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Rescuing Policy and Terror Victims: a Concerted Approach to the Ransom Dilemma

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Rescuing Policy and Terror Victims: a Concerted Approach to the Ransom Dilemma Michigan Journal of International Law Volume 37 Issue 4 2016 Rescuing Policy and Terror Victims: A Concerted Approach to the Ransom Dilemma C. Elizabeth Bundy University of Michigan Law School Follow this and additional works at: https://repository.law.umich.edu/mjil Part of the International Law Commons, Military, War, and Peace Commons, and the National Security Law Commons Recommended Citation C. E. Bundy, Rescuing Policy and Terror Victims: A Concerted Approach to the Ransom Dilemma, 37 MICH. J. INT'L L. 717 (2016). Available at: https://repository.law.umich.edu/mjil/vol37/iss4/4 This Note is brought to you for free and open access by the Michigan Journal of International Law at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of International Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. NOTE RESCUING POLICY AND TERROR VICTIMS: A CONCERTED APPROACH TO THE RANSOM DILEMMA C. Elizabeth Bundy* TABLE OF CONTENTS THE VALUE OF A HOSTAGE: PROFITABLE TRADE, PRECIOUS TREASURE ............................................. 717 I. AN INTERNATIONAL LEGAL FRAMEWORK FOR TERROR–DRIVEN KIDNAPPINGS ......................... 720 A. Terrorist Financing: An International Offense ........ 720 B. Implications of the Assets Freeze: Ransom as a Form of Terrorist Financing?.............................. 723 II. STATE PRACTICE: POLICY–ORIENTED APPROACHES AND SHORTCOMINGS ......................................... 728 A. “Hard” Policy: No Concessions ..................... 729 B. “Soft” Policy: A Permissive Approach, or Concealing Concessions? ....................................... 733 C. Bridging the Gap: A Deep Divide ................... 736 III. THE WAY FORWARD ................................... 737 A. State–centered Model: Responsibility–Shifting to the States ............................................... 737 B. Ransom or Rescue? ................................. 740 CONCLUSION ................................................... 745 THE VALUE OF A HOSTAGE: PROFITABLE TRADE, PRECIOUS TREASURE1 After months in captivity with twenty-two other hostages, journalist James Foley became the first to be publicly beheaded by the Islamic State * J.D., May 2016, University of Michigan Law School. Along with the MJIL editorial members and J.D. Andrew Sand, I would like to thank Professors Bromberg, Hakimi, and Ratner for their insightful comments, and Francisco Ceballos for his continued support and encouragement. All views expressed herein (along with any errors) remain my own. 1. Nasser al-Wuhayshi, Al-Qaida Papers: How to Run a State, Second Letter from Abu Basir to Emir of Al-Qaida in the Islamic Maghreb, http://hosted.ap.org/specials/interact ives/_international/_pdfs/al-qaida-papers-how-to-run-a-state.pdf (“Kidnapping hostages is an easy spoil, which I may describe as a profitable trade and a precious treasure.”). Al- Wuhayshi, leader of al-Qaida in the Arabian Peninsula, also wrote that “most of the battle costs, if not all, were paid from through the spoils,” and that “almost half the spoils came from hostages,” indicating the importance of kidnapping operations to the organization’s funding. 717 718 Michigan Journal of International Law [Vol. 37:717 group (Daesh)2 on August 19, 2014.3 His death was preceded by extended negotiations for the release of fifteen other captives;4 shortly thereafter, most of Foley’s hostage-mates were freed in exchange for substantial and varying, though largely undisclosed, amounts.5 What is striking about this group is that, of at least twenty-three hostages from twelve states held together over fourteen months, only the captives of countries refusing to concede ransoms were ultimately executed.6 This tragic chapter demonstrates the difficulties underlying states’ di- vergent approaches to hostage situations. The execution of several nation- als of no-concessions states on the one hand, together with the ransomed release of their fellow hostages on the other, call into question the effec- tiveness of the United States’ and United Kingdom’s strict no-concessions approach in deterring kidnappings of their own nationals. Conversely, the payment of ransoms by states favoring a more flexible approach reinforces the ability of perpetrators to carry out further kidnapping operations. From a legal standpoint, ransoms have never been explicitly prohib- ited through the terrorist financing regime following September 11, 2001 or under any of the relevant multilateral Conventions. Beginning in 2014, however, the United Nations Security Council issued several resolutions to address Daesh, some of which specifically provided for restrictions on ran- som payments.7 Although the resolutions call on states to prevent the ben- efits accruing “from using kidnapping to raise funds or gain political concessions,”8 the absence of an overt prohibition on such payments themselves injects a measure of ambiguity into the framework governing the flow of finances to terrorist organizations. Furthermore, continued payments by certain states undercut the view that the sanctions regime prohibits ransoms to non-state terrorist actors. 2. For an explanation of why “Daesh” is used over other terms (e.g., ISIS, ISIL, Is- lamic State), see Nike Ching, Why Kerry Calls Terror Group ‘Daesh,’ Not Islamic State, VOICE OF AMERICA (Jan. 15, 2016), https://www.bostonglobe.com/opinion/2014/10/09/words- matter-isis-war-use-daesh/V85GYEuasEEJgrUun0dMUP/story.html); Faisal Irshaid, Isis, IS or Daesh? One group, many names, BBC (Dec. 2, 2015), http://www.bbc.com/news/world- middle-east-27994277; Zeba Khan, Words matter in ‘ISIS’ war, so use ‘Daesh’, BOSTON GLOBE (Oct. 9, 2014), https://www.bostonglobe.com/opinion/2014/10/09/words-matter-isis- war-use-daesh/V85GYEuasEEJgrUun0dMUP/story.html. 3. See, e.g., Rukmini Callimachi, Militant Group Says it Killed American Journalist in Syria, N.Y. TIMES (Aug. 19, 2014), http://www.nytimes.com/2014/08/20/world/middleeast/isis- james-foley-syria-execution.html. 4. See Rukmini Callimachi, The Horror Before the Beheadings: ISIS Hostages En- dured Torture and Dashed Hopes, Freed Cellmates Say, N.Y. TIMES (Oct. 25, 2014), http:// www.nytimes.com/2014/10/26/world/middleeast/horror-before-the-beheadings-what-isis-hos- tages-endured-in-syria.html. 5. Id. 6. Id. 7. See, e.g., S.C. Res. 2133 (Jan. 27, 2014); S.C. Res. 2160 (June 17, 2014); S.C. Res. 2161 (June 17, 2014); S.C. Res. 2199 (Feb. 12, 2015). 8. S.C. Res. 2133, ¶ 3 (Jan. 27, 2014). Summer 2016] Rescuing Policy 719 At the practical level, terrorist kidnappings call for a more nuanced response by affected states. Daesh’s most recent kidnappings demonstrate not only the limited effectiveness of a no-concessions policy in deterring terror-driven kidnappings, but also the potential for pro-ransom policies to fund terrorist actors. Moreover, states that are unwilling to engage in ne- gotiations themselves effectively delegate that role to a less capable pri- vate sector and often leave insurers and families in a legally tenuous position in their efforts to secure ransomed release. Finally, the general lack of a coordinated effort during rescue attempts many times results in failed hostage rescue operations or the unintended deaths of those held captive. Such problems lead firstly to the question of the legality of ransoms under international law and, secondly, to the role states can and should play in addressing hostage situations. In surveying these problems, Part I of this Note will analyze the current framework governing hostage situa- tions to determine the permissibility of ransom payments under interna- tional law. Part II will examine the two dominant positions that have developed among states and identify the justifications and shortcomings of each. Part III will conclude, firstly, that for states to develop a multilateral approach to hostage situations, they must take the lead within their re- spective domestic spheres and, secondly, that the option to negotiate for ransomed release should be preserved as an essential tool for confronting terrorist organizations. In examining these points, analysis may draw from piracy-driven kidnappings because of the substantial similarities they bear to hostage situations involving non-state terrorist groups.9 Although the former cate- gory is frequently distinguished as falling within a less egregious branch of criminal enterprise, perpetrators in both contexts pose significant risk to captives and may operate through diffuse international networks.10 Simi- larly, to maintain a narrow focus on the permissibility of ransoms, other forms of concessions such as prisoner exchanges are considered to fall outside the scope of this Note. Instead, this Note will focus narrowly on the issue of kidnappings facilitated by non-state groups that have been designated as terrorists under the auspices of the United Nations.11 9. See, e.g., Lucas V.M. Bento, Preserving Negotiation Whilst Promoting Global Or- der: Should We Bargain with Salt-Water Devils?, 19 HARV. NEGOT. L. REV. 285, 301 (2014). But see id. at 301–04; Lawrence Rutkowski et al., Mugged Twice?: Payment of Ransom on the High Seas, 59 AM. U. L. REV. 1425, 1431–32 (2010). 10. See Bento, supra note 9, at 301. 11. There is currently no internationally agreed upon definition of “terrorist” or “ter- rorism.” See, e.g., Ben Saul, Attempts to Define ‘Terrorism’ in International Law, 52 NETH. INT’L L. REV. 57 (2005). For purposes
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