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HIJACKING AND THE RIGHT OF ASYLUM (FROM AERIAL PIRACY AND INTERNATIONAL LAW, P 124-143, 1971, BY EDWARD MCWHINNEY - SEE NCJ-67719)

NCJ Number
67726
Author(s)
L C GREEN
Date Published
1971
Length
22 pages
Annotation
AN ANALYSIS OF COURT CASES PERTAINING TO THE GRANTING OF POLITICAL ASYLUM TO FOREIGN NATIONALS IS CONDUCTED TO DETERMINE HIJACKERS' LEGAL RIGHTS UNDER THE LAWS OF ASYLUM FOR POLITICAL OFFENSES.
Abstract
THE NOTION OF GRANTING ASYLUM TO AN INDIVIDUAL FLEEING FROM A COUNTRY WHEN HE HAS COMMITTED A POLITICAL OFFENSE WAS ESTABLISHED IN RE CASTIONI (1891). THE ENGLISH DECISION HELD THAT FOR AN OFFENSE TO BE POLITICAL, IT MUST BE SHOWN THAT THE ACT OF VIOLENCE WAS DONE IN FURTHERANCE OF ....A POLITICAL MOVEMENT AIMING AT THE OVERTHROW OF THE EXISTING GOVERNMENT. AN ANALYSIS OF SEVERAL CASES INVOLVING ANARCHISTS IS PRESENTED TO SHOW THAT POLITICAL OFFENSES ARE NOT PRIVATE MATTERS BUT MUST BE PART OF AN ORGANIZED ATTEMPT AGAINST THE STATE. HOWEVER, SUBSEQUENT CASES IN ANGLO-AMERICAN LAW INTRODUCED THE FACTOR OF THE FUGITIVE'S MOTIVE RATHER THAN THE CHARACTER OF THE OFFENSE ITSELF. THUS, POLISH SAILORS WERE GRANTED ASYLUM IN 1955 TO AVOID SERIOUS POLITICAL PROSECUTION IN THEIR OWN COUNTRY, ALTHOUGH THEY WERE NOT PART OF AN ORGANIZED POLITICAL MOVEMENT. AMERICAN AND WEST GERMAN AUTHORITIES HAVE ALSO GRANTED ASYLUM TO REFUGEES WHO WOULD BE SEVERELY PERSECUTED IN AN ECONOMICAL AND/OR POLITICAL MANNER IF EXTRADITED. HOWEVER, OTHER RECENT CASES HAVE REAFFIRMED THE STRINGENT GUIDELINES OF THE CASTIONI CASE (I.E., THE EXISTENCE OF AN ORGANIZED POLITICAL MOVEMENT). OTHER RECENT CASES, HAVING BECOME INTERTWINED WITH COLD WAR POLITICS, DO NOT SHOW A CONSISTENT PATTERN BECAUSE BOTH COMMUNIST AND NON-COMMUNIST GOVERNMENTS HAVE RESERVED THE RIGHT TO AFFORD ASYLUM TO ALIENS WHO CLAIM TO HAVE FLED THEIR HOMELAND FOR POLITICAL REASONS--INCLUDING HIJACKERS WHO DID NOT SERIOUSLY JEOPARDIZE THE SAFETY OF THE PASSENGERS AND THE AIRPLANE, AND WHO WERE NOT WANTED FOR COMMON CRIMES. HOWEVER, POLITICAL ASYLUM IS NOT USUALLY GRANTED IN CASES WHERE AIRCRAFT HIJACKING INVOLVED DANGER TO PASSENGERS AND CREW, OR WHEN THE HIJACKED AIRCRAFT BELONGED TO A COUNTRY OTHER THAN THE ONE AGAINST WHOM A POLITICAL OFFENSE WAS DIRECTED. ALTHOUGH 1970 U.N. GENERAL ASSEMBLY RESOLUTIONS ON AERIAL HIJACKING EXPRESSLY MAKE RESERVATIONS ON THE LEGAL RIGHTS AND DUTIES OF STATES IN MATTERS PERTAINING TO REFUGEES AND STATELESS PERSONS, IT IS CONCLUDED THAT THERE IS NO BASIS IN EXISTING INTERNATIONAL LAW FOR EXTENDING ASYLUM TO AERIAL HIJACKERS. FOOTNOTES ARE PROVIDED. (DEG)