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CHANAKYA

NATIONAL

LAW

UNIVERSITY

PROJECT WORK ON

HIJACKING

SUBMITTED TO: Mrs. Sugandha Sinha


(Faculty of International Law)

SUBMITTED BY: Krishna Chaitanya


Roll No.: 935
5th Semester

ACKNOWLEDGEMENT

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Writing a project is one of the most significant academic challenges I have ever faced.
Though this project has been presented by me but there are many people who remained in
veil, who gave their support and helped me to complete this project.
First of all I am very grateful to my subject teacher Mrs. Sugandha Sinha without the
kind support of whom and help; the completion of the project was a Herculean task for
me. She gave her valuable time from his busy schedule to help me to complete this
project and suggested me from where and how to collect data.
I am very thankful to the librarian who provided me several books on the topic which
proved beneficial in completing this project.
I acknowledge my friends who gave their valuable and meticulous advice which proved
to be very useful and could not be ignored in writing this project. I want to convey a most
sincere thanks to my seniors for helping throughout the project.

********************

AIM & OBJECT OF STUDY:


The aim and object of the study are the following:
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1. To know about hijacking and jurisdiction with regard to aircraft.


2. To outline the various international conventions in order to curb this menace.
3. To highlight the necessity of devising effective means to stop this practice.

HYPOTHESIS:
The hypothesis of the researcher is that despite the steps that have been taken so far to
suppress the crime of hijacking, there has been no reduction in the number of incidents of
hijacking.

RESEARCH METHODOLOGY:
In this project doctrinal method of research will be used. Doctrinal method refers to
library research, research done upon some texts, writings and documents. It also includes
the research done upon the internet and other resources.

TABLE OF CONTENTS
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1. Introduction The menace of Hijacking............................................05


2. Hijacking and International Laws.......................................................08
3. Incidents of Hijacking and application of Int. Law............................17
4. Analysis of Indian Anti-Hijacking Laws............................................20
5. Conclusion and Suggestions...............................................................24
Bibliography...........................................................................................26

Introduction The Menace of Hijacking


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Hijacking has assumed the proportions of a world-wide problem which threatened to


undermine international aviation.1 It is the illegal seizure of a land vehicle, aircraft, or
other conveyance while it is in transit. Although since the late 20th century hijacking
most frequently involved the seizure of an airplane and its forcible diversion to
destinations chosen by the air pirates, when the term was coined in the 1920s in the
United States.2 Aircraft hijacking is the unlawful seizure of an aircraft by an individual or
a group. In most cases, the pilot is forced to fly according to the orders of the hijackers.
Occasionally, however, the hijackers have flown the aircraft themselves, such as the
September 9 attack of 2001. Skyjacking is not usually committed for robbery or theft.
Most aircraft hijackers intend to use the passengers as hostages, either for monetary
ransom or for some political or administrative concession by authorities. Motives vary
from demanding the release of certain inmates, to highlighting the grievances of a
particular community. Hijackers also have used aircraft as a weapon to target particular
locations, notably during the 9/11 attacks.3
Hijacking of an international flight of a civilian aircraft is covered by principles of both
international customary law and treaty law. In international customary law, a range of
principles flows from two broad norms. The first norm is that every state has an
obligation to ensure that its territory is not being used by any person in any manner to the
detriment of another state.4 This is the basis of all rules relating to the prohibition of
direct or indirect involvement of states in international terrorism (some of these rules
were identified and elaborated by the ICJ in the Nicaragua case in 1986). The second
norm is that states owe an obligation to the international community to ensure protection
of human rights.5 As the ICJ stressed in the American Hostages in Teheran case in 1980,
Wrongfully to deprive human beings of their freedom and to subject them to physical
constraint in conditions of hardship is in itself manifestly incompatible with the principles
of the Charter of the United Nations as well as with the fundamental principles
enunciated in the Universal Declaration of Human Rights.
1 Starke, J.G., Starkes International Law, LexisNexis UK; 11th Revised edition (1994).,p.314
2 http://www.britannica.com/topic/hijacking accessed last on 21/10/2015.
3 http://www.lawctopus.com/academike/aircraft-hijacking/#_edn13 accessed last on 21/10/2015.
4 International Court of Justice ruling in the Corfu Channel case, 1949
5 ICJ ruling in the Barcelona Traction Company case, 1969
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Contemporary international law underscores the duty of every state to (a) prevent
perpetration of terrorist acts against another state or against innocent individuals, and (b)
consequently, to cooperate with other states in preventing and combating terrorism and in
punishing terrorists. It is this aspect of the principle of suppression of terrorism that has
moved the international community to evolve international legal instruments for the
purpose of combating and punishing acts of international terrorism in the interests of
protection of territorial integrity of states and respect for human rights.
According to Alone E. Evans6, aircraft hijacking is a contemporary addition to the roster
of international and national crimes and the necessity for its control at international and
national level is only beginning to be recognized by the States. The increase in the
number of incidents of hijacking and increase in the dangers against the safety of the
flights of aircrafts presents grave problems before the international community and
particularly before the International Civil Aviation Organization. In order to solve this
problem and punish the hijackers several Conventions have been adopted. Four
multilateral treaties are directly relevant to aerial hijacking: (1) The Tokyo Convention on
Offences and Certain Other Acts Committed on Board the Aircraft, 1963; (2) The Hague
Convention for the Suppression of Unlawful Seizure of Aircraft, 1970; (3) The Montreal
Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation,
1971; and (4) The International Convention against the Taking of Hostages, 1979. The
first three were evolved under the auspices of the International Civil Aviation
Organisation (ICAO) and the fourth was adopted by the U.N. General Assembly.
In its wide sense hijacking is an act against the safety of civil aviation and resembles
piracy under international customary law.7 The offence of hijacking has been defined in
Article 1 of the Montreal Convention of 1971. It says
Any person commits an offence of hijacking if he unlawfully and intentionally:
(a) performs an act of violence against a person on board an aircraft in flight if the act is
likely to endanger the safety of that aircraft; or

6 Evans, E. Alone, Aircraft Hijacking Its Causes and Cure, AJIL(1969), p.695
7 Need for the Establishment of International Criminal Court by D. Vijyanaraina Reddy., Gaur, K.D.,
Criminal Law and Criminology, p.922
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(b) destroys an aircraft in service or causes damage to such an aircraft which renders it
incapable of flight or which is likely to endanger its safety in flight; or
(c) places or causes to be placed on an aircraft in service, by any means whatsoever, a
device or substance which is likely to destroy that aircraft, or to cause damage to it which
renders it incapable of flight, or to cause damage to it which is likely to endanger its
safety in flight; or
(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
(e) communicates information which he knows to be false, thereby endangering safety of
an aircraft in flight.
Beside the above it is further provided that any person also commits an offence of
hijacking if he:
(a) attempts to commit any of the offences mentioned in paragraph 1 of this Article;or
(b) is an accomplice of a person who commits or attempts to commit any such offence.
Any crime committed on board an aircraft in flight can always give rise to problems of
jurisdiction among nations. With the addition of hijacking and other unlawful interference
with civil aviation, such as placing the bomb on board the aircraft, the runway or the
aircraft on ground, the roster of international and national crimes has become more
serious. The customary international law does not provide any clear rules on jurisdiction
to deal with the offenders. The extradition rules are equally inadequate to tackle the
menace of these crimes.8 The international attempts in forms of conventions, however,
have been made to control the crimes related to civil aviation. The principle of Universal
Jurisdiction has been recognised with respect of piracy and war crimes. Since hijacking is
considered as aerial piracy the principle of universal jurisdiction should apply in respect
of the crime of hijacking. According to Verschoor, one of the reason for the establishment
of an international court is that sometimes it will be difficult for a national court to punish
an international delinquent.
It will be evident that law of aviation crimes cannot under the conventions of Tokyo,
Hague and Montreal be efficacious in the absence of full co-operation between all states. 9
The increase in the number of incidents of hijacking and increase in the dangers against
8 B. Cheng, 11 CLP PP.225-257 (1958) available at http://www.southasiaanalysis.org/paper103 accessed
last on 22/10/2015.
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the safety of the flights of the aircraft presented grave problem before the international
community and particularly before the International Civil Aviation Organization.10

Hijacking and International Laws


The increase in the number of incidents of hijacking and increase in the dangers against
the safety of the flights of aircrafts presents grave problems before the international
community and particularly before the International Civil Aviation Organization. In order
to solve this problem and punish the hijackers several Conventions have been adopted.
The first international convention in this line was the Tokyo Convention on Offences and
Certain Other Acts Committed on Board Aircraft which was signed in 1963 but came into
force only in 1969. This Tokyo Convention obliged all the signatories to take all
appropriate measures required in order to restore control of a hijacked aircraft to the
Captain of the ship or the person in-charge and various other measures in relation to the
safety of the crew and the passengers. 11 The 1970 Convention, signed in Hague and hence
the Hague Convention, was a measure to strengthen up this 1963 Convention in the sense
that it defined what constituted an unlawful seizure of aircraft and obliged the
signatories to engraft this offence in their domestic laws as one punishable with various
penalties.12 This Hague Convention was further built upon by the Montreal Convention
for the Suppression of Unlawful Acts against Safety of Civil Aviation (Sabotage), signed
in 1971 and provided for situations such as attack against a person on-board a civilian
aircraft in flight or an attack which would endanger the aircraft.
The international attempts in forms of conventions which have been made to control the
crimes related to civil aviation are as follows:
A. The Tokyo Convention:

9Starke, J.G., Starkes International Law, LexisNexis UK; 11th Revised edition (1994).,p.317
10 Swami Shubber, Aircraft Hijacking under the Hague Convention A New Regime, Vol. 22, I.C.L.Q.
1973, p. 687
11 http://www.thehindu.com/2000/01/19/stories/05192524.htm accessed last on 23/10/2015.
12 S. K. Kapoor, International Law and Human Rights, Central Law Agency, ed. 16, 2007,p. 256.
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The 1963 Tokyo Convention on Offences and Certain Other Acts Committed on Board
Aircraft was the first major attempt to deal with the problem of jurisdiction over all
crimes committed aboard a civil aircraft.
The Scope and Purpose of the Tokyo Convention: Under the Art 1 (1), the scope of
Convention, it applies to: offences against penal law,
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.
The exceptional domain is contained in (4) indicating that aircraft used in military,
customs or police are departed from the general scope.
The objective of the convention is described as:1. to determine the penal law applicable when an offence has been committed above
territories not belonging to any particular state, such as the high seas, or in cases in which
the place where an offence has been committed cannot be precisely located.
2. to define the rights and obligations of the aircraft commander in respect of offences
and acts committed on board which jeopardize the safety of the aircraft.
3. to define the rights and obligations of the authorities of the place where the aircraft
lands after an offence or an act which jeopardizes the safety of an aircraft has been
committed.
Jurisdiction:Under the wording of Art 3 dealing with jurisdiction in which the sub-item (3) is stating
the convention does not exclude any criminal jurisdiction exercised in accordance with
the national law. It properly means the jurisdictional rules contained in the convention
are of a supplementary nature. But, we note that in the same area that the state of
registration has been declared competent to exercise jurisdiction over offences committed
on board. There are also cases in which states other than the state of registration have
jurisdiction over such offences, as is apparent from Art 4 of the convention. The cases
mentioned as follows:1. the offence has effect on the territory of such state
2. the offence has been committed by or against a national or permanent resident of such
state
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3. the offence is against the security of such state


4. the offence consists of a breach of any rules or regulations relating to the flight or
manoeuvre of aircraft in force in such state
5. the exercise of jurisdiction is necessary to ensure the observance of any obligation of
such state under a multilateral international agreement.
Under Art 2 of the Tokyo Convention, it is mentioned that without prejudice to the
provision of Art 4 and except when the safety of the aircraft or of persons or property on
board so requires, no provision of this convention shall be interpreted as authorizing or
requiring any action in respect of offences against penal laws of a political nature or those
based on racial or religious discrimination. It should be noted there is nothing appears in
either the Hague Convention or the Montreal Convention, both of which might be
considered that political element in hijacking is somehow hard to be apart.
Unlawful Seizure :Under Art 11 of the Tokyo Convention 1963, there is a special offence to the chapter of
unlawful seizure of aircraft since the phenomenon of which has become increasing
frequent since the late 194035. This is given a deep concern but the article is failed to
cover all forms of unlawful seizure, it is also failed to prescribe any effective countermeasures, confining itself to imposing on contracting states the obligation to take all
appropriate measures to restore control of the aircraft to its lawful commander or to
preserve his control of the aircraft. It is experienced to find that the text of the
convention which quoting hijacking is not adequately covered, as illustrated in afore case
law, failure to prescribe any sanction against the offence as well. In order to enhance
protection against unlawful seizure, a separate convention focus on hijacking, that is, the
Hague Convention of 1970 is established to conclude more specific.
Extradition:
Under Art 16 (1) of the Tokyo Convention states Offences committed on aircraft
registered in contracting state shall be treated, for the purpose of extradition, as if they
had been committed not only in the place in which they have occurred but also in the
territory of the state of registration of the aircraft.
Under Art 16 (2) states without prejudice to the provision of preceding paragraph,
nothing in this convention shall be deemed to create an obligation to grant extradition.
The entire Art 16 merits a special attention as pointedly illustrated in the previous case
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law on extradition, but the problem in the absence of restrictive approach to extradition is
required to be elaborated by the Hague Convention of 1970 as following.
Deficiencies:
The Tokyo Convention suffers from a number of deficiencies.
1. The convention neither defines the term hijacking nor makes an effort to deal with an
offence itself presumably because the act of hijacking was not regarded as a crime. It
simply lays down what would be the consequences if hijacking takes place.
2. The Convention does not extend to domestic airlines (except when the airlines pass
over the high seas but linking cities of the State of registration).
3. There is an absence of the provision regarding clearly formulated principle of
inescapable punishment. There is no prescription of adequate punitive measures. The
main emphasis is on restoration of property and resumption of flight. The offender may
be taken into custody by the Contracting State which may initiate criminal proceeding or
extradite the offender, but neither action is mandatory. Article 16 makes it clear that it
does not create an obligation to grant extradition.
4. Exclusive rights given to flight commanders for protecting the aircraft and imposing
restraints on the offenders are to some extent unjustifiable.
B. The Hague Convention:Increase in the number of incidents relating to hijacking and the shortcomings of the
Tokyo Convention compelled the States to think and take some effective measures to
solve the problem and to give deterrent punishment to hijackers. This process started in
September 1968 when the International Civil Aviation Organization Council was asked to
study the problem of hijacking, leading to the adoption of the Hague Convention, 1970,
i.e., the Convention for the Suppression of Unlawful Seizure of Aircraft. 13 After having
been ratified by the prescribed number of States, The Hague Convention came into force
on October 17, 1971.
The Scope of Convention:
Article 1 defines the offences that may be covered by the Convention. It says
Any person who onboard an aircraft in flight:
13 M.P. Tandon, International Law and Human Rights, Allahabad Law Agency, ed. 15, 2004, p.177178.
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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
Is an accomplice of a person who performs or attempts to perform such an act,
commits an offence.
Thus, in addition to actual wrongdoer, his accomplice also would be deemed guilty of the
offence under the Convention.
Either the flight is domestic or international is applicable to this convention. 14 It also
provides provision, on the pursuit and punishment of hijackers, applicable only to persons
on board the aircraft in flight, but is concluded that hijacking as offences. Besides, the
definition of the term in flight is different in the Hague Convention, which is considered
that the moment when all its external doors are closed following embarkation until the
moment when any such door is opened for disembarkation. 15 The scope of the Hague
Convention is therefore wider and more precise as compared with the Tokyo Convention.
Jurisdiction:
According to Art 4 of the Hague Convention, jurisdiction is assigned to the following
contracting states:1. The state of registration, when the offence has been committed on board an aircraft
registered in that state.
2. The state of landing, when the alleged offender is still on board.
3. The state where the lessee of an aircraft without his principal place of business or his
permanent residence.
4. The state where the alleged offender is found and apprehended, and which does not
extradite him to any of the states previously mentioned.
5. Not only hijacking, but also the offenders use of force in connection with the seizure
is covered by the jurisdiction.
According to Art 5 of the Hague Convention, it deals with aircrafts operate under joint
operating organizations and international operating agencies may be established by the
contracting states. According to Art 6 (1) (2) of the Hague Convention, in order to ensure
14 Art 3(3) of Hague Convention of 1970
15Art 3 (1) of Hague Convention of 1970
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the offenders presence, taking into custody or taking other measures have been made
obligatory for the state where he is present, as well as making a preliminary enquiry into
the fact. The actual prosecution and trial mandatory have not mentioned that given an
overall situation The Hague Convention introduces the principle of universality of
jurisdiction, it implies an offender is liable to prosecution anywhere in the world, but with
an restriction made subject to the actual presence of the offender in the particular state
instead of fully honouring this principle.

Extradition:
The Convention also stipulates regarding the extradition of offenders. Article 8 says that
the offence shall be deemed to be included as an extraditable offence in any extradition
treaty, and it shall be an obligation of the Contracting States to include the offence as an
extraditable offence in every future treaty. Thus, the Convention may be considered as
constituting an extradition treaty in respect of the offence amongst the Contracting
Parties. The provision implies that the offence of hijacking shall not be deemed to as a
political offence. The offender will have to be extradited even if the offence has been
committed for political gain. However, the Convention also provides that the extradition
shall be subject to other conditions provided by the law of the requested State. In other
words, extradition has to be made in accordance with the existing law of extradition of
the requesting State.16
Deficiencies:
Provisions of the Convention show that it is devoted largely to the problem of hijacking
of aircraft. However the scope of the Convention is not as wide as it should be.
1. The Convention protects only an aircraft in flight.
2. An act is qualified as an offence only when a person on board this particular aircraft
commits it.
3. The Convention does not provide any relief for the damage caused to passengers and
goods.

16 H.O. Aggarwal, International Law and Human Rights, Central Law Publication, ed. 18, 2011, p.649
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4. The Convention failed to recognize, like the Tokyo Convention, that hijacking is a
crime under International Law. Merely treating the various acts of hijacking as offence is
not likely to serve any useful purpose.
However, the Convention is a firm improvement in the law of aircraft hijacking.

C. The Montreal Convention:The Convention for the Suppression of Unlawful Acts Against the Safety of Civil
Aviation was adopted on September 23, 1971 at a diplomatic conference in Montreal. The
Convention came into force on December 14, 1973. The offences committed on board
aircraft are stated exclusively in the Hague and Tokyo Convention, the Montreal
convention is the one to conquer the other unlawful acts against the safety of civil
aviation. It was concluded in 1971 one year following the adoption of the Hague
Convention.17 A person is said to commit an offence under Art 1 (1) of the Montreal
Convention, if he unlawfully and intentionally:1. Performs an act of violence against a person on board an aircraft in flight if that act is
likely to endanger the safety of that aircraft, or
2. Destroys an aircraft in service or causes damage to such an aircraft which renders it
incapable of flight or which is likely to endanger its safety in flight, or
3. 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
render it incapable of flight, or to cause damage to it which is likely to endanger its safety
in flight, or
4. 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

17 M.P. Tandon, International Law and Human Rights, Allahabad Law Agency, ed. 15, 2004, p.177178.
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5. Communicates information he knows to be false, thereby endangering the safety of


aircraft in flight.
Under item 5, if there is a false bomb alerts cause only delay and no damage to the
aircraft are not covered in this convention. In Art 3, the contracting states have
undertaken to impose severe penalties with regard to the offences listed above. In Art 5,
the contracting states may be necessary to establish its jurisdiction in the following
circumstances:1. when the offence is committed in the territory of that states.
2. when the offence is committed against or on board an aircraft registered in that state.
3. when the aircraft on board which the offence is committed lands in its territory with the
alleged offender still on board.
4. when the offence is committed against or on board an aircraft leased without crew to a
lessee who has his principal place of business or, if he has no such place of business, his
permanent residence in that state.
According to Art 5 (2), in the event of the offender being found on a state territory, the
state should take such measures even the offender is not being extradited. Furthermore,
under Art 10, the duty for contracting states is necessary to take any step to prevent the
offences as Art 1 stated before by using either international law or national law.
Art 4 (2) indicates the convention is applicable to domestic as well as international flights
if the point of take-off or landing, or both are situated outside the territory of the state of
registration, or when the offence is committed in the territory of a state other than the
state of registration.
The words an aircraft is considered to be in service from the beginning of the preflight
preparation of the aircraft by ground personnel or by the crew for a specific flight until 24
hour after any landing mentioned in Art 2 (b) is purposely extended the entire period of
service during which the aircraft is in flight as defined in Art 2 (a) because the convention
is designed applicable to domestic and international flight. Any landing is supposed to
cover intended and forced landing.
Art 12 requires states supply each other with all relevant information when they have
reason to believe that an offence mentioned in Art 1 is going to be committed.
Montreal Convention covers several identical subjects in the Hague Convention, they
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1. The non-applicability of convention to military, custom and police aircraft (Art 4)


2. The definition of the words in flight (Art 2(a))
3. Joint and international operating agencies (Art 9)
4. The final provision, including settlement of disputes (Art 13-16)

Convention on the Marking of Plastic Explosives for the Purpose of Detection, 1991:
The International Conference on Air Law adopted the Convention on the Marking on
Plastic Explosives for the Purpose of Detection in a conference held in February-March
1991 at the Montreal Headquarters of the ICAO.
A human tragedy was the catalyst for the Convention- the destruction of Pan Am flight
103 over Lockerbie, Scotland, on 21st December 1988. A plastic explosive device was
reportedly secreted inside a cassette player.18
Provisions:Prohibition of unmarked explosives: The Convention requires the countries to prohibit
and prevent the manufacture in their territory of unmarked explosives, as well as
movement of such explosives into or out of their territory. All plastic explosives will have
to be marked by manufacturers with anyone of four detection agents agreed upon by the
Conference.
Limitation: Within three years, plastic explosive stocks not specifically held for military
or police activities are to be destroyed, used or rendered ineffective. Those for military or
police functions are to be similarly disposed of within 15 years.
The International Technical Commission: The International Technical Commission set up
by the Convention assesses development in plastic explosive manufacturing, marking and
detection, keep the international community informed and propose amendments to the
technical annex to the Convention.

18 M.P. Tandon, International Law and Human Rights, Allahabad Law Agency, ed. 15, 2004, p.179.
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Incidents of Hijacking and Application of Int. law


The first reported case of such hijacking occurred in Peru in 1931. The first aerial
hijacking in Asia occurred in 1948 on a flight bound from Macau to Hong Kong; all 25
people aboard were killed when the airplane crashed into the Pacific Ocean. During the
next decade about 15 airplanes were hijacked, and in 195867 the number of such
incidents increased dramatically to about 50.
The first aerial hijacking within the United States occurred on May 1, 1961, when a
commercial airliner en route from Miami to Key West, Florida, was forced to detour to
Cuba. By the end of 1961, four airplanes had been hijacked to Cuba, and many of the
airplanes subsequently hijacked in the United States and elsewhere in the Western
Hemisphere were flown to Cuba by either homesick Cubans or politically motivated
leftists. Some of these hijackings were financially motivated, with the hijackers calling
for huge ransom payments in exchange for ensuring the safety of the passengers and
crew, though few were successful.
A more dangerous and destructive spate of hijackings occurred in Europe and the Middle
East from 1968 onward. Between 1968 and 1970 alone there were nearly 200 hijackings.
The participants often were politically motivated Palestinians or other Arabs who
commandeered airplanes while in flight and threatened harm to the passengers and crew
unless certain of their comrades were released from jail in Israel or some other location.
Some of these hijackers also held the passengers and crew captive and demanded large
ransom payments from the hostages governments. The climax of this new form of
terrorism occurred in September 1970, when an 11-day sequence of hijackings resulted in
300 passengers being held hostage for a week and the destruction of four jet aircraft (on
the ground) worth a total of $50 million. Middle Eastern and leftist hijackers abducted,
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confined, and even occasionally murdered individuals traveling on airplanes that were
diverted from scheduled routes.19
Destruction of World Trade Centre and Pentagon: the September 11 attacks:The deadliest act of air piracy to date occurred on September 11, 2001, when suicide
terrorists simultaneously hijacked four airliners in the United States and flew two of them
into the World Trade Center complex in New York City and one into the Pentagon near
Washington, D.C... The September 11 attacks were a series of four suicide attacks that
were committed in the USA, coordinated to strike the areas of New York and Washington
D.C. On that Tuesday morning, 19 terrorists from the militant group Al-Qaeda hijacked
four passenger jets. The hijackers intentionally piloted two of those planes, into the North
and South towers of the World Trade Centre complex in New York City; both towers
collapsed within two hours. The hijackers also intentionally crashed a flight into the
Pentagon and intended to pilot the fourth hijacked jet, into the Capitol Building
Washington, D.C.; however, the plane crashed into a field near Shanks Ville after its
passengers attempted to take control of the jet from the hijackers. Almost 3000 people
died in the attacks, including the 246 civilians and 19 hijackers aboard the four planes,
none of whom survived.20 Suspicion quickly fell on Al-Qaeda, and in 2004, the groups
leader Osama bin Laden, who had initially denied involvement, claimed responsibility.21
Scenario in India:
India is a party to all the three international conventions on hijacking, viz, the Tokyo, the
Hague and the Montreal Convention. It, however did not ratify these conventions till it
became subject to series of hijacking incidents in which the Indian airlines were taken to
Pakistan, a country sympathetic to the demand of the hijackers. In the first incident which
took place in January, 1970, the hijacked Indian aircraft was taken to Lahore (Pakistan)
and after the hostages were released by the hijackers, the plane was blown up. The
authorities in Pakistan remained merely mute spectators to this incident. The hijackers
were later granted asylum by Pakistan. They were neither extradited, nor were
prosecuted. This led India to suspend all rights of over-flight to Pakistani aircraft through
19http://www.nludelhi.ac.in/download/publication/2015/Current%20Developments%20in%20Air
%20and%20Space%20Law.pdf accessed last on 25/10/2015.
20 http://www.lawctopus.com/academike/aircraft-hijacking/#_edn8 accessed last on 25/10/2015.
21 http://www.history.com/topics/9-11-attacks accessed last on 25/10/2015.
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Indian airspace with immediate effect, against which Pakistan made a complaint to the
Council of the ICAO, which found the Indian action not in consonance with its obligation
under the Chicago Convention, 1944, and the transit agreement, 1944. India appealed to
the International Court of Justice (ICJ) against the said decision of the Council of the
ICAO. The ICJ also observed that India does not have a right to suspend a multilateral
treaty unilaterally and the ICAO Council has the jurisdiction in such cases.
In subsequent hijacking incidence of Indian aircrafts, however, Pakistan returned the
aircraft and sent back the passengers, but in no case the hijacker were extradited. In the
September 10, 1976 incident, the hijackers were arrested by Pakistani authorities, but no
further action was taken22.
The five hijackers involved in the September 29-30, 1981 incident, were tried by Special
Court constituted by the Pakistan Government in March, 1984, under the Anti-Terrorists
Act. The nine hijackers involved in the 1984 incident were also tried, out of whom three
were awarded death-sentence, two were given life-imprisonment and four were acquitted.
All the convicted hijackers in the 1981 and 1984 incidents have appealed to the Lahore
High Court against their conviction, alleging that their trial by Pakistan Court is illegal
since the crime was committed in the Indian airspace. The appeal has yet to be decided
finally.
The recent hijacking of IC 814 where an Indian Airlines plane, was kidnapped and taken
to Kandhar and it was only upon the release of a few terrorists, as demanded by the
kidnappers, that the hostages could be released was also a major hijacking event (sixth
major hijacking since 1948 in which the targeted Government conceded the demands of
the hijackers, wholly or in part). In the light of the above conventions, India made an
immediate report to the ICAO and immediately made a formal request to Pakistan and
other states where the hijackers or their accomplices were found either to prosecute them
without delay or to extradite them to India. The ICAO is the appropriate forum to discuss
aerial hijacking.23 It may be noted that the states involved in the IC 814 hijacking episode
are all party to the Hague Convention, and members of the ICAO. India has already
incorporated the Convention into its domestic law, vide the Anti- Hijacking Act 1982
(Act 65 of 1982).

22 S. K. Verma, An Introduction to Public International Law, Satyam Law International, p. 203.


23 http://www.southasiaanalysis.org/paper103 accessed last on 25/10/2015.
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Analysis of Indian Anti-Hijacking Laws


As for India, the 1970 Hague Convention is relevant for it formed the backdrop for the
passing of the Anti-Hijacking Act enacted in 1982. Nonetheless, India being a dualist
State, only the provisions of the Anti-Hijacking Act are applicable in India and the
Convention per se is not of relevant except as it may be referred by courts for
interpretation of Act if required.24 This Act of 1982 came under intense criticism when
IC-814, an Indian Airlines plane, was kidnapped and taken to Kandhar and it was only
upon the release of a few terrorists, as demanded by the kidnappers, that the hostages
could be released.
Anti-Hijacking Act, 1982: This Anti-Hijacking Act defines the act of hijacking. It is
based upon a single line definition of hijacking, which has been defined as 25 seizing or
exercising control of an aircraft, unlawfully, by force or threat of force or by any other
way of intimidation on board an aircraft in flight. The term aircraft in flight has also
been defined as starting from the moment external doors of the aircraft are closed
following by embarkation till the moment they are opened again for disembarkation.
The Act covers any aircraft which is not a military aircraft or one used by customs or
police and the nation in which the aircraft is registered is not relevant.

24 M.P. Tandon, International Law and Human Rights, Allahabad Law Agency, ed. 15, 2004, p.179.
25 Section 3, Anti-Hijacking Act, 1982
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The punishment for hijacking26 is imprisonment for life along with a fine and there is
no power with the judge to reduce the sentence below that and this raises question of
constitutionality of this provision for Section 301 of the Indian Penal Code, which did not
leave any power with the judge as to the quantum of punishment was declared as
unconstitutional by the Supreme Court on grounds that it interfered with judicial review,
a facet of basic structure doctrine. As regards the commission of violence in connection
with hijacking27, the perpetrator shall be liable to the same punishment with which he
would have been punishable under any law for the time being in force in India if such act
had been committed in India. Then the Act also prescribes that hijacking of aircrafts shall
be considered as a part and parcel of the various grounds under the extradition treaties
signed by the Government of India with other countries. 28 It also makes way to provide
for extensive cooperation with and in relation to the Contracting Parties (to the Hague
Convention).
This is the sum and substance of this eleven section Act. But the reality does not stop at
that for this law is substantiated by the external and defense policy of India, as revamped
by the former National Security Advisor, J.N. Dixit.29 Nonetheless, nothing has been done
on the legal front as the 1982 Act continues whereas there have been a number of changes
all across the world, brought in the legal systems to deal with the menace of terrorism, of
which aircraft hijacking is a distinct part.
Further Developments:
India published its new anti-hijacking policy in August 2005. 30 The policy came into
force after the Cabinet Committee on Security (CCS) approved it. The main points of the
policy are:

26 Section 4, Anti-Hijacking Act, 1982


27 Section 5, Anti-Hijacking Act, 1982
28 Section 7, Anti-Hijacking Act, 1982
29 http://www.thehindu.com/2000/01/19/stories/05192524.htm accessed last on 26/10/2015.
30 India adopts tough hijack policy. BBC News, 14 August 2005 available at
http://dgca.nic.in/nat_conv/NatConv_Chap9.pdf accessed last on 26/10/2015.
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Any attempt to hijack will be considered an act of aggression against the country
and will prompt a response fit for an aggressor.
Hijackers, if captured, will be sentenced to death.
Hijackers will be engaged in negotiations only to bring the incident to an end, to
comfort passengers and to prevent loss of lives.
The plane will be shot down if it is deemed to become a missile heading for
strategic targets.
The plane will be escorted by armed fighter aircraft and will be forced to land.
A grounded plane will not be allowed to take off under any circumstance.
The list of strategic targets is prepared by the Bureau of Civil Aviation in India. The
decision to shoot down a plane is taken by CCS. However, due to the shortage of time,
whoever the prime minister, the defence minister or the home minister can be reached
first will take the call. In situations in which an aircraft becomes a threat while taking off
which gives very little reaction time a decision on shooting it down may be taken by
an Indian Air Force officer not below the rank of Assistant Chief of Air Staff
(Operations).

The Anti-Hijacking Bill, 201431:


The Anti-Hijacking Bill, 2014 was introduced in the Rajya Sabha by the Minister of Civil
Aviation, Mr. Ashok Gajapathi Raju on December 17, 2014. The Bill seeks to repeal The
Anti-Hijacking Act, 1982, and give effect to the Convention for the Suppression of
Unlawful Seizure of Aircraft, 1970 and its Protocol Supplementary, signed on September
10, 2010.
Definition of hijacking: The Bill defines hijacking as seizing control of an aircraft in
service, unlawfully and intentionally, by technological means or by exercising force,
coercion, or any other form of intimidation. An aircraft is considered to be in service
from the time it is being prepared for a specific flight by the crew or ground personnel
until 24 hours after any landing.
31 http://www.prsindia.org/billtrack/the-anti-hijacking-amendment-bill-2014-3500/ accessed last on
26/10/2015.
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Related offences: The Bill includes several acts within the definition of hijacking
including: (i) attempt and abetment of hijacking; (ii) making a credible threat to commit
hijacking; (iii) organising or directing others to commit hijacking; (iv) agreeing with
another to commit the offence, and acting on the agreement; etc.
Punishment for hijacking and related offences: The Bill provides for: (i) death penalty,
where the offence results in death of hostage or security personnel; (ii) life imprisonment
in all other cases; and (iii) moveable and immoveable property of the accused may be
confiscated. For any acts of violence committed in connection with the hijacking, the
accused shall be punished with the same punishment as provided under the laws in force.
Jurisdiction: Indian courts can exercise jurisdiction on several grounds including where
the offence is committed: (i) in India; (ii) against an aircraft registered in India; (iii) on
board an aircraft which lands in India with the accused still on board; (iv) by or against
an Indian citizen; (v) by a person who is present in India and is not extradited by the
central government, etc.
Previous sanction for prosecution: The Bill requires that sanction must be taken from the
central government before prosecuting an accused for hijacking or related offences.
Investigation, arrest, bail, etc.: The central government may confer powers of
investigation, arrest and prosecution on any officer of the central government or the
National Investigation Agency. An investigating officer can order seizure or attachment
of property which is related to the offence, and is likely to be concealed or disposed of by
the accused. Where an accused is forwarded to a Magistrate to authorise detention
because investigation could not be completed within 24 hours, a Judicial Magistrate may
authorise detention up to 30 days. An Executive Magistrate may authorise detention up
to seven days.
With regard to bail, an accused cannot be released on bail or bond unless: (i) the public
prosecutor has had an opportunity to oppose the release; and (ii) if the release has been
opposed, the designated court is satisfied that there is reason to believe the accused is
innocent and is unlikely to commit any offence while on bail.
Trial by designated courts: The accused person shall be tried by a Sessions Court which
is notified to be a designated court by the concerned state government. In case the
investigation is carried out by the National Investigation Agency, the designated court
shall be a court set up under the National Investigation Agency Act, 2008. The
designated court shall have the power to order for attachment of the accused persons
properties.
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Presumption of guilt: The court will presume the accused to be guilty if the prosecution
establishes either: (i) arms, ammunition or explosives were recovered from the accused
and there is reason to believe that similar arms, etc. were used in the hijacking or (ii)
there is evidence of use of intimidation against the crew or passengers in connection with
the hijacking.
Extradition: Hijacking and the related offences shall be extraditable. Extraditable
offences are those offences for which one country many transfer the accused to another
countrys legal jurisdiction. No request for extradition shall be refused on the ground that
hijacking is a political offence or is connected to a political offence.

Conclusion & Suggestions


Aircraft hijacking is the unlawful seizure of an aircraft by an individual or a group. In
most cases, the pilot is forced to fly according to the orders of the hijackers. Most aircraft
hijackers intend to use the passengers as hostages, either for monetary ransom or for
some political or administrative concession by authorities. Motives vary from demanding
the release of certain inmates, to highlighting the grievances of a particular community.
Hijackers also have used aircraft as a weapon to target particular locations, notably
during the 9/11 attacks. According to Alone E. Evans, aircraft hijacking is a
contemporary addition to the roster of international and national crimes and the necessity
for its control at international and national level is only beginning to be recognized by the
States.
The increase in the number of incidents of hijacking and increase in the dangers against
the safety of the flights of aircrafts presents grave problems before the international
community and particularly before the International Civil Aviation Organization. In order
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to solve this problem and punish the hijackers several Conventions have been adopted.
The first international convention in this line was the Tokyo 'Convention on Offences and
Certain Other Acts Committed on Board Aircraft' which was signed in 1963 but came
into force only in 1969. This Tokyo Convention obliged all the signatories to take all
appropriate measures required in order to restore control of an hijacked aircraft to the
Captain of the ship or the person in-charge and various other measures in relation to the
safety of the crew and the passengers. The 1970 Convention, signed in Hague and hence
'the Hague Convention', was a measure to strengthen up this 1963 Convention in the
sense that it defined what constituted an "unlawful seizure of aircraft" and obliged the
signatories to engraft this offence in their domestic laws as one punishable with various
penalties. This Hague Convention was further built upon by the Montreal 'Convention for
the Suppression of Unlawful Acts against Safety of Civil Aviation (Sabotage)', signed in
1971 and provided for situations such as attack against a person on-board a civilian
aircraft in flight or an attack which would endanger the aircraft.
There have a number a number of incidents of hijacking. The first reported case of such
hijacking occurred in Peru in 1931. The first aerial hijacking in Asia occurred in 1948 on
a flight bound from Macau to Hong Kong; all 25 people aboard were killed when the
airplane crashed into the Pacific Ocean. During the next decade about 15 airplanes were
hijacked, and in 195867 the number of such incidents increased dramatically to about
50. The latest incident of hijacking was witnessed on March 24, 2015 when
Germanwings Flight 9525, a scheduled flight from Barcelona to Dsseldorf was hijacked
by the co-pilot. 30 minutes after takeoff Andreas Lubitz locked himself in a cockpit when
captain went out for a rest. Then the co-pilot started to descend. Captain tried to
communicate with Lubitz, but he didn't reply. After 8 minutes of falling the airplane
crashed in the Alps near the French village Prads-Haute-Blone. There were 144
passengers and 6 crew members on board. In this long span of time, the most major
incident was the September 11, 2001 attack on the World Trade Centre and Pentagon.
Whereas the latest hijacking incident involving an Indian aircraft was the IC-814
hijacking incident.
Hence despite the steps that have been taken so far to suppress the crime of hijacking,
there has been no reduction in the number of incidents of hijacking. Efforts to induce the
States to prosecute or extradite hijackers presuppose that criminal sanctions against
hijackers are an effective means of preventing hijacking.
Therefore, there is a need to tackle the problem of suppressing the crime of hijacking
afresh. With this in view, a united effort should be made by the States to plug the
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loopholes of the existing laws. In the meantime protective measures such as search of all
passengers and luggage at airports should be tightened.

Bibliography
H.O. Aggarwal, International Law and Human Rights, Central Law Publication,
ed. 18, 2011,
M.P. Tandon, International Law and Human Rights, Allahabad Law Agency, ed.
15, 2004,
S. K. Kapoor, International Law and Human Rights, Central Law Agency, ed.
16, 2007.
S. K. Verma, An Introduction to Public International Law, Satyam Law
International.
http://www.nludelhi.ac.in/download/publication/2015/Current%20Developments
%20in%20Air%20and%20Space%20Law.pdf
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http://www.thehindu.com/2000/01/19/stories/05192524.htm
http://www.ebc-india.com/lawyer/articles/71v1a7.htm#Note13
http://www.southasiaanalysis.org/paper103
http://www.lawctopus.com/academike/aircraft-hijacking/#_edn8

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