Unlawful Seizure of Aircraft and Unlawful Interference with Civil Aviation and its Facilities

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Unlawful Seizure of Aircraft and Unlawful Interference with Civil Aviation and its Facilities

32ND ANNUAL CONFERENCE, Christchurch, NZ, 19-23 April 1993

WP No. 125

Unlawful Seizure of Aircraft and Unlawful Interference with Civil Aviation and its Facilities

Introduction

The existing IFATCA Policy on hijacking (Manual, pages 4.4-b 1 to 4.4-b 4) was adopted in 1977 and amended in 1978; the existing policy on unlawful interference with international civil aviation and its facilities (Manual, page 4.4.4.1) was adopted in 1990. The 31st Annual Conference felt the need of reviewing and combining both issues under a single policy document. SC7 was tasked to carry out this work.

Discussion

This section includes the principles already contained in the Manual, with small adjustments and also two new points which are meant to increase the participation of ATCO’s and their Associations in the development of security policies. The main objective is to provide the Associations with a tool to seek agreement on the most important aspects, particularly those that may have legal consequences. The reasoning guiding this section is that the ATCO’s fundamental responsibility is to preserve safety in the air. In order to fulfil such an objective they are entitled to strive for maximum security with respect to the safeguarding of life, the operational environment and the safety of aircraft under their control.

IFATCA, established in 1961, is a non-profit, non-political professional federation having its main objectives the safety, efficiency and regularity of international air navigation, it assists and advises in the development of orderly systems of air traffic control. In order to achieve these objectives, the Federation closely co-operates with national and international aviation authorities, sponsors and supports the passage of legislation and regulations which will increase the safety of air navigation and safeguard the integrity of its members. IFATCA further endeavours to formulate some form of machinery by which it will effectively support its member controllers who assist aircraft that are subject to unlawful interference and as a result act contrary to their administrative directions. IFATCA insists that it is the duty of every controller to grant all assistance possible to relieve the occupants of an aircraft in that situation from their ordeal and ensure a safe landing as soon as possible.

IFATCA encourages States to enter into bilateral or multilateral agreements on the problems raised by unlawful interference with civil aviation facilities and unlawful seizure of aircraft hoping that an international instrument will be made available through which the States will be given the choice of either complying with its provisions or face the consequences. This instrument should, in addition, not only proscribe unlawful seizure of aircraft and unlawful interference with civil aviation facilities serving international air traffic, but also treat it as an international crime and as a result, its author as an international criminal. This position has repeatedly been made known by IFATCA both to the United Nations Organisation (UNO) and the International Civil Aviation Organisation (ICAO).

Still, the present status is that:

1. The existing international agreements concentrate exclusively on security at international airports ignoring ATC facilities and air navigation aids that are not located at international airports;

2. Even the existing agreements have not been signed by all States and cannot therefore be used as guidance since they are ineffective in a great number of countries;

3. There is absolutely no reference to the action required from the controller during or after such occurrences;

4. Several countries have not yet established basic security measures outlined in international conventions, such as the establishment of security areas surrounding airports and air navigation facilities, preventing unauthorised personnel to have access to areas close to parked aircraft or air traffic control premises; establishment of scrutiny points in the airports, with clear indication of its existence to the general public; imposition upon operators to adopt security measures, especially regarding “carry-on” baggage.

This situation is obviously unsatisfactory and even potentially dangerous, calling for the best effort of the Federation, the Member Associations and individual members in order to achieve substantial improvement in the near future. IFATCA believes that the UN Security Council is in a position to call for international action against States which default from the objectives of air navigation safety or depart from the established rules, taking such actions as refusal to grant air traffic control service, refusal to grant landing clearance to aircraft subject to unlawful interference or deliberately rendering unserviceable air navigation and/or landing aids to such flights. It is also IFATCA’s view that such actions may frustrate the criminals and cause them to harm crew and passengers and create unnecessary hazard to other traffic.

On this point and although appreciating its delicate position, IFATCA also notes that ICAO has not yet indicated to such States that their obligations arising out of the Chicago Convention and its Annexes are not fulfilled by avoiding to offer assistance or closing aerodromes to flights that are subject to unlawful interference. IFATCA also encourages national authorities and international bodies to take measures against States which tend to harbour the authors of crimes of unlawful interference with aircraft, including if needed, the suspension of air services to and from such countries. Where States are reluctant to punish the authors of such crimes, IFATCA supports that extradition should be requested to the State of the aircraft’s registry.

The Federation’s primary task on the issue of unlawful interference is to promote standards additional to those stipulated by ICAO and to standardise procedures and phraseology applicable in such situations. The results of such work should be submitted by the Federation and the Member Associations to the appropriate international organisations, national governments, airspace users and other organisations involved in civil aviation in the best spirit of co-operation. Agreement between ATCOs and their administration should be sought, to ensure that if the appropriate authorities instruct the controller to deviate from or violate the ICAO rules, during unlawful interference of civil aviation, the controller shall in no way be held legally responsible for carrying out such an order.

There are other forms of unlawful interference which may occur that do not involve direct action against aircraft (e.g. bomb attack against ATC facility, terrorist attack, damaging or destruction of air traffic control equipment) but also impair the safe operation of flights.

In order to insure that the principles stated in IFATCA policy (namely the principle that the controller is entitled to achieve the maximum security regarding safeguarding personal life, operational environment and the principle that the controller shall be granted indemnity for the result of actions taken in obedience to direct orders) have some practical validity, agreement should be obtained on the following points:

a. That all orders which imply a deviation from the established air traffic rules shall be conveyed through the appropriate authorities, normally the immediate superior and always through the authority responsible for the provision of air traffic services;

b. That the mentioned orders should always be passed in written form;

c. That the air traffic controller on duty be granted relief from his working position when the above conditions are denied to him and when he considers the content of the order wrong or criminal;

d. That during unlawful interference against ATC facilities or its threat, services may be withdrawn. This in order to protect the safety of both personnel and the flights. Measures shall be included in national or international contingency procedures, designed in such a way as to ensure there will be minimal disruption of service.

Conclusions

It is SC7 belief that the proposal policy covers the most significant aspects of both issues and that its approval will supply Member Associations with a useful tool to deal with these problems in their respective countries.

Recommendations

It is recommended that Section 4, page 4441, of the IFATCA Manual be replaced with the following as IFATCA’s policy on the Unlawful Seizure of Aircraft and Unlawful Interference with Civil Aviation and its Facilities.

ATC personnel are entitled to maximum security with respect to the safeguarding of personal life, operational environment and the safety of aircraft under their control.

If during unlawful interference with civil aviation, the appropriate authorities instruct the controller to deviate from or violate the ICAO rules, he shall in no way be held legally responsible for carrying out such an order (Acapulco 90.C.13).

All orders which imply a deviation from the established air traffic rules shall be conveyed through the appropriate authorities, normally the immediate supervisor and always through the authority responsible for the provision of air traffic services. Such orders shall always be issued in written form, clearly identifying the origin and authority and retained for investigative purposes.

The air traffic controller on duty shall be granted relief from his working position when the conditions stated above are not followed or when he considers the content of the order wrong or criminal.

During unlawful interference against ATC utilities or its threat, services may withdrawn. Measures shall be included in national or international contingency procedures, designed in such a manner, to ensure there will be minimal disruption of service.

Member Associations shall also urge their governments to ratify the existing protocols, conventions and treaties on these matters, to make them available to whom it concerns and to refrain from any course of action contrary to those rules (Acapulco 1990 amended Christchurch 93.C.).

Member Associations should seek formal agreement on the conduct of an air traffic controller during situations of unlawful interference and the adoption of contingency procedures during such situations.

IFATCA will undertake, through its Executive Board, to transmit the contents of this policy to the appropriate organisations, namely the United Nations, ICAO and the ILO and also regional organisations who may be concerned with these matters.

Last Update: September 20, 2020  

December 21, 2019   260   Jean-Francois Lepage    1993    

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