JUNE 2016

    Ruwantissa Abeyratne

Terrorism, one of the most heinous threats to security, is a multidimensional and immoral evil involving crimes against society. Aviation has proved to be a vulnerable target where any act of terrorism against it attracts global attention towards the terrorist. The destruction of Malaysian Airlines Flight MH17 in July 2014 and Metrojet in October 2015 resonates a regular trend where aviation continues to be susceptible to acts of terrorism. Terrorist acts against aviation destabilise States, threaten to obviate communications between States and unhinge the economic viability of States that depend on tourism. This brings to bear the role of the State as the ultimate organ accountable for protecting people from terrorism on the basis that accountability is the natural progression of responsibility.
This article cuts across the legal obstacle at international law which effectively precludes the holding of States accountable for a breach of responsibility in the face of the dichotomy between State sovereignty and the perceived impotence of international law as a punitive mechanism. It examines international jurisprudence applicable to the accountability of States, with a focus on aviation and highlights the fact that in the context of prevention of threats to national security a new paradigm can be recognised.

State sovereignty; State responsibility; terrorism; counter terrorism; aviation security; Tokyo Convention; Hague Convention; Montreal Convention; principles of state accountability
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Change is the defining feature of our times. Information technology and development have changed our world and made our lives easier. However, they have facilitated the work of those who intend to pursue their own agendas even at the expense of human life. There are no longer looming superpowers that breed terrorism. Now, it is weaker States that give rise to evil ambition among groups no longer happy with a decaying status quo. A whole new paradigm is required if modern day terrorism is to be effectively restrained. This requires not mere State responsibility but also a global understanding that States need to be held accountable for preventing the spread of terrorism.

In this regard, one of the most vulnerable modes of human interaction and communication is air transport. At the time of writing, the victim of the most recent air transport disaster was the Russian airline Kogalymavia, commonly known as Metrojet, where an aircraft operating an international chartered passenger flight disintegrated above the northern Sinai on 31 October 2015 following its departure from Sharm el-Sheikh International Airport, Egypt, en route to Pulkovo Airport, Saint Petersburg, Russia. The Airbus A321-231, aircraft was reported to have broken up in flight, killing all 217 passengers and seven crew members. Shortly after the crash, the Islamic State of Iraq and the Levant (ISIL)’s Sinai branch, previously known as Ansar Bait al-Maqdis, claimed responsibility for the incident.

Although in 2013 President Obama made a statement to the effect that al- Qaeda, the then most dreaded terror group, which was responsible for the 9/11 attacks, was on the path to defeat the modern face of terrorism is far from extinct. The extraordinary comeback of the jihadists and their allies could be seen in the increasing recruitment campaign of al Shabab and al Qaeda’s own increasing strength in the west of Afghanistan. While the United States is concentrating in its own territory on the so-called lone wolf attacks, the worrying reality that many returning jihadists will take their training and expertise gained in terrorist cells in the Middle East back to their homelands and use terrorism in the west seems to elude most administrations. That aviation security will be a casualty in this scenario is an incontrovertible reality.

There are many loopholes in State security that have to be plugged if aviation security were to be ensured at a reasonable level. The first is cooperation among States. To give just one example, after the heinous attacks in Paris on 13 November 2015, where attackers killed 130 people, including 89 at a rock concert, where, after the various simultaneous attacks at Paris venues, the terrorists, who had also taken hostages, had wounded 368 people, 80 to99 seriously, France complained that one of the attackers, who fled to Syria, had been wanted by the Belgian police but no one had forewarned France of this fact. The lack of sharing of security information between countries is a blatant inadequacy in international cooperation,3 prompting the interior ministers of Europe to introduce a renewed measure of share within Europe Passenger Name Record (PNR)4 data for all travellers, in addition to sharing information about inflows and outflows of fighters from their countries into the troubled Middle East, especially Syria.