This article discusses the concept of ransom in international law, its history, and its different contemplations from the perspective of Islam, Christianity, and organized crime. It also explains the legal framework and policies regarding ransom payments to terrorist non-state parties.
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Running head: RANSOM IN INTERNATIONAL LAW Ransom in International Law Name of the Student’ Name of the University Author Note
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1RANSOM IN INTERNATIONAL LAW In the words ofMartin Luther King,“Law and order exist for the purpose of establishing justice and when they fail on this purpose they become the dangerously structured dams that block the flow of social progress”.He always laid emphasis on justice instead of law and order even under circumstances when there is a violation of law and order, he was more concern whether justice has been administered or there has been an injustice. He believed that the law and order of the society hardly focuses on administering justice instead, it does not even aim at establishing justice1. The underlying meaning of the quote denotes that courts are all about power and sometimes such power takes the form of sheer willingness to resist, to fight back peacefully and to call for justice particularly when the ‘ears are closed’. In the words ofWilliam Hague,“ Governments that block the aspirations of the people, that steal or are corrupt, that oppress and torture or that deny freedom of expression and human rights should bear in mind that they will find it increasingly hard to escape the judgment of their own people or where warranted, the reach of international law”. The term‘ransom’may be defined as the practice of holding a prisoner, any item to extort property or money for the purpose of securing the release of the person held, or it may also refer to the amount of money involved. The payment of ransom refers to the redemption of a prisoner, kidnapped person, slave or any captured goods in exchange for a price2. It may also refer to the price paid or the sum demanded for releasing the person held in captivity. The phrase ‘to hold someone’ refers to the keeping of any person in prison or detaining them with the 1Barber, Amy. "The Real Price of Paying Ransoms: The Australian Legal Position concerning Ransom Payments to Terrorist Organisation." UW Austl. L. Rev. 41 (2016): 119. 2Keen, Maurice. The laws of war in the late Middle Ages. Vol. 16. Routledge, 2015.
2RANSOM IN INTERNATIONAL LAW objective to coerce such person to do something asked by the holder, usually by threatening such person. The term‘International Law’may be defined as set of rule that are universally accepted as binding upon the nations and the states. International law serves as a framework for the stable and organized practice of international relations. However, since international law is primarily applicable to countries instead of private citizens, it is said to be different from the legal systems of the states. National law may be considered as international law when treaties entrusts national jurisdiction to supranational tribunals like theInternational Criminal court or the European Court of Human Rights. A significant part of the international law is based on consent-based governance, which implies that it is not binding upon the state member to comply with the international law unless such states have given its consent expressly to any particular course of conduct3. Nevertheless, the other part of the international law is though not consent-based but is still obligatory upon the non-state and state actors like the preemptory norms and customary international law. In the context of International law, the concept of ransom refers to the redemption of captured property from the hands of an enemy especially property that is captured at sea. The sum or the money paid to redeem the property that has been captured at sea is known as ransom within the international law framework4. In other words,‘ransom’does not imply recapture of the captured property but a purchase of the right of the captors at that point of time. Ransom is a 3Dutton, Yvonne M., and Jon Bellish. "Refusing to Negotiate: Analyzing the Legality and Practicality of a Piracy Ransom Ban."Cornell Int'l LJ47 (2014): 299. 4Bundy, C. Elizabeth. "Rescuing Policy and Terror Victims: A Concerted Approach to the Ransom Dilemma." Mich. J. Int'l L.37 (2015): 717.
3RANSOM IN INTERNATIONAL LAW relinquishment of all the benefits and interests that the captors might acquire in the property by a regular adjudication of the prize tribunal whether it isinterest in rem, title to expenses or a lien. When the term‘ransom’refers to payment, such word originated fromOld French rancon from Latin redemption, which is known as‘buying back’. The ransom cases dates back to the capture ofJulius Caesarby the pirates near theisland of Pharmacusaand was held in captivity until50 centswere paid to release him. During theMiddle Ages, inEurope, ransom became a significant custom of chivalric warfare5. According to the practice, an important knight, particularly royalty or nobility was considered worthy of significant amount if he was captured. However, if he was killed it was not necessary to provide any ransom money. Further, the abduction ofCharley Ross in July 1, 1874, is considered the first American who was kidnapped for ransom.East Germanythat established theInner German Borderto prevent emigration practiced ransom with people. The concept of ‘ransom’ has different contemplation from te perspective of Islam, Christianity and as an organized crime. From the perspective of Islam, ‘ransom’ the concept has not been precisely described and is subjected to ambiguity. The concept of ransom for salvation is though acknowledged but is rejected and there are references with respect to it in sacrifice. From the perspective of Christianity, the ransom theory of atonement of Jesus is perceived as a teaching that the death of the Christ on the cross amounted to ransom that was paid to Satan. This theory was believed by Augustine who stated that since Satan held people in captive, a ransom was t be paid to Satan to release them. The concept of ‘ransom’ is associated primarily with kidnapping and other criminal activities that detains a person for a price to be paid if such person was to be released. The practice of criminal activities for ransom is carried out by the 5Shortland, Anja. "Governing kidnap for ransom: Lloyd's as a “private regime”." Governance 30.2 (2017): 283-299.
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4RANSOM IN INTERNATIONAL LAW criminal organizations that are fundamental phenomena carried out worldwide. It causes serious harm to the victims, his or her family as well as to social and private capital. The non-payment of the ransoms though limits the frequency of committing crimes but it enhances the possibility of unintentional consequences in the form of duration of abduction and fatalities. Ransom is defined as a practice where a person is held or detained with the objective to extort property or money in exchange for their release6. Ransom implies obtaining the release of something or someone that is held in hostage for exchange of either money or something that has equal worth of the person held. Ransom money- ransom money is demanded usually in exchange of a person held in captivity or is detained as hostage. Kidnapping is the most common way used by criminals to extort money or demand property in exchange for the release of the person kidnapped7. Kidnapping, in criminal law, is defined as the unlawful carrying away or a confinement of a person against his or her will. Kidnapping is usually done to demand for ransom in exchange for releasing the detainee or the victim or to accomplish other illegal purposes. Ransom as exchange- Although ransom money was asked to be paid after a person was kidnapped, there have been instances where thieves demanded ransom for the return of an inanimate body part or object. This is evident from the incident that took place in 1987 where the thieves broke into the tomb of Argentinean President Juan Peron and severed the body with the motive to steal his hands8. The thieves later demanded for $8 million US in exchange for the severed hands. However, the ransom as not paid. 6Howard, Jeffrey W. "Kidnapped: The Ethics of Paying Ransoms." Journal of Applied Philosophy (2017). 7Guzman, Martin, and Joseph E. Stiglitz. "How hedge funds held Argentina for ransom." New York Times 1 (2016). 8Dunoff, Jeffrey L., Steven R. Ratner, and David Wippman. International Law: Norms, Actors, Process. Wolters Kluwer Law & Business, 2015.
5RANSOM IN INTERNATIONAL LAW Ransom as Concession- concession refers to an agreement made to let some people to do or have something particularly to bring an end to any conflict or agreement9. The ransom paid in the form of concessions takes place when the extreme terrorist groups; in particular, hold any person as a hostage. A recent example is that of theIslamic State of Iraq and Syria (ISIS)who released athree-minute videoonSeptember 14, in 2014. The video featured messages from the British detainees like John Cantliewhere he stated every country have got their people released by negotiating with the ISIS group except for theAmericansand theBritish. Previously, ransoms had been paid by the home country, family of the hostage and even by a third country to release such person from the detention of theIslamic State. ISIS had received ransoms during2013-2014in exchange of the release of15 to 23 hostagesexcept for an American, British and a Russian hostage. The non-payment of ransom for the American, British hostages is thenon-concession policyofUS-UK, which presents the families of such hostages with a shocking reality. If only the hostages escapes or are freed or are rescued through high-risk rescues mission, they shall be subjected to horrible confinement accompanied with mental as well as physical torture10. TheFederal Bureau of Investigation (FBI)has aided the US families to pay ransoms to the terrorists for bringing back their loved ones. However, on21 June 2015, theObama administrationdeclared that families that paid ransoms to terrorists should not be prosecuted any further. Nevertheless, theUS administrationwas persistent about not paying any form of ransoms or concessions to terrorist kidnappers11. This decision is based on the fact that the 9Singh, Currun, and Arjun Singh Bedi. "War on Piracy: The conflation of Somali piracy with terrorism in discourse, tactic, and law." Security Dialogue 47.5 (2016): 440-458. 10Dutton, Yvonne M., and Jon Bellish. "Refusing to Negotiate: Analyzing the Legality and Practicality of a Piracy Ransom Ban." Cornell Int'l LJ 47 (2014): 299. 11Wigginton Jr, Michael, et al. "Kidnapping for Ransom and Social Learning Theory." Homeland Security Rev. 8 (2014): 179.
6RANSOM IN INTERNATIONAL LAW hostage takers usually differentiate between governments that pay ransoms and those that do not make any such payments12. Therefore, such kidnappers make sure that they do not kidnap people or refrain from taking hostages from such countries that do not make ransom or concession payments for the hostages or the detained nationals. The instruments that have been historically responsible for making payments under the international law are theInternational Convention against the Taking of Hostages (Hostages Convention) 1979 and the International Convention for the Suppression of the Financing of Terrorism (Terrorism Financing Convention) 1999. In response to the previous kidnapping cases like the Iran hostage crisis, Entebbe hijacking and the Hostages Convention define such offense of hostage taking and makes it mandatory for the states to cooperate in prosecuting, arresting and punishing the perpetrators13. However, despite such stringent approach adopted by the international law towards the kidnappers without making any exception for the state parties or the non-state parties, the treaties do not have any measures regarding the ransom paid to such terrorist kidnappers. AlthoughArticle 4sets out preventive methods for the hostage-taking instances, but the internationalprovisionsobligatestatestoundertakeeverypossiblemeasurestoprevent commission of such offences. Consequently, such provision does not provide any broader perspective in respect to the demand side of the ransom situations while preserving the discretionary power of the states to be involved in negotiations. Even if ransom payments per se are not prescribed under the existingmultilateral agreements, theSecurity Councilhas issued many resolutions that aim at prohibiting terrorist financing14.Resolution 1373that was adopted 12Stern, Jessica, and John M. Berger. ISIS: The state of terror. HarperCollins, 2015 13Cockburn, Patrick. The rise of Islamic State: ISIS and the new Sunni revolution. Verso Books, 2015. 14Dutton, Yvonne M. "Funding Terrorism: The Problem of Ransom Payments." San Diego L. Rev. 53 (2016): 335.
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7RANSOM IN INTERNATIONAL LAW after the9/11 attackincluded broad language that mandated states to suppress and prevent the financing of the terrorist and refrain from providing support to any persons or entities involved in the terrorist act. The element of uncertainty in the international legal framework with respect to the governing of ransom payments to the terrorist non-state parties, it gave rise to essential domestic approaches as a response to the hostage situations15. The approach includes the emergence of non-concession policies that has been adopted by theUK and USand justifies such non-payment on the ground of deterrence through operational capacity and suppression of funding. Such non- concession policy has been developed to criminalize employers or families, both in private and public sector, who pay ransoms in order to achieve the goals and objectives of the national policy. Inordertoanswertheethicaldilemmarelatedtoransombetweenlegalityand legitimacy, it is important to throw some light, firstly, on Banning ransom as an inertia leading to a stagnant principle and secondly, on Banning ransom as a principle in progressive anchoring. Now, Retribution is considered as the moral justification for imposition of criminal punishments. According to the retributive principles, the state is justified when it imposes criminal sanctions on those who deserve such sanctions. In the event of kidnapping, bribery or extortion for ransom takes place; it is evident that each of the criminal act involves paying ransom to the hostage taker similarly as is paid to the pirates in exchange for the hostages. In all these cases, the payer of ransom is considered as the victim as they pay to prevent causing of harm to the person held as 15Levitt, Matthew. "Terrorist financing and the Islamic state." The Washington Institute for Near East Policy, Washington (2014).
8RANSOM IN INTERNATIONAL LAW hostage16. Therefore, the person who pays the ransom did not take part in the hijacking instead learnt about it after it happened. While the payment may necessarily encourage the hijacker to continue with their illegal activities, the person making payment is not doing so with any criminal intention neither the payer is receiving any profits from such activities. Therefore, it is only legal to hold the hostage taker as liable for seeking ransom in contrary to the person fulfilling the demand unwillingly. Now, in order to determine the resolve the issue pertaining to ransom between the legality and legitimacy the banning of ransom as an inertia leading to a stagnant principle, may beconsidered.Maritimeorganizationshaverepresentingshipownerscontendedseveral arguments against the ban on ransom payments, thus, resolving the ethical dilemma in favor of saving the lives of innocent people. For instance,INTERTANKOan organization that represents independent operators and tank owners which stated that payment of ransom is the only effective and guaranteed way to secure the lives of the hostages. Further, the hostage takers may become more violent in order to obtain ransom payments and shall cause environmental damage when they capture a ship carrying crude oil only to abandon such ship without receiving any ransom. The representative of the maritime industry do not disagree with the fact that payment of ransom would encourage farther criminal activities, however, despite armed guards, naval patrols use of defensive measures, the ships are being hijacked. Now, in order to determine the resolve the issue pertaining to ransom between the legality and legitimacy from the perspective of banning ransom as a principle in progressive anchoring may 16Humud, Carla E., Robert L. Pirog, and Liana Rosen. Islamic State Financing and US Policy Approaches. Congressional Research Service, 2015.
9RANSOM IN INTERNATIONAL LAW be taken into consideration.Some governments have adopted the‘no concession’policies, which imply that such countries shall not enter into negotiation with the hijackers. The ethical dilemma pertaining to banning of ransom payments and saving the lives of people has been finally resolved in favor of the long-term goal of reducing the risk posed by illegal activities in the future17. For instance, the United States have embraced the no-concession policy and reports not to make any concession to any extremist or terrorist groups that takes any citizen as hostage. The Australian government further supports this approach explaining that payment of ransoms shall only encourage the kidnapping business for ransom and put the lives of many at risk. These similar concerns that ransom payments shall only stimulate criminal activities have resulted in banning of states and citizens from paying piracy ransoms. Several international taskforceswere establishedtopreventpaymentof ransomstoterroristsand piratesand discourage the illicit flow of money and its consequences. However, the US government asserts that it will undertake every appropriate and feasible measure to ensure that its citizens held as hostage returns safely but the official policy of the country shall be not to make any concession to the hostage takers. This non-concession policy shall deprive the hostage takers of the benefits associated with the ransom payments, policy changes, prisoner releases or any other related acts of concession. Although the states are legally obligated to comply with the legal provisions stipulated under the international humanitarian law that mandates them to ensure protection of the citizens held in hostages, it is illegal to pay the ransom payment to the hostage taker, as it would encourage them to commit such acts further18. The underlying ethical dilemma about the decision 17Wigginton Jr, Michael, et al. "Kidnapping for Ransom and Social Learning Theory." Homeland Security Rev. 8 (2014): 179. 18Wright, Richard P. Kidnap for ransom: Resolving the unthinkable. CRC Press, 2016.
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10RANSOM IN INTERNATIONAL LAW whether to sacrifice innocent lives or to ban ransom payments to achieve the enduring goal of preventing future criminal activity is that payment of ransoms just stimulates the act of further kidnapping operations.
11RANSOM IN INTERNATIONAL LAW Bibliography Barber, Amy. "The Real Price of Paying Ransoms: The Australian Legal Position concerning Ransom Payments to Terrorist Organisation."UW Austl. L. Rev.41 (2016): 119. Bundy, C. Elizabeth. "Rescuing Policy and Terror Victims: A Concerted Approach to the Ransom Dilemma."Mich. J. Int'l L.37 (2015): 717. Cockburn, Patrick.The rise of Islamic State: ISIS and the new Sunni revolution. Verso Books, 2015. Cockburn, Patrick.The rise of Islamic State: ISIS and the new Sunni revolution. Verso Books, 2015. Dunoff, Jeffrey L., Steven R. Ratner, and David Wippman.International Law: Norms, Actors, Process. Wolters Kluwer Law & Business, 2015. Dutton, Yvonne M. "Funding Terrorism: The Problem of Ransom Payments."San Diego L. Rev.53 (2016): 335. Dutton, Yvonne M., and Jon Bellish. "Refusing to Negotiate: Analyzing the Legality and Practicality of a Piracy Ransom Ban."Cornell Int'l LJ47 (2014): 299. Dutton, Yvonne M., and Jon Bellish. "Refusing to Negotiate: Analyzing the Legality and Practicality of a Piracy Ransom Ban."Cornell Int'l LJ47 (2014): 299. Guzman, Martin, and Joseph E. Stiglitz. "How hedge funds held Argentina for ransom."New York Times1 (2016).
12RANSOM IN INTERNATIONAL LAW Howard,JeffreyW."Kidnapped:TheEthicsofPayingRansoms."JournalofApplied Philosophy(2017). Humud, Carla E., Robert L. Pirog, and Liana Rosen.Islamic State Financing and US Policy Approaches. Congressional Research Service, 2015. Keen, Maurice.The laws of war in the late Middle Ages. Vol. 16. Routledge, 2015. Levitt, Matthew. "Terrorist financing and the Islamic state."The Washington Institute for Near East Policy, Washington(2014). Shortland, Anja, and Tom Keatinge.Closing the Gap: Assessing Responses to Terrorist-related Kidnap-for-ransom. Royal United Services Institute for Defence and Security Studies, 2017. Shortland,Anja."Governingkidnapforransom:Lloyd'sasa“private regime”."Governance30.2 (2017): 283-299. Singh, Currun, and Arjun Singh Bedi. "War on Piracy: The conflation of Somali piracy with terrorism in discourse, tactic, and law."Security Dialogue47.5 (2016): 440-458. Stern, Jessica, and John M. Berger.ISIS: The state of terror. HarperCollins, 2015. Wigginton Jr, Michael, et al. "Kidnapping for Ransom and Social Learning Theory."Homeland Security Rev.8 (2014): 179. Wigginton Jr, Michael, et al. "Kidnapping for Ransom and Social Learning Theory."Homeland Security Rev.8 (2014): 179. Wright, Richard P.Kidnap for ransom: Resolving the unthinkable. CRC Press, 2016.
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