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Critical analysis of The Hague Convention with reference to India

The word Hijack was first used in 1923, in the meaning defined as ‘to steal by stopping a vehicle on the highway’.[1] Nowadays the term Hijack is widely used in terms of unlawful seizure of Airplanes.

The offense of Hijacking has been described in The Anti-hijacking Act of 2016 as:
Whoever unlawfully and intentionally seizes or exercises control of an aircraft in service, by force or threat thereof, or by coercion, or by any other form of intimidation, or by any technological means, commits the offense of hijacking.[2]

Hijacking has often been used as a tool for blackmailing nations to relent to a particular demand which generally relates to the release of prisoners or terrorists. The hijacking of a Plane directly points towards inefficiency of the security measures and of the laws that are meant to curb this menace.

In this project, The Hague Convention will be critically analyzed to find where the loopholes are and also where the Law needs to be strengthened. Also, we will deal with some Plane Hijacking cases in order to delve into the deeper part as to why the planes are generally hijacked and how these cases were dealt with by the authorities.

Critical analysis of The Hague convention
The Hague Convention, formally called the Convention for the Suppression of Unlawful Seizure of Aircraft, adopted by the International Conference on Air Law at The Hague on 16 December 1970, is considered as the base of Anti-Hijacking Laws in India. India ratified The Hague Convention on November 12, 1982.[3]

Criticisms
  • Does not take into account the possibility of remote Hijack:
Article 1 of the Hague Convention states that,
Any person who onboard an aircraft in flight:
  1. Unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or exercises control of, that aircraft, or attempts to perform any such act, or
  2. Is an accomplice of the person who performs or attempts to perform any such act commits an offense.

This article awfully ignores the role of people and fails to make them liable, who commit the act of hijacking without being on board any aircraft, for example, Hijacking by interfering with the radio systems of the aircraft while being on the ground, causing the aircraft to lose contact with the ground stations, ultimately exercising control over the aircraft.
  • Limits the offense only to the flight period:
    Further, this article limits the period the commission of offense during the flight period, which is defined in Article 3 sub-clause 1, of The Hague Convention as,
    For the purposes of this Convention, an aircraft is considered to be in flight at any time from the moment when all its external doors are closed following embarkation until the moment when any such door is opened for disembarkation. In the case of a forced landing, the flight shall be deemed to continue until the competent authorities take over the responsibility for the aircraft and for persons and property on board.

    Article 1, also ignores the possibility of the plane being hijacked during embarkation and disembarkation, as happened in 1986, Pan Am Flight 73 hijack, which became famous due to the bravery shown by Indian braveheart, flight attendant, Neerja Bhanot, also called the  Heroine Of The Hijack.

It was just before 06:00 and Pan Am Flight 73, on a stopover in Karachi from Mumbai, was scheduled to continue on to Frankfurt, en route to New York. There were 14 flight attendants on board, 12 of whom were preparing for take-off.

Outside, four gunmen had sped on to the tarmac in a van disguised as airport security. The men entered the Boeing 747, firing shots into the air.[4]
  • Recounted Nupoor Abrol, then flight attendant, Pan Am Flight 73.
    This is the second flaw in Article 1 of The Hague Convention.
     
  • Does not include aircraft used in military, customs, or police services:
    Article 3, sub-clause 2, of The Hague Convention, states that,
    This Convention shall not apply to aircraft used in military, customs, or police services.
    The Hague Convention, categorically excludes the military, customs, or police aircraft and thus includes only and only civilian aircraft.
    Though the above-mentioned aircraft are country-specific and have strategic importance, not including them in the Hague Convention makes them vulnerable to deliberated and strategic attacks by the countries, sharing not too friendly relations, with the countries to whom the aircraft belongs, when they use their airspace or even otherwise.
     
  • Ignores some possible victims of the Hijack:-
    Now, Article 4, sub-clause 1, sub-sub-clause (a) of The Hague Convention says,
    Each Contracting State shall take such measures as may be necessary to establish its jurisdiction over the offense and any other act of violence against passengers or crew committed by the alleged offender in connection with the offense, in the following cases:
    1. when the offense is committed on board an aircraft registered in that State.
      Now, this Convention ignores the possibility of harm, which can be inflicted upon the airport workers by the hijackers even when they (Hijackers) are aboard the plane.
      Thus, this Convention presents a very narrow scope of offenses and the acts of violence that hijackers can commit.
       
  • Disregards the possibility of state-supported Hijack and does not suggest any action against such countries:
    Further, sub-clause 2 of the same article says,
    Each Contracting State shall likewise take such measures as may be necessary to establish its jurisdiction over the offense in the case where the alleged offender is present in its territory and it does not extradite him pursuant to Article 8 to any of the States mentioned in paragraph 1 of this Article.
     
This article mentions that ‘Contracting State shall likewise take such measures…’, but nowhere in the entire convention, is stated, what should be the course of action if any contracting party does not materialize the agreement, or does something contrary to the agreement, or even support the Hijack! as happened in The Ganga Hijack incident, as the news report shows,
On the ill-fated day, Capt. Kachru was flying the Indian Airlines plane named Ganga, carrying 26 passengers and a crew of four, from Srinagar to Jammu when two Kashmiris, including Qureshi, hijacked it and forced him to fly to Lahore.

Zulfiqar Ali Bhutto, then foreign minister of Pakistan, turned up at the airport and hailed the hijackers, who had demanded the release of some prisoners from Indian jails.[5]
All the contracting parties that support or plan any such unlawful seizure of any aircraft of the other party who had agreed over the terms of this convention, shall be made strictly and categorically liable for its action. But this convention fails to do so.

The thing on which the convention is mostly silent is that what course of action should be adopted by other contracting parties, especially the aggrieved or the targeted party, to the agreement, in case any contracting party fails to fulfill its obligations towards the Convention and fellow countries. The convention’s silence upon this scenario raises serious doubts upon the efficacy of this agreement, leaving it totally upon the parties to adopt any step in such scenario.
  • Ambiguities on how to punish the hijackers, which causes harm to the interests of the aggrieved country:
    The line of Article 7, Those authorities shall take their decision in the same manner as in the case of any ordinary offense of a serious nature under the law of that State. leaves uncertainty on how or in what manner shall the perpetrators or the Hijackers be punished.

There must be clarity on how the hijackers should be punished, because the discrepancies in different national laws create uncertainty and leave an open path for the authorities to treat hijackers according to their own whims and fancies, like what happened with the perpetrators of Pan Am, Flight 73 Hijack. The hijackers killed 20 passengers and crew, including two Americans. More than 100 people on board were injured in the attack.[6] But as the extract below shows, they were released.

An Associated Press report from 2009 states that while four men were released after completing their jail terms and deported to the Palestinian territories against the wishes of both the Indian and the United States government.[7]

According to Indian law, which was applicable then i.e. section 4 and 5 of The Anti-Hijacking Act, 1982,
4. Punishment for hijacking.—Whoever commits the offense of hijacking shall be punished with imprisonment for life and shall also be liable to fine.
5. Punishment for acts of violence connected with hijacking.—Whoever, being a person committing the offense of hijacking of an aircraft, commits, in connection with such offense, any act of violence against any passenger or member of the crew of such aircraft, shall be punished with the same punishment with which he would have been punishable under any law for the time being in force in India if such act had been committed in India.

But the perpetrators were released causing harm and increasing the possibility of further harm to Indian interests, while also this act of releasing the Hijackers, acted to promote the act of Hijacking rather than sending any strong message, that these acts would not be tolerated.

No provision for bonafide brave hearts:
Another aspect on which it is silent is in the context of bonafide brave hearts i.e. those persons on the aircraft who wilfully undertake the risks to counter the terrorists and try to save the lives of those on board. These might include the crew as well as passengers. On any action by the contracting party as such to restore the control of the aircraft to the commanders or to undertake its control by itself, it should be an obligation upon such country to provide safe passage to such passengers or crew to their homeland without unnecessary questioning, harassment or any sort of criminal charge upon them.

Silent upon the healthcare and medicine aspect:
Further, the contracting parties must also be categorically obliged to provide immediate and absolute healthcare to all the victims of violence in the Hijacking incident.
These drawbacks reduce the effectiveness of the convention and the increase in the number of aircraft Hijacks show that the convention was unable to restrict the number of Hijacks in the world.

Praises
Now let us see towards the aspects that made this treaty so important in nature that we are discussing it.
  • Timely and epochal Convention on Hijacking:-
    The Best thing about The Hague Convention was that it was a very timely initiative of recognizing and treating Hijack as an offense, from the Indian view, it was adopted by ICAO even before any incident of Hijacking of an Indian Aircraft.
    This Convention formally established the base on which the edifice of other Anti-Hijacking Laws could stand.
  • Lucidity in imposing obligations upon the contracting parties:-
    Article 2, Article 4, and Article 6, clearly demarcate the boundary or the limits of action which have to be taken by the contracting countries, hence making the convention lucid while significantly reducing the chances of disputes arising in the context of interpretation.
  • Makes the offense extraditable:-
    Article 8, sub-clause 1 of the convention makes the offense Extraditable, providing the really aggrieved country a chance to try the perpetrator providing just opportunity to the aggrieved country. Further, through the sub-clause 2 of the same Article, the Convention allows itself to be considered as the legal basis of extradition in respect of the offense, thus making the extradition process easier and smoother with the countries with which the extradition treaty does not exist.
  • Obliges countries to take prompt measures against the offense of hijacking:-
    Article 9 of the Hague Convention, puts an obligation upon the contracting parties to take all appropriate measures to restore control of the aircraft to its lawful commander or to preserve his control of the aircraft, in case any of the acts mentioned in Article 1(a) i.e. unlawful seizure of any aircraft, has occurred or is about to occur. This ensures that the aggrieved or targeted country does not stand in any disadvantaged position in case of any Hijack or possibility of Hijack.
  • Ensures timely dissemination of information and makes the contracting parties accountable:-
    Article 11 of The Hague Convention says,
    Each Contracting State shall in accordance with its national law report to the Council of the International Civil Aviation Organization as promptly as possible any relevant information in its possession concerning:
    1. the circumstances of the offense;
    2. the action is taken according to Article 9;
    3. the measures are taken concerning the offender or the alleged offender, and,
in particular, the results of any extradition proceedings or other legal proceedings.

This article of The Hague Convention makes every contracting party accountable. Thus, any party cannot escape away from its responsibilities towards the other contracting parties in any unfortunate event of Hijacking.

This article also ensures that every important information regarding any incident of Hijacking gets timely disseminated and other countries can accordingly adopt the appropriate course of action.

Provides a procedure for dispute resolution regarding interpretation or application of the convention:
Article 12 of The Hague Convention, provides the method through which the disputes regarding the interpretation or the application of this convention should be resolved which are, negotiation, arbitration (if the negotiation fails), and if within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.

In this manner, the Convention makes it quite clear as to how the states shall proceed in case any dispute as mentioned above arises thus removing ambiguities.

Case study: Kandahar Hijack, 1999
Series Of Events

Hijacking of IC-814
Indian Airlines Flight 814, was on the itinerary from Tribhuvan International Airport, Kathmandu, Nepal to Indira Gandhi International Airport, New Delhi, on December 24, 1999.[8]
Around 4:12 PM, IST, The plane was above Lucknow and was hijacked and around 4:57 PM, IST, IC 814 informed the Varanasi ATC of the hijack, the hijackers told the pilot to fly west. The persons who hijacked the plane were S.A. Qazi (‘Burger’), A.A. Shaikh (Chief), Z.I. Mistry (Bhola), S.A. Sayeed (Doctor), and R.G. Verma (Shankar).[9]

Amritsar sojourn
The flight entered Pakistani Airspace and requested the ATC to grant permission to land for refuelling, but it refused. The pilots told the hijackers that the situation was very critical and they needed immediate refuelling. Then the flight again entered Indian territory and landed at Amritsar airport for refuelling at 6:44 PM, IST but there was no certain command from New Delhi. A command was received from Delhi to delay refuelling but a hoax phone called ordered the opposite. At about 7:40, a bowser was sent to apparently refuel the plane but actually meant to deflate the airplane’s tires to prevent it from flying.[10]

The situation was very tense at Amritsar airport. The hijackers were fearful regarding possibility of surprise operation and the crew hoped for it. The anxious hijackers dragged seven passengers and fastened them to the seats in the executive class. They stabbed two passengers in chest leading to death of one, Rupin Katyal. Burger burst into the cockpit and shouted that 3 passengers are gone now and the number would increase along with the delay. The fearful pilots had no option but to fly the plane, with fuel for less than 10 minutes, to a new destination; Lahore.9

Lahore sojourn
Lahore ATC was requested again, it refused again and turned off the lights and other navigational aids for the plane. With the fuel at a dangerously low level, the pilots had no option than to crash land.9 India spoke to Pakistan, and at belatedly Lahore allowed the plane to land and refuel, but despite continuous requests from the Indian side, the then Pakistan President Pervez Musharraf didn't stop it from taking off for Afghanistan.[11]

The exact events that occurred were, India requested two favors from Pakistan soon after the hijacked plane landed in Lahore. The first was to ensure that the plane did not leave Lahore and the second was that the Indian High Commissioner G. Parthasarathy in Islamabad promptly be given a helicopter to reach Lahore. Since the Indian government awfully failed in Amritsar, the plan was to engage the hijackers in Lahore in apparent negotiations with Parthasarathy.[12]

Pakistan’s response was a well-drafted sham of support. The runway lights were switched off; Pakistani commandos surrounded the plane and, as they say, the hijackers were also persuaded, though to no effect, to release women and children, at least. But the helicopter was only ready to fly the high commissioner almost at 10.30 p.m. when the hijacked plane took off .12

Further, During the two and a half-hour stop of IC-814, Indian High commission Officials were constantly in contact with Pakistani senior bureaucrats in Lahore, but at no point, they were informed that they had refueled the plane thus keeping Indian officials deprived of information.12

Dubai sojourn
After the aircraft took off from Lahore it went to UAE because it was not able to land at Kabul or Kandahar. After all, they both lacked night landing facilities. It was more than nine hours after the hijack and the aircraft was granted permission to land at Al Minhad Airforce Base, 40 miles from Dubai. A completely new series of events unfolded after that.

Indian officials received a promise from the United States Of America of all possible help. Actually, it was America who pressurised Dubai to allow the aircraft to land. But the Indian ambassador was neither allowed to enter into the airport nor to speak to the pilot. Indian officials were put completely in the darkness ."

India was assured by the UAE and US mediators that the hijackers would free all 70 women and children in the aircraft. But only 26 were freed and Katyal's body was dropped down.[13] Further, the NSG commandoes chased the plane to Dubai in a special aircraft for a possible anti-hijacking operation but were denied permission.[14]
In early morning, the aircraft began its journey for Kandahar, Afghanistan.

Destination Kandahar
In the morning of December 26, the hijacked plane landed at Kandahar, Afghanistan. Soon Indian delegation reached Kandahar and negotiations began. . The chief was indeed a very tough negotiator. The hijackers demanded the release of 36 terrorists locked up in Indian jails. The negotiators tried to push the number down. It worked.

The negotiators were able to strike an agreement with the hijackers and the very next day, Jaswant Singh, External Affairs Minister of India, landed at Kandahar with the terrorists whom the hijackers wanted to be freed—Masood Azhar, Ahmed Omar Saeed Sheikh, and Mushtaq Ahmed Zargar. After they got, what they wanted, the passengers were released. They came to India onboard a special flight, even as the Taliban ensured safe passage for the terrorists.9

Commentary
The Kandahar Hijack was one of the worst events that have been witnessed by India.

My comments on this case study are:
  1. Non-cooperation with the Indian Government proved very costly:
    The Hijack led to the release of some of the world’s most dreaded terrorists, who planned and executed many terrorist attacks in various parts of the world.
    Some details are as follows:
    Maulana Masood Azhar
    1. Founded jaish-e-Mohammad in 2000.
    2. Mastermind behind the 2001 terror attack on the Indian parliament.
    3. Designed and executed the 2008 Mumbai attack which was the most horrific terror attack of 21st century India.
    4. Planned the coward Pulwama attack which lead to the death of 44 Indian armed personnel.
    Ahmed Omar Saeed Sheikh
    1. Accused of Murder of Daniel Pearl.
    2. Had a significant role to play in the September 11 attacks in The United States.
    Mushtaq Ahmed Zargar
    1. has played an active role since release in training Islamic militants in Pakistan administrated Jammu & Kashmir.

  2. Very poor crisis management of Indian authorities:
    The information of hijack was received by Indian authorities, as early as, 4:00 PM. But despite that, the response was so bad that we not only lost The Golden 45 minutes at Amritsar but also were not able to free the plane through international help.
  3. No hostage policy:
    Despite many such attacks perpetrated upon the country, the government has instituted no new policies that would protect its citizens better. There is an urgent need for drafting a hostage policy that my guide future actions of the country as to how to deal when Indian citizens are made hostages in any Hijack or another terror act.
  4. Despite the Hague convention, very fewer efforts or cooperation by other countries:
    This Hijack was perpetrated after almost 29 years of The Hague convention, but even then the international efforts to save Indian citizens were negligible. This shows the need to adopt a strong enforcement mechanism among nations so that any nation does not have to suffer the brunt of this menace.
End-Notes:
  1. Hijack, Merriam- Webster (Nov. 24, 2020 12:23 PM), https://www.merriam-webster.com/dictionary/hijack#h1
  2. THE ANTI-HIJACKING ACT, 2016, Section 3 Sub-section 1
  3. Convention on the Suppression of the unlawful seizure of the aircraft, United Nation Treaty Collection (Nov. 24, 2020 4:13 PM) https://treaties.un.org/pages/showDetails.aspx?objid=0800000280112834
  4. Megha Mohan, Inside a hijack: The unheard stories of the Pan Am 73 crew, BBC NEWS (Nov. 24, 2020, 5:45 PM) https://www.bbc.com/news/world-asia-35800683
  5. DNA Web Team, Air India pilot who flew hijacked flight to Pak dies: Know about India's first episode of terror in sky, DNA (November 25, 2020, 10:50 AM), https://www.dnaindia.com/india/report-air-india-pilot-who-flew-hijacked-flight-to-pak-dies-know-about-india-s-first-episode-of-terror-in-sky-2599754
  6. PTI, Neerja Bhanot killing: FBI releases age-progressed images of 4 wanted hijack suspects, The Economic Times (Nov. 25, 2020, 5:20 PM) https://economictimes.indiatimes.com/news/politics-and-nation/neerja-bhanot-killing-fbi-releases-age-progressed-images-of-4-wanted-hijack-suspects/articleshow/62574596.cms?from=mdr
  7. The Quint Here’s What Happened to the Hijackers of Neerja’s Pan Am Flight 73, The Quint (Nov. 25, 2020, 4:16 PM) https://www.thequint.com/news/hot-news/hijackers-of-the-pan-am-flight-73-for-which-neerja-gave-her-life#read-more
  8. FE Online, IC 814 hijack: How Jaish-e-Mohammed chief Masood Azhar’s brother planned Indian Airlines hijack in 1999, FINANCIAL EXPRESS, (Dec. 18, 2020, 1:00 PM) https://www.financialexpress.com/india-news/kandahar-ic-indian-airlines-flight-814-hijack-1999-december-masood-azhar-rauf-pulwama-jem/1506554/
  9. Mandira Nayar, Fear In The Air, The Week, (Dec. 18, 2020, 1:16 PM) https://www.theweek.in/theweek/specials/2019/12/28/fear-in-the-air.html
  10. Praveen Swami, BOWING TO TERRORISM, Frontline, (Dec. 18, 2020, 1:56 PM) https://frontline.thehindu.com/cover-story/article30253131.ece
  11. Maya Sharma, The hijacking of Indian Airlines flight IC-814, NDTV, (Dec. 18, 2020, 3:19 PM) https://www.ndtv.com/india-news/the-hijacking-of-indian-airlines-flight-ic-814-400555
  12. Harinder Baweja, Pakistan Foreign Office called India to say they were outraged the plane had landed in Lahore, India Today, (Dec. 18, 2020, 4:06 PM) https://www.indiatoday.in/magazine/cover-story/story/20000110-pakistan-foreign-office-called-india-to-say-they-were-outraged-the-plane-had-landed-in-lahore-776904-2000-01-10
  13. Why didn’t the hijack drama end in Dubai, India Today, (Dec. 18,2020, 5:13 PM) https://www.indiatoday.in/magazine/neighbours/story/20000117-xyz-761801-2012-07-20
  14. TNN, NSG came close to raid IC-814 in Dubai’, The Times Of India, (Dec 18 2020, 5:00 PM) https://timesofindia.indiatimes.com/india/NSG-came-close-to-raid-IC-814-in-Dubai/articleshow/47967046.cms

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