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

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.

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

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

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.

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. Montreal Convention 1971

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.

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.

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.

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

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.

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.

Conclusion Diplomatic Conference in September 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.