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18 December 2013
The 2010 Beijing Convention(1) and the Beijing Protocol(2) were drafted under the auspices of the International Civil Aviation Organisation in order to criminalise the September 11 2001 attacks and to improve international civil aviation security. They are the product of years of negotiations and constitute an important advancement in the growing number of legal measures implemented by the international community to prevent, investigate and prosecute terrorist crimes.(3)
The Beijing Convention is intended to replace the 1971 Montreal Convention(4) (also known as the Sabotage Convention) and its 1988 Protocol.(5) Responding directly to the events of September 11 2001, the convention criminalises the use of a civil aircraft to cause death, serious bodily injury or serious damage to property or the environment. A second new offence criminalises the use of civil aircraft to release or discharge any biological, chemical or nuclear weapon or similar substances onboard or against civil aircraft. The convention further criminalises the unlawful transport of any biological, chemical or nuclear weapon, related material or other dangerous material. Cyber attacks on air navigation facilities also constitute an offence under the convention.
The Beijing Protocol is intended to supplement the 1970 Hague Convention(6) (also known as the Hijacking Convention). It expands the scope of the hijacking offence to include hijackings that occur pre or post-flight, as well as a variety of ancillary offences, including:
The protocol recognises that not all persons involved in hijacking will necessarily be onboard the aircraft.
Both the convention and the protocol contain provisions to promote cooperation between states in combating unlawful acts directed against civil aviation, while emphasising human rights and fair treatment of suspects.
Switzerland played a key role in the course of the negotiations that led to the Beijing instruments. The Swiss delegation helped to broker a compromise solution in relation to the issue of whether the activities of military forces during an armed conflict are governed by the international criminal air law conventions. The convention now provides that it does not govern such activities, inasmuch as they are governed by other rules of international law. The provision cannot be interpreted as condoning or making lawful otherwise unlawful acts, or precluding prosecution under other laws.
Despite the laudable purposes of the instruments, the ratification process has been slow.(7) Neither the convention nor the protocol are yet in force. Twenty-two ratifications are required in order for the instruments to come into force.
The Swiss government recently took appropriate steps towards the ratification of the convention and protocol(8) – a welcome initiative. It is to be hoped that many other International Civil Aviation Organisation member states will proceed accordingly.
For further information on this topic please contact Andreas Fankhauser at Baumgartner Mächler by telephone (+41 44 215 4477), fax (+41 44 215 4479) or email (firstname.lastname@example.org). The Baumgartner Mächler website can be accessed at www.bmlaw.ch.
(3) Samuel M Witten, Introductory Note to the Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation and the Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft, 50 ILM 141 (2011), Page 143.
(5) Protocol for the Suppression of Unlawful Acts of Violence at Airports serving International Civil Aviation of 1988, Supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of 1971, Montreal, February 24 1988.
(8) Communication of the Swiss Federal Council for approval of the Convention on the Suppression of Unlawful Acts with reference to the International Civil Aviation and the Protocol to the Convention for the Suppression of Unlawful Seizure of Aircraft, October 9 2013.
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