A series of hijacking incidents in the 1950s and 60s brought hijacking and air privacy centre stage. Differences in criminal sanctions and laws, cause, jurisdictions became apparent. The start of the millennium saw the infamous 9/11 attacks.
Historically, maritime privacy was one of the few crimes that all States could punish regardless of where the action was taken or whose citizens were affected. In the last number of decades, the notion of air piracy has evolved, and the focus has evolved on terrorism, effectively, politically motivated violent action.
The ICAO drafted and promoted the Convention on Offences and Certain Other Acts Committed onboard Aircraft, the Tokyo Convention (1963). This was followed by the Convention for the Suppression of the Unlawful Seizure of Aircraft, so-called Hague Convention. The Convention for Suppression of Unlawful Acts against Safety of Civil Aviation, the 1971 Montréal Convention followed. There are some further accords dealing with airport security and explosives in the late 1980s and early 1990s.
The Chicago Convention Appendix requires states to apply measures designed to safeguard against acts of unlawful interference with international civil aviation to domestic operations to the extent practicable. They do not have any internal legal effects unless States give effect to it.
The state of registration of an aircraft generally has jurisdiction in relation to offences committed aboard. Aviation crimes follow the traditional maritime principle that the state of registration has jurisdiction.
The Conventions provide that the State in which a suspected offender is present has the primarily position in making a decision as to whether initiate commercial proceedings or have the accused transferred to another State that has jurisdiction, for example, the State of registration. The State of registration need not be the State in which the aircraft departed or landed. The State of landing may claim jurisdiction.
At common law, piracy is a subject of general jurisdiction internationally, by which all States could take action against it. The principle is not fully implemented in aviation treaty. However, something akin as near universal jurisdiction exists in practice in relation to some of the more serious crime, in particular hijacking and international terrorism.
The Tokyo Convention came into effect at the end of 1960s. It has since been ratified by nearly all States in the world. The treaty deals with offences that endanger aircraft safety and good order and jeopardise safety and order while in flight.
The pilot as commander of the aircraft is given powers to maintain and restore order. It creates a number of internationally recognised crimes and applies to acts whether or not they are offences under the laws of the relevant state. It covers acts which might jeopardise the safety of an aircraft or persons or property therein or jeopardise good order and discipline. The offences are strict liability offences. They may therefore apply regardless of intent on the part of the person concerned.
A state may use the powers and jurisdiction in the Tokyo Convention to implement its own domestic offences in the area. The Convention effectively, provides for z minimum range of offences which may be supplemented by States.
The Convention applies to offences committed by or acts done by a person onboard any aircraft registered in a contracting State while the aircraft is on flight on the surface of the high seas or any other area outside the territory of any State. It applies to internal flights. It applies from commencement of take-off to termination of landing.
Under the Convention, the state of registration has primary jurisdiction over offences taking place onboard. However any state party to the Convention may exercise jurisdiction. It may intercept an aircraft in flight to exercise jurisdiction when the offence has effect in the state’s territory or is undertaken by or against a national of the state or jeopardises the state’s security, breaches their air safety navigations or where such jurisdiction is necessary in order to fulfil certain obligations of the state.
State parties may take all appropriate measures to restore control of the aircraft to its lawful commander or preserve the commander’s control. Where an aircraft lands in a state other than the state of registration, the state in which it lands must permit the commander disembark any persons whom he has reasonable grounds for believing has committed or is about to commit an offence onboard the aircraft.
The commander may take such persons into the custody and deliver them to the authorities where he has reasonable grounds for believing that they have committed onboard an aircraft a serious offence under the penal laws of the State of registration.
The state of landing must accept the person into custody even if the matter is not an offence under its domestic law and must notify the state of registration as well as the states of the persons detained or other interested persons, who should be appraised of the position. States who may exercise jurisdiction over the person detained must notify accordingly. The state of landing has concurrent jurisdiction with the other States.
Offences which have taken place onboard are deemed to be committed in the state of registration as well as the place where they have occurred. The Treaty does not by itself oblige the parties to extradite offenders.
States are not required to prosecute or extradite offenders where the offence is political, undertaken for a political purpose. The commander must furnish the authorities to whom the suspected offender is delivered with evidence and information under which the law under the law of the state of registration which are in his possession.
The commander and crew may restrain and disembark passengers whom they reasonably believe to have committed or be about to commit an offence. They may require the assistance of other crewmembers and may request, passengers to assist to restrain offenders or potential offenders.
The convention provides immunity for the commander and other persons acting at his behest including crew and passengers to suppress offences. The owner of the aircraft and airline are similarly immunised and are not held responsible in proceedings on account of treatment undergone by the person against whom the actions were taken, provided that the actions are taken as a result of the commander’s reasonable belief of a position of actual or impending threat.
Because of the above weaknesses (no extradition obligation and political exception) the Hague Convention sought to reduce the phenomenon whereby the planes were hijacked and brought to States presumed to be sympathetic to the political objects of the hijackers.
The Hague Convention provides that it is an offence for a person onboard an aircraft to either through threat or use of force or intimidation to seize or exercise control of an aircraft or to attempt to do so in flight. Accomplices are equally liable. States must subject hijacking to severe penalties on their national law.
States must notify ICAO of any hijackings that have taken place and measures taken in respect of them, against the perpetrators. The Convention applies only if the place of take-off or the place of landing of the aircraft on which the hijacking took place is situated outside the territory of the state of registration. Treaty applies to domestic and international flight.
States must assume jurisdiction for a hijacking offence where it takes place onboard an aircraft registered in its territory or where the aircraft in which the offence occurred lands in its territory and the offender is still on board or where the offence is committed on an aircraft leased without crew to a lessee who has a principal place of business or permanent residence in the State.
Where an offender is present in the territory of the state, and it does not extradite the person under the Convention, or any of the above states, it must apprehend the hijackers. They may decide to take the individual into custody where this is necessary to enable criminal or extradition proceeding to be taken. If the offender is not extradited, the state must without exception whether or not the offence was committed in its territory, submit the case to the competent authority for prosecution.
The Convention provides that hijacking is extraditable and must be included in extradition treaties between parties to the Convention. Where no such treaty is in place and it is required for extradition under domestic law, the Convention may serve as the legal basis for extradition. Extradition remains subject to conditions of the relevant treaty and other conditions provided by law.
The Hague Convention does not have political exception of the Tokyo Convention, but nonetheless domestic extradition rules may inhibit extradition. Domestic laws may provide a political exception which might potentially prevent extradition under the treaty or under an extradition treaty.
State may use their internal rules to excuse itself from man extradition request even if the State seeking extradition is willing to prosecute the offender. There is no mechanism for dispute settlement other than an arbitration procedure which is not mandatory.
The Air Navigation and Transport Act 1973 gave effect to the Tokyo Convention and the Hague Convention in relation to hijacking and offences on aircraft. Any act or offence which if it took place within the State would constitute an offence, is equally an offence if it takes place on an Irish controlled aircraft. An Irish controlled aircraft is one registered in the State or satisfies certain requirements or is registered in another state and let or hired and would be registered in the State but for certain conditions.
The commander of an aircraft has certain powers of arrest and restraint in respect of persons committing an offence or jeopardizing the safety of aircraft, persons or property, good order or discipline. Reasonable measures including restraint may be taken to protect safety, good order, and discipline or to enable the person to be delivered to An Garda Síochána.
The commander may authorize the assistance of members of the crew and request the assistance of other persons on the aircraft. Anyone on board may, with or without being ordered or requested, take reasonable measures which are immediately necessary to protect the safety of aircraft and persons or property in them. The restraint is not to continue beyond the time when the flight ceases and the persons are delivered to An Garda Síochána.
The commander of the aircraft must as soon as possible notify the appropriate authorities that persons have been placed under restraint and the reasons for such restraint.
The commander of an aircraft who has reasonable grounds for believing that a person has committed or is about to commit an offense or may jeopardize the aircraft whether or not it is an offence or affect safety of persons or good order, may order the person to disembark.
The commander of the aircraft must notify the appropriate authority that the person has disembarked. He has powers to deliver the person to An Garda Síochána. The commander must furnish information and evidence of the act concerned.
The commander, members of the crew, or passengers are not liable for conviction or damages in respect of actions taken pursuant to rights under the legislation.
The legislation creates the offence of unlawful seizure of an aircraft. Provision is made for where such a person can be tried and liability of Irish citizens for trial for such acts. Provision is made for the application of the extradition legislation to persons delivered to An Garda Síochána under the legislation.
The legislation is not to be interpreted as authorizing or requiring the commander of an aircraft or other person to take action in relation to an offence punishable under laws of a political nature or in respect of an offence based on racial or religious discrimination, unless the safety of the aircraft or persons or property on board is endangered by reason of such offences. The Air Navigation and Transport Act 1975 provides that it is an offence
The Montréal Convention 1971 widens the scope of crimes which the States agree to make subject to the severe penalties. The Convention criminalises any act or attempted act of violence against a person on board an aircraft, in flight, if it is likely to endanger the safety of the aircraft. This includes placing of explosives, sabotage, of the aircraft, ground facilities, navigation, or other actions which facilitates, which compromise the aircraft safety.
The Air Navigation and Transport Act 1988 contained provisions to promote security and safety of aviation. The owner and controller of every aerodrome and airport is obliged to comply with requirements in relation to public order and security and the safety of all person and aircraft using it. The Minister may make directions as to the standards of security and safety required.
An operator of an aerodrome must report to the Minister in relation to measures to be taken. The Minister may revoke, cancel, or suspend the license or authorization, where the relevant security and safety requirements have not been taken. He may prohibit landing or departure from the aerodrome or may impose certain conditions, where the interests of public order, safety, or security so requires.
Operators of aerodromes and airports must maintain a policy of insurance at all times. It must insure the owner or occupier against liability in respect of loss or damage to persons.
There are prohibitions on persons having dangerous goods including firearms, explosives, dangerous articles, or articles capable of being adopted for injuring or incapacitating a person or damaging property, without lawful authority in an aerodrome or air navigation installation which does not form part of the aerodrome.
The 1988 legislation adopted and made law the 1975 protocol to the Warsaw Convention. It also made provision in relation to the 1984 protocols to the Chicago Convention.
The Department of Transport (powers later transferred) is given powers to detain any aircraft for securing compliance with legislation or with convention.
It is an offence to give a false alarm in relation to the operation of an aircraft, aerodrome, or installation. It is an offence to impersonate an authorised officer.
It is an offence for any person on board an aircraft to
- commit an act of violence which is likely to endanger safety,
- destroy an aircraft in service,
- place any device or substance likely to destroy it, to interfere with the operation of any air navigation facility,
- to communicate false information about the communication and dangers likely to endanger safety of an aircraft, t
- perform any act of violence against a person at an aerodrome, to destroy or damage facilities.
A person aboard an aircraft who engages in behavior which is likely to cause serious offence or annoyance to any person at any time after being requested by the crew to desist, is guilty of an offence. A person on an aircraft who engages in threatening,, abusive, or insulting behavior including by gesture with intent to cause breach of the peace is guilty of an offence.
1988 Montréal Protocol increased the list of aviation crimes including attacks on aircrafts and airports involving aviation. A new Montréal Treaty governing plastic explosives was signed in 1991sought to meet the developments in plastic explosives.
Following the 9/11 attacks the ICAO reviewed existing aviation crime provisions. New instruments were signed in Beijing in 2010 which seek to replace the Montréal Convention and Protocols and to amend the Hague Convention. They seek to increase aviation related offences covering use of a civil aircraft, cause death, injury, using aircraft to deliver weapons.
It provides offences of transporting dangerous materials including explosives, biological, chemical, nuclear weapons. None of the offences may be considered political. The relevant instruments have not yet received the requisite number of ratifications to take force. They do not provide for any further provision for prosecution.