95

p There has been an alarming increase, in recent times, of acts against the safety of international air travel. The largest number of such acts was recorded between 1968 and 1970; a total of 121 aircraft (including 69 transport planes  [95•1 ) were hijacked in the world from January 1948 to September 1969, with air traffic thereby disrupted on the air lines of 47 nations, 97 persons killed and 23 wounded. The effect of aircraft hijacking in 1968 was to prevent some 1,500 passengers from reaching their destination on schedule, and 3,000 passengers from doing so in 1969.

p Under these circumstances, international measures have been taken to prevent and suppress acts against international civil aviation. Three conventions have been concluded, one after the other, in the space of less than seven years which, complementing each other, counter the incessant growth of the danger jeopardising the normal operation of international civil aviation.

p These are:

p —The Convention on Offences and Certain Other Acts Committed on board Aircraft, signed at Tokyo on 14 September 1963  [95•2 ; 

p —The Convention for the Suppression of Unlawful 96 Seizure of Aircraft, signed at The Hague on December 16, 1970  [96•1 ; 

p —The Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation signed at Montreal, September 23, 1971  [96•2 .

p Soviet and world legal literature has given much prominence to action for the suppression of unlawful interference with the operation of civil aviation, for which reason we are not giving, in this paragraph, a detailed analysis of the provisions of the above-mentioned conventions, but confine ourselves to reviewing some general theoretical problems relating to the qualification and elements of offences falling within the Tokyo, The Hague and the Montreal Conventions.

p A review of the extent of elaboration of the Conventions will suggest that the least elaborated and the weakest of all is the Tokyo Convention, although acceded to by 60 nations. This is because the Tokyo Convention was the sole international document in 1968-69 to provide, if in small measure, for certain action to counter the rapidly rising incidence of aircraft hijacking and other acts jeopardising the operation ol air services.

p This is exactly what accounts for the fact that the bulk of the participating nations of the Tokyo Convention acceded to it in 1968-1969 which made it possible tor the 97 Convention to come into effect on December 4, 1969, although the Convention itself had been drafted back in 1963  [97•1 . The Convention, as stipulated in Art. 1, covers:

p a) offences against penal law; 

p b) acts which, whether or not they are offences, may or do jcopardi.se the safety of the aircraft or of persons or property therein or which jeopardise good order and discipline on board.

p The Convention applies in respect of offences committed or acts done by a person on board any aircraft registered in a Contracting State, while that aircraft is in flight or on the surface of the high seas or of any other areas outside the territory of any State (emphasis added). The very definition of the corpa delicti falling within the Convention as well as the above-mentioned area of application makes evident the deficient elaboration of the problem of suppressing unlawful interference with the operation of air services. The deficiences of the Convention comprise not only the absence of a definition of the corpa delicti  [97•2  and the exclusion from the Convention’s scope of domestic airlines (except the airlines passing over the high seas but linking cities of the State of registration), but also the absence of a clearly formulated principle of inescapable punishment and qualification of offences falling within the Convention as criminal regardless of the motives of the offence. Other deficiences of the Convention are the granting of unjustifiably extensive rights to flight 98 commanders, and separation of Art. 11, formulating the concept of “unlawful seizure of aircraft" from Chapter I of the Convention entitled “The Scope of the Convention”. This creates a possibility of divergent interpretation of the Convention, in the event of structural interpretation being used. The afore-said deficiencies are compounded by the wording of Art. 22 which says that “this Convention shall, after it has come into force, be open for accession by any State member of the United Nations or of any of the Specialised Agencies”. This wording meant that the Convention, conceived as universal, could not become one, although by September 1963 there had already been the Moscow formula (with the document opened for signature in Moscow, London and Washington) which is known to have appeared in the process of drafting the Treaty to ban nuclear weapon tests in three environments. Naturally, the Tokyo Convention, because of the above-mentioned deficiences, could not have been effective in suppressing unlawful interference with the operation of civil aviation.

p Considering the rising incidence of acts of unlawful interference with the operation of air services as well as the deficient provisions of the Tokyo Convention, the General Assembly of the International Civil Aviation Organisation (ICAO) passed a resolution A 16-37 asking the ICAO Council to consider, within the bounds of possibility, other measures towards resolving the problem of unlawful seizure of aircraft. The Twenty-Fourth Session of the United Nations General Assembly in 1969 considered the problem of “forcible diversion of civil aircraft in flight”. The Assembly approved the Resolution 2551 ( TwentyFourth Session) declaring itself “deeply concerned over 99 acts of unlawful interference with international civil aviation" and recommended “effective measures against hijacking in all its forms, or any other unlawful seizure or exercise of control of aircraft”. The Assembly urged full support for the ICAO’s efforts directed towards the speedy preparation of a convention providing for appropriate measures against acts of unlawful interference with the operation of civil aviation. A diplomatic conference at The Hague on December 16, 1970, adopted a Convention for the Suppression of Unlawful Seizure of Aircraft. The Hague Convention defined the offences falling within it. Art. 1 says that ”. . .any person who on board an aircraft in flight: 

p (a) unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or exercises control of, that aircraft, or attempts to perform any such act, or 

(b) as an accomplice of a person who performs or attempts to perform any such act 

p commits an offence.” 

p The Convention requires each Contracting State to make the offence punishable by severe penalties (Art. 2j.

p The extension of the Convention to domestic line traffic (Art. 3) should be seen as a positive aspect of the Convention, apart from setting out the corpus delicti. Besides, Art. 3 also stipulates the scope of the Convention which is limited to instances involving an international element: —if the place of take-off or the place of actual landing of the aircraft on board which the offence is committed is situated outside the territory of the State of registration of that aircraft;

p —if the offender or the alleged offender is found in the 100 territory of a State other than the State of registration of that aircraft.

p The important provisions of the Convention comprise the aut dedere aut judicarc principle formulated in Art. 7 which makes it imperative lor the Contracting State in the tenitory of which the alleged offcndei is found, if it does not extradite him, to submit the case, "without any exception whatsoever" [emphasis added] to its competent authorities for the purpose of prosecution. As to the mode of extradition as stipulated by the Convention, Art. 8 provides for the offence set out in Art. 1 as an extraditable offence to be included in all extradition treaties concluded between States. The Contracting States, in virtue of Art. 10, commit themselves to afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of the offence falling within the Convention. Art. 13 codifies the Moscow foimula—the Convention is open foi signature in Moscow, London and Washington, which creates the objective conditions for it to become universal.

p The major distinguishing feature of The Hague Convention is that it deals with nothing but the problem of hijacking of aircraft as such. The Convention is designed to protect only an aircraft in flight; moreover, it protects an aircraft in flight only in the event of it being an object of an act of seizure; besides, this act is qualified as an offence only when committed by a peison on board this particular aircraft. Consequently, the Convention excludes from its scope all the categories of other acts which could produce a no lesser threat to the operation of civil aviation.

p This being the case, the ICAO General Assembly adopted a resolution A 17-20 in June 1970, that is, before the 101 conclusion of The Hague Convention, in which it stated the need to dr.ilt ptovisions to complement those of international agicements in force. Along with that, the UN Genelal Assembly adopted the resolution 2645 ( TwentyFifth Session) on November 25, 1970, which condemned “without any exception whatsoever, all acts of aerial hijacking or other interference with civil air travel, whether originally national or international, through the threat or use of force, and all acts of violence which may be directed against passengers, crew and aircraft engaged in, and air navigation facilities and aeronautical communications used by civil air transport".  [101•1 

p A diplomatic conference in Montreal in September 1971 adopted a Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation.

p Art. 1 of the Montreal Convention says: 

p 1. Any person commits an offence if he unlawfully and intentionally: 

p (a) perfoims an act of violence against a person on board 102 an aircraft in flight  [102•1  if that act is likely to endanger the safety of that aircraft; or 

p (b) destroys an aircraft in service  [102•2  or causes damage to such an aircraft which renders it incapable of flight or which is likely to endanger its safety in flight; or 

p (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 is likely to endanger its safety in flight; or 

p (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; or 

p (e) communicates information which he knows to be false thereby endangering the safety of an aircraft in flight.

p 2 Any person also commits an offence if he: 

p (a) attempts to commit any of the offences mentioned in paragraph 1 of this Article; or 

p (b) is an accomplice of a person who commits or attempts to commit any such offence.

p It can be seen from the corpa delicti falling within the 103 Montreal Convention that it is directed not only against acts of seizure or exercise of control of an aircraft with a view to using it as a transport vehicle but also against acts oi terrorism committed in respect of aircraft in service whether on the ground or in the air as well as in respect of ground-based air navigation facilities.

p From this point of view, it is necessary to consider as a gross violation of the Montreal Convention the action of the American authorities in regard of the Aeroflot airliner (registration number 86502), its crew, passengers and their luggage, comprising diplomatic luggage, which took place on May 12, 1981. The Aeroflot airliner was in service within the meaning of paragraph (b) of Art. 1 of the Montreal Convention Within 20 minutes of the take-off of the Soviet airliner from the Dulles Airport in Washington, a group of armed FBI agents broke into the airliner, pushed the crew out and, without producing any official document, began to search it. They ripped open navigation aids, the floor all through the airliner as well as the panel covering the control rope The luggage, including that belonging to members of the staff of official Soviet missions in the US, was thrown out and opened without a scruple. All the cargo subject to examination had earlier been checked by the US customs officials in perfect compliance with international rules and cleared for transportation. Some of the luggage was stolen during the search Passengers, including a pregnant woman, a post-inlarction patient and children, were maltreated.

p The Soviet government’s protest note of May 13, 1981. said- "What has happened is ye( another example of tht American authorities’ glaiing disregard for the time-honoured standards of international law and of elementary 104 principles of decency in general and indicates that terrorism and banditry are made an official policy in the US."  [104•1  Without in any way denying the right of customs examination, one cannot accept it in such a form or action that imperilled the life of passengers and the crew, caused material damage to the Aeroflot company, material and moral damage to the passengers and the crew, which, incidentally, left them entitled to demand reparation. Besides, it was a blatant violation of the 1961 Vienna Convention on Diplomatic Relations demanding, in particular, the indispensable presence of the owner of diplomatic luggage whenever it might be opened. The form and character of what had happened warranted the conclusion that the Montreal Convention had been violated by the US authorities and that their actions were of a terrorist character.

p What distinguishes the Montreal Convention from The Hague Convention is not only its scope, but also the presence of a special provision whereby the “Contracting States shall, in accordance with international law, and national legislation, endeavour to take all practicable measures for the purpose of preventing the offences mentioned" (Art. 10.)

p The Montreal Convention, in particular, means prosecution and punishment of such crimes as the blow-up of a Cuban airliner on October 6, 1976, on its way through Georgetown (Guyana), Port-of-Spain (Trinidad and Tobago), and Bridgetown (Barbados) killing 57 Cubans, including the crew, 11 Guyanan students who were going to Cuban educational centres, and five members of a cultural delegation of the Democratic, People’s Republic of 105 Korea on a tour of Latin American countries. Ten minutes after the take-off, there was a flash report from the airliner’s flight commander that an explosion set the plane on fire. The commander asked for permission for an emergency landing, but the plane failed to reach the shore and fell three miles west of the island.

p Two passengers, on coming with that plane to Barbados, put through a call from the Village Hotel to one Luis in Caracas whom they conventionally told about the destruction of the airliner. Thereupon, they left for Trinidad where they had yet another telephone link-up from the Holiday Inn Hotel with Caracas and received an order to fly on to Venezuela at once. The police who detained them found them to be Venezuelan citizens, Hernan Ricardo and Freddy Lugo. When questioned, they confessed to having blown up the airliner: Ricardo had personally planted a timebomb, hidden in a transister, under the 27-D seat in the airliner. The testimony they had given indicated that that act of terrorism in the air had been part of the anti-Cuban terror campaign carried on by the organisations of Cuban counter-revolutionaries in conjunction with the CIA and the Pinochet Intelligence Service. It was not by accident that they should have chosen the Caribbean area as the place for that action, considering that the states of that region maintain friendly relations with Cuba. It must be said that similar anti-Cuban acts of terrorism had been performed earlier on as well, for instance, there was an explosion on July 10, 1967, in Barbados in the offices of the British West Indian Airways Headquarters which represented the interests of the Cuban Airlines and similar actions took place in Jamaica, Panama and Guyana.

p During the questioning in the Trinidad police 106 headquarters, Ricardo admitted to having been a CIA agent since 1971 and to having been trained by the CIA to engage in subversion, handle arms and take pictures. His accomplice, Lugo, had worked in a private detective office of Luis Posada, a Cuban, who had adopted Venezuelan nationality. That office served as cover for the CIA Station in Venezuela. It was in direct contact with CIA and FBI agenK working in the US Embassy. The arrested men said the order to destroy the airliner had been given by a Cuban counter-revolutionary immigrant chief connected with the CIA, Orlando Bosch, who had expressly come to Venezuela to organise that act of subversion.

p In the notebooks of the criminals the police discovered the telephone numbers of Bosch, Posada and the US Embassy attache in Caracas Joseph Leo who was concurrently a FBI agent.

p What about Bosch? A doctor by training, he, after the victory of the Cuban Revolution, took up the cudgels against people’s government and was one of the bandit group leaders in the Escambroy Mountains; and later on escaped to the US. According to American press reports, in the US he was in charge of counter-revolutionary bands in exile who had committed 150 assassination attempts and some 50 murders in the space of only two years preceding the Bosch arrest. In the US, he had been arrested on six occasions for violating American legislation but was set free every time due to CIA intervention. Bosch had been tried and sentenced to ten years imprisonment for his part in blowing up the Japanese Osaka Maru ship, but was released “on parole" as early as November 1972.

p Following the fascist coup in Chile. Bosch established contact with the Chilean DINA secret service under whose 107 guidance he upgraded his skill in terrorist tactics in 1974. He went to Chile several times. In Buenos Aires he, together with the AAA, the fascist terrorist Anti-Communist Alliance of Argentina, worked out plans for the abduction of Cuban diplomats and other criminal actions. In 1976, he participated in an assembly of Cuban counter-revolutionaries in exile, in Baghio (Dominican Republic). The assembly produced an agreement on uniting their terrorist activities within the Condor framework. In the same year, 1976, Bosch, together with a CIA agent, James Williamson, and fascist organisations of some countries of Central America plotted a coup in Costa Rica.

p In early September, 1976, Bosch, under the assumed name of M. Paniagua, turned up in Posada’s “detective agency" in Caracas. Over there, he met Ricardo and Lugo. On October 4, Ricardo and Lugo came to the little Tia Pura restaurant in Andres Bello St. to meet a CIA man in Venezuela, the chief of the so-called International Committee for the Defence of Democracy, specialising in anticommunism and anti-Soviet slander. It was there that the crime was discussed in every detail, and an advance payment of 40,000 dollars was handed over to Ricardo and Lugo. On the following day, they left for Trinidad by PanAmerican.

p Once arrested by the Trinidad police, Ricardo and Lugo were turned over to Venezuela where Bosch and Posada had already been arrested.

p The Government of Venezuela came under instant massive pressure from the USA, and everything had been put to use—from American press invectives to explosions in Venezuelan offices in Miami and New York. In Miami, there even was an attempt to blow up a Venezuelan Air 108 Force plane that arrived there, and there was a threat ot sabotage against the Venezuelan VIASA air company.

p Bosch himself, in an interview for American journalists in prison, made no bones about his activities, and threatened further terrorist acts. In a statement for The Daily Journal, he insulted the Head of State which led to his case being referred to a military tribunal. However, he went on belching out vulgar invectives against the President and against the judge who was considering his case.

p In a trial at Caracas in 1978, all the defendants were convicted. That was a typical case of crime investigation and denunciation, and that pointed to the grave danger of acts of terrorism in respect of civil aviation and to the connection, as a rule, between these actions and a whole series of other acts of international terrorism subject to prosecution and calling for the cooperation of nations in preventing them.

p While recognising the great importance of these Conventions, it would be wrong to presume them to have resolved all issues involved in action to suppress unlawful interference with the operation of air services.

p For example, the Conventions had no reflection of instances of destruction of aircraft while parked out of service, as stipulated in paragraph c of Art. 2 of the Montreal Convention, and in the airport hangars, or the destruction of airfield installations outside those relating to air navigation facilities. One essential deficiency of the Conventions is the absence of provisions to make punishable the acts of violence in respect of airport ground personnel. The tragic events in the Fiumicino Airpoit of Rome on December 18, 1973, once more demonstrated how essential it 109 was for such provisions be included in the conventions to suppress unlawful interference with the operation of air services.

p On December 18, 1973, a group of terrorists blew up a Pan-American airliner in Fiumicino Airport, killing 30 people. Thereupon, the terrorists seized a West German Lufthansa airliner and left for Athens, having taken several Italian policemen and airport officials hostage along with the passengers on board. Having failed to get their demands met in Athens, the terrorists flew on to Kuwait and landed there. In Kuwait, the terrorists were arrested and the crew and the hostages set free.

p The points that mattered in that particular case were: 

p —no provision for the protection of airport officials in The Hague and the Montreal Conventions; 

p —the fact that the State of Kuwait is not a party to the above-mentioned Conventions and for that reason, technically, the authorities of Kuwait were under no obligation to institute criminal proceedings against the terrorists for the commission of that crime.

p Neither did the Conventions reflect the problem of prosecution and punishment of individuals committing their offences outside any national territory. Besides, in virtue of the provisions of the Conventions, several States simuiltaneously have the right to try the offender whereas, considering the purpose of the offence, the right of preferential jurisdiction must belong to the State of registration of the aircraft and, in the event of an act committed in respect of ground equipment or installations, or an aircraft out of service or in hangars—to the state of nationality of ground equipment or registration of the aircraft if the offender is extradited. Yet another outstanding issue is the absence of a system of 110 guarantees to ensure the fulfilment of obligations by States arising from these Conventions.

p Most of the acts of terrorism in their most brutal form are now being committed because of the unresolved crisis in the Middle East. However, far from all the Stales of fluMiddle East have signed or acceded to the Tokyo, The Hague and the Montreal Conventions. For example, the Middle East parties to the Tokyo Convention are Libya, Saudi Arabia and Israel; those of The Hague Convention: Iraq, Jordan and Israel; and the Montreal Convention Israel.

p This creates additional difficulties in effective action against the unlawful acts of interference with the operation of air services.

p One thing that is worth identifying in this context is to what extent the offences committed on board an aircraft or acts of unlawful interference with the operation of air services can be regarded as acts of international terrorism, how far these offences are compounded by an international element; and what is the attitude of the Conventions, concluded under the ICAO auspices, to the problem of suppression of international terrorist acts in general?

p It is difficult to agree with the propositions of a research study of terrorism by the UN Secretariat carried out in compliance with the decision taken by the 6th Committee at its 1314 meeting, which said that “.. .these Conventions do not deal directly with terrorism. They contain no express provisions on that subject".  [110•1 

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p It is a matter of common knowledge that acts of violence which began with attempts at seizing control of an aircraft with a view to using it as a convenient transport vehicle so as to leave the confines of a State, have subsequently escalated into aircraft hijacking with a view to taking hostages or directly destroying aircraft because of their registration in a certain State.

p All that involved the death of innocent people, with most diverse tactics of violence being used, thereby undermining confidence in air transport, and breeding a sense of fear and uncertainty on the part of the crew of aircraft, passengers, service personnel and the staff of other services and structures used in civil aviation.

p No sooner had the unlawful acts of interference with the operation of air services begun to be committed than the question arose of how these offences were to be identified.

p One term that has been used very often in this connection is “air piracy”; this term has been borrowed from the national legislation of the United States, notably from the 1958 Federal Aviation Act.

p An amendment approved in 1961 to the 1958 Federal Aviation Act stipulated punishment of the crime of “air piracy”. “Air piracy" was defined in that amendment as any seizure or exercise of control by means of force or violation or threat of force or violation pursuing hostile purposes in respect of aircraft in commercial flight. However, subsequently, the States, in working out appropriate conventions, stopped using that term in specifying the elements of the offence. That was done with perfect reason because piracy (or maritime brigandage), as defined in Art. 15 of the 1958 Geneva Convention on the High Seas, was any of the acts listed below: 

112

p 1. Any illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed  [112•1  : 

p a) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft;

p b) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State.

p Paragraphs 2 and 3 treat as piracy voluntary participation or incitement to, or deliberate cooperation in the commission of acts within the meaning of paragraphs 1 and 2.

p Although Art. 15 does contain the term “aircraft”, the unlawful seizure of an aircraft or its complete destruction for political reasons is quite a far cry from the corpus delicti within the meaning of Art. 15 of the Geneva Convention on the High Seas. Unlawful interference with the operation of air services consists in the improper use of aircraft as a means of conveyance or as an object of attack. Various forms of violence, threat or blackmail, which the offenders apply in respect of the crew in such circumstances, do not aim at depredation or personal enrichment. The offenders, as a rule, demand a change of course by an aircraft. Neither the aircraft itself, nor its cargo, nor the passengers’ 113 property are appropriated in the process, as a rule. Moreover, piracy is in no way associated with attempts at destroying aircraft up in the air by time-bombs.

p Soviet legal literature has likewise used the term “air banditry”. It should be remarked that while the use of this term is somewhat consistent with the acts. of seizure of an aircraft involving violence against members of the crew, it does not reveal the corpus delicti applied to cases of damage done to ground-based equipment or the blow-up of aircraft in the air or on the ground. Besides, the term “air banditry" is associated, first and foremost, with acts of violence committed in respect of individuals or public and social institutions.  [113•1  Destruction, demolition or blowing up of property is normally qualified as an act of sabotage in national practice.  [113•2  At the same time, an act of terrorism, depending on the object of attack or mode of commission, may take on the form of: 

p —-political assassination (killing a person), 

p —sabotage (destruction of property), 

p —banditry (organisation of raids).

Concluding, we should note that the qualification of acts of violence constituting an offence under the Hague and Montreal Conventions, as acts of international terrorism committed in air transport, will respond in fuller measure to all the particulars of such an offence  [113•3  ancWirtually correspond to their character.

w