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p A review of the substance of terrorist acts falling within the scope of international law indicates that in a number of instances the commission of such offences involves the taking of hostages. For example, hostage taking has been, as a matter of fact, integral to unlawful interference with the operation of air services. The whole world knows about the tragedy aboard a West German Lufthansa airliner in the autumn of 1977, which fortunately ended up in the release of hostages at Mogadishu airport. Extreme leftist groups of West European countries have more than once flown their victims out to foreign lands, creating troubles in international relations.

p International law already has some proscriptions in force to ban hostage taking in specified circumstances. Art. 3 of the Third 1949 Geneva Convention for the Protection of War Victims, forbids hostage taking during armed conflicts, and a similar ban is to be found in international conventions drawn up with a view to combatting unlawful interference with the operation of air services (The Hague Convention of 1970 and the Montreal Convention of 1971), in the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including 157 Diplomatic Agents, as well as in the UN General Assembly Resolution 2645 (Twenty-Fifth Session).

p At the Thirty-First Session of the UN General Assembly, West Germany called for the drafting of a uniform international convention against tin; taking of hostages to be included in the agenda as a special item. On December 15, 1976, the General Assembly, acting upon the 6th Committee’s recommendation, passed the Resolution 31/103, pointing up the imperative need for this matter to be studied and provided for an Ad Hoc Committee to be established to draft an international convention against the taking of hostages, to be composed of representatives of 34 Member States.  [157•1 

p The Ad Hoc Committee met at the UN headquarters from August 1 to 19, 1977.

p Analysing the discussion in the Committee, one can note the similarity of the positions of the States on the Ad Hoc Committee with regard to international terrorism. The representative of the USSR, speaking in the general debate, stressed that it was necessary, in this connection, to take steps towards enlarging the membership of the Conventions already in force. The taking of hostages should be considered as manifestation of terrorism. Effective measures at national level could be instrumental in dealing with it. But there must be no loose interpretation of type of offence to 158 prevent the measures taken within the UN framework against the taking of hostages from being extended to the national liberation struggles against colonial and racist regimes. The Soviet lepresentative welcomed West Germany’s initiative in this respect.

p West Germany brought before the Committee a draft International Convention against the Taking of Hostages. Art. 1 of the draft defined the offences within the scope of the Convention. Under paragraph (1) of this Article, any person who seizes or detains and threatens to kill, to injure or to continue to detain another person (hereinafter referred to as the “hostage”) in order to compel a thud party, namely, a State, an international intergovernmental organisation, a natural or juridical person, or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offence of taking of hostages within the meaning of this Convention.

p Let us note right away that the offence thus set out does not cover hostage-taking as an act being directed against the victim itself so as to compel him or her to do or abstain from doing any act or derive any material or political benefit from the fact of detention of the given person, thereby exacerbating international relations.

p Nor does the corpus delicti contain an international element to make this category of offence subject to an international convention. Paragraph (2) stipulates that any person who:

p a) attempts to commit an act of taking hostages,

p b) or is an accomplice of any person who commits or attempts to commit an act of hostage-taking also commits an offence within the meaning of this Convention.

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p Art. 2 regulates the questions of cooperation between the States Parties to the Convention, notably, by taking measures within the framework of national law to prevent the commission of such offences in or outside their territories, by an exchange of information and coordination in taking administrative and other appropriate measures to forestall the commission of an offence.

p Art. 3 contains the obligations of the Contracting States lo ease the conditions of hostages who have found themselves in theit territory, and take measures towards securing the release of hostages. Among other things, the States are bound to facilitate the departure of liberated hostages and return the objects unlawfully seized by the offender.

p Art. 4 provides for severe penalties against persons having committed any of the offences defined in the Convention. The qualification of such offences as the worst common crimes makes it possible to reduce to the minimum the distinction the world’s legal systems have in the field of criminal law.

p Art. 5 says that the fixing of jurisdiction over the offences defined in the Convention does not exclude any criminal jurisdiction exercised in accordance with national legislation. One would say in this context that it would IDC more correct to speak of fixing jurisdiction over the offender.

p Arts. 7 and 8 formulate the principle of aut dedere aut judicare. Incidentally, the main accent is on extradition to the State whose nationals will have fallen victim to an act of hostage-taking. This provision is a rather essential complement to assure inescapable punishment of this category of crime.

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p Art. 9 regulates the questions of granting legal aid in connection with ciiminal piocedure executed against the offenders pursuant to this Convention.

p Art. 10 emphasises that tiie present Convention does not affect the above-mentioned Conventions of 1949, 1970, 1971, and 1973.

p Arts. 11, 12 and 13 are of a procedural character and regulate the questions of accession, entiy into forre, and the machinery of settling disputes that may aiise from the application of the Convention.

p The International Convention against the Taking of Hostages, consisting of 20 Articles, was adopted by the UN General Assembly on December 17, 1979 and opened for signature by governments on the following day.

p The Convention makes it imperative for the signatory States to prosecute under criminal law or extradite any person committing an act of hostage-taking and also take appropriate measures of punishment, considering the grave character of such an offence. So some progress towards resolving the question of hostage-taking has been made through international law.

p The Convention will enter into force after 22 States have deposited their instruments of ratification or accession with the UN Secretary General.

p The preamble to the Convention records that the States Parties consider that "the taking of hostages is an offence of grave concern to the international community" and that "it is urgently necessary to develop international cooperation between States in devising and adopting effective measures for the prevention, prosecution and punishment of all acts of taking of hostages as manifestation of international terrorism" [emphasis added].

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p The Convention stipulates that the State Party in the territory of which the alleged offender is found shall, if it does not extradite him, be obliged to submit the case to its competent authorities for the purpose of piosecution, through proceedings in accordance with the laws of that State (Art. 8). This is, therefore, in line with one of the major principles of the Convention machinery assuring inescapable punishment of the crime committed—“ extradite or prosecute”. This provision of the Convention is mandatory “without any exception whatsoever" and whether or not the offence was committed in the territory of the State Party concerned. Under the terms of the Convention, a request for the extradition of an alleged offender shall not be granted if the requested State Party has substantial grounds for believing that the request for extradition has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality, ethnic origin or political opinion, or that the person’s position may be prejudiced. Of course, the reference to “political opinion" or the argument that “the person’s position may be prejudiced" provide an excuse for any of the Contracting States to apply the Convention at will. Now, since under Art. 13, the Convention shall apply to offences of an international character, it is difficuJt to cite an example or presume an instance of such offences being done for purely criminal motives.

p One must consider as extremely important the wording of Art. 12 whereby in so far as the Geneva Conventions of 1949 for the protection of war victims or the Additional Protocols to those Conventions are applicable to a particular act of hostage-taking, and insofar as States Parties to this Convention are bound under those Conventions to 162 prosecute or hand over the hostage-taker, the present Convention shall not apply to an act of hostage-taking committed in the course of aimed conflicts as defined in the Geneva Conventions of 1949 and the Protocols thereto, including armed conflicts mentioned in Art. 1, paiagiaph 4 of Additional Protocol 1 of 1977, in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations.

p Arts. 5, 6, 7, 10, 11, detail the obligations of States in the process of cooperation relative to the application of this Convention.

p The Convention is an important document of international law for the fight against the crime of hostage-taking of international character. However, the problem is how to make the convention politically and geographically universal, which would make its application much more effective.

p One drawback of the Convention is the absence of a special Article for the suppression of terrorist organisations committing acts of hostage-taking.

p It must be pointed out that hostage-taking occurs in a whole series of cases in the course of liberation struggles. While acknowledging the justice and heroism of those in battle, one should note that reactionaries exploit such facts to discredit this movement, intensify repression and even destroy persons taken hostage.

p The capture of the Spanish diplomatic staff in 163 Guatemala by a gioup of peasants may be quoted as a case in point. A group of peasants entered the Embassy of Spain in that country in January 1980 and declared that they had decided to occupy the Embassy in token of protest against the incessant reprisals by government troops, police and paiarnilitaiy terrorist organisations, like the Death Squadron, in the pay of landowners and foreign monopolies. Present at the Embassy at the moment were Spain’s Ambassador Maximo Cajal, several prominent Guatemalan lawyers representing the National Bar of Guatemala (Eduardo Caceres Lenhof, a former Vice-President of that country, Adolfo Molina Orantes, a former Foreign Minister, university professor Mario Aguirre Godoy) who were about to leave for Madrid to attend a conference of lawyers.

p Later on, the Spanish Ambassador told the journalists: the peasants had told him that they had come from the El Quiche Department and that they could no longer tolerate terror and violence, and asked him to enter an international commission that would inquire into the human rights situation in that province inhabited primarily by Indian tribes. The intruders, led by a woman, escorted the Embassy staff and the visitors to the Ambassador’s office on the first floor and barricaded themselves off together with them. Although the occupation was peaceful, the Ambassador tried to put a call through to competent authorities to advise them of the substance of the request of the hostage-takers, but failed to get any ranking Foreign or Interior Ministry official on the line. He called up the Foreign Minister of Spain to inform him that the peasants were in a peaceful disposition and unarmed, as far as he could see.

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p As the Spanish EFE news agency correspondent reported from Guatemala, by 1 p. m. when the journalists, assembled in front of the Embassy, waiting for the matter just about to be peacefully settled and for a chance to meet and talk to the peasants and the hostages, numerous policemen and plain clothes men surrounded the mission’s building. The Ambassador tried in vain to persuade the police by phone not to take any armed action since there was ample opportunity to resolve the problem peacefully.

p The peasants let Professor Godoy leave the building to offer his services as mediator.

p The Ambassador shouted to the policemen from the window of his office: “Don’t enter the Embassy compound! We’ll fix everything up ourselves! And don’t you try to shoot!”

p Ignoring his plea, the policemen and plain clothes men broke into the building, smashing railings and doors, although there was no need for that at all. Nobody knows who ordered the police to fire, but once they did open fire, there was a powerful blast in front of the Ambassador’s office. It killed 39 people. Only two managed to escape—-the Ambassador himself, who had jumped out of a first floor window, and a peasant. The Ambassador ran out into the garden in front of the Embassy entrance, imploring firemen to help put out the fire that threatened the life of those inside who still survived. But the firemen ignored his plea.

p The peasant who had escaped was, just as the Ambassador, taken to hospital, but someone kidnapped him from there and savagely murdered him.

p When a funeral procession carrying tens of coffins moved through the streets of Ciudad-Guatemala on the 165 following day, it was attacked by bands of terrorists who killed three persons more.

p So the unlawful seizure of the Embassy and hostages led to a most glaring violation of other standards of international law by the authorities of Guatemala and, above all, of the 1928 Havana Convention on Diplomatic Officials and the 1961 Vienna Convention on Diplomatic Relations. In protest, the Government of Spain decided to sever diplomatic relations with Guatemala.

p Yet another case of unlawful action of this kind was the capture of hostages and premises of the US Embassy in Teheran, although the policy of the US ruling establishment with regard to Iran had always been one of intervening in its internal affairs, exploiting its national resources and organising systematic terrorist acts against Iran’s statesmen, public figures and property.

p This has always been a consistent and unequivocal Soviet attitude. So the representation by the State Department to the Embassy of the USSR in Washington about alleged Soviet attempts to hamper, through coverage by the Soviet media, a positive solution of the problem of release of the US Embassy staff had no foundation in fact and was nothing short of slander.

p The statement made by the Soviet Foreign Ministry to the US Charge d’Affaires in Moscow on January 29, 1981, said, in part: "The USSR has all along favoured the unfailing observance of the generally accepted standards of international law relative to the immunity of diplomatic staff, as provided for by the Vienna Convention on Diplomatic Relations. This approach of principle has been stated and re-stated in public in connection with the said incident and is well known to the whole world, including 166 both the Government of the USA and the Government of Iran. The Soviet Union is known, besides, to have voted back in December 1979, along with other nations, for a resolution which called on the government of Iran to release the US Embassy staff immediately, and appealed to both governments, those of the USA and Iran—to take steps towards resolving the matter peacefully by settling the issues in dispute between them to mutual satisfaction".  [166•1 

p In spite of the subsequent settlement of the conflict, the capture of American hostages was exploited by US ruling quarters as an excuse for launching a series of unlawful actions of an economic and political character against Iran and other States of the region.

For example, using the capture of the American personnel as a pretext, the US massed a large naval force in the Persian Gulf region. Moreover, after the issue of the American staff had been positively settled, the US did not make a single statement to show an intention to take the American naval force back home. Evidently, the very reason why the US had kicked up so much fuss over the issue of former American hostages was just because it wanted to try and cover up the plans for continued American military presence in that area as a way of bringing pressure to bear on the countries within it. That was not the only lime the USA has acted like that.