Elmar M. Giemulla: Dealing with Terrorists and Unruly Passengers – too Many Cooks Can Spoil the Broth

We publish this view on aircraft security given to us by the renowned German expert in aviation law, Professor Elmar Giemulla who is an internationally much recognized authority in this field. Although the topic is not directly air cargo related, we feel his thoughts are of value for our readers. This is primarily because airline statistics and data provided by civil aviation authorities collected by IATA are showing that unruly passenger incidents on board aircraft have become a serious problem lately, impairing the safety in aviation.
But who is ultimately responsible for deciding how to deal with unruly travelers that could pose a threat comparable to that of terrorists: pilots, cabin crews, sky marshals?  A point discussed in depth by the author.  

Professor Elmar Giemulla  -  photo: private
Professor Elmar Giemulla - photo: private

Obviously, the good old days are long gone when it was sufficient to have the captain equipped with delegated state authority and the crew to assist him (basically under the Tokyo Convention). The appearance of terrorists on aircraft have caused Governments to place sky marshals onboard aircraft. Which are the separate tasks and how is the overlapping of original and delegated state authority to be defined? Is delegated state authority of the captain and the crew suspended when original state authority, represented by a sky marshal, is present on board?

The level of unruliness has changed
The simple answer is: Sky marshals are there for terrorists, the captain and the crew for “ordinary” unruly passengers. This is right and wrong at the same time. It is right because the deployment of sky marshals was a reaction to terrorism. It is right because the concept of delegated state authority is based on the traditional assumption that an unruly passenger is sufficiently impressed by the appearance of a person in uniform - the captain. However, it is wrong because this is obviously no longer the case: The level of “unruliness” has changed, and many people including unruly passengers feel almost provoked by a visual authority. And it is wrong because unruly passengers are often no less dangerous than terrorists. The traditional scheme does not work any longer. It would certainly not be appropriate for the captain to place his capability to steer the plane at risk - just for the sake of maintaining or reestablishing good order and discipline in the cabin. And in turn, it would not be appropriate for a sky marshal not to interfere because it is just a “normal” unruly passenger who threatens the lives of others. Even if this could be an attempt by terrorists to find out who the sky marshals are their real task is to protect the passengers against anybody – no matter if this person is a terrorist or somebody else.

Protecting passengers, not offenders
And if no sky marshal is on board, i. e. if captain and crew are alone? Under Article 6 of the Tokyo Convention the captain may require or authorize the crew and may request or authorize, but not require, passengers to restrain any unruly person. After landing in the next Contracting State this person is to be delivered to the competent authorities. In case of a forced landing, these measures can be continued until a handover is possible. However, in case of a ditching this could threaten the life of the unruly person because he would not be able to put on a life vest. Here it is up to the discretion of the crew to discontinue the restraint measures: If there is reason to believe that this person has not changed his mind then the crew should not add threat to danger by unshackling him. The same applies in the less dramatic situation when the restrained person needs to use the toilet. Here as in all other situations, the principle must be applied: If there is doubt then there is no relief. Because the crew is there to protect the passengers and not to comfort an offender.
Elmar Giemulla


Mr Giemulla is an honorary professor at the TU (Technical University) Berlin and associate professor of aviation law at the Embry-Riddle Aeronautical University, Daytona Beach, FL. 

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