i

Hijacking IC 814 Case Study

Submitted by

S.Anusha,
BA0130010.

Project Submitted to

Dr. S. AMIRTHALINGAM
Associate Professor of Law

TAMIL NADU NATIONAL LAW SCHOOL

(A State University established by Act No. 9 of 2012)
NavalurKuttapattu, Srirangam (TK), Tiruchirappalli – 620009.

APRIL 2016
 ii

ACKNOWLEDGEMNET

I am immensely happy to express my heartfelt thanks to our Vice Chancellor Mr. Arun Roy,

for having given me this opportunity to do a doctrinal Research project on “ Hijacking IC 814

Case study” at under graduate level.

With sense of gratitude, I would like to thank Dr. S. Amirthalingam, Associate Professor of

Law, Tamil Nadu National Law School, Tiruchirappalli - 620 009, for his valuable guidance

and encouragement given to me at every stage of this small Doctrinal Research work.

THANK YOU AGAIN TO ALL WHO HELPED ME.

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DECLARATION

I S. Anusha, Registrar Number BA0130010, hereby declare that this project work entitled

HIJACKING IC 814 CASE STUDY has been originally carried out by me under the

guidance and supervision of Dr. S. Amirthalingam, Associate Professor of Law, Tamil

Nadu National Law School, Tiruchirappalli - 620 009. This work has not been submitted

either in whole or in part of any Degree / Diploma in this Institution or any other

Institution/University.

Place: Chennai
Date: 9-04-16 S.Anusha.
 iv

Table of Contents
List of Abbreviations .............................................................................................................. .v

1. INTRODUCTION..................................................................................................................1
1.1. Outline/Roadmap................................................................................................................1
1.2. Objectives of the title..........................................................................................................2
1.3. Research Question.............................................................................................................. 2
1.4. Research methodology........................................................................................................2
1.5 Sources.................................................................................................................................2
2. Background of IC 814 case....................................................................................................4
3. Aircraft Hijacking & Conventions relating Hijacking connection with IC814 case..............6
3.1. Aircraft Hijacking............................................................................................................... 6
3.1.1. Sovereignty over Air-space..............................................................................................7
3.1.2 Jurisdiction........................................................................................................................7
3.1.2.1 The Tokyo Convention on Offences and Certain Other Acts Committed on Board the
Aircraft, 1963.............................................................................................................................8
3.1.2.2. The Hague Convention for the Suppression of Unlawful Seizure of Aircraft..............8
3.1.2.2.1. Anti Hijacking Act, 1982.......................................................................................... 9
I) National Interest v. Lives of People ....................................................................................10
4. Extradition under Hague Convention relevant to IC 814
case...........................................................................................................................................12
4.1. Extradition.........................................................................................................................12
4.2. Extradition under Hague Convention for the Suppression of Unlawful Seizure of
Aircraft.....................................................................................................................................13
5. International Civil Aviation Organisation: Dispute Settlement Mechanism........................15
5.1. ICAO ................................................................................................................................15
Conclusion................................................................................................................................17
Bibliography.............................................................................................................................18
 v

List of Abbreviations

ICAO International Civil Aviation Organisation

U.N.T.S United Nations Treaty Series

AJIL American Journal of International Law

WA World Affairs

US United States

UOI Union of India

ER England Report

ICJ International Court of Justice

 1

1. INTRODUCTION

The Research paper deals about Aircraft hijacking i.e. taking control of an aircraft by hostile
forces for ransom or some other demands. There are two types of Aircraft hijacking i.e.
hijacking for transportation and Extortion Hijacking. Hijacking for transportation, the
hijacker will demand the government to transport them to the particular destination. In
Extortion Hijacking, involves extortion to harm the passenger and threaten the government to
fulfil their demands.1 The paper mainly deals with IC 815 case study that happened in 1999
in India by Taliban regime (by extortion) and discusses the necessity of devising effective
means to deter hijacking.

The world countries entered into agreement and formed ICAO, where the contracting states
have rights to approach if the contracting states have breached the conventions and also
specify standards for protection of aircraft i.e. The Convention on International Civil
Aviation (Chicago 1944 )and the four multilateral treaty which is directly relevant to Aircraft
Hijacking is (1) The Tokyo Convention on Offences and Certain Other Acts Committed on
Board the Aircraft, 1963; (2) The Hague Convention for the Suppression of Unlawful Seizure
of Aircraft, 1970; (3) The Montreal Convention for the Suppression of Unlawful Acts against
the Safety of Civil Aviation, 1971; and (4) The International Convention against the Taking
2
of Hostages, 1979. The first three were evolved under International Civil Aviation
Organisation (ICAO) and a fourth was adopted by UN general assembly, Out of these, Hague
convention is directly relevant to IC 814 aircraft hijacking case and it formed the backdrop of
Anti-Hijacking Act enacted in 1982. Even though the treaty is in force, India failed miserably
in preventing the hijacking during 1999.

1.1. OUTLINE/ROADMAP

The Research paper is divided in to three parts, In Part I, the Researcher will talk about the
concept of Aircraft hijacking, conventions relating Aircraft Hijacking and how this
convention have been incorporated in Indian Act i.e. Anti Hijacking Act connection with IC
814 case, In Part II the Researcher will try to say about concept of extradition in this IC 814
case ,In Part III the Researcher will discuss about why India failed in approaching ICAO .

1
Journal T. Holden Robert, the Contagiousness of Aircraft Hijacking, 91 Am. Sociology, (1986), pp. 874-904 at
878.
2
Vinod Kuriakose, Indian Anti-Hijacking Law: An analysis, available at www.legal perspectives .blog spot.
 2

1.2. OBJECTIVES OF TITLE

1. To analyse different international conventions and how it is incorporated in domestic law of

India connection with this case.
2. To understand the importance of extradition in Hijacking in connection with IC 814 case.
3. To analyse about the failure of India in approaching ICAO.

1.3. RESEARCH QUESTION

1. Whether the Pakistan Government is obliged to extradite the hijacker in connection
with the IC 814 case to India?
2. What are different international conventions and how it is incorporated in domestic
law of India connection with IC 814 case?
3. What is the offence of Hijacking under International Law?

1.4. RESEARCH METHODOLOGY

The research is primarily doctrinal in nature, the Research paper is limited to Hijacking
connected with IC 814 Case and Research paper will mainly discuss about the extradition
problem, why India failed in approaching ICAO and converse about Aircraft Hijacking
offense as International crime.

1.5. Sources

The Primary Sources is The Tokyo Convention on Offences and Certain Other Acts
Committed on Board the Aircraft, 1963, The Hague Convention for the Suppression of
Unlawful Seizure of Aircraft, 1970, The Montreal Convention for the Suppression of
Unlawful Acts against the Safety of Civil Aviation, 1971 and The Anti-Hijacking Act, 1982
and the secondary sources is Malcolm N. Shah, International Law, (Fifth Edition, 2012,
Cambridge University Press, London,), pp.679-680.The book specifically speaks about
Aircraft Hijacking, says about the universality principle and protective principle where it
clearly says hijacking is universality principle (every contracting state has jurisdiction to try
particular offense if the state is affected) and talks about the leading treaty in connection with
hijacking, The Journal T. Holden Robert, the Contagiousness of Aircraft Hijacking, 91 Am.
Sociology, (1986), pp. 874-904 at 878 talks about the contagiousness of Hijacking and says
the intention of hijacking a aircraft differs from individual to individual, The Article
 3

Vinod Kuriakose, Indian Anti-Hijacking Law: An analysis, available at www.legal

perspectives .blog spot. in talks about the relevance of Hague convention to IC 814 case and
failure of this convention on this case, the Article Ryan Holliway, Case Study: Indian Airline
Christmas Eve Hijacking, available at www.policeone.com/terrorism/articles/3295096..in
talks about the facts about the IC 814 case and This Article Mani, V.S., Hijacking and
international law, available at www.thehindu.com/2000/ 01/19/stories/05192524.html talks
about convention connection with IC 814 case and further discuss about what is customary
International Law and talks about the optional dispute settlement mechanism ICAO like ICJ
to solve the dispute for example if any contracting state ask extradite the hijacker, if the
contracting state refuse where the hijacker is found then the contracting state which is
affected with consent of both states approach ICAO to solve the dispute.
 4

2. Background of the case

On Christmas 1999, IC 814 departed from Kathmandu, Nepal, for Delhi carrying 178
passengers. Forty minutes later after the takeoff, five Pakistani militants with weapons
threatened the passengers, hijacked the aircraft and ordered the pilot to fly to Lahore,
Pakistan. But, Lahore Air traffic control denied the flight permission and closed Airspace.
As the Aircraft was running on low fuel the hijacker wanted the flight to be refuel. Hence the
Aircraft was diverted to Amritsar. But at Amritsar there was a delay in refuelling it, so the
hijacker suspected that the government was stalling and demanded the pilot to take off the
flight immediately. When pilot pleaded, the hijacker stabbed the passenger Katyal. When the
flight crossed Pakistani airspace, Lahore airspace denied the flight permission because
Pakistan felt that if they help, then Indian Government will make the statement that Pakistan
was helping for terrorist. But after the continuous request by Indian Government, it agreed to
allow the aircraft with the condition that no passenger will be allowed to disembark after the
plane landed.

The Pakistan Government refused to help Indian Government by preventing the plane from
taking off. After leaving Lahore, the hijacker demanded the plane to take off to Afghanistan.
Because of lack of night landing airport in Afghanistan, it was diverted to the Persian Gulf.
Several countries including Arab refused to allow the flight but after it changed its decision
due to humanitarian grounds. Where Arab demanded hijackers to leave 25 passenger and
Arab provided food to hijackers but it denied NSG to come to Dubai. The flight finally
landed in Afghanistan, where the Indian government started negotiations with hijackers to
secure the passengers. In pursuance of negotiation finally Indian government agreed the
hijacker demands.

Accordingly India released three high-value terrorists. The hijacker escaped to Pakistan, only
three hijackers were convicted and later they were released and 7 hijackers escaped. In
connection with hijackers the Indian government made a demand to Pakistan to handover the
hijackers as per the extradition, but it was denied by the Pakistan, government which resulted
to major controversy. USA who fights against International terrorism has not extended help
to India and also India failed to approach International civil aviation (forum for aerial
hijacking) organisation in connection with hijacking crimes. This Research paper will broadly
discuss about extradition treaty between Indian and Pakistan and why it failed to approach
 5

ICAO (It is to note that Pakistan and India are member to Hague convention and members of
ICAO).
 6

3. Aircraft Hijacking & Conventions relating Hijacking connection with IC814 case

Aircraft Hijacking is based on Universality principle. 3 Universality principle means every

contracting state has right to prosecute and punish the alleged offender; irrespective of their
place of commission of crime i.e. can occur in any place, they have right of prosecuting and
punishing the offender only when the crime is recognized by international community as
whole.4 Aircraft Hijacking is recognised as an international crime, a step taken in order to
combat terrorism, mainly hijacking is done to release terrorist or for money and moreover
terrorist used hijacking as a tool to spread terrorism .So, in order to prevent hijacking there
are various conventions relating Hijacking.

The important treaty which formed ICAO, i.e. The Convention on International Civil
Aviation (Chicago 1944 ) The leading treaties in connection with Aircraft Hijacking are (1)
The Tokyo Convention on Offences and Certain Other Acts Committed on Board the
Aircraft, 1963; (2) The Hague Convention for the Suppression of Unlawful Seizure of
Aircraft, 1970; (3) The Montreal Convention for the Suppression of Unlawful Acts against
the Safety of Civil Aviation, 1971; and (4) The International Convention against the Taking
of Hostages, 1979. 5 The most relevant treaty in connection with IC 814 case is Hague
convention from which India incorporated the Anti-Hijacking Act, which resulted in failure
of enforcing punishment in IC 814 case, later on there are various changes in this Act to not
commit the wrong committed for this case and this also will be discussed by the Researcher
in this Chapter.

3.1. Aircraft Hijacking

Air Piracy defined according to, 1958 which referred as “Illegal act of violence, detention
or any act committed for the private ends by the crew or passenger of a private
aircraft”.6 The offence is committed by taking the aircraft i.e. by force and converts it to use
it for the transportation, where the hijacker used to divert the plane to different destination till
their demand is been approved by the state. A hijacking is always done by using gunpoint at

3
Malcolm N. Shah, International Law, (Fifth Edition, 2012, Cambridge University Press, London,), pp.679-
680.
4
Ibid 4.
5
Supra n.2.
6
Article 15, Geneva Convention on the High Seas, 29 April 1958,450 U.N.T.S.82, (In force 30 September
1962).
 7

the pilot to deviate to other destination and contact the state to show that flight has been
Hijacked.7 Hijacker make certain demands to leave the passenger mainly it will be asking to
release the terrorist which the state has or it will be political or for money or to provide arms
but mainly all is done relating terrorism. The demand made by the hijacker in IC 814 case
was to release the three terrorist who was arrested by India against the release of the
passenger i.e. Extortion Hijacking.

3.1.1. Sovereignty over Air-space

There will be general confusion that Hijacking and sea piracy is similar, but there is
difference between these two. In both of these cases, there is a perplexity that which state can
claim the sovereignty. Because, the question was who will claim of sovereignty over air
space and this principle was based on the old English municipal maxim “cujus est solum ejus
est usque ad coelum” which whose it is soil it is up to the sky. 8 This principle led to
confusion that even the other state whose interest is affected has no right to prosecute the
offender, but later on it derived from the “The Convention on International Civil
Aviation” where in Article 1 says that “every state has right over jurisdiction”. So it is clear
that India have right to claim sovereignty over airspace, being the member of the Chicago
Convention.

3.1.2 Jurisdiction

But the confusion is who can have primary jurisdiction, by Lex Foci (forum of the court) the
place where aircraft is landed will have jurisdiction, then it will be Afghanistan, even though
the aircraft is registered in India. But in order to remove this confusion there are various
treaties relating jurisdiction i.e. who has right to prosecute?

3.1.2.1 The Tokyo Convention on Offences and Certain Other Acts Committed on
Board the Aircraft, 1963.

Tokyo Convention has given rights to landing state to prosecute the offender as per their
Law. There is no obligation to extradite the offender to state (aircraft registered), the
Landing state has option to punish according their law or extradite. But, Tokyo convention
clearly says that aircraft must be disposed to registered state. But in this case there is no
problem on disposal of aircraft, because the aircraft hijacked was returned back to India. Here

7
Alona E. Evans, Aircraft Hijacking: Its Cause and Cure, 63 AJIL, (1969), pp.695-710 at 695.
8
Celine.Y.November, Aircraft Piracy: The Hague Hijacking Convention, 6 AJIL, (1972), pp.642-656 at 645.
 8

the problem was whether India has right over jurisdiction, and then if it is by Tokyo
Convention, the rights of India will not be guaranteed and Tokyo Convention is not
relevant to this case. Tokyo Convention failed to discuss about extradition and punishment.
So, ICAO prepared a draft convention, it was submitted before Diplomatic Conference and
the final product was Hague Convention which included punishment and elaborated more
about extradition (relevant to IC 814 case).

3.1.2.2. The Hague Convention for the Suppression of Unlawful Seizure of Aircraft

Hague Convention not only gives rights to Landing State to claim jurisdiction, it also give
rights to contracting state in which the aircraft registered, than India has a right to prosecute
the offender. Let us see some important Article under Hague convention which is relevant to
IC 814 case, first by Article 1, Hague Convention defines the Hijacking as an offence if it is
done by person who boarded an aircraft by force or threat or by another means by exercising
control over the aircraft.9 Hijacking as an offence is limited to only three grounds i.e. The
aircraft must be hijacked,10the hijacker must have boarded the hijacking flight11 and flight
hijacked must be done by force, threat or some other forms . 12By this limitation, it is clear
that it does not include the attack against the aircraft on ground. In case of IC 814 case,
hijacker by force boarded aircraft and forcefully made to deviate to different destination; it
was not done on the ground. So accordingly to Hague Convention, hijacking done in IC 814
case is an offence by Article 1.13
Secondly Article 414 deals with who is entitled to jurisdiction over offence; it is different
from Tokyo Convention (landing state has right over jurisdiction excluding the state which is
registered). But in Hague Convention, contracting state has right over jurisdiction, when the
registration of aircraft by state is shown, the place where the hijacked aircraft landed and any
contracting state in which the alleged offender is present. 15 In IC 814 case India, Pakistan and
Afghanistan have right to claim jurisdiction by Article 4 of Hague Convention. Every
contracting state must oblige to take measures to prosecute or extradite the offender (Article 7

9
Article 1, The Hague Convention for the Suppression of Unlawful Seizure of Aircraft, 16 Dec 1970, 12325
U.N.T.S. 107, (In force 14 October 1971).
10
Amir Rafat, Control Of Aircraft Hijacking-The Law of Civil Aviation, 134 WA, (1971), pp.143-156 at
145,146.
11
Ibid 11.
12
Ibid 11.
13
Ibid 10.
14
Article 4, The Hague Convention for the Suppression of Unlawful Seizure of Aircraft, 16 Dec 1970, 12325
U.N.T.S. 107, (In force 14 October 1971).
15
Ibid 11.
 9

&Article 8). It is said only, the states which have right of jurisdiction over offence, but not
solved the conflicting jurisdiction, it is not given any guidelines that who have primary
jurisdiction and also excludes the exercise of “Criminal Jurisdiction” accordance with
national laws.16

The basic thing is, The Hague convention does not apply if the hijacking and landing is done
on the same registered state. The offence is not mentioned, it is said only serious offence
which was the biggest fault which resulted in the increase of hijacking not reducing
Hijacking. By not mentioning the offence, IC 814 case, punishment was not severe; so the
hijacker was subjected to life term imprisonment if they involved in Anti Hijacking
Activities. But later on Anti Hijacking Act was amended wherein clearly stated if any
passenger was murdered by the hijacker during hijacking then the hijacker will be punished
to death penalty. Only three were punished to life term imprisonment and other seven
escaped in connect with the IC 814 case.

Anti Hijacking backdrop of Hague Convention was severely criticized after the failure of
Indian Government in preventing IC 814 case .let us see what major fault in Anti Hijacking
Act and what steps was taken after the biggest failure happened in enforcing the Act in
Kandhar case.

3.1.2.2.1. Anti Hijacking Act, 1982.

The Anti Hijacking Act, 1982 was severely criticized, when IC 814 was hijacked and taken to
Kandhar, passenger was released only after release of three terrorist. This brought serious
question in security system of India. The Anti Hijacking Act is divided to three chapters in
chapter I, it talks about what is aircraft and say the Act is been adopted from Hague
Convention, in Chapter II, Sec 3 17 it talks about Hijacking and connected offence and the
definition is same as mentioned under Article 1 of Hague Convention.18 Sec 4 and Sec 5,19
talks about the punishment of hijacking, where the offender is punished for life term
imprisonment and will be subjected to fine, this was also questioned after IC 814 case, where
it criticized the Hague Convention for not mentioning the punishment. Only after the khandar

16
Supra n. 6.
17
Section 3 of Anti Hijacking Act, 1982 (Act No: LXV of 1982).
18
Hijacking as an offence if it is done by person who boarded an aircraft by force or threat or by another means
by exercising control over the aircraft.
19
Section 4 of Anti Hijacking Act, 1982 (Act No: LXV of 1982) and Section 5 of Anti Hijacking Act, 1982 (Act
No: LXV of 1982).
 10

hijacking, it made the Indian Government to rethink about punishment and later amended the
Anti Hijacking Act, included that hijacker will be punished to death if they kill the passenger.

Sec 6, talks about Jurisdiction and the definition is same as mentioned under Article 4 of
Hague Convention.20 The Chapter III talks about extradition and this will discussed by the
Researcher in the forthcoming Chapter III.

Both Hague Convention and Anti Hijacking had certain deficiencies, the general failure is
both failed to say which state will have primary Jurisdiction and also it failed to give severe
punishment to hijacker. Thus the main failure was due to this deficiencies and it has
encouraged the hijacker to hijack IC 814 plane. The failure of Indian Government is having
slow negotiation with Hijacker, there were many time in which Indian Government got the
chance to capture the Hijacker, but Indian Government failed. India Government showed it as
soft target to attack, after this hijacking. Kandhar was turning point, because of releasing this
three terrorist who later on formed a group and the group had terrorist attack in parliament
and CBI claimed that the three terrorist was behind the Pathankot attack which killed more
people than passenger boarded on the IC 814 plane.

I) National Interest v. Lives of People

Indian Government in IC 814 case was not following guidelines for preventing the Hijacking
and also the demand made by Hijacker was very big then they must have taken some other
step to protect the passenger, But the government had released three terrorist .the main
default in this case was releasing terrorist, if it was not done then the case would not have
effect on Indian Government till now. Till now IC 814 taken as example for failure of
security system of Indian Government and diplomatic relationship.

So it is clear that India have jurisdiction to punish the offender, By Article 4 of Hague
Convention, the place where alleged offender present have right to prosecute the offender.
Hence in this case the hijackers are at Pakistan, and the Pakistan government have right to
prosecute or extradite this offender. But in this case Pakistan did not prosecute the offender
and also not extradited, so it was the duty of India to approach ICAO to force the Pakistan
government to prosecute or extradite. Indian Government having right to prosecute the
offender (state registered) prosecuted three hijacker who was arrested in India, based on

20
State has right over jurisdiction, when the registration of aircraft by state is shown, the place where the
hijacked aircraft landed and any contracting state in which the alleged offender is present.
 11

doubt and three were punished to life imprisonment. But due to refusal of Pakistan in
extraditing the offender, seven escaped and extradition will be discussed by researcher in
Chapter III. Hague Convention is relevant, because both Pakistan and India have ratified it
and also India have incorporated it in Anti Hijacking Act.

The International Convention against the Taking of Hostages, 1979 (each state must punish
according to national law) and The Montreal Convention for the Suppression of Unlawful
Acts against the Safety of Civil Aviation(it is about punishing and controlling hijackers)
,Both convention is not relevant to this IC 814 case.
 12

4. Extradition under Hague Convention relevant to IC 814 case

Extradition under Hague Convention, says there is no obligation for the contracting state to
extradite. But it clearly says if the contracting state refuses to extradite, then it must prosecute
the offender, otherwise the other state can report it to the council to seek solution (Article 11).

4.1 Extradition

Extradition means handing the criminal to other state, who have fled to the territory in order
to escape from the punishment. If state wants to extradite to the other state, then there must
be existing bilateral treaty between the states. If there is no bilateral treaty, there is no
21
obligation upon states to extradite in customary law. In Factor v. Laubenheimer,22 The
SC opinion by Chief Justice Stone “The principles of international law recognize no right to
extradition apart from treaty”.23The legal right to ask extradition and to surrender arises only
when there is an existing treaty.
The extradition will be based on the existing treaties subjected to certain general principles
for example Double criminality, then both state must treat it as an offence i.e. it must be
crime in both states.24A person extradited will be tried and punished only for the offence
which the state sought to extradite.25In order to give state the jurisdiction, it says the landing
state has right to extradite or prosecute.26So if we take IC 814 case, then the Pakistan where
the alleged offender found, must either extradite or prosecute, if there is extradition treaty
also it is wholly discretion of the state to decide, whether to extradite or not. Mainly the state
will not extradite, if they are nationals of the state. But if they don’t extradite, then it is the
duty of state to prosecute. Here India asking extradition for Pakistani nationals, Pakistan
refused to extradite, then it is the duty of Pakistan to prosecute the offender for the offence
committed against India.

21
Supra n.4,at p. 686.
22
Factor v. Laubenheimer 2290 U.S. 276,287 (1933).
23
Ibid 23.
24
Government of Denmark v. Nielsen [1984] 2 ALL ER 81 and United State Government v. McCaffery [1984]
2 ALL ER 570.
25
See e.g. Oppenheim’s International Law, p.961.
26
Supra n.15.
 13

4.2. Extradition under Hague Convention for the Suppression of Unlawful Seizure of
Aircraft

First, it is found that Pakistan has right to punish or extradite the offender according to
Article 4 of Hague Convention. If India wants to request extradition from Pakistan , then it
must be seen whether there is existing extradition treaty between India and Pakistan,
But they don’t have any extradition treaty .So Pakistan is not obliged to extradite, India also
cannot request extradition to Pakistan, But Hague Convention says ,even though there is no
bilateral treaty ,if both India and Pakistan member of the Hague Convention, then India have
right to request extradition to Pakistan ,this can be called as most important contribution by
ratification of Hague Convention to International Law. 27

Let us see the extradition provision under Hague Convention; In Article 8 firstly it says the
states which needs extradition, even there is no extradition treaty, then the convention will be
considered as the legal basis of extradition in respect of seizure of Aircraft based on the
option of requested state and if the option is exercised, the laws of the requested state will be
governed. 28Thus, India will be able to request extradition, even though there is no extradition
treaty between India and Pakistan. 29 Secondly, the convention gives, the offense will be
recognized as extraditable offense, even though there is no treaty exists for Extradition
subject to the laws of requested state. 30Thirdly if there is extradition treaty between two
states, it does not include the offense of Hijacking, it will be considered to be included as a
result of the convention.31

It says the extradition can be asked by the requesting state only when the offense occurs in
the requesting state. In Article 4 of Hague Convention,32 it says not only include the state
which the offense is committed, but also the contracting state whose interest is affected can
claim jurisdiction. Therefore, India have right to request extradition, because the offence in
IC 814 case happened in aircraft where it registered in India. According to Article 7 of Hague

27
Supra n.4, at p. 648.
28
Article 8, The Hague Convention for the Suppression of Unlawful Seizure of Aircraft, 16 Dec 1970, 12325
U.N.T.S. 107, (In force 14 October 1971).
29
Eugene Sochor, ICAO and Armed Attacks against Civil Aviation, 44 IJ, (1988), pp.134-170 at 145.
30
Ibid 28.
31
Ibid 28.
32
Article 4, The Hague Convention for the Suppression of Unlawful Seizure of Aircraft, 16 Dec 1970, 12325
U.N.T.S. 107, (In force 14 October 1971).
 14

Convention, 33 if the contracting state refuses to extradite then it is the duty of state to
prosecute .So in IC 814 case, Pakistan refused to extradite the alleged offender to India, so it
is the duty of Pakistan to prosecute the offender. So India can approach ICAO for negotiation
(Article 84 of Chicago convention).

33 33
Article 7, The Hague Convention for the Suppression of Unlawful Seizure of Aircraft, 16 Dec 1970, 12325
U.N.T.S. 107, (In force 14 October 1971).
 15

5. ICAO: Dispute Settlement mechanism

So it is clear that Pakistan have jurisdiction over airspace, India has right to ask extradition
and it also clear that if the Pakistan refuse to extradite, it must prosecute the offender (Article
7 of Hague Convention) .So, if Pakistan refuse to do any one of these, then under Chicago
Convention (Article 84), India has right to approach ICAO (dispute settlement mechanism).
Immediately after Pakistan refused, India must have referred ICAO council in order to give
sanction to Pakistan or get remedy from Pakistan. But, India failed in approaching ICAO. Let
us see what ICAO is and what objectives of forming ICAO under Chicago Convention are.

ICAO (Chicago Convention)

The ICAO is a specialized agency set up by UN and objective of this ICAO is to develop the
safety of International aviation, Constitution of ICAO is given under Article 44 of the
Chicago Convention. In modern world, air transport is very important and safety problems
are a major worry. It is not duty of individual to preserve air transport, it is the collective
duties of state to promote and protect air transport and this is the objectives of ICAO evolved
under Chicago Convention, 1944. 34 The contracting states has erga omnes character
(obligated to follow certain guidelines).Even Chicago Convention is not erga omnes in
character, but every member states must follow certain guidelines for protecting aircraft in
the state , that is clearly given in Chicago Convention. If the state is not bound by this certain
guidelines, then right will be taken from the state under Chicago Convention.35 Under this
Convention it is given every state has jurisdiction (Article 1 of Chicago Convention).

Relating Hijacking, the contracting state is obliged to other state, if the aircraft of other
registered state is with them ,then the aircraft must be disposed ,if the alleged offender of
hijacking is found on the state, then the contracting state must either prosecute or extradite
and other obligation which the contracting state must follow i..e erga omnes, otherwise the
ICAO can bring action against the state who failed to follow the convention, the Convention
which were evolved under ICAO is 1) The Tokyo Convention on Offences and Certain Other

34
Alona E. Evans, Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), 67 AJIL,
(1973), pp. 127-145 at 128.
35
Charles N. Brower, International Enforcement of Air Security - United States Initiatives, 18 Vill. L. Rev. 1020
(1973) available at: http://digitalcommons.law.villanova.edu/vlr/vol18/iss6/6.
 16

Acts Committed on Board the Aircraft, 1963; (2) The Hague Convention for the Suppression
of Unlawful Seizure of Aircraft, 1970; (3) The Montreal Convention for the Suppression of
Unlawful Acts against the Safety of Civil Aviation, 1971 relating to Hijacking.36

India and Pakistan is the member of both ICAO and Hague Convention .In IC 814 case, if
India want to approach ICAO then it can invoke under Hague Convention, saying Pakistan
have violated Article 7 of Hague Convention .The prayer of Indian Government must be to
ICAO is to pass sanction and also direct the Pakistan government to prosecute or extradite the
offender; if the state is aggrieved of the order then it can approach UN. India also can
approach UN for the violation of customary law by Afghanistan and Pakistan for helping the
Hijacker to hijack the plane and providing arms. The ICAO decision will be done by votes of
member state.

Dispute settlement of ICAO is given under Article 84 of the Convention, says that if is any
dispute between two of state relating to interpretation of the application of the convention and
annexes cannot be settled by negotiation. The state must make an application to ICAO
relating the disagreement and the party rely on the decision of council. The vote made by the
parties will not be considered by ICAO .The appeal can be made before ICJ and appeal must
be notified to ICAO within 60 days of the receipt of the decision of council. So India can
approach ICAO for seeking remedies against Pakistan, because it has violated Article 7 of
Hague Convention then India would not have faced problem from terrorist till now. Even
India having jurisdiction to approach ICAO it failed miserably .It can be said that India
doubted ICAO, because ICAO same as UN act as puppet of USA. So India believed that even
if approached they will not seek justice. This can be considered as the reason behind India not
approaching ICAO

36
Ruwantissa Abeyratne ,The Role of Civil Aviation in Securing Peace, 19 IJ,(2002),pp.53-81 at 56
 17

CONCLUSION

Despite India having stringent laws to prevent hijacking i.e. Anti-Hijacking Act backdrop of
Hague Convention failed miserably during IC 814 hijacking and the reason for the miserable
failure is national strategy and diplomatic relationship between states (Pakistan).Even though
India had jurisdiction to approach ICAO it failed to approach ICAO against Pakistan for
Extradition of the Hijacker. No other country also supported India to fight against Pakistan
and even Arab and Afghanistan where Aircraft landed in fuel never helped to catch Hijacker.

The Failure of Indian Government in IC 814 case can be classified in to four

1. Failure of Security of aircraft

2. Lack of strategic planning to protect passenger without releasing terrorist.
3. Lack of severe punishment under Hague Convention and Anti Hijacking Act, 1982.
4. Failure of Indian Government in approaching ICAO against Pakistan.

The third failure was solved by Indian Government with a recent amendment to Anti
Hijacking Act, where it says hijacker will be awarded death penalty if hijacker kills any one
of the passenger and life imprisonment will be awarded if aircraft is hijacked by hijacker. But
the punishment issue was solved by India; the amendment was not applied to IC 814 Hijacker
because the Act was not retrospective. So Hijacker of IC 814 case escaped with a life
imprisonment. But even after the issue of punishment solved, there are various problems
arising like extradition of offender and so on. This can be solved only by International Law.
So step must be taken by international law to induce the state to prosecute or extradite
hijacker and impose criminal sanction mandatorily by conventions and it also must force each
state to have strict domestic law relating to hijacking and include every concept i.e.
jurisdiction, extradition and etc.
 18

Bibliography

Primary Sources

Statutes /Treaties/Conventions Referred

1. The Convention on International Civil Aviation (Chicago1944).

2. The Tokyo Convention on Offences and Certain Other Acts Committed on Board the
Aircraft, 1963.
3. The Hague Convention for the Suppression of Unlawful Seizure of Aircraft, 1970.
4. The Montreal Convention for the Suppression of Unlawful Acts against the Safety of
Civil Aviation, 1971.
5. The Anti-Hijacking Act, 1982.

Secondary Sources

Books Referred
1. Malcolm N. Shah, International Law, (Fifth Edition, 2012, Cambridge University
Press, London,), pp.679-680.

Journals/Articles Referred

1. Article Ryan Holliway, Case Study: Indian Airline Christmas Eve Hijacking, available
at www.policeone.com/terrorism/articles/3295096, last seen on8 -04-16.
2. Mani , V.S .,Hijacking and international law, available at www.thehindu.com/2000/
01/19/stories/05192524.html, last seen on 8-04-16.
3. Gupta, Kanchan, The Truth Behind Kandahar Indian Airlines Hijacking, When India
Released Islamic Terrorists, available at http:// islamicterroris.wordpress.com/2009/01/
24/the-truth-behind-kandahar-indian-airlines-hijacking-when-india-released-islamic-
terrorists-must-read, last seen on 8-04-16.
4. Singh, Neha, Kandahar Hijack: Delhi Failed to Prevent Indian Airlines Flight 814 from
Leaving Indian Soil, Says Ex-RAW Chief, available at http:// www.ibtimes.co.in
/kandahar-hijack-delhi-failed-prevent-indian-airlines-flight-814-leaving-indian-soil-
says-ex-raw-637947, last seen on 8-04-16.
 19

5. Journal T. Holden Robert, the Contagiousness of Aircraft Hijacking, 91 Am.

Sociology, (1986), pp. 874-904 at 878.
6. Vinod Kuriakose, Indian Anti-Hijacking Law: An analysis, available at www.legal
perspectives .blog spot.
7. Alona E. Evans, Aircraft Hijacking: Its Cause and Cure, 63 AJIL, (1969), pp.695-710
at 695.
8. Celine.Y.November, Aircraft Piracy: The Hague Hijacking Convention, 6 AJIL,
(1972), pp.642-656 at 645.
9. Amir Rafat, Control Of Aircraft Hijacking-The Law of Civil Aviation, 134 WA, (1971),
pp.143-156 at 145,146.
10. Eugene Sochor, ICAO and Armed Attacks against Civil Aviation, 44 IJ, (1988), pp.134-
170 at 145.
11. Alona E. Evans, Appeal Relating to the Jurisdiction of the ICAO Council (India v.
Pakistan), 67 AJIL, (1973), pp. 127-145 at 128.
12. Ruwantissa Abeyratne , The Role of Civil Aviation in Securing Peace, 19
IJ,(2002),pp.53-81 at 56.

Case laws
1. Abdul Latif Adam Momin v. UOI, CR.A.No.292 DB of 2009.
2. Factor v. Laubenheimer, 2290 U.S. 276,287 (1933)
3. Government of Denmark v. Nielsen ,[1984] 2 ALL ER 81
4. United State Government v. McCaffery, [1984] 2 ALL ER 570.