T
INTRODUCTION
85
B. A., University of California at Los Angeles, 1972; J.D., Southwestern University School
of Law, 1975. Mr. Steelman is now in private practice in Beverly Hills.
1. Convention of Offenses and Certain Other Acts Committed on Board Aircraft, Sept 14,
1963, (1969) 3 U.S.T. 2941, T.I.A.S. No. 6768; 58 AM. J. INT'L L. 566 (1964).
2. Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16,1970, (1971) 22
U.S.T. 1641, T.I.A.S. No. 7192; 65 AM. ]. INT'L L. 440 (1971).
Despite more than 300 hijackings, 400 deaths, and millions of
dollars in damaged equipment since 1947, the number of states that
have ratified the three conventions aimed at curbing the problem of
air-hijacking is pitifully low. Only forty-seven states have ratified the
Tokyo Convention, 1 which attempts to provide a jurisdictional basis
for prosecuting offenders; fifteen states have ratified the Hague Convention,2 which strengthens the procedures for prosecuting persons
involved in the illegal seizure of aircraft; and thus far, no countries
I.
VI.
D. Defining the Crime ..................................................................................91
National and International Anti-Hijacking Laws ................................................93
United Nations Resolutions ............................................................................96
ICAO Conventions .......................................................................................99
A. The Tokyo Convention (1963) ...................................................................100
B. The Hague Convention (1970) ..................................................................101
C. The Montreal Convention (1971) ...............................................................102
D. The Sanctions Convention (1973) ..............................................................103
E. Enforcing ICAO Conventions ...................................................................104
Conclusion .................................................................................................106
C. The Hijackers...........................................................................................89
B. The Hazards to Civil Aviation ....................................................................88
A. A Brief History ........................................................................................87
Introduction ................................................................................................ 85
Nature of Terrorism via Air-Hijacking .............................................................86
TABLE OF CONTENTS
Henry Steelman*
INTERNATIONAL TERRORISM
VIS-A-V13
AIR-HIJACKING
SOUTHWESTERN UNIVERSITY LAW REVIEW
[Vol. 9 t
NATURE OF TERRORISM VIA AIRCRAFT HIJACKING
3. Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation,
Sept. 23, 1971, T.l.A.S. No. 7570; 66 AM. J. INT'L L. 455 (1972).
4. Secretary Rogers' address before the United Nations General Assembly, Sept. 25,1972.
The issue is not war war between States, civil war, or revolutionary war. The issue is not the strivings of people to achieve
self-determination.
Rather it is whether millions of air travellers can continue to fly
in safety each year. It is whether a person who receives a letter can
open it without fear of being blown up. It is whether diplomats can
safely carry out their duties. It is whether international meetings. . . can proceed without the ever present threat of violence.
In short, the issue is whether the vulnerable lines of international communication the airways and the mails, diplomatic discourse and international meetings can continue, without disruption, to bring nations and people together. All who have a stake in
this [must take] decisive action to suppress these demented acts of
terrorism.
We must take effective steps to prevent the hijacking of international civil aircraft.4 __________________________
The problem of international terrorism is immediate and complex. Terroristic violence knows no geographic limits, nor is it confined to any one political cause. In his address before the United
Nations General Assembly, Secretary Rogers stated:
II.
have ratified the Montreal Convention,3 which contains the most
extensive provision for universal jurisdiction over offenders. Although the states participating in the conferences that prepared these
conventions displayed an unusual degree of cooperation on highly
sensitive issues, it remains to be seen whether the conventions will be
implemented adequately.
Clearly, hijacking will not be stopped in the absence of universally applied agreements to prosecute offenders. Until such agreements are utilized, the airlines must rely upon technical devices to
prevent hijackings from occurring. For example, a few years ago
Eastern Airlines introduced many of the pre-flight screening procedures suggested by the United States Federal Aviation Administration, including physical detection devices and a psychological "profile" of potential hijackers, as well as in-flight methods of prevention.
This article will highlight the magnitude of the hijacking problem
for civil aviation, and provide the historical and political background
of events culminating in recent international legal efforts to prevent
hijacking.
86
4.,
INTERNATIONAL TERRORISM
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5. The antecedents of piracy itself of course go much farther back in history, in fact, the
word "hijack" is believed to have originated in the eighteenth century. Ill W. MORRIS & M.
MORRIS, DICTIONARY OF WORDS AND PHRASE ORIGINS (1971).
6. Statistical data on the incidence of aircraft hijacking vary according to the compiler's
criteria. The figures used here are based upon the following sources: N.Y. Times, NEWSWEEK,
TIME, U.S. NEWS & WORLD REPORT.
7. Id.
In 1958, a second wave of hijackings occurred and was followed
by eleven successful and five attempted hijackings in 1960. During
this period, Fidel Castro was consolidating his control in Cuba. Consequently, most of the hijackings involved Cubans fleeing to the
United States. Thus, each one of the twenty-five successful and
seven attempted hijackings, stretching over a period of thirteen
years, was from a communist to a noncommunist country.
The year 1961, however, marked a change in this one-way traffic.
In May 1961, the first hijacked United States aircraft was diverted to
Cuba. Since then there have been over 300 cases of hijackings, all
The first wave, lasting from 1947 to 1953, consisted of fourteen
successful and two aborted hijackings. 6 All of the successful hijackings were committed by persons trying to flee Eastern European
countries. In 1953, aircraft hijackings from Bulgaria, Czechoslovakia,
Poland, Rumania, and Yugoslavia ceased abruptly, perhaps reflecting intensified political security measures, including travel restrictions, in Eastern Europe.
A. A Brief History
Although the spate of aircraft hijacking in the 1960's, particularly
since 1967, has made air piracy seem like a new phenomenon, its
antecedents go back to 1930, when Peruvian revolutionaries seized
control of a Peruvian aircraft to flee the country. 5 That particular
hijacking remained the solitary aberration in the otherwise smooth
operation of international civil aviation until 1947. Since then, hijackings generally have occurred in waves, often reflecting a disturbed
social or political climate in one or several countries or regions. From
1947 to 1953, hijackings were instigated by political turmoil in Eastern
Europe in the postwar period; from 1958 to 1961, by civil war, the
overthrow of the Batista dictatorship, and the establishment of a new
regime in Cuba; and from 1967 to the present, by political disaffection
in the United States, militant left-wing and guerilla action in some
Latin American countries, intensified political oppression in some
Eastern European countries, and Palestinian guerilla movements in
the Middle East.
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12. NEWSWEEK, Sept. 14,1970.
9. Ministry for Foreign Affairs, Middle East Information Series: Accessories to ferror,
Appendix. Israel Information Center, July 1973.
10. ICAO Doc. 8895, Res. A/17, p. 5.
11. Id.
8. u.
The Hazards to Civil Aviation
Any violence committed on board the aircraft, especially incapacitation of pilots, either by the hijacker or by those trying to
subdue him, can lead to a disastrous crash. There have been many
incidents of violence aboard hijacked aircraft in which pilots,
copilots, other crew members, and passengers suffered serious and
sometimes fatal injuries. It is remarkable that relatively few aviation
disasters have resulted from the hijackings that have occurred in the
past four decades. It was nothing short of a miracle, for example, that
the lives of 155 passengers and crew members aboard an El Al airliner
were saved in September 1970. In that incident, when the crew tried
to overpower one of the two hijackers, he threw a handgrenade
which failed to detonate because of a faulty spring. 12
There is always the danger that a weapon carried by the hijacker
may discharge accidentally, or that a nervous hijacker may fire a few
shots to impress crew members. There have been many incidents of
this type, although fortunately, in all cases the aircrafts involved have
been able to land safely. Such a mishap occurred in August 1970,
when during an attempted hijacking of a Polish airliner a bomb held
B.
except twenty-eight of these incidents occurring after 1967. The
destination of most of these hijackers, from both the United States
and Latin American countries, has been Cuba. In the case of Colombia alone, for example, over twenty aircrafts have been hijacked to
Cuba since late 1967. The most bizarre arena of hijackings during the
past nine years has been the Middle East. Most of these incidents
involved airlines operating on one of the routes to Israel.'
Thus far, aircraft registered in fifty-two countries have been
subjected to hijacking. 10 The number of countries that have a direct
interest in stopping this phenomenon nearly doubles if the nationality of passengers on hijacked aircraft is taken into account. For example, between January 1969 and June 1970 there were 118 incidents of
hijacking and fourteen of sabotage and armed attacks against civil
aviation, involving airlines of forty-seven nations and more than
7,000 passengers of eighty-three nationalities."
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INTERNATIONAL TERRORISM
89
13.
14.
15.
23-25.
16.
N.Y. Times, Nov. 25,1968, at 1, col. 1.
!b
•%
NEWSWEEK, Aug. 24, 1970.
NEWSWEEK, Sept. 1, 1969.
ICAO Doc. LOWorking Draft 744-2(9), cited in US Doc. A/PV. 1914,25 Nov. 1970, pp.
C. The Hijackers
Although the current motives for hijacking include such-diverse
purposes as the collection of ransom and political blackmail, the most
frequent objective of hijacking has been flight from a country for
personal, social, or political reasons. Politically motivated individuals
have been responsible for a majority of the hijackings that have
occurred in the past twenty-five years. According to a recent INTERPOL report, while 35.6% of aerial hijackings are perpetrated by
mentally deranged persons, or, more rarely, by ordinary criminals,
64.4% are committed for political reasons."
Hijackers fall into four broad categories: criminals or suspects
fleeing from the law; mentally disturbed persons; persons who see
hijacking as their only means of escape from a particular political or
social system; and political militants who hijack planes for the purpose of political blackmail. A considerable number of the hijackers of
United States aircraft to Cuba are criminals or suspects fleeing from
the law. 16 Mentally disturbed hijackers are individuals who desire to
leave their personal environment at any cost or who commit hijackings as an act of bravery. Among these are individuals who, because
of their mental condition, are stimulated to attempt hijacking after
hearing about a hijacking or after seeing films of aircraft hijackings or
by the hijacker accidentally exploded and injured the hijacker and ten
passengers. 13 Whether accidental or intentional, the result may be
injury to the passengers or extensive, possibly crippling, damage to
the aircraft.
Another danger in long-distance hijackings is that the aircraft
may run out of fuel. This possibility is present especially in cases of
aircraft serving domestic routes. Thus far, pilots and crew members
have been able to persuade hijackers to permit the aircraft to land if it
is necessary to refuel. Another problem is that an aircraft may run out
of fuel while circling over the airport. Such a catastrophe almost
occured in August 1969, when a TWA jet hijacked during a flight from
Los Angeles to Tel Aviv landed at the Damascus airport with only a
few minutes supply of fuel remaining. 14
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17. HOUSE COMM. ON INTERSTATE AND FOREIGN COMMERCE, AIRCRAFT PIRACY, H.R. REP
No. 91-93, 91st Cong., 1st Sess (1969).
18. N. Y. Times, July 23,1970, at 1, col. 6, id. Sept. 1,1968, at 1, col. 7; Sept. 4,1968, at 2, col
6; Sept. 18, 1968, at 6, col. 1; Oct. 30, 1972, at 1, col. 1.
19. The PFLP was formed in October or November of 1967 from a coalition of four
organizations dating back as far as the early 1950's. Said to have been second in size to Al-Fatah,
the PFLP vied for this rank with a group called Sa'iga. The PFLP was in important respects
unique among the fedayeen groups. Interestingly, if not most importantly, its membership
contained a large portion of Christians, and its chief leader. Dr. George Habash, was a
Christian. The central quality of the PFLP was its militant, Marxist-Leninist-Maoist ideology.
Concentrating upon its revolutionary doctrines as the main concerns, it tended to view traditional Arab goals as somewhat secondary, if by no means inconsequential. N.Y. Times, Sept 1
1968, at 1, col. 7; id. Sept. 4, at 2, col. 6; id. Sept. 18, at 6, col. 1.
20. NEWSWEEK, Sept. 1, 1969, N.Y. Times, July 22, 1970.
A relatively new group of hijackers is composed of militants who
hijack aircraft purely for political blackmail. These hijackers hold the
passengers of the aircraft hostage while bargaining for the release of
their colleagues, who are either in the harids of an enemy state or are
facing trial in their own country for revolutionary activity. Such
hijackings have been related to the Arab-Israeli conflict and, with the
exception of two incidents, have been confined to the Middle East. 18
The first hijacking of this type occurred on July 23, 1968, when
three members of the Popular Front for the Liberation of Palestine
(PFLP)19 hijacked an El Al airliner to Algiers. The Israeli crew and
Jewish passengers of the aircraft were detained by Algeria, which
demanded the release of an unspecified number of PFLP members by
Israel. Two similar incidents followed, one involving an American
airliner in 1969 and the other a Greek airliner in 1970. 20 The most
The largest single category of hijackers is comprised of those who
claim political motivation for their acts and are willing to run enormous risks to escape from a political or social system they detest. This
group includes left-wing revolutionaries such as the Black Panthers
of the United States, Latin American political militants, young Communists in Japan and South Korea, members of diverse liberation
movements in the Middle East, and radicals and right-wing politicians and opponents of communist and facist systems. Also included
in this category are those individuals who are denied the right to
leave a particular country to settle elsewhere such as the Soviet Jews.
Cuban expatriates desirous of returning to their native land and
United States army deserters also fall into this category.
bombings. Such persons account for a substantial number of hijackings of United States airliners. 17
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INTERNATIONAL TERRORISM
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21. U.S. NEWS 4t WORLD REPORT, March 19, 1973.
22. N.Y. Times, May 16,1974, at 1, col. 1, Usting all hijackings between April, 1973 through
April, 1974:
Apr. 9, 1973 Arab terrorists attempted to attack an Israeli plane at Nicosia, Cyprus.
Apr. 27, 1973 An Italian was killed in Rome office of El Al by a Palestinian Arab.
July 24,1973 A Japanese Air Lines jumbo jet was hijacked and blown up in Tripoli, Ly bia.
Aug. 4, 1973 Two Arab terrorists killed five persons and wounded forty-five in a
machine-gun attack on passengers in the Athens airport lounge.
Sept. 28, 1973 Eight Jewish immigrants from the Soviet Union were taken hostages
aboard a train for Vienna.
Nov. 25, 1973 Three Arabs hijacked a KLM jumbo jet and flew it to Abu Dhabi.
Feb. 10,1974 An attack on an El Al Israel Airlines plane at Munich killed one passenger
and wounded eight.
Apr. 11,1974 Three Arab guerillas killed a total of eighteen men, women and children in
Quiriat Shemona.
Nov. 11, 1974 Four Palestinians hijacked a British Airways VC-10 with forty-seven
persons aboard at Dubai Airport.
23. NEWSWEEK, July 12, 1976.
24. Id.
involves an illegal act of violence committed (a) for private ends,
"Aircraft hijacking" or "air piracy," the terms generally used to
describe the act of illegal seizure of an aircraft in flight and its diversion to a nonscheduled destination, are, in fact, misnomers. "Piracy," as defined in article 15 of the 1958 Geneva Convention on the
High Seas,
D. Defining the Crime
stunning example of political blackmail by aircraft hijacking occurred
on September 6, 1970, when three planes belonging to TWA, Swissair, and BOAC were hijacked by the PFLP to an abandoned airstrip
in Jordan. 21 An attempt by two PFLP members to hijack an El Al
airliner was aborted, but a fifth plane, a Pan Am 747, was hijacked to
Cairo. The five hijackings were part of a PFLP plan to seek the release
of Arab commandos in Israeli, German, and Swiss prisons. After
nearly three weeks of negotiations, all the passengers were released.
In exchange, West Germany and Switzerland agreed to free six Arab
guerillas, while the United Kingdom released Leila Khaled, one of the
two persons who had attempted to hijack an El Al airliner but was
arrested when the plane landed at Heathrow airport in London.
Thereafter, a series of similar hijackings have occurred.22 The most
recent was the hijacking of an Air France jet by the Palestinians. 23
Israel, taking an uncompromising stand, rescued the hostages and
killed the hijackers in the most daring and successful commando raid
attempted. 24
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by the crew or passengers of a private ship or aircraft, and (b)
directed on the high seas or in a place outside the jurisdiction of
any state, (c) against another ship or aircraft or persons or property
on the latter."
SOUTHWESTERN UNIVERSITY LAW REVIEW
25. See ICAO Doc. 8838-LC/157, 1969, p.34.
26. See Pan Am World Airways, Inc., v. The Aetna Casualty and Surety Co., 368 F. Supp.
1098(S.D.N.Y. 1973).
27. Pub. L. No. 87-197, 75 Stat. 466 (1961).
28. HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, H.R. REP. No. 958,87th
Cong., 1st Sess., § 1 (1961).
29. The Hague Convention, Art. 1.
The significant legal and conceptual differences between "hijacking" and "piracy on the high seas," on the one hand, and "aircraft
hijacking" or "aircraft piracy," on the other, have been recognized in
all recently enacted national and international legislation on the subject. The United States statute on "air piracy" defines the crime as
"any seizure or exercise of control, by force or violence or threat of
force or violence and with wrongful intent, of an aircraft in flight in air
commerce."27 A congressional report, however, clarifies that the
meaning and interpretation of this law in no way "shall be influenced
by precedents or interpretations relating to 'piracy on the high
seas.' "M The Hague Convention avoids the use of either of the two
terms and refers to it as "the offense" committed by a person aboard
an aircraft who "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."29
Both piracy and hijacking involve theft and robbery. Aircraft hijacking, however, is not committed by one aircraft against another, nor is
it always committed in international air space "outside the jurisdiction of any state." Moreover, theft of the aircraft itself or robbery of
the passengers rarely has been the prime motive of hijackers.
To the extent that the hijacker does not undertake the responsibility for returning the aircraft to its rightful owner, hijacking can be
considered a form of "theft." There have been some cases in which
hijacked aircraft were detained by or left in the state where they
lanced, and some of these planes have never been returned to their
owners. For example, the El Al airliner hijacked to Algiers by Palestinian guerillas was detained for six weeks by Algeria while it demanded
the release of Palestinian guerillas by Israel. An extreme example is
the explosion of the hijacked planes, TWA, Swissair, and Pan Am26
on September 6, 1970 by the PFLP.
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30. The 1963 Tokyo Convention, which provides, in part, for the safe return of the
hijacked aircraft and its passengers, cannot be considered an ann'-hijacking measure as it does
not include provisions to curb or deter hijackers.
31. United States v. Cordova, 89 F. Supp. 298 (E.D.N.Y. 1950). In Executive Jet Aviation,
Inc. v. City of Cleveland, 409 U.S. 249 (1972), the Supreme Court held that in the absence of
legislation to the contrary, there is no federal admiralty jurisdiction over aviation tort claims
arising from flights by land-based aircraft between points within the continental U.S.
32. N.Y. Times, Jan. 4, 1973, at 74, col. 1.
33. 75 Stat. 466 (1961); 49 U.S.C. § 1472(1).
34. Austria, Belgium, German Federal Republic, France, Netherlands, Norway, Portugal,
Spain, Sweden, Switzerland, and United Kingdom.
The lack of penal laws specifically dealing with hijacking, however, has never prevented a nation from trying and convicting persons of hijacking or attempted hijacking of national airliners. In fact,
trials of unsuccessful hijackers have occurred in almost all countries
that have experienced hijackings. Hijackers have been tried on various charges such as unlawful possession of weapons, threatening the
lives of other people, and robbery. They have been sentenced to
prison terms of varying lengths and, in Cuba and the Philippines, to
As the initial victims of hijackers, communist countries were the
first to enact stringent anti-hijacking laws. In the Soviet Union, not
only the execution of the act but also the planning of such an act is a
capital offense. 32 In the 1950's, when hijackings were limited to the
aircrafts of Eastern European countries and Cuba, anti-hijacking laws
were either weak or nonexistent in most noncommunist countries.
During the past ten years, however, as an increasing number of
nations have recognized the vulnerability of their own commercial
airliners to hijacking, they also have enacted anti-hijacking laws. In
1961, after the first hijacking of a United States airliner, the United
States promulgated a law that made aircraft piracy punishable by
death under certain circumstances, or By imprisonment for not less
than twenty years if the death penalty is not imposed. 33 Since the
beginning of the current wave of hijackings in the Middle East,
several Western European countries also have recognized the need to
formulate anti-hijacking laws. 34
Until the late 1960's, worldwide concern over aircraft hijacking
and its impact on international civil aviation was minimal. Accordingly, there were no international conventions on the subject. 30 The
status of national laws concerning hijackers, and the severity of the
punishments depended, as they still do to a great extent, upon the
hijacking involving a country's own airliners. 31
III. NATIONAL AND INTERNATIONAL ANTI-HIJACKING LAWS
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38. Id. Aug. 24, 1970.
37. NEWSWEEK, Sept. 1, 1969.
35. The trial of eleven persons, including nine Jews, by the Leningrad court evoked
worldwide reaction. Secretary-General Thant and Pope Paul VI appealed to Soviet leaders to
spare the lives of the two defendants who had received death sentences. The Soviet Union
defended the Leningrad trial as being in the spirit of 1CAO anti-hijacking conventions. See N. Y.
Times, July 1, 1970.
36. Of the remaining thirty-three cases, sixteen are pending. In four cases, hijackers have
been acquitted, while thirteen cases have been dismissed. Based on Fed. Aviation Admin.,
Office of Air Transportation Security, Legal Status of Hijackers Summarization (1 May 1973).
death. In the past six years, Canada, Egypt, Greece, and Poland have
sentenced hijackers to long prison terms. In 1970, a Soviet court
sentenced nine persons to prison terms ranging from four to twelve
years on charges of conspiracy to seize an aircraft in Leningrad, while
two others received death sentences, later commuted to fifteen years
of hard labor. 35 In the United States, of the sixty-six hijackers who
returned voluntarily or did not reach Cuba, thirty-three have been
convicted of crimes related to hijacking and have been sentenced to
prison terms ranging from two to fifty years. 36
While most nations have been able to punish hijackers of national airliners with or without anti-hijacking laws, few have formulated laws concerning hijackers who unlawfully divert foreign airliners to their own airports. As a general rule, the treatment apportioned to hijackers of the latter type has been dictated by political
considerations. In most cases, hijackers have been granted political
asylum and have been released. For example, in the early 1950's
hijackers from Eastern European countries were never considered
criminals in Western Europe; instead, they were cheered for their
heroic efforts to escape from communist regimes. Cuban hijackers in
the late 1950's were always granted political asylum by the United
States. Recently, Middle Eastern countries, particularly Lybia, Syria,
and Algeria, have honored Palestinian hijackers. In 1969, for example, Syria issued a postage stamp depicting two Palestinian guerillas
with the burning wreckage of a hijacked airliner in the background. 37
In 1970, Lybia gave a heroic welcome to released PFLP terrorists. 38
Since 1967, however, some countries have shifted their attitude
of political leniency toward hijackers of foreign airliners. These countries have begun to weigh not only the political but also the criminal
aspects of a hijacker's act. There have been several cases in which
Western European courts, while acknowledging the right to political
asylum, have sentenced Polish and Czechoslovakian hijackers to jail
terms ranging from eight to thirty months for violating the rights and
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INTERNATIONAL TERRORISM
95
40. N.Y. Times, May 20, 1973, at 14, col. 3.
41. Cuba-U.S.: Memorandum of Understanding on the Hijacking of Aircraft and Vessels,
12 INT-L LEGAL MAT. 370 (1973); 67 DEF'T STATE BULL. 260 (1973).
42. L.A. Times, Oct. 15, 1976, at 1, col. 5.
43. See notes 22-24 and accompanying text supra.
44. Statements by U.S. Ambassadors to the U.N., W. Tapley Bennett and George Bush on
Dec. 8,1972,68 DEF'T STATE BULL. 811 (1973). Set also 1972 U.S. Draft Convention on Terrorism,
U.N. Doc. AC 6/L 850 (1972).
39. An Austrian court sentenced two Polish hijackers, R. Zelotucho and W. Szymankiewicz, to two years, and two years and three months, respectively, in March 1970 after they
pleaded guilty to charges of blackmail, inhibiting personal freedom, and illegal possession of
firearms. Frankfurter Allgemeine Zeitung, March 12, 1970, at 9. In the first case arising under
the new hijacking law in the German Federal Republic, two Czech hijackers, A. Lerch and K.
Dolezel, were sentenced to seven years on July 31, 1972. Die Welt, Aug. 1, 1972, at 1.
endangering the lives of other passenge/s aboard the hijacked aircraft. 39 Rafel Minichiello, a United States army veteran who hijacked
a TWA airliner to Rome in 1969, was sentenced by an Italian court to
seven and one-half years in jail on charges of kidnapping and illegal
possession of firearms and was released after eighteen months. Since
1969, Cuba is reported to have tried several hijackers of United States
airliners as "criminal transgressors" and sentenced them to as much
as five years in jail or forced labor on community farms.40 On February 15, 1973, the United States and Cuba entered into an antihijacking agreement which apparently deterred hijacking within the
United States. 41 It seems, however, that Premier Fidel Castro of Cuba
renounced the agreement on October 15, 1976, to protest what he
charged was CIA complicity in the recent crash of a Cuban plane. 42
Thus far, only Israel has taken the uncompromising line adopted
by the United States in dealing with threats of international terrorists.43 This policy was emphasized by President Nixon when on
March 1, 1973, eight Palestinian guerillas murdered two American
diplomats in Khartoum, Sudan. Most Western European governments have capitulated to terrorists' demands and permitted them to
go free in order to prevent killing of hostages and destruction of
property. Most Arab governments have opposed strong measures
against Arab guerillas out of sympathy with the cause of Palestinian
refugees or fear of the terrorists' appeal among Arab masses.
Prior to the Khartoum tragedy, the United States repeatedly
urged the adoption of an independent convention that would enable
participating nations to act in concert against nations that harbored
hijackers or saboteurs or failed to return an aircraft, passengers, or
crew, regardless of whether the offending nation was a party to the
agreement. 44 In the wake of the General Assembly Resolution on
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45. G.A. Res. 2625, 25 U.N. GAOR Supp. 28, U.N. Doc. A/8028 (1972).
46. 11 INT-L LECAL MAT. 1382 (1972).
47. See GAOR Supp. 28, U.N. Doc. A/9028 (1973). The 1961 United States
hijacking consisted of a series of amendments to the 1958 Federal Aviation Act, 75 laws on
Stat. 466
(1961). The uncertainties as to "air commerce" compared to "foreign air commerce" within
the
amendments were finally resolved when legislation was adopted in 1970 to implemen
t
the
Tokyo Convention. Discussed infra.
48. U.N. Doc. A/7656 (1969).
49. U.N. Doc. A/7656 (1969).
During the discussion of this issue in the United Nations General
Assembly, first in 1969 and again in 1970, several nations characterized hijacking as an international crime.48 In October 1969, twelve
nations, introducing the agenda item "piracy in the air," stated in a
memorandum that
in view of the continuous threat to the safety of passengers and
crew of commercial aircraft, it has become urgent for the United
Nations to direct its attention to legal measures which might
usefully be undertaken by national Governments to prevent
further instances of piracy in the air.49
Terrorism,45 the United States introduced a Draft Convention for the
Prevention and Punishment of Certain Acts of International Terrorism. 46 The Draft was not approved partially because of confusion
over what it sought to control and what was not prohibited and
partially because it was viewed as directed generally against revolutionary movements. As a result, the General Assembly established
an Ad Hoc Committee on Terrorism to study the problem and propose recommendations for action. After meeting from July 16
through August 8, 1973, however, the Committee reported that it
was unable to agree upon any recommendations. 47
IV. UNITED NATIONS RESOLUTIONS
Trials of hijackers of foreign airliners in the country of landing
have been rare and sentences imposed upon the accused relatively
mild. Moreover, with a few exceptions, hijackers have diverted aircraft to states that not only are unlikely to return them to the state of
registration of the aircraft or to the state in which the crime is committed but also are likely to release them. To eliminate this loophole and
deny potential hijackers any expectation of a "haven," countries
should declare hijacking a universal crime through an international
convention. This action would put aircraft hijacking on a par with
piracy. A pirate, under international law, does not have the protection of the place where he may be and cannot be granted political
asylum. Thus, a pirate can be brought to trial anywhere, by anyone,
as an enemy of every state.
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INTERNATIONAL TERRORISM
97
50. U.N. Doc. A/7656 (1969).
51. U.N. Press Release GA/4080 (Oct. 9, 1969).
52. G.A. Res. 2551 (XXIV) (1969). The resolution was adopted by a vote of 78-18.
53. Security Council Res. 286 (Sept. 9, 1970).
54. U.N. Monthly Chronicle, Vol. 7, No. 9 (Oct. 1970).
55. Id.
56. Introduction to the Annual Report of the Secretary-General, Gener.il Assembly
Official Record; 25th Sess. 1970, Supp. No. 1A.
A twenty-eight nation draft resolution submitted with the memorandum urged member states to adopt national laws against air piracy
and unlawful interference with aircraft and to ensure the prosecution
of hijackers. 50 Although the title of this item was later amended to
"forcible diversion of aircraft," one of the sponsoring states, the
Netherlands, maintained that the practice of seizing aircraft was
comparable to piracy on the high seas, insofar as the legal nature of
both crimes was concerned. 51 A large number of states that were
otherwise willing to support anti-hijacking measures were opposed
to declaring air piracy an international crime because it would divest
member states of their sovereign prerogative to determine whether to
grant political asylum to a hijacker. Furthermore, it was doubted that
the General Assembly could, by a resolution, declare any act an
international crime. Consequently, the adopted resolution did not
declare aircraft hijacking an international crime. It merely urged all
member states to ensure that effective legal measures were taken
against "all kinds of acts of unlawful interference with, seizure of, or
other wrongful exercise of control over, by force or threat thereof,
civil aircraft in flight." 52
In September 1970, the Security Council, reacting almost immediately to the four hijackings by Palestinian guerillas, urged
member states "to take all possible legal steps to prevent further
hijackings or any other interference with international civil travel." 53
Deploring the unlawful actions of hijackers, Secretary-General Thant
called upon the international community to "adopt prompt and effective measures to put a stop to this return to the law of the jungle."54
He further stated that "[h]owever understandable and even justifiable some of the grievances of the perpetrators may be these acts
[hijacking] are savage and inhumane."55 The incidence of hijackings,
according to the Secretary-General, had reached the point "where
confidence in the safety of international civil aviation is being seriously undermined."56
In early October 1970, fourteen nations, sponsoring an agenda
item on interference with civil air travel, urged the Assembly "to
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57. U.N. Doc. A/8091 (1970).
58. Statement by the representative of the U.S.S.R., U.N. Doc. A/c6SR 1221, p. 13 (Nov.
12, 1971).
59. G.A. Res. 2645 (XXV) (1970).
60. Sw 28 GAOR Supp. 2, U.N. Doc. A/9002 (1972).
61. Id.
62. G.A. Res. 2625 (XXV).
An important advancement occurred on April 21,1973, by the
Every State has the duty to refrain from organizing, instigating,
assisting, or participating in acts of civil strife or terrorist acts in
another State or acquiescing in organized activities within its
territory directed toward the commission of such acts, when the
acts referred to in the present paragraph involve a threat or use of
force.*2
In addition, there already exists an international legal obligation
for all states to prevent terrorist acts. The United Nations Declaration
on Friendly Relations and Cooperation Among States declares:
On November 25, the General Assembly adopted a resolution
condemning, without any exception whatsoever, all acts of aerial
hijacking or other interference with civil aviation. Adopted unanimously, the resolution called upon all states to "take all appropriate
measures to deter, prevent or suppress such acts within their jurisdiction, and to provide for the prosecution and punishment of persons
who perpetrate such acts or for the extradition of such persons for
prosecution and punishment."59 Again* acting by consensus, the
Security Council on June 20, 1972, stated its grave concern "at the
threat to the lives of passengers and crew arising from the hijacking of
aircraft. . . .'/6° The Council urged states "to deter and prevent such
acts and to take effective measures to deal with those who commit
such acts."61
hijacking was a form of piracy and therefore classifiable as an
international crime. And that action by a State against air pirates
should not depend on its municipal la w or the existence of bilateral
extradition agreements; and international criminals should be
punishable outside that framework, as a matter of justice.58
consider the matter within the framework of the concern of the
international community for the protection of human life and for the
promotion of respect for human rights."*7 As in 1969, the sponsors
once again drew parallels between aircraft hijacking and piracy on the
high seas. During the debate that followed, there was greater support
than in the previous year for the view that
98
INTERNATIONAL TERRORISM
99
63. See Security Council Res. 332 (Apr. 21,1973).
64. Id.
65. Id. Further, on December 14,1974, the General Assembly adopted by consensus the
Convention on Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents. The text of Resolution 3166 (XXVII), by which the General
Assembly adopted the Convention itself may be found at 68 AM. J. INT'L L. 383, 384 (1974).
66. U.N. Doc. S/12138; the Council voted on the draft resolution on July 14; the vote was
six in favor (U.S., U.K., France, Italy, Japan, Sweden), with two abstentions (Panama,
Romania); Benin, the People's Republic of China, Guyana, Lybia, Pakistan, Tanzania, and the
U.S.S.R. did not participate in the vote. Nine affirmative votes are required for adoption.
67. U.N. Doc. S/12139; the draft resolution was withdrawn by its sponsors on July 14.
68. 7 HUDSON INT^L LECIS. 862, 878 (1941). Signed at Geneva, Nov. 16. 1937, but never
entered into force.
69. Id.
70. Id.
The 1937 Geneva Convention on the Prevention of Terrorism
reaffirmed, as a principle of international law, the duty of every State
to refrain from engaging in and to prevent the occurrence of any act
designed to encourage terrorist activity directed against other States.
This Convention, however, never came into force. 68 Article 2 of the
1954 Draft Code of Offences against the Peace and Security of Mankind adopted by the International Law Commission at its sixth session, echoed the same theme. 69 Similar provisions also appeared in
the 1970 Declaration of Principles of International Law concerning
Friendly Relations and Cooperation Among States. 70
V. ICAO CONVENTIONS
United Nations Security Council. 63 In a Resolution resulting from a
complaint by Lebanon over raids by Israeli forces on Lebanese territory on April 10, 1973, the Council deplored "all recent acts of violence resulting in the loss of innocent individuals and the endangering of international civil aviation."64 The declaration is a clear reference to the Khartoum assassination and other recent terrorist incidents. In the same Resolution the Council voted to condemn "all acts
of violence which endanger or take innocent human lives."65
The most recent line of Draft Resolutions resulted from the
Entebbe incident. The United States-United Kingdom Draft Resolution in essence advocates condemnation of hijacking, respect of territorial sovereignty, and further consideration to securing the safety
and reliability of international civil aviation. 66 On the other hand, the
Benin-Lybia-Tanzania Draft Resolution called for the condemnation
of Israel for flagrant violation of Uganda's sovereignty and territorial
integrity and for Israel to make full compensation for damages and
destruction inflicted on Uganda.67
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73. U.
72. Text of the Convention at 58 AM. J. INT'L L. 566 (1954). The Tokyo Convention came
into force on Dec. 4, 1969.
71. A classic example of the chaos that existed around the 1950's can be found in United
States v. Cordova, 89 F. Supp. 298 (E.D.N.Y. 1950). On a return trip from Puerto Rico, the
defendant and a companion had a dispute over a bottle of rum which resulted in the death of the
companion. The defendant was subsequently brought to trial in New York under violation of
Title 18 of the United States Code. The court in rendering its decision held Title 18 to be only
applicable to crimes committed on vessels on the high seas and was not applicable to aircraft
above the high seas. The court thus lacked jurisdiction to prosecute the defendant.
The Congress amended § 7 of Title 18 of the United States Code to confer jurisdiction over
certain crimes committed on American airplanes in flight over the high seas or over waters
within the admiralty and maritime jurisdiction of the United States (Act of July 12,1952,66 Stat.
A. The Tokyo Convention (1963) 72
The Convention on Offences Committed Onboard Aircraft, generally known as the Tokyo Convention, was adopted at a diplomatic
conference in 1963. The Convention, which became effective in December 1969, does not deal with measures to deter aircraft hijacking.
Instead, it obligates the country in which a hijacked aircraft lands to
restore the aircraft to those entitled to its possession. The country is
further obligated to permit passengers and crew of the hijacked
aircraft to continue their journey as soon as practical. 73
The Tokyo Convention attempted to bring organization and
control by the international community over crimes committed on
inflight aircraft. It further sought to terminate the fragmentation
created by the nation by nation approach to inflight crimes. Specifically, Article 3 grants the state of registration of the aircraft the
jurisdiction to prosecute crimes committed onboard the aircraft.
Thus, at least one system of law prevails during the duration of the
flight. This jurisdiction, it should be noted, does not exclude any
Although the United Nations resolutions have been valuable as
an expression of the will of the majority of the international community, the real battle for international regulations and legislation to
combat air piracy has been carried out in the International Civil
Aviation Organization (ICAO), a 122-member specialized agency of
the United Nations. ICAO, established in 1944 to assure the safe,
orderly, and economic development of world civil air transportation,
has been struggling with the problems created by crimes committed
aboard aircraft since 1950 long before air piracy drew world-wide
attention. 71 By 1968, after an eight-year study of problems relating to
crimes aboard aircraft, ICAO's Legal Committee had developed a
draft international convention.
100
INTERNATIONAL TERRORISM
101
79. 10 INT'L LEGAL MAT. 133 (1971).
(1969).
77. ICAO Doc. LOSC. SAWD, I, p. 2.
78. Art. 13(2). 16(2). See Evans, Aircraft Hijacking: Its Cause anil Cure, 63 AM. ). INT'L L 695,
708 (1969).
76. Malik, Legal Aspects of the Problem of Unlawful Seizure of Aircraft, 9 AM. J. INT'L L. 61
74. Art. 9.
75. Art. 10.
In September 1968, in the wake of increased incidents of air
hijacking and sabotage, the ICAO Assembly passed a resolution that
requested its Council to study measures to cope with the problem of
unlawful seizure of civil aircraft. ICAO's Legal Committee appointed
a subcommittee, which considered this issue at two meetings in 1969
and prepared a draft convention that required contracting states to
punish or extradite hijackers but left the choice between the two to
the State's discretion. The draft convention, entitled the Convention
for the Suppression of Unlawful Seizure of Aircraft, was adopted at a
diplomatic conference at The Hague in December 1970. The Hague
Convention is a significant advancement that establishes a strict legal
policy against hijacking and provides procedures to enforce the policy._________________________________
other nation that also may have a cause of action against the offender.
Additionally, the Tokyo Convention is marked by the specific grant
of police power to the aircraft commander74 and an immunity from
prosecution as a result of the commander's exercise of his power. 75
A careful analysis of the Convention reveals its inadequate
treatment of unlawful seizure of aircrafts. 76 The Convention failed to
declare hijacking a crime under international law. This omission
resulted from an express agreement to make no attempts to define
penal offenses, not even those which are obviously crimes under
national laws such as culpable homicide. 77 The offender may be taken
into custody by any contracting state and held for criminal proceeding or for extradition, but neither action is mandatory. 78 In fact, Article
16 makes it clear that the Convention does not create an obligation to
grant extradition.
To bring these broad powers into force requires acts which
jeopardize the safety, or good order and discipline of the craft. Consequently, the importance of the Tokyo Convention was to set the
legal foundation for the subsequent Hague and Montreal Conventions, which focused more directly on the problem of hijacking.
B. The Hague Convention (1970) 79
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The Montreal Convention (1971)"
80. On the universality principle, see the judgment of the Israel Supreme Court in
Eichmann v. Attorney General 36 I.L.R. 5 (1962).
81. J. BKIERLY, THE LAW OF NATIONS, 313 (6th ed. 1%3).
The international crime of piracy jure gentium is the most common example of this type of
violation. A pirate jure gentium is held to be hostis humani generis, and each and every State is
authorized to seize and punish him, in line with the universality principle. Article 19 of the 1958
Geneva Convention on the High Seas. Piracy jure gentium is pertinent not only to ships but also
to aircraft. Article 15 of the 1958 Geneva Convention on the High Seas. Does it cover hijacking?
To answer that question adequately, one should compare the constituent elements of the two
offenses of aircraft hijacking (defined in Article 1 of the Hague Convention) and piracy jure
gentium (denned in Article 15 ot the 1958 Geneva Convention on the High Seas). See notes 12
nd 16, supra.
82. Hague Convention, Art. 7.
83. 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of
International Civil Aviation. ICAO Doc. 8966.
In mid-1970, ICAO turned its attention to the sabotage of aircraft
and civil transport ground facilities. Offices of El Al and other airlines
in London and various other European capitals have been targets of
sabotage by Palestinians for several years. In early 1969, an El Al
airliner was attacked by Palestinian guerillas at the Zurich airport. In
New York, officials of the Soviet airline, Aeroflot, have been attacked
C.
In addition, Article 8 grants the signatory country the power to
use the Convention as an extradition treaty when no such treaty is in
effect at the time of the alleged incident. This provision should have
the desired effect of facilitating prosecution of the hijacker by returning him to the jurisdiction with the greatest interest in the matter.
Article 4 of the Convention is viewed as a major step towards
classifying hijacking as an international crime. In effect, the Convention could have based jurisdiction over the offense of aircraft hijacking simply and directly on the universality principle. Under the
principle, when certain crimes against international law are perpetrated, jurisdiction is vested in any State that can apprehend the
culprit, irrespective of the locus of the offense or the nationality of the
offender. 80 Jurisdiction is bestowed because of the special nature of
the crime not because of the mere physical presence of the criminal. 81
The Hague Convention further provides for prosecution of the
hijacker whenever he enters any treaty member's territory, regardless of whether that country had any connection with the specific
incident. 82 Consequently, the hijacker's choice of destination is
limited to the diminishing number of states that do not object to
harboring him.
102
INTERNATIONAL TERRORISM
103
84. See note 2, supra.
85. Early draft of the U.S.-Canadian sanctions proposal at Keesings Contemporary Archives, pp. 25026-25028, Jan. 1-8, 1972.
The Sanctions Convention (1973)**
The Sanctions Convention, a joint United States-Canadian
proposal, was the chief topic of discussion at the January 1973
Montreal meeting of the Legal Committee of the ICAO. The proposal
suggests the establishment of a commission to determine violations
of the Tokyo, Hague, and Montreal Conventions. If violations are
uncovered, the Commission will have the option to impose sanctions
against the States who refuse to prosecute or to extradite the hijackers. The United States-Canadian plan envisions as a sanction, a
partial or full air embargo against the offending nations. The legality
of such an action, however, has been the subject of extensive debate
at the meeting and the possibility of a general agreement on sanctions
seems distant.
Moreover, various British and American pilot associations are
D.
by militant Jewish Defense League members. The gravity of the
problem was highlighted by mid-air explosions aboard two European
airliners carrying passengers in early 1970. 84
At the request of eleven European nations, ICAO's Assembly
held an emergency meeting in Montreal, in June 1970, to consider the
need for adequate security measures at international airports; preventive security measures against hijackings, sabotage, and armed
attacks on civil aviation and its facilities; and the possibility of new
international treaties to deal with these problems. The Assembly
resolution urged member states to develop and implement detection
systems and procedures to use against hijackers and weapons, and to
formulate the appropriate steps to be performed by air and ground
personnel during unlawful seizure. It called upon member states to
develop and undertake surveillance measures to protect airports,
airport perimeters, and surrounding areas against armed attacks. The
Legal Committee prepared a draft Convention for Suppression of
Unlawful Acts Against Civil Aviation, which was adopted at a diplomatic conference in Montreal in September 1970. The Montreal
Convention prescribes severe penalties for attacks against the lives of
persons aboard aircraft in flight and for international acts such as
sabotage and bombings that seriously damage aircraft or endanger
safety in flight.
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89. In August 1961, following the first hijacking of a United States airliner
to Havana, the
late Guevara proposed that the United States and Cuba enter into a bilateral
agreement for the
return of both aircraft and hijacker. However, this offer evoked no respons
e from the United
States.
88. ICAO News Release, Sept. 1971; 10 INT'L LEGAL MAT. 1151 (1971).
86. ICAO Doc. No. 8364 (1963). The Convention was signed on behalf
of Congo (BrazzaviUe), German Federal Republic, Guatemala, Holy See, Indones
ia, Italy, Japan, Liberia,
Panama, Philippines, Republic of China, Republic of Upper Volta, Sweden
, United Kingdom,
United States of America, and Yugoslavia.
87. 64 DEP'T STATE BULL. 53 (1971); 10 INT'L LEGAL MAT. 133 (1971). Opened
for additional
signatures in London, Moscow, and Washington, Jan. 1, 1971.
The pace of ratification of the ICAO conventions may accelerate
in the near future as a result of heightened awareness of the risks of
hijacking. Some states, however, may refuse to accede to the conventions, insisting that extradition agreements can be reached only on a
bilateral basis. Cuba, for instance, has explicitly taken such a stand
and proclaimed its intention not to accede to the conventions. Cuba,
which was one of the first victims of air hijackings and which claims to
have suffered most from such acts, contends that any deterrence and
suppression of piracy must involve sea and land travel as well as
aerial communications. While refusing to accede to any international
convention dealing with air piracy alone, Cuba has offered to enter
into bilateral extradition treaties dealing with air and sea piracy "on
the basis of strict equality and reciprocity" with all countries. 89
In recent years, several countries besides Cuba have shown their
willingness to extradite or deport hijackers to the country of aircraft
Enforcing ICAO Conventions
The effectiveness of ICAO conventions in combating air piracy
clearly is dependent upon participation by all nations. The record of
accession to and ratification of the conventions has not been encouraging. Since 1963, only fifty-eight nations have signed and
forty-seven nations ratified the Tokyo Convention. 86 The Hague
Convention has received eighty signatures and eleven ratifications. 87
The Montreal Convention, signed by thirty-one countries, has yet
to be ratified by any country. 88 The fourth, the Sanction Convention,
is still in its debating stage, and an agreement on the sanctions seems
distant.
£.
calling for even stricter sanctions than those proposed by the United
States and Canada. They would include sanctions against countries
whose airports lack adequate police security and procedure for
screening the embarking passengers.
104
INTERNATIONAL TERRORISM
105
90. U.N. Charter, ch. VII, Art. 41.
registry, sometimes even in the absence of an extradition treaty
.
Extradition of hijackers may be expedited, at least for the time being,
through a combination of multilateral and bilateral treaties. Shoul
d
such treaties develop, significant strides will have been taken towar
d
obtaining the ultimate objective of the ICAO conventions the control of air piracy. The controversial and often political nature of
hijacking undoubtedly will cause some states to refuse to abide by the
provisions of the Hague Convention concerning extradition and
prosecution of hijackers. Consequently, the world community will
have to rely upon alternative means to control hijacking. One alternative was offered at a meeting of the ICAO Council in September 1970.
The United States proposed an international treaty under which all
States would undertake to suspend international civil air transport
services to and from any State that either detains a hijacked aircraf
t,
its passengers, or its crew, or fails to extradite or prosecute the
hijackers. This proposal was shelved by the Legal Committee in June
1971, mainly because of the controversy over ICAO's competence to
impose economic sanctions through a multilateral treaty.
The United Nations Charter empowers only the Security Council
to impose economic sanctions and only when it decides that a country's action constitutes a "serious threat to international peace and
security."90 Hijacking has not assumed such proportions yet, although it has contributed to the heightening of tensions in the Middl
e
East. It would be naive to expect the Security Council to impos
e
economic sanctions against a country simply to coerce it to abide by
the provisions of the international convention, however important
that convention may be.
It is also doubtful that a major power would use severence of aid
disbursements as a pressure tactic to force a state to extradite or
punish a hijacker. Such an alternative would be impractical or inadvisable. In the case of the United States, for example, the countries
that are the most frequent destinations of hijackers are not recipients
of aid. These are Syria and Algeria, two of the Arab countries that
have openly sympathized with Palestinian hijackers, and Cuba. Accordingly, unilateral action toward countries that do have substantial
aid and trade relations with the United States could have seriou
s
political and international repercussions. In the existing internationa
l
political situation, therefore, it is inconceivable that any nation, either
unilaterally or multilaterally through the United Nations, would or
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The practice of nonextradition of the political offender, on which
the Tokyo Convention is silent, is honored by the Hague Conven-
The Tokyo Convention does not require a state to prosecute or
'extradite a hijacker. The Hague Conference sought to fill this gap and
to include positive provisions on prosecution and extradition. It ran
into such difficulties, however, that the Hague provisions on these
items are not the optimum that theoretically could be achieved.
The Hague Convention rejects the cautious approach of the
Tokyo Convention in matters of jurisdiction. For instance, while the
Tokyo Convention obliges only the state of registration to establish its
jurisdiction over an alleged offender, the Hague Convention obliges a
state where the offender is present, whether or not it is the state of
registration, to take the measures necessary to establish jurisdiction if
they do not extradite him. If properly applied, therefore, the Hague
Convention should result in abolishing havens for hijackers.
The Hague Convention together with the Tokyo and Montreal
Conventions, constitute an important portion of the legal action
being taken to curb acts of violence against international civil aviation. In particular, the Hague Convention supplements the provisions on unlawful seizure of aircraft found in the Tokyo Convention.
Since the Tokyo Convention deals with the generality of offenses
committed on board aircrafts, it takes a somewhat passive approach
to the question of placing obligations on states. The Hague Convention, on the other hand, embodies a positive approach because it is
concerned with the specific offense of unlawful seizure of aircraft. In
this regard, it may be noted that, innovative as they were at the time
of their adoption in 1963, the hijacking provisions of the Tokyo
Convention are weakened by the Convention's passive approach to
offenses. Moreover, they are buried in provisions that lack real
strength because they cover the whole spectrum of offenses.
The practical solution to the problem of air piracy is not conceptually elusive. While air piracy, like all other domestic and international crimes, may not be subjected to total control, measures are
needed to deter it. Generally, hijacking must be recognized as a crime
punishable by all nations under either domestic or international law
and an international agreement is needed to provide a universal
warning to potential hijackers.
could impose economic sanctions against a country that is unwilling
to prosecute or extradite hijackers.
VI. CONCLUSION
106
INTERNATIONAL TERRORISM
107
91. N.Y. Times, Sept. 6, 1%9.
92. Lidsay, The U.S. is Moving on Tuw Fronts in Effort to Halt Sharp Increase in Plane Hijacking,
N.Y. Times, Sept. 6,1969. Discussing a worldwide agreement for extradition or punishment of
hijackers, the author stated that "[i]n a world split by deep ideological and political differences
where giving of political asylum is a long and respected tradition there are no doubts that any
such agreement will work."
There are at least three threshold objections which could render
the effort to achieve voluntary world-wide acceptance futile. The first
is based upon the state's cherished right to give immunities stemming either from diplomatic relations or from the valued concept of
political asylum. The second, and closely related objection, is the
determination of who will define the scope of political crimes. In
September 1969, Cuba published a decree stating that it might agree
to the extradition of boat and plane hijackers to their country of
origin.91 The decree expressly excluded "political refugees." On October 8, 1969, Cuba stated that it would handle each case separately
and would base extradition only on bilateral agreements, thus expressly excluding Cuban adherence to a voluntary multilateral
agreement.92 The problem of the determining political crimes on an
individual basis is exemplified by the hijacking of a Mexican plane to
Cuba by two Mexican students in June 1969. Cuba had been close to a
The Hague Convention was a useful prelude to the Montreal
Conference, since many political questions common to both were'
eliminated at The Hague, leaving the Montreal Conference free to
concentrate on the novel and difficult legal questions. Although the
crime of air piracy was defined in the Hague Convention, the crucial
question remains whether all nations will proclaim hijacking an international crime punishable everywhere with no exception for special immunity.
The obligation to extradite also is cautiously considered in the
Tokyo Convention, which stipulates that nothing in it should be
construed as creating such an obligation. The drafters of the Hague
Convention included a provision requiring consideration of the
Hague Convention as constituting an extradition treaty in respect to
the unlawful seizure of aircraft. This provision failed, however, when
yielding to the pressure of some of the developing African countries
and Asia, the Conference reluctantly accepted an alternative provision that gave Nations the option to consider the Convention as the
legal basis for extradition.
tion with the important qualification that a state refusing to extradite
the hijacker is required to submit the case to its competent authorities
for prosecution.
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93. Id.
94. Id.
95. National City Bank of New York v. Republic of China, 348 U.S. 356 (1955).
96. 420Pa. 134,140,215A.2d864,881 (Musmanno,J. dissenting), cert, denied, 385 U.S. 822
(1963).
97. 420 Pa. at 149-50, 215 A.2d at 892-93.
98. Under the Geneva Convention, terrorism is specifically prohibited, and most intentional acts of terrorism would seem covered by the "grave breach" provisions for which
universal jurisdiction is prescribed.
All relevant international instruments that prohibit terrorism
adopt the principle of universal jurisdiction over offenders with the
concomitant belief that these are offenses against mankind, which
cannot be obviated through purely unilateral activity. 98 The United
This Court's decision promotes the idea of a promiscuous, general
allowance of absolute sovereign immunity which could undermine the whole structure of international trade. . . Thesovereign
immunity doctrine ... is no longer a healthy manifestation of
society. It is, in fact, an excrescence on the body of the law, it
encourages irresponsibility to world order, it generates resentments and reprisals. Sovereign immunity is a stumbling block in
the path of good neighborly relations between nations, it is a sour
note in the symphony of international concord, it is a skeleton in
the parliament of congress, it encourages governments towards
chicanery, deception and dishonesty. Sovereign immunity is a
colossal effrontery, a brazen repudiation of international moral
principles, it is a shameless fraud. 97
Dissatisfaction with the obstacle that sovereignty has placed
upon the development of international law is not novel. Manifestations of the sovereignty problem have been dealt with domestically in
the United States by the Supreme Court's deference to the State
Department on questions of sovereign immunity. 95 Judge Musmanno, in his dissenting opinion in Chemical Natural Resources Inc. v.
Republic of Venezuela, 96 severely attacked the current treatment of the
sovereignty problem in the United States domestic courts:
The third, all-inclusive objection to the suggested multilateral
world agreement is also based upon the concept of sovereignty. The
nations of the world are opposed generally to the definition of crimes
in international terms.
bilateral agreement with Mexico providing for extradition of hijackers. 93 Nevertheless, Cuba refused to extradite the two Mexican students who claimed to be "political refugees," although Mexico stated
that they were not being charged with any political crime. 94
108
INTERNATIONAL TERRORISM
109
99. Ambassador C. Scranton addressing the U.N. Security Council on July 12,1976 in the
aftermath of Entebbe.
States has supported this principle strongly. For example, in the
aftermath of Entebbe, the government of Uganda condemned Israel
for what it termed "agression against Uganda." Israel has been
accused of violating the territorial sovereignty and integrity of
Uganda, of wantonly destroying sections of Entebbe Airport, and of
killing a number of Ugandan soldiers. Nevertheless, United States
Ambassador Scranton defended the military operation of Israel to
rescue the hostages. 99
It should not be forgotten that the Israeli operation in Uganda
would never have occurred had the hijacking of the Air France flight
from Athens not taken place. Israel's action in rescuing the hostages
necessarily involved a temporary breach of the territorial integrity of
Uganda. Normally, such a breach would be impermissible under the
Charter of the United Nations. There is, however, a well-established
right to use limited force for the protection of one's own nationals
from an imminent threat of injury or death when the state in whose
territory they are located is either unwilling or unable to protect them.
This right, emanating from the right to self-defense, is limited to such
use of force as is necessary and appropriate to protect threatened
nationals from injury.
The requirements of this right to protect nationals were clearly
met in the Entebbe case. Israel was warranted in believing that at the
time it acted, Israeli nationals were in imminent danger of execution
by the hijackers. Moreover, the actions necessary to release the Israeli
nationals or to prevent substantial loss of Israeli lives had not been
taken by the Government of Uganda, nor was there a reasonable
expectation that such actions would be taken. In fact, there was
substantial evidence that the Government of Uganda cooperated
with and aided the hijackers. The ease and success of the Israeli effort
to free the hostages further suggests that the Ugandan authorities
could have overpowered the hijackers and released the hostages if
they sincerely had desired to do so. The Israeli military action was
limited to the sole objective of extricating the passengers and crew
and terminated when this objective was accomplished. That Israel
might have secured the release of its nationals by complying with the
terrorists' demands does not alter the conclusion that the action was
within international principles. No state is required to yield control
over persons in lawful custody in its territory under criminal charges.
Moreover, it would be a self-defeating and dangerous policy to re-
1977J
SOUTHWESTERN UNIVERSITY LAW REVIEW
[Vol. 9
100. Foreign Minister Harts Dietrich Genscher of West Germany, when addressing the
U.N. General Assembly, said, "What is at stake is the protection of human beings, the
sovereignty of states, the safety of international traffic and an international order free from
violence."
For capitulation of the events that took place at the General Assembly on September 28,
1976. see The L.A. Herald Examiner, Sept. 28,1976, § A, at 1, col. 6.
lease prisoners, convicted in some cases of earlier acts of terrorism, in
order to accede to the demands of the terrorists.
Nevertheless, the realities of the present world situation preclude adoption of a "voluntary" world-wide agreement that would
proclaim hijacking an international crime. Consequently, the world
will be left in a dismal impasse unless a major diplomatic initiative is
launched against terrorist hijackings. 100
110
Ill
The recentrtess of the Act has precluded any comprehensive legal studies concerning the
implementation of the Act. This article, therefore, will focus upon the important controversial
aspects of the legislation, and, where possible, will apply empirical data which is starting to
emerge. Since the author is a foreigner, the article presents much background information on
the uniquely Swedish aspects in the passage and implementation of the reform. The social,
cultural, and institutional relationships which are unique to Sweden limit the application of
these provisions by our own legislators.
The author expresses gratitude to the Law Faculty of the University of Stockholm for
making this study possible. Special credit is due to the supervisor of the research. Harts
Thomstedt, Professor of Criminal Law, whose assistance in providing the author with contacts
and academic assistance throughout the year has been a great asset in preparing the manuscript. Also, the Cassel Foundation Grant and editing work with Folke Schmidt, Professor of
Law and editor of The Scandanavian Studies in Law has been helpful.
Although the author found all officials and professors unbelievably accessible, friendly,
and open, special thanks is extended to Sten Hecksher; to Marianne Hakanssen, Norman
Bishop, Per Collandier, Bo Claeson, and Wilhelm Karlstrom of the National Correctional
Administration; to Hertrik Tham and members of the Stockholm University Criminology
Department; to Professor living Jacks; to Gunnar Marnell; and to Per Jermsted and Karen
Bishop of the Ministry of Justice. Finally, the author especially appreciates the aid of the
Swedish Institute, the International Graduate School of Stockholm University, Sonja Helgreen, and Professor Wilhelm Paues.
**B.A. George Washington University, 1969; J.D. George Washington University, 1972;
LL.M. George Washington University, 1973; Stockholm University, Sweden, graduate legal
diploma with distinction; recipient Cassel Foundation Grant; Vrije University, Brussels, Belgium, graduate legal diploma on international law (cum laude), 1976; of counsel to Nordic Law
Consultants; associate, Glad, Turtle It White, San Francisco, member of the California, Oregon,
and Idaho ban.
A. Legislative and Administrative Sources ......................................................isi
B. General Provisions .................................................................................133K
C. Specific Provisions ..................................................................................13f)\
1. Inmate Councils .................................................................................134 '*
2. Classification and Treatment Planning .................................................Ap£
Preface and Acknowledgements ............................................................................111
The Swedish Criminal Justice System ............................................................112
I.
A. Criminal Procedure .................................................................................112
B. Sentencing ............................................................................................114
C. Administration of Swedish Prisons and Characteristics of
Swedish Prisons .....................................................................................116
D. Resolution of Judicial Conflicts .................................................................119
Swedish Penal History .................................................................................126
II.
A. Early History .........................................................................................12* "
B. Recent History .....................................................................................i,a27,
C. Legislative Background to the Reform ........................................................130> *
in. The Reform ................................................................................................133
TABLE OF CONTENTS
Bruce Zagaris'
,»*•
Penal Reform in Sweden*
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