Air Terrorism

The first international agreements of sectoral character addressed air terrorism. The following documents were adopted under the auspices of the International Civil Aviation Organization (ICAO):

17 For more about the work of the Ad Hoc Committee on international terrorism and its reports for the General Assembly, see: Indecki, K. Prawo karne, pp. 71-73, Saul, B. Defining, pp.

206-208, Wardlaw, G.Political Terrorism, pp. 108-110.

 Sectoral Conventions 1. The Convention on Offences and Certain Other Acts Committed on Board Aircraft signed in Tokyo on 14 September 1963, (hereinafter: the To-kyo Convention),¹⁸

2. The Convention for the Suppression of Unlawful Seizure of Air-craft signed at the Hague on 16 December 1970, (hereinafter: the Hague Convention),¹⁹

3. The Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation signed in Montreal on 23 September 1971 (herein-after: the Montreal Convention),²⁰

4. The Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation supplementary to the Con-vention for the Suppression of Unlawful Acts against the Safety of Civil Aviation signed in Montreal on 23 September 1971, done in Montreal on 24 February 1988 (hereinafter: the Montreal Protocol).²¹

The solutions adopted in these international agreements responded to the exponential increase in the number of seizures of aircraft in the late 1960’s and in the early 1970’s.²² Their provisions defining the offences and legal measures designed to combat them were aimed at preventing any be-haviour that threatened the safety of air transport, irrespective of the aims and motivation of the offenders. Their scope was broad and not limited to counteracting terrorism; it also included the cases of hijacking aircraft for ransom or with the aim of fleeing the country.²³

The Tokyo Convention refines the understanding of the act of “un-lawful seizure of aircraft.” In accordance with Article 11(1), such an act is committed by a person on board “who has unlawfully committed by force or threat thereof an act of interference, seizure, or other wrongful exercise of control of an aircraft in flight or when such an act is about to be committed.”

18 The convention entered into force on 4 December 1969 ratified by 183 states. Information on the ratification of the conventions adopted under the auspices of the ICAO is provided after the official website of the organization: www.icao.int/index.html.

19 The convention entered into force on 14 October 1971 ratified by 183 states.

20 The convention entered into force on 26 January 1973 ratified by 187 states.

21 The protocol entered into force on 6 August 1989 ratified by 165 states.

22 A. E. Evans gives the number of 277 of aircraft hijacking incidents in the world between 1969 and 1972. By contrast, in the years 1961-1968, only 66 similar incidents were reported;

Evans, A. E. „Aircraft Hijacking: What is Being Done,” AJIL 67 (1973), p. 641.

23 Cf. Lee, A. „International Suppression of Hijacking,” in: International Terrorism and Politi-cal Crimes, Cherif Bassiouni, M., ed., Springfield 1975, p. 249.

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Chapter III of the Tokyo Convention names the powers of the aircraft commander when he or she has reasonable grounds to believe that a per-son has committed, or is about to commit, on board the aircraft, an offence or act mentioned in Article 1(1). The commander may use against such a person “reasonable measures including restraint” which are necessary:

a) to protect the safety of the aircraft, or of persons or property therein, b) to maintain good order and discipline on board, c) to enable him to de-liver such person to competent authorities or to disembark them (Article 6(1)). The aircraft commander may require or authorize the assistance of other crewmembers and may request or authorize, but not require, the as-sistance of passengers to restrain any person (Article 6(2) sent. 1). Other persons on board the aircraft (crewmembers or passengers) may also take

“reasonable preventive measures” when he has reasonable grounds to be-lieve that such action is immediately necessary to protect the safety of the aircraft, or of persons or property therein (Article 6(2) sent. 2).

In another convention, adopted under the auspices of the ICAO and signed on 16 December 1970 in The Hague, the focus was shifted to the detailed description of one particular crime. As provided in Article 1, an offence is committed by a person who on board an aircraft in flight: a) un-lawfully, by force or threat, or by any other form of intimidation, seizes, or exercises control of, that aircraft, or attempts to perform any such act, or b) is an accomplice of a person who performs or attempts to perform any such act. The provision of Article 2 of the Hague Convention imposes the obligation on states to recognize this offence as subject to “severe penal-ties,” without, however, supplying a more precise guidance as to the type of the penalty or its minimum and maximum limit.

The provision of Article 4(1) of the Hague Convention obliges the con-tracting parties to take measures to establish jurisdiction over the offence mentioned in Article 1 and over any other act of violence against passen-gers or crew. This obligation is effective for the state in which such an aircraft is registered, one on whose territory the aircraft lands with the alleged offender still on board, and one that is the principal place of busi-ness or the permanent residence of the lessee of that aircraft. In addition, Article 4(2) of the Hague Convention extends the obligation to establish the jurisdiction over the offence to the state in which the alleged offend-er is present if he has not been extradited to the states named in Article 4(1). The provisions concerning jurisdiction over the offences covered by the Hague Convention explicitly allow the concurrence of jurisdictions of different states that consider themselves appropriate to initiate the pro-ceedings. This model eliminates the possible loopholes that might help

 Sectoral Conventions the perpetrator seek shelter in a state refraining from punishment. At the same time, however, the problem of precedence in the case of overlapping jurisdictions remains unresolved.

The crime of seizure or taking control of an aircraft was deemed to justify extradition and was included in extradition agreements concluded between the contracting parties to the convention (Article 8(1)). If extradi-tion were conditional on the agreement existing between the parties, the Hague Convention might be considered the legal basis for such extradi-tion (Article 8(2)). If extradition is refused, which might take place if the offence is made political, the state in the territory of which the alleged offender is found will be obliged, “without exception whatsoever and whether or not the offence was committed in its territory, to submit the case to its competent authorities for the purpose of prosecution” (Article 7). Thus, the provisions of the Hague Convention seek to follow the prin-ciple of aut dedere aut iudicare.²⁴ Due to the international circumstances of the time, this model was thought to be the optimum solution and a com-promise was reached between the approach of states disinclined to reduce their sphere of sovereignty and the common interest of all states allied in combating the most serious crimes.²⁵

The subsequent ICAO convention, signed on 23 September 1971 in Montreal, restated the legal arrangements regarding jurisdiction and ex-tradition adopted in the Hague Convention. However, it broadened the scope of criminalized acts. In accordance with Article 1(1) of the Montreal Convention, a person commits an offence if he or she unlawfully and in-tentionally:

a) performs an act of violence against a person on board an aircraft in flight if that act is likely to endanger the safety of that aircraft,

b) destroys an aircraft in service or causes damage to such an aircraft which renders it incapable of flight or which is likely to endanger its safety in flight,

c) places or causes to be placed on an aircraft in service, by any means whatsoever, a device or substance which is likely to destroy that aircraft, or to cause damage to it which renders it incapable of flight, or to cause damage to it which is likely to endanger its safety in flight,

24 Cf. Flemming, M. Terroryzm polityczny, p. 8. McWhinney, E. Aerial Piracy and International Terrorism. The Illegal Diversion of Aircraft and International Law, Dordrecht-Boston-Lancaster 1987, p. 43, Quadarella, L. Il nuovo terrorismo, p. 63.

25  Cf. Wierzbicki, B. „Model zwalczania terroryzmu międzynarodowego w umowach wie-lostronnych o charakterze uniwersalnym,” PiP 11 (1983), p. 90.

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d) destroys or damages air navigation facilities or interferes with their operation, if any such act is likely to endanger the safety of aircraft in flight,

e) communicates information, which he knows to be false, thereby en-dangering the safety of an aircraft in flight.

The Montreal Protocol of 24 February 1988 further broadened the list of offences by prohibited acts occurring at airports. The protocol adds a new paragraph 1bis to complement the array of acts criminalized under the Montreal Convention. It reads that a person commits an offence if he unlawfully and intentionally, using any device, substance or weapon: (a) performs an act of violence against a person at an airport serving inter-national civil aviation which causes or is likely to cause serious injury or death, (b) destroys or seriously damages the facilities of an airport serv-ing international civil aviation or aircraft not in service located thereon or disrupts the services of the airport, if such an act endangers or is likely to endanger safety at that airport (Article II).

Additionally, the ICAO developed the Convention on the Marking of Plastic Explosives for the Purpose of Identification, signed at Montreal on 1 March 1991 (hereinafter: the Montreal Convention (II)).²⁶ It responded to the growing concern of the international community about the use of the so-called plastic explosives, such as the American C4 or Czech Semtex, in terrorist attacks against aircraft. Unlike the previous international agree-ments adopted under the auspices of the ICAO, the Montreal Convention (II) does not criminalize any new behaviour of terrorist nature, but is de-signed as a preventive measure. The convention imposes on every state the obligation to take the necessary and effective measures to prohibit and prevent the manufacture in its territory of unmarked explosives (Article II), and to prohibit and prevent the movement into or out of its territory of unmarked explosives (Article III(1)). It also stipulates that within three years from the entry into force of this convention all stocks of unmarked explosives are destroyed, marked or rendered permanently ineffective (Article IV(2)).