Instruments concerning new and emerging threats to civil aviation

1. Achieving a just and secure society Instruments concerning new and emerging threats to civil aviation Julie Atwell 4 June 2010

2. Background • 11 September 2001 • ICAO Assembly Resolution A33-1 – act urgently to address new and emerging threats to civil aviation. - review the adequacy of existing instruments. • Establish Secretariat Study Group to prepare a new legal instrument covering new and emerging threats.

3. Acts not covered by existing international security instruments • Use of civil aircraft as a weapon • Use of civil aircraft to unlawfully spread certain dangerous substances • Attacks against civil aviation using certain dangerous substances

4. Tokyo Convention 1963 • Lack of specific offence provisions • Reliance upon national law • No requirement to prosecute or extradite.

5. Hague Convention 1970 • Limited to the specific offence of unlawful seizure of aircraft and connected acts • Threat offence but limited to a threat made on board an aircraft in flight. • Accomplice provision but limited to assistance provided on board an aircraft in flight.

6. Montreal Convention 1971 • Limited to acts which affect the safety of the aircraft ‘in service’ or ‘in flight’. • No threat offence • Existing offences do not reflect the gravity of the acts identified by the study group or specifically criminalise the use of an aircraft for such purposes.

7. Other instruments • SUA Convention 2005 covers maritime acts but not civil aviation. • Terrorist Bombings Convention partially covers using an aircraft to spread material but limited. • Several provisions in other instruments should be included to enable States Parties to more effectively deal with offenders.

8. Proposed Principal Offences • Use of an aircraft in service to cause death, serious bodily injury or serious damage to property or the environment. • Release from an aircraft in service a BCN weapon as well as radioactive, explosive or similar substance. • Use against or on board an aircraft in service a BCN weapon, explosive, radioactive or similar substance.

9. Transport offences • Transports, causes to be transported, or facilitates the transport of, on board an aircraft • Explosive or radioactive material for a terrorist purpose • Any BCN weapon • Source material used in nuclear activity not under IAEA safeguards • Equipment etc that contributes to the design, manufacture or delivery of BCN weapon. • Transporting another person on board an aircraft knowing that the person has committed a terrorist offence with the intention of assisting that person to evade prosecution.

10. Ancillary and inchoate offences • Both the Montreal and Hague Conventions • Organizing or directing others to commit a principal offence • ‘Conspiracy’ offence

11. Conspiracy offence • Two or more persons agreeing to bring about the commission of the offence – plus act in furtherance where required by domestic law or • Contribution of an individual to the commission of an offence by a group acting with a common purpose • Knowledge of the general criminal activity or purpose or the group or • Knowledge of the intention of the group to commit a specific offence.

12. New provisions • Montreal - Additional mandatory jurisdiction ground ‘committed by a national’ • 2 optional grounds - ‘committed against a national’ and ‘committed by a stateless person who has his or her habitual residence in the territory of that State.’ • Hague – Additional mandatory grounds – ‘committed by a national’ and ‘committed in the territory of a State’ + 2 additional optional grounds. • Both Conventions – fair treatment, political offence exclusion, activities of armed forces exception.

13. Conclusion • Diplomatic Conference in September 2010. • Likely to be successful • criminalising acts identified as new and emerging threats to civil aviation and • improving mechanisms to successfully prosecute offenders. • Proposed amendments will make a significant contribution to international criminal law and the security of civil aviation.