Conclusion D. The Sanctions Convention (1973) C. The Montreal Convention (1971) B. The Hague Convention (1970)...

INTERNATIONAL TERRORISM VIS-A-V13 AIR-HIJACKING Henry Steelman* Despite more than 300 hijackings, 400 deaths, and millions of dollars in damaged equipment since 1947, the number of states that have ratified the three conventions aimed at curbing the problem of air-hijacking is pitifully low. Only forty-seven states have ratified the Tokyo Convention, 1 which attempts to provide a jurisdictional basis for prosecuting offenders; fifteen states have ratified the Hague Convention, 2 which strengthens the procedures for prosecuting persons involved in the illegal seizure of aircraft; and thus far, no countries B. A., University of California at Los Angeles, 1972; J.D., Southwestern University School of Law, 1975. Mr. Steelman is now in private practice in Beverly Hills. 1. Convention of Offenses and Certain Other Acts Committed on Board Aircraft, Sept 14, 1963, (1969) 3 U.S.T. 2941, T.I.A.S. No. 6768; 58 AM. J. INT'L L. 566 (1964). 2. Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16,1970, (1971) 22 U.S.T. 1641, T.I.A.S. No. 7192; 65 AM. ]. INT'L L. 440 (1971). T TABLE OF CONTENTS VI. Introduction... 85 Nature of Terrorism via Air-Hijacking...86 A. A Brief History...87 B. The Hazards to Civil Aviation...88 C. The Hijackers...89 D. Defining the Crime...91 National and International Anti-Hijacking Laws...93 United Nations Resolutions...96 ICAO Conventions...99 A. The Tokyo Convention (1963)...100 B. The Hague Convention (1970)...101 C. The Montreal Convention (1971)...102 D. The Sanctions Convention (1973)...103 E. Enforcing ICAO Conventions...104 Conclusion...106 I. INTRODUCTION 85

(\ 86 SOUTHWESTERN UNIVERSITY LAW REVIEW [Vol. 9 t have ratified the Montreal Convention, 3 which contains the most extensive provision for universal jurisdiction over offenders. Although the states participating in the conferences that prepared these conventions displayed an unusual degree of cooperation on highly sensitive issues, it remains to be seen whether the conventions will be implemented adequately. Clearly, hijacking will not be stopped in the absence of universally applied agreements to prosecute offenders. Until such agreements are utilized, the airlines must rely upon technical devices to prevent hijackings from occurring. For example, a few years ago Eastern Airlines introduced many of the pre-flight screening procedures suggested by the United States Federal Aviation Administration, including physical detection devices and a psychological "profile" of potential hijackers, as well as in-flight methods of prevention. This article will highlight the magnitude of the hijacking problem for civil aviation, and provide the historical and political background of events culminating in recent international legal efforts to prevent hijacking. II. NATURE OF TERRORISM VIA AIRCRAFT HIJACKING The problem of international terrorism is immediate and complex. Terroristic violence knows no geographic limits, nor is it confined to any one political cause. In his address before the United Nations General Assembly, Secretary Rogers stated: The issue is not war war between States, civil war, or revolutionary war. The issue is not the strivings of people to achieve self-determination. Rather it is whether millions of air travellers can continue to fly in safety each year. It is whether a person who receives a letter can open it without fear of being blown up. It is whether diplomats can safely carry out their duties. It is whether international meetings... can proceed without the ever present threat of violence. In short, the issue is whether the vulnerable lines of international communication the airways and the mails, diplomatic discourse and international meetings can continue, without disruption, to bring nations and people together. All who have a stake in this [must take] decisive action to suppress these demented acts of terrorism. We must take effective steps to prevent the hijacking of international civil aircraft. 4 3. Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, Sept. 23, 1971, T.l.A.S. No. 7570; 66 AM. J. INT'L L. 455 (1972). 4. Secretary Rogers' address before the United Nations General Assembly, Sept. 25,1972. 4., 1977] INTERNATIONAL TERRORISM 87 A. A Brief History Although the spate of aircraft hijacking in the 1960's, particularly since 1967, has made air piracy seem like a new phenomenon, its antecedents go back to 1930, when Peruvian revolutionaries seized control of a Peruvian aircraft to flee the country. 5 That particular hijacking remained the solitary aberration in the otherwise smooth operation of international civil aviation until 1947. Since then, hijackings generally have occurred in waves, often reflecting a disturbed social or political climate in one or several countries or regions. From 1947 to 1953, hijackings were instigated by political turmoil in Eastern Europe in the postwar period; from 1958 to 1961, by civil war, the overthrow of the Batista dictatorship, and the establishment of a new regime in Cuba; and from 1967 to the present, by political disaffection in the United States, militant left-wing and guerilla action in some Latin American countries, intensified political oppression in some Eastern European countries, and Palestinian guerilla movements in the Middle East. The first wave, lasting from 1947 to 1953, consisted of fourteen successful and two aborted hijackings. 6 All of the successful hijackings were committed by persons trying to flee Eastern European countries. In 1953, aircraft hijackings from Bulgaria, Czechoslovakia, Poland, Rumania, and Yugoslavia ceased abruptly, perhaps reflecting intensified political security measures, including travel restrictions, in Eastern Europe. In 1958, a second wave of hijackings occurred and was followed by eleven successful and five attempted hijackings in 1960. During this period, Fidel Castro was consolidating his control in Cuba. Consequently, most of the hijackings involved Cubans fleeing to the United States. Thus, each one of the twenty-five successful and seven attempted hijackings, stretching over a period of thirteen years, was from a communist to a noncommunist country. The year 1961, however, marked a change in this one-way traffic. In May 1961, the first hijacked United States aircraft was diverted to Cuba. Since then there have been over 300 cases of hijackings, all 5. The antecedents of piracy itself of course go much farther back in history, in fact, the word "hijack" is believed to have originated in the eighteenth century. Ill W. MORRIS & M. MORRIS, DICTIONARY OF WORDS AND PHRASE ORIGINS (1971). 6. Statistical data on the incidence of aircraft hijacking vary according to the compiler's criteria. The figures used here are based upon the following sources: N.Y. Times, NEWSWEEK, TIME, U.S. NEWS & WORLD REPORT. 7. Id.

i'lf'.i,.-' ^F\ ':':'(."^.V.,...**.! i fjf. 8S SOUTHWESTERN UNIVERSITY LAW REVIEW [Vol. 9 except twenty-eight of these incidents occurring after 1967. The destination of most of these hijackers, from both the United States and Latin American countries, has been Cuba. In the case of Colombia alone, for example, over twenty aircrafts have been hijacked to Cuba since late 1967. The most bizarre arena of hijackings during the past nine years has been the Middle East. Most of these incidents involved airlines operating on one of the routes to Israel.' Thus far, aircraft registered in fifty-two countries have been subjected to hijacking. 10 The number of countries that have a direct interest in stopping this phenomenon nearly doubles if the nationality of passengers on hijacked aircraft is taken into account. For example, between January 1969 and June 1970 there were 118 incidents of hijacking and fourteen of sabotage and armed attacks against civil aviation, involving airlines of forty-seven nations and more than 7,000 passengers of eighty-three nationalities." B. The Hazards to Civil Aviation Any violence committed on board the aircraft, especially incapacitation of pilots, either by the hijacker or by those trying to subdue him, can lead to a disastrous crash. There have been many incidents of violence aboard hijacked aircraft in which pilots, copilots, other crew members, and passengers suffered serious and sometimes fatal injuries. It is remarkable that relatively few aviation disasters have resulted from the hijackings that have occurred in the past four decades. It was nothing short of a miracle, for example, that the lives of 155 passengers and crew members aboard an El Al airliner were saved in September 1970. In that incident, when the crew tried to overpower one of the two hijackers, he threw a handgrenade which failed to detonate because of a faulty spring. 12 There is always the danger that a weapon carried by the hijacker may discharge accidentally, or that a nervous hijacker may fire a few shots to impress crew members. There have been many incidents of this type, although fortunately, in all cases the aircrafts involved have been able to land safely. Such a mishap occurred in August 1970, when during an attempted hijacking of a Polish airliner a bomb held 8. u. 9. Ministry for Foreign Affairs, Middle East Information Series: Accessories to ferror, Appendix. Israel Information Center, July 1973. 10. ICAO Doc. 8895, Res. A/17, p. 5. 11. Id. 12. NEWSWEEK, Sept. 14,1970. 1977] INTERNATIONAL TERRORISM 89 by the hijacker accidentally exploded and injured the hijacker and ten passengers. 13 Whether accidental or intentional, the result may be injury to the passengers or extensive, possibly crippling, damage to the aircraft. Another danger in long-distance hijackings is that the aircraft may run out of fuel. This possibility is present especially in cases of aircraft serving domestic routes. Thus far, pilots and crew members have been able to persuade hijackers to permit the aircraft to land if it is necessary to refuel. Another problem is that an aircraft may run out of fuel while circling over the airport. Such a catastrophe almost occured in August 1969, when a TWA jet hijacked during a flight from Los Angeles to Tel Aviv landed at the Damascus airport with only a few minutes supply of fuel remaining. 14 C. The Hijackers Although the current motives for hijacking include such-diverse purposes as the collection of ransom and political blackmail, the most frequent objective of hijacking has been flight from a country for personal, social, or political reasons. Politically motivated individuals have been responsible for a majority of the hijackings that have occurred in the past twenty-five years. According to a recent INTER- POL report, while 35.6% of aerial hijackings are perpetrated by mentally deranged persons, or, more rarely, by ordinary criminals, 64.4% are committed for political reasons." Hijackers fall into four broad categories: criminals or suspects fleeing from the law; mentally disturbed persons; persons who see hijacking as their only means of escape from a particular political or social system; and political militants who hijack planes for the purpose of political blackmail. A considerable number of the hijackers of United States aircraft to Cuba are criminals or suspects fleeing from the law. 16 Mentally disturbed hijackers are individuals who desire to leave their personal environment at any cost or who commit hijackings as an act of bravery. Among these are individuals who, because of their mental condition, are stimulated to attempt hijacking after hearing about a hijacking or after seeing films of aircraft hijackings or 13. NEWSWEEK, Aug. 24, 1970. 14. NEWSWEEK, Sept. 1, 1969. 15. ICAO Doc. LOWorking Draft 744-2(9), cited in US Doc. A/PV. 1914,25 Nov. 1970, pp. 23-25. 16. N.Y. Times, Nov. 25,1968, at 1, col. 1. %!b

-.- ) 90 SOUTHWESTERN UNIVERSITY LAW REVIEW [Vol. 9 bombings. Such persons account for a substantial number of hijackings of United States airliners. 17 The largest single category of hijackers is comprised of those who claim political motivation for their acts and are willing to run enormous risks to escape from a political or social system they detest. This group includes left-wing revolutionaries such as the Black Panthers of the United States, Latin American political militants, young Communists in Japan and South Korea, members of diverse liberation movements in the Middle East, and radicals and right-wing politicians and opponents of communist and facist systems. Also included in this category are those individuals who are denied the right to leave a particular country to settle elsewhere such as the Soviet Jews. Cuban expatriates desirous of returning to their native land and United States army deserters also fall into this category. A relatively new group of hijackers is composed of militants who hijack aircraft purely for political blackmail. These hijackers hold the passengers of the aircraft hostage while bargaining for the release of their colleagues, who are either in the harids of an enemy state or are facing trial in their own country for revolutionary activity. Such hijackings have been related to the Arab-Israeli conflict and, with the exception of two incidents, have been confined to the Middle East. 18 The first hijacking of this type occurred on July 23, 1968, when three members of the Popular Front for the Liberation of Palestine (PFLP) 19 hijacked an El Al airliner to Algiers. The Israeli crew and Jewish passengers of the aircraft were detained by Algeria, which demanded the release of an unspecified number of PFLP members by Israel. Two similar incidents followed, one involving an American airliner in 1969 and the other a Greek airliner in 1970. 20 The most 17. HOUSE COMM. ON INTERSTATE AND FOREIGN COMMERCE, AIRCRAFT PIRACY, H.R. REP No. 91-93, 91st Cong., 1st Sess (1969). 18. N. Y. Times, July 23,1970, at 1, col. 6, id. Sept. 1,1968, at 1, col. 7; Sept. 4,1968, at 2, col 6; Sept. 18, 1968, at 6, col. 1; Oct. 30, 1972, at 1, col. 1. 19. The PFLP was formed in October or November of 1967 from a coalition of four organizations dating back as far as the early 1950's. Said to have been second in size to Al-Fatah, the PFLP vied for this rank with a group called Sa'iga. The PFLP was in important respects unique among the fedayeen groups. Interestingly, if not most importantly, its membership contained a large portion of Christians, and its chief leader. Dr. George Habash, was a Christian. The central quality of the PFLP was its militant, Marxist-Leninist-Maoist ideology. Concentrating upon its revolutionary doctrines as the main concerns, it tended to view traditional Arab goals as somewhat secondary, if by no means inconsequential. N.Y. Times, Sept 1 1968, at 1, col. 7; id. Sept. 4, at 2, col. 6; id. Sept. 18, at 6, col. 1. 20. NEWSWEEK, Sept. 1, 1969, N.Y. Times, July 22, 1970. 1977] INTERNATIONAL TERRORISM 91 stunning example of political blackmail by aircraft hijacking occurred on September 6, 1970, when three planes belonging to TWA, Swissair, and BOAC were hijacked by the PFLP to an abandoned airstrip in Jordan. 21 An attempt by two PFLP members to hijack an El Al airliner was aborted, but a fifth plane, a Pan Am 747, was hijacked to Cairo. The five hijackings were part of a PFLP plan to seek the release of Arab commandos in Israeli, German, and Swiss prisons. After nearly three weeks of negotiations, all the passengers were released. In exchange, West Germany and Switzerland agreed to free six Arab guerillas, while the United Kingdom released Leila Khaled, one of the two persons who had attempted to hijack an El Al airliner but was arrested when the plane landed at Heathrow airport in London. Thereafter, a series of similar hijackings have occurred. 22 The most recent was the hijacking of an Air France jet by the Palestinians. 23 Israel, taking an uncompromising stand, rescued the hostages and killed the hijackers in the most daring and successful commando raid attempted. 24 D. Defining the Crime "Aircraft hijacking" or "air piracy," the terms generally used to describe the act of illegal seizure of an aircraft in flight and its diversion to a nonscheduled destination, are, in fact, misnomers. "Piracy," as defined in article 15 of the 1958 Geneva Convention on the High Seas, involves an illegal act of violence committed (a) for private ends, 21. U.S. NEWS 4t WORLD REPORT, March 19, 1973. 22. N.Y. Times, May 16,1974, at 1, col. 1, Usting all hijackings between April, 1973 through April, 1974: Apr. 9, 1973 Arab terrorists attempted to attack an Israeli plane at Nicosia, Cyprus. Apr. 27, 1973 An Italian was killed in Rome office of El Al by a Palestinian Arab. July 24,1973 A Japanese Air Lines jumbo jet was hijacked and blown up in Tripoli, Ly bia. Aug. 4, 1973 Two Arab terrorists killed five persons and wounded forty-five in a machine-gun attack on passengers in the Athens airport lounge. Sept. 28, 1973 Eight Jewish immigrants from the Soviet Union were taken hostages aboard a train for Vienna. Nov. 25, 1973 Three Arabs hijacked a KLM jumbo jet and flew it to Abu Dhabi. Feb. 10,1974 An attack on an El Al Israel Airlines plane at Munich killed one passenger and wounded eight. Apr. 11,1974 Three Arab guerillas killed a total of eighteen men, women and children in Quiriat Shemona. Nov. 11, 1974 Four Palestinians hijacked a British Airways VC-10 with forty-seven persons aboard at Dubai Airport. 23. NEWSWEEK, July 12, 1976. 24. Id.

- t ft I,«*'" 92 SOUTHWESTERN UNIVERSITY LAW REVIEW by the crew or passengers of a private ship or aircraft, and (b) directed on the high seas or in a place outside the jurisdiction of any state, (c) against another ship or aircraft or persons or property on the latter." [Vol. 9 Both piracy and hijacking involve theft and robbery. Aircraft hijacking, however, is not committed by one aircraft against another, nor is it always committed in international air space "outside the jurisdiction of any state." Moreover, theft of the aircraft itself or robbery of the passengers rarely has been the prime motive of hijackers. To the extent that the hijacker does not undertake the responsibility for returning the aircraft to its rightful owner, hijacking can be considered a form of "theft." There have been some cases in which hijacked aircraft were detained by or left in the state where they lanced, and some of these planes have never been returned to their owners. For example, the El Al airliner hijacked to Algiers by Palestinian guerillas was detained for six weeks by Algeria while it demanded the release of Palestinian guerillas by Israel. An extreme example is the explosion of the hijacked planes, TWA, Swissair, and Pan Am26 on September 6, 1970 by the PFLP. The significant legal and conceptual differences between "hijacking" and "piracy on the high seas," on the one hand, and "aircraft hijacking" or "aircraft piracy," on the other, have been recognized in all recently enacted national and international legislation on the subject. The United States statute on "air piracy" defines the crime as "any seizure or exercise of control, by force or violence or threat of force or violence and with wrongful intent, of an aircraft in flight in air commerce."27 A congressional report, however, clarifies that the meaning and interpretation of this law in no way "shall be influenced by precedents or interpretations relating to 'piracy on the high seas.' "M The Hague Convention avoids the use of either of the two terms and refers to it as "the offense" committed by a person aboard an aircraft who "unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or exercises control of, that aircraft, or attempts to perform any such act."29 25. See ICAO Doc. 8838-LC/157, 1969, p.34. 26. See Pan Am World Airways, Inc., v. The Aetna Casualty and Surety Co., 368 F. Supp. 1098(S.D.N.Y. 1973). 27. Pub. L. No. 87-197, 75 Stat. 466 (1961). 28. HOUSE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, H.R. REP. No. 958,87th Cong., 1st Sess., 1 (1961). 29. The Hague Convention, Art. 1. 1977] INTERNATIONAL TERRORISM 93 III. NATIONAL AND INTERNATIONAL ANTI-HIJACKING LAWS Until the late 1960's, worldwide concern over aircraft hijacking and its impact on international civil aviation was minimal. Accordingly, there were no international conventions on the subject. 30 The status of national laws concerning hijackers, and the severity of the punishments depended, as they still do to a great extent, upon the hijacking involving a country's own airliners. 31 As the initial victims of hijackers, communist countries were the first to enact stringent anti-hijacking laws. In the Soviet Union, not only the execution of the act but also the planning of such an act is a capital offense. 32 In the 1950's, when hijackings were limited to the aircrafts of Eastern European countries and Cuba, anti-hijacking laws were either weak or nonexistent in most noncommunist countries. During the past ten years, however, as an increasing number of nations have recognized the vulnerability of their own commercial airliners to hijacking, they also have enacted anti-hijacking laws. In 1961, after the first hijacking of a United States airliner, the United States promulgated a law that made aircraft piracy punishable by death under certain circumstances, or By imprisonment for not less than twenty years if the death penalty is not imposed. 33 Since the beginning of the current wave of hijackings in the Middle East, several Western European countries also have recognized the need to formulate anti-hijacking laws. 34 The lack of penal laws specifically dealing with hijacking, however, has never prevented a nation from trying and convicting persons of hijacking or attempted hijacking of national airliners. In fact, trials of unsuccessful hijackers have occurred in almost all countries that have experienced hijackings. Hijackers have been tried on various charges such as unlawful possession of weapons, threatening the lives of other people, and robbery. They have been sentenced to prison terms of varying lengths and, in Cuba and the Philippines, to 30. The 1963 Tokyo Convention, which provides, in part, for the safe return of the hijacked aircraft and its passengers, cannot be considered an ann'-hijacking measure as it does not include provisions to curb or deter hijackers. 31. United States v. Cordova, 89 F. Supp. 298 (E.D.N.Y. 1950). In Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249 (1972), the Supreme Court held that in the absence of legislation to the contrary, there is no federal admiralty jurisdiction over aviation tort claims arising from flights by land-based aircraft between points within the continental U.S. 32. N.Y. Times, Jan. 4, 1973, at 74, col. 1. 33. 75 Stat. 466 (1961); 49 U.S.C. 1472(1). 34. Austria, Belgium, German Federal Republic, France, Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, and United Kingdom.

i. 94 SOUTHWESTERN UNIVERSITY LAW REVIEW [Vol. 9 death. In the past six years, Canada, Egypt, Greece, and Poland have sentenced hijackers to long prison terms. In 1970, a Soviet court sentenced nine persons to prison terms ranging from four to twelve years on charges of conspiracy to seize an aircraft in Leningrad, while two others received death sentences, later commuted to fifteen years of hard labor. 35 In the United States, of the sixty-six hijackers who returned voluntarily or did not reach Cuba, thirty-three have been convicted of crimes related to hijacking and have been sentenced to prison terms ranging from two to fifty years. 36 While most nations have been able to punish hijackers of national airliners with or without anti-hijacking laws, few have formulated laws concerning hijackers who unlawfully divert foreign airliners to their own airports. As a general rule, the treatment apportioned to hijackers of the latter type has been dictated by political considerations. In most cases, hijackers have been granted political asylum and have been released. For example, in the early 1950's hijackers from Eastern European countries were never considered criminals in Western Europe; instead, they were cheered for their heroic efforts to escape from communist regimes. Cuban hijackers in the late 1950's were always granted political asylum by the United States. Recently, Middle Eastern countries, particularly Lybia, Syria, and Algeria, have honored Palestinian hijackers. In 1969, for example, Syria issued a postage stamp depicting two Palestinian guerillas with the burning wreckage of a hijacked airliner in the background. 37 In 1970, Lybia gave a heroic welcome to released PFLP terrorists. 38 Since 1967, however, some countries have shifted their attitude of political leniency toward hijackers of foreign airliners. These countries have begun to weigh not only the political but also the criminal aspects of a hijacker's act. There have been several cases in which Western European courts, while acknowledging the right to political asylum, have sentenced Polish and Czechoslovakian hijackers to jail terms ranging from eight to thirty months for violating the rights and 35. The trial of eleven persons, including nine Jews, by the Leningrad court evoked worldwide reaction. Secretary-General Thant and Pope Paul VI appealed to Soviet leaders to spare the lives of the two defendants who had received death sentences. The Soviet Union defended the Leningrad trial as being in the spirit of 1CAO anti-hijacking conventions. See N. Y. Times, July 1, 1970. 36. Of the remaining thirty-three cases, sixteen are pending. In four cases, hijackers have been acquitted, while thirteen cases have been dismissed. Based on Fed. Aviation Admin., Office of Air Transportation Security, Legal Status of Hijackers Summarization (1 May 1973). 37. NEWSWEEK, Sept. 1, 1969. 38. Id. Aug. 24, 1970. 1977] INTERNATIONAL TERRORISM 95 endangering the lives of other passenge/s aboard the hijacked aircraft. 39 Rafel Minichiello, a United States army veteran who hijacked a TWA airliner to Rome in 1969, was sentenced by an Italian court to seven and one-half years in jail on charges of kidnapping and illegal possession of firearms and was released after eighteen months. Since 1969, Cuba is reported to have tried several hijackers of United States airliners as "criminal transgressors" and sentenced them to as much as five years in jail or forced labor on community farms.40 On February 15, 1973, the United States and Cuba entered into an antihijacking agreement which apparently deterred hijacking within the United States. 41 It seems, however, that Premier Fidel Castro of Cuba renounced the agreement on October 15, 1976, to protest what he charged was CIA complicity in the recent crash of a Cuban plane. 42 Thus far, only Israel has taken the uncompromising line adopted by the United States in dealing with threats of international terrorists. 43 This policy was emphasized by President Nixon when on March 1, 1973, eight Palestinian guerillas murdered two American diplomats in Khartoum, Sudan. Most Western European governments have capitulated to terrorists' demands and permitted them to go free in order to prevent killing of hostages and destruction of property. Most Arab governments have opposed strong measures against Arab guerillas out of sympathy with the cause of Palestinian refugees or fear of the terrorists' appeal among Arab masses. Prior to the Khartoum tragedy, the United States repeatedly urged the adoption of an independent convention that would enable participating nations to act in concert against nations that harbored hijackers or saboteurs or failed to return an aircraft, passengers, or crew, regardless of whether the offending nation was a party to the agreement. 44 In the wake of the General Assembly Resolution on 39. An Austrian court sentenced two Polish hijackers, R. Zelotucho and W. Szymankiewicz, to two years, and two years and three months, respectively, in March 1970 after they pleaded guilty to charges of blackmail, inhibiting personal freedom, and illegal possession of firearms. Frankfurter Allgemeine Zeitung, March 12, 1970, at 9. In the first case arising under the new hijacking law in the German Federal Republic, two Czech hijackers, A. Lerch and K. Dolezel, were sentenced to seven years on July 31, 1972. Die Welt, Aug. 1, 1972, at 1. 40. N.Y. Times, May 20, 1973, at 14, col. 3. 41. Cuba-U.S.: Memorandum of Understanding on the Hijacking of Aircraft and Vessels, 12 INT-L LEGAL MAT. 370 (1973); 67 DEF'T STATE BULL. 260 (1973). 42. L.A. Times, Oct. 15, 1976, at 1, col. 5. 43. See notes 22-24 and accompanying text supra. 44. Statements by U.S. Ambassadors to the U.N., W. Tapley Bennett and George Bush on Dec. 8,1972,68 DEF'T STATE BULL. 811 (1973). Set also 1972 U.S. Draft Convention on Terrorism, U.N. Doc. AC 6/L 850 (1972).

<* 96 SOUTHWESTERN UNIVERSITY LA W REVIEW [Vol. 9 Terrorism,45 the United States introduced a Draft Convention for the Prevention and Punishment of Certain Acts of International Terrorism.46 The Draft was not approved partially because of confusion over what it sought to control and what was not prohibited and partially because it was viewed as directed generally against revolutionary movements. As a result, the General Assembly established an Ad Hoc Committee on Terrorism to study the problem and propose recommendations for action. After meeting from July 16 through August 8, 1973, however, the Committee reported that it was unable to agree upon any recommendations. 47 IV. UNITED NATIONS RESOLUTIONS Trials of hijackers of foreign airliners in the country of landing have been rare and sentences imposed upon the accused relatively mild. Moreover, with a few exceptions, hijackers have diverted aircraft to states that not only are unlikely to return them to the state of registration of the aircraft or to the state in which the crime is committed but also are likely to release them. To eliminate this loophole and deny potential hijackers any expectation of a "haven," countries should declare hijacking a universal crime through an international convention. This action would put aircraft hijacking on a par with piracy. A pirate, under international law, does not have the protection of the place where he may be and cannot be granted political asylum. Thus, a pirate can be brought to trial anywhere, by anyone, as an enemy of every state. During the discussion of this issue in the United Nations General Assembly, first in 1969 and again in 1970, several nations characterized hijacking as an international crime.48 In October 1969, twelve nations, introducing the agenda item "piracy in the air," stated in a memorandum that in view of the continuous threat to the safety of passengers and crew of commercial aircraft, it has become urgent for the United Nations to direct its attention to legal measures which might usefully be undertaken by national Governments to prevent further instances of piracy in the air. 49 45. G.A. Res. 2625, 25 U.N. GAOR Supp. 28, U.N. Doc. A/8028 (1972). 46. 11 INT-L LECAL MAT. 1382 (1972). 47. See GAOR Supp. 28, U.N. Doc. A/9028 (1973). The 1961 United States laws on hijacking consisted of a series of amendments to the 1958 Federal Aviation Act, 75 Stat. 466 (1961). The uncertainties as to "air commerce" compared to "foreign air commerce" within the amendments were finally resolved when legislation was adopted in 1970 to implement the Tokyo Convention. Discussed infra. 48. U.N. Doc. A/7656 (1969). 49. U.N. Doc. A/7656 (1969). 1977] INTERNATIONAL TERRORISM 97 A twenty-eight nation draft resolution submitted with the memorandum urged member states to adopt national laws against air piracy and unlawful interference with aircraft and to ensure the prosecution of hijackers. 50 Although the title of this item was later amended to "forcible diversion of aircraft," one of the sponsoring states, the Netherlands, maintained that the practice of seizing aircraft was comparable to piracy on the high seas, insofar as the legal nature of both crimes was concerned. 51 A large number of states that were otherwise willing to support anti-hijacking measures were opposed to declaring air piracy an international crime because it would divest member states of their sovereign prerogative to determine whether to grant political asylum to a hijacker. Furthermore, it was doubted that the General Assembly could, by a resolution, declare any act an international crime. Consequently, the adopted resolution did not declare aircraft hijacking an international crime. It merely urged all member states to ensure that effective legal measures were taken against "all kinds of acts of unlawful interference with, seizure of, or other wrongful exercise of control over, by force or threat thereof, civil aircraft in flight."52 In September 1970, the Security Council, reacting almost immediately to the four hijackings by Palestinian guerillas, urged member states "to take all possible legal steps to prevent further hijackings or any other interference with international civil travel." 53 Deploring the unlawful actions of hijackers, Secretary-General Thant called upon the international community to "adopt prompt and effective measures to put a stop to this return to the law of the jungle." 54 He further stated that "[h]owever understandable and even justifiable some of the grievances of the perpetrators may be these acts [hijacking] are savage and inhumane."55 The incidence of hijackings, according to the Secretary-General, had reached the point "where confidence in the safety of international civil aviation is being seriously undermined."56 In early October 1970, fourteen nations, sponsoring an agenda item on interference with civil air travel, urged the Assembly "to 50. U.N. Doc. A/7656 (1969). 51. U.N. Press Release GA/4080 (Oct. 9, 1969). 52. G.A. Res. 2551 (XXIV) (1969). The resolution was adopted by a vote of 78-18. 53. Security Council Res. 286 (Sept. 9, 1970). 54. U.N. Monthly Chronicle, Vol. 7, No. 9 (Oct. 1970). 55. Id. 56. Introduction to the Annual Report of the Secretary-General, Gener.il Assembly Official Record; 25th Sess. 1970, Supp. No. 1A.

i\ «_ I.; ^K, JfeSfc?.- 98 SOUTHWESTERN UNIVERSITY LAW REVIEW [Vol. 9 consider the matter within the framework of the concern of the international community for the protection of human life and for the promotion of respect for human rights."* 7 As in 1969, the sponsors once again drew parallels between aircraft hijacking and piracy on the high seas. During the debate that followed, there was greater support than in the previous year for the view that hijacking was a form of piracy and therefore classifiable as an international crime. And that action by a State against air pirates should not depend on its municipal la w or the existence of bilateral extradition agreements; and international criminals should be punishable outside that framework, as a matter of justice.58 On November 25, the General Assembly adopted a resolution condemning, without any exception whatsoever, all acts of aerial hijacking or other interference with civil aviation. Adopted unanimously, the resolution called upon all states to "take all appropriate measures to deter, prevent or suppress such acts within their jurisdiction, and to provide for the prosecution and punishment of persons who perpetrate such acts or for the extradition of such persons for prosecution and punishment."59 Again* acting by consensus, the Security Council on June 20, 1972, stated its grave concern "at the threat to the lives of passengers and crew arising from the hijacking of aircraft....'/6 The Council urged states "to deter and prevent such acts and to take effective measures to deal with those who commit such acts."61 In addition, there already exists an international legal obligation for all states to prevent terrorist acts. The United Nations Declaration on Friendly Relations and Cooperation Among States declares: Every State has the duty to refrain from organizing, instigating, assisting, or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed toward the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force.*2 An important advancement occurred on April 21,1973, by the 57. U.N. Doc. A/8091 (1970). 58. Statement by the representative of the U.S.S.R., U.N. Doc. A/c6SR 1221, p. 13 (Nov. 12, 1971). 59. G.A. Res. 2645 (XXV) (1970). 60. Sw 28 GAOR Supp. 2, U.N. Doc. A/9002 (1972). 61. Id. 62. G.A. Res. 2625 (XXV). 1977] INTERNATIONAL TERRORISM 99 United Nations Security Council. 63 In a Resolution resulting from a complaint by Lebanon over raids by Israeli forces on Lebanese territory on April 10, 1973, the Council deplored "all recent acts of violence resulting in the loss of innocent individuals and the endangering of international civil aviation."64 The declaration is a clear reference to the Khartoum assassination and other recent terrorist incidents. In the same Resolution the Council voted to condemn "all acts of violence which endanger or take innocent human lives."65 The most recent line of Draft Resolutions resulted from the Entebbe incident. The United States-United Kingdom Draft Resolution in essence advocates condemnation of hijacking, respect of territorial sovereignty, and further consideration to securing the safety and reliability of international civil aviation. 66 On the other hand, the Benin-Lybia-Tanzania Draft Resolution called for the condemnation of Israel for flagrant violation of Uganda's sovereignty and territorial integrity and for Israel to make full compensation for damages and destruction inflicted on Uganda. 67 V. ICAO CONVENTIONS The 1937 Geneva Convention on the Prevention of Terrorism reaffirmed, as a principle of international law, the duty of every State to refrain from engaging in and to prevent the occurrence of any act designed to encourage terrorist activity directed against other States. This Convention, however, never came into force. 68 Article 2 of the 1954 Draft Code of Offences against the Peace and Security of Mankind adopted by the International Law Commission at its sixth session, echoed the same theme. 69 Similar provisions also appeared in the 1970 Declaration of Principles of International Law concerning Friendly Relations and Cooperation Among States. 70 63. See Security Council Res. 332 (Apr. 21,1973). 64. Id. 65. Id. Further, on December 14,1974, the General Assembly adopted by consensus the Convention on Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents. The text of Resolution 3166 (XXVII), by which the General Assembly adopted the Convention itself may be found at 68 AM. J. INT'L L. 383, 384 (1974). 66. U.N. Doc. S/12138; the Council voted on the draft resolution on July 14; the vote was six in favor (U.S., U.K., France, Italy, Japan, Sweden), with two abstentions (Panama, Romania); Benin, the People's Republic of China, Guyana, Lybia, Pakistan, Tanzania, and the U.S.S.R. did not participate in the vote. Nine affirmative votes are required for adoption. 67. U.N. Doc. S/12139; the draft resolution was withdrawn by its sponsors on July 14. 68. 7 HUDSON INT^L LECIS. 862, 878 (1941). Signed at Geneva, Nov. 16. 1937, but never entered into force. 69. Id. 70. Id.

' *J 100 SOUTHWESTERN UNIVERSITY LAW REVIEW [Vol. 9 Although the United Nations resolutions have been valuable as an expression of the will of the majority of the international community, the real battle for international regulations and legislation to combat air piracy has been carried out in the International Civil Aviation Organization (ICAO), a 122-member specialized agency of the United Nations. ICAO, established in 1944 to assure the safe, orderly, and economic development of world civil air transportation, has been struggling with the problems created by crimes committed aboard aircraft since 1950 long before air piracy drew world-wide attention. 71 By 1968, after an eight-year study of problems relating to crimes aboard aircraft, ICAO's Legal Committee had developed a draft international convention. A. The Tokyo Convention (1963) 72 The Convention on Offences Committed Onboard Aircraft, generally known as the Tokyo Convention, was adopted at a diplomatic conference in 1963. The Convention, which became effective in December 1969, does not deal with measures to deter aircraft hijacking. Instead, it obligates the country in which a hijacked aircraft lands to restore the aircraft to those entitled to its possession. The country is further obligated to permit passengers and crew of the hijacked aircraft to continue their journey as soon as practical. 73 The Tokyo Convention attempted to bring organization and control by the international community over crimes committed on inflight aircraft. It further sought to terminate the fragmentation created by the nation by nation approach to inflight crimes. Specifically, Article 3 grants the state of registration of the aircraft the jurisdiction to prosecute crimes committed onboard the aircraft. Thus, at least one system of law prevails during the duration of the flight. This jurisdiction, it should be noted, does not exclude any 71. A classic example of the chaos that existed around the 1950's can be found in United States v. Cordova, 89 F. Supp. 298 (E.D.N.Y. 1950). On a return trip from Puerto Rico, the defendant and a companion had a dispute over a bottle of rum which resulted in the death of the companion. The defendant was subsequently brought to trial in New York under violation of Title 18 of the United States Code. The court in rendering its decision held Title 18 to be only applicable to crimes committed on vessels on the high seas and was not applicable to aircraft above the high seas. The court thus lacked jurisdiction to prosecute the defendant. The Congress amended 7 of Title 18 of the United States Code to confer jurisdiction over certain crimes committed on American airplanes in flight over the high seas or over waters within the admiralty and maritime jurisdiction of the United States (Act of July 12,1952,66 Stat. 72. Text of the Convention at 58 AM. J. INT'L L. 566 (1954). The Tokyo Convention came into force on Dec. 4, 1969. 73. U. 1977] INTERNATIONAL TERRORISM 101 other nation that also may have a cause of action against the offender. Additionally, the Tokyo Convention is marked by the specific grant of police power to the aircraft commander74 and an immunity from prosecution as a result of the commander's exercise of his power. 75 A careful analysis of the Convention reveals its inadequate treatment of unlawful seizure of aircrafts. 76 The Convention failed to declare hijacking a crime under international law. This omission resulted from an express agreement to make no attempts to define penal offenses, not even those which are obviously crimes under national laws such as culpable homicide. 77 The offender may be taken into custody by any contracting state and held for criminal proceeding or for extradition, but neither action is mandatory. 78 In fact, Article 16 makes it clear that the Convention does not create an obligation to grant extradition. To bring these broad powers into force requires acts which jeopardize the safety, or good order and discipline of the craft. Consequently, the importance of the Tokyo Convention was to set the legal foundation for the subsequent Hague and Montreal Conventions, which focused more directly on the problem of hijacking. B. The Hague Convention (1970) 79 In September 1968, in the wake of increased incidents of air hijacking and sabotage, the ICAO Assembly passed a resolution that requested its Council to study measures to cope with the problem of unlawful seizure of civil aircraft. ICAO's Legal Committee appointed a subcommittee, which considered this issue at two meetings in 1969 and prepared a draft convention that required contracting states to punish or extradite hijackers but left the choice between the two to the State's discretion. The draft convention, entitled the Convention for the Suppression of Unlawful Seizure of Aircraft, was adopted at a diplomatic conference at The Hague in December 1970. The Hague Convention is a significant advancement that establishes a strict legal policy against hijacking and provides procedures to enforce the pol icy. 74. Art. 9. 75. Art. 10. 76. Malik, Legal Aspects of the Problem of Unlawful Seizure of Aircraft, 9 AM. J. INT'L L. 61 (1969). 77. ICAO Doc. LOSC. SAWD, I, p. 2. 78. Art. 13(2). 16(2). See Evans, Aircraft Hijacking: Its Cause anil Cure, 63 AM. ). INT'L L 695, 708 (1969). 79. 10 INT'L LEGAL MAT. 133 (1971).

102 SOUTHWESTERN UNIVERSITY LAW REVIEW [Vol. 9 Article 4 of the Convention is viewed as a major step towards classifying hijacking as an international crime. In effect, the Convention could have based jurisdiction over the offense of aircraft hijacking simply and directly on the universality principle. Under the principle, when certain crimes against international law are perpetrated, jurisdiction is vested in any State that can apprehend the culprit, irrespective of the locus of the offense or the nationality of the offender. 80 Jurisdiction is bestowed because of the special nature of the crime not because of the mere physical presence of the criminal. 81 The Hague Convention further provides for prosecution of the hijacker whenever he enters any treaty member's territory, regardless of whether that country had any connection with the specific incident. 82 Consequently, the hijacker's choice of destination is limited to the diminishing number of states that do not object to harboring him. In addition, Article 8 grants the signatory country the power to use the Convention as an extradition treaty when no such treaty is in effect at the time of the alleged incident. This provision should have the desired effect of facilitating prosecution of the hijacker by returning him to the jurisdiction with the greatest interest in the matter. C. The Montreal Convention (1971)" In mid-1970, ICAO turned its attention to the sabotage of aircraft and civil transport ground facilities. Offices of El Al and other airlines in London and various other European capitals have been targets of sabotage by Palestinians for several years. In early 1969, an El Al airliner was attacked by Palestinian guerillas at the Zurich airport. In New York, officials of the Soviet airline, Aeroflot, have been attacked 80. On the universality principle, see the judgment of the Israel Supreme Court in Eichmann v. Attorney General 36 I.L.R. 5 (1962). 81. J. BKIERLY, THE LAW OF NATIONS, 313 (6th ed. 1%3). The international crime of piracy jure gentium is the most common example of this type of violation. A pirate jure gentium is held to be hostis humani generis, and each and every State is authorized to seize and punish him, in line with the universality principle. Article 19 of the 1958 Geneva Convention on the High Seas. Piracy jure gentium is pertinent not only to ships but also to aircraft. Article 15 of the 1958 Geneva Convention on the High Seas. Does it cover hijacking? To answer that question adequately, one should compare the constituent elements of the two offenses of aircraft hijacking (defined in Article 1 of the Hague Convention) and piracy jure gentium (denned in Article 15 ot the 1958 Geneva Convention on the High Seas). See notes 12 nd 16, supra. 82. Hague Convention, Art. 7. 83. 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of International Civil Aviation. ICAO Doc. 8966. 1977] INTERNATIONAL TERRORISM 103 by militant Jewish Defense League members. The gravity of the problem was highlighted by mid-air explosions aboard two European airliners carrying passengers in early 1970. 84 At the request of eleven European nations, ICAO's Assembly held an emergency meeting in Montreal, in June 1970, to consider the need for adequate security measures at international airports; preventive security measures against hijackings, sabotage, and armed attacks on civil aviation and its facilities; and the possibility of new international treaties to deal with these problems. The Assembly resolution urged member states to develop and implement detection systems and procedures to use against hijackers and weapons, and to formulate the appropriate steps to be performed by air and ground personnel during unlawful seizure. It called upon member states to develop and undertake surveillance measures to protect airports, airport perimeters, and surrounding areas against armed attacks. The Legal Committee prepared a draft Convention for Suppression of Unlawful Acts Against Civil Aviation, which was adopted at a diplomatic conference in Montreal in September 1970. The Montreal Convention prescribes severe penalties for attacks against the lives of persons aboard aircraft in flight and for international acts such as sabotage and bombings that seriously damage aircraft or endanger safety in flight. D. The Sanctions Convention (1973)** The Sanctions Convention, a joint United States-Canadian proposal, was the chief topic of discussion at the January 1973 Montreal meeting of the Legal Committee of the ICAO. The proposal suggests the establishment of a commission to determine violations of the Tokyo, Hague, and Montreal Conventions. If violations are uncovered, the Commission will have the option to impose sanctions against the States who refuse to prosecute or to extradite the hijackers. The United States-Canadian plan envisions as a sanction, a partial or full air embargo against the offending nations. The legality of such an action, however, has been the subject of extensive debate at the meeting and the possibility of a general agreement on sanctions seems distant. Moreover, various British and American pilot associations are 84. See note 2, supra. 85. Early draft of the U.S.-Canadian sanctions proposal at Keesings Contemporary Archives, pp. 25026-25028, Jan. 1-8, 1972.

104 SOUTHWESTERN UNIVERSITY LAW REVIEW [Vol. 9 calling for even stricter sanctions than those proposed by the United States and Canada. They would include sanctions against countries whose airports lack adequate police security and procedure for screening the embarking passengers.. Enforcing ICAO Conventions The effectiveness of ICAO conventions in combating air piracy clearly is dependent upon participation by all nations. The record of accession to and ratification of the conventions has not been encouraging. Since 1963, only fifty-eight nations have signed and forty-seven nations ratified the Tokyo Convention. 86 The Hague Convention has received eighty signatures and eleven ratifications. 87 The Montreal Convention, signed by thirty-one countries, has yet to be ratified by any country. 88 The fourth, the Sanction Convention, is still in its debating stage, and an agreement on the sanctions seems distant. The pace of ratification of the ICAO conventions may accelerate in the near future as a result of heightened awareness of the risks of hijacking. Some states, however, may refuse to accede to the conventions, insisting that extradition agreements can be reached only on a bilateral basis. Cuba, for instance, has explicitly taken such a stand and proclaimed its intention not to accede to the conventions. Cuba, which was one of the first victims of air hijackings and which claims to have suffered most from such acts, contends that any deterrence and suppression of piracy must involve sea and land travel as well as aerial communications. While refusing to accede to any international convention dealing with air piracy alone, Cuba has offered to enter into bilateral extradition treaties dealing with air and sea piracy "on the basis of strict equality and reciprocity" with all countries. 89 In recent years, several countries besides Cuba have shown their willingness to extradite or deport hijackers to the country of aircraft 86. ICAO Doc. No. 8364 (1963). The Convention was signed on behalf of Congo (BrazzaviUe), German Federal Republic, Guatemala, Holy See, Indonesia, Italy, Japan, Liberia, Panama, Philippines, Republic of China, Republic of Upper Volta, Sweden, United Kingdom, United States of America, and Yugoslavia. 87. 64 DEP'T STATE BULL. 53 (1971); 10 INT'L LEGAL MAT. 133 (1971). Opened for additional signatures in London, Moscow, and Washington, Jan. 1, 1971. 88. ICAO News Release, Sept. 1971; 10 INT'L LEGAL MAT. 1151 (1971). 89. In August 1961, following the first hijacking of a United States airliner to Havana, the late Guevara proposed that the United States and Cuba enter into a bilateral agreement for the return of both aircraft and hijacker. However, this offer evoked no response from the United States. 1977] INTERNATIONAL TERRORISM 105 registry, sometimes even in the absence of an extradition treaty. Extradition of hijackers may be expedited, at least for the time being, through a combination of multilateral and bilateral treaties. Should such treaties develop, significant strides will have been taken toward obtaining the ultimate objective of the ICAO conventions the control of air piracy. The controversial and often political nature of hijacking undoubtedly will cause some states to refuse to abide by the provisions of the Hague Convention concerning extradition and prosecution of hijackers. Consequently, the world community will have to rely upon alternative means to control hijacking. One alternative was offered at a meeting of the ICAO Council in September 1970. The United States proposed an international treaty under which all States would undertake to suspend international civil air transport services to and from any State that either detains a hijacked aircraft, its passengers, or its crew, or fails to extradite or prosecute the hijackers. This proposal was shelved by the Legal Committee in June 1971, mainly because of the controversy over ICAO's competence to impose economic sanctions through a multilateral treaty. The United Nations Charter empowers only the Security Council to impose economic sanctions and only when it decides that a country's action constitutes a "serious threat to international peace and security."90 Hijacking has not assumed such proportions yet, although it has contributed to the heightening of tensions in the Middle East. It would be naive to expect the Security Council to impose economic sanctions against a country simply to coerce it to abide by the provisions of the international convention, however important that convention may be. It is also doubtful that a major power would use severence of aid disbursements as a pressure tactic to force a state to extradite or punish a hijacker. Such an alternative would be impractical or inadvisable. In the case of the United States, for example, the countries that are the most frequent destinations of hijackers are not recipients of aid. These are Syria and Algeria, two of the Arab countries that have openly sympathized with Palestinian hijackers, and Cuba. Accordingly, unilateral action toward countries that do have substantial aid and trade relations with the United States could have serious political and international repercussions. In the existing international political situation, therefore, it is inconceivable that any nation, either unilaterally or multilaterally through the United Nations, would or 90. U.N. Charter, ch. VII, Art. 41.

i. * *? 'T^l^ *^r I t ' 1 106 SOUTHWESTERN UNIVERSITY LAW REVIEW [Vol. 9 could impose economic sanctions against a country that is unwilling to prosecute or extradite hijackers. VI. CONCLUSION The practical solution to the problem of air piracy is not conceptually elusive. While air piracy, like all other domestic and international crimes, may not be subjected to total control, measures are needed to deter it. Generally, hijacking must be recognized as a crime punishable by all nations under either domestic or international law and an international agreement is needed to provide a universal warning to potential hijackers. The Hague Convention together with the Tokyo and Montreal Conventions, constitute an important portion of the legal action being taken to curb acts of violence against international civil aviation. In particular, the Hague Convention supplements the provisions on unlawful seizure of aircraft found in the Tokyo Convention. Since the Tokyo Convention deals with the generality of offenses committed on board aircrafts, it takes a somewhat passive approach to the question of placing obligations on states. The Hague Convention, on the other hand, embodies a positive approach because it is concerned with the specific offense of unlawful seizure of aircraft. In this regard, it may be noted that, innovative as they were at the time of their adoption in 1963, the hijacking provisions of the Tokyo Convention are weakened by the Convention's passive approach to offenses. Moreover, they are buried in provisions that lack real strength because they cover the whole spectrum of offenses. The Hague Convention rejects the cautious approach of the Tokyo Convention in matters of jurisdiction. For instance, while the Tokyo Convention obliges only the state of registration to establish its jurisdiction over an alleged offender, the Hague Convention obliges a state where the offender is present, whether or not it is the state of registration, to take the measures necessary to establish jurisdiction if they do not extradite him. If properly applied, therefore, the Hague Convention should result in abolishing havens for hijackers. The Tokyo Convention does not require a state to prosecute or 'extradite a hijacker. The Hague Conference sought to fill this gap and to include positive provisions on prosecution and extradition. It ran into such difficulties, however, that the Hague provisions on these items are not the optimum that theoretically could be achieved. The practice of nonextradition of the political offender, on which the Tokyo Convention is silent, is honored by the Hague Conven- 1977] INTERNATIONAL TERRORISM 107 tion with the important qualification that a state refusing to extradite the hijacker is required to submit the case to its competent authorities for prosecution. The obligation to extradite also is cautiously considered in the Tokyo Convention, which stipulates that nothing in it should be construed as creating such an obligation. The drafters of the Hague Convention included a provision requiring consideration of the Hague Convention as constituting an extradition treaty in respect to the unlawful seizure of aircraft. This provision failed, however, when yielding to the pressure of some of the developing African countries and Asia, the Conference reluctantly accepted an alternative provision that gave Nations the option to consider the Convention as the legal basis for extradition. The Hague Convention was a useful prelude to the Montreal Conference, since many political questions common to both were' eliminated at The Hague, leaving the Montreal Conference free to concentrate on the novel and difficult legal questions. Although the crime of air piracy was defined in the Hague Convention, the crucial question remains whether all nations will proclaim hijacking an international crime punishable everywhere with no exception for special immunity. There are at least three threshold objections which could render the effort to achieve voluntary world-wide acceptance futile. The first is based upon the state's cherished right to give immunities stemming either from diplomatic relations or from the valued concept of political asylum. The second, and closely related objection, is the determination of who will define the scope of political crimes. In September 1969, Cuba published a decree stating that it might agree to the extradition of boat and plane hijackers to their country of origin.91 The decree expressly excluded "political refugees." On October 8, 1969, Cuba stated that it would handle each case separately and would base extradition only on bilateral agreements, thus expressly excluding Cuban adherence to a voluntary multilateral agreement.92 The problem of the determining political crimes on an individual basis is exemplified by the hijacking of a Mexican plane to Cuba by two Mexican students in June 1969. Cuba had been close to a 91. N.Y. Times, Sept. 6, 1%9. 92. Lidsay, The U.S. is Moving on Tuw Fronts in Effort to Halt Sharp Increase in Plane Hijacking, N.Y. Times, Sept. 6,1969. Discussing a worldwide agreement for extradition or punishment of hijackers, the author stated that "[i]n a world split by deep ideological and political differences where giving of political asylum is a long and respected tradition there are no doubts that any such agreement will work."