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Mainstream, Vol XLVIII, No 12, March 13, 2010

Hijacking—Issues and Perspectives

Friday 19 March 2010, by Latika Nath

The word hijacking brings to mind horrific images and disturbing thoughts about air travel safety. Hijacking is now looked upon as an act of terrorism. Hijacking entered a new phase on September 9, 2001. This signified an attitudinal change in terror tactics in the world.

The first recorded case of hijacking of a civilian airliner occurred in 1948. Thereafter, it has been used to express human rights violations, dissidence and to highlight national liberation struggles. During the 1960s and 1970s there were a large number of such incidents. In the next decade there was a significant fall in such incidents as many states took steps to settle their domestic issues. However, bombing of airports, demands for release of jailed dissidents, ransom, murder and mayhem continued in many regions of the world.

The incident of 9/11 not only posed disastrous consequences for the airline industry, but also demonstrated that a civilian flight could be hijacked and diverted to targets of sensitive installations. In the bombing of the Twin Towers in New York about 5000 lives were lost.

At the international level the United Nations enacted four Conventions and a Protocol to deal with hijacking and other unlawful acts threatening air safety. India also passed three enabling Acts in order to implement these provisions at the domestic level: (i) the Tokyo Convention Act, (ii) the Anti Hijacking Act, (iii) the Suppression of Unlawful Acts against the Safety of Civil Aviation Act. The UN has also brought about a Convention on Marking of Plastic Explosives for the Purpose of Detection.

Most countries of the world deal with hijacking in accordance with their national interests. India does not appear to have a policy to deal with it even though many instances have occurred in the past with terrible consequences. In 1971 a flight was hijacked to Pakistan. In exchange for the passengers and crew thirtysix National Liberation Front workers were said to have been released. Later the aircraft was blown up. In protest India banned overflights of Pakistani civilian and military aircraft. Pakistan took up the matter with the ICAO Council. India challenged the competence of the ICAO Council to deal with such matters before the ICJ. Later the matter was resolved bilaterally.

The Kandahar hijack forced the government to accede to the demands of the hijackers and release three hard-core terrorists. In another worst airline disaster all 329 passengers on board an Air India flight were killed. Yet we are still debating issues and implications relating to hijacing.

Some countries have enunciated policies to deal with such incidents. Israel has a policy of ‘no negotiation with hijackers’ that is well known to all its citizens as it will not concede to the demands of the hijackers. In a daring operation Israeli forces rescued the passengers and crew of a hijacked plane at Entebbe. The UN through mandatory sanctions forced Libya to give up its nationals to stand trial for the bombing of two American aircraft. Some states provide safe havens to the hijackers and they neither try nor extradite the hijackers, often granting them asylum. Hijacking is a strategy which serves to obfuscate state-sponsored terrorism and non-state actors.

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In order to successfully combat hijacking it is necessary to put in place a comprehensive legal framework to deal with hijacking. Then it is necessary to criminalise it in the various legislations of state law. Stringent provision to implement and penalise it requires a precise legal definition. Although some attempts have been made in the light of the 9/11 hijacking, it does have elements of terrorism; therefore legal parameters need to be enunciated.

Some countries have brought about changes in their anti-hijacking policy. The USA enacted the PATRIOT Act and the UK the Prevention of Terrorism Act. As aerial piracy scales new heights, India proposes to amend the Anti-Hijacking Act. Provisions regarding procedure, protection and implementation are being discussed. In order to strengthen the rule of law severe penalties and punishments—including death penalty—have been proposed. Other measures contemplated include immobilising a hijacked plane and shooting down a civilian aircraft if it is apprehended that it is on course to destroy strategic and vital structures. Extreme situations necessitate extreme measures. This by itself is controversial. Even a country like Germany, which has dealt with terrorism at its Olympic Games, refused to accept such a provision as it considered it unconstitutional. Stringent provisions, as are spelt out, leave little scope for judicial review. Poland, Russia and the US are also considering its implications. Stiff penalties would have a deterrent effect on the offence of hijacking.

However, divergent views have been expressed by states regarding prosecution and punishment of offenders, especially political offenders. Some countries grant asylum to hijackers, while in others they are welcomed as national heroes. But, states appear unwilling to deal with these matters. It would be appropriate to mention a Canadian proposal of the 1970s that dealt with similar issues. One such proposal to combat hijacking was to insert a clause (to deal with sanctions/hijacking) in bilateral airline agreements. A trial of the hijackers by the International Criminal Court would be acceptable to many countries. As the issues are still being discussed and debated, the international community is yet to create a legal regime to prevent and combat hijacking.

Dr Lathika Nath is a Reader, Department of Law, University Law College, Bangalore University, Bangalore.

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