This article is written by Emirati lawyer and writer, Dr. Habib Al Mulla, Managing Partner, Habib Al Mulla & Partners. The opinions expressed below are the author's own and do not necessarily reflect the views of CNN.
In the world of aviation, many security and safety rules were not initially formulated in the corridors of legislation, but rather were written after a disaster revealed a loophole that the aviation system did not see clearly.
After the September 11 attacks, the concept of aviation security changed radically. The danger no longer lies only in the hijacking of the plane, but in the possibility of the plane itself being used as a weapon. This entailed fortifying the cockpit doors and establishing special protocols for entering them. Annex 6 of the Chicago Convention requires passenger aircraft with a maximum take-off mass exceeding 45,500 kg or a capacity of more than 60 seats to be equipped with a cockpit door designed to withstand small arms fire, shrapnel, and forced entry.
Then came the Germanwings disaster in 2015, revealing a dangerous anomaly in the very procedure designed to protect the cockpit. The co-pilot took advantage of the pilot's presence outside the cockpit, closed the fortified door and prevented the pilot from returning, then directed the plane towards the French Alps, killing all 150 people on board. The door that was designed to prevent the attacker from entering became the same door that prevented the pilot from returning to rescue the plane. After this incident, a non-binding rule was adopted requiring the presence of two authorized persons in the cabin during flight.
As for the Flydubai flight FZ1073 incident, the UAE Attorney General announced that investigations revealed that the plane’s co-pilot began to carry out a terrorist act, assaulted the pilot inside the cockpit using an emergency axe, and attempted to control the plane’s controls, with the investigation continuing to determine the motives, circumstances, and possible connections.
The first reaction may be to ask about the emergency axe, and should its location or method of securing it be changed? Although these questions are legitimate, they do not touch the essence of the problem. A pilot sitting at the controls does not need an ax to threaten an aircraft, and Germanwings has proven this. Therefore, the real danger is broader than where a specific tool is kept. It's about how to manage the insider threat when the source of the danger is someone from within the most fortified areas of the aircraft.
This is the direction in which international aviation law is already heading. In November 2019, the ICAO Council adopted Amendment No. 17 to Annex 17 on aviation security. The amendment strengthened procedures related to insider threats, including security background checks, vulnerability assessments, information exchange, access controls, and screening of non-passengers.
The Flydubai FZ1073 incident adds a more difficult dimension. The threat here did not come from an employee trying to pass a security barrier to reach the cockpit, but rather from a person whose presence inside it was legitimate and wanted in the first place. Therefore, any serious post-accident review should not stop at the emergency axe, but should include psychological and security assessment of the command crews, support and reporting programs, mechanisms for detecting dangerous behavioral changes, and control procedures inside the cockpit if a crew member himself becomes a source of danger.
There is also an important contractual legal aspect that should not be reduced to operational safety rules. The Tokyo Convention of 1963 makes the state of registry of an aircraft the primary basis of jurisdiction for crimes committed on board. The aircraft in this incident was registered in the UAE, which is why the UAE Public Prosecution confirmed the jurisdiction of the UAE judicial authorities to investigate, even if the incident occurred outside the national territory. The Montreal Convention of 1971 criminalizes acts of violence against a person on board an aircraft in flight when the act would endanger the safety of the aircraft, and also establishes a framework for international jurisdiction and cooperation in prosecuting these crimes. The UAE has been a party to the convention since 1981. If an attempt to control the aircraft is proven, the 1970 Hague Convention on Unlawful Seizure of Aircraft also becomes directly relevant, as it deals with the seizure or exercise of control of the aircraft by force or threat.
A distinction must also be made between criminal investigation and technical investigation. The first examines the crime, responsibility and punishment, while the technical investigation is subject to the system of Annex 13 of the Chicago Convention, and its goal is to prevent the recurrence of the incident, not to determine criminal responsibility. Depending on where the accident occurred, the state with the main role in the technical investigation is determined, with participation rights for the state of registration, the state of operator, the state of design, and the state of manufacture.
The deeper meaning is that aviation safety is always evolving through a painful paradox. Every security barrier that solves one problem may reveal another problem. After September 11, the cockpit door was barricaded to prevent the attacker from entering, and in Germanwings the same door prevented the commander from returning. Then it was said that the presence of two people inside the cabin reduces the danger of being alone, and here we are faced with an incident that reminds us that danger may exist inside the cabin itself. Therefore, the real challenge for the law is not to build a system that assumes that humans will not make mistakes or deviate, but rather to build a system that tolerates error and deviation without collapsing.
Complete security is an illusion, because every system ultimately needs a degree of trust in humans. But the function of the law is not to abolish trust, but rather to prevent its betrayal from turning into a disaster.
