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Air terrorism and the international aviation regime: the International Civil Aviation Organization

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Air terrorism and the international aviation regime: the International Civil Aviation Organization

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Content AIR TERRORISM AN D THE INTERNATIONAL AVIATION REGIME:
THE INTERNATIONAL CIVIL AVIATION ORGANIZATION
by
Ethan ]. Paritzky
A Thesis Presented to the
FACULTY OF THE GRADUATE SCHOOL
UNIVERSITY OF SOUTHERN CALIFORNIA
In Partial Fulfillment of the Requirements for the Degree
MASTER OF ARTS
(International Relations)
December 1994
UNIVERSITY O F S O U T H E R N CALIFORNIA
T H E G R A D U A T E tC H O O L
U N IV E R S IT Y P A R K
L O S A N Q I L U . C A L IF O R N IA 90001
This thesis, written by
-EXHAN..J-*.2ARI.TZK.Y..................................................
under the direction of Ai_s Thesis Committee,
and approved by all its members, has been pre
sented to and accepted by the Dean of The
Graduate School, in partial fulfillment of the
requirements for the degree of
MASTER OF ARTS
Dm *
Z 3a/*....N ov^ter_!4A __199A
ABSTRACT
This paper evaluates the International Civil Aviation Organization
(ICAO) as the central institution of the international aviation regime,
and its ability to combat hijackings and air terrorism. It begins with
a brief background on air terrorism and then discusses basic regime
theory. The paper continues with a description of the structure of
the ICAO and the ICAO conventions on air terrorism. The majority of
the paper examines the technical, physical, legal, and political
obstacles that the ICAO faces in its fight against air terrorism, and
finds that a lack of cooperation (among member states to the
convention) in implementing sanctions or extraditing hijackers, as
well a inadequate financing, pose the greatest problems for the ICAO.
The paper also examines the suggestions that have been offered to
remedy such problems, and finds that theses suggestions would also
suffer from cooperation and financing deficiencies. The study
concludes that the ICAO’s success in combating air terrorism has
been limited and that further studies are necessary for the ICAO to
formulate new responses, or modify existing ones, to combat air
terrorism.
TABLE OF CONTENTS
Synopsis of Thesis p.1
Part l-lntroduction p.3
Part ll-Background/History of Air Terrorism p.6
Cycles of air terrorism p.6
The Popularity of Hijacking p. 10
Part lll-The International Com munity’s R e s p o n s e p .13
Basic Regime Theory p. 13
Creation of the International Aviation Regim e p. 19
Role of the ICAO in the International
Aviation Regime p.21
Part IV-ICAO Structure and its Effect on
Combating Air Terrorism p.24
Part V-ICAO Conventions on Air Terrorism p.27
The Chicago Convention p.27
The Tokyo Convention p.28
The Hague Convention p.29
The Montreal Convention p.30
Part Vl-Technical and Physical O bstacles p.31
Detection Devices and R esearch and Development p .31
The O bstacle of Airport Design p.33
The Inadequacy of Security Personnel p.35
Airport P e rso n n e l p.36
Part VIl-Legal/Political Problem s p.37
Cooperation and Sovereignty p.37
E n fo rcem ent P ro b le m s-—S a n c tio n s p .39
E nforcem ent P roblem s— Extradite or P ro s e c u te p.44
P ro b le m s -R e g im e s in G eneral p.46
Part Vlll-Options and Suggestion for the ICAO p.48
Sky Marshals p.49
Creation of Air Crim es Justice System p.50
Creation of a Security Cell p.52
Security Tax p.53
Tightening of Extradition R equirem ents p.54
Increased Sanctions Power p.54
Unilateral Action by S tates p.56
Part IX-Which is the Strongest Option? p.59
iii
Part X-Conclusion
End Notes
B ibliography
This p a p er e x a m in e s the International Civil Aviation
Organization (ICAO) a s the central institution of the internatinal
aviation regim e an d ev alu ates its ability to com bat hijackings and
air terrorism. It finds that so m e of the problem s facing the ICAO
are particular to international civil aviation, and others are inherent
in all international regim es.
Parts I and II inform the reader that air crim es have
historically occured in cycles and that hijackings have been, and
possibly will remain a popular form of terrorism. B e c a u se the
tactics involved in air terrorism are violent, such a s hijackings and
in-flight detonation of explosives, they receive world wide
attention. Further, the study m aintains that despite the recent lull
in air crimes, and given th e s e historical cycles and the popularity of
air crim es, the international com m unity m ust still concern itself
with air security.
Part III d isc u sse s basic regim e theory, the creation of the
international aviation regime, an d the role of the International Civil
Aviation Organization a s figurehead of the regime. U nderstanding
th e se three elem ents will en ab le the reader to place both air
terrorism and the role of the ICAO within the context of accep ted
international regim e theory.
Part IV describes the relationship betw een the ICAO's
structure and its ability to fight air terrorism. Specifically, it
d is c u s s e s the politicization of m em bership on the council, the
organization's m ost powerful organ; and describes the ICAO's
1
struggle with international political q u e stio n s which h a v e c re a te d
ob stacles to its ability to e n h a n c e air security.
Part V elucidates the conventions that have b e en negotiated
under the ICAO's aegis in its efforts to com bat air terrorism. T he
Tokyo Convention in 1963 w as the first docum ent to a d d re s s air
crimes; however, it w as deficient in that it did not call for the
punishm ent of air criminals. The H ague in 1970, a d d re ss e d the
punishm ent issue by announcing that contracting m em b ers m ust
extradite or p ro se cu te s u s p e c te d air terrorists. The Montreal
Convention of 1971 reiterated the obligations a n n o u n ced in the
previous conventions. Finally, the en actm ent of Annex 17 to the
C hicago Convention in 1974 provided contracting m em b ers with
sta n d a rd s a n d reco m m en d atio n s for air security.
Parts VI an d VII discuss the obstacles that face the ICAO in
com bating air terrorism. Part VI details the technical and physical
problems such as: the cost of research and developm ent and
detection devices, the inferior design of international airports for
p u rp o se s of security, the in co m p eten ce of airport security perso n n el
in detecting potential threats, and the w e a k n e s s e s of airport
support personnel. Such problem s are specific to the ICAO and the
international aviation regime. Part VII explores the political and
legal problem s su c h a s nations' inability to c o o p erate and their
difficulty in relinquishing sovereignty. In addition, the ICAO cannot
enforce its decisions or sta n d a rd s due the obstacles it fac es in
implementing sanctions and the refusal of som e nations to comply
with the extradite or p ro secu te standard. T h e se problem s are
2
indicative of the com pliance problem s that face alm ost all
international organizations and regim es.
Part VIII e n u m e rates the suggestions that have b een m ad e to
the ICAO and the international community for enhancing air security.
Such options include: the creation of a system of sky marshalls, an
international air crim es justice system , and a security cell.
Furthermore, so m e have su g g e ste d a security tax on airline tickets
to increase revenu e for security program s, the tightening of
extradition requirem ents, and increased sanctions pow er for the
ICAO. Others have called for the unilateral apprehension and
p u nishm ent of air criminals.
Part IX offers, a s s e s s e s , and judges the suggestions on the
grounds of which would be the m ost effective in com bating air
crimes. Part X draw s so m e conclusions from the preceeding facts.
I. INTRODUCTION-FEBRUARY 11, 1993
On the morning of February 11, 1993, Luftansa flight 592
departed Frankfurt, G erm any for Cairo, Egypt with 104 people on
board. Thirty m inutes after the plane took off a pistol wielding
gunm an em erg ed from the lavatory, seized a flight attendant, and
m oved into the cockpit w here he held the pilot at gun point. The
hijacker, Nebiu Dem eke, a twenty year old Ethiopian, d e m a n d e d the
pilot alter the c o u rse of the flight and head for New York. D em eke
3
w anted asylum in the United S tates, and said that he w anted U.S.
intervention in the Baltics.
After stopping in Hanover, G erm any to refuel, flight 592 b eg an
the trans-Atlantic journey to New York. In New York, upon being
notified of the hijacking, the FBI, New York City police, a n d State
D epartm ent officials se t up a com m and post and deployed SWAT
te a m s an d sh arp sh o o ters around runway-4 left, the d e sig n ated
landing site for flight 592.
During the eleven hour ordeal, D em eke continuously informed
the pilot that he would su rren d er to authorities upon arrival in New
York. With the flight o ne hour aw ay from John F. Kennedy airport,
U.S. officials m ad e contact with the hijacker and b e g a n negotiations.
Five m inutes before flight 592 w as to land at K ennedy all other
flights w ere held to allow clear identification and mobilization of
forces around the Luftansa jet. W hen the plane landed SWAT and
anti-terrorist te a m s w ere deployed around the aircraft. Inside,
D em eke h anded the gun, which turned out to be a starters pistol that
fires only blank rounds, to the pilot and said good-bye. He then
e m e rg ed from the plane and w as taken into custody.
On February 12, 1993, D em eke w as arraigned in New York on a
ch arg e of air piracy, a crime which carries a term of twenty years
to life. In G erm any, governm ent officials vow ed to investigate the
security la p se s at Frankfurt airport that allowed D em ek e to board
the plane. T h ese lap ses have con cerned the international comm unity
for a nu m ber of years. The con cern intensified after the in-flight
explosion of Pan Am flight 107 over Lockerbie, Scotland in D ecem b er
4
of 1988. In addition, G erm an prosecutors toyed with the idea of
requesting the extradition of D em eke to stand trial in Germany.
This incident en d ed with positive results. All of the
p a s s e n g e rs and crew survived the ordeal without physical injury,
although m any w ere emotionally traumatized. The aircraft w as
returned to G erm any in acco rd an ce with international guidelines.
The U.S., acting in conformity with international hijacking
agreem ents, quickly began the prosecution of Demeke. And Germany
be g an an investigation to rectify it's security problems.
However, despite the orderly m anner in which the event w as
concluded, the hijacking of flight 592 w as an anomaly. First, a s w as
indicated during the Arab hijackings in the middle and late 1980's,
few of th e s e ordeals end smoothly. Often the pilot is forced to fly
through and land in a num ber of national jurisdictions. Negotiations
betw een hijackers and officials can b ecom e complicated and
protracted b e c a u se m any governm ents may have a stake in the
outcom e, and m ay lay claims to different forms of jurisdiction (i.e.
territorial, universal, protective etc.). Similarly, hijacker's
d e m a n d s may be m ore complex than requesting asylum; they may
requ est that c o m ra d es be released from prisons in other countries,
or they may want certain governm ents to take action in som e area of
the world. In addition, rarely do hijackers surrender them selves
into the custody of hostile governm ent officials. They usually
require a s s u ra n c e s that they will not be prosecuted before they
rele ase the aircraft and its p asse n g ers. Thus hijackers have often
gone unpunished.
5
Despite the abnorm alities of flight 592, what d o e s this event
really indicate? It indicates that even though there h a s been a
relative lull in "large m edia event" hijackings over the past few
years, terrorism in the sky continues to p o se a great threat to
international air travel. Flight 592 indicates that despite
international security regulations c re a te d by the 174 contracting
m em b ers of the International Civil Aviation Organization, there are
still security problem s before and during flights, and that m uch
work rem ains to en su re the safety of air craft p a sse n g e rs. Finally,
the hijacking is evidence that swift and se v e re punishm ent of
hijackers is possible, but only the future will tell w hether such
punishm ent acts a s a deterrent to other potential hijackers.
II. BACKGROUND/HISTORY
1. Cycles Of Air Terrorism
Before examining the ICAO and its security regulations, it is
important to exam ine the history and motivations behind hijacking
in order to understand why it continues to p o se a huge problem for
the international community. According to Peter St. John,
"hijacking of aircraft h a s taken place in historical cycles and has
re p e a te d th e m se lv e s with rem arkable freq uency".1 The first
recorded hijacking occurred in May of 1930. Peruvian
revolutionaries seized a Pan American plane dem anding that the
6
pilot drop propaganda leaflets over Lima, the capital of Peru.2 The
pilot tricked the hijackers by convincing them to permit him to fly
to his destination before dropping the leaflets. O nce he landed the
pilot refused to take-off again thus thwarting the objectives of the
h ija ck e rs.
However, only after WW II were meticulous records kept on
hijackings. The first true wave of hijackings occurred betw een
1947 and 1952, at the beginning of the cold war.3 The majority of
these events involved Eastern Europeans who com m andeered flights
from Eastern Block countries and dem anding that they be taken to
the West. T hese individuals and groups were apparently fleeing
communism, and a s such, their actions were supported by W estern
nations. The West, and the U.S. in particular, regarded the actions a s
heroic and did not punish the hijackers. The only crime committed
according to W estern authorities, w as the theft of the planes and
they were immediately returned to their Eastern owners. It w as
this lack of punishm ent for the hijackers that set the sta g e for
future hijackings and thus the international cycle of air terrorism
that would ensue.
From 1952 to 1958 there w as a lull in hijackings. However,
air piracy increased with a fury betw een 1958 and 1961.4 During
this period, flights from C uba w ere hijacked by individuals seeking
political asylum in the United S tates and flights from the United
States were hijacked by individuals desiring to return to Cuba. This
two way flow of hijacking w as also a result of the se v era n ce of
diplomatic relations betw een the U.S. and C uba and indicated a
growing political battle b e tw ee n the s ta te s .5 By the end of 1961,
the U.S. realized that aircraft w ere attractive and vulnerable
targets. During Joh n F. K ennedy's term special hijacking legislation
w as en ac te d and security guards beg an to ap p ea r on so m e airlines.5
Another hiatus period occurred betw een 1962 and 1967. In
1968, hijackings once again increases. Individuals seeking to return
to C uba boarded planes departing from the U.S. and forced them to
Havana. In addition, hijackings beg an to occur for re a so n s other than
asylum or alternative political motivations. Mentally disturbed
individuals b e g a n to take over air craft while in flight. For exam ple,
in 1969, a U.S. marine hijacked a plane b e c a u se he w as protesting
his court-martial for breaking into the PX and stealing $200 worth
of goods. Apparently, he broke into the PX b e c a u se the Marine Corps
p ay m aster short ch an ged him $200.00.7
Nineteen sixty eight w as also the begining of the Arab
hijacking sp ree, one that continues to the present day. The 1967
Arab-lsraeli w ar left the P alestin ian s without su ppo rt from their
Arab brethren, and without land b a s e s to launch their terrorist
activities into the heart of Israel. Thus, hijacking b e c a m e a
rec o u rse to achieving their political g o a ls.5 At first all of the Arab
hijackings w ere aim ed at EL AL, the Israeli national airline.
However, a s the Israelis tightened up security, the Arab terrorists
resorted to other air carriers. On May 8, 1972, the Palestinian
terrorist organization, Black S e p tem b er, hijacked a Belgian S a b e n a
jet and forced it to land in Tel Aviv. T he hijackers d e m a n d e d the
rele ase of 317 Arab prisoners detained in Israeli jails and
threatened to blow up the plane with all one hundred p a s s e n g e rs
aboard. The Israelis, in adhering to their policy of not negotiating
with terrorists, first immobilized the plane. Then, eighteen
c o m m an dos, d re s se d in m echanics' attire storm ed the plane, killing
two terrorists, an d capturing two others. Only one innocent person
w as killed, and the entire assau lt w as com pleted within thirty four
seconds. On the darker side of the spectrum, in May of 1972 two
J a p a n e s e terrorists were hired by the Arabs to hijack a plane and
land it in Tel Aviv. Here, the terrorists took g ren a d es and guns out
of u n se a rc h e d luggage and killed twenty-six while wounding another
seventy- six. The important point about the Arab hijacking war w as
that it d e m o n stra te d to the international comm unity that bloody
c o n s e q u e n c e s c an occur when terrorists gain a c c e s s to aircraft, and
thus m ak e clear the need for greater attention to air security. The
nations of the world realized the n eed to stop terrorists before they
board the plane, and the n eed for a negotiation and para-military
strategy should hijackers gain control of an aircraft.
In addition to hijackings by the politically motivated and the
mentally unstable, 1971 saw the beginning of hijackings a s an act of
e x to rtio n .9 D.B. C ooper initiated this type of hijacking when he took
control of a plane and d e m a n d ed $200,000.00 The authorities gave
C ooper the m oney and he parachuted into the W ashington wilderness.
This "parajacking" a p p ealed to criminals b e c a u s e they w ere able to
obtain the ransom money, and w ere able to choo se an e s c a p e route.10
As a result of the increasing p henom en on of hijackings, the
West, in 1973, b e g an to implement security m e a su re s such a s
9
electronic surveillance of b a g s and p a s s e n g e rs at airports, and
special units of sky m arshals to fly on certain flights. However, the
trend of air terrorism continued with the Arab hijacking war
betw een 1974 and 1978. In 1979 there w as a hiatus of hijackings,
especially in Europe, but from 1983 to 1988 hijackings by Arabs and
Moslem fundam entalists b e g an to increase. And it is possible that
the period from 1988 to the present rep resen ts another lull in the
continuing hijacking cycle. In short, the history of hijacking reveals
that individuals and groups have used hijacking to attain a num ber of
goals, including political and financial objectives. More
importantly, the history reveals that hijacking is a phenom enon that
has not disappeared, but rather runs in continuous cycles. (See
attached exhibit graphically depicting "Unlawful Seizures") As such,
the relative calm in the skies during the past few years should not
be reason for the international community to feel secure, and ignore
the threat of air terrorism.
2. The Popularity of H ijacking-Strategy. Tactics, and
A tte n tio n
Given this history, and the different motivations that have led
to hijackings the question remains: why h as hijacking, a s one of the
prem ier forms of terrorism, b e co m e so popular? Terrorism, and
thus hijacking, is the em ploym ent of violent strategical an d tactical
actions u se d to obtain leverage w hen seeking a particular individual
or political objective. T he abduction of American and other W estern
TO
h o sta g es in Lebanon, by Iranian backed fundamentalist groups during
the 1980‘s provides a perfect exam ple. In th e s e instances, the
strategic plan w as to commit actions that would gain the attention
of W estern nations forcing them to listen and to abide by the
d e m a n d s of the Islamic groups. The specific tactical plans were to
kidnap W esterners from their hom es, their cars, their offices, and
even off the street. By capturing W estern citizens the Islamic
fundam entalist groups achieved leverage, or bargaining chips. This
enabled the terrorists to negotiate with and m ake d e m a n d s on
W estern governm ents. They w ere attempting to achieve objectives
such a s the release of Arabs from Israeli prisons or a d e c re a s e of
W estern involvement in the Middle East.
Similarly, the actions of the Irish Republican Army are
indicative of the s a m e strategy, tactics, leverage, and objectives.
T he strategy of the IRA is to disturb and disrupt British governm ent
and society to the point that th e English governm ent relinquishes
control over Northern Ireland. T he tactics that the IRA u se s range
from kidnapping British diplom ats an d military officials, to
assassinations, and bom bings in crow ded public areas. All of these
tactics are m eant to create fear. Fear works a s leverage for the IRA
in attem pting to attain their objective of a free Ireland.
In the arsen al of tactical m eth o d s available to terrorists,
hijacking h as becom e one of th e most popular. To be sure, hijackings
and air terrorism often include kidnapping, murder, and detonation of
explosives; yet there is som ething attractive to terrorists about
com m andeering and controlling an aircraft. P e rh ap s it is b e c a u se an
11
aircraft is mobile, and terrorists can m ove with their h o s ta g e s to
avoid capture. Or p e rh ap s it is that an aircraft is a small confined
a re a which is e a sy to control an d e n a b le s the terrorist to w atch over
the ho stag es easily. In addition to the ad v an tag e s of mobility and a
confined sp a c e , hijacking is attractive to individuals and terrorists
b e c a u s e it “rem ains a s an unparalleled attention getting device.."1 1
Yet, it is Ja n Schreiber who best explains why hijacking h a s b eco m e
one of the b est w e ap o n s in creating leverage to obtain personal or
political ob jectiv es:
Of the available forms of theater, few are so captivating
figuratively, a s well a s literally, a s skyjacking. The
b oldness of the action, the obviousness of the danger, the
num bers of people involved a s h o sta g es and therefore a s
potential victims, the e a s e with which national b o u ndaries
can be traversed and international incidents created, the
in stan tan eo u s radio and television linkages, all th e s e
com bine to m ake this crime o ne of the m ost immediately
attractive form s of terrorist a c tio n .1 2
It is th e s e factors, a s well a s the cycle discu ssed above, indicate
that hijacking is an event that will not vanish in the im m ediate
future. Furthermore, the political and econom ic crises that have
developed around the world, in Serbia-Bosnia, the Middle East, the
new Republics of the former Soviet Union, have created potential
political objectives for hijackers. Thus, the p h e n o m en o n of air
terrorism rem ain s a viable tactic that still requires se rio u s
international attention.
12
III. THE INTERNATIONAL COMMUNITY'S RESPONSE-REGIME THEORY,
THE INTERNATIONAL AVIATION REGIME, AND THE INTERNATIONAL
CIVIL AVIATION ORGANIZATION
1. Basic R egim e Theory
Given this continued threat of air terrorism, it is n e c e ssa ry to
exam ine the international comm unity's re s p o n se to hijackings and
terrorism and the problem s that the resp o n se encounters. Such an
examination requires a basic overview of regime theory, a
description of the creation of the international aviation regime, and
a discussion of how the International Civil Aviation Organization
fits into the international aviation regime.
R egim e theory h a s em erg ed over the p ast fifteen to twenty
years a s an adjunct to realism in explaining the way actors and
sta te s relate to e a c h other in the international system . T he
proponents of realism focus on "the role of sovereign sta te s relying
on military force in an anarchic sy ste m ."13 They a s s u m e that the
world community is in a state of power seeking anarchy, and thus
eac h state m ust rely on its own military pow er to survive and
achieve its objectives. O ne view of regime theory a s s u m e s that the
world is a system com prised of complex interdependence am ong
states, in which nations m ust rely on and co operate with e a c h other
to achieve national and sh a red objectives. Here, "there is no
hierarchy of issu e s on the international a g e n d a h e a d e d by military
security issues, an d military force plays a minor role in settling
13
international is s u e s ." 14 |n other words, the underlying assum ption
about the world for regim e theorists, is that s ta te s m ust coo perate
to survive and achieve national objectives. Thus, m any international
regim es c an be s e e n a s cooperative arrangem ents am ong nations,
though there are so m e regim es that may be b a se d on coercion.
T he m ost widely a c c e p te d definition of international regim es
is put forth by S tephen Krasner. It is "a set of implicit or explicit
principles, norms, rules, an d decisions making procedures, around
which states expectations converge in a given issu es a re a."15
Principles are "beliefs of fact, causation and rectitude."1® They are
the p u rp o se s that a d h eren ts (actors in the international arena) to
the regime are expected to pursue. For exam ple, the principle
underlying the GATT trade regim e is unrestricted trade am o n g sta te s
in the international community. Norms a re "legitimate and
illegitimate forms of behavior defined in term s of rights and
o bligations."17 T he norm of the GATT regime is that nations have an
obligation not to erect barriers to trade beyond that which the GATT
a g re e m e n t permits. Rules "are specific prescriptions or
proscriptions for actions."1® For example, those e n g ag e d in fishing
or u se of the o c e a n s for shipping m ust follow certain rules designed
to preserve the stock of fish, or rules regarding shipping lanes
designed to en sure the safety of v e sse ls and their p a ssen g ers.
Finally, decision making p ro ce d u res are "prevailing practices for
making an d implementing social choice,"19 such a s the election and
voting p rocedures found in the International Atomic Energy Agency.
14
Similar to the definition above is Oran Young's theory about
international regimes. He writes that "regimes are social
institutions governing the actions of tho se involved in specific
activities or se ts of activities. Like all social institutions they are
practices com posing of recognized roles linked together by clusters
of rules or conventions governing relations am ong the occupants of
th e s e roles."20 |n other words, regim es are social constructs
which, through accepted rules and obligations, actors in the
international a ren a can carry on relations. Young further explains
that every regime contains several key com ponents. The first
com ponent, similar to the definition above, is a set of rules. Rules,
according to Young are "well defined guides to action or standards
setting forth actions that m em bers are expected to perform or
refrain from performing under appropriate circum stances."2 1 Young
distinguishes three types of rules; u se rules, liability rules, and
procedural rules. Use rules are similar to the exam ple of rules
mentioned above. Liability rules govern the "locus and extent of
responsibility in c a s e s of injury to others arising from an individual
actor's actions."22 Procedural rules govern the m anner in which
states take their actions. The secon d com ponent of all regimes, the
procedural com ponent, is similar to Krasner's decision making
procedures. The procedural com ponent includes voting system s,
markets, adjudication, and unilateral action a s m ech an ism s used in
making "social choices in the context of particular regim es."23 The
final com ponent of all regimes, which is not explicitly part of
Krasner's definition, is com pliance m e c h a n is m s . According to Young,
15
a compliance m echanism is “any institution or set of institutions
publicly authorized to promote com pliance with the substantive
provisions of a regime or with the outcom es generated by the social
choice m echanism ."24 The importance of this component cannot be
overstated for it is the compliance m echanism s which are deficient
in most regimes, and thus are often the c au se of discord and
disagreem ent am ong mem bers. Furthermore, as will be discussed
later, the international aviation regime, and m ore specifically the
ICAO, is plagued by an inadequate compliance mechanism for
com bating air terrorism.
It should be noted, before continuing, that the major actors in
both definitions of regim es are states. As Young writes, "members
of international society are states and the rules or conventions of
regim es apply, in the first instance, to states."25 States then
dictate to private entities or actors the rules about activities which
the regime covers. Similarly, Robert K eohane writes, "if one thinks
about principles, norms, rules, and decision making procedures, it
beco m es clear that insofar a s they have any effect at all they must
be exerted on national controls and especially on specific interstate
ag re em e n ts that effect the exercise of national control."26 Thus,
while private actors such a s shipping com panies, fishing boats, or
p a sse n g e r airlines may participate in the activities governed by the
regime, and may even have a role in the creation of norms and rules,
it is states who are the major actors in regimes. States dictate the
rules and procedures to the other m em bers of the regime.
16
Given the definition of international regimes, the next
questions are: what are the incentives for the formation of regim es
and what purpose do regim es serve? Robert K eohane writes that
"the incentive to form regim es d e pend s most fundamentally on the
existence of shared interests....which may be b a se d on the mutual
desire to increase the efficiency of exchanges."27 Arthur Stein
writes that actors and states form regimes out of com m on
interests. He believes that "actors agree that if each followed its
own rational strategy all would eventually be worse off; the second
best strategy, collaboration, then b eco m es the optimal policy"28 for
achieving national and com m on objectives. Finally, so m e argue that
regim es are formed due to "situations". Here, "cooperation betw een
egoistic actors in the a b s e n c e of any superior authority grows out of
situations which are frequently characterized a s dilemmas, a s
either/or choice betw een incompatible alternatives w here neither
alternative is optimal but each h as both desirable and undesirable
o u tc o m e s ." 29 In other words, actors or nations form regimes due to
similar interests and goals, and in situations w here acting in
self-interest may be counter-productive to achieving one's
objectives. Regim es are formed when cooperation am ong actors
offers a better outcom e than acting alone.
The gam e of "prisoners dilemma" is a perfect exam ple of how
actors cooperate, form, and maintain regimes. In "prisoners
dilemma" two individuals, A and B, are arrested for a crime and
sep arated from each other. Each is interrogated by authorities. If
both defect and confess to the authorities, both will be convicted. If
both c o o p erate with eac h other and refuse to confess, neither will
be convicted. Should A or B defect and confess to the crime, while
the other c o o p e ra te s and sa y s nothing, then the confessor will not be
convicted and will receive a rew ard while the party who k eeps
silent will receive a m ore se v e re punishm ent than if both had
con fessed . In such situations the least risky, short term outcom e is
to defect, to act in self interest while the other cooperates. The
worst possible outcom e is to c o o p erate when the other defects.
This is the called the "sucker's play". Thus, to avoid punishm ent
each actor should c o o p erate with the other and remain silent. It
should be noted here that if this g a m e is only played once each
actor’s dom inant strategy would be to defect in the hope that the
other cooperates. Thus, cooperation would not be achieved.
However, if the g a m e is played on multiple occasions, or is
ite r a te d 3 0 then e a c h actor realizes that cooperation is in his best
interests in the long run.
Similarly, in forming regim es nations c o m e to realize that,
given their com m on interests an d go als and the fact that military
power is not a viable m ethod of achieving such goals, cooperation is
the b e st alternative. Furthermore, regim es presen t an a ren a for
nations to play the g a m e continuously and over a period of time, thus
solidifying a policy of cooperation in particular issue areas.
18
2. C reation of th e International Aviation R eg im e
It is this realization about the n eed to co operate in the issue
of air s p a c e an d aviation that led to the creation of the international
aviation regime. As early a s 1899, nations at the H ague P e a c e
Conference, con cerned about the u se of air s p a c e during times of
war, ag reed to forbid, for a term of five years, the discharge of
projectiles and explosives from balloons.31 Furthermore, in the
early 1900‘s France b e ca m e concerned about unregulated balloon
flights over Europe and a conference of ten nations w as convened, in
Paris to discu ss the principles of international aviation. The
conference ended without any agreem ent. 32 However, it w as not
until after WW I that the international aviation regim e w as created.
While E uropean s ta te s c reated restricted air z o n e s over their
territory directly before the war, fighter p lan es invaded su ch
restricted z o n es during the latter part of the war. This c a u se d
concern am ong the nations at the Paris P e a c e C onference about the
future of air s p a c e for purp o ses of security and civil aviation. T he
result of such c o n c e rn s w as the establishm ent of the international
aviation regim e.
In term s of the definition of regim es, the major principle of
the international aviation regim e w as "unrestricted sta te
so v e reig n ty "3 3 over the skies. This m eant that each nation should
control the air above its own land. The norm of the regime w as that
eac h nation had "the ultimate power to decide on all air transport
within its air s p a c e ."34 The guiding rule of the regime w as that
19
governm ent approval must be obtained for use of national air sp a c e
and for landing. The decision making procedures w ere bilateral
n e g o tia tio n .35 S tates had to negotiate with e a c h other for the
rights to fly and land in the other's territory.
T h ese bilateral negotiations were b a sed on the idea of
reciprocity and involved a good deal of "horse trading".36 Rights to
fly and land w ere often used a s political tools to obtain objectives
that were unrelated to international aviation. For example, in 1939
Spain reserved landing and transit rights for tho se nations who
w ere allies of Franco during the Spanish Civil War. This "horse
trading", the idea of reciprocity, and the insistence of sta te s on air
sovereignty, seriously detracted from air co m m erce and underm ined
the idea of international civil aviation in general.3 7
Thus, in 1944 fifty-four states met in Chicago to discuss the
n e c e ssa ry c h a n g e s in international civil aviation for the post-WWII
international community. As a result of this conference,
international aviation experienced a chang e within a regime. It is
important to note here the difference betw een a regim e c h a n g e and a
change within a regim e. A regime change, according to Stephen
Krasner, is when there are c h an g e s in the principles and norm s.36 A
chan ge within a regime consists of chan ges in the rules or decision
making procedures.39 The 1944 Chicago conference was a change
within a regime and resulted in the modification of the principles
and norms, and c h an g e s in the rules of international civil aviation.
T he altered principle guiding international civil aviation w as that
sovereignty over air sp a ce w as to be diluted and com bined with
20
international regulation. For exam ple, bilateral a g re e m e n ts would
determ ine the routes with individual g o v ern m en ts controlling the
carriers to operate th e s e routes. Fares w ere to be negotiated by the
airlines within the fram ew ork of the International Air T ransport
A s so c ia tio n .40 The norm w as that nations would have som e
jurisdiction to traffic originating in their country a n d that decisions
regarding air transportation would be m ad e m ore on a multilateral
rather than unilateral basis. R ules were created concerning the
"establishm ent of international routes"41 and new decision making
procedures w ere created. T he important point about the new regime
w as that while traffic rights, routes and other issu e s w ere still
governed by bilateral negotiations there w as a new a c c e p ta n c e of
the idea of "freedom of the airs"42 that e a s e d tensions am ong the
sta te s and o p ened up opportunities for increased com m erce and
t r a n s p o r ta tio n .
3. Creation and Role of the International Civil Aviation
Organization in the International Aviation R egim e
The C hicago C onvention further formalized the international
aviation regim e through the creation of the International Civil
Aviation Organization. At this point a distinction should be m ade
betw een a form al and an inform al regime. An informal regime is
"created and maintained by conv ergence or c o n s e n s u s in objectives
am o n g participants, enforced by mutual self interest and
g en tlem en 's ag re em e n ts, and monitored by mutual surveillance"4 0
21
In other words, informal regim es are m an a g ed and governed by the
states them selves b a se d on sh a re d objectives. An exam ple of an
informal regime, one m ay argue, is the pre-Vienna Convention (1961)
diplomatic regime. While there a re now formal rules, such a s those
governing diplomatic immunity, th ere is still no organization or
international body to govern or k eep w atch over the sta te s in the
regime. S tates, sharing the objective of maintaining com m unication
ties to eac h other, have tacit understandings and rules, so m e that
are hun dred s of years old, that govern diplomatic relations.
On the other hand, formal regim es are "legislated by
international organizations, m aintained by councils, c o n g re s s e s or
other bodies and monitored by international beauracracies."44 With
the birth of the ICAO in 1944, Part II, articles 43-63 of the
Convention D ocum ents, the international aviation regime b e c a m e
quite formal. The International Civil Aviation Organization w a s to
legislate and deal with technical, safety, and navigational m atters
of aviation. The Chicago Convention designated the IATA, an
institution com prised of airline c o m p an ies, to deal with air fares,
global scheduling, reservations, and a com m unications system .
Thus, the international aviation regime, after 1944, w a s and is
governed by the ICAO/IATA arrangem ent.
The importance of the creation of the ICAO specifically, and
of international organizations in general, a s part of international
regimes, is that they i n c r e a s e the potential for cooperation am on g
sta te s in a given issue area by providing an are n a for the exchange of
information. International O rganizations provide a structure for
22
states to deal with com m on interests and shared objectives. As
Christer Jonson writes, "...an explicit regime, b a se d on written legal
docum ents, which d esig n ates a specific organization a s the central
decision making forum or even regime caretaker, and which is
adhered to by a large majority of states, ap p ea rs to maximize the
potential for that particular organization to effectively a s s u m e a
linking-pin position."4 6 Or a s Robert K eohane writes of the
positive contributions of international organizations,
Close ties am ong officials involved in m anaging
international regim es increase the ability of governm ents
to m ake mutually beneficial agreem ents, b e c a u se
intergovernm ental relationships, ch aracterized by
ongoing com m unications am ong working level officials,
informal a s well a s formal, are inherently m ore conducive
to the exchange of information than are the traditional
relationships betw een close b e au racracies.4 6
In other words, organizations such a s the ICAO, which finds its
authority in the legal docum ents of the Chicago Convention, and has
172 m em bers, provides a forum for the exchang e of information
concerning international aviation am ong its m em bers, and thus
increases the c h an ce of cooperation am ong states.
Thus, b e c a u se the ICAO has becom e part of the central
decision making p ro ce ss and caretaker of the international aviation
regime, and b e c a u se it is charged with legislating and dealing with
safety and security issues, a study of the international community's
response to air terrorism necessitates a study of the ICAO and its
23
abilities to respond to air terrorism. After a careful analysis, one
will find that while so m e of the problem s that face the ICAO are
particular to international civil aviation, there are other problem s
which are inherent in all international regimes.
IV. ICAO-STRUCTURE AND ITS EFFECT ON THE ORGANIZATION'S
ABILITY TO COMBAT AIR TERRORISM
The ICAO w as formed in 1944 at Chicago under Part II Chapter
VII of the Convention on International Civil Aviation. T he
organization consists of an assem bly, a council, a double-headed
executive, and a secretariat. The assem bly is m ad e up of the 172
contracting m em bers to the convention. Each m em ber has one vote
on any issue that c o m es before the assem bly, and the assem bly
m eets at least once every three years.
However, it is the council that p resen ts the organization with
a structural obstacle in fighting air terrorism. T he council is a
p erm anent body of 33 representatives elected by the assem bly.
According to article 50(b) of the Convention the assem b ly is to elect
the council, giving a d e q u a te representation to three categories of
contracting m em bers: S ta te s that a re of chief im portance in air
transport, s ta te s which m ake the largest contribution to the
provision of facilities for international civil air travel, a n d sta te s
ensuring geographic representation.
T he council is the m ost powerful entity of the organization
b e c a u s e it h a s legislative a n d executive authority without prior
24
approval of the assem bly.4 7 It has the power to take whatever
steps are n ecessary to en su re the safety and regularity of
international air transportation. T he council can adopt technical
standards a s a nn ex es to the convention without moving through the
ratification process. Furthermore, the council h as the power to
settle disputes and to interpret the convention. Given this power,
mem bership on the council is a coveted prize for those states having
an interest in international civil aviation. Obtaining m em bership on
the council h as becom e a heated political process with constant
lobbying, especially by nations that fall into the third category.
It is this politicization of the council that prevents it from
effectively dealing with air terrorism. As with all political
lobbying, concessions are often m ad e by those parties interested in
power positions. T hese concessions are promised in return for votes
from constituents or other organization m em bers. Although the
literature h as not docum ented any specific deals m ad e in order to
obtain a council seat, one can imagine that the following scenario
may occur in the ICAO. Many nations that are pursuing council se ats
in the third category are either from geographic regions in which air
crimes are often initiated, such a s Africa or the Middle East, or need
the votes of nations that would be negatively effected by the
implementation of further air security standards. T h o se nations
pursuing se a ts may m ake prom ises to thwart any further standards
aim ed at combating air terrorism in return for the votes n e cessary
to a sce n d to the council. In addition, the sh e e r size of the council
(33 m em bers), and the variation in beliefs and national concerns,
25
could often lead to d isa g reem en ts am o n g the m em bers about
security issu es. T h e se d isa g re e m e n ts and the inability to resolve
them further w e a k e n s the council's potential ability to effectively
fight air crim es.
In addition to the structural an d politicization problem s that
face the council, the ICAO a s an international organization is often
challeng ed with other political q u e stio n s that prevent it from
effectively com bating air terrorism. In 1962 the ICAO w as unsure
of how to deal with South Africa and the policy of apartheid b e c a u se
it w a s not clear how apartheid hindered the safety of international
civil aviation.48 In other words, could the ICAO b eco m e involved in
the dom estic social policies of o n e of its m em b ers? It w as argu ed
that sanctions again st South Africa would be ineffectual b e c a u s e
bilateral a g re e m e n ts on civil aviation had b e e n com pleted betw een
South Africa and other nations concerning a global sy stem of
ticketing, contractual arra n g em e n ts, a n d pooling and leasing of
aircraft.4 9 A b a n on air links with South Africa w as attem pted, and
in 1971 the ICAO b an n ed South Africa from all meetings. South
Africa retaliated by su sp en d in g its p ay m en t obligations. In turn the
ICAO, under article 62 of the Convention su s p e n d e d S.A.'s voting
privilege. Finally, attem pts to expel South Africa from the ICAO
failed b e c a u s e expulsion w as d e p en d e n t on a General Assem bly vote
according to article 93 bis of the Convention, (and the G.A. did not
call for such action) an d b e c a u s e the A ssem bly of the ICAO failed to
p a s s an a m e n d m e n t to the Convention permitting expulsion of
m em b ers without U.N. recom m endation. Thus, the implementation of
26
san ction s and expulsion of s ta te s are politically difficult p r o c e s s e s
and im pede the ICAO's battle with air terrorism.
V. ICAO-CONVENTIONS ON AIR TERRORISM
1. The Chicago Convention
In discussing the ICAO’s relationship to hijackings and air
terrorism, it is important to note that w hen the Convention first
convened in 1944, such events and the resultant c h ao s w ere not
contem plated by the Contracting M em bers. T he original 54 s ta te s to
the Convention believed that aviation would be an important elem ent
in reconstructing the international a re n a after the war, and that
"freedom of the air would be part of the general pursuit of freedom
and security'*50 As the pream ble to the Convention states,"W hereas
the future develop m en t of international civil aviation can greatly
help to create and preserve friendship and understanding am ong the
nations an d peoples of the world, yet its a b u s e can beco m e a threat
to general security."51
Despite the pream ble, the original focus of the Convention and
the Organization w as not p e a c e and security, but rather econom ic,
social, technical, an d hum anitarian efforts. T he majority of the
articles in the convention dealt with such topics a s licensing of
aircraft (articles 32 and 33) rules of the air (article 12), and
international sta n d a rd s and rec o m m e n d ed practices for transport of
p a s s e n g e rs and cargo (articles 37-42). Not o ne article in the
27
original Convention d isc u sse s airport and airplane security in the
event of criminal activity. Thus, when hijackings b e g an to capture
international attention in the early 1960's the ICAO lacked the
instruments to deal with such threats to the safety of air travel.
2. The Tokvo Convention
This lack of forethought and su bseq uent establishm ent of
regulations regarding air terrorism led the ICAO to create three new
conventions and d o c u m e n ts specifically dealing with air security.
The first effort to a d d re ss the problem of hijackings w as the
Convention on Offenses and Certain Other Acts Committed on Board
Aircraft, signed in Tokyo in 1963. The Tokyo convention requires
states to "take all appropriate m e a su re s to restore control of the
aircraft to the lawful com m ander, to permit the p a sse n g e rs and
crew of the hijacked aircraft which land on its territory to continue
their journey, and to return the aircraft and cargo" to its rightful
o w n e r s . 52 However, the Tokyo convention did not call for the
punishm ent of hijackers or terrorists, it did not contain a
requirement of extradition or prosecution. In this s e n s e it w as a
deficient instrument in term s of air security b e c a u s e without
punishm ent there really w a s not any deterrent for hijackers.
28
3. The H ague Convention
As the years p a sse d , the international community did not
really show an interest in dealing with air terrorism 5 3 and the
num ber of hijackings increased. Two mid-air explosions in February
of 1970 forced the ICAO to review its security m easu res. T he result
w as the Convention for the Suppression of Unlawful Seizure of
Aircraft, otherwise known a s the H ague Convention of D ecem ber
1970. The H ague Convention established Universal Jurisdiction over
offenses against civil aviation on the ground and in the sky.54 More
importantly, it e stab lish ed the c o n cep t that hijackers and air
terrorists should be punished swiftly and severely. Article 2 of the
H ague Convention requires that sta te s create se v e re penalties for
air related crim es. Article 7 obligates the state in w h o se territory
the alleged offenders a re found, to extradite the individual(s) or
move swiftly for their prosecution. This latter p ro ce ss h as c o m e to
be known a s “aut dedere, aut judicare” and is one of the most
important c o n ce p ts in dealing with air terrorism today.
Furtherm ore, the extradition requirem ents m ake it clear that
hijackings are to be included in any existing extradition treaty
betw een sta te s and obligates sta te s to include them in future
a g r e e m e n ts .5 5
29
4. T he Montreal Convention
In 1971, the third of the ICAO security conventions w as
com pleted in Montreal. This convention reiterated the obligations of
the H ague Convention but dealt mostly with crim es against civil
aviation on the ground, such as the planting of explosives. Finally, in
1974 the ICAO, pursuant to article 37 of the Convention, created
Annex 17, International S tan dard s and R e co m m e n d e d Practices-
S ecurity-S afeguarding International Civil Aviation A gainst Acts of
Unlawful Interference. This docum ent created binding obligations
and non-binding su g g estio n s for the contracting s ta te s regarding the
screening of b a g g a g e and p a sse n g e rs, the architectural design of
airports, and other security m easu res. However, Annex 17 is not
com preh en sive and “contains only broad sta te m e n ts of policy on
what is required, leaving eac h state to decide how th e se m e a su re s
are to be applied.” 56 As much progress a s th e se
conv en tio n s/d o cu m en ts m a d e in theory to com bating air terrorism,
they w ere not com prehensive enough to completely d eter hijackings.
They did not discu ss sanctions against s ta te s who harbor terrorists
or sta te s who detain hijacked planes for p u rp o se s of blackmail.
Similarly they did not a d d re s s the difficulties in the
extradition/prosecution obligation, for m an y natio ns inflict only
nominal penalties and refuse to prosecute or extradite. Nor did they
give en o u g h technical guidelines for the im plem entation of security
m easu res. It is th e s e issu es that w ere not dealt with in the
30
conventions that have lead to som e of the problems that face the
ICAO in dealing with air terrorism.
VI. ICAO AND AIR TERRORISM-TECHNICAL AND PHYSICAL OBSTACLES
1. Detection Devices And Research and Development
Before considering so m e of the legal and political problems
that face the ICAO in dealing with terrorism, it is extremely
important to exam ine the technical and physical obstacles to
eradicating hijackings and mid-air detonation of explosives. One
major problem is the cycle of air disaster-technology development.
In this cycle the technology needed to com bat air terrorism, such a s
updated detection devices, usually follows an incident of unlawful
aeronautical interference. This c re ate s a merry-go-round in which
an attack reveals inadequacies in the security system , the problems
are met, and terrorists find alternative m ethods of breaching
secu rity .57 Thus,, security detection and screening devices lag
behind tactics of air terrorism and only prevent hijackings and
bom bings by individuals employing “old” tactics. The solution, then,
is to cre ate security devices which anticipate terrorist tactics.
P eter St. John writes, “G ood security involves outthinking the
te rro rist”5 ® In short, the problem is that so m e air terrorists have
been sm arter and one step ah ead of those creating the security
devices.
31
To outthink the terrorist and prevent air terrorism requires
research and development, which in turn requires funding. It is this
funding for research and developm ent of technological security
devices, as well a s the cost to nations of such m easures, which
create further obstacles to the ICAO. As the Memorandum of the
ICAO, an explanatory booklet released by the organization, says,
“current need by far e x c e e d s existing resources.”59 This problem is
com pounded by the fact that only those nations which have
experienced terrorism are willing to cooperate financially and
scientifically in the developm ent p ro cess of security, while those
nations which have not experienced air terrorism ap p ea r less willing
to aid the fight against unlawful aeronautical interference.
Furthermore, even if new devices w ere created that left security
one step ah ead of the hijacker/terrorist, the cost of such technology
would be prohibitive for many nations. Much of the new technology
for the detection of explosives is extremely expensive. Devices
which have been created to detect plastic explosives such a s C-4,
Sem tex, or Plastique, or instrum ents that detect the nitrogen
com pounds in explosives (Thermal Neutron Activation) remain
unaffordable for many nations, and a s mentioned above, the ICAO
does not have the funds to subsidize these nations in order to
implement such devices.
32
2. The Obstacle Of Airport Design
In addition to th ese technological problems, there is also the
problem of airport design. In article 4.5 of Annex 17, the ICAO set a
general requirement for the architectural design of airports in order
to increase safety. Article 4.5 states:
Each contracting state shall ensure that the
architectural in frastru c tu re -related re q u ire m e n ts
n e ce ssa ry for the optimum implementation of
international civil aviation security m e a su re s, are
integrated into the design and construction of new
facilities and alterations to existing facilities at
a irp o rts .6 0
The problem here is that there se e m to be no specific guidelines for
the design an d construction of airports in order to en h an ce security.
All that article 4.5 requires is that m e a su re s be taken to integrate
security into the design of the airport. It d o es not offer any
methods or plans for design.
However, in his book Air Piracy. Airport Security, and
International T errorism . Peter St. John d isc u sse s airport design
with architectural and security experts an d offers som e
suggestions. St. John su g g ests that parking at all airports should be
away from the terminal, with shuttles or moving sidewalks that
transport the p a s s e n g e rs to the terminal. Furthermore, relatives
and friends should not be allowed to enter the airport, or be at the
gate (a plan which has been implemented in many airports already;
33
only individuals with tickets can m ove p a st the x-ray m achines and
tow ards the gate). This p ro c e ss is known a s “sterilization.”61 It
isolates the p a s s e n g e r s for better detection an d screening devices,
a s well a s “sterilizing” the terminal from n o n -p a s s e n g e rs who may
h av e criminal motives. In addition to this sterilization, St. Joh n
rec o m m e n d s that all airports have a perim eter fence with intervals
of guard to w e rs.62 This allows for control of the airport from its
surroundings, further enabling security personnel to monitor who
enters and who leaves the entire prem ises. St. John also su g g ests
that the terminal and perim eter n e e d to be m ad e small, with less
s h o p s and restaurants in order to more easily m an a g e people, to
control crowds, an d to stream line p a s s e n g e rs to the security
c h e c k p o in ts .63 T here should be covert screening and surveillance,
such a s c a m e ra s and infrared devices built into the airport structure
to increase security. Finally, St. Joh n su g g e sts a double line system
of screening p a sse n g e rs . At the first line, the ticket counter,
b a g g a g e would be checked with x-ray and m agnetom eter devices,
while p a s s e n g e rs m ove through overt and covert security. At the
se co n d line, the gate, there would be a body pat, and a carry-on
luggage search. In addition, boarding of the plane would continue to
be strictly broken up by s e a t num ber so the crew could study the
p a s s e n g e r s . 6 ^ Ideally, th e se structural plans should be required by
the ICAO b e c a u s e they would greatly e n h a n c e security; however, as
with technology, the co sts of su c h elaborate an d technical design,
with all the n e c e s s a ry equipm ent, are prohibitive for m any nations
and the ICAO is not in a financial position to subsidize such plans.
34
In short, any requirement more elaborate than article 4.5 is
unfeasible at this time.
3. The Inadequacy Of Security Personnel
Yet even if all airports w ere to follow a strict architectural
standard, and new technology w ere affordable or subsidizable by the
ICAO there still is the human problem. As one security industry
expert notes “Security m easu res are only a s effective as the people
who enforce them .”66 According to many experts security
personnel are completely inadequate and under-qualified for the job.
Since training h as been left to the airlines, and airlines are profit
maximizing organizations, they have their security personnel trained
by the firm with the lowest bid. As a result, those charged with the
responsibility of screening of p a sse n g e rs and luggage are poorly
trained, do not have any motivation, are paid poorly, and have no
reason to feel good about them selves or their job.66 In addition, as
one expert notes, “running a security scanner is probably one of the
most boring jobs in the world.” 67
This problem of incompetent security personnel has been
studied by Issac Yeffet, former director of EL AL security. He found
that at different airports, especially those in the United States,
security could easily be breached. For example, in San Francisco he
and his colleagues were able to create a diversion and board a plane
u n d e te c te d .68 In another instance, he w as able to move his baggage
past an x-ray machine by throwing his jacket over the device.69 In
35
addition, he found that w hen p a s s e n g e rs w ere questioned by security
personnel at airports in Europe, the questions w ere usually of the
“y e s or no” type which d o e s not give a g en ts m ore time to study the
p a s s e n g e r s for tell tale signs of lying.7 0 Finally, Yeffet found a
relaxed attitude about luggage. In so m e c a s e s he left pieces of
luggage un atten ded for long periods of time during which security
personnel w ere slow to rem ove them. In Israel this would not have
h ap p en e d due to the fear of a bom b detonating in the airport or being
picked up and carried onto a plane. Unfortunately the ICAO can only
set requirem ents for training and paym ent of personnel. The ICAO,
once again d o e s not have the funds to properly train and pay
individuals. Thus, the ICAO m ust rely on the cooperation of the
contracting states, to properly a n d adequ ately train security
m em b ers, which is a major im pedim ent to eradicating air terrorism.
4. Airport P e rso n n e l
Finally, terrorists often b re a c h security by using individuals
who work at the airport. They bribe or blackmail them to sm uggle
w e ap o n s and bom bs on-board an aircraft. Again, the ICAO can only
set regulations about the hiring and screening of airport support
staffs. T he ICAO could require com puterized card a c c e s s of airport
em ployees, a s d o e s FAA regulation 107, in order to control those
who enter a n d exit airport facilities. But again, this is an extremely
expensive m ethod which m ost countries do not want to finance, and
which the ICAO cannot subsidize. More important, a s long a s
individuals c an be bought or bribed there is no security system that
can be devised that will thwart the objectives of hijackers and
t e r r o r i s t s .
It is important to note at this point that the technical
problems d iscu ssed above are problem s specific to the ICAO and the
international aviation regime. Furtherm ore, while inadequate
financing is at the root of th e s e problem s, further research about
the specific problem s of other international regim es and
organizations is n e c e ssa ry to determ ine w hether financing p lagues
regim es and organizations in general.
VII. LEGAL/POLITICAL PROBLEMS IMPACTING THE EFFICACY OF THE
ICAO
1. C ooperation And S o v ereig nty
In addition to the technical and logistical problem s d isc u sse d
above, the ICAO is also faced with political and legal o bstacles to
com bating terrorism. T h e s e o b sta cles are generally the product of
nations' inability to co operate and a g re e with each other and with
the regulations set forth by the ICAO. As E ugene Sochor, author of
The Politics of International Aviation M 991L writes, “T he problem
is that while eac h country knows what is best for itself, there is no
political c o n s e n s u s on what is best for all."71 Thus, when one
nation refu ses to extradite a terrorist for political re a s o n s or for
fear of retribution by the terrorist organization, that particular
37
nation is thinking only of itself in the short term and not of the
c o n seq u e n ce s for the international community in the long term. By
refusing to extradite or prosecute the hijacker that nation se n d s a
m e s s a g e to would-be hijackers that the nations of the world will
not punish them and thus they are free to continue their spree of
terror to attain their objectives. Similarly, w hen so m e nations fail
to implement the security requirements and suggestions of the ICAO,
or they do so but in a lax manner, they create a patchwork of
security. Here so m e nations may be fighting to put a halt to
terrorism, but their efforts may be for naught if a hijacker slips
through security at an airport of a less then fully cooperative nation.
Finally, nations are unable to ag ree on specific m easu res due to
differences in opinion and politics. For example, so m e nations, such
a s Lybia or Iran, have often viewed Islamic terrorists a s freedom
fighters rather than air criminals and therefore refuse punish them.
Thus at the Hague convention, the U.S., the U.S.S.R and Israel pushed
for unconditional extradition, but the “Arab states balked at the
prospect of sending offenders [often Arab brethren] to face trial in
the U.S., South Africa, or Israel.”7 2
Underlying this problem of cooperation in the a re a of
international aviation security is the inability or difficulty nations
have with relinquishing even a bit of sovereignty. States are and
“have been reluctant to c e d e jurisdictional and other legal pow ers to
international b odies"73 a s well a s to other nations. This protection
of sovereignty “has m eant that a global resp o n se to terrorism has
been greatly w e a k e n e d .”74 In other words, m easu res by different
nations to thwart air terrorism have not been unified even though
the ICAO has set out general guidelines to be followed in Annex 17.
Yet, in order to com bat air terrorism nations must act in a unified
manner. Governm ents m ust work among them selves, with the ICAO
and other international organizations to develop a strong and
comm on response to crimes in the sky.
2. E nforcem ent Prob lem s--S anctions
Related to the problems of cooperation and sovereignty in
fighting air terrorism is the ICAO’s inability to effectively enforce
the obligations of contracting states enum erated in the security
conventions and in Annex 17. In particular are the difficulties that
the ICAO faces with establishing sanctions against nations that do
not comply with its obligations, especially the extradite or
prosecute rule, or nations that harbor terrorist groups. For the
p u rposes of this discussion, sanctions range from prohibiting
airlines from landing in an offending nation, to prohibiting aircraft
of the offending nation from landing in other states, to full
economic sanctions. It should be noted that at the Chicago
Convention in 1944, the concept of sanctions or the need for
coercive compliance w as not discussed b e c a u se it w as believed that
all would cooperate for postwar air developm ent.75 Thus, when air
terrorism b e c a m e a real problem for the international community,
the ICAO did not really have enforcement or punishment m easu res in
39
place to force sta te s to comply with the Conventions on the illegal
in terference of aircraft.
As the n e ed for enforcem ent grew, the ICAO’s legal committee
m et in London in 1970 to discuss the possibility of creating an
international convention on the u se of sanctions to com bat air
te rro ris m .7 8 It w a s argued that one of the basic problems with the
use of sanctions w as the ICAO’s co m petence to prepare a convention
on sanctions. Many felt that the ICAO lacked jurisdiction to decide
if there had been an act of aggression that required the u se of
sanctions, and that such a determination should be left to the U.N.
Security Council under article 41 of the U.N. charter.77 Therefore,
the issue of sanctions w as left unresolved. Even if the problem
could have b een rectified, there rem ained questions about the
potential a g re em e n t on sanctions: (1) “Should an enforcem ent
system be b a se d on multilateral a g re em e n ts, bilateral a g re e m e n ts
or both? (2) Should su spensio n of services be decided by majority
vote or weighted vote? (3) Who is to judge w hen a state is in
d e fa u lt? ”78 T h e se questions in turn indicate and continue to
sym bolize the larger problem with sanctions: (1) That various groups
of countries cannot ag ree on the rules guiding sanctions. (2) Som e
nations cannot agree on w hen and which sanctions to apply. (3)
Other nations completely o p p o se the u se of sanctions.
This problem w as evident in 1973 at a sim ultaneous session of
the Assembly and the International C onference on Air Law. Here,
m any nations w anted m ore stringent enforcem ent m e a su re s to
com bat the rash of terrorism affecting the world. T he United
40
States, con cern ed about nations that provide a safe haven for
individuals w ho in any way unlawfully interfered with international
civil aviation, called for a convention that “provided for a m eeting
of interested air services s ta te s to decide upon what action should
be taken with respect to the defaulting state. This action could have
included the su sp e n sio n of all international air navigation to and
from the defaulting state.”7 9 The United Kingdom w anted to am en d
the Chicago Convention by inserting the obligations of the Tokyo,
Hague, and Montreal Conventions. The U.K. also wanted to am end
article 87 of the Chicago C onvention which requires all contracting
sta te s to bar ‘the operation of an airline of a contracting state
through the air s p a c e abo ve its territory if the Council h a s decided
that the contracting sta te c o n c e rn e d is not fulfilling a final decision
rendered by the Council under the settlem ent of dispute provisions
of the convention.”80 The U.K. w anted article 87 to include such
sanctio ns w hen a contracting sta te b re a c h e d its obligations under
the new chapter containing the security conventions. The U.S.S.R
w anted to abolish the extradite or p ro se cu te rule, and instead
require com plete extradition w hen req u e ste d by a state. Each
proposal failed to capture the n e c e ssa ry 2/3 vote for adoption of
a m e n d m e n ts or new regulations b e c a u s e the contracting parties of
the ICAO could not a g re e on which, if any, proposal, on sanctions to
adopt.
This inability of the ICAO to adopt a plan for the enactm en t of
sanctions against a state which violates the security conventions
led the Group of Seven (C anada, France, Federal Republic of Germ any,
41
Italy, Jap an , United Kingdom, and the United States) to adopt the
Bonn Declaration while convening at the Bonn Economic Summit in
1978. The S even created “the potential for serious sanctions
against s ta te s that fail to take meaningful law enforcem ent
m e a s u re s again st hijackers.”81 T he problem with this docum ent is
that, a s m any scholars agree, it d o e s not have any binding legal force
and is rather a statem ent of policy.82 As such, m em bers of the
international community, especially contracting parties to the ICAO
are not obligated to en act sanctions against a state which harbors a
terrorist or fails to extradite or prosecute. Even if the Bonn
Declaration did carry so m e legal weight, the enactm en t of sanctions
against a state not party to any of the security conventions raises
questions of international law. For exam ple, a s Geoffrey Levitt
writes, “For a justifiable c h a rg e of violation of legal obligations
against a nonparty to the H agu e Convention that failed to extradite
or prosecute an alleged hijacker, the aut d edere, aut judicare
requirem ent...” a s well a s the prohibition against harboring
terrorists “would have to have acquired the statu s of a custom ary
international legal obligation...”8 8
Yet, in 1981, the Seven tested the Bonn Declaration, and in so
doing another problem with the en actm ent of sanctions b e c a m e
evident. At the time, while m eeting at the O ttaw a Economic
Summit, the S ev en decided that the hijacking of a Pakistan
International Airlines flight a n d the su b s e q u e n t actions of the
Afghanistan regim e in giving refuge to the hijackers violated
Afghanistan’s obligations under the H ague Convention. As a result,
42
the m em b ers of the S e v en w anted to su s p e n d all flights to and from
Afghanistan until it com plied with its obligations. However, the
U.K., France, and G erm any all had bilateral a g re em e n ts with
A fghanistan regarding airline ticketing, leasing of aircraft, an d
other contractual arrangem ents. France, the U.K. and G erm any all
gave notice of the termination of their a g re e m e n ts an d im plem ented
the Bonn Declaration Sanctions. However, the incident indicated
a n other problem with san ctio n s b e sid e s nations’ inability to a g ree
and cooperate. This problem is the result of the m any bilateral
a g re e m e n ts and contracts that nations have regarding air services.
B e c a u s e air transportation is an extremely expensive venture and
requires a g re e m e n ts such a s ticket interlining, an d joint leasing of
aircraft, m any s ta te s would suffer financially and politically if they
w ere to term inate such a g re e m e n ts, and therefore are reluctant to
follow through with sanctions. As E g u en e So ch or writes, “All th e s e
e le m e n ts provide convenient loopholes in defying sanctions."8 4 .
In short, the implementation of a convention on sanctions h a s
often failed; first b e c a u s e of g o v e rn m e n ts’ inability to a g re e on the
rules and proper instances in which to apply sanctions, and se co n d
b e c a u s e of the financial nature of international civil aviation which
leads to n u m ero u s lucrative bilateral ag reem en ts.
43
3. Enforcem ent P ro b le m s -T h e Extradite Or P rosecute
P rin c ip le
As mentioned above, the issue of sanctions has arisen
primarily in the context of nations that harbor terrorists, or those
that fail to extradite or prosecute hijackers. B ecau se the
termination of international air terrorism begins with swift and
effective punishm ent of hijackers, the reluctance of so m e nations to
follow the aut dedere, aut judicare principle p o se s another problem
for the ICAO and the international community in combating air
terrorism. T here are two basic reaso ns why som e nations are lax in
prosecuting or extraditing terrorists. The first is fear. Nations that
harbor terrorists or refuse to comply with the aut dedere, aut
judicare principle fear reprisals from the hijacker's terrorist
organization. T hese governm ents believe that should they take any
action which might offend the terrorist organization, then that
organization will increase its u se of kidnapping, murder, and
detonation of explosives to punish that government. This belief by
so m e governm ents is similar to the reaction of governm ents in
South America, which fail to prosecute or apprehend known drug
cartel lea d ers for fear the cartel will initiate bloody reprisals
against governm ent officials or innocent citizens. In addition, and
similar to the situation with the drug cartels, governm ent officials
in so m e nations are often bribed by terrorist organizations to act in
the best interests of the hijacker. Thus, the official fears that
should he fail to protect the air terrorist, his life will be in danger.
44
A m ore important im pedim ent to the prosecute or extradite
principle is the political o ffen se exception to m ost extradition
agreem en ts. This exception provides that extradition will not be
granted w hen "the offense for which extradition is req u ested is a
political offense or w hen it a p p e a rs that the requ est for extradition
is m ad e with a view to prosecuting, trying or punishing the person
sought for a political offense."®5 The problem here is that m any
nations view hijackings and terrorist crim es against civilian air
travel a s acts of liberation. As Abraham Sofaer, former legal
advisor to the S e c re tary of State, writes, "International terrorism
is still supported by m any nations a s a legitimate m e a n s of struggle
against regim es d e e m e d by them to be colonial, alien, or racist."®6
In such c a se s, sta te s harbor hijackers or refuse to punish them in
the belief that their actions a re politically legitimate and not
criminal. It is the invocation of this legal principle by m any
nations, including the U.S. in the 1950's w hen the governm ent
refused to extradite hijackers b e c a u s e they w ere fleeing
com m unism , that h a s c reated a serious barrier to fighting
international air crim es.
However, there have b e en efforts in recent years to eliminate
hijackers an d other terrorist activity from the political offense
exception. O ne such effort w as a revised extradition treaty betw een
the U.S. and U.K. in response to IRA terrorists escaping to the U.S. and
claiming the political offense exception. T he revised treaty
narrow ed the political offense doctrine to exclude m ost violent
c rim es.® 7 On the international level, the International Law
45
Association, in 1984 adopted proposals regarding extradition
treaties. Included in such proposals is the "political motivation, no
exculpation" idea which states, "No state m ay legally permit a
person who has committed an act of international terrorism to
esca p e trial or extradition on the ground of his political
m otivation."8 * * Unfortunately while th ese are statem ents of law in
the U.K. and the U.S., they do not appear to carry any legally binding
force among other nations. One can only hope that th ese proposals
gain widespread acceptance am ong nations of the world, because
only with international a g re em e n t that the activities of hijackers
and air terrorists are criminal and beyond the boundaries of
legitimate political activity can the ICAO m ove forward in its
efforts to com bat air terrorism.
4. Problems are indicative of general issu es facing most
International regim es
In contrast to the specific technical problem s facing the ICAO,
the problem s d iscussed in this section face all international
regimes and organizations. In general, they are compliance problems
and thus fall into the "compliance component" of Oran Young’s
definition of regimes. For exam ple, the cooperation/sovereignty
issue discussed above, in which m em ber states are reluctant to cede
full jurisdictional power to the ICAO to deal with air terrorism,
p o ses compliance problems for all international regim es and
organizations. Young writes, "conflicts regularly arise betw een the
46
alleged requirem ents of indivisible sta te sovereignty and
obligations im posed by rules of the regime."89 Here, a s with any
a g re em e n t of contract, com pliance with the rules of the
organization a n d regime conflicts with traditional id eas of state
sovereignty. S ta te s are extrem ely reluctant to relinquish partial
jurisdiction and power to international reg im es and organizations.
In addition, the ICAO’s and international aviation regim e's
"lack....of ability to im pose sanctio ns for noncom pliance"99 is
indicative of what Young would call the "underdevelopm ent of
c om p liance m e c h a n ism s that is characteristic of international
regim es in general."91 Here, Young believes that, from the point of
view of the m em bers of a regim e or international organization,
strengthening of com pliance m ec h a n ism s "im poses investm ent
problem s an d .. .g e n erate s opportunity co sts."92 In terms of the
international aviation regim e, the opportunity co sts of complying
with potential sanctions im posed by the ICAO is that a state may
breach its bilateral a g re e m e n t with the sanctioned state. The
complying state then m ay lose flight privileges in the sanctioned
state, risking financial injury to its airlines. Or, the complying
state m ay jeopardize future aviation, com m erce or other a g re e m e n ts
with the sanctioned state, thus risking political injury. In short,
the opportunity costs or risks of com pliance with the rules of the
organization or regime often lead to non com pliance an d the
underdevelopm ent of com pliance m echanism s.
T h e se com pliance problem s indicate that even with regim es in
place, cooperation am ong actors m ay be difficult. For exam ple,
47
m em bers of the GATT trade regime som etim es do not cooperate and
comply with the proscription against raising duties abo v e GATT
a g re em e n t rates or the proscription against "dumping" w hen such
violations a p p e a r to benefit national interests. However, it is
important to rem e m b e r that while all international regim es and
organizations m ay suffer from com pliance difficulties and
cooperation m ay not reach o ne hundred percent, international
regim es and organizations, such a s the ICAO, provide an a re n a for
nations to state their grievances and interests, to negotiate, and to
move a s close a s possible to full cooperation. International
regim es, at the least, foster attem pts at cooperation.
VIII. OPTIONS AND SUGGESTIONS FOR THE ICAO IN DEALING WITH AIR
TERRORISM
Despite the specific problem s facing the ICAO, and the more
general problem s that plague the ICAO and all international regimes,
it is important to exam ine so m e of the suggestio ns m ade by various
scholars an d authorites to com bat air terrorism. While the
suggestions often se e m strong and impressive, it should be noted
that so m e of the potential rem edies suffer from the s a m e problem s
noted ab o v e su c h a s financing or cooperation/sovereignty issues.
48
1. Skv M arshals
Many experts and politicians have m ade intelligent suggestions
that would greatly aid the ICAO in fighting crimes against civil
aviation. One suggestion has been that the ICAO create an
international police force of sky m arshals. T h ese guards would
a p p ea r a s regular p a sse n g e rs traveling on international flights, yet
they would be arm ed and trained in anti-terrorist tactics. In fact,
som e airlines, such as EL AL, Iran Air, and Egypt Air, allegedly
employ sky m arshals regularly, while in the United States, the FAA
has m arshals flying on selected flights. It is believed by so m e that
the presen ce of such policemen would deter hijackings and would
provide an immediate physical resp o n se to the seizure of
international flights. While this suggestion sou n d s plausible and
potentially effective, it d o es contain so m e flaws. The first
problem, a s noted above with other security m easures, is financing.
A force of sky m arshals would be extremely expensive and the ICAO
does not have the funds to train and employ a force of sky marshals.
The only option the ICAO has is to se t requirements that states
employ sky m arshals for international flights, but b e c a u se of the
cost, som e contracting nations may not agree to such obligations.
Another, more practical problem, is safety. As Rodney Wallis,
director of facilitation and security for the International Air
Transport Association, noted, “I don’t want to s e e a gun battle at
35,000 feet with the p a sse n g e rs in the middle.”93 The fear is that
p assen g ers m ay be injured during a gun battle, or a bullet may rip
49
through the cabin wall disturbing the air pressure, thus disturbing
the course of the flight. Even worse, should the hijackers be
carrying g ren ad es then there is the risk that they will blow up the
plane when confronted by sky m arshals.94 In short, the suggestion
that the ICAO employ sky m arshals contains financial and safety
flaw s.
2. Creation Of An International Air Crimes Justice System
Another suggestion has been that the ICAO create an
international air crimes justice system This system , according to
Wallis would contain, “an international advisory group,” consisting
of psychologists and hijacking/terrorist experts, “to support
governm ents during a hijacking, the establishm ent of an
international team of experts to investigate acts of unlawful
interference after the event; the establishm ent of an international
force working in conjunction with the international advisory group
mentioned above, the establishm ent of an international court to try
captured hijackers or other criminals, and finally the establishm ent
of an international detention center w here terrorists could complete
their s e n te n c e s .”95 Again, this plans sounds ideal. In fact, in 1988
the ICAO adopted a plan to create an advisory group to help nations
negotiate in the event of a hijacking and an inquest group to analyze
the events.9 6 In the future, should a court and detention center be
created the ICAO would have complete power to try and to punish
t e r r o r i s t s .
50
However, this plan is also wrought with deficiencies. O nce
again a major problem is financing. Wallis d o e s not su g g e st how
such institutions would be funded. Would the contracting nations be
required to contribute m ore m oney to the organization in order to
maintain th e s e institutions? More important, would the contracting
nations b e willing to contribute to this penal sy stem ? Another
problem with this plan is that s o m e nations m ay not be willing to
cooperate in its implementation. As noted in the discussion on
extradition, m any nations view hijackings and air crim es a s
political acts and thus do not comply with the extradite or prosecute
rule. Given this situation, it is hard to imagine that th e s e s a m e
nations would be willing to c e d e pow er and jurisdiction to an
international court that m ay not view such acts of terrorism a s
political. T h e s e nations m ay even w elcom e hijackers an d terrorists
in order to protect them from international apprehension, and m ay
refuse to turn over such individuals to be tried by an international
court. In other words, b e c a u s e nations have different ideas about
hijackings and air crimes it d o e s not a p p e a r that an effective and
satisfactory a g re em e n t about an international court a n d detention
center for air criminals could be reach ed am ong nations.
Related to this problem of ag re em e n t and cooperation, is that
of sovereignty. As noted above, o n e of the problems that faces the
ICAO in enforcing the security conventions is that sta te s have b een
extremely reluctant to c e d e pow er to an international body.
Similarly, it is difficult to s e e how nations would be willing to give
com plete control over the app rehension and punishm ent of hijackers
51
to an international body. Nations have different beliefs about
justice and punishm ent, so m e s ta te s h a v e strict laws with stiff
penalties on certain crimes an d others are m ore lenient. Thus,
nations are hesitant to completely relinquish the pow er to try and
punish criminals in a cc o rd a n c e with their particular penal codes.
3. Creation Of A Security Cell
Related to this plan of an international penal system for
hijackers is the creation of a security cell. This security cell would
contain a highly specialized terrorist intelligence unit a s well a s
international military/anti-terrorist unit to re s p o n d to hijackings.
T hese units would only be responsible to the ICAO Council.
However, similar to the penal plan, this proposal also suffers
the sovereignty problem. It would be difficult to get nations to
agree to c e d e pow er to an international military force in the event
of a hijacking that occurs within the territory of a particular state.
Most nations believe that this would constitute an infringement upon
their traditional territorial sovereignty an d therefore are reluctant
to create an international military force which the Council of the
ICAO could order to any country in the event of a hijacking. In short,
nations do not want to c e d e any military pow er to an international
body. More important, the question again arises of how to pay
intelligence and military units. B esides the required w a g e s for
personnel, expensive equipm ent such a s com puters and w eap o n s
52
would have to be p u rch ased and a s frequently mentioned above, the
ICAO is not in a financial position to fund such a project.
4. Im plementation Of A Security Tax On Airline Tickets
This financial problem com plicates alm ost every suggestion
m ade to help com bat air crimes and has led to the proposal of a
security tax. The plan is that the ICAO, through an am en dm ent to
Annex 17, would require that at least a one dollar security tax be
paid on every airline ticket purchased. The funds would be used to
improve the training of security personnel, and for the resea rch and
developm ent of new security technology. As Paul Wilkinson,
chairman of the R ese arch Foundation for the Study of Terrorism
notes, “W e n e e d a global...international security fund, ideally
administered by the ICAO, to introduce updated technology and
training ever for the airports of the poorest countries. O therw ise
terrorists will exploit th e s e w eak links.”9 7 Given th e s e w eak links
in security and the fact that any plan that the ICAO adopts to com bat
air terrorism will require funding, the justification for a tax plan
would be strong. As o ne journalist noted “safety costs
m oney...carriers and individual airports are going to have to increase
spending to e n su re safety for the traveling public. And this rising
cost....will trickle down... to the pocketbook of the p a s s e n g e r.”9 8
However, the relatively small tax on an airline ticket s e e m s a small
price to pay for in creased security in air travel, and thus the tax
53
plan may be the first tactical move in a strategy to combating air
te r r o r is m .
5. Tightening Of Extradition R equirem ents
Though most plans for improving air security by the ICAO
require funding, som e have m ade recom m endations that would not
involve financing. One suggestion, a s noted above, has been to
tighten the extradition requirem ents for hijackers and air criminals
by eliminating the political offense exception. If this w ere done,
the nations who harbor or sponsor terrorism would not have a reason
to refuse extradition or prosecution, and alm ost every hijacker
would be punished for his crimes. This sure threat of punishment, it
is argued, would deter hijackers and air criminals in the future. The
problem here is that in order for nations to follow this tightened
extradition plan they would all have to ag ree on the principle that
hijackings and terrorist actions are not political offenses. Given
that many nations are not ready to accept this, it d o e s not ap p ear
that all nations would a g re e to or follow a stricter extradition rule.
6. Increased Sanctions Power For The ICAO
Similarly, som e argue that the ICAO should have the power to
impose sanctions like that of the U.N. Security Council. But a s noted
above, plans for ICAO sanctions have consistently failed due the
inability of sta te s to a g re e on the guidelines for sanctions (i.e. who
54
decides when to employ them) and on the situations in which they
should apply. More importantly, since the air transport industry is
characterized by bilateral contracts and ag reem en ts, the problem
remains that nations may not abide by a decree of sanctions.
Nations would refuse to follow through with internationally
m andated sanctions in order to comply with their agreem en ts and
thus avoid financial loss. On the other hand, Sochor believes that
bilateral ag reem ents can b e used to secure com pliance with
sanctions and other international civil aviation obligations. He
no tes that many of the bilateral ag re em e n ts registered with the
ICAO have been am ended to include clauses which "reconfirm and
reinforce on a bilateral basis the obligations a cc ep ted by the parties
on a multilateral level at Tokyo, the H ague or Montreal..."99 T hese
clauses also provide for the termination of the a g re em e n ts if one of
the parties d oes not abide by the aviation security conventions. The
creation of release c lau ses in bilateral a g re em e n ts eliminates one
justification for nations not to ad h ere to a m an d ate of sanctions
against a state that violates the security conventions. In other
words, breach of the bi-lateral contract, in so m e c a s e s , would no
longer be an excuse for not enforcing sanctions. Thus, if this trend
of release clauses continues, and if states could ag ree on the
guidelines for ICAO sanctions {which may be easier if the
financial/political p re s su re of bilateral a g re e m e n ts is lifted with
th e s e s release clauses) it is possible that they could be effective in
com bating air crimes.
55
7. Unilateral Action Bv S ta te s
Finally, the present inability of the ICAO to apply sanctions
and to enforce the aut dedere, aut judicare has led som e to suggest
that until states can a g ree to battle air crimes collectively,
unilateral action in the apprehension and punishm ent of terrorists is
morally and legally justified. This is su g g e ste d in spite of the fact
that such action would violate the norms, rules and decision
procedures of the ICAO and the international aviation regime. The
leading advocates of this position are Israel and the United States.
Officials in both nations argue that hijackings, air crimes, and other
terrorist activity have morally and practically bent the fundam ental
rule of territorial integrity.10 0 According to Abraham Sofaer, in
addition to the territorial principle, sta te s have other international
duties which they are obliged to follow. S tates have the duty “to
avoid aiding pirates and other international criminals...the duty to
prosecute or extradite...and when a state fails to fulfill th ese
duties...the moral and legal c a s e for and adversely effected state to
use the necessary and proportionate m e a n s to rectify the effects of
violations of international law in cre ases.”101 As such, states can
abduct terrorists and try them under principles of universal
jurisdiction, p a ssiv e personality jurisdiction, and protective
jurisdiction. Under the universal principle states m ay prescribe and
prosecute “certain offenses recognized by the community of nations
a s of universal concern, such a s piracy, slave trade, attacks on or
hijacking of aircraft, genocide, air crimes, and p erhap s certain acts
56
of terrorism.”1 02 The p assiv e personality principle states that a
state may punish non-nationals for crimes committed against its
nationals outside of its territory, at least w here the state has a
particularly strong interest in the crime.”103 Finally, the
protective principle allows jurisdiction where an offense has been
committed that threatens the security of the state.
The application of two of th ese principles w as evident in the
case United States v. Fawaz Yunis 30 I.L.M 404. In that c ase U.S.
officials had reason to believe that Yunis w as the leader of the
hijacking of Royal Jordanian Airlines flight 402 in 1985. After
obtaining an arrest warrant, U.S. agents operating under the code
nam e Operation Goldenrod, lured Yunis onto a yacht with prom ises of
a drug deal. O nce the vessel w as in international waters the agents
arrested Yunis and brought him to the United States to stand trial.
Yunis argued that the U.S. lacked jurisdiction to prosecute him. The
U.S. Court of Appeals for the District of Columbia disagreed citing
universal and passive personality jurisdiction and thus confirmed
the conviction of Yunis in the lower court.
Similarly, in 1972 Israel am e n d ed its O ffenses Committed
Abroad Act to read “The courts in Israel are com petent to try under
Israeli law a person who has committed abroad an act which would
be an offense if it had been committed in Israel and which harm ed or
w as intended to harm the State of Israel, its security, property, or
econom y or its transport or communication links with other
c o u n tr ie s .”104 In 1973 an Israeli military court, under this
am endm ent convicted Faik Bulut of the offense of belonging to Al-
57
Fatah, a terrorist organization bent on the destruction of Israel.
Bulut had been captured in 1972 during a military raid into Lebanon.
Bulut, like Yunis argued that Israel's law w as invalid and that Israel
lacked jurisdiction to prosecute him. However, the Israeli military
court disag reed citing the protective principle a s justification for
the 1972 am en d m en t and for its jurisdiction.
Thus, som e nations have becom e frustrated in the battle
against air crimes and other terrorist acts and have resorted to
unilateral abduction and prosecution of offenders. The belief is that
the capture and trial of a few hijackers will deter others from
attempting air crimes, and will send a m e s sa g e to would be air
criminals that at least a few nations are serious about combating
air terrorism .105 It should be noted that so m e argue that unilateral
action may w eaken the possibilities and “undermine the legal and
political b a s e s ”106 f0 r collective action. Som e states may resent
the unilateral actions of other governm ents which violate norm s of
international law such a s the territorial principle, and thus refuse
to enter into collective a g re e m e n ts to com bat air terrorism.
However, in the face of the ICAO’s inability to successfully com bat
air terrorism, the refusal of so m e nations to cooperate with
sanctions and the aut dedere, aut judicare principle, and the fact
that so m e nations continue to support air terrorism, it s e e m s that
unilateral action may be one of the only options left for som e
nations to e n su re the security of international air travel.
58
IX. WHICH IS THE STRONGEST OPTION?
After presenting the obstacles that face the ICAO in combating
air terrorism and the su ggestio ns that have b een m ad e to rem edy the
problems, the question rem ains, which option offers the best
strategy in fighting air crim es? T he ideal a n sw e r to this question
is, for sta te s to fully comply with the e x tr a d ite or p r o s e c u t e
principal, thus creating a system of punishm ent and d e te r r e n c e for
air criminals. However, for the re a so n s noted above, especially the
difficulty s ta te s have in cooperating with o n e another, this
presently d o e s not a p p e a r to be a practical solution. Similarly,
in creased sanctions will not solve the problem b e c a u s e nations
cannot fully cooperate, despite the p resen c e of the ICAO a s the
international aviation reg im e ’s forum for negotiation and
cooperation. More importantly, a s long a s there exists a strong
network of bilateral a g re e m e n ts betw een nations concerning the
b u sin e ss of air transportation, nations will have a justification for
not adhering to sanctions. Only w hen multi-lateral a g re e m e n ts
about ticket prices, airship leasing, and other b u sin e ss decisions
prevail will sanctio ns b e co m e a viable option in the war against air
te r r o r is m .
Given the inadequ acies of the political and legal solutions, it
a p p e a rs that the b est option is to improve the technology available
and the technical sta n d a rd s required in com bating air terrorism. As
noted above the largest problem with technology is funding. O ne
solution to the problem is to a s s e s s a one dollar tax on every air line
59
ticket p u rch ased. This proposal is extremely sound. Firstly, given
the great am ount of global air travel and the p u rch a se of airline
tickets, su c h a tax could raise large am o u n ts of m oney with which
the ICAO could finance research and developm ent of security
technology and subsidize the security m e a s u re s of needier nations.
Furtherm ore, there should be little objection to the tax, even from
poorer nations, b e c a u se air line tickets are already expensive. A one
dollar tax will not render air travel prohibitive nor will it keep
individuals from purchasing tickets. In short, the a s s e s s m e n t of a
security tax would ap p ea r to be a productive initial ste p in
com b atin g air terrorism.
However, a s noted above, even with the b est technology,
terrorists m ay find a gap in the security system s. Consequently,
there n e e d s to be a disincentive for air criminals to se a rc h for the
sm allest security cracks. The p resen t inability of nations to
extradite or prosecute or to im pose sanctions, leaves the
international community with the next b e st option, S ofaer's idea of
unilateral a p p re h e n s io n of air criminals. This idea inhibits
cooperation am o n g nations for two reasons: 1) it infringes upon the
territorial principle, an d other international rules of jurisdiction,
and 2) it diverges from the ICAO/international aviation regim e’s
norms, rules and decision procedures. However, unilateral
a p p r e h e n s i o n likely to upset only those nations who refuse to
c o o p e ra te with the extradition or prosecution principle in the first
place, an d thus such unilateral action may indicate to them just how
serious air terrorism is to th o se nations who have b e e n victims of
60
air crimes. Additionally, such unilateral a p p reh en sio n may be the
only method by which air criminals are a ssu re d punishment, thus
acting a s a deterrent to further crimes. Until full multilateral
cooperation can be obtained, this unilateral apprehension and
punishm ent of air terrorists is the best supplem ent to the air ticket
tax. T hese two options, if taken together, would greatly increase
the ability of the ICAO/internationai aviation regime and national
governm ents to effectively com bat air terrorism.
X. CONCLUSION
The recent lull in air terrorism is not necessarily an indication
that the phenom enon has disappeared. Instead, a s history has shown,
hijackings and other air crimes occur in cycles, and this respite is
simply the downside of another cycle. Consequently, the
international community m ust continue to concern itself with air
security. T he International Civil Aviation Organization, a s titular
head of the international aviation regime, is entrusted with setting
the standards for air security. Through the Tokyo, Hague, and
Montreal Conventions, a s well a s Annex 17 to the Chicago
Convention, the ICAO has attem pted to set forth obligations and
sugg estion s for the contracting sta te s in the fight against air
crimes. O ne of the most important principles of th ese conventions
is the aut d e d e r e . aut judicare rule, requiring nations to e x trad ite or
p r o s e c u te air criminals. The idea is that through swift and severe
punishm ent future air criminals will be deterred. However, the
ICAO is unable to enforce this and other obligations through
sanctions or other m ethods b e c a u se , as is true with international
organizations and regim es in general, its com pliance m ech an ism s
are weak. Similarly, the plans and options put forth by officials and
scholars in an effort to in crease air security suffer from the s a m e
cooperation/com pliance problem s an d thus cannot be implemented.
Finally, m any of the recom m endations m ade in the conventions, a s
well a s suggestions m ad e to the ICAO to enact further security
requirem ents require large expenditures of money. Unfortunately the
ICAO d o e s not have the finances necessary to subsidize such
security m ea su re s, nor to subsidize poorer nations so that they
th em selves can implement th e se suggestions. This lack of
cooperation and finances c re a te s a patchwork of security which
leads nations to take unilateral action in com bating air terrorism.
S o m e nations, in violation of the territorial principle of
international law, a p p re h e n d and try air criminals. They justify
their actions by citing universal a n d p assiv e personality jurisdiction
over the air criminals.
The information in this study leads to the conclusion that the
ICAO's s u c c e s s in com bating air terrorism h as b een limited.
Q uestions then arise: (1) Can compliance m echanism s be
stre n g th e n ed ? (2) Are unilateral actions m ore effective than
multinational sa n ctio n s? (3) Is either effective by itself or in
combination with the other? With the information obtained from
ad eq u a te studies of th ese questions, perhaps the ICAO could begin to
formulate new re s p o n se s or modify existing ones. Such information
62
would allow a m ore conclusive determination of the current and
potential effectiveness of the International Aviation R egim e in
com bating air terrorism .
63
End Notes
1. Peter St. John, Air Piracy. Airport Security, and International
Terrorism: Winning the W ar Against Hijackers, p.5 (1991) Quorum
Books; New York, Westport Connecticut, London.
2. Ibid., p.5
3. Ibid., p.6
4. Ibid., p.6
5. Ibid., p.3
6. Ibid., p.3
7. Ibid., p. 16
8. Ibid., p.21
9. Ibid., p.6
10. Ibid., p. 10
11. Ibid., p. I 10
12. J. Schreiber, The Ultimate Weapon: Terrorists and World Order.
(1978) William Morrow; New York.
13. Christer Jonsson, International Aviation and The Politics of
Regime Change, p.2 (1987) St. Martins Press; New York.
14. Ibid., p.2
15. Stephen Krasner, "Structural Causes and Regime Consequences:
Regimes as Intervening Variables", in International Regimes, edited
by Stephen Krasner, p.2 (1983) Cornell University Press; Ithaca and
London.
16. Ibid., p.2
64
17. Jonsson, International Aviation and The Politics of Regime
Change, p. 13
18. Krasner, "Structural Causes and Regime Consequences: Regimes as
Intervening Variables", in International Regimes, p.2
19. Ibid. p.2
20. Oran Young, International Cooperation: Building Regimes for
Natural Resources and the Environment, p. 12 (1989) Cornell
University Press; Ithaca and London.
2 1. Ibid., p. 16
22. Ibid., p. 17
23. Ibid., p. 19
24. Ibid., p.20
23. Ibid., p. 13
26. Robert Keohane, After Hegemony: Cooperation and Discord in the
World Political Economy, p.61 (1984) Princeton University Press,
Princeton, New Jersey.
27. Ibid., p.79
28. Ernst B. Haas, "Words Can Hurt You", in International Regimes.
edited by Stephen Krasner, p.26 (1983) Cornell University Press;
Ithaca and London.
29. Jonsson, International Aviation and The Politics of Regime
Change, p. 18
30. Ibid., p.21
31. Ibid., p.27
32. Ibid., p.28
33. Ibid., p.29
63
34. Ibid.
35. Ibid.
36. Ibid.
37. Ibid., p.30
38. Krasner, "Structural Causes and Regime Consequences: Regimes as
Intervening Variables", in International Regimes, p.6
39. Ibid.
40. Jonsson, International Aviation and The Politics of Regime
Change, p.34
41. Ibid.
42. Ibid.
43. Donald J. Puchala & Raymond F. Hopkins, "International Regimes:
Lessons from Inductive Analysis", in International Regimes, edited
by Stephen Krasner, p.65 (1983) Cornell University Press; Ithaca and
London.
44. Ibid.
45. Jonsson, International Aviation and The Politics of Regime
Change, p. 154
46. Ibid., p.59
47. Eugene Sochor, The Politics of International Aviation, p.58 (1991)
University of Iowa Press; Iowa City.
48. Ibid., p.45
49. Ibid.
50. Ibid., p.3
66
51. Convention on International Civil Aviation. Chicago 1944. Copy of
the sixth edition. Document obtained from the International Civil
Aviation Organization; Montreal, Canada.
52. Sochor, The Politics of International Aviation, p. 164
53. Ibid., p. 165
54. Ibid., p. 166
55. Ibid.
56. Ibid., p. 146
57. St. John, Air Piracy. Airport Security, and International
Terrorism; W inning the W ar Against Hijackers, p.68
58. Ibid., p.78
59. From the Memorandum on ICAO, p.52. Document obtained from
the ICAO; Montreal, Canada.
60. Annex 17: International Standards and Recommended Practices
on Security. Fifth Edition. Document obtained from the ICAO;
Montreal, Canada.
61. St. John, Air Piracy. Airport Security, and International
Terrorism; Winning the W ar Against Hijackers, p.79
62. Ibid.
63. Ibid.
64. Ibid., p.80
65. Janet Cawley, "Airports Fight Terrorism Proposals to Toughen
Security", Chicago Tribune. January 19, 1986. News; p. 1
66. St. John, Air Piracy. Airport Security, and International
Terrorism; Winning the W ar Against Hijackers, p.86
67. Janet Cawley, "Airports Fight Terrorism Proposals to Toughen
Security", Chicago Tribune. January 19, 1986. News; p. 1
68. St. John, Air Piracy, Airport Security, and International
Terrorism: Winning the W ar Against Hijackers, p.88
69. Ibid.
70. Ibid.
7 I. Sochor, The Politics of International Aviation, p. 159
72. Ibid., p. 170
73. Robert E. Hill, "Aviation Security: How to Safeguard International
Air Transport", from the Aviation Security Conference as The Hague,
1987.
74. St. John, Air Piracy. Airport Security, and International
Terrorism: Winning the W ar Against Hijackers, p. 135
75. Sochor, The Politics of International Aviation, p. 164
76. Ibid., p. 167
77. Ibid.
78. Ibid., p. 168
79. John F. Murphy, Punishing International Terrorists: The Legal
Framework for Policy Initiatives, p. 18 (1985) Rowman & Allanheld
Publishers; Totowa, New Jersey.
80. Ibid.
81. Geoffry M. Levitt, "Collecitve Sanctions and Unilateral Actions", in
Ariel Piracy and Aviation Security, edited by Yonah Alexander and
Eugene Sochor, p. 113 (1990) Martinus Nijhoff Publishers; Dordrecht,
Boston, London.
82. Murphy, Punishing International Terrorists: The Legal
Framework for Policy Initiatives, p. 19
83. Levitt, "Collecitve Sanctions and Unilateral Actions", in Ariel
Piracy and Aviation Security, edited by Yonah Alexander and Eugene
Sochor, p. 113
84. Sochor, The Politics of International Aviation, p.54
85. Murphy, Punishing International Terrorists: The Legal
Framework for Policy Initiatives, p.44
86. Abraham Sofaer, "Terrorism and the Law", Foreign Affairs. p.901
vol: Summer 1986. !986 Council on Foreign Relations Inc.
87. Ibid.
88. Murphy, Punishing International Terrorists: The Legal
Framework for Policy Initiatives, p.58
89. Young, International Cooperation: Building Regimes for Natural
Resources and the Environment, p.25
90. "Report of the President's Commission on Aviation Security and
Terrorism", Executive Order 12686. p.21 (1989)
91. Young. International Cooperation: Building Regimes for Natural
Resources and the Environment, p .2 1
92. Ibid.
93. Janet Cawley, "Airports Fight Terrorism Proposals to Toughen
Security", Chicago Tribune. January 19, 1986. News; p. 1
94. Ibid.
95. St. John, Air Piracy. Airport Security, and International
Terrorism; W inning the W ar Against Hijackers, p. 187
96. Michael Donne, "Hijack Accord Needs to be Strengthened"
Financial Times, American News, p.4 June 22, 1988.
97. St. John, Air Piracy. Airport Security, and International
Terrorism; W inning the W ar Against Hijackers, p. 187
98. Janet Cawley, "Airports Fight Terrorism Proposals to Toughen
Security", Chicago Tribune. January 19, 1986. News; p .1
99. Sochor, The Politics of International Aviation, p. 179
100. Ibid., p. 174
101. Ibid., p. 175, citing Abraham Sofaer.
102. United States v. Fawaz Yunis. 30 I.L.M. 404, 423. (1991)
103. Ibid.
104. Murphy, Punishing International Terrorists: The Legal
Framework for Policy Initiatives, p.51
105. Sochor, The Politics of International Aviation, p. 175
106. Levitt, "Collecitve Sanctions and Unilateral Actions", in Ariel
Piracy and Aviation Security, edited by Yonah Alexander and Eugene
Sochor, p. 122
70
Bibliography
Books
Alexander, Yonah and Eugence Sochoer. Ariel Piracy and Aviation
Security. Dordrecht, Boston, and London: Martinus Nijhoff Publishers,
1990.
Jonsson, Christer. International Aviation and The Politics of Regime
Change. New York: St. Martins Press, 1987.
Keohane, Robert. After Hegemony: Cooperation and Discord in the
World Political Economy. Princeton, New Jersey: Princeton University
Press, 1984.
Krasner, Stephen (Editor). International Regimes. Ithaca and
London: Cornell University Press, 1983.
Murphy, John R. Punishing International Terrorists: The Legal
Framework for Policy Initiatives. Totowa, New Jersey: Rowman &
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St. John, Peter. Air Piracy. Airport Security, and International
Terrorism: Winning the W ar Against Hijackers. New York, Westport,
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Resources and the Environment. Ithaca and London: Cornell
University Press, 1989.
Newspaper Articles
Donne, Michael. "Hijack Accord Needs to be Strengthened" Financial
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71
Fleischauer, Carl-August. "U.N. Legal Framework" New York Times,
July 5, 1985, section A, p.24.
Jones, Tamara and John J. Goldman. " 11-Hour Hijack Ends Without
Injury in New York" Los Angeles Times, February 12, 1993, p. I.
Mashberg, Tom. "Jet Hijacked from Europe to N.Y. Gunman Gives Up
on Arriaval at JFK; No One is Injured" The Boston G lobe, February
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McFadden, Robert. "U.S. Details Careful Plan of Hijacker" New York
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Sharn, Lori. "Aviation Eyes Global Ban on Small Radios" USA Todax,
February 17, 1989, p.lA.
Vincent, Stuart and Glen Kessler. "How Crisis Unfolded: Emergency
Teams Race into Action" Newsday, February 12, 1993, p.41.
"Channon Call for World Air Security Talks" Financial Times,
January 25, 1989, U.K. News, p.6.
"Germany Vows to Find Lapse; Government Considers
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Reports, Journal Articles, and Cases
Leich, Marian Nash. "Current Development: Four Bills Proposed By
President Reagan To Counter Terrorism," American Journal of
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"Report on the President's Commission on Aviation Security and
Terrorism" Executive Order 12686; August 4, 1989.
Sofaer, Abraham D. "Terrorism and the Law," Foreign Affairs.
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Bulletin. August 1988. p.46.
72
United States v. Fawaz Yunis. 30 I.L.M. 404, 423. (1991)
Documents Obtained from the International Civil Aviation
Organization; Montreal Canada
ICAO. "Annex 17 to the Convention on International Civial Aviation:
International Standards and Recommended Practices— Security-
Safeguarding International Civil Aviation Against Acts of Unlawful
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Session of Assembly in 1992.
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73
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Creator Paritzky, Ethan Jay (author)

Core Title Air terrorism and the international aviation regime: the International Civil Aviation Organization

School Graduate School

Degree Master of Arts

Degree Program International Relations

Degree Conferral Date 1994-12

Publisher University of Southern California (original), University of Southern California. Libraries (digital)

Tag OAI-PMH Harvest,political science, international law and relations,sociology, criminology and penology,transportation

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Contributor Digitized by ProQuest (provenance)

Advisor Seward, John A. (committee chair), Friedheim, Robert L. (committee member), Smith, Edwin M. (committee member)

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