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Hijacking — An International Crime
by K.C. Joshi
LL.M. (Lucknow), Lecturer in Law, Faculty of Law, University of Kurukshetra, Kurukshetra (Haryana)

Cite as : (1971) 1 SCC (Jour) 36

The eternal pursuit of man has been to lead peaceful life. This is possible only if he believes and acts in the principle of "live and let live". This is equally good for States as they are the organisations of human beings. Like Municipal Law, International Law also is a body of rules followed by the States to regulate their actions inter se1

Various attempts have been made to recognise and establish the authority of law. United Nations Charter recognises the need for rule of law on an international plane and stipulates one of the purposes of the Organisation to preserve "principles of Justice and International Law".2 The United Nations also endeavours to harmonise the relations of the states for avoiding those situations which bring sorrow to the mankind. For this purpose, the organisation also enters into agreements with the specialised agencies established by Inter-governmental agreements and having wide international responsibilities.3 For checking the international delinquencies and international delinquents, the members of the United Nations are committed.4 Thus the United Nations and members of the United Nations jointly and severely are committed to respect justice and International Law. But, it appears that Pakistan is deliberately violating the International Law and the Charter of the U. N. although she is a member of the U. N.5 This is manifested in her support to two international delinquents who hijacked the Indian aircraft to Pakistan.

THE INCIDENT6

On January 30, 1971, an Indian Air Lines Fokker Friendship aircraft, with twenty-eight passengers and a crew of four on board was hijacked. The plane, which was on a suttle service from Srinagar to Jammu took a sudden turn towards Pakistan border just when it should have started to come into land. Minutes before the plane was to land, the Jammu Control Tower picked up a message from the pilot which said he was being skyjacked. It landed at Lahore (West Pakistan) at 1.25 p.m.

The first official message from the Civil Aviation of W. Pakistan was received by the Director-General at about 6.00 p.m. It said that all are safe but—"the hijackers are still in the aircraft and refuse to come out. No sooner the hijackers leave the aircraft, the crew and passengers will leave back for destination to India wherever desired."

However, in spite of eagerness of the Government of India for sending another aircraft to fetch the passengers and crew, the Pakistan Government delayed the return deliberately and at last sent the passengers and crew by road. The aircraft, two other passengers (who hijacked)7 and the cargo were not returned. Meanwhile political asylum was granted to these hijackers and certain conditions purported to have been put by the hijackers were also conveyed to India. These conditions were: (1) the relatives of the hijackers should not be harassed and (2) 36 Al-Fatah men arrested in Kashmir during last few days be released. Non-acceptance of these conditions was threatened with the warning of blowing up the aircraft.

It may be pertinent to mention that the first condition purported to have been put by the hijackers was not at all material. India is governed by rule of law and all citizens and aliens are protected by Constitution,8 the supreme law of the land. The supremacy of law and impartiality of courts has also been accepted by British Courts.9 So far as the second condition is concerned, it appears that Pakistan who is instigating subversive activities in India was behind this move.10 Therefore, this amounts to intervention11 in the affairs of India. Pakistan being the member of the United Nations cannot interfere in the domestic affairs of India without violating the Charter of the United Nations.12 Again, if there are any differences and disputes, they are to be settled in accordance with the provisions of the Charter.13 Hijacking14 and Spying15 are not recognised means, both being against the rules of International Law. This is more so in view of the Tashkent Declaration16 under which both States (India and Pakistan) had agreed to exert all efforts to create friendly relations as envisaged in the U. N. Charter. This incident cannot be categorised as a friendly act.

The hijacked aircraft was blown up by the two hijackers at Lahore airport at 8.35 p. m. I.S.T.; the same evening the Indian Government handed over the aide memoire to the Pakistan High Commissioner in India and Foreign Ministry at Islamabad.17

VIOLATION OF INTERNATIONAL LAW

Law of Nations for International Law includes treaties.18 Treaty includes convention.19 Therefore, conventions are part of International Law. "Several law-making" conventions have been concluded in regard to matters of "International Criminal Law".20 In 1963, a convention known as the Tokyo Convention on offences and other Acts committed on Board Aircraft was signed to deal with the questions of jurisdiction. This convention also deals with hijacking. Article 11 of the Convention declares actual or attempted hijacking of aircraft as an act of quasi-piracy committed against the community of Nations. The States parties are obliged to take measures for the restoration of control to the lawful owner. Pakistan has committed a breach of International Law both by granting asylum to the hijackers21 as well as by not taking measures to restore the control of the hijacked aircraft. Air navigation is of vital importance and freedom and security in this already risky transport is of prime importance for the States. Various attempts have been made in the past to regulate air navigation.22 The necessity for an international agency to deal with this important development was felt and the 1919 Convention established an International Commission for Air Navigation as a permanent Commission under the directions of the League of Nations. This was superseded by the International Civil Aviation Organisation created by the International Civil Aviation Convention of 1944. This specialised agency having wide international responsibilities subsequently became a specialised agency of the U. N.23 Since then the International Civil Aviation Organisation is working in collaboration with U. N. This organisation became alive to the problem of hijacking "when airlines and private owners of aircraft in the Western Hemisphere began to be plagued by an increasing incidence of hijacking of planes".24 The Tokyo Convention of September 14, 1963, is the first attempt to check this problem.25 As already pointed out, this convention deals with hijacking inter alia and the increasing incidence of hijacking in the Middle East required a comprehensive international action.

CONCENTRATED EFFORTS

The International Civil Aviation Organisation (I. C. A. O.), asked its Legal Committee to prepare a draft treaty seeking to deal with hijacking. The Committee prepared the draft and also recommended modification of the Warsaw Convention. The 27 member I. C. A. O. Council also called a Diplomatic Conference in December, 1970, to adopt an agreement to deter acts of violence or intimidation to seize control of civilian aircraft in flight.26

The General Assembly of the United Nations also referred the matter to its Sixth Committee27 and on November 25, 1970, the Assembly adopted by 105 votes in favour to none against, with 8 abstentions, the draft resolution recommended by the Sixth Committee regarding aerial hijacking.28

GIST OF THE RESOLUTION

The General Assembly condemns without exception all acts of aerial hijacking or other interferences with civil air travel. It calls upon the States to take all appropriate measures to deter, prevent and suppress such acts within their jurisdiction and for the extradition of such persons for their prosecution and punishment. The State in whose territory the hijacked aircraft is landed is obliged to look after the passengers and crew and provide for their continuous journey. The State is also under an obligation to return the aircraft and its cargo to the lawful owner. The resolution also calls upon the States to take collective and severe action in conformity with the U.N. Charter and in co-operation with the U.N. and I. C. A. O. to ensure that aircraft engaged in Civil Aviation is not used as a means of extorting advantage of any kind.

Pakistan is a party to the resolution and has voted for it in the Legal Committee as well as in the General Assembly. She, therefore, cannot shirk responsibility from it.29

REPARATION FOR DELINQUENCY

The act of hijacking is a violation of Conventional Law,30 U.N. Charter and the Resolution of the U. N.31 and the Conventions of the I. C. A. O. This act is termed as quasi-piracy by the Tokyo Convention of 1963 and the hijackers have become the subjects of the Conventional Rules of International Criminal Law.32 Therefore, hijacking of Indian aircraft, its destruction in Pakistan and failure of Pakistan Government to prevent the destruction amounts to International Delinquency by Pakistan.33 The principal legal consequences of an International Delinquency are reparation of the moral and material wrong done.34 It is settled rule of International Law that a State becomes responsible if it facilitates the commission of the ultra vires act or in violating an independent duty of International Law.35 In the present context Pakistan both facilitated the commission of crime, by granting asylum to the delinquents and by not prohibiting the destruction of cargo, mail and the aircraft which was a legal duty imposed on Pakistan by the U. N. Resolution and the Tokyo Convention. To contend the inability in protecting the aircraft, cargo and mail is a lame excuse. Not only this, Pakistan Government cannot harbour the two hijackers without violating International Law.

The quantum of compensation to be paid by a State for International Delinquencies must be adequate. This has been settled by the Permanent Court of International Justice.

It is a principle of International Law that the breach of an International Engagement36 involves an obligation to make reparation in an adequate form.37

Therefore, Pakistan must pay the adequate compensation to India as demanded alongwith a formal apology.

1. "Law is a body of rules for human conduct within a community which by common consent of this community shall be enforced by external power"-Oppenheim, L. (1) International Law: A Treatise, 10 (8th Edn., 1955). Return to Text
2. Article 1(1) of the U. N. Charter. Return to Text
3. Articles 57 and 63 of the Charter. The Economic and Social Council is authorised to enter into agreement. This agreement is subject to the approval of the General Assembly. Return to Text
4. The peoples of the United Nations are "determined to establish conditions under which justice and respect for the obligations arising from treaties and other sources of International Law can be maintained".-Preamble to the U. N. Charter. Return to Text
5. The U. N. is bound to see the observance of the Charter principles by all. Articles 2(b) of U. N. Charter. Return to Text
6. Based on the Newspaper Reports: The Sunday Standard, New Delhi, January 31, 1971 and the Indian Express, New Delhi, February 1/3, 1971. Return to Text
7. Mexico and Cuba had entered into an agreement under which Cuba will return persons charged with hijacking of Mexican registered aircraft to Mexico for prosecution-See Glahn, G. Von: Law Among Nations, 330 (Second Ed., 1970). Return to Text
8. There are various provisions. To quote a few would suffice. Article 14 extends equality before law and equal protection of law, Article 20 prohibits prosecution by State except for any omission or commission which is an offence at the time of the act and Article 22 protects the liberty. The Courts-High Courts and the Supreme Court jealously watch these freedoms. Return to Text
9. Government of India and Mubark Ali Ahmed, (1952) 1 All ER 1060. In this case one Mubark Ali after committing forgery escaped to Pakistan and Pakistan did not return him to India. Subsequently, he left for England where proceedings for his extradition to India were initiated by Government of India. The plea of the offender was that he will not get a fair trial in India. The Court of Kings Bench did not accept the contention and also paid a tribute to judicial impartiality in India. Return to Text
10. The First Secretary of Pakistan Embassy in New Delhi was declared by India a persona non grata when it was proved that he was the master mind behind this espionage gang known as Al-Fatah. Return to Text
11. "Intervention is dictatorial interference by a State in the affairs of another State for the purpose of maintaining or altering the actual condition of things."-Oppenheim, L.: International Law: A Treatise (1) 305 (1955). Return to Text
12. Article 2(7) of the Charter. Return to Text
13. Preamble, Articles 1(1), 2(3)(4), 33(1) of the Charter. Return to Text
14. Hijacking is quasi-piracy and therefore, an International Crime. See Starke, G.J.: Introduction to International Law, 64 (6th Ed.). Return to Text
15. A State Can never protect a spy, "since it (State) cannot officially confess to having commissioned a spy."-(1) Oppenheim, L.: International Law: A Treatise, 862 (8th Ed.). Return to Text
16. Signed by the Prime Minster of India and President of Pakistan under the good offices of U. S. S. R. on January 10, 1966 at Tashkent. Return to Text
17. The aide memoire emphasised: "It is the responsibility of the Government of Pakistan, in accordance with the established international usage and practice, to ensure the immediate and safe return of the skyjacked aircraft together with the baggage, cargo and mail. The Indian Express, New Delhi, February 3, 1971. Return to Text
18. See Oppenheim, L.: (1) International Law : A Treatise, 4 (8th Ed.). Return to Text
19. Starke, G.J.: Introduction to International Law, 340 (6th Ed.). Return to Text
20. Ibid. at 64. Return to Text
21. "(P)ersons Hijacking" an aircraft, have become subjects of conventional rules of International Criminal Law in much the same way as pirates jure gentium under customary rules".-Starke, G.J., supra at 64. In Municipal Law hijacking is piracy. President Kennedy signed a Bill in 1961 declaring hijacking of aircraft an act of piracy, with penalties for the offence ranging up to death. See Glahn, G. Von: Law Among Nations, 329 (2nd Ed., 1970). Return to Text
22. e. g. The Convention for the Regulation of Aerial Navigation, 1919, with amending Protocols. The Convention on International Civil Aviation and accompanying Agreements, the Convention on Commercial Aviation, 1928, Warsaw Convention , 1929, the Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface, 1952, the Hague Convention, 1955 and the Tokyo Convention, 1963, ratified in 1969. Return to Text
23. Under Articles 57 and 63 of the U. N. Charter. Return to Text
24. Glahn, G. Von: Law Among Nations, 329 (2nd Ed., 1970). Return to Text
25. This Convention was signed by the representatives of 16 States under the auspices of International Civil Aviation Organisation (hereinafter referred to as I. C. A. O.) on September 14, 1963 and came into force on December 4, 1969, on ratification by the requisite number of States. Return to Text
26. See 64 American Journal of International Law, 312 (1970). Return to Text
27. Legal Committee of the General Assembly. Return to Text
28. Resolution No. A/RES/2745(XXV). See U. N. Monthly Chronicle Vol. VII, December 11, 1970. This was subsequently adopted. The Indian Express, New Delhi, February 2, 1971. Return to Text
29. Various conventions on aerial navigation prescribe for freedom of air navigation to aircraft and the 1963 Tokyo Convention prescribes hijacking. Return to Text
30. A resolution carried by an overwhelming majority of members is taken in practice as binding international obligation on those members. See Glahn, G. Von., op. sit. at 141. Starke, G.J., op. sit. at 51. Return to Text
31. Resolution of November, 1970. Return to Text
32. Starke, G.J., op. sit. at 64. Return to Text
33. For International Delinquency. See Oppenheim, L., op. sit. At 338-39; Starke, G.J., op. sit. at 262; Kelsen, Hans. Principles of International Law, 199-200 (2nd Edn., 1966); Briggs H.W. The Law of Nations: Cases, Documents and Notes, 601-742 (2nd Edn., 1952). Return to Text
34. Oppenheim, op. sit. At 352. Return to Text
35. Starke, op. sit. at 265. Return to Text
36. The term international engagement includes any duty under International Law: Oppenheim, op. sit., at 352, f.n. Return to Text
37. Chair zow Factory (Indemnity) Case P.C.I.J. (1928) Ser. A No. 1721. Return to Text