LETTER TO WILLIAM J. CASEY FROM ABRAHAM D. SOFAER

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP87M00539R002303730005-6
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 20
• Document Creation Date: December 22, 2016
• Document Release Date: September 28, 2009
• Sequence Number: 5
• Publication Date: August 1, 1985
• Content Type: LETTER

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EXECUTIVE SECRETARIAT
ROUTING SLIP
TO:
ACTION
INFO
DATE
INITIAL
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DCI _
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D/ICS
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Compt
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VC/NIC
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utive Secretary
Aug 85
Dote
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ivXOCutive Registry
3107
Dear Mr. Casey:
Enclosed is a copy of my speech to the ABA in
London. It walks through some of the legal obstacles
to effective enforcement of the relevant anti-hijacking
conventions, and ends with some recommendations.
With best wishes.
The Honorable
William J. Casey,
Director,
Central Intelligence Agency.
THE LEGAL ADVISER
DEPARTMENT OF STATE
WASHINGTON
 REMARKS OF HON ABRAHAM D SOFAER*
AMERICAN BAR ASSOCIATION CONVENTION
LONDON JULY 15 1985
FIGHTING TERRORISM
THROUGH LAW
CIVILIANS REMAIN IN THE HANDS OF KIDNAPPERS IN LEBANON. LESS
THAN ONE MONTH AGO NINE CIVILIANS AND FOUR OFF-DUTY U.S. EMBASSY
RECENT TERRORIST ATROCITIES. SEVEN AMERICANS AND OTHER INNOCENT
THE TIMELINESS OF TODAY'S SESSION IS PAINFULLY OBVIOUS. WE HAVE
JUST EMERGED FROM ANOTHER HARROWING ENCOUNTER WITH TERRORISM IN
LEBANON. THE HIJACKING OF TWA-847 IS e ONE IN A RASH OF
GUARDS WERE GUNNED DOWN AT A SIDEWALK CAFE IN SAN SALVADOR. OVER.;
FLIGHT IN THE SAME CANADIAN CITY ALMOST SIMULTANEOUSLY EXPLODED
DISAPPEARED MYSTERIOUSLY NOT FAR FROM HERE. A BOMB PUT ON ANOTHER'
300 MEN, WOMEN AND CHILDREN WERE KILLED WHEN AN AIR INDIA FLIGHT,
A BOMB IN THE FRANKFURT AIRPORT DURING THE SAME WEEK KILLED 2
AND INJURED SEVERAL MORE. AND A DELICATE, BRILLIANTLY EXECUTED
IN JAPAN, KILLING TWO BAGGAGE HANDLERS AND INJURING MANY OTHERS.
INVESTIGATION BY JUDGE WEBSTER'S BUREAU SAVED PRIME MINISTER
RAJIV GANDHI FROM WHAT MIGHT WELL HAVE BEEN THE SAME FATE HIS
MOTHER MET SOME MONTHS AGO-
* LEGAL ADVISER, U.S. DEPARTMENT OF STATE
 EVEN MORE SOBERING IS THE REALIZATION THAT THE TIMELINESS OF
TODAY'S TOPIC WAS PREDICTABLE. ASK YOURSELVES WHEN, DURING
THE LAST 10 YEARS, THIS TOPIC WOULD HAVE LACKED TRAGIC
IMMEDIACY. JUST NINE MONTHS AGO, PRIME MINISTER THATCHER
NARROWLY ESCAPED INJURY WHEN A BOMB PLANTED BY THE PROVISIONAL
IRA EXPLODED AT HER HOTEL IN BRIGHTON, KILLING FOUR AND
INJURING 34. IN JULY 1983 AFTER REPEATED PLO ATTACKS, A GROUP
OF JEWISH EXTREMISTS FIRED RANDOMLY AT ARAB STUDENTS AT THE
ISLAMIC COLLEGE IN HEBRON, KILLING THREE AND WOUNDING 33 OTHERS.
THE STATE DEPARTMENT HAS ESTIMATED THAT, FROM 1979 TO 1983,
2,093 PEOPLE WERE KILLED AS A RESULT OF INTERNATIONAL TERRORIST
INCIDENTS, AND 4,349 INJURED. WE CAN BE GRIMLY CERTAIN THAT,
IF THIS SUBJECT IS SET AGAIN FOR NEXT YEAR, WE WILL HAVE NEW
TRAGEDIES TO TALK ABOUT.
OF COURSE, NOTHING WE SAY TODAY, OR DO TOMORROW, COULD PUT
AN END TO THE EVIL THAT IS MODERN TERRORISM. AS LONG AS
PEOPLE FIND IT IN THEMSELVES TO TORTURE AND MURDER INDISCRIMINATELY,
TO ADVANCE THEIR POLITICAL ENDS, WE MUST LIVE WITH TERRORISM IN ITS
MANY MANIFESTATIONS. AND WE ARE NOT ABOUT TO WITNESS ANY
FUNDAMENTAL CHANGE IN HUMAN NATURE, OR THE SUDDEN ENLIGHTENMENT
OF MANKIND THROUGH A DIVINE WILL. INDEED, A COMMON THREAD
AMONG MOST TERRORISTS IS THE DEEP BELIEF EACH HOLDS IN THE JUSTICE
OF HIS CAUSE. EACH HEARS, OR PRETENDS TO HEAR, HIS OWN PARTICULAR
GOD CHEERING ON THE SIDELINES AS HE KILLS AND MAIMS THE INNOCENT
BE THAT GOD JEHOVAH, ALLAH, MARX, A UTOPIAN VISION OF SOCIETY, OR
SOME INSANE DREAM OF RACIST SUPREMACY.
 CONTROLLING DOMESTIC CRIMINALITY IS ITSELF AN ENDLESS CHALLENGE,
EVEN THOUGH EVERY CIVILIZED NATION HAS CRIMINAL LAWS PROHIBITING
ANTISOCIAL CONDUCT, NATIONAL POLICE FORCES UNIVERSALLY
EMPOWERED TO USE REASONABLE AND NECESSARY FORCE, AND COURTS
WITH AUTHORITY TO PUNISH VIOLATORS. IN THE INTERNATIONAL ARENA,
WHILE WE HAVE CONVENTIONS, AGREEMENTS, AND CUSTOMS THAT MAKE
MANY TERRORIST ACTS UNIVERSAL CRIMES, INTERNATIONAL PRACTICE
AND DOCTRINES GREATLY LIMIT THE ENFORCEABILITY OF THESE NORMS.
FURTHERMORE, WE LACK ANYTHING LIKE AN INTERNATIONAL POLICE FORCE
TO APPLY RULES OF CONDUCT, OR COURTS ROUTINELY TO ENFORCE THEM
THROUGH PUNISHMENTS. EVEN WHEN WE CAN LAWFULLY APPLY FORCE
AGAINST TERRORISTS, ITS UTILITY IS OFTEN LIMITED BY THE VALUE
WE ATTACH TO HUMAN LIFE.
THE PROBLEM ALSO HAS A POLITICAL DIMENSION. WHILE A CONSENSUS
CAN USUALLY BE FOUND AMONG THE CITIZENS OF PARTICULAR NATIONS
AGAINST TERRORIST ACTS, ON THE INTERNATIONAL SCENE, AS PRESIDENT
REAGAN NOTED LAST WEEK, A NUMBER OF STATES EITHER PROVIDE SAFE
HAVENS FOR TERRORISTS OR ACTIVELY ENCOURAGE TERRORISM AND USE
YOU CAN BEST APPRECIATE THE SPECIAL DIFFICULTY OF DEALING WITH
INTERNATIONAL TERRORISM IF WE REVIEW SOME OF THE ISSUES THE U.S.
GOVERNMENT HAS FACED DURING THE LATEST CRISIS. THE UNDERLYING
FACTS ARE NO DOUBT FAMILIAR TO YOU ALL. THREE LEBANESE
HIJACKERS FLEW FROM BEIRUT TO ATHENS WHERE TWO OF THEM BOARDED
TWA FLIGHT 847, BOUND FOR ROME. THE THIRD MAN WAS UNABLE TO/...
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.../GET A SEAT ON THE PLANE AND WAS SUBSEQUENTLY ARRESTED
IN ATHENS. SHORTLY AFTER TAKEOFF THE HIJACKERS PRODUCED
PISTOLS AND GRENADES, COMMANDEERED THE PLANE TO BEIRUT FOR
REFUELING, AND THEN TOOK IT TO ALGIERS. THEY DEMANDED
THAT THEIR CO-CONSPIRATOR IN ATHENS BE REUNITED WITH THEM
IN EXCHANGE FOR THE RELEASE OF THE GREEK NATIONALS ON THE
PLANE, AND THE GREEKS AGREED. THE PLANE WAS THEN FLOWN
BACK AND FORTH BETWEEN BEIRUT AND ALGIERS. IN THE PROCESS,
ALL BUT 39 PASSENGERS AND CREW WERE RELEASED. ON THE GROUND
IN BEIRUT THE HIJACKERS MERCILESSLY BEAT AND THEN SHOT TO
DEATH ROBERT STETHEM, A YOUNG U.S. NAVY DIVER. THEY WERE
THEN JOINED BY MEMBERS OF BOTH HIZBOLLAH AND AMAL FORCES, WHO
TOOK A DOZEN PASSENGERS OFF THE PLANE FOR "SAFEKEEPING." THE
THE WoRiD wAs
HIJACKERS SOUGHT PUBLICITY, AND GOT IT. TREATED TO
A MEDIA EXTRAVAGANZA THAT GAVE TASTELESSNESS 11 NEW MEANING
THE IMMEDIATE PROBLEM POSED BY THE HIJACKING WAS TO GET BACK
THE HOSTAGES SAFELY AND IN A MANNER CONSISTENT WITH OUR OVERALL
SECURITY INTERESTS. PRESIDENT REAGAN AND SECRETARY OF STATE
SHULTZ SET THE RULES FOR OUR CONDUCT: NO DEALS, MAXIMUM
DIPLOMATIC PRESSURE, AND THE USE OF REASONABLE, DISCRIMINATE
FORCE, IF NECESSARY. THEIR EFFORTS SUCCEEDED WITHOUT FURTHER
 IN ADDITION TO OBTAINING THE SAFE RELEASE OF THE PASSENGERS
AND CREW, WE ARE WORKING TO ACHIEVE FOUR ADDITIONAL
OBJECTIVES: TO BRING THE HIJACKERS TO JUSTICE: TO GET BACK
THE PLANE: TO END THE. ROUTINE USE BY TERRORISTS OF THE BEIRUT
INTERNATIONAL AIRPORT: AND TO IMPROVE SECURITY AT THE ATHENS
AIRPORT. WE ARE ALSO SEEKING TO RALLY LIKE-MINDED GOVERNMENTS
TO JOIN US IN IMPROVING WORLD-WIDE SAFEGUARDS FOR CIVIL
AVIATION SECURITY.
THE HIJACKERS
YOU WILL RECALL THAT ONE OF THE HIJACKERS WAS ARRESTED AT THE
ATHENS AIRPORT. AS A PARTY TO THE TOKYO, HAGUE AND MONTREAL
CONVENTIONS AGAINST TERRORISM, GREECE HAD THE RESPONSIBILITY
TO HOLD THE WOULD-BE HIJACKER UNTIL HE WAS EXTRADITED OR
PROSECUTED. INSTEAD, GREEK OFFICIALS SWAPPED THE TERRORIST
FOR THE GREEK NATIONALS ON THE PLANE.
RELEASING THE HIJACKER IN EXCHANGE FOR SOME OF THE HOSTAGES
WAS A GRAVE MISTAKE. THE REASON NO EXCEPTION IS WRITTEN
INTO THE OBLIGATION TO EXTRADITE OR PROSECUTE AIRCRAFT
HIJACKERS IS SIMPLY THAT, ONCE ONE BEGINS TO MAKE EXCHANGES
WITH TERRORISTS, THERE IS NO END TO THE TYPES OF DEALS THEY
WOULD DEMAND. KUWAIT, TO ITS CREDIT, HAS REPEATEDLY RESISTED
TERRORIST DEMANDS THAT IT RELEASE CONVICTED TERRORISTS. WE
HAVE INSISTED THAT GREECE ABIDE BY ITS OBLIGATION TO HOLD
ALLEGED HIJACKERS UNTIL EXTRADITION OR PROSECUTION.
 AS YOU WILL SEE, HOWEVER, WE CAN DO LITTLE MORE ON THIS
ISSUE UNTIL THE CONVENTIONS ARE MADE ENFORCEABLE.
BY SIGNING THE HAGUE AND MONTREAL CONVENTIONS, LEBANON AGREED
TO EXTRADITE OR PROSECUTE TERRORIST HIJACKERS. IN ADDITION,
CUSTOMARY PRINCIPLES OF INTERNATIONAL LAW SUPPORT THE
PRINCIPLE THAT PIRATES MUST BE PUNISHED EITHER IN THE
REQUESTING OR REQUESTED NATION. UNDER LEGISLATION PASSED
LAST FALL, THE TWA HIJACKING IS A CRIME UNDER U.S. LAW. WE
HAVE FILED A FORMAL DEMAND THAT LEBANON FULFILL ITS INTERNATIONAL
OBLIGATIONS TO TAKE LAW ENFORCEMENT MEASURES AGAINST THOSE
RESPONSIBLE FOR THE TWA HIJACKING AND THE CRIMES THEY COMMITTED,
ATTORNEY GENERAL MEESE WILL DETERMINE WHEN TO FILE A FORMAL
DEMAND FOR EXTRADITION, AND WHAT OTHER LAW ENFORCEMENT OPTIONS
TO PURSUE.
THE HIJACKERS THROUGH LEGAL MEANS. THEY QUESTIONED THE
POINT OF SUCH AN EFFORT AND IF THE GOVERNMENT OF LEBANON
CANNOT CONTROL ITS AIRPORT, HOW CAN WE REASONABLY EXPECT
IT TO INVESTIGATE, IDENTIFY, ARREST, AND PROSECUTE THE
INDIVIDUALS RESPONSIBLE FOR THE HIJACKING?
THE SHORT ANSWER TO THIS IS THAT WE CANNOT KNOW IN ADVANCE
THAT AN EFFORT TO ARREST THE HIJACKERS IS BOUND TO FAIL.
LEBANON IS A COMPLEX PLACE, AND IF THE NEWS STORIES ARE
ACCURATE - THAT AN EFFORTTO ARREST THEM IS BEING MADE, A /......
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IN ANY EVENT, LEBANON'S INABILITY TO ARREST THE OFFENDERS
CANNOT RELIEVE IT OF ITS OBLIGATION TO TRY, AND TO KEEP
TRYING UNTIL IT SUCCEEDS. OUR EFFORT TO BRING THESE
HIJACKERS TO JUSTICE HAS SIGNIFICANCE FAR BEYOND THE
INDIVIDUAL CASE. WE MUST PERSIST IN ASSERTING THAT THE RULE
OF LAW BE OBEYED, IF WE WANT TO RETAIN THE HOPE THAT SOME DAY
IT WILL BE OBEYED.
DON'T LET THIS DISCUSSION MISLEAD YOU. IF LEBANON OR GREECE
REFUSED TO CARRY OUT THEIR OBLIGATIONS UNDER THE ANTI-TERRORISM
CONVENTIONS, OUR PROSPECTS FOR ENFORCEMENT WOULD BE SLIGHT.
THUS FAR, NEITHER THE CONVENTIONS NOR CUSTOMARY LAW HAVE BEEN
HELD TO CREATE ENFORCEABLE DUTIES. PARTIES TO THE CONVENTIONS
HAVE REPEATEDLY REFUSED TO EXTRADITE OR PROSECUTE HIJACKERS,
AND INDEED HAVE SUPPORTED THEIR ACTIVITIES. KEVIN CHAMBERLAIN,
A LEGAL COUNSELLOR OF BRITAIN'S FOREIGN AND COMMONWEALTH OFFICE,
WROTE OF THE CONVENTIONS IN A RECENT ARTICLE THAT "THERE IS NO
EFFECTIVE MEANS OF ENSURING COMPLIANCE WITH THEIR PROVISIONS."
FRUSTRATION OVER THE REFUSAL OF SEVERAL NATIONS TO COMPLY
WITH THE ANTI-HIJACKING CONVENTIONS LED THE ECONOMIC SUMMIT
SEVEN TO ISSUE A "DECLARATION" AT BONN IN 1978. IN IT, THE
SEVEN CO-DECLARANTS-, WHOSE AIRLINES ACCOUNT FOR ABOUT 70% /......
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...../OF ALL CIVIL AVIATION/ "JOINTLY RESOLVED THAT THEIR
-GOVERNMENTS SHOULD TAKE IMMEDIATE ACTION TO CEASE ALL FLIGHTS"
CONNECTED WITH ANY COUNTRY THAT "REFUSES EXTRADITION OR
PROSECUTION OF THOSWHO HAVE HIJACKED AN AIRCRAFT AND/OR DO
NOT RETURN SUCH AIRCRAFT......" THUS FAR, THE DECLARATION
HAS BEEN INVOKED ONLY ONCE,AGAINST AFGHANISTAN IN 1981: ON
THAT OCCASION,* MOREOVER, THE SANCTION WAS IMPOSED ONLY AFTER
THE DECLARANTS HAD GIVEN AFGHANISTAN- THE ONE-YEAR NOTICE,
ARGUED BY SOME TO BE REQUIRED BY BILATERAL AVIATION AGREEMENTS.
IF THE HIJACKERS ARE NOT BROUGHT TO JUSTICE, WE WILL BE FACED
WITH THE OPTION OF SEEKING ACTION UNDER THE BONN DECLARATION.
-.HOWEVER PERSISTENTLY WE PURSUE THIS COURSE, IT IS A DIFFICULT
ONE, DEPENDING ON THE WILL AND COURAGE OF SEVEN NATIONS, EACH
WITH INDEPENDENT INTERESTS AND VIEWS.
LET ME DEPRESS YOU FURTHER WITH THE FACT THAT, EVEN WHEN A
HIJACKER IS ARRESTED, THAT IS NO ASSURANCE HE WILL BE BROUGHT
TO JUSTICE. MANY STATES WILL NOT EXTRADITE THEIR OWN CITIZENS,
OR WILL EXTRADITE THEM ONLY FOR THE MOST HEINOUS CRIMES.
A STATE THAT DOES NOT PROVIDE FOR THE DEATH PENALTY UNDER ITS
LAWS MAY REFUSE TO EXTRADITE A PERSON FOR AN OFFENCE THAT COULD
BE PUNISHED BY DEATH IN THE REQUESTING STATE, OR IT MIGHT
CONDITION EXTRADITION ON ASSURANCES THAT THE DEATH PENALTY WILL
NOT BE IMPOSED.
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AN ESPECIALLY IMPORTANT OBSTACLE TO EXTRADITION IS THE SO-
CALLED "POLITICAL OFFENSE" EXCEPTION FOUND'IN THE EXTRADITION
LAW OF MANY STATES. AS INTERPRETED BY THE U.S. COURTS, THIS
EXCEPTION PROHIBITS THE EXTRADITION OF ANY PERSON WHOSE CRIME,
HOWEVER SERIOUS,-WAS COMMITTED IN THE COURSE OR IN FURTHERANCE
OF CIVIL WAR, INSURRECTION, OR POLITICAL COMMOTION.
INVOKING THIS DOCTRINE, AMERICAN COURTS HAVE REFUSED THE LAST
FOUR EXTRADITIONS SOUGHT BY THE EXECUTIVE BRANCH OF IRA MEMBERS
GUILTY OF MURDERING POLICE AND MILITARY OFFICIALS. FRANCE HAS
REFUSED TO EXTRADITE AMERICANS TO THE U.S. ON THIS BASIS, WHERE
THEY CLAIMED TO HAVE COMMITTED THEIR CRIMINAL ACTS FOR POLITICAL
REASONS, INCLUDING ALLEGED RACIAL OPPRESSION. OF COURSE A
REFUSAL TO EXTRADITE LOSES ITS STING IF THE REQUESTED NATION
PROSECUTES THE OFFENDER BUT NO ENFORCEMENT MECHANISM EXISTS
TO ENSURE THAT A PROSECUTION WILL OCCUR, THAT A MEANINGFUL
SENTENCE WILL BE IMPOSED AND SERVED. AND THESE OBSTACLES, I
HASTEN TO ADD, DESCRIBE ONLY A FEW OF THE DIFFICULTIES IN
BRINGING HIJACKERS TO JUSTICE.
THE PLANE
TWA's AIRCRAFT REMAINS ON THE GROUND AT BEIRUT INTERNATIONAL
AIRPORT, ALTHOUGH ARTICLE 11 OF THE TOKYO CONVENTION STATES
THAT THE "CONTRACTING STATE IN WHICH THE AIRCRAFT LANDS .....
SHALL RETURN THE AIRCRAFT AND ITS CARGO TO THE PERSONS
LAWFULLY ENTITLED TO POSSESSION." ARTICLE 9 OF THE HAGUE
CONVENTION IMPOSES A SIMILAR OBLIGATION, AND THE BONN DECLARATION
APPLIES TO A NATION'S REFUSAL TO RETURN A HIJACKED PLANE.
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WE ARE ASSISTING TWA IN GETTING BACK ITS PLANE. THE RISKS
ASSOCIATED WITH USING AN AMERICAN CREW HAVE COMPLICATED THE
SITUATION. HERE, TOO, THE GOVERNMENT OF LEBANON CLAIMS IT
IS WILLING TO COMPLY WITH ITS OBLIGATION, BUT THE ABSENCE OF
EFFECTIVE CONTROL OVER THE AIRPORT HAS POSED SUBSTANTIAL
OBSTACLES.
ATHENS AND BEIRUT AIRPORTS
IMMEDIATELY AFTER THE HIJACKING WE TOOK STEPS TO ENSURE THAT
OUR CONCERNS ABOUT SECURITY AT BOTH THE ATHENS AND BEIRUT
AIRPORTS WERE MADE KNOWN TO THE TRAVELLING PUBLIC. ATHENS
AIRPORT HAS BEEN THE OBJECT OF SPECIAL SCRUTINY ON SECURITY
GROUNDS FOR MANY YEARS, NOT ONLY BY THE U.S., BUT ALSO BY
OTHER GOVERNMENTS. DEFICIENCIES THERE HAD BEEN ASSOCIATED
WITH OTHER TERRORIST ACTS, INCLUDING THE HIJACKING OF TWA-
847, GIVEN THE HISTORY OF REPEATED INCIDENTS, THE ISSUANCE
OF A TRAVEL ADVISORY BECAME IMPERATIVE. THE GREEK GOVERNMENT
HAS OBJECTED TO THIS MEASURE, CLAIMING IT TO BE UNFAIR AND
DISCRIMINATORY. WE ACTED RELUCTANTLY, HOWEVER, AND ONLY-
BECAUSE PRIOR EFFORTS TO IMPROVE SECURITY AT ATHENS HAD BEEN
INTERNATIONAL LAW OBLIGES ALL STATES ENGAGED IN INTERNATIONAL
CIVIL AVIATION TO ENSURE ADEQUATE SECURITY AT THEIR AIRPORTS.
IN 1974 ICAO ADOPTED ANNEX 17 TO THE CHICAGO CONVENTION ON
INTERNATIONAL CIVIL AVIATION, ESTABLISHING STANDARDS AND
RECOMMENDED PRACTICES ON SECURITY. THAT DOCUMENT HAS BEEN /....
 ...../AMENDED AND UPDATED SEVERAL TIMES AS EXPERIENCE
WARRANTED, AND IT IS A USEFUL BENCHMARK AGAINST WHICH TO
MEASURE THE SUFFICIENCY OF SECURITY STANDARDS AT AIRPORTS.
WE BELIEVE, MOREOVER, THAT, WHEN EXPERIENCE DEMONSTRATES
THAT SPECIAL CIRCUMSTANCES AT A PARTICULAR AIRPORT REQUIRE
MORE STRINGENT MEASURES THAN THOSE RECOMMENDED BY ICAO
TO PROVIDE NECESSARY SECURITY, THOSE MEASURES MUST BE
ADOPTED. OUR TRAVEL ADVISORY WAS ALSO A LESSER REMEDY THAN
IS EXPRESSLY AUTHORISED BY THE U.S. - GREECE BILATERAL AVIATION
AGREEMENT, WHICH PROVIDES FOR THE SUSPENSION OF ALL AIR SERVICE
MATERIAL IMPROVEMENTS HAVE BEEN MADE AT ATHENS AIRPORT AND
WE ARE WORKING WITH THE GREEK GOVERNMENT TO BRING ABOUT THE
NECESSARY IMPROVEMENTS. THE SECRETARY OF STATE LOOKS FORWARD
TO BEING ABLE TO LIFT THE ADVISORY AT ATHENS, CONSISTENT WITH
HIS OBLIGATION TO PROTECT AMERICAN CITIZENS ABROAD FROM
UNWARRANTED DANGER.
LONG BEFORE THE HIJACKING, THE DEPARTMENT OF STATE HAD ADVISED
U.S. CITIZENS THAT THE UNSTABLE CONDITIONS PREVAILING IN
LEBANON MADE TRAVEL THROUGH BEIRUT AIRPORT UNSAFE. IN FACT,
THE BEIRUT AIRPORT HAS BEEN INVOLVED IN 36 SEPARATE TERRORIST
HIJACKINGS IN RECENT YEARS. AFTER THE LATEST INCIDENT,
PRESIDENT REAGAN DETERMINED (PURSUANT TO SECTION 1114(A) OF
THE FEDERAL AVIATION ACT) THAT LEBANON WAS ACTING INCONSISTENTLY
WITH THE HAGUE CONVENTION FOR THE SUPPRESSION OF UNLAWFUL SEIZURE
OF AIRCRAFT AND SUSPENDED THE RIGHTS OF ALL U.S. AIR CARRIERS/....
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.... /TO ENGAGE IN AIR TRANSPORTATION, DIRECT OR INDIRECT, TO
AND FROM LEBANON, AS WELL AS THE RIGHTS OF LEBANESE CARRIERS
TO ENGAGE IN AIR TRANSPORTATION TO AND FROM THE UNITED STATES.
IN ADDITION, TRANSPORTATION SECRETARY DOLE TOOK ACTIONS
MODIFYING THE AUTHORITY OF MEA TO FLY TO THE U.S., AND
PROHIBITING THE SALES OF AIR TRANSPORTATION TO, FROM, OR THROUGH
LEBANON (PURSUANT TO THE FEDERAL AVIATION ACT, SECTIONS 402
AND 403). WE ARE ENCOURAGING LIKE-MINDED COUNTRIES TO JOIN
IN THESE EFFORTS, WHICH WE INTEND TO CONTINUE UNTIL THAT
AIRPORT IS EFFECTIVELY SECURED AGAINST USE BY TERRORIST GROUPS.
THE GOVERNMENT OF LEBANON HAS OBJECTED TO THESE MEASURES,
CLAIMING IT SHOULD NOT BE PUNISHED FOR WHAT IT COULD NOT CONTROL.
BUT IT IS PRECISELY LEBANON'S LACK OF CONTROL THAT JUSTIFIES
THE MEASURES WE HAVE ADOPTED. UNTIL LEBANON ASSUMES CONTROL,
IT IS OUR OBLIGATION TO DISCONTINUE AIR COMMERCE INVOLVING THAT
AIRPORT. WE ARE READY TO CO-OPERATE WITH LEBANON IN
ACCOMPLISHING THIS OBJECTIVE AS QUICKLY AS POSSIBLE. MEANWHILE
WE HAVE DEMONSTRATED OUR WILLINGNESS TO ALLOW FLIGHTS TO THE
U.S. BY LEBANESE AIRCRAFT, SO LONG AS THEY DO NOT USE THE BEIRUT
AIRPORT. FOR EXAMPLE, FLIGHTS OF AN MEA-LEASED AIRCRAFT BETWEEN
CAIRO AND NEW YORK HAVE NOT BEEN TERMINATED.
LEBANON ALSO CLAIMS THAT OUt ACTIONS VIOLATE THE U.S.-LEBANON
BILATERAL AVIATION AGREEMENT. THAT AGREEMENT, LIKE MOST OTHER
AVIATION BILATERALS, REQUIRES THAT DISPUTES BE SETTLED THROUGH,
CONSULTATION AND ARBITRATION, AND PROVIDES THAT IT CAN BE
TERMINATED ONLY AFTER ONE YEAR'S NOTICE.
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WE ARE CONFIDENT THAT THE MEASURES TAKEN WITH RESPECT TO
THE BEIRUT AIRPORT ARE CONSISTENT WITH OUR BILATERAL AVIATION
AGREEMENT WITH LEBANON, AND WITH OUR OBLIGATIONS UNDER
INTERNATIONAL LAW. AIR TRAFFIC IS CONDUCTED EITHER WITHOUT
ENFORCEABLE TRAFFIC RIGHTS, ON THE BASIS OF COMITY AND
RECIPROCITY, OR UNDER BILATERAL AGREEMENTS OFTEN CONTAINING
SAFETY AND SECURITY PROVISIONS. BOTH TYPES OF BILATERAL
ARRANGEMENTS COMPLEMENT THE BASIC MULTILATERAL FRAMEWORK FOR
INTERNATIONAL CIVIL AVIATION, THE CORE OF WHICH IS THE CHICAGO
CONVENTION. THIS MULTILATERAL FRAMEWORK PLACES A HIGH PRIORITY
ON THE SAFETY OF INTERNATIONAL CIVIL AVIATION AND INCORPORATES
AS REQUIREMENTS THE ICAO STANDARDS FOR AVIATION SECURITY AND
OTHER AIR TERRORISM CONVENTIONS. A SPECIFIC REFERENCE TO THESE
ICAO STANDARDS IS INCLUDED IN ARTICLE 6 OF THE BILATERAL
AGREEMENT WITH LEBANON. SOUND COMMERCIAL PRACTICE SUGGESTS
THAT ACCEPTABLE STANDARDS OF SAFETY AND SECURITY FOR AERONAUTICAL
FACILITIES ARE AN ESSENTIAL PRECONDITION TO THE OPERATION OF
THIS NETWORK OF AVIATION RIGHTS. THEY ARE THEREFORE AN ESSENTIAL
ELEMENT OF THE CONSENT OF A STATE TO BE BOUND TO A BILATERAL
ACCORD.
FURTHERMORE, UNDER ESTABLISHED PRINCIPLES OF INTERNATIONAL LAW
AN INTERNATIONAL AGREEMENT, SUCH AS A BILATERAL AVIATION ACCORD,
MAY BE TERMINATED OR SUSPENDED WHEN A PROVISION ESSENTIAL TO ITS
OBJECT HAS BEEN VIOLATED, OR WHEN FUNDAMENTAL CONDITIONS UNDERLYING
IT HAVE CHANGED. THE CONCEPTS OF MATERIAL BREACH AND FUNDAMENTAL
CHANGE OF CIRCUMSTANCE, REBUS SIC STANTIBUS (INCORPORATED IN
ARTICLES 60 AND 62 OF THE VIENNA CONVENTION ON THE LAW OF TREATIES),
CAN BE INVOKED BY PARTIES TO BILATERAL AVIATION AGREEMENTS-WHEN/....
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 ..../AIR SAFETY AND SECURITY VIOLATIONS WARRANT. IN CASES
OF URGENCY, THESE ACTIONS CAN BE TAKEN PROMPTLY, WITHOUT
NOTICE PERIODS (AS ARTICLE 65 (2) OF THE VIENNA CONVENTION
REFLECTS).
V
INTERNATIONAL LAW ALSO ALLOWS PROPORTIONATE ACTIONS IN
CONNECTION WITH AGREEMENTS, IN RESPONSE TO BREACHES OF RELATED
LEGAL DUTIES. WHATEVER THE PROVISIONS OF A COUNTRY'S
PARTICULAR BILATERAL AVIATION AGREEMENT, ALMOST ALL PARTICIPANTS
IN INTERNATIONAL CIVIL AVIATION ARE PARTY TO THE CHICAGO
CONVENTION, WITH ITS AIRPORT SECURITY STANDARDS, AND TO THE AIR
TERRORISM CONVENTIONS. THE DUTIES OF COUNTRIES UNDER THESE
ACCORDS ARE OWED TO ALL STATES, AND TO THE TRAVELLING PUBLIC.
LEBANON'S CONCEDED INABILITY TO ENSURE THE MINIMUM DEGREE OF
SAFETY NECESSARY TO PERMIT AIR TRANSPORTATION SERVICES WITH
OTHER COUNTRIES DEPRIVES IT OF THE CAPACITY TO INSIST UPON
THE EXERCISE OF RECIPROCAL COMMERCIAL AIR RIGHTS.
OUR BILATERAL AGREEMENTS SHOULD EXPLICITLY PROVIDE THAT AIR
SERVICES MAY BE SUSPENDED IN RESPONSE TO VIOLATIONS OF
FUNDAMENTAL INTERNATIONAL OBLIGATIONS. A NUMBER OF OUR
AGREEMENTS, INCLUDING THE ONE WITH GREECE, SPECIFICALLY
AUTHORIZE US TO ENFORCE THE ICAO STANDARDS BILATERALLY BY
SUSPENDING OPERATING RIGHTS. BUT NOT ALL AGREEMENTS CONTAIN
SUCH A PROVISION, AND MOST FAIL TO INCORPORATE VIOLATIONS
OF THE TOKYO AND HAGUE CONVENTIONS AS EXPRESS GROUNDS FOR
SUSPENDING OPERATING RIGHTS. WE NEED TO RE-EXAMINE ALL OF
OUR AGREEMENTS, TO URGE OTHER NATIONS TO DO THE SAME, AND TO/....
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 ...../TAKE STEPS TO ENSURE THAT FUTURE ONES PROVIDE FOR
MORE EFFECTIVE ENFORCEMENT OF INTERNATIONAL AIR SAFETY AND
SECURITY OBLIGATIONS.. A TIGHT WEB OF SUCH AGREEMENTS WOULD
BE A POWERFUL INCENTIVE TO COUNTRIES TO ABIDE BY THEIR SOLEMN
CONCLUSION
I AM SURE THAT SOME OF YOU ARE THINKING AT THIS POINT: FORGET
ABOUT LAW; LET'S JUST GO IN THERE AND GET THE KILLERS. AND
IF WE CAN'T FIND THEM, LET'S PUNISH THE CRAZED GROUPS TO WHICH
THEY BELONG UNTIL THEY STOP HARMING INNOCENT PERSONS.
THE PRESIDENT HAS WARNED TERRORISTS AND THE STATES WHICH SUPPORT
THEM THAT OUR PATIENCE HAS RUN OUT. THEY HAD BEST HEED HIS
WARNING. INTERNATIONAL LAW RECOGNIZES THE RIGHT TO USE FORCE
IN SELF-DEFENSE AGAINST ARMED ATTACKS. THE GROUPS THAT ARE
RESPONSIBLE FOR ATTACKING US IN LEBANON, EL SALVADOR, AND
ELSEWHERE, HAVE OPENLY ANNOUNCED THEIR INTENTION TO KEEP ON
TRYING-TO KILL AMERICANS. TO THE EXTENT THAT THEY ARE STATE
SUPPORTED, OR BEYOND THE CAPACITY OF THEIR GOVERNMENTS TO CONTROL,
WE ARE ENTITLED NOW TO USE NECESSARY AND PROPORTIONATE FORCE TO
END SUCH ATTACKS. THIS ADMINISTRATION'S WILLINGNESS TO USE
APPROPRIATE FORCE IN ITSELF HAS A DETERRENT AND MODERATING EFFECT
ON OUR ENEMIES.
BUT THE POSSIBLE USE OF FORCE SHOULD NOT DISTRACT US FROM THE
ROLE THAT LAW CAN PLAY IN THIS STRUGGLE. THE PRESIDENT HAS
FLATLY REJECTED ANY IMPROPER USE OF FORCE. WE CANNOT BECOME
TF.RRnRTSTS.HE SAID. IN THE FIGHT AGAINST TERRORISM.
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WHILE FORCE WILL PLAY ITS PART, THE PRESIDENT CHALLENGED
US LAST WEEK TO DEVELOP "A BETTER DOMESTIC AND INTERNATIONAL
LEGAL FRAMEWORK FOR DEALING WITH TERRORISM." -- TO "DEAL
LEGALLY WITH LAWLESSNESS." AND WE STRESSED THE NEED TO
MOVE OUR FOCUS$ FROM THE TACTICAL TO THE STRATEGIC, AND TO
RECOGNISE THE INTERNATIONAL PATTERN OF TERRORIST ACTIVITY.
THE PRESIDENT HAS CALLED US TO THE HIGHEST DUTY LAWYERS CAN
HAVE. HE HAS ASKED US TO FIGHT, WITHIN THE CONSTRAINTS OF
OUR MORAL VALUES AND LEGAL TRADITIONS, AN ENEMY THAT SCORNS
AND EXPLOITS OUR RESPECT FOR THOSE LIMITING RULES. THE
INADEQUACIES AND OBSTACLES TO MEANINGFUL LEGAL ACTION AGAINST
HIJACKING WHICH I HAVE REVIEWED TODAY, SHOULD HAVE DEMONSTRATED
THAT WE HAVE A GREAT DEAL OF DIFFICULT AND FRUSTRATING WORK
AHEAD OF US.
WE HAVE TO CREATE MEANINGFUL ENFORCEMENT MECHANISMS,
THROUGH BOTH BILATERAL AND MULTILATERAL ARRANGEMENTS,
FOR THE OBLIGATIONS STATED IN ANTI-HIJACKING CONVENTIONS
AND IN THE ICAO STANDARDS.
WE NEED TO AMEND THE BONN DECLARATION TO PROVIDE
FOR A RANGE OF SANCTIONS, AND FOR THEIR SWIFT IMPOSITION
WHENEVER ANY IMPORTANT ASPECT OF THE AVIATION CONVENTIONS
IS VIOLATED.
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WE MUST STRIVE TO OVERCOME THE RELUCTANCE EVEN OF
CIVILIZED NATIONS TO EXTRADITE TERRORISTS. IN THIS
CONNECTION WE HAVE MADE IMPORTANT, RECENT PROGRESS.
WE JUST SIGNED WITH THE UNITED KINGDOM AN AMENDMENT
TO OUR EXTRADITION TREATY WHICH WILL ELIMINATE THE
POLITICAL OFFENCE EXCEPTION FOR MAJOR CRIMES, SUCH
AS HIJACKING AND MURDER. THE ABA MUST JOIN US IN
SEEKING SENATE CONFIRMATION OF THIS IMPORTANT STEP
AGAINST TERRORISM; THE GUN IS NOT A PROPER
SUBSTITUTE FOR THE BALLOT BOX IN FREE SOCIETIES
WHICH OFFER FAIR SYSTEMS OF JUSTICE.
WE MUST CONTINUE TO ENCOURAGE ALL LIKE-MINDED NATIONS
TO JOIN US IN OUR EFFORTS. ONE OF THE MOST HEARTENING
DEVELOPMENTS OF THE LATEST CRISIS IS THE CO-OPERATION
AND SUPPORT WE RECEIVED FROM VIRTUALLY ALL NATIONS,
INCLUDING THE UNITED KINGDOM, CANADA, AND ISRAEL, BUT
PARTICULARLY' FROM CONCERNED ARAB STATES. ALMOST ALL
THE ARAB NATIONS CONDEMNED THE HIJACKING AND MURDER;:
JORDAN'S. KING HUSSEIN CALLED IT THE WORK OF MAD DOGS.
SYRIA AND ALGERIA PLAYED CONSTRUCTIVE ROLES IN HELPING
TO GET OUR HOSTAGES BACK, AND PRESIDENT ASSAD MAY
CONTINUE TO DEMONSTRATE GOOD WILL BY HELPING US RETRIEVE
THOSE WHO REMAIN CAPTIVES IN LEBANON.
- WE MUST ORGANIZE OURSELVES MORE EFFECTIVELY TO DEAL
WITH TERRORISM BY TREATING INTERNATIONAL LAW ENFORCEMENT
AS A ROUTINE ASPECT OF FOREIGN RELATIONS. WE WILL USE,
IN THIS EFFORT, OUR NEW AUTHORITY TO ISSUE REWARDS FOR/......
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- FINALLY, WE MUST GET AHEAD OF THE TERRORISTS IN TECHNOLOGY.
JUST AS WE HAVE ADOPTED A STRATEGIC DEFENSE INITIATIVE, WE
NEED A TERRORIST DEFENSE INITIATIVE THAT ENABLES US TO
DETECT AND DEFUSE TERRORIST THREATS BEFORE THEY CAN DO
DAMAGE.
THE FIGHT AGAINST TERRORISM THROUGH LAW WILL 1111110 TAKE.
INGENUITY, ENDURANCE, AND MONEY. WE MUST HARNESS THE OUTRAGE
WE FEEL OVER THESE. ACTS TO GIVE US THE STRENGTH TO CARRY ON
THE STRUGGLE. WHEN YOU START TO TIRE, I SUGGEST YOU THINK
ABOUT THE INNOCENT VICTIMS OF TERROR, INCLUDING YOUNG ROBERT
STETHEM. A PASSENGER ON THE PLANE DESCRIBED STETHEM'S SCREAMS
AS THE KIND THAT WENT ON UNTIL THE VERY BREATH WENT OUT OF HIS
LUNGS. THE THOUGHT OF THOSE SCREAMS WILL KEEP ME IN THIS FIGHT
FOR AS LONG AS IT TAKES TO PREVAIL.