AIRCRAFT HUACKI‘NG MAY 1961 - JANUARY 1974 Thesis for the Degree of M. S. MECHIGAN STATE UNIVERSHY ADOLF ALEX ZWIRNER "1 LIBRARY THESIS Michigan Sink. ABSTRACT AIRCRAFT HIJACKING MAY 1961 - JANUARY 1974 BY Adolf Alex Zwirner Aerial hijacking is a relatively new peril for the American airline industry and the millions of passengers who depart each year from American airports. Only a little over a decade has passed since the first "skyjacking" of an American airplane on May 1, 1961. Yet, the effect of this incident has been dramatic, as one airplane after another is diverted to an unscheduled destination. In 1961, there were a total of five skyjackings of United States registered aircraft, which were followed by only one in 1962 and none in 1963. In 1968, activity increased with 22 aircraft being seized followed by 40 aircraft in 1969. The 40 aircraft seized in 1969 is the largest total to date. Since then, both 1970 and 1971 there were a total of 27 per year and 31 in 1972. As of January, 1974, there have been 2 skyjackings, making a grand total of 161 skyjackings since 1961. The purpose of this paper was to prepare a descrip- tive study of all aspects of the phenomenon of skyjacking. Adolf Alex Zwirner This study includes the latest statistics on skyjacking, i.e., number of skyjackings, type of weapons, type of air- craft, skyjackers' identification and disposition or status. This paper also discusses the legal aspects, both national and international, related to this crime. The personality and emotional nature of the Skyjacker is also examined. In addition, the preventive measures instituted by the government and the airline industry are discussed. Included in this discussion are the sky marshal program, the pre-board screening process and the use of electronic detection equipment. A review of the literature was the major procedure used to gather background information, especially con- cerning the legal aspects of this problem. The current statistics were obtained both through written corres- pondence and personal interviews with Federal Aviation Authority officals. Aviation journals and security journals were reviewed in an attempt to ascertain the technical problems that skyjacking presents for the air- lines. Court proceedings were examined to determine the legality of airport searches. Government documents, Department of State Bulletins and reports to Congress concerning skyjacking were reviewed and analyzed. AIRCRAFT HIJACKING MAY 1961 - JANUARY 1974 by ADOLF ALEX ZWIRNER A THESIS Submitted to Michigan State University in partial fulfillment of the requirements for the degree of MASTER OF SCIENCE School of Criminal Justice Approved by: A xmw / / ACKNOWLEDGMENTS I wish to sincerely acknowledge my indebtedness to the many who helped make this thesis possible. To my em- ployer, the United States Army, I extend a special thanks and deep appreciation for the trust and confidence shown me by making this graduate education possible. I would also like to express my sincere appreciation to the members of my thesis committee, Mr. Zolton A. Ferency, Mr. David B. Kalinich, and particularly to the Chairman Dr. Leon Weaver, for the inspiration, encouragement, advice, and hours of personal assistance which he provided during the conduct of this study. Most of all, I wish to thank my wife, Dion, who with my son Christopher made by far the greatest sacrifices during the preparation of the thesis. Without their con- fidence, encouragement, patience, preseverance this thesis would not have been possible. ii TABLE OF CONTENTS Chapter I. INTRODUCTION . . . . . . . . . . . . . Statement of the Problem . . . . . Purpose of the Study . . . . . . . . Methodology . . . . . . . . . . . . Definitions . . . . . . . . . . . . Organization of Thesis . . . . . . . II. AIRCRAFT HIJACKING . . . . . . . . . . The Danger of Aircraft Hijacking . . Insurance . . . . . . . . . . . . . National Law . . . . . . . . . . . . Incidents of Aircraft Hijacking . . The Hijacking Process . . . . . . . III. INTERNATIONAL LAW . . . . . . . . . . The Traditional Concept of Piracy . The Problem of Jurisdiction . . . . The Tokyo Cenvention . . . . . . . . Individual State Practices . . . . . International Organizations . . . . Extradition . . . . . . . . . . . . -Politica1 Asylum . . . . . . . . . . The Hague Convention . . . . . . . . Penalties and Universal Jurisdiction Custody . . . . . . . . . . . . . . Extradition or Prosecution . . . . . Iv. THE HIJACKER O O O O O O O O O O I I 0 Case Histories . . . . . . . . . . . The Case of Ted . . . . . . . . . The Case of Elmer . . . . . . . . V. CURRENT PREVENTIVE MEASURES . . . . . The Sky Marshal Program . . . . . . The Screening Process . . . . . . Legality of Airport Searches . . . . iii Page (1143-wa 0‘ 12 16 21 29 33 35 38 39 42 49 53 57—— 73 76 76 77 82 87 88 93 97 98 105 106 Chapter Electronic Devices . . . . . . . . . . Funding for the Security Program . . . The Effectiveness of the Security Program Additional Measures . . . . . . . . . Public Recommendations . . . . . . . . VI. COMMENTS AND RECOMMENDATIONS . . . . . . The Role of the Media . . . . . . . . The International Situation . . . . . The National Situation . . . . . . . . BIBLIOGRAPHY . . APPENDIX A Chronology of Hijacking of U.S. Aircraft 1 May 1961 - 2 January 1974 . . . . . APPENDIX B A Summary of Legal Status of Hijackers 1 May 1961 - 2 January 1974 . . . . . iv Page 110 111 112 115 118 120 123 124 126 127 135 151 Table 1. LIST OF TABLES Page Summary of Hijacking Incidents Involving U.S. Registered Aircraft (May 1961- January 1974) . . . . . . . . . . . . . . . . 2 Summary of Type Aircraft Involved in Hijacking (May 1961-January 1974) . . . . . . 28 ( Summary of Types of Weapons Involved in Hijacking Incidents (May 1961-January 1974) o o o o o o o o o o o o o o o o o o o 29 CHAPTER I INTRODUCTION Statement of the Problem Aerial hijacking is a relatively - peril for the American airline industry and the millions of passengers who depart each year from American airports. Only a little over a decade has passed since the first "skyjacking" of an American airplane on May l, 1961.1 Yet, the snowballing effect of this initial incident has been swift and dramatic, as one airplane after another is diverted to an unscheduled destination. In 1961, there were a total of five skyjackings of United States registered aircraft, which were followed by only one in 1962 and none in 1963. In 19§g3 activity increased with 22 aircraft being seized followed by 40 air- craft in 1969. The 40 aircraft seized in 1969 is the largest total to date. Since then, both 1970 and 1971 there were a total of 27 per year and 31 in 1972. As of 1New York Times, May 2, 1971, p. l. January, 1974, there have been 2 skyjackings, making a grand 2 total of 161 skyjackings since 1961. (See Table 1). TABLE 1 SUMMARY OF HIJACKINGS INCIDENTS INVOLVING U. S. REGISTERED AIRCRAFT (MAY 1961-JANUARY 1974) I s U T I s U T I s U T 1961 1 3 1 5 0 0 o 0 1 3 1 5 1962 0 o 0 o 0 1 o 1 o 1 o 1 1963 o o 0 0 0 0 0 0 o o o o 1964 o 0 0 o o 1 o 1 o 1 0 1 1965 o 1 3 4 0 0 o o o 1 3 4 1966 o o o 0 o 0 0 o 0 o 0 o 1967 0 o o 0 0 1 o 1 o 1 0 1 1968 1 13 3 17 o 5 o 5 1 18 3 22 1969 1 33 6 40 0 0 o 0 1 33 6 40 1970 5 17 4 26 o 1 0 1 5 18 4 27 1971 8 11 6 25 1 1 o 2 9 12 6 27 1972 14 8 6 28 0 2 1 3 14 10 7 31 .1973 1 o 0 1 o 1 0 1 1 1 0 2 TOTAL 3I' 86 28 I36 I I3 I I5 32 99 36'I6I s - Successful = hijacker controls flight and reaches destination or objective. U - Unsuccessful = hijacker attempts to take control of flight but fails. I - Incomplete = hijacker is apprehended or killed during hijacking or as a result of "hot pursuit." 2Letter from Lowell L. Davis, Chief, Civil Aviation SeCurity Division, Office of Air Transportation Security, Office of the Secretary of Transportation, Washington, D. C., February 25, 1974, (hereinafter referred to as FAA Statisics, January 2, 1974). Purpose of the Study There have been numerous articles and papers written concerning the problem of hijacking aircraft; however, most tend to concentrate on a specific aspect of the problem, i.e., the absence of international law. The purpose of this thesis is to prepare a descriptive study of all aspects of the phenomenon known as "skyjacking." This study compiles the latest statistics on skyjacking, i.e., number of inci- dents, type of aircraft, type of weapons, disposition or status of the skyjackers. It also reviews the legal aspects, both national and international, related to this crime. The personality and emotional state of the skyjacker is also examined. The preventive measures taken by both the govern- ment and the airline industry are examined. Included in the preventive measures are the sky marshal program, the pre- boarding screening process and the latest development in electronic detection devices. Methodology The major procedure used to gather the information for this study was an extensive review of the pertinent literature. Government documents, Department of State Bulletins and Reports to Congress concerning skyjacking, were also reviewed and analyzed. Current statistics were obtained both through written correspondence and personal interviews with Federal Aviation Authority officials, in Washington, D. C. and Detroit, Michigan. Definitions "Hijacking? applies to the seizure of a private commercial vehicle or vessel with the intent of theft of its load or cargo. "Aircraft hijacking or skyjacking" consists of a taking or conversion to private use of an aircraft as a means of transportation and forcibly changing its plan to a different destination.3 "Air piracy? consists of any of the following acts: (1) Any illegal acts of violence, dentention or any act of depredation, committed for private ends by the crew or the passengers of a private aircraft, and directed: (a) On the high seas, against another aircraft, or against persons or property on board such aircraft; (b) Against, aircraft, persons or property in a place outside the jurisdiction of any state. (2) Any act of voluntary participation in the operation of an aircraft with knowledge of facts making it a pirate aircraft.4 3Alona E. Evans, "Aircraft Hijacking: Its Cause and Cure," The American Journal of International Law, LXIII (October, 1969), 696. 4Convention on the High Seas, April 29, 1958 (1962) 2 U.S.T. 2312, T.I.A.S. No. 5200, 450 U.N.T.S. 82. Organization of Thesis Chapter II discusses the latest statistics on skyjacking, type of aircraft, type of weapons, and the hijacking process. Chapter III discusses the legal aspects, both national and international, related to skyjacking. Chapter IV, the personality and emotional nature of the skyjacker is examined. Chapter V examines the preventive measures instituted by the government and the airline industry. Included in this discussion are the skymarshal program, the pre-board screen- ing process and the use of electronic detection equipment. Chapter VI presents the author's comments and recommendations along with a discussion of the most recent hijacking incidents. \([(l\[u..lll\[[rlk([((-l {-‘Ilr‘ll‘l‘llll l I!!! ' III 1" ll ‘ CHAPTER II AIRCRAFT HIJACKING The Danger of Aircraft Hijacking While the hijacked aircraft have been used for di- verse missions - such as fleeing with a child awarded to the other parent as a result of a broken marriage,l kid- napping citizens of an enemy state in an aircraft registered in a third state,2 dropping political leaflets on the capitols of two countries, Lisbon3 and Caracas,4 and fleeing from Communist to non-communist nations,5 the hijackers all have endangered the lives of the passengers on board, have presented the potential of great damage to the air- craft itself, and have added a note of uncertainty to a hitherto tranquil means of international commerce. 1New York Times, November 3, 1979, p. 1. 2New York Times, August 30, 1969, p. 1. 3New York Timesy November 11, 1961, p. 1. 4New York Times, November 28, 1961, p. 21. 5New York Times, October 20, 1969, p. l. 6R. L. Smith McKeithen, "Prospects for the Prevention of Aircraft Hijacking Through Law," Columbia Journal of Transnational Law, IX (Spring, 1970), 60. The human dimensions of skyjacking have grown con- siderable: the five skyjackings in 1961 affected one hundred seventy-eight passengers, as well as the crews, while twenty-seven fully reported hijackings in 1968 involved one thousand four hundred-ninety passengers (including forty-three hijackers) and one hundred sixty-eight crew members.7 The danger to the aircraft, passengers, and crew- members was described in the testimony of the Acting Administrator of the Federal Aviation Administrations as follows: . . . hijacking has involved physical danger to the passengers and the crew. Passengers have been held as hostages or intimidated and crewmembers have been subjected to minor assaults. It is obvious that should a bomb or other form of explosive discharge aboard an aircraft that the aircraft could be lost. Gunplay aboard could involve injury or death among the crew or passengers. As to the possible effects of bullets penetrating the aircraft fuselage, there is little danger of catastrophic effects regarding cabin pressurization: however, there is danger that critical aircraft parts could be hit and rendered inoperable (hydraulic or electrical systems, radios, or fuel tanks). There is always the danger that the hijacker could insist on diverting the flight to a destination beyond the range of the aircraft's fuel supply. This could result in a ditching, a crash landing, or in emergency landing at an airport without the required runway length for the aircraft involved. The air- craft could be diverted to an airport at which bad weather and a lack of navigational aids would make 7Gary N. Horlick, "The Developing Law of Air Hijack- ing," Harvard International Law Journal, XII (Winter, 1971), 39-40. an approach and landing unsafe. The hijacker could divert the aircraft to an unfriendly or hostile country where the passengers would be subject to imprisonment. The action of the hijacker in exploding a bomb or firing a gun or the general commotion caused by the seizure could cause a fir on board the aircraft with resulting injuries, death, or accident. The act of seizing the aircraft by the hijacker might cause certain passengers to react in an impru- dent manner resulting in injuries to themselves or other passengers on the aircraft. Danger, ever present in aviation, is magnified many times when the control of the plane is under the direction of probably nervous and perhaps derranged person who is unlikely to be professionally qualified to make operational decisions.9 In November, 1965 a juvenile, Thomas Robinson, who attempted to hijack an aircraft fired eight shots into the floor before being subdued by three of the passengers.10 No hijacker has threatened to take over the controls of an American plane: this is reported to have happened in the hijacking of an Israeli aircraft in July, 1968, by members of the Popular Front for the Liberation of Palestine (PFLP).11 8U. 8., Congress, House, Report from the Committee on Interstate and Foreign Commerce, House Doc. 91-33, 9lst Cong., lst Sess., 1969, p. 3. 9Horlick, "Developing Law, p. 48. 10Alona E. Evans, "Aircraft Hijacking: Its Cause and Cure," The American Journal of International Law, LXIII (October, 1969), 702. llIbid. Given the seriousness of any outbreak of violence on an aircraft in flight, it is not surprising that pilots are instructed to c00perate with the hijacker if there is any prospect of armed attack. An Easter Airlines Flight Brief, dated March 27, 1968, provides: March 27, 1968 To: All flight officers. Subject: Aircraft piracy - Hijacking policy The most important consideration under the act of aircraft piracy is the safety of the lives of the passengers and crew. Any other factor is secondary. Therefore, company policy is: In the fact of an armed threat to any crewmember, comply with the demands presented. Remember, more than one gunman may be on board. If not allowed to make radio contact, it is suggested you might be able to go to code 77 (emergency) on the ‘transponder. This would alert all ATC air defense radar stations in your vicinity that an emergency exists on your flight. If allowed to make radio contact, as much infor- mation as to the status of your condition, whether violence has or has not taken place, and so forth, is desirable for both the United States and Cuba authorities to know. Previous experience has indicated that the U.S. and Havana centers are well coordinated in these instances and will handle you in a routine manner, including handoff to the tower. Your Latin American H/L en route chart covers the airways involved to Cuba. There is no published approach procedure for Jose Marti Airpaort, Havana, Cuba. The jet runway is 5-23, 10,500 feet long, and elevation is 210 feet. The radio facility is a radio beacon, approx- imately 3 miles southwest of runway 5. The frequency is 348 kilocycles. Ground support for both the aircraft and the passengers and crew have been available at Jose Marti Airport, offered by Cubana. Services have included telephone to the United States, fuel, air starting equipment, weather information, and so forth. It _ is not recommended that fuel be taken in Cuba unless absolutely required. Fuel is available from the Navy at Key West (Boca Chica). The Swiss Embassy has proved to be most helpful and will probably have a representative at the airport. If not, a call to the Swiss Embassy for any help you require is in order. To sum up: Going on past eXperience, it is much more prudent to submit to a gunman's demands than to attempt action which may well jeopardize the lives of all on board. J. H. O'NEILL Division Vice-President. 12 The dangers involved in aircraft hijacking are out of all proportion to the number of incidents. Apart from the navigational difficulties attendant upon changes of course, together with landing and take-off in Cuba, there are other hazards. Aircraft flying overland routes are not necessarily equipped for emergency landing at sea, as one pilot pointed out in an incident in November, 1968.13 Fuel shortage is presumably no problem for transcontinental flights, as was evident in the hijacking in June, 1969, of an aircraft bound from Oakland, California, to New York. . The aircraft made the 2700 mile trip to Havana with fuel to spare. However, for aircraft on shorter runs, refueling may be necessary.14 Refueling has been used by the flight 12Seymour W. Wurfel, "Aircraft Piracy - Crime or Fun?" William and Mary Law Review, X (Summer, 1969), 864- 865. l3Evans, "Aircraft Hijacking," p. 701. l4Ibid. crew as a ruse to regain control of the aircraft, but this can be a dangerous maneuver. An attempted hijacking in March, 1969, was successfully frustrated at a refueling stOp when an F.B.I. agent, traveling as a passenger managed to disarm the hijacker. On the other hand, an attempted hijacking of a Columbian aircraft a week earlier led to a shooting affray between the hijacker and local police at a refueling stop, as a result of which the hijacker and the aircraft's flight engineer were killed and several other persons were wounded.15 The dangerous activity of hijacking has rapidly spread so that it is no longer purely a matter of concern in the Western Hemisphere. None of the hijackings in 1961 or thereafter were outside the Americas until 1967, when an Egyptian aircraft was forced to land in Jordan, and a small chartered British plane was diverted to Algiers as part of the kidnapping of Moise Tshombe. The next year there were three in the Eastern Hemisphere; a Nigerian plane to Biafra, an Israeli flight from Rome to Tel Aviv diverted to Algiers, and an Olympic Paris-Athens flight forced to return to Paris. In 1969, there were eighteen non—American hijackings within the course of the year.16 15Ibid., p. 702. l6Horlick, "Developing Law." pp. 39-40. 12 Insurance Air piracy exploded into a world problem in Septem— ber, 1970, when four aircraft were successfully hijacked and destroyed by Arab guerillas. This upsurge of air piracy by Arab guerillas forced a boost in premiums on insurance covering hijacking. Hijacking insurance was now placed in the same category as war risk insurance.l7 Until then, hijacking was treated by insurance groups in the same class as standard null and liability coverage and was handled through normal channels. War risk, and now hijacking, insurance is purchased in a market separate from that which handled standard aircraft policies. In war risk, Lloyds of London normally will pick up 60% of the coverage with the United States Transportations De- partment handling the balance for United States carriers. The Transportation Department maintains a revolving fund which provides premium aviation war risk insurance in the event of an outbreak of war. Binders are issued to cover aircraft, persons and property and will become war risk insurance in wartime and "in situations short of war."18 The United States government's entry as a major aviation insurer was based on existing congressional l7"Arab Guerillas Adopt Air Piracy as Tactic," Aviation Week and Space Technology, September 14, 1970, pp. 33-38. l8Ibid., pp. 33-38 13 authority permitting it to provide United States airlines war risk coverage when commercial insurance is not avail- able at reasonable rates and conditions. When the govern- ment announced that through the Transportation Department, it was offering fully underwritten aviation hull insurance, Transportation Secretary John A. Volpe said, "Commercial insurance premiums have been deemed prohibitively expensive due to the present situation . . . ."19 The United States government's entrance into the insurance field, began on a grand scale as of 12:01 A.M., September 21, 1970. This was timed to coincide with ter- mination of most war risk policies that had been obtained by United States airlines from London based syndicates. Both hull and liability insurance policies were cancelled, with renewal offered only for hull insurance at rates estimated at from 10-15 times higher than before the four 1970 Labor Day weekend hijackings for similar coverage. Prior to September 21, 1970, the Transportation Department's insurance involvement had been limited. Owing to the inability of United States international airlines to obtain 100% hull insurance coverage for the then new Boeing 747's, the department began offering in July of 1970 a 19Harold D. Watkins, "Relations of U.S. Airlines Altered," Aviation Week and Space Technology, September 28, 1970, p. 23. 20 Ibid. 14 deductible form of war risk hull insurance covering the last 40% of the insured value. The London syndicates were cover- ing the first 60%. A common United States airline practice was to obtain so-called all—risk insurance from United States insurance companies and then to go to the London insurance market for coverage excluded from this domestic policy. This exclusion has been typically war risk coverage, with hijacking not excluded.21 I Confusion that has been created over whether certain hijackings are war risk or other coverage is a major problem within the aviation insurance market. A case in 1962 is relevant in the fact that an insurance company sought to invoke the exclusionary clause of the policy on the grounds that the loss had taken place in Cuba as a result of warlike activity. The aircraft, chartered for a flight from Fort Lauderdale, Florida, to Orlando, was hijacked to Cuba. On take-off from a Cuban pasture, the plane was intercepted by a Cuban military plane and damaged by gunfire. The pilot was eventually able to get the aircraft back to Florida where the claim for loss was filed. The District Court of Appeals held that, as the act had taken place in the United States, the resultant damage must be considered ". . . to have occurred in the United States in and by the theft," 21Ibid., p. 24. 15 so that the exclusionary clause would not constitute a bar to recovery; the Supreme Court of Florida affirmed that the act of hijacking constituted a theft in that it involved the taking of personal property without consent ". . . in such manner as to create an unreasonable risk of permanent loss . . . . Presumably, recovery could be obtained for theft if the hijacked aircraft were not returned by Cuba.22 This same inssue was at stake in a more recent case when Trans World Airlines attempted to collect from $2.5-3 million in damages to one of its aircraft caused by a hi- jacker's bomb in Damascus in 1969. The all-risk and war- risk insurers could not agree on who was responsible and the airline had to take the matter to court for judgment.23 Under congressional authority there are certain terms under which the government insurance can be written. It must be for war-risk only, hijacking by persons seeking political asylum or by deranged persons is not covered by the U.S. government under current law. However, the war- risk does explicitly cover the type of piracy conducted by Arab guerrillas in 1970. The terms of the policy includes protection against ". . . independent unit or individual activities in furtherance of a program of irregular war- fare."24 22 n - ' ' ' ll Evans, Aircraft H1jack1ng, p. 702. 23Watkins, "Relations Altered," p. 24. 24 Ibid. 16 The government war-risk insurance is also limited to protection of international flights. The classification of the flight is determined by the intended destination. Thus a flight scheduled between domestic points would not be covered if it was commandeered to some foreign point. The Transportation Department insurance is being offered for $.20 per $100 of value per year, regardless of the type of aircraft. This may be retroactively increased to $.80 during any one policy year, if premiums are inad- equate to cover losses suffered within one year. Pre Labor Date 1970 rates for London war-risk insurance were about 1/2-3/4 the Transportation Department's rate.25 National Law In May of 1961, when an armed Cuban named Antulio Ramirex Ortiz, using as an alias "Elpirata Corfrisi," the name of an eighteenth century Spanish pirate, forced the pilot of a National Airlines Convair 440 flying from Mara- thon to Key West with eight passengers to change course and land at Havana, and thus began what may be called the modern era of hijacking, he flew into what was in many 26 ways a legal vacuum. 25Ibid. 26Horlick, "Developing Law," p. 33. 17 Not only was there a complete lack of international agreement to a solution of the jurisdiction problem of hi- jacking, municipal legal systems themselves were not com- pletely clear for a long time about their jurisdiction over airborne crimes. A 1959 summary of the laws of International Civil Aviation Organization (ICAO) members on the subject of jurisdiction over crimes in the air, uncovered forty-one states with such laws. Twenty-three relied mainly on the law of the flag, but only nine of these twenty-three did so without attaching exceptions or conditions to this as a ground for jurisdiction. Thirteen states, not necessarily different ones from those above, had a base of jurisdiction in territoriality, but each under a different set of condi- tions, and six had specific provisions for jurisdiction where the offense had effect within their territory. Nationality of the offender was invoked by twenty-seven states in some form, and the nationality of the victim of the offense by fifteen. Nine states had legislation permitting jurisdic- tion as place of first landing, and seven as the place of arrest. Finally, all states had general jurisdiction, such as piracy, and those affecting the security or credit of the state.27 27Ibid., p. 34. 18 The famous case of United States v. Cordove (89 F. Supp. 298 E. D. N. Y., 1949), for instance, seemed to indicate that one could literally get away with murder in an American airplane over international waters. Cordova involved charges of assault resulting from a drunken brawl on a commercial airliner over international waters. The court held that the federal statutes relied upon to give jurisdiction, which were cast in terms of acts "within the admiralty and maritime jurisdiction, of the United States," could not be read to include acts occurring in aircraft. The court recognized that this interpretation left a gap in the law.28 Then in 1961, a drunken passenger, who boarded a non-stop flight from Chicago to Los Angeles, became angry when he was forced to give up a private supply of liquor and attacked the pilot with a knife. After the plane landed, the offender escaped prosecution because of a conflict of jurisdiction. In order to plug this gap in the criminal code, the late Senator Clair Engle of California introduced a bill in the Senate to amend the Federal Aviation Act of 1958 to make it a federal offense to commit assaults and certain other crimes of violence, including aircraft in flight.29 28Ibid. 29Robert Burkhardt, The Federal Aviation Administra- tion (New York: Frederick A. Praeger, 1967), p. 90. \(([[[[[[[[{I{I 19 On July 28, 1961, N. E. Halaby, Administrator of the Federal Aviation Agency (FAA) forwarded to a House Committee a series of suggested amendments to the Federal Aviation Act to protect against any future hijacking of U. S. aircraft.3O In the House, Representative John Bell Williams of Mississip- pi introduced a bill, which, after various amendments, became Pulbic Law 87-197, an Act "to amend the Federal Avia- tion Act of 1958 to provide for the application of federal criminal law to certain events occurring aboard aircraft in air commerce."31 However, before this Act was signed into law by President John F. Kennedy on September 5, 1961, the United States government was forced to use its kidnapping and (flostruction of commerce laws to try skyjacking cases. These jlaws were held applicable to a hijacking which occurred vwithin the country on August 3, 1961 (United States v. Ikearden, 304 F. 2d 532 (5th Cir. 1962)). President Kennedy personally intervened in the Ikearden case. This case involved a man and his sixteen )Kaar'old son who hijacked a Continental Airlines Boeing 707 knatween Phoenix and El Paso. President Kennedy personally 3O"Halaby Proposes Amendments to FAA Act to Guard Against Hijacking of Aircraft." FAA News, XCVII, July 28, 1961' p. 4. 31Burkhardt, Federal Aviation Administration, p. 90. Vll‘t‘lll‘ll' .l 20 ordered the airline not to allow the plane to be taken to Cuba. The aircraft was halted by shooting out the tires as it headed for a takeoff at El Paso after the pilot had talked the hijackers into letting him land to refuel.32 The Bearden's were charged with "Interruption of Commerce by Threats" (l8 U.S.C. Sec. 1951) and subsequently found guilty, the father was sentenced to 20 years, and the son went to reform school.33 Public Law 87-197 gave the United States the power to try such incidents as interference with the aircrafts crew, carrying wapons aboard an aircraft and conveying false information about a hijacking. It also provided that: (l) Whoever commits or attempts to commit aircraft piracy, as Herein defined, shall be punished (a) by death . . . or (b) by imprisonment for not less than twenty years if the death penalty is not imposed. (2) As used in this SUbSECtion, the term "aircraft piracy" means any seizure or exerc1se of control, by force or violence and with wrongful intent, of an aircraft in flight in air commerce. 32Donald R. Witnah, Safer Skyways: Federal Control 9f AviationL71926-l966 (Ames, Iowa: Iowa State University Press, 1966, p. 326. 33Arthur I. Hirsch and David Fuller, "Aircraft Piracy and Extradition," New York Law Forum, XVI (Spring, 1970), 406. 34Act of September 5, 1961, Pub. L. No. 87-197, Sec. 1, 75 Stst. 466; amending Federal Aviation Act of 1958, Sec. 902 (49 U.S.C. Sec. 1472 (i)-(n) (1964)). 21 These laws also authorize an air carrier, subject to reasonable FAA rules, to refuse to transport persons or pro- perty that it believes would endanger safety in flight.35 They also charge the Federal Bureau of Investigation ‘with the investigation of these crimes.36 Incidents of Aircraft Hijacking Since 1961, there have been approximately 192 per- sons involved in the 161 hijackings of U. S. registered aircraft and of one foreign aircraft engaged in U. 8. air commerce.37 Of these 218 persons 112 are still listed as fugitives by the Department of Justice, and there have been 35 convictions to date.38 (See Appendix A) Those convicted have had a wide variety of sentences imposed upon them. Some airline industry officials feel that an alleged leniency in some U.S. Federal Courts as opposed to severity in others is "tempering the risk of hijacking and, consequently, possibly encouraging the act."39 In addition, disparity of laws among nations, lack of extradition authority in many areas and abuse of political 35 36 Ibid., Sec. 111. Ibid., Sec. 902(n). 37FAA Statistics, January 2, 1974. 381bid. 39"Airlines Demand Stiffer Hijack Penalties," Aviation Week and Space Technology, July 6, 1970, p. 32. \(f‘ [.Ill‘l[|[.[[[[ ('1’. ll 22 asylum practices imply favorable odds in escaping rigid pun- ishment for acts of air piracy.40 These aspects of the problem will be discussed in detail in Chapter II. The best example of the differences in U. S. court attitude toward hijacking was shown in June 1970, on the same day in the same building in Miami. Federal District Judge William O. Mehrtens sentenced Thomas James Boynton to 20 years for commandeering a private aricraft after he had chartered it for a flight in the Florida Keys, on February 17, 1968. By contrast, Thomas George Washington was given two years by District Judge Joe Caston for hijacking Eastern Airlines transport carrying 151 persons on December 19, 1968. In order to get around the Federal Aviation Act that required a penalty not less than 20 years, Washington was not charged with air piracy but rather with "interfering with the crew of an aircraft."41 In the first prosecution of a pair of successful hijackers, the accused, who had hijacked a chartered air- craft, were indicted on charges of air piracy as well as kidnapping the pilot of the aircraft. The District Court for the Southern District of Florida dismissed the indict- ment before trial on grounds that a chartered aircraft is 40 41 Ibid. Ibid. 23 not a "commercial aircraft" within the meaning of the statute and that a kidnapping must be for the "pecuniary benefit" of the accused, which could not be shown here. When the government's petition for_rehearing was denied, the government appealed directly to the Supreme Court which reversed the judgement of dismissal. The Court held "inter alia," that the act of kidnapping is illegal whatever the purpose of the kidnapper and that Congress clearly intended to include private aircraft within the scope of the air piracy clause of the Federal Aviation Act.42 The two offenders, David Healy and Oeth Leonard, were convicted and sentenced to 20 years for air piracy and one year for kidnapping.43 Only one hijacker, Lorenzo Edward Ervin, Jr., who hijacked an Eastern Airline DC-8 from Atlanta to Cuba on February 25, 1969, has been sentenced to life. The next most severe sentence was given to J. C. Crawford who also successfully hijacked an aircraft to Cuba; he was given 50 years. Both of these hijackers were returned to the United States through third party nations. Ervin returned via Czechoslovakia and Crawford via Canada.44 42Evans, "Aircraft Hijacking," p. 706. 43Hirsh, "Extradition," p. 406. 44FAA Statistics, January 2, 1974. 24 Is there any definite pattern to the 161 hijackings of United States registered aircraft? Computers have been employed to sort the facts surrounding each case and attempt to relate them to the others. Generally, little has been gleaned from analyzing these incidents. The Department of Justice states flatly that "no definite pattern" can be perceived in the statistics of hijacking.4S However, three facts stand out in the incidents of hijacking according to John E. Stephen. First, the overwhelming number of United States hijackings are to Cuba, ninety-six since 1961. This is reasonable to be explained on the obvious ground that Cuba, under present abnormal U.S. - Cuba diplomatic relationships, is the only practical destination which appears to offer some possibility of asylum or sanctuary to the hijacker.4 This aspect of political asylum will be discussed in detail in Chapter III. Another reason is the fact that a great many of the hijackers are Cuban nationals, using the hijacking as a means of returning to Cuba. There have been thirty-nine known Cuban nationals involved in hijacking U.S. registered aircraft. There also has been some reason to believe that 45John E. Stephen, "Going South - Air Piracy and Unlawful Interference with Air Commerce," International Lawyer, IX (1970), 434. 46 Ibid. 25 some incidents have involved the return to Cuba of Cuban agents working in the United States.47 The second significant common denominator of the U. S. hijackings is that they have been cyclical and have occurred in flurries. There has been some evidence of political conspiracy in the timing and modus operandi of some of the cases, particularly by violent extremist groups in the United States such as the "Black Panthers."48 Peter G. Masefield, chairman of the British Airports Authority, told an international symposium that organized hijacking of aircraft can be traced back to a tri-contin- ental communist congress in Cuba in 1966. He claims that it was a school for hijackers to "export terrorism and subversion."49 However,the evidence in this respect is inconclusive in a majority of the cases. In the report on hearings on "Air Piracy in the Caribbean Area" by the House Subcommittee on Inter-American Affairs, it is stated that, ". . . there is no evidence available to show that the Castro regime has sponsored these activities."50 47 48 Ibid. Ibid. 49"Masefield Traces Hijacking to Cuba Congress," Aviation Week and Space Technology, December 6, 1971, p. 22. 50U. S. Congress, House, Report from the House Committee on Foreign Affairs, Subcommittee on Inter—American Affairs, House Doc. 9-19, 90 Cong. 2nd. Sess., 1968. 26 Many believe that these epidemics of hijackings feed on the inordinate publicity which accompanies nearly every incident. A study committee of the Air Line Pilots Associ- ation (ALPA) reported in 1970 that the coverage of hijacking cases by the news media has been "sensational and dispro— portionate" and has thereby tended to encourage publicity seeking offenders and mentally disturbed persons.51 Captain Walter C. Hill, safety director of Eastern Airlines, recommended in 1970 that increased efforts be made to publicize the fate of hijackers. Captain Hill stated that this could be a powerful deterrent if the facts concerning the poor treatment of hijackers by the Cuban government and the number of U. S. convictions were made public. However, what is played up is the glamorous escapes and the large sums of money that are extorted from the airlines.52 Dr. David G. Hubbard, a psychiatrist who has created a center to study hijackers, said recently that the news media is responsible for the latest rash of hi- jackings.53 Both government and industry have leveled an 51Stephen, "Going South," p. 434. 52"Eastern Accelerates Anti-Hijack Preboarding Screening Program," Aviation Week and Space Technology, May 4, 1970, p. 34. 53Security Systems Digest, February 2, 1972, pp. 3-4. 27 obverse criticism at the news media for giving insufficient publicity to the drastic federal criminal penalties for aircraft piracy.54 A third feature Of U. S. hijackings is that a large proportion of them involve mentally-disturbed persons and persons in difficulty with the law. In fact, in an incident in 1970 an aircraft was commandeered by an unarmed federal prisoner being transported by two U. S. Marshals. This attempted hijacking was unsuccessful in that the hijacker, David W. Donovan, was overpowered and forcibly subdued by the two U. S. Marshals.55 There have been forty-six unsuccessful or incomplete hijackings since 1961. There have been seventeen hijackers committed to mental institutions, five of these have been since re- leased.56 A detailed discussion of the psychological aspects of hijacking will be presented in Chapter IV. Even though these factors stand out in the majority of hijackings, the fact remains that hijackings occur under a variety of conditions. Almost every type of aircraft has been hijacked from Boeing 747's to helicopters,57 (See Table 2) and almost every type of weapon, from the most popular, the firearm, to acid and ice picks, has been 54Security Systems Digest, February 2, 1972, pp. 3-4. 55Ibid. 56FAA Statistics, January 2, 1974. 57 Ibid. TABLE 2 SUMMARY OF TYPE AIRCRAFT INVOLVED IN HIJACKING INCIDENTS (MAY 1961-JANUARY 1974) Air Carriers General Aviation Jets . . . . . . . . 133 Jets . . . . . . . . . 0 Prop-Jets . . . . . 7 Prop-Jets . . . . . . 0 Propeller Driven . . __§ Propeller Driven . . . 13 146 Helicopter . . . . . . _2 15 Type Aircraft Number of Incidents B-747 4 B-727 54 DC-8 28 B-707 15 DC-9 l7 B-720 DC-3 DC-6 Convair 880 Convair 440 Piper Apache Lockheed 188 Fairchild F-27 Cessna Twin Cessna 182 Cessna 177 Cessna 172 Convair 600 Heron B-737 Cessna 402 Aero Commander U/I Helicopter Grumman G-73 FH-277 Cessna 206 Bell 47-G5 Helicopter Total 16 HFJFJHFHFJH~4RJHPOFJHPUFJNLAF‘bFHUJw H 29 used.58 (See Table 3) These are the circumstances that make aircraft hijacking such a difficult crime to control. TABLE 3 SUMMARY OF TYPES OF WEAPONS INVOLVED IN HIJACKING INCIDENTS (MAY 1961-JANUARY 1974) Number of Type Incidents* Firearms (Alleged and Real) 117 BB Gun 1 Knives 24 Bombs, Explosives (Alleged and Real) 48 Razor or Razor Blade 3 Tear Gas Pen 1 Broken Bottle 1 Fire Threat 1 Hatchet 1 Acid 1 Ice Pick 1 * Several hijackers used combinations of two or more weapons. The Hijacking Process A hijacker usually begins by seizing a stewardess and forcing her at gunpoint to take him to the cockpit where the pilot is ordered to proceed, in most cases, to Havana, or the stewardess may be held in the cabin and forced to relay the order to the pilot through the aircraft's SBIbid. 30 internal communication system.59 In some instances, especi- ally in chartered aircraft, an attack is made directly on the pilot. In a case, both the pilot and mechanic of a chartered seaplane were wounded by hijackers who then forced the co-pilot to fly them to Havana.60 As soon as he is aware of a hijacking, the pilot notifies the nearest FAA traffic control center which, in turn, proceeds to obtain clearance for the aircraft from the Havana traffic control center, together with the neces- sary information for landing at Havana's Jose Marti Airport. This information is relayed to the aircraft. The Depart- ment of State is immediately notified about the incident and either informs the Czech Embassy at Washington, repre- senting Cuban interests in the United States, or the Swiss Embassy arranges for exit clearances for the aircraft, passengers and flight crew and pays for any charges arising from the stOpover.61 These costs for landing fees and lost commercial time might amount to $3,000—$4,000. However, a recent B-747 hijacking to Cuba cost American Airlines over $100,000.62 59Evans, "Aircraft Hijacking," p. 698. 60New York Times, March 8, 1972, sec A, p. 8. 1Evans, "Aircraft Hijacking," p. 699. 62Letter from Lowell L. Davis, February 25, 1974. \(t' il'll‘t‘l‘l‘lfllvf 11145.?!) 31 The Swiss Government is reimbursed by the Department of State which, in turn, is reimbursed by the carrier.63 En route to Havana the aircraft may be followed while over the high seas by United States Air Force planes for safety purposes. The Air Force planes will not attempt to force the airplane down through active maneuvers or use of weapons but is rather an attempt to bring passive pressure on the hijackers. Their main purpose is the continued monitoring of the flight for search and rescue operations should it crash.64 On landing in Cuba, the hijacker is removed by Cuban military authorities, and the aircraft, crew, and passengers are allowed to return to the United States. Upon reaching the U. S., passengers and crew are interviewed by agents of the F. B. I. with a veiw to identifying the hijacker and to clarifying the circumstances of the in- cident. In the majority of cases identification is made and a complaint is filed against the hijacker on a charge of air piracy in the place of last departure of the air- craft, or a John Doe warrant for the hijacker's arrest may be sworn out so that he can be promptly taken into custody should he return to the United States. The key words in the 63Evans, "Aircraft Hijacking," p. 699. 64U. S. Federal Aviation Agency, "Hijacking of Civil Aircraft," Notice at 7500.4 (Washington, D.C.: FAA, January 14, 1964), pp. 1-2. last sentence are "should he return,‘ as we shall see in the following chapter there is great difficulty in gaining jurisdiction over a hijacker once he leaves the country. 32 true itns rues thus CHAPTER III INTERNATIONAL LAW "Aircraft hijacking" is a contemporary addition to roster of international crimes, and the necessity for control at the international as well as national level only recently begun to be recognized.1 In the wake of four hijackings on Labor Day weekend 1970, President ‘Nideuwwsm . was; wasp emuoq dame: prepare 4 A notcwceo: qo\m~\~ T . 1 SS 4 i .6; 8 .68. .1: N: pouu«>cco .mc\oN\c mammou A 3 race 6.: .5 25.3ch menu was Laue; LEE: .5326 t 3 :8: ~32? alélT are“ , II t .c:_;u ".moE a .m»> m pruuw>cou ALHU muoo + 2 ”Quart: as pmsataee maze ergo «Lacrosse Asap ceaxmz Hem cou x capo Comm flu xacwozm cm 00 A.umv cecppun ~c\m\m ..::uu buxuap p SOL sue tapLLLL .mp2 0m . 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