We live in a global economy where international travel has seemingly become the norm.  Airlines from all over the world carry passengers, not only from their own home countries, but also from their neighboring or distant foreign countries.  With millions of international travelers on board, it is not uncommon to encounter unruly passengers displaying unacceptable behavior.   But what happens when a passenger is accused of committing a crime, in particular sexual assault?  And what if the alleged crime occurred during fly over through various countries’ air space?  Will the alleged perpetrator get criminally prosecuted?  If so, who will prosecute and where?

For example, an American female passenger says she was sexually assaulted by a French male passenger on Singapore Air, en route to South Korea for the 2018 PyeongChang Winter Olympics.  The alleged sexual assault occurred when the airplane was flying through China, Russia and Japan.  The female passenger claims that the male passenger digitally penetrated her with a foreign object while she was sleeping and that all of the lights on the plane were dimmed.  The female passenger is medically examined, and the DNA evidence is collected.  Investigation reveals that the female passenger’s claims are substantiated.  But it is unclear whether the accused French male passenger is, indeed, the actual perpetrator. Regardless, the American female passenger wants her homeland (i.e., the United States) to criminally prosecute the accused (i.e., French male passenger) in the United States.  Question:  does the United States have jurisdiction over the accused?  The short answer is “No.”

The Convention on Offences and Certain Other Acts Committed on Board Aircraft (more commonly known as the Tokyo Convention of 1969) is the governing international aviation law.  (https://treaties.un.org/doc/db/terrorism/conv1-english.pdf.)  First entering into force in 1963, the Tokyo Convention in part governs questions of jurisdiction regarding crimes committed on board aircraft flying internationally.  Based on the Tokyo Convention, the state in which the aircraft is registered (here, Singapore Airlines) has explicit jurisdiction to prosecute.  However, other countries may claim jurisdiction in a broad range of scenarios, including when a crime has been committed by or against a citizen of a given country.  Thus, if Singapore does not want to prosecute, then the state of the offender (e.g., France) and the state of the victim (i.e., United States) may prosecute, especially since the crime in question has broader consequences for the safety of the flight.  And if both countries claim jurisdiction, extradition treaties will be in play.


By Susan Yu

© 2018 Susan Yu Law Group, APC