Aviation Terrorism with Particular Reference to the Air Carrier’s Liability for Personal Damages Resulting from Hijackings Pursuant to Art. 17 of the Warsaw Convention

Table of Contents

Abbreviations

Introduction

A. The Legal Treatment of Aviation Terrorism in the Context of International Law
I. Preliminary Remarks
1. Problems in Defining „Aviation Terrorism“
2. The Beginning Recognition of Aircraft Hijacking as an International Crime
3. Measures of Control as Adequate Instruments for the Suppression of Aircraft Hijacking
4. The Existing Difficulties in Coping with the Hijacking Offence in International Law
II. Aviation Terrorism in the Light of the Tokyo, The Hague, and Montreal Conventions
1. Introduction
2. Aerial Hijacking as a Form of Piracy pursuant to Art. 15(1)(a) of the 1958 High Seas Convention
3. The Legal Treatment of Hijacking under the 1963 Tokyo Convention
a) The Scope of the Tokyo Convention
b) Conclusion
4. The Hague Convention for the Suppression of Unlawful Seizure of Aircraft of 16 December 1970
a) The Application of The Hague Convention
b) Conclusion
5. The 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of 1971 and the „1988 Montreal Protocol“ completing the Criminalisation of the Unlawful Seizure of Aircraft
6. Final Remarks

B. The Liability of the Air Carrier for Personal Damages Resulting from Hijackings Under the Warsaw Convention
I. Introduction
II. Applicability of the Warsaw Convention
III. Recovery for Personal Damages caused by Hijacking Incidents pursuant to Art. 17 WA
1. Meaning of the Term „Accident“
a) Comments
2. Discussion of Recovery for Psychosomatic Impairments, Mental Distress, Anguish, and other Forms of Personal Injuries resulting from Hijacking pursuant to Art. 17 of the Warsaw Convention
3. Place and Time of the Accident: The Interpretation of the Requirements „on Board“ the Aircraft and „in the Course of any of the Operations of Embarking and Disembarking“ pursuant to Art. 17 of the Warsaw Convention
a) The Scope of the Terms „Embarking“ and „Disembarking“
b) Schmid’s Proposals Concerning the Legal Interpretation of the Terms „Embarking“ and „Disembarking“
c) Comments
d) Conclusion
4. The Question of whether a Causal Connection must be established between „Personal Injury“ and „Accident“ and between the „Accident“ and „the Operation of the Aircraft“
a) Comments
5. Concluding Remarks

Bibliography

Table of Cases

Table of Statutes

Abbreviations

Abbildung in dieser Leseprobe nicht enthalten

Introduction

Aviation terrorism is viewed as a serious problem that has spread drastically for the past three decades. The international community keeps observing that the frequency and intensity of terrorist attacks has increased. Civilian aircraft and civilian aviation facilities as well as the hostage-taking of passengers or the crew of an aircraft have become the major targets of terrorism. These alarming tendencies have induced the member states of the International Civil Aviation Organization (ICAO) to adopt and ratify several international conventions, such as the Tokyo,^[1] The Hague^[2] and the Montreal^[3] Conventions.

Although much has been done on the international level to cope with the spate of aviation terrorism, recent incidents, such as the attacks on the terminals in Rome and Vienna airports in 1985,^[4] or the actual hijacking of a Maltese airline on 9 June 1997 which was scheduled for a flight to Istanbul and diverted to the Cologne/Bonn Airport,^[5] recall that these terrorism threats could have happened everywhere and carried out against different targets. At the very beginning of aviation terrorism after World War II., the unlawful seizure of aircraft was rather used as a means for political asylum in an alien country.

For instance, an aeroplane of the Eastern Air Line Electra was seized on 24 July 1961 by a Cuban citizen who was officially denied permission to Cuba.^[6] Fortunately, the seizure of the aeroplane occurred without any cruelty or use of violence for the passengers and the crew. Further incidents of aircraft hijacking to Cuba followed immediately.^[7] The primary reason or motive for hijacking an aircraft was that the perpetrators have often committed these criminal acts to be granted political asylum,^[8] or other private objectives have played an important role, such as being a “fugitive from justice”, “military deserter”, “real/alleged political offender”, “forlorn adolescent”, “disgruntled spouse”, “escape from an oppressive society”, “homesick political refugee”, or a “mentally disranged person”^[9].

While such attacks were relatively harmless,^[10] the climate of hijacking suddenly and unforeseeably changed by the end of the 1960s. Since 1968, Arab guerrilla groups, adherents of the Palestinian Liberation Front, and other members of different other political or paramilitary groupings^[11] have continuously spread and at the same time intensified violence and terror for their - now changed - politically motivated ends.^[12] Moreover, those criminals did not refrain from destroying aviation facilities, from using rude brutality, or even from killing passengers or members of the crew.^[13]

Such events significantly show that aviation terrorism has a global effect: No national boarders are safe enough to prevent terrorists from threatening human beings, as passengers and international communications at airports have now become the new targets of such attacks. There is no doubt that something has changed in the context of the unlawful seizure of aircraft as far as modern hijacking committed for political reasons has unambiguously become a decisive part of international aviation terrorism. Keeping these facts in mind, it is worth discussing how the well-established rules and principles of international law respond to the issue of the unlawful seizure of aircraft.

In section A of this dissertation, I will give a detailed description of the peculiar characteristics of aviation terrorism, I wish to explore the difficulties in defining „aviation terrorism“, the emergence and the world-wide recognition of hijacking as a crime in international law, before I will broadly examine the legal treatment of the unlawful seizure of aircraft within the frame of the relevant Tokyo, The Hague, and Montreal Conventions. Section B of my thesis deals with the aspect of civil liability of the air carrier. This part is especially devoted to the question of whether the air carrier should be liable for personal injuries sustained by passengers because of hijacking events pursuant to Art. 17 of the Warsaw Convention. In this context, I will focus on the legal prerequisites of Art. 17, and, by consultation of the relevant American and German case-law and literature of private air law, to clarify whether such acts of violence carried out by hijackers fall within the scope of Art. 17 of the Warsaw Convention.

A. The Legal Treatment of Aviation Terrorism in the Context of International
Law

I. Preliminary Remarks

1. Problems in Defining „Aviation Terrorism“

There are different definitions about the general meaning of „terrorism”. On the national level, „terrorism“ can be characterised as the conduct of a group of persons who aims at revolutionary changing the existing constitutional order within the state by means of the commission of severe crimes, such as murder, bodily injury, kidnapping, blackmail fraud etc.^[14] On the international level, there is, however, no clear definition of terrorism. Instead, the Convention for the Prevention and Punishment of Terrorism of 16 November 1937, promulgated by the League of Nations, solely defines under its Art. 1(2) punishable acts in the field of terrorism „as criminal acts directed against a state and intended or calculated to create a state of terror in the minds of particular persons, or a group of persons or the general public“^[15]. Moreover, the international community has only made a few attempts in certain areas to clarify the meaning of terrorism by penalising specific acts which are ordinarily viewed as grave and outrageous for the friendly co-existence between the nations.^[16] The same problem appears in the field of „aviation terrorism“, whose term, meaning and scope is not uniformly used in the literature. Furthermore, it is not evident what sort of offences fall under its scope. In addition, it is widely acknowledged that there is no general definition of terrorism in international law.^[17]

The reason for the insufficient definition can be easily explained. First, as mentioned by Faller , the complex nature of the hijacking offences is one of the reasons why a clear definition lacks. This is because hijacking can be carried out in different ways and the penal unlawful substance of such an act of violence cannot be simply reduced to its abstract legal characteristics.^[18] The following two examples will illustrate how difficult it is to formulate the problem of aviation terrorism in terms of defining its meaning and scope. For example, Evans uses the term „hijacking“, who states that any

„[…] seizure of a private commercial vehicle or vessel with the intent of theft of its load or cargo. The offence of „aircraft hijacking“ consists of a taking or conversion to private use of an aircraft as a means of transportation and forcibly changing its flight plan to a different destination“^[19].

Approximately twenty years later, another suggestion has been made by FitzGerald who prefers the following definition in the context of aviation terrorism, namely

„[…] aviation terrorism involves the use or threat of violence against aviation targets such as aircraft and persons or property thereon, airports and persons or property thereon, air navigation installations, and airline offices and agencies“^[20].

As can be observed from these two definitions, both proposals aim at including a wider scope about the problem of hijacking. Whereas Evans’ definition adjusts to the mode of carrying out the act of hijacking, his emphasis on the intention („the intent of theft“) and the purpose of the commission of hijacking, FitzGerald specifies the term „aviation terrorism“ in the way that he includes the sort of terrorism act („use or threat of violence“) as well as the specific targets of such actions (aircrafts, airports, and persons or property thereon, air navigation installations etc.). Both suggestions present some advantages and disadvantages. Evans’ formulation follows a more legal approach, indicating that the intention of hijacking act might play an important role when grasping the hijacking problem in terms of a criminal offence. In addition, the term „hijacking“ is commonly and widely acknowledged in the scientific literature, in particular in the area of techniques and industries.^[21]

However, the question of to what end hijackers commit the offence, as implied by Evans, may remain undecided in this context because he has already proved that the objectives for the commission of hijacking have merely become irrelevant.^[22] In contrast to Evans ’ definition, FitzGerald, however, neglects a closer discussion with respect to the perpetrator’s purpose, intentions, and motives to commit hijacking, but, instead, mentions the relevant targets of terrorist acts. FitzGerald’s concept has the advantage that it essentially reduces the hijacking problem solely to its means, namely the use or threat of violence, and its potential targets with respect to airport facilities („such as aircraft and persons or property thereon, airports and persons or property thereon, air navigation installations, and airline offices and agencies “^[23] ). Consequently, FitzGerald’s definition rightly suggests that aviation terrorism can be regarded as a special feature of international terrorism that permanently changes its specific objects of attack.^[24] In conclusion, the whole subject of aviation terrorism interpreted by FitzGerald again reveals the fact that there may exist great difficulties in grasping the legal dimension of aviation terrorism.^[25]

Occasionally, the words „air piracy“, or „aircraft piracy“ are used in the scientific literature,^[26] terms which are usually associated with the law of the seas. But, the use of these terms also provides problems as far as „air piracy“, and „aircraft piracy“ have a specific meaning in the context of international law that mainly covers certain acts of violence committed from a ship or an aircraft against another ship or an aircraft pursuant to Art. 15(1)(a) of the 1958 Convention on the High Seas.^[27] Hence, for the sake of clarity and simplicity, I will use the term „aviation terrorism“ as presented by FitzGerald.

2. The Beginning Recognition of Aircraft Hijacking as an International Crime

In the following section, it is deemed necessary to describe the characteristic features of certain acts of violence including its outward forms which result from the unlawful seizure of aircraft. Before dealing with this legal subject, it should be interesting to briefly sum up some historical cases of the unlawful seizure of aircraft which particularly occurred in Europe and the United States. The first incidents of hijacking occurred in Europe by the end of the 1940s when hijackers used the unlawful seizure of aircraft for the main purpose to flee, by the political circumstances, from the Eastern parts of Europe. For example, in October 1951 three people from Yugoslavia hijacked an aircraft and diverted the machine to the Switzerland.^[28] Like this case, in June 1958 three Czechoslovakian citizens escaped by means of a chartered aircraft which had been diverted to Austria.

They forced the pilot to land on the Vienna Airport, by using machine-guns.^[29] In these two cases, it is worth knowing what has happened to the hijackers: In the first case, the Swiss Federal Court commented that the hijackers from Yugoslavia used the hijacking for fleeing from the politically oppressive system in their country, and therefore judged that the commission of the offence should be treated as a political offence, falling under the statutory political offence exception to extradition. However, this was not the case concerning the Czechoslovakian perpetrators, since the Austrian prosecution authorities instituted criminal proceedings against them, charging the hijackers with threatening the pilot and its crew, with the commission of compulsion by threat of force.^[30] Other hijacking events happened in Greece between November 1968 and 1969. By the current political situation in Greece, aircrafts of the Olympic Airways company had been the proper targets of successive hijackings in the past for three times. In November 1968, two armed Italian nationals diverted a Boeing 707 machine on its flight from Paris to Athens and forced the aeroplane to return to Paris.

The commission of hijacking was part of a series of sabotage acts directed against the military government in Greece. In the end, the Tribunal de Grande Instance Corbeil sentenced the alleged offenders to a five and nine-month imprisonment in its decision on 22 March 1969.^[31] Moreover, on 2 January 1969 a DC-3 aircraft of the Olympic Airways was forced to land at the Egypt Airport. Prior to the landing, three military aircrafts accompanied the diverted aircraft, but, for reasons of security, they were not able to intervene. Immediately after the landing, the perpetrators had been arrested, whereas the aeroplane including its passengers was permitted to continue the scheduled flight. Nonetheless, on 23 July 1969 a Boeing 707 air vessel of the El Al company with 38 passengers on board, which was on its flight from Paris to Tel-Aviv, was hijacked by adherents of the „Popular Front for the Liberation of Palestine“. In this case, the three armed criminals entered the cockpit, while two other members threatened the passengers with machine-guns and forcing the pilot to land within the Algerian territory. On the same day, the Algerian government granted the non-Israeli passengers permission to depart, whereas the rest of the Israeli citizens, including the nine crew members, were detained for 39 days in custody, but were released on 31 August 1968 in exchange with Palestinian citizens who had been arrested in Israel.

The following days, the French crew of the Boeing 707 conveyed the machine back to France. Thus, this hijacking incident had, however, led to considerable political tensions within the Middle East region.^[32] Concerning hijackings that occurred in the United States, the proper first big wave of the unlawful seizure of aircraft occurred between the 1950s and 1970s.^[33]

The deeper cause for the increasing number of hijackings at that time can be seen in the political accession of Fidel Castro in 1958. Shortly after the Castro regime had come into power in Cuba, opponents of the regime and political refugees used hijackings to flee from the political situation in Cuba and to get permission for the entry into the United States for political asylum.^[34] In all those cases, the Cuba government reacted by generally allowing the aircraft and its passengers to return without delay to the place from which they had departed, whereas the perpetrators were immediately detained and arrested. Because of the official condemnation of those hijacking occurrences explained by the Cuba government, only a few hijackers having committed the hijacking offence were accepted as politically motivated criminals by the involved authorities. However, most of them spent a long time in prisons before they were either put under police surveillance or even convicted to force labour on sugar-cane plantations.^[35]

Overall, between 1968 and the 1990s approximately more than 400 accomplished or attempted cases of unlawful seizure of aircraft were recorded world-wide and more than 500 victims died during hijacking incidents.^[36] What can be observed from all these incidents reported in this section is the circumstance that the commission of the hijacking offence was first realised in the world during the 1960s and 1970s. Hijacking cannot be regarded as a peculiarly local phenomenon which is not only restricted to a certain territory of a state.

In addition, the commission of the unlawful seizure of aircraft cannot be reduced to a harmless offence, since particularly in Europe and the United States, by the changed political power relations in these states, hijacking has developed to an international crime committed for different private and political reasons. However, the commission of hijacking has been treated differently among states: While in some cases hijacking served as a legal justification to grant political asylum^[37] in favour of the alleged offender because of a political offence exception clause to extradition (due to the perpetrator's political motives), it was, however, treated in other cases as a punishable and serious offence. Nevertheless, the beginning of the international recognition of the hijacking problem during the 1960s and 1970s has induced the international community of states to think about and to develop joint strategies on the international level, providing for the first time for penal instruments with respect to the suppression of aviation terrorism for the first time.

3. Measures of Control as Adequate Instruments for the Suppression of Aircraft
Hijacking

Since the unlawful seizure of aircraft has emerged on the international scene, the decisive question has been whether it is possible to effectively control aircraft hijacking. During the 1960s and 1970s it was difficult for the states to develop measures of control to deter further terrorist threats because most technical and mechanical devices, such as electronic detectors, were at that time not technically equipped to prevent further terrorist acts. For example, at the beginning of the 1970s, when hijacking had its huge wave in the United States and Europe, the idea of controlling all passengers by means of electronic detectors searching for guns or metallic weapons was impossible to realise because those objects did not only react on weapons, but also detect all other harmless metallic objects. Moreover, those detectors were not technically sophisticated enough to search for dynamite or plastic-wrapped explosive materials.^[38] In this context, the US Federal Aviation Agency (FAA) in 1970, after having carefully checked various objects such as the use of x-rays, radar, or electromagnetic detection devices with respect to their practicability, stated that

„[c]ounting proposed weapon detection devices, the FAA has reviewed about 100 different suggestions on how to stop hijackers. None have been deemed practical at least for immediate application […]. Many of the detection methods now under consideration involve a number of drawbacks and even might be a potential source of harm to the passenger […]. In some cases, there is a high probability of the device giving a false alarm. In other cases, use of the method would unduly delay passengers and aggravate congestion in the terminal“^[39].

This statement shows that in the early 1970s such electronic devices were not useful to effectively detect dangerous materials. Another possibility to deter further hijackers from threatening passengers was seen in the legal amendment of Art. 10(1) of the 1971 Montreal Convention. Art. 10(1) provides for the contracting states to take all measures to prevent the offence of unlawful seizure of aircraft with respect to international and national law.

In this context, one could assume that such a provision comprises only a general obligation which is, however, not specific enough to deal with the control of aerial offences. In this respect, some authors have occasionally suggested that Art. 10 of the Montreal Convention should be amended as to include more concrete duties in the field of airport security, such as the presence of skilled security guards at airports, the establishment of regulations, prohibiting the access of unauthorised persons and means of transportation to controlled airport zones and providing for measures of inspection.^[40] The idea behind that proposal was that such a specific set of obligations concerning civil aviation security could at least have a deterring and preventive effect on the future commission of such crimes.^[41]

Furthermore, Williams has stressed that different checkpoint areas should be established where, for instance, entry points of airports could be observed, shopping facilities should be situated in special security areas, passengers should be subject to further security checks and investigations, and electronic devices should be used for the detection of chemical explosives when searching the passengers’ luggage.^[42] While such suggestions remained unanswered at that time, today the community of states has already established and realised uniform rules concerning preventive security measures on the level of international air law. Annex 17 to the Convention on International Civil Aviation^[43] provides the legal framework for the establishment of preventive security measures. It deals with provisions of standards and recommended practices on security, which have been adopted by the Council of the International Civil Aviation Organization on 22 March 1974 pursuant to Art. 37 of the Convention on International Civil Aviation. Since the first adoption of its regulations, Annex 17 has been continually amended, finally on 11 September 1992 which came into effect on 1 April 1993. Its general aims and objectives pursuant to chapter 2 concerns the endeavour of the contracting states to „safeguard international civil aviation operations against acts of unlawful interference“^[44], including the „[s]afety of passengers, crew, ground personnel and the general public“^[45].

Chapter 3 refers to a set of obligations, requiring contracting states to establish a national civil aviation security programme which are adequate to the needs of international traffic, for each airport serving international civil aviation. In addition, the international instrument recommends arranging for the establishment of means of co-operative measures between states about civil aviation security.

Chapter 4 is designated as „Preventive Security Measures“, and includes a wide catalogue of measures, ranging from „measures relating to passengers and their cabin baggage“ to „measures relating to checked baggage, cargo and other goods“ and to „measures relating to airport design“. For instance, the document describes certain standards, obliging the contracting states „to establish measures to prevent weapons, explosives or any other dangerous devices which may be used to commit an act of unlawful interference“, or requiring them „to ensure that adequate measures are taken to control transfer and transit passengers and their cabin baggage to prevent unauthorized articles from being taken on board aircraft“^[46]. The brief survey of Annex 17 to the Convention on International Civil Aviation reveals that the ICAO member states have succeeded in establishing a uniform set of international standards and recommended practices, seeking to ensure that certain risks associated with acts of unlawful interference, such as the unlawful seizure of aircraft, can be minimised to a certain extent by establishing preventive security measures.

However, such preventive measures are deemed not sufficient to reduce the actual hazards inherent in hijackings, posing a threat to the passengers and the crew of an aircraft. What is necessary on the level of international law is that states should be enabled to legally enforce not only their security measures, but also to bring other legal measures into effect, especially criminal measures with respect to the prosecution, punishment or extradition of hijackers and other related matters. Before going into further details, one should shortly take notice of the difficulties of the states in appropriately coping with the hijacking offence on the level of international law.

4. The Existing Difficulties in Coping with the Hijacking Offence in International
Law

The proper characteristics of most hijacking occurrences can be viewed in the fact that the perpetrator mostly intends to unlawfully seize an aircraft including its crew and passengers (often by means of force or threat of force) to escape from the power of sentence of one state, in whose airspace the incident occurred, to the territory of another state.^[47] From this view point, it is almost impossible for the involved states to arrest the hijacker, and to start criminal proceedings against him/her in the case where the air vessel has already started its flight from a state and thus is situated outside the territorial jurisdiction of that state.^[48] In this respect, a catalogue of measures and criminal sanctions against the suspected hijacker may be advisable within the frame of international conventions which should basically apply to cases where the hijacked aircraft has already landed in the territory of another state, so that the hijacker can be immediately detained by the competent authorities of that state. Accordingly, when developing certain rules and principles of international law governing the penal suppression of hijacking, their purposes and ends should be directed in such a manner as to create international norms which provide for a legal basis for the prosecution and extradition of the alleged offender.

Although this abstract directive appears to be clear, it may, however, be difficult on the legislative level of international law to establish the right legal basis for the suppression of international aviation terrorism. Because the current legal difficulties in applying international provisions concerning the deterrence of aerial hijacking outside the territory of a state depend on several factual and legal circumstances. First, the location where the hijacking offence was committed as well as the nationality character of the (unlawfully seized) aircraft raise specific legal problems. For instance, one may ask in the case where a hijacked aircraft, which is registered under the nationality of the state of registration of the aircraft with respect to the rules of international aviation, crosses the territorial airspace of another state, whether it is possible by international law to submit the case to the national jurisdiction and public authority of a state other than the state of registration.

It can be questionable whether it is admissible for a state to lawfully take coercive measures against the alleged offender in the case where an aircraft registered under a foreign flag with the alleged offender still on board has entered the territorial airspace of that state.^[49] In addition, one may ask in the context of international hijacking which rules are applicable to institute criminal or extradition proceedings against the suspected. Finally, are there any international rules concerning the issue of concurrent jurisdictional bases in the case where several states can claim their criminal jurisdictions over the same offence.^[50] These questions clearly recall the existing legal difficulties on the level of international law in construing and specifying the hijacking offence, and, for this reason, in developing uniform rules concerning the prevention of acts of unlawful interference in civil aviation.

The efforts made by the international community to minimise the risks and threats involved in aerial hijackings, and hence the attempts of states to provide for legal solutions can be excellently studied from the Tokyo, The Hague, and Montreal Conventions. These international instruments for the suppression of aviation terrorism have formidably established a sound legal framework with respect to the prosecution and extradition of hijackers. For this reason, it is the task of the following sections to describe the material scope of the Tokyo, The Hague, and Montreal Conventions, including their limits about criminal jurisdiction, prosecution, extradition, and possible coercive measures to be taken against the alleged offender.

II. Aviation Terrorism in the Light of the Tokyo, The Hague, and Montreal
Conventions

1. Introduction

The following section gives a survey on the issue of aviation terrorism, how it is recognised on the level of international law. Three main international conventions have focused on the problem of aviation terrorism: the Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft,^[51] The Hague Convention for the Suppression of Unlawful Seizure of Aircraft of 1970,^[52] and the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation,^[53] including the 1988 Montreal Protocol which serves as a supplementary to the 1971 Montreal Convention.^[54]

All three ICAO conventions deal with the different aspects of the hijacking offence. Before now turning to the relevant aviation conventions, I should draw attention to the question which is sometimes discussed in the literature whether aerial hijacking can be viewed as a form of „piracy“ as defined under the High Seas Convention.^[55]

2. Aerial Hijacking as a Form of Piracy pursuant to Art. 15(1)(a) of the 1958 High
Seas Convention

The legal question of whether aviation hijacking constitutes piracy defined under Art. 15(1)(a) of the High Seas Convention^[56] has raised much controversy in the scientific literature.^[57] As can be observed from the wording of Art. 15^[58] the Convention implies that this provision applies to attacks from an aircraft. However, there are several arguments against such a legal viewpoint that classifies aerial hijacking as a form of piracy. The term „hijacking“ can be viewed as something different from piracy. Because „piracy“ is usually defined under the customary rules of law as an universal crime („jus gentium“)^[59], whereas hijacking in the ordinary sense includes the use of force or threat of force against the crew or the passengers of an aircraft committed for selfish purposes. An argument against the equalisation of hijacking with the term „piracy“ can be concluded from the fact that the issue of aerial hijacking has not been developed in accordance with the rules of international law concerning the subject of piracy.

This is because hijacking has properly been realised as an offence in international law after World War II, since the Tokyo and The Hague Conventions have dealt with the unlawful seizure of aircraft. Contrary to the fact that hijacking is a novelty in international law, piracy is a century-old matter which has, as a universal crime, a long-standing tradition under the customary rules of international law.^[60]

Another problem which is controversially discussed is the question of whether acts of violence carried out by the crew or passengers, and committed with the intention of taking over the control of the command on their own ship or aircraft, fall within the scope of the piracy norm. Indeed, some international lawyers do not refrain from stating that the commission of such acts must be legally treated as piratical attacks. However, contrary to this legal viewpoint, some authors believe, pursuant to the literal meaning of Art. 15(1)(a), such legal constellations are not within the scope of Art. 15 (1)(a) of the High Seas Convention, since Art. 15 requires that the act of violence must be committed „against another ship or aircraft or against persons or property on board such ship or aircraft“^[61].

Accordingly, the norm at issue does not automatically cover such cases where the perpetrator, respectively if the passengers are already on board a ship or an aircraft, commits an act of violence.^[62] Hence, this short legal examination shows that the applicability of the piracy norm is indeed limited to acts of violence against another ship or aircraft.

3. The Legal Treatment of Hijacking under the 1963 Tokyo Convention

a) The Scope of the Tokyo Convention

The Tokyo Convention on Crimes and Certain Other Acts Committed on Board Aircraft, which came into effect on December 4, 1963, contains of four main issues, namely the subject of extra-territorial (criminal) jurisdiction, security measures taken and exercised by the aircraft commander, obligations imposed upon the contracting states, and, finally, the hijacking offence as mentioned in Art. 11(1). Before briefly describing the relevant subjects of the convention, one should note that the Tokyo Convention ensures that its catalogue of measures only applies to acts which occurred on board an aircraft in flight^[63] of a contracting state,^[64] and which jeopardise the safety of the aircraft, its passengers or property thereon pursuant to Art. 1(1) of the Tokyo Convention.^[65]

Although the Tokyo Convention entails a broad spectrum of punishable acts under Art. 1, it is not applicable to acts committed on ground and carried out by persons which are not on board the aircraft, such as saboteurs who dangerously manipulate an aircraft at the airport.^[66] In addition, Art. 1(4) of the Convention specifies that its scope excludes aircrafts used for military, or police services and customs.^[67] About the issue of criminal jurisdiction, Art. 3(1) of the Tokyo Convention requires that the state of registration of the aircraft „is competent to exercise jurisdiction over offences and acts committed on board. This norm provides for the state of registration of the aircraft a peculiar connection concerning its power of sentence („pouvoir répressif“, which, in some cases, can be sometimes treated differently from the issue of „criminal jurisdiction“^[68] ), from which the issue of criminal jurisdiction can be regularly deduced.^[69]

The term „power of sentence“ in this context means that the state is authorised to qualify a certain human conduct as a punishable offence, whereas the word „jurisdiction“ in the ordinary sense implies that the state is authorised to have the offender sentenced by the courts of that state.^[70] The purpose of Art. 3(1) is to ensure on the international level that the state of registration can exercise its jurisdiction in accordance with the doctrine of the flag principle^[71] as already established under the national criminal law.

This principle at least guarantees that the state of registration can claim criminal jurisdiction over offences committed on board an aircraft that have taken place outside the state’s territorial airspace.^[72] This principle as established in Art. 3(1) warrants that the alleged hijacking offender cannot flee from criminal prosecution and conviction simply because s/he has not yet violated the law of the state in whose territorial airspace the hijacking event occurred, and, for this reason, that state would consequently refrain from exercising its criminal jurisdiction.^[73]

The advantage of Art. 3(1) of the Tokyo Convention can be studied in the area of private air law: While it is often difficult to investigate the exact place where the offence on board an aircraft has taken place (which in return hinders the effective prosecution of the perpetrator), or there might be potential, legal obstacles for a state not to prosecute a criminal^[74] under the territorial principle, the flag principle provides a tight jurisdictional basis for suing the alleged offender as it ensures that at least the state of registration can exercise its criminal jurisdiction over the (hijacking) offence. This principle is added by paragraph 2 of Art. 3 which reflects the duty of the contracting states to take only those measures „as may be necessary to establish its jurisdiction as the state of registration over offences committed on board aircraft registered in such state “^[75].

However, this provision does not specify any further obligation for the states to de facto exercise its criminal jurisdiction in the relevant case as states should be generally obliged to exercise their penal authority and competence.^[76] Finally, the issue of criminal authority is completed by paragraph 3, if „the Convention does not exclude any criminal power exercised in accordance with national law“.

The objectives for this provision are abundant: While this provision was at first designed to draw attention to the application of a „concurrent criminal jurisdiction“ a contracting state could assert, regardless of the existence of other criminal jurisdictions under foreign domestic laws; Art. 3(3) serves as an additional possibility for the state to apply its own national criminal law, and, hence, on its national criminal basis of jurisdiction when starting criminal proceedings against the criminal.^[77]

Indeed, such a legal concept as envisaged in Art. 3 of the Tokyo Convention helps to close the legal gaps when it comes to the question of applying the right basis of criminal authority because it provides that „at least the state of registration of the aircraft will have control over the suspected offender, without, however, excluding the juristic authority of other states"^[78].

The second aspect of the Tokyo Convention concerns the power of the aircraft commander to seize safety measures under chapter III (Arts. 5 - 10) of the Convention. These provisions essentially constitute certain obligations which an aircraft commander must have met to fall under the protective scope of the Convention. Boyle and Pulsifer have rightly argued in this context that the relevant chapter is of „practical value“ „[…] because it grants the aircraft commander and other protection from legal actions brought against them because of the use of force which, without the legal authority granted by the Convention, might subject the aircraft commander and others to legal liability in some national jurisdictions“^[79].

Art. 5 specifies the powers of the aircraft commander under this chapter which is only applicable, if „the last point of take-off or the next point of intended landing“ is outside the state of registration, „or the aircraft subsequently flies in the airspace of a state other than that of registration“^[80]. Art. 6 is devoted to the powers of the aircraft commander, who is authorised to „take reasonable preventive measures“ as mentioned in paragraph 2, such as the use of restraint, or other „reasonable measures“ against a person committing an offence or act contemplated in Art. 1 for the purposes set forth in Art. 6(1).^[81] Furthermore, preventive measures against the suspected hijacker can only be exercised, if the aircraft commander (or a crew member, or a passenger) has „reasonable grounds“ to believe that such a person is about to commit or has committed an act which is directed against „the safety of the aircraft, or of persons, or property therein“. These legal conditions concerning the carrying out of necessary safety measures (limited purposes, acting appropriately based on „reasonable grounds“) show that the scope of Art. 6 is only restrictively applicable. Accordingly, events occurring outside the specific purposes as envisaged in Art. 6(1)^[82] are not covered by this norm. Art. 7(1) of the Convention generally limits the duration and continuation of such measures of restraint to the first point of landing, and only permits their extension in certain limited cases as mentioned in paragraph 1 a) - c).^[83]

Art. 8 grants authority to the aircraft commander to disembark the offender „in the territory of any State in which the aircraft lands“ for the purposes pursuant to sub-paragraphs a) or b) of Art. 6(1). Art. 9 raises the issue of permitting the aircraft commander to deliver the hijacker to competent authorities of any contracting state,^[84] notifying them about his intention of delivery and providing the authorities with evidence and information.^[85] As Articles 6 - 8 impose certain obligations upon the aircraft commander, so do Arts. 12 - 15 of the Tokyo Convention with respect to states under its chapter V. Art. 12 of the Convention shortly deals with the obligation for the states to allow the aircraft commander of an aircraft registered in another state to disembark any person according Art. 8(1). Art. 13(1) authorises that state to take delivery of a person pursuant to Art. 9(1). Furthermore, paragraph 2 extends this obligation to „take custody or other measures“ of the delivered person along with the law of that state, but only if it is deemed necessary. The contracting state must be convinced of the circumstances warranting such an action, and, secondly, measures of delivery must be appropriate in order „to ensure the presence“ of the alleged offender. Furthermore, paragraph 2 only permits the continuation of custody and other coercive measures for criminal or extradition proceedings, if they are „reasonably necessary“.

Paragraphs 3 and 4 discuss the state’s duty to assist any person detained in custody „in communicating immediately with the nearest appropriate representative of the State“ of his/her nationality. In addition, they require that either the contracting state of delivery or the state, in whose territory the hijacked aeroplane is situated, shall „immediately make a preliminary enquiry into the facts“. Paragraph 5 finally instructs the state which has detained the suspected to notify the state of registration of the aircraft, and the state of nationality of the detained person, and, if advisable, „any other interested State of the fact that such person is in custody and of the circumstances which warrant his detention“^[86]. The third issue deals with the „hijacking“ offence, defined as „the unlawful seizure of aircraft“ under chapter IV of the Tokyo Convention (Art. 11(1)):

„When a person on board 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, Contracting States shall take all appropriate measures to restore control of the aircraft to its lawful commander, or to preserve his control of the aircraft“.

First, Art. 11(1) does not speak verbatim of „aircraft hijacking“. Instead, Art. 11(1) refers to any act of interference, seizure, or other wrongful exercise of control. What is obvious the most is the fact that the „offence“ set forth in Art. 11(1) is not construed as a crime under international law.^[87] But, the drafters of the Convention have restricted the scope of this Article to the following conditions. Firstly, the action establishing hijacking of aircraft must be committed by a person (which even can be the co-pilot or the crew)^[88] on board an aircraft in flight. Secondly, the act committed on board the aircraft must be „unlawful“. This means that the legality test either depends upon the national laws either of the state of registration of the aircraft, or of the state in whose aerial territory the aircraft is in flight.^[89]

To give an example: in the case when the co-pilot is authorised by the pilot or flight company to take over the conduct and control of the aircraft, there can be no hijacking offence established under the Tokyo Convention because the co-pilot has lawfully acted by the granted consent of the authority.^[90] Thirdly, to establish a case of hijacking, a further condition that must be met is the use of force or threat of force, which again implies the inclusion of physical violence, such as the use of weapons.^[91] Although in some cases this legal requirement is deemed unproblematic, there had been some hijacking cases in the past where neither any actual force was used, nor any threat of force. For instance, a case of hijacking can be construed, if no force or threat of force was used, such as in the case when hijackers unlawfully seized an aircraft, shortly after they had drugged the pilot.^[92]

Although such a commission of hijacking appears to be seldom in practice, the representatives at the Tokyo Conference on Air Law discussed this issue.^[93]

[...]

---

^[1] Convention on Offences and Certain Other Acts Committed on Board Aircraft, Signed at Tokyo, 14 September 1963, published in: 704 UNTS 219; ICAO-Doc. No. 8364 (1963); (1963) 2 ILM 1042; (1964) 58 AJIL 566 (hereinafter Tokyo Convention).

^[2] Convention for the Suppression of Unlawful Seizure of Aircraft, Signed at The Hague, 16 December 1970, published in: 860 UNTS 105; (1971) 65 AJIL 440 (hereinafter The Hague Convention).

^[3] Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, Signed at Montréal on 23 September 1971, published in: 974 UNTS 177; (1972) 21 ZLW 141 (hereinafter 1971 Montreal Convention).

^[4] Examples from Williams (1988), p. 87.

^[5] Compare the report of Clasmann: Luftpiraten kämpften für Papst-Attentäter, Frankfurter Neue Presse on June 10, 1997. The hijackers demanded the release of Ali Agca („ no criminal proceedings against Ali Agca “) who attempted to murder the Pontiff Johannes Paul II. in 1981 and, for this reason, were sentenced to life imprisonment.

^[6] Report taken from the New York Times on 25 July 1961, quoted from Lowenfeld (1972), § 1.1, VII-2.

^[7] Lowenfeld (1972), §. 1.1, VII-3 - VII-6, with further examples from the American press.

^[8] As stated by Mannheimer (1971), p. 227: „There [in Cuba], the first hijacker asked for and was granted political asylum by the Castro government“, (free translation of the author).

^[9] Enumeration quoted from Evans (1973), p. 644. Compare also Pötz (1974), pp. 491-496.

^[10] Mannheimer (1971), p. 227, has reported that until 1968, approximately 40 hijacking incidents in the United States occurred without the use of force or threat of force.

^[11] Evans (1973), pp. 647-648; Hailbronner (1973), p. 1636.

^[12] Martens/Röder (1995), p. 348; Hailbronner (1973), p. 1636; Lowenfeld (1972), § 1.3, VII-12 and VII-14, mentions that such political objectives were, for example, the capture of a politically important person to free prisoners of a political group abroad.

^[13] Mannheimer (1971), p. 227.

^[14] Rebmann (1985), p. 1736.

^[15] For a survey of the Convention for the Prevention and Punishment of Terrorism: Rebmann (1985), p. 1736; and especially Stein (1983), pp. 119-122.

^[16] On the international level: The Convention on the High Seas Done at Geneva on 29 April 1958, published in: (1963) UNTS 450, 11 (concerning the suppression of piracy); the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents of 14 December 1973, published in: BGBl. (1976) II: 1746-1752. On the European level, for example, read the European Convention on the Suppression of Terrorism of 4 December 1979.

^[17] Compare, for instance, Rebmann (1985), p. 1736.

^[18] It is the great merit of Faller (1972), pp. 40-41, who has summarised the essential common features of hijacking. Such common features can be viewed in the fact that the typical commission of the hijacking act often contains of the unlawful command over the aircraft and its passengers, or other acts of unlawful interference. Secondly, the use of coercive measures, such as the use of force or threat of force, mainly serves for the purpose to overcome any signs of actual or expected resistance taken by the crew or the passengers. Thirdly, the unlawful seizure of aircraft is always accompanied by a perpetrator’s criminal intention to change the original flight route to arrive in a different state not provided for by the flight plan. Fourth, the unlawful substance of such hijacking acts does not stop at the perpetrator’s criminal intention. Furthermore, the commission of further common crimes, such as kidnapping of passengers (and in some cases even the commission of manslaughter or bodily injury), is often connected with the proper act of unlawful seizure of an aircraft.

^[19] Evans (1969), p. 696.

^[20] FitzGerald (1987), p. 221.

^[21] Faller (1972), p. 41.

^[22] Schmidt-Räntsch (1971), p. 71.

^[23] Emphasis added by the author.

^[24] FitzGerald (1987), p. 221, felicitously remarks that „(...) terrorists are quick to develop new ways of getting at the targets or shift their sights to more vulnerable targets such as the non-airside of airports“.

^[25] An excellent definition about the scope of terrorism is given by the former vice-president George Bush in the publication on Task Force on Combating Terrorism in 1986: „The unlawful use or threat of violence against persons or property to further political or social objectives. It is usually intended to intimidate or coerce a government, individuals, or groups or to modify their behaviour or policies“, compare Robert D’A. Henderson, „Washington’s Debate on Terrorism“, (1986) International Perspectives 17, quoted from FitzGerald (1987), p. 221 (footnote 4). However, this definition is not very helpful in aviation terrorism because it lacks the inclusion of the specific aviation targets of such hijacking attacks. Furthermore, it might be doubted whether the „political or social objectives“ can be exactly determined in each individual case. For the difficulties in determining the hijacker’s private motives, cf. Evans (1969), pp. 700-701.

^[26] Meyer (1969), pp. 1 ff. and Stalder (1969), p. 151.

^[27] Faller (1972), p. 42.

^[28] Jescheck (1957), p. 196.

^[29] Faller (1972), p. 29.

^[30] Examples mentioned in Westerburg (1961), p. 14.

^[31] Details in Faller (1972), p. 32.

^[32] Faller (1972), p. 33.

^[33] Evans (1969), p. 698, who reports that the number of hijackings unexpectedly increased between 1968 and 1969: while in 1968 seventeen incidents happened on board an aircraft registered in the United States, the number of unlawful seizure of aircraft had grown up to twenty-seven events in comparison of a total of forty-six hijackings by 1969.

^[34] Faller (1972), p. 37.

^[35] Reported by Faller (1972), p. 39.

^[36] Martens/Röder (1995), p. 349.

^[37] Martens/Röder (1995), ibid.

^[38] Such objects, as mentioned by Faller (1972), p. 21 (footnote 9), such as plastique-wrapped hand-grenades, were used by adherents of the „Palestinian Liberation Front“, after they had unlawfully seized an aircraft in September 1970.

^[39] Quotation taken from Faller (1972), p. 22 (citing in footnote 10 the Congress Report on Aircraft Piracy of March 11, 1969, Committee on Interstate and Foreign Commerce, House of Representatives, 91st Congress Union Calendar No. 17, House Report No. 91-33, 5). Other opinion expressed by Evans (1969), p. 703, emphasising in this context that such devices should be eligible to detect only arms, weapons, and explosive materials.

^[40] Delegates of the former Soviet Union expressed this opinion in conjunction with the discussion of the amendment of the 1971 Montreal Convention during the negotiations of the 1988 Protocol concerning the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation at Montréal in January 1987. Further comments made by Williams (1988), p. 100.

^[41] Williams (1988), p. 99.

^[42] Williams (1988), pp. 100-101.

^[43] International Standards and Recommended Practices „Security“, Safeguarding International Civil Aviation Against Acts of Unlawful Interference, Annex 17 to the Convention on International Civil Aviation, 5th ed., December 1992 (hereinafter Annex 17 to the Convention on International Civil Aviation), published in: ICAO Journal (1993), pp. 1-7.

^[44] Annex 17 to the Convention on International Civil Aviation, chapter 2, 2.1.1, in: ICAO Journal (1993), p. 2.

^[45] Annex 17 to the Convention on International Civil Aviation, chapter 2, 2.1.2, in: ICAO Journal (1993), ibid.

^[46] Annex 17 to the Convention on International Civil Aviation, chapter 4, 4.1.1 and 4.2.1, in: ICAO Journal (1993), p. 5.

^[47] Faller (1972), pp. 40-41.

^[48] Faller (1972), p. 19.

^[49] Faller (1972), ibid.

^[50] Faller (1972), p. 19.

^[51] Convention on Offences and Certain Other Acts Committed on Board Aircraft, Signed at Tokyo, 14 September 1963, published in: 704 UNTS 219; ICAO-Doc. No. 8364 (1963); (1963) 2 ILM 1042; (1964) 58 AJIL 566 (hereinafter Tokyo Convention).

^[52] Convention for the Suppression of Unlawful Seizure of Aircraft, Signed at The Hague, 16 December 1970, published in: (1971) 65 AJIL 440 (hereinafter The Hague Convention).

^[53] Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, Signed at Montréal on 23 September 1971, published in: 974 UNTS 177; (1972) 21 ZLW 141 (hereinafter 1971 Montreal Convention).

^[54] Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, Supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, Done at Montréal on 23 September 1971, Signed at Montréal on 24 February 1988 (hereinafter 1988 Montreal Protocol).

^[55] Convention on the High Seas Done at Geneva on 29 April 1958, published in: (1963) UNTS 450, 11 (hereinafter High Seas Convention).

^[56] Art. 15(1)(a) of the Convention on the High Seas Done at Geneva on 29 April 1958 (published in: (1963) UNTS 450, 11) defines piracy as:

„1. [A]ny 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:

(a) On the high seas, against another ship or aircraft or against persons or property on board such ship or aircraft“.

^[57] Shubber (1968-69), pp. 193ff.

^[58] The Harvard Research Group prepared a Draft Convention on Piracy in 1932 under the auspices of Professor Bingham. The scientists from the Harvard Law School were particularly preoccupied with the uniform codification of piracy. In addition, the draft included a specific commentary serving as a legal basis for the subsequent recommendations for the codification of piracy submitted by the United Nation’s International Law Commission in 1956 and was later accepted for the drafting of the Convention on High Seas of 1958 at the Geneva Conference. Faller (1972), p. 92, states further references.

^[59] Critical viewpoint expressed by the Harvard Research on Piracy (1932), p. 759: „Properly speaking, then, piracy is not a legal crime or offence under the law of nations. In this respect, it differs from the municipal law piracy which is a crime by the law of a certain state. International law piracy is only a special ground of a state jurisdiction - of jurisdiction in every state -, this jurisdiction may or may not be exercised by a certain state. It may be used in part only. How it is used depends on the municipal law of the state, not on the law of nations. (...) It [the law of nations] justifies state action within limits and fixes those limits. It goes no further“. Differentiated views mentioned by Faller (1972), pp. 95-105.

^[60] Faller (1972), p. 93, mentions that, since the Antique era, the fight against international condemnation of piracy was in the major interest of most states because pirates to some extent usually encroached the traffic on the high seas which in return induced the involved states, in whose territories the pirates were present, to prosecute them under the customary rules of international law, irrespective of the flag of the pirate ship or their nationality.

^[61] As stated by Faller (1972), pp. 127-132; Menzel (1962), p. 292; Franck (1961), pp. 839 ff.; Abendroth (1961), p. 769; Smith (1959), p. 67; Oppenheim/Lauterpacht (1955), p. 609.

^[62] Similar viewpoint stated by Faller (1972), pp. 127-128.

^[63] For a definition of the aircraft in flight, cf. Art. 1(3): „For the purpose of this Convention, an aircraft is considered in flight from the moment when power is applied for the purpose of take-off until the moment when landing run ends“.

^[64] Art. 1(2): „Except as provided in Chapter III, this Convention shall apply 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 area outside the territory of any state“.

^[65] Art. 1(1) reads as follows: „This Convention shall apply in respect of:

a) offences against penal law;

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

^[66] Compare, for example, Boyle/Pulsifer (1964), p. 331.

^[67] Compare also the wording of Art. 1(4): „This Convention shall not apply to aircraft used in military, customs or police services“.

^[68] As suggested by Zlataric (1970), p. 165, arguing that the application of criminal jurisdiction regularly results from the power of a state to exercise of its penal authority.

^[69] Zlataric (1970), p. 164.

^[70] Zlataric (1970), ibid.

^[71] Traditionally, the flag principle derives from the national criminal law, serving as a legal basis for the prosecution of criminal offences committed on board a ship or an aircraft. It allows submitting such cases where the ship or the air vessel is present in a stateless territory, to the national criminal jurisdiction of a state. Along with the flag principle, the involved state, whose ship or air vessel is registered under the flag of that state, is able to institute criminal proceedings concerning offences committed aboard the ship or the aircraft, even in the case where the offence is committed by an alien, or outside the territorial airspace of the state of registration, Jescheck/Weigend (1996), § 18 II 2, p. 168; Oehler (1983), § 24, pp. 340ff.; Jescheck (1957), pp. 195ff. Pay also attention to Faller (1972), pp. 152-153, who argues that the flag principle has merely a „declaratory meaning“ in the context of the Tokyo Convention, Faller (1972), p. 153.

^[72] Zlataric (1970), pp. 164-166, mentioning that such a legal solution concerning the aspect of criminal jurisdiction, which the state of registration of the aircraft (Art. 3(1) Tokyo Convention) can exercise, considerably eases the ratification of the Tokyo Convention and, additionally, avoids interfering in criminal jurisdictions of other states provided by their national criminal laws. This must be legally viewed as consequent because each state decides within its power of discretion the extent and limits of punishable offences under its domestic criminal law.

^[73] Summary as presented by the former Chief of the US delegation, Mr Boyle: „[t]he Convention would close the gap so that offenders who might commit crimes in the airspace of one country and then found themselves in the territory of another, whose laws they had not violated, could not escape“. Further references: Boyle/Pulsifer (1964), p. 334.

^[74] Stated by Wille (1974), p. 42.

^[75] Compare the text of Art. 3(2) of the Tokyo Convention: „Each contracting State shall take such measures as may be necessary to establish its jurisdiction as the State of registration over offences committed on board aircraft registered in such State“. However, the wording of this paragraph is not unambiguous, unless, as suggested by Boyle/Pulsifer (1964), p. 336, it should only be read in conjunction with the instruction adopted by the Drafting Committee which states „[t]hat the Drafting Committee (...) produce a common text as close as possible to the existing texts which will reflect the principles that, while each State is obliged to establish jurisdiction over offences committed on board aircraft registered in that State, each State has power to define the precise offences over which jurisdiction is to be asserted and to decide whether to enforce its jurisdiction“.

^[76] Faller (1972), p. 153.

^[77] Similar view expressed by Boyle/Pulsifer (1964), p. 336.

^[78] FitzGerald (1987), p. 222. Schmidt-Räntsch (1964), p. 79 and pp. 86ff., argues that due to the high speed of the airlines, it is often impossible to precisely ascertain the right place where the offence was committed. For this reason, „the jurisdiction of the State of registration guarantees that at least one State has criminal jurisdiction over crimes committed on board an aircraft“, (free translation of the author). Further comments: Schmidt-Räntsch (1971), p. 79.

^[79] Quoted from Boyle/Pulsifer (1964), p. 337.

^[80] The exact wording of Art. 5(1) is: „The provision of this Chapter shall not apply to offences and acts committed or about to be committed by a person on board an aircraft in flight in the airspace of the State of registration or over the high seas or any other area outside the territory of any State unless the last point of take-off or the next point of intended landing is situated in a State other than that of registration, or the aircraft subsequently flies in the airspace of a State other than that of registration with such person still on board“.

^[81] Pursuant to Art. 6(1) „reasonable measures including restraint“ must serve: „a) to protect the safety of the aircraft, or of persons and property therein; or b) to maintain good order and discipline on board; or c) to enable him to deliver such person to competent authorities or to disembark him in accordance with the provisions of this Chapter“.

^[82] Example from Boyle/Pulsifer (1964), p. 339.

^[83] Art. 7 reads as follows:
„1. Measures of restraint imposed upon a person in accordance with Article 6 shall not be continued
beyond any point at which the aircraft lands unless:
a) such point is in the territory of a non-Contracting State and its authorities refuse to permit disembarkation of that person or those measures have been imposed in accordance with Article 6, paragraph 1 c) in order to enable his delivery to competent authorities;
b) the aircraft makes a forced landing and the aircraft commander is unable to deliver that person to competent authorities; or
c) that person agrees to onward carriage under restraint.
2. The aircraft commander shall as soon as practicable, and if possible before landing in the territory of a State with a person on board who has been placed under restraint in accordance with the provisions of Article 6, notify the authorities of such State of the fact that a person on board is under restraint and of the reasons for such restraint“.

^[84] The text of Art. 9(1) ensures that the granted power to deliver such a person is only allowed where the aircraft commander has reasonable grounds to believe that the person in question has committed a „serious offence according to the penal law of the State of registration of the aircraft“.

^[85] Art. 9(2) and (3) of the Tokyo Convention.

^[86] Boyle/Pulsifer (1964), p. 349, state that this provision pursues a twofold purpose. First, „to give to the other States more detailed information as to the circumstances surrounding the entire incident; and, second, to alert them to the intentions of the holding State so that they may better form a judgement as to whether they wish to extradite the individual“.

^[87] Compare, for example, Boyle/Pulsifer (1964), p. 345.

^[88] Shubber (1968-69), p. 195.

^[89] As stated by Evans (1969), p. 709; Boyle/Pulsifer (1964), p. 345. Art. 3(1) provides for the competent jurisdiction of the state of registration of the aircraft, and Art. 4(a) which describes that a contracting state other than that of registration may „exercise its criminal jurisdiction“, if the offence committed on board „has effect on the territory of such state“.

^[90] Example from Shubber (1968-69), pp. 195-196.

^[91] As stated by the Chairman of the Drafting Committee, a Swedish representative at the Tokyo Conference 1963, in: International Conference on Air Law, Tokyo, August-September 1963, vol. 1, Minutes, I.C.A.O., Doc. 8565-LC/152-I, paras. 96, 324, see Shubber (1968-69), p. 196 (footnote 1).

^[92] Shubber (1968-69), p. 196.

^[93] Compare the statement of the Swedish delegate, Chairman of the Drafting Committee, at the Tokyo Conference: „There was a case of putting a drug into a drink which was given to the pilot so that the command of the aircraft could be taken over“, in: International Conference on Air Law, Tokyo, August-September 1963, vol. 1, Minutes, I.C.A.O., Doc. 8565-LC/152-I, paras. 96, 324, see Shubber (1968-69), p. 196 (footnote 1).