On March the 29th of year 2016, Cyprus became a witness to an act of air piracy, or “unlawful seizure” as it is known in legal terms, on Egyptair flight 181, which was operating a domestic flight within Egypt, where an Egyptian national unlawfully seized (hijacked) the aircraft and demanded its crew to land in Cyprus. While highly unusual in the twenty first century, these criminal offences were very common in the latter half of the previous century. In this article we will examine the definition of such acts, their usual legal consequences, as well as their application to the case at hand.
What is “unlawful seizure”?
The legal framework relating to the offence stems from an International agreement, namely the Hague Convention for the suppression of unlawful seizure of aircraft 1970. The timing of the Convention is important, as it was drafted in a time when the world witnessed a considerable number of “hijackings”, mostly by Palestinian militants. The aim of the Convention is clearly set out in Article 2, which provides that “Each Contracting State undertakes to the make the offence punishable by severe penalties”. Ultimately, the severity of the penalty is left to the discretion of each Contracting State, but its nature forms part of the crux of the issue in the Egyptair 181 case.
Article 1 of the Convention defines “unlawful seizure” as one where “any person who on board an aircraft in flight (…) unlawfully, by force or threat thereof, or by any other form of intimidation, seizes, or exercises control of, that aircraft, or attempts to perform any such act”. The aircraft is considered by Article 3 to be in flight from the moment the external doors are closed until the moment they are reopened.
As to the applicability of the Convention, Article 3 provides that is shall be “only if the place of take-off or the place of actual landing (emphasis added) (…) are outside the territory of the State of registration of that aircraft” and renders “immaterial whether the aircraft is engaged in an international or domestic” service. On the facts of the matter, the Convention is applicable to the case of Egyptair 181, as the place of actual landing was in Cyprus and the aircraft is registered in Egypt.
Who has jurisdiction over the matter?
The international dimension of the offence brings up the question of which State has jurisdiction to try the implicated persons accused of “unlawful seizure”. Article 4 provides that “each Contracting State shall take such measures as may be necessary to establish its jurisdiction over the offence (…)” and lists a number of cases which effectively give such a State jurisdiction. Among the cases are “where the offence is committed on board of an aircraft registered in that State” in our case Egypt; and “when the aircraft on board which the offence is committed lands in its territory with the alleged offender still on board” which is Cyprus. Article 8 makes the offence an extraditable offence and provides that such acts of “unlawful seizure” be made extraditable in every extradition treaty concluded between Contracting States. So it appears two Contracting States have jurisdiction over the matter in the case at hand, and based on the Extradition Treaty signed between Cyprus and Egypt in 1996, the latter applied to extradite the suspect with Cyprus agreeing to the matter and promising to fast track the application. But is it reasonable to do so?
The question of extradition and Public Policy considerations
The Cypriot Authorities were quick to react to the extradition request received from Egypt, as it is clearly an extraditable offence. However, there are some overbearing considerations relating to Public Policy, which should have been taken into account. The press coverage of the events surrounding the “unlawful seizure” showed the suspect to have had a previous marriage in Cyprus and an estranged spouse very reluctant to meet the suspect and clearly traumatised by the latter. The Cypriot Authorities also pointed the suspect to be mentally unstable, which is clear from the list of demands he gave them during the ordeal. On one hand we have the estranged spouse not wanting the suspect back in her life, or on the territory of the Republic, which pushes us towards wanting to extradite the suspect and send him to his native Egypt to face trial for his involvement in the offence, but on the other hand the nature of the trial he faces in Egypt, as well as the nature of the penalty faced should also be taken into consideration before extradition is accepted.
Article 88 of the Egyptian Criminal Code makes “air piracy” punishable by temporary hard labour, and permanent hard labour if committed by means of terrorism or threats of violent acts, if he resisted law enforcement, and/or if any persons on board were injured. The suspect would have faced the death penalty if anyone on board were killed during the ordeal. The suspect may also face separate charges for terrorism, which may be punishable by death.
Cyprus, being a Member State of the European Union is signatory to the European Convention on Human Rights (ECHR), where Article 3 provides that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The interpretation of the Article extends to prohibit the extradition of a person to a foreign State if torture or degrading punishment are likely or if the person would face the death penalty. In the case at hand, the suspect faces, at least, temporary hard labour, which may be construed as degrading treatment and punishment. Egypt’s human rights record can also be taken into consideration before deciding to extradite the suspect to his home country. It appears the Minister of Justice and the Authorities in Cyprus have not taken these factors into account before reaching their hasty decision to extradite the suspect. We believe there are necessary Public Policy considerations, as an EU Member State to ensure the suspect, who by the admission of our own Authorities is mentally unstable, receives a fair trial and is not subjected to torture or degrading treatment. At this stage, it does not appear that the suspect is guaranteed the above in his home country, and it is our opinion he should resist extradition on humanitarian grounds, and that such an appeal should be granted if Cyprus’ image as a democracy respecting Human Rights is to be upheld.
For more information on this article please contact its author, Mr. Mohamad Khatib and head of PAHALAW’s Shipping & Aviation Department, at [email protected]
