aircraft. In 1968, out of the total number of thirty completed or attempted hijackings, twenty-four aimed at forcing the aircraft to land in Cuba. Finally, in the first four months of 1969 this number jumped to twenty-four. For statistical tables see also Aircraft Piracy, Preliminary Report of the Committee on Interstate and Foreign Commerce, House of Representatives, 91st Congress, 1st Session, Washington, 1969Google Scholar, Appendices 1–4, pp. 11–15.Google Scholar

10. It is suggested that this phase started on July 22, 1968, when an El Al Boeing 707 was forced by a Palestinian commando to alter course and land at Dar El Beida airport in Algeria. It is submitted that the hijacking of an Egyptian airliner to Jordan on February 8, 1967, and the abduction, on June 30, 1967, of former Congo Premier Moise Tschombe do not fall within this phase. For more details on this last sensational hijacking, see Time, 07 14, 1967, pp. 19–20.Google Scholar

11. For figures regarding hijackings of the Cold War period and especially before 1961, see Evans, “Aircraft Hijacking: Its Causes and Cure”, “American Journal of International Law”, 1969, p. 695Google Scholar ff. This phase now takes on additional importance in view of recent completed hijackings originating from Eastern European States and especially the USSR. See also infra, note 143.

12. For the hijackings which followed the taking over of power in China by Mao Che Tung, see Evans, op. cit., at p. 695Google Scholar ff. The Korean armed conflict (1950–1953) and its aftermath as well as the present armed conflict in Vietnam have also favoured a number of hijackings. Thus, inter alia, in February 1958 a South Korean aircraft DC-3 was forced to fly to and land in North Korea. For the case involving a PAA airliner on a Saigon-Hong Kong scheduled flight on February 9, 1968, see Doc. AT-WP/1005, at p. 11. For some additional cases see infra, notes 17 and 51.

13. On April 23, 1968, a Nigerian airliner on a domestic scheduled flight from Berlin to Lagos was forced to fly to and land at Enugu in Biafra. The Ethiopean Airlines have also been involved in a number of recent hijacking instances.

14. As an example of this type of cases, one may cite Raffael Minichiello, the 20-year-old U.S. Marine lance corporal who hijacked a TWA aircraft to Rome on October 31, 1969. For a discussion of this case see “Hijacking or Air Piracy?”, op. cit., pp. 566 and 568.Google Scholar

15. Reference is made particularly to the hijackings which were perpetrated on September 6, 1970, by the extremist Arab terrorists of the Popular Front for the Liberation of Palestine of George Habash. On that day three unlawful seizures of aircraft were performed and one attempt at hijacking was thwarted. For these hijackings and their repercussions see The Times, 09 8, 1970Google Scholar; International Herald Tribune, 09 8, 1970Google Scholar, et seq.; Le Monde, 09 8, 1970Google Scholar; Time, 09 21, 1970Google Scholar, September 28, 1970, October 5, 1970, October 12, 1970; etc.

A most colourful hijacking occurred on March 31, 1970, when fifteen Japanese students hijacked a Japanese Boeing 727 and forced it, after many adventures, to land at Pyong Yang in North Korea.

16. In the previously mentioned hijackings by the PFLP of a TWA Boeing 707 and of a SWISSAIR DC 8, originally 305 passengers and crew members were held as hostages. After releasing at first about 80 women, children and old people, the Palestine guerrillas demanded in exchange for the passengers held aboard the two skyjacked airliners the release of seven Arab guerrillas held in Britain, Switzerland and West Germany. Moreover, threats were pronounced by the guerrillas to blow up the two planes. Finally, all seven guerrillas were freed.

A rather similar coup de théâtre took place in the first week of August 1970, when an Olympic Airways aircraft bound for Athens was seized by six Arab students, members of the Amman-based Popular Struggle Front. After landing in Athens airport, the skyjackers threatened to blow up the airliner unless seven Arab terrorists held in Greek prisons were freed. Eventually, after many discussions, the airplane left for Cairo following a promise by the Greek authorities to release the seven terrorists to the Red Cross within one month (for this case see Time, 08 3, 1970, pp. 19–20Google Scholar). The seven Arab terrorists were in fact freed about a month later.

17. In the foregoing hijackings by the PFLP all three aircraft were blown up. In the case of the two aircraft held near Zarqa destruction of the aircraft took place even before expiry of the guerrillas ultimatum. The destruction of these three aircraft resulted in huge losses for the insurance companies with which the airplanes were insured. This is the reason why a considerable increase in premiums for the coverage of aircraft was considered at that time.

The TWA Boeing 707 jet, blown up at Zarqa by Palestinian guerrillas, was covered entirely in the London market for about $ 9 million in war-risk coverage. In the case of PANAM Boeing 747 Jumbo—blown up at Cairo airport on September 6, 1970—Pan American World Airways filed a suit on March 12, 1971, for $ 24 million against Lloyd's of London, the United States Government and fourteen other American and British insurance companies. Pan American had an all-risk coverage for the aircraft of $ 24,288,759 and a war risk insurance of $ 23.9 million. The participation of Lloyd's—which is the only group to cover war risks—in the war-risk coverage of the aircraft was 58.5 percent, while Lloyd's participation in the all-risk insurance of this aircraft was only c. 17 percent. Following lengthy and unfruitful discussions with Lloyd's, PANAM filed the above-mentioned unprecedented suit in the U.S. District Court for the Southern District. Thus, if the Court holds that the destruction of the PANAM Jumbo Jet is covered by war-risk insurance, Lloyd's underwriters will be obliged to pay $ 14 million, while if the Court decides that the loss is covered by all-risk insurance, Lloyd's will pay about $ 4 million only. For more details on this interesting case see Le Monde, 03 15, 1971Google Scholar; International Herald Tribune, 03 15, 1971.Google Scholar

A destruction of a hijacked aircraft of Air-India took place at Lahor airport in Pakistan in February 1971. The Indian airliner, with thirty passengers and two crewmen, was hijacked by two members of the Kashmir Liberation Front who refused to leave the plane unless thirty-six persons (allegedly detained by India in Kashmir) were freed. India at first rejected the demand. The plane was, however, blown up by the two hijackers, before expiry of the ultimatum, five days following the hijacking. The responsibility in this case of the Government of Pakistan, which refused the immediate return of the aircraft and granted political asylum to the two hijackers, is grave.

It should be noted that, while the present article was under print, the Government of India filed, on August 30, 1971, in the Registry of the International Court of Justice an Application instituting proceedings against Pakistan (see International Court of Justice, Communiqué, Nos. 71/11 of 09 1, 1971Google Scholar, and 71/12 of September 16, 1971). The history of this case dates back to February 1971, when following the previously mentioned destruction of an Indian airliner, the Government of India decided no longer to permit Pakistan aircraft to fly over its territory. The I.C.J. is requested to answer the question whether the Council of ICAO has jurisdiction to deal with a complaint by the Government of Pakistan against the aforesaid decision of India.

18. The PFLP hijackings of September 6, 1970 were not undertaken for the sole purpose to force a release of the Arab guerrillas kept prisoner in Western Europe, or of other Arab guerrillas held by the Israelis. One may also advance the opinion that they aimed at frustrating the cease-fire and the negotiations between the Arab States and Israel following President Nasser's acceptance on July 23, 1970 of the United States call to this end. However, what they achieved was to prejudice the Arab cause and the particular interests of Arab guerrillas in many ways. Thus: 1) these hijackings precipitated the first open confrontation between the Palestinian guerrillas and King Hussein's forces, with the well-known results for the Palestinian movement and the innocent civil population in the area of civil war; 2) at a moment when world public opinion was looking favourably on the moderation shown in the Arab camp with regard to cease-fire and peace talks with Israel, the above-mentioned events shifted at that time this opinion against the Arabs; and 3) world attention was distracted from Israel's attempt at that time to back out of the peace talks. For an implied criticism in this respect of the Israeli attempt see International Herald Tribune, 09 24, 1970Google Scholar; see further statement by the French Minister of Foreign Affairs Maurice Schumann, in Le Monde, 09 24, 1970.Google Scholar

The fact that Egypt had violated the cease-fire agreement, by moving new SAM 3 missile sites along the Suez Canal, is indisputable (see also statement by the U.A.R. Permanent Representative to the United Nations, in U.N. Monthly Chronicle, 10 1970, p. 120Google Scholar). However, this was not a serious argument to back out of the peace talks which Israeli statesmen of good will had always welcomed. Cf. also in this connection statement by Israeli Foreign Minister, Abba Eban, before the U.N. General Assembly (25th session): “The Egyptian violation of the cease-fire agreement is only one of the obstacles impeding progress towards peace” (U.N. Monthly Chronicle, 10 1970, p. 109Google Scholar) (emphasis supplied).

19. See in this connection U.N. Security Council Resolution 286 (1970) as well as statements by representatives of States during the 25th session of the U.N. General Assembly, culminating in the adoption on November 25, 1970, of a new Resolution by the U.N. General Assembly. This Resolution followed U.N. General Assembly Resolution 2551 (XXIV) of 12 12 1969.Google Scholar See further Resolution 450 (1970) on Air Piracy passed on 18 September 1970 at the 22nd Ordinary Session of the Consultative Assembly of the Counsil of Europe as well as Recommendation 613 (1970) on Air Safety and Unlawful Seizure of Aircraft approved on 24 September 1970 by the Consultative Assembly of the Council of Europe. This Recommendation followed Recommendation 599 (1970) of the Consultative Assembly of the Council of Europe on Air Piracy, adopted on April 18, 1970, and Resolution (70) 23 of the Committee of Ministers of the Council of Europe adopted on 29 June 1970.

20. About this time, the International Law Association, holding its 53rd Conference in Buenos Aires (August 25–31, 1968), discussed the problem of hijacking and established the Committee on Piracy (Sea and Air) under the Chairmanship of Professor H. Valladâo to deal with the question of hijacking. For an account of this Conference, see Gerald F. FitzGerald, “International Law Association—Fifty-third Conference—Buenos Aires”, in Journal of Air Law and Commerce, Spring, 1969, at p. 246.Google Scholar

21. See ICAO Doc, Restricted Information Paper C-WP/4885, 6–11–68, Attachement 1, p. 7.Google Scholar

22. See C LXV-6, 7, 8 and 9. For the Council's decision of 28 September 1968, see Draft C-Min. LXV/1, Open, Part I, p. 8Google Scholar and Part II, para. 60.

23. See Council, 65th Session, Restricted Information Paper, C-WP/4885, 6.11.68, pp. 1–9Google Scholar; Council, 66th Session, 1251st Report to Council by President of the Air Navigation Commission, Restricted Information Paper, C-WP/4976, 7.3.69, pp. 1–4.Google Scholar See also ICAO Documents: AN-WP/3550; AN-WP/3555; ANC LX-5; ANC LX-13. For the Minutes of the 65th Session of the Council, see Documents: 8784/4–8784/9/C 981/4–981/9/C-Min. LXV-9. See also 67th Session of the Council, Air Transport Committee, Doc. AT-WP/1005, 28.4.69.

24. For the first Report of the Sub-committee on Unlawful Seizure of Aircraft (10–21 February 1969), see Doc. LC-SC SA, 21.2.69, pp. 1–15.Google Scholar The text of the Draft Convention is printed in pp. 7–9 of this document. For the work of the Sub-committee during the first session see Documents LC/SC SA WD, 1–17.Google Scholar The Draft Report of the Sub-committee (23 September-3 October 1969) is set forth in Doc. LC/SC SA, 29.9.1969, pp. 1–6.Google Scholar The Draft Convention, as amended, is printed in Annex B of this Draft Report, at pp. 1–4. Finally, the Second Report of the Sub-committee is contained in Doc. LC/SC SA, 3.10.1969, pp. 1–16.Google Scholar The Draft Convention is to be found in pp. 13–16 of this document. For the work of the Sub-committee during the second session, see Doc. LC/SC SA WD 18–38. See also on the Draft Convention on Unlawful Seizure of Aircraft, H. F. van Panhuys, “Aircraft Hijacking and International Law”, in Columbia Journal of Transnational Law, Spring, 1970, at pp. 2–4.Google Scholar

25. For the work of the Legal Committee during its Seventeenth Session, see Doc. 8865, LC/159, Part II, pp. 19–33. For the Minutes and related documents of this Session of the Legal Committee, see Doc. 8877, LC/161. For the text of the Draft Convention prepared by the Legal Committee of ICAO see SA Doc. No. 4.

26. For the text of Resolutions A 17–3 and A 17–4 of the Seventeenth (Extraordinary) Session of the Assembly of ICAO (Montreal, 16–30 June 1970), dealing with the expeditious ratification of the Convention on Unlawful Seizure of Aircraft and with the question of reporting information regarding hijacking to the Council of ICAO, see SA Doc. No. 1, Attachement 2.

27. Seventy-seven States were invited to and took part in the Hague Diplomatic Conference. Moreover, twelve International Organizations, including the United Nations, the Council of Europe and the International Law Association, were represented by observers.

28. In the final voting on the whole of the Convention 74 were in favour, none against, and there were two abstentions—Chile and Algeria. The explanation of vote gave the opportunity to the representative of Chile to explain the position of his delegation on the ground of the change of the political regime in Chile at that time and the lack of time to take instructions thereon. Algeria explained its vote on the ground mainly that the motives of the offender were not taken into consideration in the Convention. The one missing vote was that of El Salvador, the delegate of which was unable to participate in the voting owing to illness. He explained that if he were present, he would have voted in favour of the Convention.

29. Thus, no interim measures until the coming into force of the Convention, as the Legal sub-committee envisaged, will be necessary.

30. See ICAO Doc. LC/SC SA Report I (21.2.69) of the Legal sub-committee on Unlawful Seizure of Aircraft, at p. 2.

31. See ICAO Documents LC/SC SA Draft Report II (29.9.69) at p. 1 and LC/SC SA Report II (3.10.69) at pp. 1–2, of the Legal sub-committee on Unlawful Seizure of Aircraft.

32. See ICAO Doc. LC/SC SA Report II, p. 2.Google Scholar

33. See ICAO Documents LC/SC SA Draft Report II, Annex B, and LC/SC SA Report II, Annex C.

34. See SA Doc. 4.

35. Cf. also Resolution A 17–10, Appendix B-30, passed at the 17th session of the ICAO Assembly.

36. See SA Doc. No. 16, p. 1.

37. See SA Doc. No. 32, p. 1.

38. Ibid.

39. See SA Doc. No. 61.

40. The U.S. delegation voted against this proposal, while the USSR and the U.K. delegations in favour of it.

41. See SA Doc. No. 51.

42. Note also that the Tokyo Convention (1963) does not include any Preamble containing general guidelines and objectives. It contains the simple formula: “The States Parties to this Convention have agreed as follows:” This formula is also met in many other Conventions, such as the Geneva Convention on the Territorial Sea and the Contiguous Zone (1958) and the Geneva Convention on the Continental Shelf (1958).

43. See Documents LC/SC SA Report I; LC/SC SA Draft Report II; LC/SC SA Report II.

44. See Doc. LC/SC SA Report I, at p. 3.

45. For the work of the Legal Committee of ICAO during its Eighteenth Session as well as for the text of the Draft Convention, see Doc. 8910, LC/163, 27/10/70.

46. See SA Doc. No. 4, p. 3.

47. See SA Doc. No. 7, containing the Comments by the I.C.C.; SA Doc. No. 8, Comments of Ghana; SA Doc. No. 15, Comments of Mexico; SA Doc. No. 16, Comments of Japan; SA Doc. No. 18, Comments of Ireland; SA Doc. No. 19, Resolution of the I.L.A.; SA Doc. No. 23, Proposal by the Netherlands; SA Doc. No. 29, IFALPA proposals; SA Doc. No. 32, Proposals by the Soviet delegation; SA Doc. No. 36, Proposal by Japan; SA Doc. No. 41, Joint Proposal by Switzerland and New Zealand; SA Doc. No. 50, Proposal by Australia.

48. See Doc. SRC/2, 3/12/70.

49. Ibid.

50. See Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on 16 December 1970. It should be noted that in the French text of the official version of the Convention, circulated to the delegates and observers on the day of the signing of the Convention, the words “ou de n'importe quelle forme d'intimidation”, corresponding to the English words “or by any other form of intimidation” and to the Spanish text “o cualquier otra forma de intimidación” had been omitted by error. It is not known to the present author if this omission also occurs in the authentic French text of the Convention. If it does, then the usual procedure for the correction of errors in texts of treaties should be applied (cf. Article 79 read together with Article 10 of the Vienna Convention on the Law of Treaties (1969), Doc. A/CONF. 39/27). In fact, it is suggested that the words used now in the French text “illicitement et par violence ou menace de violence” do not cover all the forms of intimidation.

51. Such cases have already occurred. See, e.g., the case re Kavic, Bjelanovic and Arsenijevic, in Annual Digest, 1952, p. 351Google Scholar ff. See also the rather recent case of a South Korean airliner with 47 passengers on board and four crew members, which was hijacked by its pilot and co-pilot to Wonsan in North Korea on December 11, 1969. Twelve passengers in the aircraft, as well as the pilot and co-pilot of course, preferred to stay in North Korea. For this incident see International Herald Tribune, 02 16, 1970Google Scholar; Le Monde, February 8–9 and 15–16, 1970.

52. See our paper presented before the Piracy (Sea and Air) Committee of the I.L. A., at its 54th Conference at The Hague in August 1970, in Report of the 54th Conference (under print).

53. Such a reason could have been distress, or bad weather conditions at the airport of destination and instructions to fly to a close airport in a neighbouring country.

54. Cf. also Article 2, para. 3, of the Convention to Deter Aircraft Hijacking.

55. See, e.g., Article 44, para. 1, of the Greek Criminal Code (1950). Paragraph 2 of this article provides that even after completion of the act, if the offender on his own initiative prevented the result of his act from taking place, he may, under special circumstances, not be punished.

55a. By virtue of the Hague Convention (1970), an attempt to hijack an aircraft is punished under the same conditions as the act itself.

55b. Cf. also U.S. Public Law 87–197, 87th Congress, S 2268, 09 5, 1961Google Scholar, “False Information” which prescribes penalties of not more than one year in prison or a fine of not more than $ 1,000 or both. If false information is imparted or conveyed “wilfully and maliciously, or with reckless disregard for the safety of human life” penalties are prescribed of not more than five years imprisonment or a fine of not more than $ 5,000 or both. It should be noted that several instances have been reported where such “jokes” have resulted in great delay in international air services and considerable anxiety among airline passengers. See, for such an incident, International Herald Tribune, 09 23, 1970.Google Scholar

The Air Transport Association of America has warned the public against “jokes” in connection with hijacking of aircraft or bomb scares. This occurred in the wake of a prosecution in September 1970 of a United States citizen by a court in Minneapolis on the ground of a “joke” made by this person while booking for a trip with an air company. See also in this connection International Herald Tribune, 09 28, 1970.Google Scholar

55c. See ICAO Documents LC/SC SA Report II, 3.10.69, p. 4 and LC/SC SA Draft Report II, 29.9.69, p. 3.

55d. Mere interference should not be confused with the notion of interference with flight attendants or with unlawful interference against international civil aviation. For the notion of interference see U.S. Public Law 87–197, 87th Congress, S 2268, 09 5, 1961Google Scholar, “Interference with Flight Crew Members or Flight Attendants”. Cf. also Article 1 (5) of the Draft Convention on Acts of Unlawful Interference Against International Civil Aviation.

55e. See previous note. See also Article 291 of the Greek Criminal Code (1950). See further in this context law of Saudi Arabia, in Air Laws and Treaties of the World, Vol. II, p. 2197; etc.Google Scholar

56. See LC/SC SA-Report I, 21/2/69, p. 7; LC/SC SA-Draft Report II, 29/9/69, Annex B, p. 2; and LC/SC SA-Report II, 3/10/69, p. 14.Google Scholar

57. The Tokyo Convention (1963) contains two definitions of the term “in flight” in Articles 1, para. 3, and 5, para. 2.

58. See SA Doc. No. 4.

59. See SA Doc. No. 38.

60. Cf. also Alex Meyer, Internationale Luftfahrtabkommen, Vol. V, Cologne, 1964, p. 354.Google Scholar

61. See also Article 7, para. 1 (b), of the Tokyo Convention (1963), Article 5, para. 3, of the Draft Convention on Offences and Certain Other Acts Occurring on Board Aircraft (ICAO Doc. 8014 LC/144, 4/9/59, Annex C), and Article 5, para. 3, of the Draft Convention prepared in Montreal in April 1962. These two last Draft Conventions belong to the preparatory documents of the Tokyo Convention (1963). Now, Article 5, para. 2, of the second Draft Convention previously mentioned read in part: “In the case of a forced landing outside an airport, such powers of the aircraft commander shall continue as to acts committed on board until competent authorities take over the responsibility for the aircraft, persons and property on board”. Article 5, para. 2, of the Tokyo Convention (1963), which repeated with certain amendments, the text of Article 5, para. 3, of the above Draft, omitted the words “outside an airport”. For a discussion of these Articles of the Tokyo Convention see our article “The Legal Status of the Aircraft Commander”, in Legal Tribune, 1961, No. 1, pp. 55–58 (in Greek).Google Scholar

The Chicago Convention (1944) does not include any indication of the features of a forced landing either.

62. See supra, note 15.

63. See also similar wording of Article 4 of the Draft Convention on Unlawful Interference.

64. See LC/SC SA-Report I, 21/2/69, p. 3.

65. See in this connection the hijacking in April 1962 of a small aircraft by M. Oeth and D. T. Healy, who forced the pilot to fly from Miami and land at Havana.

66. The use for the above-mentioned purposes includes, for example, surveying the coasts of the lessee State and the transportation of troops. See in this regard, the Pacific Airlift or the Korean Airlift during the Korean armed conflict, when leased aircraft were used, among others, for the transportation of U.S. troops to Korea, J. W. F. Sundberg, Air Charter, Stockholm, 1961, pp. 30–31.Google Scholar

67. The Rome Convention on Third Party Liability (1952) speaks also of military, customs or police aircraft.

68. For a discussion of the term “state aircraft”, see Bin Cheng, “State Ships and State Aircraft”, in Current Legal Problems, 1959, pp. 225, 233 ff.Google Scholar

69. “International air service” means, according to Article 96 (b) of the Chicago Convention (1944), “an air service which passes through the air space over the territory of more than one State”. Scheduled or non-scheduled flight over the territory of Contracting States to the Chicago Convention (1944) is governed by Articles 5 and 6 of this international instrument. See also the International Air Services Transit Agreement (1944) and the International Air Transport Agreement (1944). These two Agreements, signed together with the Chicago Convention and known as the “two-freedom” and “five-freedom” Agreements respectively, accept the so-called “technical freedoms”, i.e., the privilege to fly across the territory of a Contracting State without landing and the privilege to land in the territory of this State for non-traffic purposes.

70. See LC/SC SA-Report I, 21/2/69, p. 3; LC/SC SA–Draft Report II, 29/9/69, p. 2; LC/SC SA-Report II, 3/10/69, p. 3.

71. See SA Doc. No. 4.

72. Article 5 of the Hague Convention (1970) is based on Article 77 of the Chicago Convention (1944), according to which two or more Contracting States may—subject to the provisions of that Convention—set up joint air transport operating organizations or international operating agencies and pool their air services on any routes or in any regions. The Council of ICAO shall determine in these cases in what manner the provisions of the Chicago Convention relating to nationality of aircraft shall apply to aircraft operated by international operating agencies. See Articles 17–21 of the Chicago Convention (1944). With regard to Article 77 of that Convention see Shawcross and Beaumont on Air Law, London, 1966, pp. 221–222.Google Scholar For more recent developments in connection with Article 77 of the Chicago Convention, see R. Mankiewicz, “Interpretation and Implementation of Article 77 of the Chicago Convention—Nationality and Registration of Aircraft Operated by International Agencies”, in Journal of Air Law and Commerce, 1968, pp. 83–91.Google ScholarCf. also, in connection with Article 5 of the Hague Convention (1970), Article 18 of the Tokyo Convention (1963) and Articles 5 and 9 of the Draft Convention on Unlawful Interference.

73. See Article 3, para. 5, of the Hague Convention (1970) which refers, in an exhaustive way, to the application in the said case of Articles 6, 7, 8 and 10 of the Convention.

74. There is a variety of systems in domestic laws regarding criminal jurisdiction of States over offences committed on board aircraft in flight. These systems are basically the following: Law of the flag, law of the State flown over, law of the State of (first) landing, law of the place where the author of the offence is or has been arrested, national law of the author of the offence, national law of the victim, law of the State where the offence has produced effects, and application of the national law because of the nature of the offence. For a useful classification of criminal laws of States under one or more of these systems, see LC/Working Draft No. 579, 22/1/59, Appendix “A”.

75. This was a successful amendment proposed by the Austrian delegation during the Hague Diplomatic Conference (1970). The Conference adopted the Austrian proposal with a few drafting changes. See SA Doc. No. 39. A U.K. proposal, repeating in essence the content of the Austrian proposal, was later withdrawn by the U.K. representative. See SA Doc. No. 45 read together with Doc. SRC/8.

76. In all three cases mentioned in Article 4, para. 1, reference is made only to the “offence” and not additionally to “any other act of violence against passengers or crew committed by the alleged offender in connection with the offence”, as provided for in the first part of Article 4, para. 1. It is submitted, however, that the reference to acts of violence in the first part of Article 4, para. 1, covers also the three instances mentioned in the second part of the same paragraph where the words “any other act of violence” etc. have been omitted.

77. See also Article 3 of the Tokyo Convention (1963).

78. See Article 4, para. 1 (b) of the Hague Convention (1970).

79. An attempt at hijacking on December 12, 1969, of a “Boeing 707” of the “Ethiopian Airlines” occurred in an international flight from Madrid to Addis Ababa. The airliner, after the attempt, landed at “Ellinikon” airport in Athens with the bodies of the two hijackers; on December 13, 1969 the Greek authorities let the aircraft leave for Addis Ababa together with the bodies of the two hijackers and the three Ethiopian policemen who were responsible for the security of the aircraft. The Greek authorities permitted the aircraft to leave as the preliminary enquiry into the facts had proved that the “execution” of the two guerrillas of the Front for the Liberation of Erithrea took place outside Greek airspace. Therefore, according to Articles 7 and 8 of the Greek Criminal Code (1950) Greek criminal law did not apply to this case. On the facts of this case see Eleftheros Kosmos, 12 14 and 16, 1969Google Scholar; see also infra, note 135.

On the exercise of jurisdiction with regard to acts committed by foreigners abroad, see Oppenheim-Lauterpacht, International Law, London, 1955, pp. 331 ff., 679 ff.Google Scholar

80. The initiative for adding this third head of jurisdiction was taken by the delegate of Barbados during the 17th Session of the Legal Committee of ICAO in Montreal (February 9-March 11, 1970). See also SA Doc. No. 9, Attachement. The Legal Committee appointed two Rapporteurs, members of the Netherlands and U.K. delegations, to study the case of aircraft registered in one State but leased to an operator in another State. For the Report of the two Rapporteurs see SA Doc. No. 5. For the joint proposal which was finally adopted as Article 4, para. 1 (c) of the Convention see SA Doc. No. 46.

81. See Articles 1 and 4 of the Hague Convention (1970).

82. For the rules governing registration of aircraft in Contracting States to the Chicago Convention (1944), see Articles 17–21 of this international instrument.

83. See also Article 5, para. 2, of the Draft Convention on Unlawful Interference.

84. See Article 4, para. 2, of the Hague Convention (1970).

85. See SA Doc. No. 11; SA Doc. No. 29; SA Doc. No. 42; SA Doc. No. 58 and SA Doc. No. 61, which last document was finally adopted. See also Article 3, para. 3, of the Draft Convention Relating to Offences Committed on Board Aircraft (1959).

86. For an argumentum a contrario see the proposal contained in SA Doc. No. 58, which was not accepted by the Hague Conference (1970). However, states whose domestic law does not admit the principle of universal jurisdiction will have to adapt their legislation, when ratifying the Convention, according to their constitutional requirements.

87. See LC/SC SA-Draft Report II, p. 4Google Scholar; LC/SC SA-Report II, p. 5.Google Scholar

88. See SA Doc. No. 8. This may happen, for example, when the offender is a national of the state in which the aircraft lands and the aircraft on board which the offence is committed is registered in another state.

89. See SA Doc. No. 33 Rev. 1.

90. See Article 4, para. 3, of the Convention. This paragraph repeats the wording of Article 3, para. 3, of the Tokyo Convention (1963). See also Article 5, para. 3, of the Draft Convention on Unlawful Interference.

91. Thus, e.g., the state whose nationality the victim or the offender possesses, or the state of the last place of departure of the aircraft, may claim jurisdiction over the offence.

92. See also in this sense Alex Meyer (op. cit., p. 346)Google Scholar commenting on Article 3, para. 3, of the Tokyo Convention (1963). See also Tokyo Conference Doc. No. 43, containing a Canadian proposal to this effect. See also generally on the Tokyo Convention H. P. van Fenema, “Het Verdrag van Tokio”, in Militair Rechtelijk Tijdschrift, 1970, pp. 385–406.Google Scholar

93. The International Law Association proposed during the Hague Conference (1970) that paragraph 3 of Article 4 be deleted. Unfortunately, this proposal was not adopted by the Conference.

94. Such measures may, for example, according to the law of the state in question, be house arrest or close police surveillance, with a view to making certain that the offender will not escape.

95. See Article 6, para. 1, of the Hague Convention (1970). See also Article 13, para. 2, of the Tokyo Convention (1963) and Article 6, para. 1, of the Draft Convention on Unlawful Interference.

96. This provision, pertaining to human rights and fundamental freedoms, in accordance with Article 9 of the Universal Declaration of Human Rights (1948), Article 5 of the Rome Convention for the Protection of Human Rights and Fundamental Freedoms (1950) and Article 9 of the International Covenant on Civil and Political Rights (1966). See also in general the Proclamation of Teheran (1968).

97. See SA Doc. No. 43 and SA Doc. No. 44.

98. See SA Doc. No. 52.

99. See also supra, note 96.

100. During the Tokyo Conference (1963), which finally prepared and opened for signature the Tokyo Convention (1963), the delegation of Argentina proposed a maximum limit to the period of detention and other police measures taken by Contracting States against an offender (see SR/31 of September 10, 1963). However, this proposal which related to Article 13, para. 2, of the Tokyo Convention was rejected by 18 votes to 6.

101. See SA Doc. No. 43.

102. Cf. also the sentence “upon being satisfied that the circumstances so warrant” in Article 6, para. 1. Cf. also Article 13, para. 4, of the Tokyo Convention (1963) and Article 6, para. 2, of the Draft Convention on Unlawful Interference.

103. See also Article 6, para. 3, of the Draft Convention on Unlawful Interference.

104. See SA Doc. No. 44.

105. A similar provision, as previously said, was inserted in the Tokyo Convention (1963). The proposal to insert this paragraph was made by the U.S. representative at the Tokyo Conference (1963) and was accepted unanimously with 24 votes to none against.

106. See Oppenheim-Lauterpacht, op. cit., p. 679 ff.Google Scholar

107. See, e.g., Articles 2–14 of the Rome Convention for the Protection of Human Rights and Fundamental Freedoms (1950).

108. See supra, note 106. For recent developments regarding diplomatic protection in another context, see Judgment of the I.C.J of February 5, 1970, in the Case Concerning the Barcelona Traction, Light and Power Company, Limited, Reports, 1970, especially p. 33 ff.Google Scholar

109. See Article 6, para. 4, of the Hague Convention (1970). See also Article 13, para. 5, of the Tokyo Convention (1963) and Article 6, para. 4, of the Draft Convention on Unlawful Interference.

110. For an extensive discussion of the notions of obligatory and voluntary notification in another context, see The Right of Hot Pursuit in International Law, op. cit., pp. 46–61, 109, 195, 237–238, 267, 284–286.Google Scholar

111. See Article 7 of the Hague Convention (1970). See also in this connection the provisions pertaining to human rights and fundamental freedoms laid down in Articles 7, 8 and 10 of the Universal Declaration of Human Rights (1948), Article 5, paras. 3, 4 and 5, and Article 6 of the Rome Convention for the Protection of Human Rights and Fundamental Freedoms (1950) and Articles 14 and 26 of the International Covenant on Civil and Political Rights (1966).

112. See Article 7 of the Hague Convention (1970).

113. Ibid.

114. These were the delegations of the United States and of the USSR. See SA Doc. 28; SA Doc. 30; SA Doc. 32; and Statement by J. R. Stevenson of 12 1, 1970.Google Scholar These delegations wished also to emphasize that hijacking, whatever its motivation, is a serious crime and not a political offence.

115. See SA Doc. No. 13 and SA Doc. No. 59 respectively.

116. See SA Doc. No. 40 and SA Doc. No. 53.

117. See SA Doc. No. 30.

118. These were the delegations of Australia, Austria, France, the Federal Republic of Germany, Ireland, Italy, Norway, Spain, United Kingdom, Denmark, Finland,Sweden, the Netherlands and Switzerland.

119. See SA Doc. No. 72.

120. See SA Doc. No. 4.

121. See SA Doc. No. 72 Revised.

122. Among these delegations were also those of the USSR and the Netherlands.

123. These words are also used in the Resolution adopted by the General Assembly of the United Nations on November 25, 1970.

124. See joint proposal in SA Doc. No. 72.

125. See SA Doc. No. 72 Revised.

126. The delegations which voted against were those of Tanzania and Algeria.

127. The delegations which abstained were the following: Barbados, Cambodia, Chile, Colombia, Indonesia, Kenya, South Korea, Malaysia, Panama, Thailand, Tunisia, Uganda and Zambia. The delegates of El Salvador and Luxembourg were absent.

128. The wording “offender or alleged offender” would have been preferable, so as to be in line with the wording of Article 6, para. 1, of the Hague Convention (1970). At any rate, one may think that Article 7 shows, on this point, rather an influence of British criminal law. Besides, it should be noted that Article 11(1) of the Universal Declaration of Human Rights (1948) reads as follows: “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence”. Article 6(2) of the Rome Convention for the Protection of Human Rights and Fundamental Freedoms (1950) and Article 14, para. 2, of the International Covenant on Civil and Political Rights (1966) contain analogous provisions.

129. From another angle, this also partly explains the previously mentioned use of the expression “alleged offender” by Article 7 of the Hague Convention (1970).

130. See also Article 7 of the Draft Convention on Unlawful Interference.

131. See also in this connection The Lotus Case (Judgment of the P.C.I.J. of September 7, 1927, Series A, No. 10).

132. Article 2 has been dictated also by the rule of nullum crimen, nulla poena sinelege. See also on this rule, Article 11(2) of the Universal Declaration of Human Rights (1948), Article 7, para. 1, of the Convention for the Protection of Human Rights and Fundamental Freedoms (1950) and Article 15 of the International Covenant on Civil and Political Rights (1966).

133. See Article 2 of the Hague Convention (1970). See also Article 3 of the Draft Convention on Unlawful Interference.

134. This is a basic human right laid down in Article 5 of the Universal Declaration of Human Rights (1948) and in Article 7 of the International Covenant on Civil and Political Rights (1966).

135. See especially Articles 6 and 14 of the International Covenant on Civil and Political Rights (1966). In the case of the attempted hijacking on December 12, 1969, of a “Boeing 707” of the Ethiopian Airlines on its way from Madrid to Addis Ababa, the two hijackers of the “Front for the Liberation of Erithrea”, Mohamet AH Saleh Dafla (34) from Huenda in Yemen and Siss Usman Biok (19) from Gaolak in Senegal, were arrested and executed on board the aircraft by the three Ethiopian policemen who accompanied the airliner for security reasons. Indeed, when at 00.20 the aircraft landed at Ellinikon airport in Athens, the 14 passengers and the members of the crew were evacuated to Athens by the Greek authorities of the airport where the signal of alert had been given. On board the aircraft remained the three Ethiopian policemen and the bodies of the two hijackers. However, the Greek authorities had to wait for four whole hours until permission was given to enter the aircraft. Acceptance by the Greek authorities of this delay for the permission to enter the aircraft may only be explained by reason of the traditional friendly relations between Ethiopia and Greece and the large Greek community in the former country. In fact, Greek authorities were entitled by Article 16 of the Chicago Convention (1944), dealing with search of aircraft, to enter and search the aircraft “without unreasonable delay”. At any rate, when the District Attorney of Athens, an Official Medical Examiner and policemen entered the aircraft they found the bodies of the two guerillas, the one in the lavatory of the aircraft and the other on a seat. Both bodies were found with their hands tied together. No explanation could be furnished by the three Ethiopian policemen as to the reasons why the two bodies were found with the hands tied together. The preliminary enquiry and the examination of the bodies by the Medical Examiner proved that the two hijackers had been “executed” by the Ethiopian policemen on board. The Greek press of December 14 and 16, 1969, spoke of an “execution” of the two hijackers. See e.g. Eleftheros Kosmos, 12 14 and 16, 1969.Google Scholar On this case see also supra, note 79.

136. See supra, note 132.

137. See also Article 1(9) of the Draft Convention on Unlawful Interference.

138. See ICAO Doc. LC/SC SA Report I, 21.2.69, Article 4.

139. See ICAO Doc. LC/SC SA Draft Report II, 29.9.69 and LC/SC SA Report II, 3.10.69, Article 3.

140. See SA Doc. No. 51.

141. See, inter alia, new Article 385 bis incorporated in the Dutch Criminal Code; new legislation was also passed in Lesotho. See further new Article 462 of the French “Code Penal”.

142. Tanzania, Kenya, Iran and a number of other States are actually passing new laws against aircraft hijacking. For prospective legislation in Spain regarding hijacking, see Martin Bravo Navarro, “Apoderamiento ilicito de aeronaves en vuelo”, in Revista Española de Derecho Internacional, Vol. XXII, No. 4, pp. 804–805.Google Scholar

143. One may say that the average penalty for the act of hijacking in domestic laws is, at the moment, imprisonment for about ten years. Article 385bis of the Dutch Criminal Code prescribes a maximum limit of 12 years in prison. The Lesotho Law lays down a minimum imprisonment of 15 years. Article 462 of the French Code Penal provides for imprisonment for between 5 to 10 years. However, in practice, the average penalty imposed by the courts of the various countries has been between 5 and 7 years. See, among other cases, Raffael Minichiello, who hijacked a TWA jetliner to Rome on October 31, 1969, was given a seven and a half year jail sentence (see International Herald Tribune, 11 14–15, 1970Google Scholar); Zbigniev Iwanicki, a Pole who hijacked a Polish airliner to Copenhagen in June 1970 was sentenced to 6 years in prison by a Danish Court (see International Herald Tribune, 07 10, 1970Google Scholar); A. Rybak and Roman Jasinski were sentenced on September 23, 1970, by a court in Warsaw to 5 and 4 years in prison respectively for attempt at hijacking an aircraft of the Polish Airlines (LOT) on June 10, 1970 (see Le Monde, 09 25, 1970Google Scholar); Layachi Allona, Rabah Boutif and Mohamed Salah Touti, who on August 31, 1970, hijacked an airliner of “Air Algérie” and forced it to land at Dubrovnik, Yugoslavia, were sentenced by the court of Annaba in Algeria—after having been handed over by the Yugoslavian to the Algerian authorities—to 12 years, 12 years and 6 years respectively (see Le Monde, 10 9, 1970Google Scholar); Mariano Ventura Rodriguez, who hijacked an airliner of “Iberia Airlines” for four hours with a toy water pistol in January 1970, was sentenced by a military court in Saragossa, Spain, to 12 years and one day in prison (see International Herald Tribune, 07 10, 1970Google Scholar); Rudolf Cihac and his wife Stanislava were sentenced by a West German court on September 16, 1970, to two and a half years and 18 months respectively in prison for forcing a Czechoslovak airliner in June 1970, on a flight from Karlovy Vary to Prague, to fly to and land at Munich (see International Herald Tribune, 09 17, 1970Google Scholar); Pavel Verner was sentenced by an Austrian court to one year imprisonment for hijacking a Czechoslovak airplane to Linz on May 5, 1970 (see Le Monde, 09 4, 1970).Google Scholar

The courts in the United States and the USSR are considerably more strict when dealing with cases of hijacking of aircraft Cf. for example, the cases of Leon Bearden v. United States of America, United States Court of Appeals, Fifth Circuit, June 14, 1962, No. 19325, in U.S. Aviation Reports, 1962, pp. 339–341Google Scholar and U.S. Aviation Reports, 1964, pp. 549–555Google Scholar; United States v. David Thomas Healy et Al, Supreme Court of the United States, February 17, 1964, No. 64, in U.S. Aviation Reports, 1964, pp. 162–172.Google Scholar

See also, among other cases, the following: Lorenzo Edward Ervin was convicted on June 5, 1970, by a federal jury in Newman (Georgia) to life imprisonment for hijacking an Eastern Airlines aircraft on February 25, 1969, and forcing it to fly to Havana (see International Herald Tribune, 07 7, 1970Google Scholar, and Le Monde, 07 8, 1970)Google Scholar; Ronald Bohle was sentenced on May 15, 1970, to 25 years in prison—by a U.S. court—for having on January 9, 1969, hijacked an Eastern Airlines aircraft to Cuba (see Le Monde, 05 17–18, 1970)Google Scholar; Raymond Anthony, who hijacked a jetliner with a penknife on June 2, 1969, was sentenced on October 6, 1970, by a U.S. Court to 15 years in prison (see International Herald Tribune, 10 7, 1970).Google Scholar

In the USSR, the death penalty for a hijacking attempt is not uncommon. See, e.g., the case of two Armenians sentenced to death for an attempt to hijack a Soviet aircraft in September 1961, in New York Times, 06 11, 1962Google Scholar, as well as the case of Vitaustas Simokaitis and his wife Grazina. These two last persons—as it was reported—were sentenced to death and to three years in prison respectively for attempting to seize an Aeroflot aircraft on November 9, 1970, while flying between Vilnius and Palanga on the Baltic Sea, and to force it to fly to Sweden.

In the first Leningrad trial of 11 civilians—among whom 9 Russian Jews—on charges of plotting to take over a small AN-2 aircraft in Leningrad on June 15, 1970, and force it to fly to Sweden, a court in Leningrad sentenced in the last week of December 1970 two of the defendants to death and gave the rest of them very severe sentences. The harshness of these penalties for a plot to hijack a USSR aircraft, together with the fact that the majority of the defendants were Jews, caused international protest not only on the part of Jewish militant organizations, like the Jewish Defence League, but also on the part of certain Western European Communist Parties, such as the French Communist Party. Some Heads of State also intervened in favour of the sentenced persons.

The answer of Soviet authorities was at first that the Leningrad trial and the sentences against the 11 defendants were in accord with U.N. Resolutions which aimed at combatting hijacking and had no anti-Semitic character. However, some days later, on January 1, 1971, in view of rising world wide reaction, the death sentences were commuted by the USSR Supreme Court to 15 years in a special camp for Kuznetsov and 15 years in a strict camp for Dymshits. The sentences of the nine other persons were also commuted to penalties ranging from 4 to 15 years in prison. In the second Leningrad trial of nine other Soviet Jews, on charges of anti-Soviet activity, which after adjournment took place in May 1971, a criminal court in Leningrad pronounced on May 17, 1971, sentences on the defendants ranging from one to ten years in prison.

144. See LC/SC SA-Draft Report II, pp. 5–6Google Scholar; LC/SC SA-Report II, p. 7.Google Scholar Originally, the members of the Legal Sub-committee had agreed that this question would not be dealt with in the Draft Convention (see LC/SC SA-Report I, p. 4).Google Scholar

145. It is to be noted that existing bilateral and multilateral agreements on extradition provide in most cases for the rule ne bis in idem. Moreover, this maxim was also laid down in Article 14, para. 7, of the International Covenant on Civil and Political Rights (1966).

146. See LC/SC SA-Report II, Annex B, p. 11.Google Scholar

147. For a discussion of the maxim ne bis in idem in connection with the Tokyo Convention (1963), which does not include any provision on this matter either, see LC/Working Draft No. 579, 22/1/59. During the Tokyo Conference (1963) the delegations of Poland and Sweden proposed and succeeded in deleting from the draft Convention the provision contained therein regarding the rule of ne bis in idem. See in this connection Doc. SR/13, 28.8.1963.

In relation to the rule of ne bis in idemcf. even constitutional prohibition in the United States regarding double jeopardy.

148. See, e.g., for such multilateral extradition treaties, The European Convention on Extradition, of 12 13, 1957Google Scholar; the Second Draft Convention on Extradition, Approved by the Inter-American Juridical Committee at its Meeting of July 10, 1957; the Benelux Convention on Extradition and Judicial Assistance in Penal Matters, of 06 27, 1962; etc.Google Scholar

Even when an exhaustive list of extraditable offences is laid down in any bilateral or multilateral treaty existing between Contracting States, hijacking will be deemed to be included in the list. In this connection the case in re Talbot (March 18, 1947) should also be mentioned. In this case the Court of Appeals of Paris refused the extradition to Belgium of a certain Talbot because the offence for which his extradition was requested was not included in the exhaustive list of extraditable offences contained in Article 2 of the Extradition Convention between France and Belgium of August 14, 1874.

The United States Department of State sought, before the signing of the Hague Convention (1970), to update its bilateral extradition treaties with a number of countries so as to include the hijacking of aircraft among the extraditable offences. The modernization of extradition relations with those countries aimed also at a) establishing a presumption that aircraft hijacking is a common crime not subject to any political exclusion clause, and b) updating the extradition procedure. One of the first extradition treaties of this kind was the one between the United States and New Zealand, which was signed on January 12, 1970, and came into force on December 8, 1970. (For the negotiations which resulted in the signing of this treaty, see USIS Newsletter, 09 19, 1969Google Scholar; New Zealand News Bulletin, 09 23, 1969Google Scholar; and New Zealand High Commission News Bulletin, 12 11, 1970Google Scholar). Similar bilateral extradition treaties followed between the United States on the one side and France (signed on February 12, 1970), Germany, Brazil, Sweden, Spain (signed on April 10, 1970) Italy (signed on May 22, 1970), etc. These treaties were expected to have strong psychological deterrent effects on prospective hijackers.

149. See SA Doc. No. 6.

150. See also in this connection proposal by Tanzania in SA Doc. No. 34 Revised.

151. See SA Doc. No. 15.

152. See SA Doc. No. 73.

153. See SRC/13.

154. SA Doc. No. 28.

155. SA Doc. No. 33 Rev. 2.

156. See SA Doc. No. 71.

157. See SA Doc. No. 64.

158. See SRC/13. Cf. also Article 8, para. 1, of the Draft Convention on Unlawful Interference.

159. See Article 4, para. 1, of the Hague Convention (1970).

160. For a definition of the offence see Article 1 of the Hague Convention (1970).

161. The rule of speciality in extradition proceedings prescribes that a person should be prosecuted only for the offence for which he has been extradited. See also for the rule of Speciality S. D. Bedi, Extradition in International Law and Practice, Rotterdam, 1966, pp. 25–26, 149.Google Scholar For this rule see also E. Clarke, A Treatise Upon the Law of Extradition, London, 1903Google Scholar; the Draft Extradition Convention approved in 1928 by the International Law Association, in Report of the 33rd Conference (1928), pp. 324–329Google Scholar; Harvard Research in International Law, Part I: Extradition, Reporter Charles K. Burdick, in Supplement to Vol. 29 of the American Journal of International Law, 1935, pp. 21–240.Google Scholar See further on this rule of speciality Article 14 of the European Convention on Extradition (1957); Article 14 of the Second Draft Convention on Extradition (1957); Article 13 of the Benelux Convention on Extradition and Judicial Assistence in Penal Matters (1962); etc.

162. See in general with respect to this problem C. Th. Eustathiadès, La responsabilité internationale de l'Etat pour les actes des organes judiciaires et le problème du déni de justice en droit international, Paris, 1936.Google Scholar

163. See Bedi, op. cit., pp. 25–26.Google Scholar

164. See SA Doc. No. 26.

165. See SA Doc. No. 28.

166. See SA Doc. No. 73.

167. See SA Doc. No. 26 Revised.

168. See SRC/15.

169. See SA Doc. No. 83 Addendum.

170. For the rule of speciality see supra, note 161.

171. See e.g., Article 3 of the European Convention on Extradition (1957).Google Scholar See also L. L. Deere, “Political Offences in the Law and Practice of Extradition”, in American Journal of International Law, 1953, pp. 248–270.Google Scholar

There are very few instances up to now when a hijacker, after asking for political asylum in the state where he leaves the aircraft, is extradited back to the country requesting his extradition. This country has been as a rule the state where the aircraft is registered or operates. In many cases the state requesting the extradition of the hijacker is at the same time the state of registration of the aircraft and the state of the nationality of the offender. In all these cases extradition requests were turned down by the country where political asylum was asked for by the hijacker. The few instances of extradition of a hijacker by the country where he requested political asylum occurred between countries which not only maintain friendly relations but also have no opposing political ideologies. Thus, Layachi Allona, Rabah Boutif and Mohamed Salah Touti, who hijacked on August 31, 1970, an airliner of “Air Algérie” to Dubrovnik, Yugoslavia, were extradited by the Yugoslavian authorities back to Algeria, although they had asked for political asylum in Yugoslavia. See also supra, note 143. It is also reported that two Arab brothers who hijacked in 1969 an Egyptian airliner and forced it to fly to and land in Saudi Arabia, where they asked for political asylum, were handed back to the Egyptian authorities after personal intervention of King Feysal of Saudi Arabia, who was on good terms, at that time, with the late President of Egypt, Nasser. An exception to the rule previously mentioned is the case of Raffael Minichiello, whose extradition to the United States was refused by Italian authorities owing mainly to sentimental reasons. See also for this case supra, note 143. Another exception to this rule was the case of Robert J. Labadie, who, after hijacking a Trans World Airlines Boeing 727 to Havana on August 24, 1970, was handed back by the Cuban authorities to the United States (see International Herald Tribune, 09 25, 1970Google Scholar). However, this was not the first case, as it was widely published in the press of various countries, where Cuba returned a hijacker to the United States. See the case of L. Oeth and D. T. Healy, who on April 13, 1962, hijacked a small United States private aircraft to Cuba. The Cuban authorities returned the two hijackers and the pilot of the aircraft but they kept the plane (see New York Times, 04 22, 1962Google Scholar). David Healy and Leonard Oeth were each sentenced on November 12, 1964, by a court in Florida to 20 years in prison.

172. See e.g., case re Kavic, Bjelanovic and Arsenijevic, in Annual Digest, 1952, p. 351Google Scholar ff. One of the grounds of refusal by the Federal Swiss Court to extradite the hijackers to Yugoslavia was humanitarian reasons.

173. See also Article 6 of the European Convention on Extradition (1957). See further R. W. Rafuse, The Extradition of Nationals, The University of Illinois Press, 1939; M. Koessler, “‘Subjects’, ‘Citizen’, ‘National’ and ‘Permanent Allegiance’”, in Yale Law Journal, 1946–1947, pp. 58–76Google Scholar; K. Diplock, “Passport and Protection in International Law”, in Grotius Society, 1946, pp. 42–59Google Scholar; C. Parry, Nationality and Citizenship, London, 1957.Google Scholar

174. See in this connection the famous Eisler case (1949); the Austrian Extradition No. 1 case (1953) etc.

175. See SA Doc. No. 83.

176. See LC/SC SA-Report II. See also Article 8, para. 2, of the Draft Convention on Unlawful Interference.

177. This qualification of extraditable offences is made either by enumerating the offences for which extradition shall be granted (United Kingdom, Australia, Canada, India, etc.) or by using an eliminative method which qualifies extraditable offences by making recourse to the maximum or minimum penalty which will be required to justify extradition (Argentina, Brazil, Mexico, etc.).

178. See, e.g., the laws of Panama, Ecuador, Peru, etc.

179. See also in this sense, Bedi, op. cit., pp. 32, 53 ff.Google Scholar

180. See for certain conditions supra, p. 65 ff.

181. See SA Doc. No. 26 (Revised).

182. See SA Doc. No. 83 Addendum.

183. Cf. also Article 8, para. 3, of the Draft Convention on Unlawful Interference.

184. Cf. also Article 7 of the European Convention on Extradition (1957). This problem arose in connection with the hijacking of a Yugoslav aircraft to Switzerland. Thus, in the case re Kavic, Bjelanovic and Arsenijevic in 1952, the Swiss Federal Court rejected on political and humanitarian grounds the application of Yugoslavia to extradite the hijackers (see also supra, note 172). Furthermore, the judgment of the Court said:

“The principle that extradition is not granted for offences committed on Swiss territory is laid down in Article 12 of the Extradition Law; it is valid even in relation to States with whom an extradition treaty is in force which does not contain that principle”.

185. See SRC/9.

186. See SA Doc. No. 7, SA Doc. No. 32, SA Doc. No. 47, SA Doc. No. 54 and SA Doc. No. 57.

187. These were the proposals by the USSR (SA Doc. No. 32) and the proposal by the People's Republic of Congo (SA Doc. No. 54).

188. See SA Doc. No. 47.

189. See SA Doc. No. 57.

190. See SA Doc. No. 54.

191. For some unfortunate exceptions to the current practice of permitting the passengers and crew of a hijacked aircraft to continue their journey as soon as practicable, see supra, notes 15, 16, 17 and 18. However, the international responsibility of Jordan could not be invoked in the case of these hijackings by Palestinian guerrillas when the passengers and crew of these aircraft were held by them as hostages in an area under their control. In fact, government forces could not intervene without exposing to immediate danger the life of the hostages held by the guerrillas.

192. In the first years of hijacking incidents between the United States and Cuba, both Governments refused on various grounds to return the hijacked aircraft and its cargo (see also supra, note 9). However, nowadays, with a few minor exceptions, Cuba releases all airplanes and cargo almost on a 6- or 8-hour turnaround basis (see also statement by Charles H. Ruby, President of the Air Line Pilots Association, of September 17, 1970, in Hearings Before the Committee on Foreign Affairs; House of Representatives, 91st Congress, 2nd Session, 09 17, 22 and 30, 1970Google Scholar, Washington, 1970, at p. 9). It is well known, however, that Cuban authorities charge $ 5,000 per hijacked aircraft for airport and similar charges. It is not known to the present writer whether these charges are in accordance with Article 15 of the Chicago Convention (1944) which provides for airport and similar charges as well as for limits to the amount of these charges. Moreover, it is doubtful whether Cuba, a member of ICAO, has published and communicated to ICAO the charges in question, as Article 15, para. 5, of the Chicago Convention (1944) requires.

193. See Article 10, para. 1, of the Hague Convention (1970).

194. See SA Doc. No. 13. This amendment was adopted by the Commission of the Whole at its 11th Meeting on December 8, 1970, by a vote of 25 in favour, 5 against, with 30 abstentions and was sent to the Drafting Committee to be prepared for a second reading.

195. Cf. also Article 11 of the Draft Convention on Unlawful Interference. See also the Benelux Convention on Extradition and Judicial Assistance in Penal Matters (1962).

196. See SA Doc. No. 13. See also Article 11 (c) of the Hague Convention (1970) which, in another context, draws a clear distinction between “extradition proceedings” and “other legal proceedings”.

197. See SA Doc. No. 13.

198. The Hague Convention (1970) is a “traité loi” and not a “traité cadre”. Therefore, an effort was made during the drafting of this Convention to provide for all possible situations, existing or which are likely to appear in the future. For the distinction between “traité loi” and “traité cadre” see Dionyssios M. Poulantzas, Aspects juridiques de l'association prévue par l'article 238 du traité de la Communauté Economique Européenne, Paris, 1959, at p. 9 ff.Google Scholar

199. See also Article 13 of the Draft Convention on Unlawful Interference.

200. See SA Doc. No. 68.

201. See Articles 9 and 15 of the Chicago Convention (1944).

202. See Article 54 (i) of the Chicago Convention (1944). On the power of the ICAO Council to investigate and request information on matters affecting international air services, see J. Erler, Rechtsfragen der ICAO, Cologne, 1967, pp. 166–170.Google Scholar

203. For the principle of pacta sunt servanda and for measures of supervision and control of the implementation of the provisions of treaties in another context, see E. A. Landy, The Effectiveness of International Supervision, London, 1966Google Scholar; N. M. Poulantzas, The International Protection of Human Rights within the Framework of ILO, The Hague, 1967, pp. 36Google Scholar (Report presented to the Center for Studies and Research in International Law and Relations of the Hague Academy of International Law); see also W. P. Gormley, “The Codification of Pacta Sunt Servanda by the International Law Commission: The Preservation of Classical Norms of Moral Force and Good Faith”, in St. Louis University Law Journal, 1970, pp. 409–422.Google Scholar For the supervision machinery established by the Outer Space Treaty of January 27, 1967, see our Article “Zur Problematik der Rüstungskontrolle und internationalen Oberwachung nach dem Weltraumvertrag vom 27. Januar 1967”, in Zeitschrift für Luftrecht und Weltraum-rechtsfragen, 1968, pp. 120–134.Google Scholar

204. At the Sixth Plenary Meeting of the Hague Conference held on December 4, 1970, the Conference authorized its President to appoint the members of this Committee. The Committee on Final Clauses held five meetings between December 7 and 9, 1970. See SA Doc. No. 80 and SA Doc. No. 80 Attachement.

205. Article 24 of the Tokyo Convention (1963) was adopted at the Tokyo Conference following a proposal by the delegation of the Netherlands (Conference Doc. No. 79). This article has been drawn on the lines of Articles XX and XXI of the Brussels Convention on the Liability of Operators of Nuclear Ships (1962).

206. For a discussion, in another context, of arbitration procedures for the settlement of disputes, see Dionyssios M. Poulantzas, “Une disposition malencontreuse de l'accord d'association de la Grèce à la Communauté Economique Européenne”, in Revue hellénique de droit international, 1963, pp. 246–257.Google Scholar

207. See U.N. Doc. A/CONF. 13/L. 57. This Protocol has been in force since September 30, 1962.

208. For the conditions required for presenting a claim before the International Court of Justice, see M. Bos, Les conditions du procès en droit international public, Leyden, 1957.Google Scholar

209. This confusion is to be noted not only in the mass media but also within the framework of the United Nations and certain international associations as well as in national legislatures, domestic laws and in the writings of many publicists as well. See, in this connection, our article “Hijacking or Air Piracy?”, op. cit., at pp. 567–573.Google Scholar See also our work The Right of Hot Pursuit in International Law, op. cit., pp. 298–301Google Scholar and a discussion of our view in the interesting article by G. N. Horlick, “The Developing Law of Air Hijacking”, in Harvard International Law Journal, 1971, at pp. 64–67.Google Scholar

210. Distinctive features of “air piracy” or “piracy in the air”, as laid down in Articles 14–21 of the Geneva Convention on the High Seas (1958), are: illegal acts of violence, detention or any act of depredation committed 1) for private ends 2) by the crew or passengers of a private aircraft against another aircraft and 3) on the high seas or in a place outside the jurisdiction of any State. On the other hand, the essential characteristics of “hijacking” are: 1) person on board an aircraft 2) unlawfully, by force or threat thereof, or by any other form of intimidation, seizing or exercising control of this same aircraft, or attempting any such act, or being an accomplice of a person who performs or attempts to perform any such act 3) while that aircraft is in flight and its place of take-off or its place of actual landing is situated outside the territory of the state of registration of that aircraft.

211. The Tokyo Convention (1963) entered into force on December 4, 1969, following its 12th ratification by the United States. Cf. also ICAO News Release, 09 9, 1969.Google Scholar

212. See Article 13, para. 3, of the Convention.

213. This formula was also adopted in some other recent international instruments dealing especially with certain problems of outer space and disarmament.

214. Thus, the German Democratic Republic has already signed the Convention at Moscow, Spain signed the Convention at Washington on March 16, 1971, and Ecuador also signed the Convention at Washington on March 19, 1971.

215. See supra, pp. 00.

216. See also supra, at pp. 000, regarding the confusion of hijacking with air piracy.

217. See also Preamble to the Geneva Convention on the High Seas.

218. For such cases see supra, note 1. Captain H. Galvǎo and his men, who, after hijacking The Santa Maria on 01 23, 1961Google Scholar, on a voyage from Curaçao to Lisbon, asked for political asylum in Brazil, and were not extradited to Portugal.

219. See supra, note 14

220. See also International Herald Tribune, 10 5, 1970, and 01 7, 1971.Google Scholar

221. See also International Herald Tribune, 12 8, 1970.Google Scholar

222. See also Article 35 of the Chicago Convention (1944).

223. With regard to the vote taken by the International Transport Workers Federation to institute sanctions and air-service boycotts against countries that fail to prosecute hijackers who operate out of motives of “international blackmail”, see International Herald Tribune, 10 3–4, 1970.Google Scholar See also for sanctions in connection with unlawful interference against international civil aviation: ICAO Doc. 8910/LC/163, Part III, Annex 3; Doc. 8910/LC/163, Part III, Annex 4; Doc. 8910/LC/163, Part III, Annex 5; and Doc. 8910/LC/163, Part IV, Annex.