Kanishka Bombing, 9/11: World Trade Centre...then and beyond!!

Hi all, its good to be back after a long time and all credit goes to my dear friend, Rudranshu Singh for writing this beautiful piece of literature on hijacks in the airspace. Rudranshu is currently pursuing Masters in Law from the Institute of Air and Space Law, McGill University, Canada.

Aviation from its inception has been one of the biggest technological blessings in the field of transportation. The phenomenal speed of an aircraft makes it a strong pillar of the economy because it can transport people and cargo within no time to the other parts of the globe. However, this technical blessing encountered security threats in the third decade of its existence. The acts of terrorism which can encounter civil aviation range from hijacking an aircraft, bombing aircraft or airport lounges or gunning down people at airports and the very latest way i:e using the aircraft into as a guided missile as happened in the fateful World Trade Center attacks.

The first reported incident of hijacking was on 21^st February 1931. In this incident, Peruvian revolutionaries seized a mail plane belonging to PAN American, which aimed nothing but to drop propaganda leaflets over Lima. This was followed up by the first international legislative effort to curb terrorism which came up with the Geneva Convention, 1937 and was called the Convention for the Prevention and Punishment of Terrorism 1937. The draft of this Convention was adopted in November 1937 by League of Nations as a consequence of the assassination at Marseilles of King Alexander I of Yugoslavia and French Foreign Minister Louis Barthou in France. However, unfortunately it could not be enforced with due to the Second World War. Subsequently with the beginning of the Cold War, now freak incidents has started becoming a common feature and the world’s first fatal attack came in the year 1947 when a private plane on a domestic Romanian route was seized by three Romanian army officers who shot their way to freedom in Turkey. This was the world's first fatal hijack, where in an uncooperative crew member was shot to death.

Hijackings became commonplace in the USA in the early 1960's amid growing tensions between the USA and Cuba. Initially, Cubans had resorted to hijacking aircraft as a means to escape the Castro regime, but by the early 1960's the flow had reversed, and airplanes in the US were being hijacked to Cuba by Cuban rebels, radical Leftist Americans, and fugitives seeking asylum in Cuba. By the autumn of 1961 the draconian consequences of hijacking came out in the public domain and the most significant impact of these acts of aerial piracy was the heavy cost to airlines, as the enormously expensive machinery is rendered useless. This was the time when the global legal community gathered under the auspices of International Civil Aviation Organization (hereinafter: ICAO) in Tokyo in 1963, to come up with the Convention on Offenses and Certain Other Acts Committed On Board Aircraft 1963 but as I strongly agree that the delegates were initially reluctant to address hijacking and focused more on other acts. Unlawful Seizure of an aircraft was a disjointed thought to this Convention in the form of Article 11. However, this reluctance does not render this Convention meaningless and it was the first substantial effort to deal with aerial terrorism. It was the launching pad for its successors, namely the Hague and Montreal Convention.

By the latter half of the 1960s hijacking became a weapon of political revolution. The Federal Aviation Administration of the United States was directed to minutely assess each aspect of aircraft hijacking and to come up with a defense for the same. The hijacking activities peaked and had become a global epidemic by 1972, as the hijackings reached their highest tally of 364 within the span of four years (1968-1972) which were the highest until that time. Hijacking also became an appealing tool of extortion which traveled in the prism of political and personal demands. There was an episode in November 1971, which involved a man who called himself Dan Cooper made a propaganda that he had a bomb in his suitcase and demanded an amount of $ 200, 000 and four parachutes, which were met. He allowed all the 35 passengers and two stewards to deplane, however, he ordered the pilot and the crew to fly to Reno at low altitude and cruising speed with flaps down and ventral stairs extended. The crew was forced to cover themselves with curtains in the front cabin. As the plane landed in Reno, it was noticed that Cooper was not aboard. It was speculated that he had left, when the plane was close to Woodland, Washington. A fearless demonstration of frequent hijackings kick-started and these state of affairs forced the then President of US and his administration to issue the statement for appointing “ especially trained, armed United States government personnel on flights of U.S. Commercial airliners”. Probably this was the time when the global community contemplated the Convention for the Suppression of Unlawful Seizure of Aircraft Signed at the Hague on 16th December 1970 (hereinafter: Hague Convention 1970).

The crux of this Convention is that it declared hijacking as an international offense, the major shortcoming of this convention is that it fails to define severe penalties and leaves it to the wisdom of the State. The Hague Convention was followed by Montreal Convention called Convention for Suppression of Unlawful Acts Against the Safety of Civil Aviation, signed on Signed on 23rd September 1971.Convention was followed by Annex 17 to the Chicago Convention titled as Safeguarding International Civil Aviation Against Acts of Unlawful Interference. Then came the Bonn Declaration 1978. It was the brainchild of G7 countries and its main achievement is eloquently declared to “take action against any State that fails to fulfill its international obligations following a hijacking.”

In spite of these steps aerial piracy continued in its epidemic form and with the passage of time, hijacking became a serious weapon and we witnessed the draconian consequences on 11th September 2001, when everything came to a halt in the US. The superpower of the politically unipolar world was bleeding through its nose. However, before getting into details of 9/11 we cannot forget the 1985 Kanishka bombings, which is, still considered “a major instance of sabotage of aircraft with extensive loss of life due to the explosion on Air India B-747 on 23rd June 1985”. This was followed by the Indian Airlines flight, IC-814 hijack. Therefore, stringent measures were taken to counter acts of unlawful interference with civil aviation. The genealogy of the term terrorism lies in Latin terminology meaning to cause to tremble (terrere). Since the catastrophic events of 9/11, we have seen stringent legal measures taken by the United States to attack terrorism, not just curb it.

The famous phrase “war on terror” denotes pre-emptive and preventive strikes carried out through applicable provision of legitimately adopted provisions of legislation. The earliest example is the Air Transportation Safety and System Stabilization Act ( ATSAA) enacted by President Bush less than two months after the 9/11 attacks. Then, two months after the attacks, in November 2001, Congress passed the Aviation and Transportation Security Act (ATSA) with a view to improve security and to close the security loopholes which existed on that fateful day, that is 9/11. The legislation paved the way for a huge federal body called the Transportation Security Administration (TSA) which was established within the department of transportation. The Homeland Security Act of 2002 which followed a significant recognition of the Federal Government”. The assumption about the anti-hijacking vigilance of the airline industry now seems “catastrophically naive”. The US owes 9/11 to its sluggishness over the Al-Qaeda threat which was in their backyard but they could not react and went into a mode of Islamophobia in the post 9/11 era. Tragedies occur in every country and are inevitable to this mundane world. I have all my sympathies with victims of 9/11, but that was not a universal conspiracy against US. It was the dilemma within the US administration that did them in.

Ever since then US has been haunted by its misplaced fear and consequently they have tightened the aviation security beyond reason. We have discussed most of the statutes based on hijacking in detail and can say conclusively that the biggest lacunae in hijacking laws is lack of guaranteed punishment. Every Convention based on hijacking has left prosecution of a hijacker at the discretion of the domestic legal system of the State involved. So this is the real problem, which can be solved only by appropriate prosecution laws at the international level and not by making the security unbearable and disrespectful for the common passengers as well as dignitaries from other countries or from international bodies. Osama-bin-Laden was the architect of 9/11, however is still absconding and the global aviation community has started treating every single passenger as a terrorist, which will further add to financial miseries of the airline industry. We have to catch hold of the terrorists, through intelligence sharing among nations. We have not strengthened our intelligence cooperation but have been looking at every passenger with a jaundiced eye, and consequently we have shown total disregard to privacy which is an integral part of Universal Declaration of Human Rights in the form of Article 12, which condemns any arbitrary interference with anyone's privacy and full body scanners are nothing but an arbitrary interference into an individual's privacy.

I have stressed upon hijacking in the opening portion of this outline, because I want my audience to be fully aware of the genesis of this paranoid security procedures is rooted in the draconian events witnessed by the aviation community since 1930s till the unforgettable trauma of 9/11. However, the harsh reality remains that crime occurs and will reoccurs in the mundane world, because this world is occupied by angels and devils together and crime can only be eliminated in heaven, but not in this world. We should only try to minimize crime, any attempt to eliminate crime is as good as robbing Paul to pay Peter.