Author: Pallabi Paul, Student at Department of Law,Assam University,Silchar.
This paper will attempt to highlight various views given by the Scholars under International Law regarding Air Space .As we know terrorism is the evil in the society which is promoting the act of Hijacking and many other offences.A study of M.K.Law Committee Report has been made with regards to Air Space.Various International Convention were adopted and ratified by number of countries ,in this paper ,a detailed study of the International Instruments has been made along with its shortcomings which further led to establishment of new Convention.Discussion has been made regarding the Air Hijacking with various incidents all over the world .In India,a legislation has been passed in 2016 ,Anti Hijacking Act 2016 which has included provisions to inflict punishment for committing hijacking or abetting or any attempt to commit the crime along with the suggestions in order to prevent ourselves .
Keywords – Aircraft Hijacking,Air Law,Montreal Convention,Principles,International Law
International Law is grey area,where several theories has been propounded by the many scholars regarding Air Space .One of the view is that a nation have sovereignty over its complete air space,however this view became subject to criticism ,after that another view was given that air space is available for a particular state and aircrafts can go through it within any hindrance by the State.Another view was that a State have control over its space and hence aircrafts of other nation is required to take prior authorization before entering other nation.Similarly many views were given Another one is a State is entitled to exercise and regulate over its air space up to infinite height.As per third view A State plays a vital role to regulate the lower stata of the air space,however the sovereignty of the State is limited.
VIEWS OF M.K.KAW COMMITTEE REPORT
1 .Ensuring the civil aviation policy and civil aviation act.
As per the M.K.Law Committee report ,it states that need for a complete a civil aviation policy, as well as a further a new Civil Aviation Act recognising the rights.(1)
2 .Strategic Imperatives.
Requirement is felt regarding the easiest use of airspace laws in between the civil and military development in the state . The Ministry of Civil is entitled to regulate the airspace.However a three tier synchronization should be set up between the civil and military side.
3 .Establishment of the National Advisory Committee on Civil Aviation.
The National advisory committee on Civil Aviation is required to be formed under the Secretary Civil Aviation ,which performs an important role of review civil aviation policy in order to fulfill the national requirements.(2)
4 .DGCA acts as the regulator for the aviation as well as economy
The National Advisory committee has made recommendation to DGCA with the purpose to maintain as economic regulator for airports and airlines. However the implementation of rules and regulations governing economy should be with DGCA. DGCA is empowered to provide protection based on the environmental laws and related matters.(3)
TWO ASPECTS OF AIR LAWS
There are many international conventions developed in order to regulate aerial navigation.
Chicago Convention on International Civil Aviation,1944 – Chicago Convention was ratified and signed by 53 nations which formed on 7th December ,1944 and later on enforced on 14th April,1947.Later on,a framework was established by the International Civil Aviation Organization(ICAO) regarding International Civil Aviation where the principle was enshrined that each State has sovereignty over the airspace above its territory that an aircraft is not entitled to pass over the territory of another nation without permission.
Key features of the provisions of Chicago Convention on International Civil Aviation,1944 are given below –
- As per Article 2 of the Convention,the territory covers the land areas as well as the waters of adjacent geographical areas under the suzerainty,sovereignty as well as the rules of the nation.
- As per Article 3,the Convention would be applied to the aircraft’s which wouldnot be utilized for several military,customs as well as police services and simply applicable to Civil Aircrafts.Moreover,the state aircrafts are not permitted to pass over the geographical areas of other state without permission by special agreement.
- As per Article 17 of the Convention,Aircrafts enjoys the nationality of the State in which they are registered.
- As per Article 1 of the Chicago Convention states that each State has sovereignty over the airspace above its geographical areas as recognized by the other contracting Stares.
- The registration of an aircraft may be altered from one nation to other as provided under Article 18 of Chicago Convention.
- As per Article 6 of the Convention, (4)
Five Freedoms of Airs – With the rising number of transportation through airway modes,various rules regulating International Law were developed due to the issues regarding International sir transport after First World war.After that International Civil Aviation Conference was developed in Chicago where it included five freedoms of air that includes –
- Liberty to pass across foreign areas without landing.
- Liberty to land for non traffic works.
- Freedom to continue traffic between two foreign nationals
- Liberty to find out in any other country traffic for Nation of origin of Aircraft.(5)
Paris Convention of Aerial Navigation,1919 – As per this Convention,it recognizes that each State has sovereignty over its air space.Moreover,the contracting Stares are permitted to go through or other states during peace,but the entry must be an innocent passage
Convention for the Unification of Certain Rules Relating to International Carriage by Air or Warsaw Convention,1929- As per the Article 1 of Convention,it is applicable to International Carriage of persons,luggage or goods which are made by aircraft for reward .(6)
AIRCRAFT – HIJACKING
In 1920s, the term Hijacking which is also referred as sky jacking was coined in America which implies in-transit thefts of goods stored in the truck which is unlawfully formed liquor or to the similar seizure of rumrunners at sea .From 20th century many incidents of seizure of planes as well as many such acts frequently took place where the actual destination which was made by the Air Pirates were altered by use of coercion and threat.After that during 1950s,the hijacking term includes the hijacking of trucks,legal ships,as well as carrying cargo and did not stick to only Air Hijacking .Hijacking is an act committed against the security of civil aviation as well as similar to piracy.As per Article 11 of the Tokyo Convention,1963 hijacking is referred as an act whenever an individual has illegally committed by using coercion or threat ,seizure or unlawfully inserts control of an aircraft in flight or in other word where the States are entitled to take necessary remedies in order to reestablish control of the aircraft to the authorized commander .Moreover As per Article 13 of the Convention,states that the contracting states is entitled to go for delivery of any individual and shall ultimately ensure inquiry regarding the facts .
In 1931 ,The first hijacking case took place in Peru,in 1948, when a flight aircraft was reaching from Macau to Hong Kong ,the first incident of aerial hijacking in entire Asia took place,which shocked the conscience if people ,many people died when the plane crashed into Pacific Ocean.In fact , in 1958 to 1967 ,number if cases of hijacking was reported which increases rapidly,and spreader terror all over the world.”(7)
EVOLUTION OF LAWS REGULATING HIJACKING
Tokyo Convention,1963 was developed in 1963 ,with the rising cases of hijacking as well as offences against the state relating to safety of the flights of aircrafts issued problems for the International community and for the International Civil Aviation Organization(I.C.A.O).Even after the establishment of the Convention, the cases of hijacking continued ,after that Tokyo Convention Act,1975 came into force and India also ratified the Convention in order to follow the provisions of the Convention Parliament if India.After that due to the failure of Tokyo Convention to control hijacking incidents all over the world and its limitations led the nation’s to consider other steps to solve the problem as well as to form provisions in order to punish the offenders of the crime.Later in December 1968, the Legal Sub Committee based on the demand of Council formed a draft for the Convention and then the Hague Convention,1970 was passed and came into force on October,1971.
Hague Convention, 1970
Key Features of the Hague Convention1970 are given below –
- With comparison to the Tokyo Convention,Hague Convention has played a significant role for suppressing the hijacking.
- Although due to the jurisdiction of the State Parties over the hijackers and offenders of other crimes related to that ,it will make a difficult situation for the hijackers ,and it will be easier to apprehend the offenders as the hijackers will face difficulty to escape the process of law.
- In order to implement the provisions of the Hague Convention,1970 ,the Parliament of India has passed the Anti-Hijacking Act,1982 .
- The offences related to hijacking shall be considered as extraditable offences as per any Extradition Treaty signed by the state .
Montreal Convention,1971 – The Montreal Convention has developed in furtherance of the Hague Convention,it was developed due to the criticism with regards to jurisdiction of Stares and extradition of the criminals or hijackers. But the Hague Convention could not control or suppress the rise of incidence of hijacking and dye to which Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation,1961 was adopted as well as signed,where based on the Montreal Convention,the member States were empowered to confer punishment upon the hijackers.(8)
HIGH PROFILE CASES OF HIJACKING
There were several reasons behind the decreasing rate of hijacking that covers heightened security as well as greater international cooperation.
1)However , Palestine Liberation Organization (PLO) had appreciated the former hijackings and they found that hijacking had surpass its usefulness.Apart from that many of the militant groups made some devastating plans in order to destruct the aeroplanes in 1980s.
2)In 1988 American airliner was downed by Libyan intelligence agents over Lockerbie, Scotland,and in the blast about 259 people died in the aircraft as well as 11 people outside the plane .In September 11,2001 another incident took place in America where the four airlines had been hijacked by the suicide terrorists and rest of the two flewed into the World Trade Center complex in New York City and one into the Pentagon near Washington, D.C. (9)
3)Furthermore, last plane completely destroyed outside Pittsburgh, Pennsylvania, where almost 3,000 people died in the September 11 attacks, and out of that a new area was developed that includes in order to continue homicide in large numbers and destroy the belongings or properties , the fuel-laden planes were used.But the based on some of the people on the fourth plane ,it was found that such a tactic would be difficult to continue further.(10)
AQIS operative Mohammed Abdur Rehman admits link with Kandahar plane hijack terrorists
Mohammed Abdur Rehman who is the operative of Al-Qaeda Indian sub-continent (AQIS) has accepted his connections with the terrorists who were responsible for the 1999 Kandahar plane hijack incident and 2002 American Centre blast incident took place in Kolkata.The terrorists from Pakistan those who were responsible for Kandahar plane hijack were harboured by him at safe place in Cuttack .However ,the terrorist was Pak-based Harkat-ul-Mujadhideen group who was involved in the Delhi-bound Air India flight IC-184 hijacking and that has destined from Kathamandu to Kandahar and stated that they would release the passengers of the plane if Azhar Masood was given release by the authorities.However,Mohammed Abdur Rehman, didn’t admitted the fact when he was taken in remand by the Police Officers of Orissa but later on admitted when the evidence which was collected by NIA and IB were placed before him.
The Authorities reiterated that the operative’s brother was involved in the bomb blast of American Center in 2002 and the officials were investigating to find the places where he has provided home to the terrorists.But later on Rehmans brother was released ,while as per the view of the Police in India,they stared another terrorist was given shelter in Cuttack with safety.
In 1st May 1961,The first aerial hijacking occurred in America,where a airplane clears from Miami to Key West, Florida, its direction was moved to detour to Cuba.(11)
In 1961,airplanes were hijacked in Cuba, and then large number of airplanes subsequently hijacked in the America and elsewhere in the Western Hemisphere were flown to Cuba by either homesick Cubans or politically motivated leftists.
On the other hand ,many of hijacking ,the hijackers demands huge ransom payment of money and if they were not paid they can kill the passengers. One of the most dangerous hijacking took place during 1968 in Europe and the Middle East .During the period almost 200 cases of hijackings,were found ,where the hijackers demanded money in exchange of the safety of the passengers in the aeroplane ,trey were politically motivated Palestinians or other Arabs who commandeered and asked to release the comrades from jail in Israel or some other location and in case of failure to do so they would definitely cause harm upon the passengers. After that in 1970 ,another incident of this new type of terrorism took place as 300 passengers were restricted there are held hostage for seven days and ultimately destroyed the aircraft on the ground.Many cases were found where the Middle Eastern and leftist hijackers ultimately confined at a restricted place as per the desire of hijackers and later on killed the people who were traveling on airplanes that were diverted from scheduled routes.(12)
In 24th April 1993, the Indian Airlines Aircraft was hijacked which was going to Srinagar via Jammu from Delhi,the attacker was in desire to take the airplane to Lahore ,Pakistan but due to the rejection of the same by the Pakistan ,later on it landed at Amritsar and than the hijacker was killed there by the authorities.(13)
THE ANTI-HIJACKING ACT, 2016
As per the provision of the Anti Hijacking Act,2016,if by the use of technology if any person with unlawful intention takes away or regulates any aircraft in service with the use of certain force or coercion shall be liable for committing hijacking.
Any one shall be liable for committing the crime of hijacking if express an intention to commit or illegally causes any other person to receive threatening relating to that as well as instigate or give directions as well as organizes others to commit the crime or if anyone take active contribution in promoting such crime or crime as provided under clause (a) or clause (b) above;
If anyone helps a person to escape from investigation in order to protect hin,prosecution or punishment,illegally with proper knowledge that such other person is liable for committing the crime or crime as mentioned under clause (a) or clause (b) or clause (c) or clause (d) above, moreover the warrant of arrest gas been ordered by the Court against the person for prosecution by law enforcement authorities for the crime shall be punished.(14)
Following are the conditions based on which it can be considered that a person is involved in committing hijacking –
(a) if anyone yield assent to commit an offence as provided under sub-section (1) or in clause (a) of sub-section (2),or in engaging in an act based on an agreement with other persons
(b) if a person involved in such activities with otger person having common object and intention and make contribution in the following manners-
(c) if anyone contribute with the purpose to regulate the criminal conducts or continuing the aim of the group and involved in committing various crimes.
(d) if the person suggests to form group for pursuing and following their motive to commit such offences
As per the Act is concerned,an aircraft shall be recognized for the purpose of service starting from the pre flight preparation with the assistance of various ground personnel for a distinct aircraft until the period of twenty-four hours after any landing and in the case of a forced landing, the flight shall be considered to carry on until the authorised authorities takes the responsibility for the aircraft and for persons and property on board.
As per Section 5 If anyone commits the crime of hijacking ,he shall be punished with certain period including
(a) death penalty in case due to such an act it leads to the death of large of people in th aircraft. And while the commission of the offence no security personnel or there was no direct involvement of any one for the hijacking; or(15)
(b) he shall be punished with life imprisonment along with fine as determined by the Court.
If anyone from the public or passenger or any member of the aircraft us injured or his human rights are violated due to the violence of the individual committing hijacking shall be liable for punishment with the punishment of similar nature with which he would have been punishable as per the provisions if any law for the time being in force in India ,moreover if such incident took place.
As per Section6(1). As per the provisions of Criminal Procedure Code, the Central Government is empowered to delegate on any Central Government officials or any officer belonging to an Agency, the authority to go for arrest, investigation as well as prosecution exercisable by a police officer as per the Code .
The officials of Government and the Police Officers are required to help the officers of the Central Government for implementing the provisions of this Act.
As per Section 7. (1) If the crime as per Section 3 or 5 has been committed outside India ,ie in foreign state ,the person committing such offence shall be punished under the provisions of the law in the similar manner if he committed the offence in India.However the Court in India is not competent to take cognizance of a crime which is punishable under section 3 or section 5 of the Act and the offence took place in foreign countries –
As such the offence must be with in the territory of India in order to make the Court competent –
(a) the crime should be committed within the Indian territory(16)
(b) where the crime has took place in the broad an the aircraft is registered in India.
(c) where offence took place on the board and the aircraft actually where the incident occurred lands in India with the alleged criminal still on board;
(d) such offence is committed against or on board an aircraft which is for the time being leased without crew to a lessee who has his principal place of business or where he has no such place of business, his permanent residence is in India;
(e) where the crime took place against an Indian citizen,
(f) in cases a refugee or stateless person has committed the crime whose habitual residence is in the geographical areas of India.
(g)where the criminal of the hijacking has stayed in India ,while was not extradited under section 11.
As per Section 8. (1) The State Government shall with the approval of the Chief Justice of High Court issue a notification recognize the Court of Sessions to be a Designated Court with the aim to provide speedy trial.(17)
Special Court established as per section 11 or, under section 22 of the National Investigation Agency Act, 2008 further recognized as the Court constituted for proceeding the matters of offences relating to hijacking and for other purposes of this Act on the circumstances where under Section 6 of the Act ,the power of arrest, investigation and prosecution is regulated by the Agency. Further a Designated Court later on hold the trial under the Act inspite of anything contained in the Code of Criminal Procedure.
As per Section 9..states that as per the provisions of the Code of Criminal Procedure, 1973,
(a) All the offences provided under the Act shall be tried by the Designated Court as mentioned under Section 8.(18)
(b) if anyone is suspected or accused of committing any offence as provided under the Act ,she shall presented before the Magistrate under sub-section (2) or sub-section (2A) of section 167 Cr.P.C ,moreover such Magistrate is empowered to detain such individual in the custody for a certain period of time up to thirty days maximum and in case the Magistrate is having designation of Judicial Magistrate, he is empowered to detain the offenders up to seven days ,furthermore if the Magistrate is an Executive Magistrate:(19)
While the Magistrate may concludes that the detention of such individual is not required under the provision of law in the following conditions –
(i) when such person is presented before the Magistrate as mentioned ,
(ii)when the time period has expired for detention of the person he shall make an order to present the individual before the Designated Court having jurisdiction;(20)
(iii) the Designated Court is empowered to exercise, it’s power with regards to the person who is presented before him as per clause (b), And the Magistrate is having jurisdiction to try a case is entitled to exercise power given under section 167 of the Code of Criminal Procedure, 1973,
(iv) Based on the report presented by the Agency or any complaint which is filed by an officer of the Central Government, or the State Government, the designated Court is empowered to take cognizance of the crime even in absence of the accused being committed to it for trial.
(v) The designated Court is empowered to go for trying an offence other than those also which are mentioned under the provisions of this Act, by which the accused may, under the provisions of Act be taken and charged .(21)
As per Section10.it states the provisions of the Code of Criminal Procedure, 1973 shall be applicable to the proceedings tried by a Designated Court and officer who is proceeding a prosecution before a Designated Court shall be considered as a Public Prosecutor.
HIJACKING SURVIVAL GUIDELINES – A WAY FORWARD
Hijacking took place in rare cases but occurs with the intention to control the air crafts.Noise, commotion, and possibly shooting and yelling are some of the common procedures adopted in order to hijack the aircraft’s or it also covers methodical as well as the declaration by the active member..
The guidelines regarding preventing the instances of Air Hijacking was developed before September 11, 2001 after an incident of Hijacking aircrafts in World Trade Center as well as into the Pentagon.
After that incidents ,people came forward to find a solution regarding plane hijacking and reacted to that issue. No guidelines was issued by the Government of America regarding the reaction against aur hijacking. The main objective of hijackers’ includes suicide mission where they consider flights itself as a bomb, as well as take hostages to gain publicity for a political movement, and they take advantage to leave a State after committing offence.
Certain guidelines issued in order to maintain a peaceful resolution of the situation that covers –
1)In order to face any situation of hijacking ,everyone should remain calm so that in that condition if anyone get panic ,it will be difficult to handle the situation
2)During that critical situation,one Do not take the risk to challenge the hijackers physically or verbally or take any step to run from that situation.
3)If the hijackers are demanding to to stay there with certain body positions including head in down ,for the safety of an individual that step should be taken
4)One shouldnot take steps to hide the passports or belonging and in case they ask to show it ,its required to provide for identification of the same for the safety of own.Moreover one us required to assure their military status in case it is confronted with fact at any stage and should make them aware that there is no intention to cheat them by showing personal passport.
5)In order to save ourselves from getting injured or killed by terrorists ,one should remain calm and shouldn’t move or take any initiative.In case anyone is shot inside the aircraft,one should take steps to protect themselves by putting their head down and not to make eye contact with hijackers.In case, anyone is asked to go forward by the rescue force,one should take the step immediately in order to safe own self.However,fire or smokes found inside the aircraft,attempt should be made to get emergency exit open.
6)When anything asked by the hijackers,one should answer in a calm voice ,moreover avoid the political topics while addressing and one should utilize the timing to consider the attributes and behavior of the hijackers,temperaments wisely in order to protect ourselves from becoming a victim of offences .(22)
7)One should utilize his mind by memorizing each and every acts and incident so that after getting release can file a report against hijackers.
8)In case of a passenger is not well ask for the chemo of crew members ,avoid to ask the hijackers unless similar assistance has been rendered by them for other passengers.
9) resolution is another part, either by a hostage rescue team or through negotiation. At last the hijackers may take steps to abandon the aircraft, people inside the aircrafts and other personnel or can surrender himself before the officials. The guidelines which is applicable in case of rescue of an operation are as follows – However the rescue may include noisy environment,stressful, and along with the shooting. Everyone is required to follow the guidance of the rescue force as well as the authorities. If no one is present to guide ,one should go as quickly from the aircraft and move towards the terminal or control tower area.At the beginning, the rescue force are not of aware of the fact that whether they are a hijacker or a victim.
10)One should treat himself as a hijacker or co-conspirator until and unless the hijackers can examine that he is not a member of hijacking team.
11)Lastly and not the least one should take steps to Cooperate and follow the guidance of local authorities and members of the U.S. Embassy, Consulate or other U.S. agencies with regards to hijacking .(23)
12)One of the toughest situation during hijacking covers the situation where the passport of the passengers are taken a way and carry on luggage ransacked.The hijackers asks the personnel to divert the flight in another State and the hijackers makes negotiation and use the passengers on the flight as a medium ,that if their demands are not fulfilled they will kill everyone in the flight ,many times the lives of the people are threatened and sometimes they release passengers after confirming their negotiations and in exchange of fuel, landing/departure rights, food, etc.
13) Every hijackers or criminals may not impart themselves at the same time. A Hijackers may be used who is lone and can force the security personnel or other officials with the purpose of neutralization by other hijackers.
14)In such a case,each and everyone should prepare themselves for physical as,well as verbal abuse ,staying out of fear where no food or drink will be available,one has to be mentally and emotionally strong enough to handle the situation and situation may come where each one will be required to blend with other passengers and have to avoid sudden body movements.(24)
Inspire of the endeavor of each States to suppress the crimes of hijacking and other related crimes by passing several legislation as well as adoption of the International Instruments,the number of cases are still rising.A part from that there is a threat in the mind which is required to be considered before the legislation that in cases number hijackers are caught and sent to prison ,there will be more chances of crimes of hijacking by the terrorism gang ,as they will demand to release the hijackers in exchange of the safety of the citizens of the country who will be in travelling.In such a scenario,there is urgent need of the passing of the resolution of the UN General Assembly and to make recommendations regarding these ,moreover much more attention is required to be given in the AirPorts while packing luggages so that suppress such incidence.
Law,‘CURRENT DEVELOPMENTS IN AIR AND SPACE
LAW’P.24http://[email protected] visited 26 July 2020
(4)Dr.S.K.Kapoor,International Law & Human Rights,321-322(Dr.Nagendra Singh,20th Edition,2016)
(8)Dr.S.K.Kapoor,International Law & Human Rights,326(Dr.Nagendra Singh,20th Edition,2016)
(9)https://en.m.wikipedia.org/wiki/List_of_hijackings_of_Indian_aeroplanes visited 26th July 2020
(11)The Economic Times, AQIS operative Mohammed Abdur Rehman admits link with Kandahar plane hijack terrorists, https://m.economictimes.com/news/defence/AQIS-operative-Mohammed-Abdur-Rehman-admits-link-with-Kandahar-plane-hijack-terrorists/articleshow/52882632.cms visited 26th July 2020
(14)THE ANTI-HIJACKING ACT, 2016 https://www.google.com/search?q=recent+law+on%2Fair+hijacking+in+Ind ia&oq=recent+law+on% 2Fair+hijacking+in+India&aqs=chrome..69i57j33.16603j0j1&client=ms-android-asus-tpin&sourceid=chrome-mobile&ie=UTF-8 visited 26th July 2020
(15)THE ANTI-HIJACKING ACT, 2016 https://www.google.com/search?q=recent+law+on%2Fair+hijacking+in+India &oq=recen t+law+on %2Fair+hijacking+in+India&aqs=chrome..69i57j33.16603j0j1&client=ms-android-asus-tpin&sourceid=chrome-mobile&ie=UTF-8 visited 26th July 2020
(22)Hijacking Survival Guidelines, https://www.wrc.noaa.gov/wrso/security_guide/hijack.htm visited 26th July 2020