1 See74 AJIL 420, 421 (1980).

2 Hereinafter referred to, respectively, as the Ad Hoc Committee and the Hostages Convention.

3 The Ad Hoc Committee was established by GA Res. 31/103 of Dec. 15, 1976, following an initiative taken by the Federal Republic of Germany, one of the countries affected by several internationally significant acts of hostage taking. The Ad Hoc Committee held three sessions, in 1977, 1978, and 1979, during which the major part of the draft text was prepared. At the beginning of the 34th session of the UN General Assembly, the solution of a number of important, politically sensitive problems was still pending, the problem of the position of national liberation movements being one of them. After 3 months of intensive effort on all sides, and despite the political and psychological pressure exerted by the hostages drama in Iran, the Sixth Committee was able to adopt the draft Convention on Dec. 7, 1979, by consensus. Ten days later, the Plenary adopted Res. 34/146, also by consensus. Thereby the Hostages Convention, the text of which was annexed to this resolution, was opened for signature. The text is reprinted in74 AJIL 277 (1980).

4 E.g., the delegate of Nigeria stated that “parts of the African continent were in a state of siege, and whole peoples were being held hostage, whether they knew it or not.” UN Doc. A/32/39, at 76 (1977). For similar remarks, see Jordan, Algeria, Lesotho, the Syrian Arab Republic, and the Libyan Arab Jamahiriya. Id.at 27, 30-31, 35, 36, and 39, respectively. The Libyan delegate submitted the following draft definition: For the purpose of this Convention, the term “taking of hostages” is the seizure or detention, not only of a person or persons, but also of masses under colonial, racist or foreign domination, in a way that threatens him or them with death, or severe injury or deprives them of their fundamental freedoms. UN Doc. A/AC.188/L.9 (1977).

5 UN Doc. A/AC.188/L.3 (1977).

6 The various amendments that were subsequently adopted are not discussed here because they do not directly pertain to the topic of the present article. As regards the meaning of this definition, suffice it to say that the offense of hostage taking comprises two elements: first, the seizure or detention of another person; second, the threat to kill or harm that person in order to compel a third party to perform, or refrain from performing, a specific act. The second element distinguishes hostage taking from “kidnapping” or “hijacking.“

7 Again, no further comment on this text will be made here. As regards the formulation of the maxim aut dedere aut judicare,suffice it to note that the phrase “submit the case to its competent authorities for the purpose of prosecution” leaves states parties with a larger margin of discretion than the phrase “to prosecute him” would have done. The former terminology was derived from the common Article 7 of the following earlier antiterrorism Conventions: the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft, 22 UST 1641, TIAS No. 7192; the 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, 24 UST 564, TIAS No. 7570; and the 1973 New York Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, 28 UST 1975, TIAS No. 8532. For a relevant comment, see Abramovsky, Multilateral Conventions for the Suppression of Unlawful Seizure and Interference with Aircraft: The Hague Convention,13 Colum. J. Transnat'l l. 398-99 (1974), and The Montreal Convention,14 id. 294-95 (1975).

8 UN Doc. A/32/39, at 39 and 35, respectively. Similar remarks were made by Guinea, the Libyan Arab Jamahiriya, Nigeria, and Lesotho. Id.at 40, 39 and 75, 76, and 34, respectively.

9 Id.at 27.

10 Id.at 41. Comparealso Egypt, Algeria, the Syrian Arab Republic, and the Libyan Arab Jamahiriya. Id.at 79, 30-31, 36, and 76, respectively. They were supported in this demand by countries from Eastern Europe, notably Poland, Yugoslavia, and the Soviet Union. Id.at 69,28, and 80, respectively.

11 Id.at 36. For similar statements, compare Nigeria and Tanzania, id.at 76 and 35-36, respectively. Also this demand was supported by Eastern European countries, notably Yugoslavia, the Soviet Union, Poland, and the Byelorussian S.S.R. Id.at 28, 32, 34, and 56, respectively.

12 Id.at 58. Comparealso Nigeria, id.at 77

13 UN Doc. A/AC.188/L.5 (1977). Obviously for the same purpose of keeping national liberation movements outside the grip of the Convention, Mexico launched the unorthodox proposal of leaving it up to such movements themselves whether they would be covered by the Convention or not, notably by inserting a clause that offered them the possibility of making a unilateral declaration, addressed to the depositary, under which they would consider themselves bound by the Convention. This, presumably, in accordance with the example set by the 1977 Geneva Protocol I. See infranote 30. UN Doc. A/32/39, at 94.

14 UN Doc. A/33/39, at 25 and 50 (1978).

15 UN Doc. A/32/39, at 59. The same mistake was made by Lesotho. Id.at 54.

16 UN Doc. A/AC.188/L.4 (1977).

17 This was the solution found for the problem in the case of the 1973 New York Convention (supranote 7), adopted by GA Res. 3166 (XXVII), paragraph 4 of which recognizes “that the provisions of the annexed Convention could not in any way prejudice the exercise of the legitimate right to self-determination and independence … by peoples struggling against colonialism, alien domination, foreign occupation, racial discrimination and apartheid.“

18 The human rights aspect of the problem of hostage taking was recognized by such nonaligned countries as Chile, Mexico, Nicaragua, Egypt, Guinea, and Iran. UN Doc. A/32/39, at 17, 21, 26, 38, 39, and 40, respectively. The general recognition of this aspect is reflected in the reference made, in the second paragraph of the Preamble to the Convention, to Article 3 of the Universal Declaration of Human Rights, and Articles 6 and 9 of the International Convention on Civil and Political Rights.

19 Infranote 30.

20 UN Doc. A/32/39, at 62. The delegate of the United Kingdom also pointed out this contradiction, calling it “quite astonishing.” Id.at 61-62. At this stage, Mexico seemed to contradict its own position (see supranote 13) by declaring that “it would be difficult legally to condone such behaviour [i.e., hostage taking] since that would involve making an exception to the minimum standards of humanitarian law as established in 1949.” Id.at 81. The apparent contradiction in Mexico's position, however, resulted from its incorrect assumption that the law of warfare covered all acts of hostage taking committed in the course of armed conflict, including those committed by national liberation movements (see infranote 27). It is, indeed, a basic axiom of humanitarian law (both of peace and of war) that it protects allpersons under allcircumstances against certain infringements. Relevant to the present contextis the following observation made by Wilkinson: “Just as we describe as war criminals those who commit atrocities in time of war, so we should recognise the fact that there are revolution criminals who commit atrocities in the name of ‘revolution’ or ‘liberation.’ “ P. Wilkinson, Terrorism: International Dimensions 4 (Conflict Studies No. 113, 1979).

21 The United States, UN Doc. A/32/39, at 53. For similar statements, see the Netherlands, id.at 50; France, UN Doc. A/33/39, at 33.

22 UN Doc. A/32/39, at 32. The same phrase was used by the Byelorussian S.S.R.; id.at 56.

23 UN Doc. A/33/39, at 64.

24 Id.at 71.

25 rf. at 81 and Corr.l.

26 Mr. Bavand (Iran). Id.at 58. Such statements were not always made in unequivocal terms, however. What, for instance, is the legalmeaning of the delegate of Kenya's phrase that “delegations were at one in agreeing that no one advocated a carte blanchefor liberation movements to take hostages,” or of the Nigerian delegate's statement that “no self-respecting national liberation movement advocated giving an open license to its members for taking hostages“? Id.at 73 and 71, respectively.

27 Thus, the delegate of Algeria submitted that from a strictly legal point of view, the future convention and, in particular, the definition of “the taking of hostages” could not apply to conflicts in which peoples were struggling against foreign domination. The Committee's terms of reference were not to codify the Jaw of war or to redefine, in a separate convention, the requirements relating to the taking of hostages contained in the Additional Protocol of 1977… . As parties to international armed conflicts, national liberation movements were subject to the law of war, which in essence prohibited acts of hostage-taking. UN Doc. A/33/39, at 66. For similar statements, compare Mexico. Id.at 21,49,56-57, and 60.

28 E.g.,the Soviet Union and Ghana in the Sixth Committee on Oct. 10, 1979.

29 E.g., Pakistan, Tanzania, and the People's Republic of Yemen on the same date.

30 Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick of Armed Forces in the Field, 75 UNTS 31, TIAS No. 3362, 6 UST 3114. Convention II for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked of Armed Forces at Sea, TIAS No. 3363, 6 UST 3217, 75 UNTS 85. Convention III Relative to the Treatment of Prisoners of War, TIAS No. 3364, 6 UST 3316, 75 UNTS 135. Convention IV Relative to the Protection of Civilian Persons in Time of War, TIAS No. 3365, 6 UST 3516, 75 UNTS 287, all signed on Aug. 12, 1949. At its 4th session, the Geneva Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable to Armed Conflicts adopted, on June 8, 1977, the Protocol Additional to the Geneva Conventions of August 12, 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 72 AJIL 457 (1978); and the Protocol … relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), id.at 502.

31 That considerable confusion exists with respect to this concept is revealed in the literature on the law of civil war. In 1977, an unsuccessful effort was made to remove this confusion by inserting an ambiguous definition of the term into Article 1 of Protocol II.

32 The meaning of this term was clarified in Article 41, paragraph 2 of Protocol I.

33 This prohibition is reiterated in Article 4, paragraph 2(c) of Protocol II.

34 The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, GA Res. 2625 (XXV) of Oct. 24, 1970. It is beyond the scope of this discussion to consider the question whether the terms of this declaration could supersede a national act of a contracting party declaring that the Geneva Conventions are applicable to its nonmetropolitan territories. Suffice it to note that an interesting legal problem might arise here.

35 Without going into further details, it may be noted here that in the case of the Hostages Convention, in contrast to the New York Convention, it was explicitly decided notto include the threatof hostage taking in the definition of the offense. The Convention thus provides an example of the definition of a crime that does not cover the threat to commit it. With respect to Geneva Convention III (on POW's), there is, apart from the question of the threat (of killing POW's), the additional element of compulsion of a third party which renders its applicability to hostage taking doubtful.

36 Article 75 of Protocol I, which reaffirms the prohibition of hostage taking of Article 34 of Convention IV, does not extend the number of categories of civilians protected.

37 See Kalshoven, , Application of Customary International Law in Non-International Armed Conflicts, in Current Problems Of International Law 267ff. (Cassese ed. 1975).Google Scholar

38 Thus, Nigeria demanded in 1978 that the Hostages Convention should make clear “whether acts committed by freedom fighters were or were not of an entirely domestic character.” UN Doc. A/33/39, at 22.

39 UN Doc. A/32/39, at 56.

40 Ten out of eleven contracting parties are nonaligned countries (Botswana, Cyprus, Ecuador, Ghana, Jordan, the Libyan Arab Jamahiriya, Niger, El Salvador, Tunisia, and Yugoslavia); the eleventh country is Sweden. The call made by the Sixth Committee in draft Res. A/C.6/34/L.9, adopted by consensus on November 14, 1979, “that all States consider without delay the matter of ratifying or acceding to the two Protocols,” affirms that we are dealing here with conventional, not customary, rules of law.

41 For lack of space, the author cannot go into further detail. It may be submitted, however, that there are additional considerations whose effect is to shed doubt upon the applicability of the prosecution or extradition principle of Convention IV to national liberation movements. For instance, as far as non contracting states are concerned (some still exist), it is questionable whether 3 proceduralprovision, like that of Article 146, should be considered as developing into a rule of customary law en blocwith the substantive provisions of the Convention.

42 UN Doc. A/32/39, at 20.

43 Indeed, on a few occasions Western delegations also seemed to depart from this assumption. Comparethe Federal Republic of Germany, Canada, Sweden, and the United States. Id.at 70, 22, 22, and 42, respectively.

44 Id.at 5-6.]

45 UN Doc. A/AC.188/L.20 (1977).

46 UN Doc. A/32/39, at 34 (emphasis supplied).

47 UN Doc. A/C.6/34/SR.62, at 2 (1979).

48 Id.at 2.

49 Id. at 7.

50 E.g.,Ghana and the Syrian Arab Republic on Oct. 10, 1979.

51 E.g., the Ukrainian S.S.R. on the same date.

52 It may be recalled here that, according to Article 31, paragraph 2 of the Vienna Convention on the Law of Treaties, the Preamble constitutes part of the “context for the purpose of interpretation of a treaty.“

53 UN Doc. A/AC.188/Wgii/Crp.13 (1977).

54 Supranote 22.

55 It needs no further comment that these Arab states had in mind a particular state, which happens to be a traditional and potential object of compulsion by Palestinian hostage takers.

56 Article 5, paragraph 1 of the 1979 draft read: Each contracting State shall take such measures as may be necessary to establish its jurisdiction over any of the offences set forth in article 1 (a) that are committed in its territory or on board a ship or aircraft registered in that State, (b) when that State is to be compelled to do or abstain from doing anything, (c) that are committed by any of its nationals, or (d) when a hostage is a national of that State, if that State considers it appropriate. UN Doc. A/34/39, at 25 (1979).

57 In its final form, Article 5 reads: 1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over any of the offences set forth in article 1 which are committed: (a) in its territory or on board a ship or aircraft registered in that State; (b) by any of its nationals or, if that State considers it appropriate, by those stateless persons who have their habitual residence in its territory; (c) in order to compel that State to do or abstain from doing any act; or (d) with respect to a hostage who is a national of that State, if that State considers it appropriate. 2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over the offences set forth in article 1 in cases where the alleged offender is present in its territory and it does not extradite him to any of the States mentioned in paragraph 1 of this article. 3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.

58 In establishing jurisdictional priorities, one would have to take into account the fact that states parties could get involved in legal conflicts as a result of the previous conclusion of extradition treaties with some, but not other, states parties entitled to exercise jurisdiction.

59 UN Doc. A/C.6/34/SR.62, at 3.

60 UN Doc. A/33/39, at 50 and 51.

61 UN Doc. A/AC.188/WG.II/CRP.9.

62 UN Doc. A/32/39, at 27.

63 The Syrian Arab Republic and the Libyan Arab Jamahiriya, speaking in the Sixth Committee on Oct. 10, 1979, respectively called the Jordanian proposal “vital as [a] guarantee of humanitarian spirit and fundamental rights,” and “needed for the sake of objectivity and justice.” See alsostatement by Iran, UN Doc. A/32/39, at 41.

64 The delegate of Cuba said that “his country could not accept the idea that the sovereign will of States, as expressed in bilateral treaties, was subject to modification by multilateral norms,” a point of view reflecting the Marxist approach to the sources of international law. UN Doc. A/C.6/34/SR.62, at 12.

65 On one occasion, the Soviet delegate said, without mentioning the words “political opinion,” that “especially” in the case of “extradition between States with different political views … the basic principle that the taking of hostages was a criminally punishable act without exception whatsoever was violated, since hostage-taking was encouraged in cases where a criminal disagreed with the policies of a certain Government.” Id.at 11.

66 Article 9 was adopted in the Sixth Committee by a vote of 103 to 10 (Eastern Europe minus Romania, plus Cuba and Mongolia), with 4 abstentions (Botswana, Congo, Romania, and Vietnam). Like Israel, which took no part in the vote, these countries did not insist on a vote on the Convention as a whole, which thereby enabled the others to adopt the Convention by consensus.