EXAMINING THE OFFENCE OF AIRCRAFT HIJACKING: AN APPRAISAL UNDER CAMEROONIAN CIVIL AVIATION LAW
Keywords:
Aircraft hijacking, Aircraft safety, Civil Aviation law, Cameroon, Punishment, technology, legislation, offence, crime, violenceAbstract
Aircraft hijacking as an offence against the safety of civil aircrafts is a serious menace against the international community as a whole and Cameroon in particular. The 2001 Law punishing offences against the safety of aircrafts in Cameroon provides an attempt to the definition of the offence of aircraft hijacking, yet with the institution of advanced technology, the definition seems lacking. This Law merely ascribes responsibility to whosoever unlawfully and through violence or threat of violence seizes an aircraft in service or out of service or controls thereof or is an accomplice of a person who commits or attempts to commit any ingredients of the offence. Thus, it does not create or defines the offence as a specific offence under Cameroonian civil aviation law. Determining what will constitute an offence in establishing liability has being a difficult task for the Cameroonian legislator. The objective of this paper is in looking at the position of the law when a matter of aircraft hijacking is concerned. It is of the opinion that the failure of establishing the offence of aircraft hijacking will become difficult in punishing the offender of such a crime. As such, the Cameroonian legislator is under the obligation to amend and enact domestic legislation relating to aircraft hijacking.
References
1. Principal instruments defining hijacking are; The 1963 Tokyo Convention, “Convention on offences and certain Acts Committed on Board Aircraft”. The 1970 Hague Convention, “Convention for the Suppression of Unlawful Seizure of Aircraft”. The 1971 Montreal Convention, “Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation”. The 1988 Montreal Protocol, “Protocol for the Suppression of Acts of Violence at Airports Serving International Civil Aviation, Supplementary to the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation”. The 1991 Montreal Convention, “Convention on the Marking of Plastic Explosives for the purpose of Detection”. The 2010 Beijing Convention, “Convention for the Suppression of Unlawful Acts relating to International Civil Aviation”. The 2010 Beijing Protocol, “Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft”.
2. Law no. 2005/007, 27 Jul 2005, Criminal Procedure Code of the Republic of Cameroon.
3. Law no . 2001-19 of 18 Dec 2001 to Punish Offences and Acts against the Safety of Civil Aviation.
4. Law no. 2001-19 of 18 Dec 2001, op.cit.
5. Section 1 of the 2001 Law, it states “This law lays down as part of laws to punish piracy and terrorist act in Cameroon.”
6. Supra, footnote 2.
7. Article 1(1) of the 1963 Tokyo Convention stipulates, “this convention shall apply to (a) offences against penal law, (b) act which, whether or not they are offences, may or do jeopardise the safety of the aircraft or of persons or property, therein or which jeopardises good order or discipline on board”.
8. Article 2 of the 1963 Tokyo Convention. JCGIBL (2020) 8–21 © Law Journals 2020. All Rights Reserved Page 19
9. But, Fitzgerald GF , expresses the opinion that other penal laws are applicable too, if sanctions are provided for the violation, in his essay “The Development of International Rules Concerning Offences and Certain Other Acts Committed on Board Aircraft”, Canadian Year Book, International Law; 1963; 236p.
10. Convention for the Suppression of Unlawful Seizure of Aircraft signed at The Hague on 16 Dec 1970 (Hague Convention).
11. Convention for the Suppression of Unlawful Seizure of Aircraft signed at The Hague on 16 Dec 1970 (Hague Convention).
12. Abeyratne IR. Aviation Security: Legal and Regulatory Aspects of Unlawful Interference with Civil Aviation . England: Ashgate Publisher; 1998; 146-158p.
13. Article 1 of the 1970 Hague Convention.
14. Any person commits an offence if h e unlawfully and intentionally: a. performs acts of violence against a person on board an aircraft in flight if that act is likely to endanger the safety of that, or b. destroys an aircraft in service or cause damage to such an aircraft which renders it incapable of flight or which is likely to endanger it safety in flight, or c. places or causes to place on an aircraft in service, by any means whatever, a device or substance which is likely to destroy that aircraft or to cause damage to it, which renders it incapable of flight, or to cause damage to it, which is likely to endanger safety in flight,
15. destroys or damages air navigation facilities or interferes with their operation; if any such act is likely to endanger the safety of aircraft in flight, or a. communicates information which he knows to be false, thereby endangering the safety of an aircraft in flight.
16. Any person also commits an offence if he: a. attempts to commit any of the offence mentioned in paragraph 1of this article, or b. is an accomplice of a person who commits or attempts to commit any such offence.
17. Black’s Law Dictionary. 2nd Edn. http://www.thelawdictionary.org>violence accessed on the 15 of Jan 2016.
18. Article 1(1) (a) of the 1971 Montreal Convention and Section 4 (b) of the 2001 law.
19. Fitzgerald GF. Towards Legal Suppression of Acts against Civil Aviation . In: Air Hijacking: An International Perspective, Carnegie Endowment for International Peace. New York (No 585 ). 1971; 68p. Accessed on the 22nd of May 2016 . https://www.cambridge.org>core>article
20. Article 1(1) (b) of the 1971 Montreal Convention and Section 4 (b) of the 2001 law.
21. Article 1(1) (c ). Montreal Convention 1971.
22. Fitzgerald GF. op.cit.
23. Section 4(b) of the 2001 Law and article 1(1)(d) of the Montreal Convention 1971.
24. Article 1(1) (d ). Montreal Convention 1971 and 4(b) of the 2001 law.
25. Convention on International Civil Aviation signed at Chicago on 7 Dec 1944 (Chicago Convention) together with Annexes thereto.
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29. ICAO Doc 9960 . Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation, Beijing, Sep 10, 2010 accessed on the 10th Mar 2017, http://www.icao.int>Documents>9960.
30. ICAO Doc 9959 . Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft, Beijing, Sep 10, 2010 accessed on the 10th Mar 2017, http://www.icao.int>Documents>9959.
31. Paragraph 19 of the Beijing Protocol, supra note 62, provides that the Hague JCGIBL (2020) 8–21 © Law Journals 2020. All Rights Reserved Page 20 Convention and the Montreal Protocol will be read and interpreted together as one single instrument and will be known as “the Hague Convention as amended by the Beijing Protocol 2010”.
32. Section 1 “All persons shall be subject to the criminal law” and 74 (1) (a) include corporate bodies as persons under the law of Law no . 2016/007 of 12 July 2016, relating to the Penal Code.
33. Paragraph 19 of the Beijing Protocol, supra note 62, provides that the Hague Convention and the Montreal Protocol will be read and interpreted together as one single instrument and will be known as “the Hague Convention as amended by the Beijing Protocol 2010”.
34. Section 1 “All persons shall be subject to the criminal law” and 74 (1) (a) include corporate bodies as persons under the law of Law no . 2016/007 of 12 July 2016, relating to the Penal Code.
35. Ibid. Article 1(2)(a)(b).
36. Ibid. Article 3.
37. Ibid Article 1(3).
38. Article 3 and 4 of the Chicago Convention 1944.
39. Article 1(f) of the Beijing Convention 2010.
40. Ibid. Article (a)(g) and 2(b).
41. Ibid. Article 2(e).
42. Bioterrorism attack is a deliberate release of viruses or other germs used to cause ill - health or death in people, animals or plants.
43. Anahad O’Connor , Eric Smith . Terror Attempt seen as Man Tries to Ignite Device on Jet . New York Time ; 25 Dec 2009 . Available at http://www.nytimes.com/2009 /12/26/us/26plane.Hotmail, accessed on the 12th of Apr 2017 (discussing the attempted bombing of Northwest Airlines Flight 253 on 25th Dec 2009.
44. Article 1(d) of the Beijing Convention.
45. The right of the presumption innocence is indeed a restatement of Article 11 (1) of the 1948 Universal Declaration of Human Rights, Article 14 (2) of the International Covenant on Civil and Political Rights, 1966 and Article 7(1) (b) of the African Charter on Human and Peoples’ Rights.
46. Section 8 of the Cameroonian Procedure Code.
47. The word actus connotes a deed, a physical result of human conduct. When criminal policy regards such a deed as sufficiently harmful it prohibits it and seeks to prevent its occurrence by imposing a penalty for its commission. The phrase “actus reus” or “deed of crime” as so used does not indicate the crime itself but merely one of the ingredients of crime; and this ingredient may be present without any crime at all, just as hydrogen is one of the ingredients of water but may be present without water. The actus reus is essential to crime but is not sufficient for this purpose without the necessary mens rea, just as mens rea is essential to crime but is insufficient without the necessary actus reus". Rollin Perkins M , Boyce RN. Criminal Law 831. 3rd Edn, 1982; as cited in Bryan AG. Op cit. 2009; 42p.
48. Mens rea is the state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime; criminal intent or recklessness Mens rea is the second of two essential elements of every crime at common law, the other being the actus reus.
49. Law no. 2001-19 of 18 Dec 2001, op.cit.
50. Section 3 (1) of the Hague Convention 1970, aircrafts are considered to be in service or in flight at any time from the moment when all its external doors are closed following embarkation until the moment when any such door is open for disembarkation. In case of force landing, the flight shall be deemed to continue until the competent authorities take over the responsibility for the aircraft and for persons and property on board.
51. Hart H. Punishment and Responsibility . 2nd Edn. Oxford University Press ; 2008; 181p.
52. Omerod D. Smith and Hogan Criminal Law. 12 Edn. Oxford University Press ; 2008; 45p.
53. Morisette V United States, 342, U S 246-252, 1952. Here Justice Jackson speaks of “the Variety, disparity and confusion of the definition of the requisite mental element”.
54. Omerod D. Smith and Hogan Criminal Law. op.cit. 93-94p. JCGIBL (2020) 8–21 © Law Journals 2020. All Rights Reserved Page 21
55. Jacqueline M , Storey T. Unlocking Criminal Law . London: Hodder Arnold ; 2004; 48p.
56. DPP v Smith 1961 AC 290, in this case Jim Smith was ordered by a police constable to stop his car which contained stolen goods, however, Smith accelerated instead. The police constable jumped onto the car, but f ell off and was killed by another coming car after Smith violently swerved the car. Smith was convicted of murder and appealed to the court of criminal Appeal.
57. Woollin [1998] UKHL 28; [1998] 3 WLR 382. In this case D had killed his three months old son by throwing him against a wall, fracturing his skull. D did not deny doing this, but claimed that it was not intended. He claimed that he had picked the child up after he began to choke and shaken him, then, in a fit of rage or frustration, had thrown him with some considerable force towards a pram four or five feet away. The trial judge directed the jury that they might infer intention if not satisfied that when D threw the child, he had appreciated that there was a ‘substantial risk’ that he would cause serious harm to the child. D was convicted of murder and appealed on the basis that the phrase ‘substantial risk’ was a test of recklessness, not of intent, and that the judge should have used ‘virtually certainty’. The Court of Appeal dismissed the appeal but the House of Lords unanimously reversed that court’s decision, quashed D’s murder conviction and substituted one of manslaughter.
58. Article 1(a) of the Tokyo Convention 1963, states “offences against Penal Law”, article 2 of the 1970 Hague Convention provides “each contracting State undertakes to make the offence punishable by severe penalties” and article 3 of the 1971 Montreal Convention is of the same position.
59. Section 74 of the Penal Code.
60. The preamble provides that no person may be judged and punished, except by virtue of a law enacted and published before the offence was committed.
61. Section 54 of the Penal Code.
62. Ibid, sections 55-60.
63. Section 6 of the 2017 Law.
64. Section 24 of the Penal Code.
65. Ibid, section 25.
66. Section 25-1(2) of the Penal Code.
67. Ibid, section 25-3.
68. Loc.cit. Cite this Article Nkafor Germaine Fusih, Nana Charles Nguindip. Examining the Offence of Aircraft Hijacking: An Appraisal under Cameroonian Civil Aviation Law. Journal of Corporate Governance & International Business Law. June 2020; 3(1): 8–21p.
