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Aircraft Hijacking: Its Cause and Cure

  • Alona E. Evans (a1)

Extract

A cartoon published last year in a Boston newspaper showed two passengers on an aeroplane, one turning to the other to say, “Uh-oh, the stewardesses have changed into their Cuban costumes.” Seventy-five successful hijackings of aircraft of United States and foreign registration in the past nineteen months have dampened this light-hearted approach to the subject. In recent months a bantering remark to a member of a flight crew as to the prospects for a side trip to Cuba has earned more than one passenger a delayed flight, a conversation with an agent of the Federal Bureau of Investigation, or an appearance in court on charges ranging from disturbing the peace to attempted aircraft piracy. For some passengers the hijacking of an aircraft may be a colorful interlude in the routine course of air travel; for the flight crew, the carrier, and the Federal Aviation Administration, it is a nightmare, a vicious form of Russian roulette in which the fate of the hijacker is inconsequential in comparison with the potential cost in lives of passengers and crew, not to speak of the value of the aircraft itself.

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1 Cartoon by Dahl, Boston Herald Traveler, Sept. 23, 1968.

2 New York Times, Aug. 3, 1968, 11:3; Dec. 6, 1968, 40:2; Feb. 9, 1969, 53:1 (city ed. unless otherwise indicated); Boston Herald Traveler, Feb. 17, 1969, 1:2; Feb. 24, 1969, 2:3. In Boston a passenger who asked a stewardess “how long does it take this plane to get to Cuba” was fined $200 on a charge of disturbing the peace. New York Times, July 11, 1969, 36:2.

3 During the past nineteen months some 2916 passengers and crew members have been aboard hijacked aircraft of the United States registration. The largest number of persons involved in any single hijacking to date were 171 passengers and crew on an Eastern Airlines flight from New York to Miami. New York Times, Jan. 20, 1969, 1:4.

4 P.L. 87-197, 75 Stat. 466 (1961); 49 U.S.C. §1472(i) (j) (1).

5 49 U.S.C. §1472(k); 18 U.S.C. §113 (assault), §114 (maiming), §661 (larceny), §662 (receiving stolen property), §1111 (murder), §1112 (manslaughter), §1113 (attempt to commit murder or manslaughter), §2031 (rape), §2032 (carnal knowledge), §2111 (robbery).

6 49 U.S.C. §1472(k);” ‘ Air commerce’ means interstate, overseas, or foreign air commerce or the transportation of mail by aircraft or any operation or navigation of aircraft within the limits of any Federal airway or any operation or navigation of aircraft which directly affects, or which may endanger safety in, interstate, overseas, or foreign air commerce.” 49 U.S.C. $1301(4). For a critical analysis of the United States concept of air commerce in terms of the Tokyo Convention, see A. I. Mendelsohn, “In-Flight Crime: The International and Domestic Picture Under the Tokyo Convention,” 53 Virginia Law Review 509 (1967).

7 Art. 15(1) (a) (b); 13 U. S. Treaties 2312; 450 U.N. Treaty Series 82;52 A.J.I.L. 842(1958). See commentary on Art. 39 (Art. 15 of final text) of International Law Commission's 1956 draft of this convention, 4 Whiteman, Digest of International Law 657-659.

8 Where an aircraft has been detained in the state to which it has been forced to go by reason of hijacking, this act has usually been for political reasons. E.g.,Cuba detained an aircraft of U. S. registration for three weeks in 1961 in an effort to recover certain Cuban aircraft which had been attached in the United States by court order. New York Times, July 25, 1961, 1:7 et seq.(late city ed.). The aircraft was returned in exchange for a Cuban patrol boat. Ibid.,Aug. 13, 1:6. 45 Department of State Bulletin 334, 407 (1961). Cuba detained a Venezuelan aircraft for four days and required payment of $31,466.80 for its expenses prior to returning it; this action was allegedly in retaliation for the detention for six weeks by Venezuela of a Cuban fishing vessel found in Venezuelan territorial waters. New York Times, Nov. 21, 1968, 11:1; Jan. 3, 1969, 6:2; Feb. 13, 90:6; Feb. 18, 65:5. Israel released 16 Arab guerrillas as a “humanitarian gesture” in return for an El Al aircraft held by Algeria for 6 weeks. Ibid.,Sept. 18, 1968, 6:1. Robberies have occurred upon occasion; see p. 702 below.

9 See United States v.Bearden, 304 F.2d 532 (5th Cir., 1962), vacated on other grounds, 372 U. S. 252 (1963), obstruction of commerce charge affirmed, 320 F.2d 99 (5th Cir., 1963), cert, denied, 376 U. S. 922 (1964); United States v.Healy, 376 U. S. 75 (1964); 18 U.S.C. §§ 2, 2312, 1201, 1951.

10 '’ Aircraft hijacking'’ is the term employed in the draft proposal for a protocol to the 1963 Convention on Offences and Certain Other Acts Committed on Board Aircraft (Tokyo Convention) which was submitted in January, 1969, on behalf of the United States to the Subcommittee on Unlawful Seizure of Aircraft of the Legal Committee of the International Civil Aviation Organization. LC/SC.SA. WD.7 (5/2/69).

11 The author gratefully acknowledges the opportunity of discussing the problem of aircraft hijacking with Nathaniel H. Goodrich, General Counsel, Federal Aviation Administration; Knute E. Malmborg, Assistant Legal Adviser, Department of State; Harold Shapiro, Chief, Administrative Regulations Section, Criminal Division, Department of Justice; David Slattery, Criminal Division, Department of Justice; Frederick Smith, Jr., Deputy Administrator, Bureau of Security and Consular Affairs, Department of State. All views expressed here are those of the author. Research for this article was completed as of June 30, 1969, details corrected to Sept. 8.

12 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: House Comm. on Foreign Affairs, Subcom. on Inter-American Affairs, Air Piracy in the Caribbean Area, 90th Cong., 2d Seas. (Comm. Print, 1968); House Comm. on Interstate and Foreign Commerce, Aircraft Piracy, H.E. Hep. No. 91-33, 91st Cong., 1st Sess. (1969); Department of State, Foreign Policy Briefs, Vol. 18, No. 14 (Dec. 30, 1968); reports in New York Times, Boston Herald Traveler, Boston Globe, Washington Post, Washington Evening Star, Chicago Tribune.

13 The period 1948-1950 was marked by political turmoil in Czechoslovakia and China; 1958-1962 was the period in which the Castro regime came into power and consolidated its authority in Cuba. There is no single explanation for the figures for 1968-1969.

14 Cases of successful aircraft hijacking, January 1, 1948-Sept. 8, 1969:

1948: 7 1953: 1 1960: 3 1964: 1 1969: 46
1949: 7 1956: 1 1961: 6 1966: 1
1950: 3 1958: 2 1962: 2 1967: 5
1952: 1 1959: 4 1963: 1 1968: 30

Argentina: 1 Egpyt: 7 Poland: 7
Bahamas: 1 Ethiopia: 1 Portugal: 2
Brazil: 1 Greece: 4 Eomania: 2
Bulgaria: 1 Hungary: 2 Spain: 1
Colombia: 13 Israel: 1 U.S.S.R.: 1
Cuba: 7 Nationalist China: 4 United States: 51
Czechoslovakia: 7 Peru: 2 Venezuela: 5
Ecuador: 2 Philippines: 2 Yugoslavia: 2

Continental: 1 Notheast:7 Southeast:7
Delta: 3 Northwest Orient: 1 Trans World: 2
Eastern: 14 Pan American: 2 United: 2
National: 10

From July 1 through Sept. 8, 1969, there were 12 hijackings, making a total of 46 in 8 months: United States, 6; Colombia, 2; and 1 each of aircraft registered in Egypt, Ethiopia, Greece, and Mexico. Five United States aircraft were hijacked to Cuba; one was hijacked to Syria by two members of the Popular Front for the Liberation of Palestine, acting for political reasons.

15 New York Times, May 7, 1969, 73:3

16 According to a statement from the Department of Justice, 37 hijackers have used guns, 4 have used knives, and 6 have used both weapons. Assistant Attorney General (Wilson) to Chairman, House Comm. on Interstate and Foreign Commerce (Staggers), Feb. 26, 1969, Aircraft Piracy, p. 27, cited in note 12 above.

17 Interviews, Nathaniel H. Goodrich, General Counsel, Federal Aviation Administration, Nov. 22, 1968; Knute E. Malmborg, Assistant Legal Adviser, Department of State, Jan. 9, 1969. Boston Herald Traveler, Jan. 30, 1969, 13:1. Between July, 1968, and February, 1969, Cuban authorities required passengers to return to the United States on a different plane and from Varadero Airport located some 80 miles from Havana. This procedure was necessitated by the alleged inadequacy of the runways at José Marti Airport for take-off by a fully loaded jet aircraft. This procedure obviously added to the costs of a hijacking. New York Times, Feb. 12, 1969, 1:1.

18 Interview with David Slattery, Criminal Division, Department of Justice, Jan. 9, 1969.

19 Aircraft Piracy, p. 4, cited note 12 above.

20 New York Times, Feb. 8,1969, 54:5.

21 Fink v.Northeast Airlines, Inc., Docket No. 89658, Mass. Superior Court, filed March 5, 1969, pending as of June 18, 1969. Boston Herald Traveler, March 6, 1969, 3:2; March 11, 5:1. A Long Island resident planning a holiday in Florida filed a notice in the New York Times to the effect that she would sue both Northeast Airlines and the Federal Government if her flight were hijacked. New York Times, Jan. 15, 1969, 30:3. Ironically enough, Northeast was first subjected to hijacking in May, 1969.

22 New York Times, Nov. 25, 1968, 1:1; Aug. 30, 1969, 2: 5 ; Boston Herald Traveler, Jan. 4, 1969, 2: 1 , June 29, 13:4; Boston Globe, Feb. 4, 1969, 1:2; Air Piracy in the Caribbean Area, p. 11, cited note 12 above. A Mexican aircraft was hijacked in 1968 by a woman holding a revolver and her two-year-old child. Boston Herald Traveler, Oct. 7, 1968, 1:2.

23 Aircraft Piracy, p. 26, cited note 12 above.

24 On the assumption that Cuban refugees dissatisfied with the United States might resort to hijacking as a means of returning to Cuba, the Department of State instructed the Swiss Embassy to explore with the Cuban Government the possibility of using the daily refugee airlift system for the repatriation of refugees. No response was received from the Cuban Government. Department of State, Foreign Policy Briefs, Vol. 18, No. 14 (Dec. 30, 1968).

25 E.g.,New York Times, May 25, 1967, 1:6 (military deserter); Nov. 5, 1968, 17:3 (Black Panther member).

26 Boston Herald Traveler, March 13, 1968, 2:6; June 30, 1968, 2:8. The pilot of the Southeast Airlines aircraft was held for three weeks while Cuban authorities debated whether to prosecute him as a defector. New York Times, July 1, 1968, 16:6; Aug. 30, 1969, 1:8; Boston Herald Traveler, July 23, 1968, 2: 1. One of the more sensational cases of aircraft hijacking for the purpose of abduction was that of the late Moise Tshombé, sometime Congolese Prime Minister, whose chartered plane was forced to land in Algeria, where proceedings for his extradition were instituted at the request of the Congo Republic. The request was granted, but Tshombé was not surrendered. He died in prison in Algeria. Bulletin of the International Commission of Jurists, No. 32 (Dec, 1967), 28-29; New York Times, July 1, 1969, 18:3.

27 Aircraft Piracy, p. 27, cited note 12 above.

28 See p . 706 below.

29 Boston Herald Traveler, Nov. 24, 1968, 28:8.

30 New York Times, June 18, 1969, 74:4. The fuel supply of the T.W.A. plane hijacked to Syria on Aug. 29 was almost exhausted. Ibid.,Aug. 3 1 , 1969, 1:8.

31 Ibid.,July 18, 1968, 1:2; Dec. 4, 1:5. In two recent cases involving aircraft of Peruvian and Colombian registry respectively, the passengers were permitted to remain at the refueling stop. Ibid.,March 18, 1969, 1 1: 1 ; June 23, 62:6.

32 Boston Herald Traveler, March 20, 1969, 1:8. In several cases crew members have been able to disarm a would-be hijacker, e.g.,Boston Sunday Herald Traveler, Nov. 3, 1968, 2 9: 1 ; New York Times, Feb. 4, 1969, 16:3.

33 Boston Herald Traveler, March 12, 1969, 2:1.

34 New York Times, Nov. 18, 1965, 1:5; Nov. 19, 14:3 (late city ed.). Air Piracy in the Caribbean Area, p. 20, cited note 12 above. An explosion destroyed the cockpit of the T.W.A. plane just after its landing in Damascus. New York Times, Aug. 30, 1969, 1:8.

35 New York Times, July 24, 1968, 16:5.

36 Boston Herald Traveler, Nov. 5, 1968, 44:3; New York Times, March 6, 1969, 76:4. It has been recently reported that the hijacker in the November incident repeatedly struck the aircraft's captain during the flight. New York Times, June 26, 1969, 5:2.

37 See Instructions to Flight Officers (Furnished by Eastern Airlines)—Eastern Airlines Flight Briefs—Flight Operations, March 27, 1968, in Air Piracy in the Caribbean Area, p. 14, cited note 12 above.

38 American Fire and Casualty Co. v.Sunny South Aircraft Service, Inc., 140 So. 2d 78, 80 (1962); 151 So. 2d 276, 278 (1963) (rehearing denied, April 15, 1963).

39 49 U.S.C. §1472(1). Statement by Deputy Administrator, Federal Aviation Administration, March 19, 1969, F.A.A. Information. E.g.United States v.Zorrilla, 9 Av. Cas. 17,305 (E.D.N.Y., 1964).

40 Letter of April 10, 1969, from Nathaniel H. Goodrich, General Counsel, F.A.A. Rule 6(A) (3) (a) (b), C.A.B., Local and Joint Passenger Rules Tariff No. PR-5, C.A.B. No. 117, p. 9; this regulation became effective on Oct. 27, 1968.

41 F.A.A. Memorandum, CC-I, March 21, 1969.

42 Statement by Deputy Federal Air Surgeon, Office of Aviation Medicine, F.A.A., March 19, 1969, F.A.A. Information. Aircraft Piracy, p. 5, cited note 12 above. A scanning device which can detect objects made out of ferrous metals was tested at Kennedy International Airport in May, 1969. New York Times, May 17, 1969, 66:2.

43 Rule 6(A) (2)(a)(b)(c), cited note 40 above.

44 A passenger who had been restrained by the crew for causing a disturbance aboard a Dutch aircraft en route from Montreal to Amsterdam, broke free and attacked another passenger with a knife. New York Times, Feb. 23, 1969, 72:1.

45 Public Papers of the Presidents, John F. Kennedy, 1961, 559; 26 Fed. Reg. 7614 (1961); New York Times, Aug. 11, 1961, 1:4 (late city ed.).

46 Air Piracy in the Caribbean Area, p. 5, cited note 12 above. New York Times, May 3, 1962, 55:5.

47 Following the hijacking of an Israeli aircraft in July, 1968, and an attack on another Israeli aircraft in the Athens airport in December, Israel apparently put armed guards on El Al aircraft. This became evident in a shooting affray between an armed guard and persons who attacked an El Al aircraft in the Zurich airport in February, 1969. Ibid.,Feb. 19, 1969, 1:6.

48 Aircraft Piracy, p. 5, cited note 12 above.

49 F.A.A. regulations forbid interference with crew members in flight or any attempt to change the destination of an aircraft. 14 C.F.E. §91.8.

50 Boston Herald Traveler, May 13, 1969, 24:5.

51 New York Times, Jan. 25, 1969, 58:3.

52 Interview, Nathaniel H. Goodrich, General Counsel, F.A.A., Nov. 22, 1968. See also Aircraft Piracy, p. 28, cited note 12 above; Wall Street Journal, Dec. 9, 1968, 1:4; New York Times, Jan. 29, 1969, 66:3.

53 New York Times, Aug. 18, 1968, §IV:E5:1.

54 lbid.,March 27, 1969, 1:7; ibid.,Sept. 2, 1969, 1:2.

55 Aircraft Piracy, p. 6, cited note 12 above. The Department of Justice has also offered a reward of $10,000 for such information. Ibid.See also Boston Globe, Feb. 4, 1969, 10:1.

56 New York Times, Aug. 9, 1968, 17:5.

57 Eight adults have been convicted and sentenced to 1 to 20 years’ imprisonment, including 4 servicemen who were court-martialed; four juvenile offenders have been sent to reformatories or detention homes; one person was acquitted on grounds of insanity. F.A.A. Information, March 19, 1969. See also Aircraft Piracy, p. 15, cited note 12 above.

58 U.S.C. §1472 (i); 18 TJ.S.C. $1201. The hijacking took place on April 13, 1962. New York Times, April 22, 1962, 7:1 (late city ed.).

59 United States v.Healy, cited note 9 above.

60 Ibid.81-85.

61 Air Piracy in the Carribbean, p. 11, cited note 12 above (Bendicks); Boston Sunday Herald Traveler, Jan. 12, 1969, 41:4 (Jessie), this man was accompanied by his three-year-old daughter; New York Times, Feb. 10, 1969, 39:4 (Truitt); May 7, 73:3 (Helmey). Truitt was sentenced to 20 years’ imprisonment. Ibid.,Aug. 15, 1969, 12:8.

62 Art.III of the 1904 Extradition Treaty with Cuba provides: “Requisitions for the surrender of fugitives from justice shall be made by the diplomatic agents of the contracting parties… . “ 33 Stat. 2265.

63 Art. II (14) (15).

64 Deputy Legal Adviser (Meeker) to Assistant Attorney General (Miller), July 18, 1961. 6-Whiteman, Digest of International Law 790. The inquiry concerned the feasibility of requesting the extradition of Antulio Ramirez Ortiz, who hijacked a National Airlines plane on May 1. New York Times, May 2, 1961, 1:6 (late city ed.).

65 New York Times, Aug. 10, 1961, 1:4; Aug. 15 11:1 (late city ed.). Aircraft Piracy, p. 26, cited note 12 above.

66 Boston Sunday Herald Traveler, Jan. 12, 1969 (Jessie); New York Times, Feb. 10, 1969, 39:4 (Truitt); June 26, 5:1 (Johnson). Johnson has been indicted on charges of air piracy and kidnaping; he is still in Cuba.

67 Boston Globe, March 7, 1969, 18:1 (Bryant).

68 Art. 11, 58 A.J.I.L. 566 (1964). The convention will become effective Dec. 4, 1969, ratifications by 12 states having been deposited with ICAO (Republic of China, Denmark, Italy, Mexico, Niger, Norway, Philippines, Portugal, Sweden, United Kingdom, “United States and Upper Volta). The United States deposited its ratification on Sept. 5, 1969.

69 Arts. 13(2), 16(2). See E. P. Boyle and Roy Pulsifer, “The Tokyo Convention on Offenses and Certain Other Acts Committed on Board Aircraft,” 30 Journal of Air Law and Commerce 305 at 345 (1964).

70 60 Department of State Bulletin 212 at 213 (1969). The Cuban representative voted for this resolution, which was adopted unanimously.

71 Report of Subcommittee on Unlawful Seizure of Aircraft, ICAO Document LC/SC SA, Report of Feb. 21, 1969. 8 Int. Legal Materials 245 at 246-247 (1969).

72 Art. 1, 8 Int. Legal Materials 251 (1969).

73 Art. 2, ibid.

74 Art. 5, ibid.252.

75 Arts. 6, 7, ibid.The United States argued unsuccessfully for mandatory extradition of persons accused of hijacking. See protocol submitted to Subcommittee, Jan. 31, 1969, cited note 10 above. Deportation is an obvious alternative to extradition which was used by Canada in the Bendicks, Truitt, and Helmey cases (cited note 61 above); by the United States in returning a hijacker to Mexico, Boston Herald Traveler, Oct. 31, 1968, 2: 1 ; New York Times, Nov. 2, 1968, 73:2 (Garcia Zurita); and apparently by Saudi Arabia in returning 2 hijackers to Egypt, ibid.,Sept. 1, 1969, 16:1.

76 Art. 8, 8 Int. Legal Materials 252-253 (1969).

77 Secs. 14, 14.1, 15, Report, cited note 71 above. In testimony before the House Committee on Interstate and Foreign Commerce, the Deputy Assistant Secretary of State for Transportation and Telecommunications said, with respect to the issue of political motivation: “We do not propose to change in any way our general policy on political asylum; but we think the risks involved in the hijacking of commercial aircraft are great enough so that neither we nor others should treat hijackers—whatever their motivation—as simple political offenders.” 60 Department of State Bulletin 212 at 213 (1969). According to a report in May, 1969, the Department is prepared to accept the draft as approved by the majority of the Subcommittee. New York Times, May 25, 1969, 82:7. Cuba is reported to have refused to extradite 2 students to Mexico on the ground that they are political offenders. Ibid.,Sept. 5, 1969, 26:2.

78 18 U.S.C. §3181 et seq.

79 ICAO News Release, Aug. 21, 1969.

80 Resolution on Unlawful Interference with International Civil Aviation and Its Facilities, adopted by ICAO Council, Montreal, April 14, 1969, p. 4. The committee met early in September to investigate the hijacking of the T.W.A. plane to Syria. ICAO News Release, Sept. 3, 1969.

81 Subcommittee Report, §§ 21, 22, cited note 71 above; Council Resolution, p. 4, cited note 80 above.

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