NCJ Number
64310
Journal
Israel Law Review Volume: 7 Issue: 2 Dated: (APRIL 1972) Pages: 207-213
Date Published
1972
Length
7 pages
Annotation
THIS ARTICLE REPLIES TO A CRITIQUE OF ARTICLE 4 OF THE HAGUE CONVENTION FOR THE SUPPRESSION OF UNLAWFUL SEIZURE OF AIRCRAFT, DEFENDING ITS PROVISION OF JURISDICTION IN HIJACKING CASES.
Abstract
THE CRITIQUE BY DR. Y. DINSTEIN (NCJ-64309) ANALYZED THE PROVISIONS OF THE CONVENTION AND CONCLUDED THAT THEY DELIVERED A DOUBLE-TIERED STRUCTURE OF JURISDICTION, FAILED TO APPLY THE UNIVERSALITY PRINCIPLE, AND INCLUDED A SUPERFLUOUS SAVING CLAUSE IN THE THIRD SECTION. THIS ARTICLE ARGUES THAT THE PREDETERMINED SCALE OF PRIORITIES WITH REGARD TO JURISDICTION OVER HIJACKING OFFENSES IN THE CONVENTION (GIVING JURISDICTION TO THE STATE WHERE THE AIRCRAFT LANDS, THE STATE IN WHICH THE AIRCRAFT IS REGISTERED, AND THE STATE OF THE OPERATOR IF THE AIRCRAFT IS LEASED) MEANS THAT THE JURISDICTION OF THE LESS-PREFERRED STATES IS EXCLUDED BY THE JURISDICTION OF THE STATE TO WHICH A HIGHER PREFERENCE IS GRANTED ACCORDING TO THAT SCALE. FURTHERMORE, THE CONVENTION, CONTRARY TO DILSTEIN'S CONTENTION, DOES NOT OBLIGATE THE STATE IN WHICH AN OFFENDER IS PRESENT TO EXTRADITE TO ONE OF THE PREFERRED STATES, BUT INSTEAD CREATES A DUTY TO TRY WHEN THERE IS TO BE NO EXTRADITION. THUS, IF THE OFFENDER IS NOT EXTRADITED, THE COUNTRY HAVING THE OFFENDER IS GRANTED EQUAL JURISDICTION OVER THE OFFENSE TO THAT POSSESSED BY PREFERRED STATES. FINALLY, THE HAGUE CONVENTION, THOUGH NOT SPECIFYING THAT AIR HIJACKING IS AN OFFENSE OF THE TYPE DELICTA JURIS GENTIUM, IMPLIES THIS IS TRUE AND PROVIDES FOR THE IN ABSENTIA TRIAL OF THE OFFENDER IF NATIONAL LAW SO STIPULATES. THIS PROVISION, WHICH DILSTEIN TERMED THE SAVING CLAUSE, IS NECESSARY IN ORDER TO PREVENT PARTIES TO THE CONVENTION FROM WAIVING JURISDICTION BASED ON ANY PRINCIPLE OTHER THAN THOSE INCORPORATED IN THE CONVENTION. FOOTNOTES ARE PROVIDED. (DAG)