Karen Stewart Student #: 10864431
Paying Ransoms to Terrorist Organizations: An Analysis of the Current Status of International Law
University of Amsterdam LLM Public International Law – 12 ECs
Table of Contents
Introduction ... 1
International Law & Analysis ... 3
International Instruments ... 4
United Nations Security Council ... 9
Regional Instruments ... 16
Public Policy & Compliance ... 19
The United States of America ... 21
The United Kingdom ... 24
Europe ... 25
Enforcement – General ... 27
Motivation to Pay Ransoms ... 32
Theoretical Solutions ... 33
Conclusion ... 41
1 Introduction
The payment of ransoms to terrorist organizations is a controversial issue. On the one hand, it is a known significant source of revenue for terrorist organizations to finance their organization, purchase weapons, fund recruitment and carry out terrorist attacks.1 Each ransom paid incentives future kidnappings, endangering the lives of more people.2 On the other hand, there may be a visible, terrified, and suffering kidnapped victim, shoved into the media spotlight, that has been held hostage for months, or possibly even years, and faces a likely death if no ransom is paid. The media attention, public sympathy, and anguish of the victim’s family and friends may all be factors in how governments may choose to deal with the issue of whether to pay a ransom.
Regardless of its controversial nature, the payment of ransoms to terrorist organizations is prohibited under international law.3 The United Nations Security Council has adopted binding resolutions that prohibit the funding of terrorism, prohibit the payment of ransoms to any entity or individual on the Al-Qaeda Sanctions list and prohibit governments from allowing their nationals to make funds available to terrorist organizations.4 The illegality of paying ransoms to terrorist organizations will be discussed in further detail in the International Law and Analysis section of this paper.
Despite it illegality, ransom payments remain a significant source of funding for terrorist organizations, allowing kidnapping for ransom to remain a lucrative practice.5 When foreigners are present in the region and the practice is carried out by an organized terrorist group,
kidnapping international hostages is a relatively low cost and low risk operation.6 Terrorist organizations have even been known to outsource the kidnapping to criminal gangs by
purchasing western hostages from criminal gangs in other States.7 A high level U.S. Treasury official, David Cohen, described the practice of kidnapping for ransom as “neither terribly
1 U.S. Department of the Treasury, Remarks of Under Secretary David Cohen at Chatham House on "Kidnapping
for Ransom: The Growing Terrorist Financing Challenge," [Press Release] 5 October 2012.
2 Ibid.
3 SC Res. 1373 (2001); SC Res. 1904 (2009); International Convention for the Suppression of the Financing of
Terrorism, New York, (9 December 1999), United Nations, Treaty Series, Vol. 2178, p. 197.
4 SC Res. 1373 (2001); SC Res. 1904 (2009).
5 See U.S. Department of the Treasury, Remarks of Under Secretary David Cohen at Chatham House on
"Kidnapping for Ransom: The Growing Terrorist Financing Challenge", [Press Release] 5 October 2012.
6 Ashley Lindsey, Stratfor, In Syria, Militants Revive Kidnapping for Ransom,” (21 May 2014). 7
Yotsana Lalji, Special meeting of the Counter‐Terrorism Committee on Kidnapping For Ransom and Hostage‐ Taking Committed by Terrorist Groups, United Nations Office on Drugs and Crime, (24 November 2014), New York, Speech.
2
sophisticated nor even all that novel,” noting that kidnapping for ransom dates back to biblical times.8 Cohen also stated that it was not difficult for terrorists to learn the “tricks of the trade,” pointing to the fact that there is evidence that terrorist organizations share tactics and strategies for kidnapping for ransom with other terrorist and extremist groups.9
In addition to being a low risk and low cost practice, kidnapping for ransom also generates a very large reward.10 According to a U.N. Report, the average ransom received by a terrorist organization in 2014 in exchange for an international hostage was $2.7 million.11 In 2012, that figure was about $5.4 million.12 Even the threat of kidnapping for ransom could become profitable.13 One terrorist organization affiliated with Al-Qaeda tried to extort several million euros from a European-based company in exchange for not targeting their employees.14
The money amassed from ransom payments is used by these terrorist organizations to recruit new members, purchase weapons, establish training camps, pay members’ salaries, and help support the next generation of terrorist and extremist groups.15 The money has also been used to help organizations expand their influence, providing other extremist and terrorist organizations in other States with funding.16 In order to demonstrate the incredible financial incentives behind the practice of kidnapping for ransom, it is beneficial to note the estimated overall costs to run a terrorist organization and to carry out an attack. Before the 11 September 2001 terrorist attacks in the United States, the U.S. Central Intelligence Agency estimated Al-Qaeda’s annual cost to run the organization to be around $30 million.17 The CIA estimated the
8 U.S. Department of the Treasury, Remarks of Under Secretary David Cohen at Chatham House on "Kidnapping
for Ransom: The Growing Terrorist Financing Challenge," [Press Release] 5 October 2012.
9 Ibid.
10 United Nations, Security Council, Sixteenth report of the Analytical Support and Sanctions Monitoring Team
submitted pursuant to resolution 2161 (2014) concerning Al-Qaida and associated individuals and entities, S/2014/770 (29 October 2014); Ashley Lindsey, Stratfor. In Syria, Militants Revive Kidnapping for Ransom,” (21 May 2014).
11 Estimation by one member state specifically for the terrorist group AQIM; United Nations, Security Council,
Sixteenth report of the Analytical Support and Sanctions Monitoring Team submitted pursuant to resolution 2161 (2014) concerning Al-Qaida and associated individuals and entities, S/2014/770 (29 October 2014).
12 United Nations, Security Council, Fifteenth report of the Analytical Support and Sanctions Monitoring Team
submitted pursuant to resolution 2083 (2012) concerning Al-Qaida and associated individuals and entities, S/2014/41 (23 January 2014).
13
See U.S. Department of the Treasury, Remarks of Under Secretary David Cohen at Chatham House on "Kidnapping for Ransom: The Growing Terrorist Financing Challenge", [Press Release] 5 October 2012.
14 Ibid. 15 Ibid. 16
Ibid.
17
United States Central Intelligence Agency, National Commission on Terrorist Attacks Upon the United States, “The 9/11 Commission Report,” p. 170.
3
cost of carrying out the 11 September 2001 attacks to be around $400,000 to $500,000.18 The U.K. government estimated the 7 July 2005 bombings in London to have cost under £8,000.19 To put it more directly, one average ransom payment for the release of one international hostage covers a significant portion of the costs of running a terrorist organization or, alone, could completely fund multiple terror attacks that have the ability to kill and injure thousands of people.20
In addition to the financial incentives, the payment of ransoms encourages future kidnappings.21 As long as ransoms continue to be paid, the practice remains lucrative and terrorist organizations can count on it as a significant revenue stream.22 An investigation by The New York Times found that from 2008 to 2013, France paid the most money in ransoms of any State and French nationals were the most kidnapped nationality.23 17 French nationals were reported as kidnapped during that period, compared to three American nationals and two British nationals.24 The governments of both the United States and the United Kingdom have had long standing policies of not paying ransoms to kidnappers and, as of 2012, a trend appeared to begin emerging that indicated hostage takers were avoiding taking American and British hostages.25 U.S. Treasury official David Cohen revealed that, in 2011, a major terrorist organization, AQIM, targeted Europeans and not Americans for kidnapping operations because of the belief that European governments pay ransoms while U.S. governments do not.26
International Law & Analysis
In order to determine the current status of international law pertaining to the payment of ransoms to terrorist organizations, this section will review and analyze the relevant international instruments that address the issue. This section will begin with international instruments that are
18
Ibid, p. 169.
19 Home Office, Independent Report, “Report of the Official Account of the Bombings in London on 7th July 2005,”
(11 May 2006).
20
See United States Central Intelligence Agency, National Commission on Terrorist Attacks Upon the United States, “The 9/11 Commission Report,” p. 169-170; See also Home Office, Independent Report, “Report of the Official Account of the Bombings in London on 7th July 2005,” (11 May 2006).
21 U.S. Department of the Treasury, Remarks of Under Secretary David Cohen at Chatham House on "Kidnapping
for Ransom: The Growing Terrorist Financing Challenge," 5 October 2012.
22 See Ibid.
23 Rukmini Callimachi, The New York Times, Paying Ransoms, Europe Bankrolls Qaeda Terror, (29 July 2014). 24 Ibid.
25
U.S. Department of the Treasury, Remarks of Under Secretary at Chatham House on ‘Kidnapping for Ransom: The Growing Terrorist Financing Challenge,’ [Press Release], (5 October 2012).
4
binding on States that are party to them and then will review other international instruments that are not binding. Next, the relevant activities of the United Nations Security Council will be reviewed and analyzed. Lastly, a few regional instruments will be discussed. Together, these instruments should provide a clearer view of the current international legal framework that pertains to the payment of ransoms to terrorist organizations.
International Instruments
Since 1963, there have been 18 international legal instruments (including four amendments) within the framework of the U.N. that have been targeted at combatting international terrorism.27 Three of those instruments are relevant to the offense of taking
hostages and/or the payment of ransoms.28 These international agreements show the progression of how the international community has dealt with the issue of hostage taking, kidnapping for ransom and ransom payment over time and have been influential in the creation of the regional instruments and Security Council resolutions that also make up the framework of international law against the funding of terrorism through ransom payments.29 In addition, they may serve as a public expression of a State’s commitment to combatting the issue.
The first relevant instrument was the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents.30 The
convention required States party to it to criminalize the intentional kidnapping of internationally protected persons in their domestic legal systems.31 The second instrument was the 1979
International Convention against the Taking of Hostages.32 This instrument defined the offense of hostage taking by stating that anyone that “seizes or detains and threatens to kill, to injure, or to continue to detain another person in order to compel a third party…to do or abstain from
27 United Nations, Department of Public Information, “United Nations Action to Counter Terrorism,” [Retrieved on
20 May 2015].
28 See Mauro Miedico, Special meeting of the Counter‐Terrorism Committee on Kidnapping For Ransom and
Hostage‐Taking Committed by Terrorist Groups, United Nations Office on Drugs and Crime, (24 November 2014), New York, Speech.
29 See Assembly of the African Union, Decision to Combat the Payment of Ransom to Terrorist Groups,
Assembly/AU/Dec.256(XIII), (3 July 2009), referring to International Convention for the Suppression of the Financing of Terrorism and the International Convention against the Taking of Hostages; See also SC Res. 1373 (2001).
30 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including
Diplomatic Agents, New York, (14 December 1973), United Nations, Treaty Series, Vol. 1035, p. 167.
31
Ibid.
32
International Convention against the Taking of Hostages, New York, (17 December 1979), United Nations, Treaty Series, Vol. 1316, p. 205.
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doing any act as an explicit or implicit condition for the release of the hostage” would be guilty of hostage-taking.33 The convention also obliged States to make hostage taking an offense under their domestic law and to cooperate with other States in working to prevent hostage takings.34
The Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents and the International Convention against the Taking of Hostages appear to have significantly contributed to the building of the foundation of the legal framework that prohibits the payment of ransoms to terrorist organizations. These instruments were the first international instruments to address the issue of hostage taking and define the offense at the international legal level.35 Their significance may be evidenced by their mention in future Security Council resolutions. Both instruments were mentioned in Security Council Resolution 579, adopted in 1985, which described hostage taking as a form of
international terrorism.36 The International Convention against the Taking of Hostages was also mentioned in Security Council Resolution 2133, adopted in 2014, which specifically addresses the payment of ransoms to terrorists.37
The third instrument was the 1999 International Convention for the Suppression of the Financing of Terrorism.38 This instrument established the offence of financing terrorism whereby any person “by any means, directly or indirectly, unlawfully and wilfully provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out” acts defined as terrorist by the international legal
framework.39 The convention established terrorist financing as an offense in violation of the convention; an offense that could be committed directly or indirectly.40 According to a Section Chief in the Terrorism Prevention Branch, which is part of the U.N. Office on Drugs and Crimes, this convention completed the framework of international law against kidnapping for ransom by establishing that the mere knowledge or intention that the money would be used for terrorist acts
33 Ibid. 34 Ibid.
35 See Mauro Miedico, Special meeting of the Counter‐Terrorism Committee on Kidnapping For Ransom and
Hostage‐Taking Committed by Terrorist Groups, United Nations Office on Drugs and Crime, (24 November 2014), New York, Speech.
36 SC Res. 579 (1985). 37 SC Res 2133 (2014).
38 International Convention for the Suppression of the Financing of Terrorism, New York, (9 December 1999),
United Nations, Treaty Series, Vol. 2178, p. 197.
39
Ibid.
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was enough to establish the offense of financing terrorism, regardless of whether the money was actually used for terroristic purposes.41 The convention also calls on States to establish the offense defined in the convention as criminal in their domestic law and take measures to freeze and seize funds allocated or used for this criminal purpose.42
With the 1999 International Convention for the Suppression of the Financing of Terrorism, the international legal framework seems to begin building up strength against the financing of terrorism.43 At the lowest threshold, the indirect collection of funds, by any means, coupled with the mere knowledge that only part of the money could be used to carry out terrorist acts, even if it never is used in such a way, would constitute an offense under the convention.44 This international convention appears to be a substantial step towards the international
community viewing the payment of ransoms that end up funding terrorist organizations and activities as included under the offense of financing terrorism.
As for the convention’s enforceability, article 24 of the convention states that any dispute that arises between two State parties to the convention “concerning the interpretation or
application of the convention” that cannot be settled in a reasonable time by negotiation shall “be submitted to arbitration.”45 If an arbitration organization cannot be agreed upon, either party can “refer the dispute to the International Court of Justice.”46 This inclusion of a compromissory clause confers jurisdiction to the International Court of Justice (ICJ) to settle the dispute if one of the parties so requests.47 In the event a dispute is adjudicated by the ICJ, the resulting decision would only be legally binding between the two parties and only in regards of that particular dispute.48 While the majority of the ICJ’s decisions have been complied with, there is no enforcement mechanism in place if States simply ignore or disregard the decision.49
41 Mauro Miedico, Special meeting of the Counter‐Terrorism Committee on Kidnapping For Ransom and Hostage‐
Taking Committed by Terrorist Groups, United Nations Office on Drugs and Crime, (24 November 2014), New York. Speech.
42 Ibid.
43 See International Convention for the Suppression of the Financing of Terrorism, New York, (9 December 1999),
United Nations, Treaty Series, Vol. 2178, p. 197
44
See Ibid.
45 Ibid. 46 Ibid.
47 Rebecca Wallace and Olga Martin-Ortega, International Law, London: Sweet & Maxwell, Seventh Ed, (2013), p.
345.
48
Ibid, p. 357.
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The convention’s importance in the fight against the financing of terrorism in relation to ransom payments to terrorist organizations does not appear to stem from its enforceability. As there appears to be no evidence that a State has ever even attempted to enforce the convention against another State, its ability to be enforced seems ineffective. The convention’s main addition to the international legal framework seems to come from its broad and almost all-encompassing definition and establishment of the offense of financing of terrorism.50 Its significance may also be evident in its mention in future Security Council Resolution 1373, adopted in 2001, and Resolution 2133, adopted in 2014.51
Other International Instruments
In 2012, Algeria and the United States hosted a Global Counterterrorism Forum for experts to “elaborate a set of recommended, non-binding good practices for all states to consider implementing to prevent hostage-taking, keep the hostage safe, and deny terrorists the financial and other benefits from such actions.”52 The experts at the conference also had the task of developing “capacity building initiatives to support the implementation of these practices in interested states.”53 The result of the conference was the creation of the “Algiers Memorandum on Good Practices on Preventing and Denying the Benefits of Kidnapping for Ransom by Terrorists.”54 The memorandum describes kidnapping for ransom as “not only a predicate offense to terrorism related crimes, but is itself a type of terrorism.”55 Among other things, it suggests that States should seek to deny “terrorists and terrorist organizations and their final beneficiaries the benefits of ransom” and seek to secure the release of hostages through other means, including through the use of force.56
The Global Counterterrorism Forum is a counterterrorism platform that regularly convenes experts, policy makers and practitioners from all over the world in order to identify counterterrorism issues and come up with solutions to increase the capacity of States to deal with
50 See International Convention for the Suppression of the Financing of Terrorism, New York, (9 December 1999),
United Nations, Treaty Series, Vol. 2178, p. 197.
51
See SC Res. 1373 (2001); SC Res. 2133 (2014).
52 Global Counterterrorism Forum, “Algiers Memorandum on Good Practices on Preventing and Denying the
Benefits of Kidnapping for Ransom by Terrorists,” (2012), p. 2.
53 Ibid. 54 Ibid. 55 Ibid. 56 Ibid, p. 4.
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terrorism.57 The fact that Algeria hosted an ad hoc Global Counterterrorism Forum to address the specific issue of kidnapping for ransom by terrorist organizations, shows just how global and serious the issue has become.58 The results of the conferences are not legally binding, but the formation of the group and the work it does is an expression of States’ interest in international cooperation in the fight against international terrorism.59
At the Lough Erne Summit in 2013, the Group of Eight, a group of highly industrialized States made up of France, Germany, Italy, the United Kingdom, Japan, Canada, Russia, and the United States,60 issued a Communique regarding the practice of paying ransoms.61 The
Communique condemned the payment of ransoms to terrorist organization and called on States and businesses to help stop the practice.62 The Group of Eight noted that the payment of ransoms was a major source of funding that helps terrorist organizations strengthen their capability to carry out terrorist attacks.63 It also noted that ransom payments incentivize more kidnappings for ransom, which puts their nationals at further risk.64 The Group of Eight asserted that they “are committed to protecting the lives of [their] nationals and reducing terrorist groups’ access to the funding that allows them to survive and thrive in accordance with relevant international
commitments” and therefore “unequivocally reject the payment of ransoms to terrorists.”65 While the communique is not a legally binding document, as the Group of Eight is not an international organization or institution and has no legal basis or authority, it can still has value to the international legal framework.66 It expresses the international commitment to cooperation among the world’s most industrialized nations to the fight against the financing of terrorism by the payment of ransoms to terrorist organizations.67 It also shows that kidnapping for ransom as a mode of financing for terrorist organizations appears to be an increasingly prevalent and global practice that has not been effectively dealt with despite international efforts over the years.68
57 Council on Foreign Relations. “Fact Sheet on the Global Counterterrorism Forum.” (7 June 2012). 58 See Ibid.
59
See Ibid.
60 Zachary Laub, Council on Foreign Relations, “The Group of Eight (G8) Industrialized Nations,” (3 March 2014). 61 Group of Eight, Lough Erne Leaders Communique, Counter Terrorism, (18 June 2013).
62 Ibid. 63
Ibid.
64 Ibid. 65 Ibid.
66 Commission Europeenne, “FAQs: the G8 Summit in L'Aquila (Italy) from 8-10 July 2009,” MEMO/09/317,
Brussels, (6 July 2009).
67
See Group of Eight, Lough Erne Leaders Communique, Counter Terrorism, (18 June 2013).
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United Nations Security Council
According to the Charter of the United Nations, the Security Council (the Council) has the “primary responsibility for the maintenance of international peace and security” and member states to the U.N. have agreed “to accept and carry out the decisions” of the Council.69 Acting under Chapter VII of the U.N. Charter, the Council can make decisions that are binding upon all of its members.70 The Council also has the power to enforce those decisions.71 The focus of this section will be on how the Council has dealt with kidnapping for ransom and ransom payments to terrorist organizations over time.
From 1985 to 2000
In 1985, the Council adopted Resolution 579 which expressed the Council’s deep disturbance at the increasing number of incidents of hostage taking and stated that the Council considered acts of hostage taking and abduction to be “offenses of grave concern to the
international community.”72 The Council also referred to hostage taking as “manifestations of international terrorism”.73 In Resolution 731, adopted in 1992, and Resolution 1070, adopted in 1996, the Council linked the concept of international terrorism with threats to international peace and security.74
In 1999, the Council adopted Resolution 1267 which stated that “the suppression of international terrorism is essential for the maintenance of international peace and security.” The resolution established the 1267 Committee, which was made up of all the members of the
Council.75 The 1267 Committee was tasked with overseeing the sanctions measures implemented against the Taliban, a “radically militant Islamic movement” with control over the majority of Afghanistan.76 An Analytical Support and Sanctions Monitoring Team, made up of experts in the field of counterterrorism, was appointed to assist the committee.77 The Resolution called upon
69 United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, [accessed 1 April 2015], Article
24-25.
70 Simon Chesterman, Thomas M. Franck, and David Malone, Law and Practice of the United Nations: Documents
and Commentary, New York: Oxford UP, 2008, p. 19-20.
71 Ibid. 72 SC Res. 579 (1985). 73 Ibid. 74 SC Res. 731 (1992); SC Res. 1070 (1996). 75 SC Res. 1267 (1999). 76
SC Res. 1267 (1999); International Encyclopedia of the Social Sciences, “Taliban,” (2008), [retrieved 26 May 2015].
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States to ensure that no funds were made available from their nationals or by any other persons within their territory for the benefit of the Taliban.78
Resolution 1333 was adopted by the Council in 2000.79 It expanded the sanctions
implemented by Resolution 1267 to also include Al-Qaeda, an international terrorist organization with ties to multiple other terrorist and extremist groups.80 Resolution 1333 also created the Sanctions List, which listed individuals and entities that were known to be associates of Al-Qaeda and therefore subject to the sanctions.81 The 1267 Committee was tasked with establishing and maintaining the Sanctions List.82
Through the adoption of resolutions throughout the 1980’s and the 1990’s, the Security Council progressed from labeling incidents of hostage taking and abduction as “manifestations of international terrorism” to designating international terrorism as a threat to international peace and security, the suppression of which was critical to the fulfilling of its mandate.83 The
determination that international terrorism was a threat to international peace and security placed the issue firmly within the Council’s competence to make binding decisions regarding.84
With the adoption of Resolution 1267 and Resolution 1333, the Council had instituted a sanctions regime against individuals and organizations designated as terrorist based on their connections to the Taliban or Al-Qaeda.85 The Sanctions List served as a foundation for the prohibition on the financing of terrorism.
The Council’s call in Resolution 1267 for States to make sure no funds, including from private actors, were made available for the benefit of the Taliban was an important step within the international legal framework leading up to a ban on ransom payments to terrorist
organizations.86 At a Special meeting for the Counter-Terrorism Committee on Kidnapping for Ransom and Hostage Taking Committed by Terrorist Groups, a Section Chief in the Terrorism Prevention Branch of the United Nations Office on Drugs and Crimes stated that the prohibition
78
Ibid.
79 SC Res. 1333 (2000).
80 SC Res. 1333 (2000); Frontline, “Al-Qaeda,” [Retrieved on 29 May 2015].
81 Atiq Durrani, Pakistan Kakhuda Hafiz, “UN Security Council Resolution 1267 and Hafiz Saeed,” (27 September
2014); SC Res. 1333 (2000).
82 SC Res. 1267 (1999); SC Res. 1333 (2000).
83 See SC Res. 579 (1985); SC Res. 731 (1992); SC Res. 1070 (1996); SC Res. 1267 (1999) 84 See United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI. 85
See SC Res. 1267 (1999); SC Res. 1333 (2000).
86 See SC Res 1267 (1999); See also Mauro Miedico, “Special meeting of the Counter‐Terrorism Committee on
Kidnapping For Ransom and Hostage‐Taking Committed by Terrorist Groups,” United Nations Office on Drugs and Crime, (24 November 2014), New York, Speech.
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on payment of ransoms to terrorist organizations emanated from Resolution 1267.87 He stated that the prohibition was only made more explicit by later resolutions.88
2001
After the 11 September 2001 terrorist attacks, the Council signaled its intention to shift and intensify its approach toward combatting international terrorism by passing Resolution 1368.89 Passed only one day after the terrorist attacks, the Resolution not only condemned the attacks, but expressed the Council’s readiness to take all necessary steps to respond to the attacks and to combat all forms of terrorism by all means necessary.90 Less than 3 weeks later, the Council adopted Resolution 1373.91 In Resolution 1373, the Council declared that all “acts, methods, and practices of terrorism are contrary to the purposes and principles of the United Nations and that knowingly financing, planning and inciting terrorist acts are also contrary to the purposes and principles of the United Nations.”92
Acting under Chapter VII, the Council called for the prevention and suppression of the financing of terrorism and the criminalization of the “provision or collection, by any means, directly or indirectly, of funds by their nationals or in their territories with the intention that the funds should be used, or in the knowledge that they are to be used, in order to carry out terrorist attacks.”93 States were called to prohibit anyone from making any funds available, “directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts.”94 It required member states to criminalize various acts of terrorism.95
Resolution 1373 also established the Counter-Terrorism Committee, which was made up of all the members of the Council.96 The mandate of the Committee is to “bolster the ability of United Nations Member States to prevent terrorist acts both within their borders and across
87 Mauro Miedico, “Special meeting of the Counter‐Terrorism Committee on Kidnapping For Ransom and Hostage‐
Taking Committed by Terrorist Groups,” United Nations Office on Drugs and Crime, (24 November 2014), New York, Speech.
88 Ibid.
89 Malcom Shaw, International Law, (Cambridge University Press: 2009), pg. 843. 90 SC Res. 1368 (2001). 91 SC Res. 1373 (2001). 92 Ibid. 93 Ibid. 94 Ibid. 95 Ibid.
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regions.”97 The resolution required States to regularly report to the Committee about the measures taken to implement Resolution 1373.98
Resolution 1373 was a significant departure from the Council’s previous resolutions.99 It has been hailed, as well as criticized, as creating new international legislation.100 The resolution was adopted pursuant to the Council’s Chapter VII powers to handle threats to international peace and security, which meant it was legally binding on member States.101 The resolution created new legal obligations that were binding on States.102 Failing to abide by resolutions adopted under Chapter VII of the Charter of the U.N. opens States up to punitive or enforcement measures.103
The obligations imposed by the resolution were general and abstract in character.104 They did not include any geographic or time limitations.105 The language of the resolution was neutral and could apply to an indefinite variety of cases.106 The obligations could be triggered by a specific situation or event but were not restricted to it.107 This was the first time that the Council had adopted a binding resolution under its Chapter VII powers that was not targeted at a specific event that had happened, but rather, it was targeted at terrorism in general.108 The Policy
Working Group on the U.N. and Terrorism described Resolution 1373 as “one of the most expansive resolutions in the history of the Council.”109
While ransom payments to terrorist organizations were not a specifically mentioned form of terrorist funding, collecting funds with the knowledge they could be used for terrorist attacks or for the benefit of someone who commits, attempts, facilitates or participates in terrorist acts
97 United Nations, Security Council, “Counter-Terrorism Committee,” [Updated 29 May 2015]. 98 SC Res. 1373 (2001).
99 See Simon Chesterman, “Law and Practice of the United Nations,” New York: 2008, p. 109-110. 100
Simon Chesterman, “Law and Practice of the United Nations,” New York: 2008, p. 109; Marianne Wade, Almir Maljevic,A War on Terror?: The European Stance on a New Threat, Changing Laws and Human Rights
Implications, (August 2011), pg. 94; Bibi Van Ginkel,, “New SC Resolution 2178: Missed Opportunity for a Holistic Approach,” (3 October 2014).
101
Marianne Wade, Almir Maljevic,A War on Terror?: The European Stance on a New Threat, Changing Laws and Human Rights Implications, (August 2011), pg. 93; SC Res. 1373 (2001).
102 See Marianne Wade, Almir Maljevic,A War on Terror?: The European Stance on a New Threat, Changing Laws
and Human Rights Implications, (August 2011), pg. 93.
103
Ibid.
104 Simon Chesterman, “Law and Practice of the United Nations,” New York: 2008, p. 109-110. 105 Ibid.
106 Ibid, p. 110. 107
Ibid.
108
Wade, A War on Terror?, pg.94.
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would violate the obligations.110 This Resolution seems to have helped pave the way for ransom payments to be considered a form of terrorist funding.111 This is especially evident from later Security Council resolutions that clarify the inclusion of ransom payments as a prohibited form of terrorist funding.112 Also in 2001, the Council adopted resolution 1377, which declared acts of international terrorism to be “one of the most serious threats to international peace and security in the twenty-first century.”113
From 2002 to 2014
In 2009, the Council adopted Resolution 1904.114 Resolution 1904 was the first resolution to clearly express concern at the practice of kidnapping and hostage taking and also explicitly confirm that the financial sanctions implemented by the Council in Resolution 1267 and Resolution 1333 applied to ransom payments made to any person or any entity that was on the Sanctions List.115 Resolution 1989, adopted in 2011 and Resolution 2083, adopted in 2012, also confirmed that the financial sanctions applied to ransom payments to any party listed on the Sanctions List.116
In 2014, the Council adopted Resolution 2133, in which the Council specifically and strongly condemned “incidents of kidnapping and hostage-taking committed by terrorist groups” and reaffirmed that ransom payments were included under the financial sanctions implemented by previous resolutions.117 In the resolution, the Council stated that the “payment of ransoms to terrorists funds future kidnappings and hostage-takings which creates more victims and
perpetuates the problem” and called on States to “prevent terrorists from benefiting from ransom payments.”118 The resolution noted that ransom payments to terrorist organizations are a source of income that helps the organization fund their terrorist attacks and strengthen their
organization, while also incentivizing future incidents of kidnappings for ransom.119 The Council called for States to work together during kidnapping for ransom incidents that are committed by
110 See SC Res. 1373 (2001).
111 See SC Res. 1373 (2001); SC Res. 1904 (2009). 112 See SC Res. 1904 (2009). 113 SC Res. 1377 (2001). 114 SC Res. 1904 (2009). 115 Ibid. 116 SC Res. 1989 (2011); SC Res. 2083 (2012). 117 SC Res. 2133 (2014). 118 Ibid. 119 Ibid.
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terrorist organizations and expressed its determination for the safe release of hostages without paying ransoms.120 Resolution 2133 also recalled the relevant international instruments, such as the International Convention against the Taking of Hostages and the International Convention for the Suppression of the Financing of Terrorism, and noted the work of the Global
Counterterrorism Forum and the Group of Eight Summit.121
Also in 2014, the Council adopted Resolution 2161, which helped strengthen the international legal framework against the payment of ransoms to terrorist organizations by making the prohibition against the payment of ransoms even more explicit.122 The Resolution confirmed that the financial sanctions implemented by the Council applied to ransom payments to any individual or entity on the Sanctions List “regardless of how or by whom the ransom is paid.”123 States were called to ensure that funds are not made available by their nationals or anyone on their territory, whether directly or indirectly, to terrorists.124
Resolution 2170 was adopted the same year and strongly condemned the practice of kidnapping for ransom committed by the Islamic State of Iraq and the Levant (ISIL) and other terrorist groups. 125 The Council specifically designated ISIL as a terrorist organization with known ties to Al-Qaeda and therefore added the terrorist group to the Sanctions List.126 The resolution also called upon States to ensure that terrorists do not benefit from ransom payments.127
The resolutions adopted by the Security Council from 2009 to 2014 served to make the Council’s prohibition against the payment of ransoms to terrorist organizations appear
increasingly clearer. While ransom payments were never expressly mentioned in previous resolutions that prohibited making funds available to any individual or entity on the Sanctions List, the language of the prohibitions seem to become increasingly all-encompassing. The
language used in Resolution 1904 is evidence that ransom payments were always included under
120 Ibid. 121
Ibid.
122 Mauro Miedico, “Special meeting of the Counter‐Terrorism Committee on Kidnapping For Ransom and
Hostage‐Taking Committed by Terrorist Groups”, (24 November 2014).
123 SC Res. 2161 (2014). 124 Ibid. 125 Ibid. 126 Ibid. 127 Ibid.
15
the financial sanctions regime as it states merely that the Council “confirms further” that the financial sanctions do apply to ransom payments made to anyone on the Sanctions List.128
Over the period from 2009 to 2014, the resolutions adopted by the Council begin to mention the issues of kidnapping for ransom and the payment of ransoms to terrorist organizations more and more.129 In Resolution 1904, adopted in 2009, the Council merely expressed its concern at the practice of kidnaping for ransom and confirmed that the financial sanctions applied to ransom payments.130 By 2014, in Resolution 2133, the Council expressed its concern at the practice of kidnapping for ransom but also strongly condemned it, expressed concern at the increasing incidents of its use by Al-Qaeda, expressed concern that paying ransoms creates more victims and perpetuates the problem, expressed its determination to prevent incidents of kidnapping for ransom, and much more.131 The more frequent mentions could be a reflection of the increase in use of the practice by terrorist organizations and the surge in media coverage.132 Kidnapping for ransom by terrorist groups was on its way to becoming the second largest source of funding for terrorist groups and the general public was becoming
increasingly aware of its use.133 The Security Council became increasingly aware of and also increasingly involved in the issue.134
In a report issued in 2014 by the Analytical Support and Sanctions Monitoring Team (the Sanctions Monitoring Team), the Sanctions Monitoring Team determined that ISIL, an
organization “notorious for its kidnappings,” “has derived a significant income from kidnapping for ransom,” earning “approximately $96,000 to $123,000 per day” from ransom payments. 135 Although the Sanctions Monitoring Team did not consider ransom payments to be a sustainable
128 See SC Res. 1904 (2009).
129 See SC Res. 1904 (2009); SC Res. 2133 (2014). 130
See SC Res 1904 (2009).
131
SC Res. 2133 (2014).
132 See United Nations, Security Council, Sixteenth report of the Analytical Support and Sanctions Monitoring Team
submitted pursuant to resolution 2161 (2014) concerning Al-Qaida and associated individuals and entities, S/2014/770, (29 October 2014); See Mark Murray, NBC News, “ISIS Threat: Fear of Terror Attack Soars to 9/11 High, NBC News/WSJ Poll Finds,” (9 September 2014).
133 See U.S. Department of the Treasury, Remarks of Under Secretary for Terrorism and Financial Intelligence
David Cohen before the Center for a New American Security on “Confronting New Threats in Terrorist Financing,” [Press Release], 4 March 2014; See also Mark Murray, NBC News, “ISIS Threat: Fear of Terror Attack Soars to 9/11 High, NBC News/WSJ Poll Finds,” (9 September 2014).
134 See SC Res. 1904 (2009); SC Res. 2133 (2014); SC Res. 2170 (2014); See also United Nations, Statement by the
President of the Security Council, S/PRST/2014/23, (19 November 2014).
135
United Nations Security Council, “The Islamic State in Iraq and the Levant and the Al-Nusrah Front for the People of the Levant: report and recommendations submitted pursuant to resolution 2170 (2014),” S/2014/815, (14 November 2014), p. 24.
16
source of income for the group, it still recommended “effective enforcement of the sanctions ban on ransom payments to listed groups like ISIL.”136 The Sanctions Monitoring Teams also
recommended that, in the case of the terrorist group the Al-Nusrah Front for the People of the Levant, the Security Council should target sanctions at “illicit ransom payments made in breach of the Al-Qaeda Sanctions regime.”137
In November of 2014, the President of the Security Council issued a statement strongly condemning the practice of kidnapping, including kidnapping for ransom.138 The President stated that ransom payments are a source of concern for the Council, as the funds are used as a source of income and paying ransoms encourages more kidnappings.139 He called for the safe release of hostages without the payment of ransoms or political concessions, as in adherence to
international law.140 He reiterated the Council’s call for states to ensure that terrorists do not benefit from ransom payments.141
In 2015, the Council adopted Resolution 2199, in which the Council again expressed its determination to secure the release of hostages without the payment of ransoms or political concessions.142 The resolution reaffirmed that ransom payments that were made to those listed on the Sanctions List were prohibited by the sanctions implemented by earlier resolutions regardless of “how or by whom the ransom is paid.”143 This legally binding resolution, adopted under the Council’s Chapter VII powers, also reiterated the Council’s call for States to prevent terrorists from benefiting, whether directly or indirectly, from the payment of ransoms.144 The Council also reiterated its warning that the payment of ransoms incentivizes future kidnappings and funds terrorist activities.145
Regional Instruments
There are also several regional instruments that condemn kidnapping for ransom and the payment of ransoms to terrorist organizations. Regional instruments have influenced, and been
136 Ibid, p. 24-25. 137 Ibid, p. 19.
138 United Nations, Statement by the President of the Security Council, S/PRST/2014/23, (19 November 2014). 139 Ibid. 140 Ibid. 141 Ibid. 142 SC Res. 2199 (2015). 143 Ibid. 144 Ibid. 145 Ibid.
17
influenced, by other international agreements and Security Council resolutions.146 They may be indications of the national policies of the States that are party to them, as well as a States’ interpretation of the current status of international law. Many of the instruments also discuss the consequences of paying ransoms to terrorist organizations.147
In 2009, the Assembly of the African Union (AU) adopted a decision to fight the
payment of ransoms to terrorist organizations.148 The decision strongly condemned the payment of ransoms to terrorist organizations and stated that the AU considered the payment of ransoms to terrorist organizations to be one of the main sources of financing for terrorists.149 It expressed the AU’s determination to curb the many sources of financing of international terrorism.150 It reaffirmed the need to adopt legal measures against the payment of ransoms to terrorist organizations, but also requested the international community to criminalize the payment of ransoms.151 The AU asked the United Nations General Assembly to adopt a supplementary protocol to the International Convention for the Suppression of the Financing of Terrorism or to the International Convention against the Taking of Hostages that would prohibit paying ransoms to terrorist organizations.152 The decision also asked the United Nations Security Council to “adopt a restrictive resolution against the payment of ransom in order to consolidate legal provisions put in place, particularly by resolutions 1373 and 1267.”153
Although decisions adopted by the Assembly of the AU arguably have the potential to be binding on member states, the provisions of the decision are directed at the international
community as a whole, the United Nations Security Council, and the United Nations General Assembly, all of which the Assembly of the AU have no legal or binding authority over.154 In addition, the language used in the decision is not particularly authoritative and does not suggest
146
See Assembly of the African Union, Decision to Combat the Payment of Ransom to Terrorist Groups, Assembly/AU/Dec.256(XIII), (3 July 2009) referring to SC Res. 1373 (2001) and SC Res. 1267 (1999).
147 See African Union, Decision to Combat the Payment of Ransom to Terrorist Groups,
Assembly/AU/Dec.256(XIII), (3 July 2009); See also Council of Europe, Parliamentary Assembly, Resolution 1722 (2010), (28 April).
148 African Union, Decision to Combat the Payment of Ransom to Terrorist Groups, Assembly/AU/Dec.256(XIII),
(3 July 2009). 149 Ibid. 150 Ibid. 151 Ibid. 152 Ibid. 153 Ibid. 154
Christopher Gevers and Max du Plessis, Institute for Security Studies, “Balancing Competing Obligations: The Rome Statute and AU Decisions,” (October 2011); See also African Union, Decision to Combat the Payment of Ransom to Terrorist Groups, Assembly/AU/Dec.256(XIII), (3 July 2009).
18
an intent to be legally binding upon its member states.155 Regardless, the decision of the Assembly of the AU may be seen as an example of an expression of a regional commitment against the payment of ransoms to terrorist organizations. This instrument differs from other regional instruments in that it requests the relevant organs of the United Nations, as well as the international community in general, to take specific actions in order to end the funding of terrorism through the payment of ransoms.156
In 2010, the Parliamentary Assembly of the Council of Europe (the Parliamentary Assembly) adopted Resolution 1722. Although directed at the issue of kidnapping for ransom by pirates, the resolution noted the enormous financial benefit of kidnapping for ransom to terrorist and extremist organizations that comes at the expense of great suffering of the victims who are often injured, traumatized, or killed.157 The resolution called on member states to create clear legislation and policies against the payment of ransoms and “ensure compliance by both private actors and state authorities.”158 States were also called to investigate if ransom payments were becoming a source of income to extremist and terrorist organizations and to “take all necessary action to stop this and prevent it from reoccurring.”159
The Parliamentary Assembly has no power to pass legally binding resolutions but it can “demand action” from its 47 member state’s governments, who are required to reply.160 The Parliamentary Assembly has the power to “question Presidents and Prime Ministers on any topic it chooses” and can also recommend the suspension or exclusion of a member state.161 Even though it was adopted to address issues relating to piracy, this regional instrument may be seen as an important expression of a regional commitment to ending the payment of ransoms that calls on member States to create domestic legislation and ensure compliance by both private actors and state authorities.162
In 2014, the Council of the European Union (the EU Council) adopted the “Council Conclusions on Kidnapping for Ransom…which aim to build upon and facilitate the
155 See African Union, Decision to Combat the Payment of Ransom to Terrorist Groups,
Assembly/AU/Dec.256(XIII), (3 July 2009).
156 See Ibid. 157
Council of Europe, Parliamentary Assembly, Resolution 1722 (2010), (28 April).
158 Ibid. 159 Ibid.
160 The Parliamentary Assembly of the Council of Europe, “The Powers of the Assembly,” [Retrieved 25 May
2015].
161
Ibid.
19
implementation” of Security Council Resolution 2133.163 The multiple conclusions expressed the European Union’s rejection of the payment of ransoms to terrorists.164 The conclusions stated that paying ransoms strengthens terrorist’s ability to attack the interests of the EU and increases the risk to their citizens.165It also stated that the payments were being used to buy weapons for use in terrorist attacks, fund recruitment efforts and finance illegal trafficking.166 The EU Council also asserted its support for working with the private sector to create guidelines on how to deal with hostage situations.167 While Council Conclusions are not legally binding on member states, they are intended as political statements that enable the cooperation between member states to effect change in the domestic law of the member states.168 They are also intended to influence the direction of the European Commission’s future policy pursuits.169 This regional instrument may be seen as another example of the European Union’s position regarding the payment of ransoms to terrorist organizations.
Public Policy & Compliance
The payment of ransoms to terrorist organizations is clearly prohibited by international law.170 Despite international efforts, incidents of kidnapping for ransom by terrorist
organizations has increased, and so has the income generated from it.171 According to a high level United States Treasury official, kidnapping for ransom is currently the second greatest source of funding for terrorists.172 An investigation by The New York Times found that in 2013, just within the span of one year, Al-Qaeda and its direct affiliates collected $66 million from
163 Eglantine Cujo, Delegation of the European Union to the United Nations, “Statement on behalf of the European
Union,” New York, (7 October 2014).
164
Council of the European Union, Council Conclusions on Kidnap for Ransom, Luxembourg, (23 June 2014).
165
Ibid.
166 Ibid. 167 Ibid. 168
Statewatch Observatory, “Council of the European Union: Policymaking through Council ‘Conclusions,’” [Retrieved on 30 May 2015].
169 Ibid.
170 See SC Res. 1373; SC Res. 1904; See also Derek Kravitz, Colm O’Molloy, and Jan Hendrik Hinzel, BBC News,
“Is it Right to Pay Ransoms?” (7 October 2014).
171 United Nations, Security Council, Sixteenth report of the Analytical Support and Sanctions Monitoring Team
submitted pursuant to resolution 2161 (2014) concerning Al-Qaida and associated individuals and entities, S/2014/770, (29 October 2014).
172
U.S. Department of the Treasury, Remarks of Under Secretary for Terrorism and Financial Intelligence David Cohen before the Center for a New American Security on “Confronting New Threats in Terrorist Financing,” [Press Release], 4 March 2014.
20
ransom payments alone.173 These figures are also supported by the Sixteenth Report of the Analytical Support and Sanctions Monitoring Team (Sanctions Monitoring Team) pursuant to Security Council Resolution 2161 (2014) concerning Al-Qaeda and associated individuals and entities.174 The report lists similar figures for various terrorist organizations, such as an
estimation by one member state that ISIL collected between $35 million and $45 million from ransom payments from 2013 to 2014.175 The U.S. Permanent Representative to the United Nations, Ambassador Samantha Power, stated that kidnapping for ransom is “today’s most significant terrorist financing threat” because, after amassing over $120 million in funding for terrorist organizations in the last 10 years, “it has proven itself a frighteningly successful tactic.”176
Officially, the national policies of States are in line with their international obligations.177 But as terrorist organizations continue to use kidnapping for ransom as a significant source of income, it is clear that not all States follow their own policies.178 The Sanctions Monitoring Team cited the investigation by The New York Times in stating in its report that governments continue to be accused of paying or facilitating the payment of ransoms, though these allegations are always met with denials.179 This next section will discuss the national policies of a few different States as well as note allegations of non-compliance.
This section will focus on the policies of the United States, the United Kingdom, and several countries in Europe, for a few reasons. First, while kidnapping for ransom does not only happen to westerners, it is only when the hostage is a westerner that the ransoms are enormously high
173 Rukmini Callimachi, The New York Times, “Paying Ransoms, Europe Bankrolls Qaeda Terror,” (29 July 2014). 174 UNSC, Sixteenth report of the Analytical Support and Sanctions Monitoring Team, S/2014/770, (29 October
2014).
175
Ibid.
176 United States Mission to the United Nations, Statement by Ambassador Samantha Power, U.S. Permanent
Representative to the United Nations, on the Adoption of UNSCR 2133 on Kidnapping for Ransom, New York, (27 January 2014).
177 See Derek Kravitz, Colm O’Molloy, and Jan Hendrik Hinzel, BBC News, “Is it Right to Pay Ransoms?” (7
October 2014); See M.J. Hennigan, Paul Richter and Alana Semuels, Los Angeles Times, “Slaying of James Foley Revives Debate on Paying Ransom to Terrorists,” (21 August 2014).
178
See United Nations, Security Council, Sixteenth report of the Analytical Support and Sanctions Monitoring Team submitted pursuant to resolution 2161 (2014) concerning Al-Qaida and associated individuals and entities,
S/2014/770, (29 October 2014); See also Rukmini Callimachi, The New York Times, “Paying Ransoms, Europe Bankrolls Qaeda Terror,” (29 July 2014).
179
United Nations, Security Council, Sixteenth report of the Analytical Support and Sanctions Monitoring Team submitted pursuant to resolution 2161 (2014) concerning Al-Qaida and associated individuals and entities, S/2014/770 (29 October 2014).
21
and each ransom payment becomes a significant source of income for terrorists.180 Second, the policies and levels of compliance of the U.S. and the U.K. appear to be unique. The U.S. and the U.K. were the only two States that had long standing and strict policies against the payment of ransoms to terrorist organizations and were the only States to be very public about it.181 The region of Europe is discussed partly because it is a regional source of westerners, but also
because many countries within Europe are suspected of being the top payers of large ransoms.182 The United States of America
The United States has consistently and publicly maintained a strict policy of not
negotiating with or paying ransoms to terrorists for over 200 years.183 The policy applies to both government and private actors.184 Specifically, it is illegal for an American citizen to engage in a transaction with an individual or organization designated as terrorist by the U.S. government.185 The motivation behind the policy is to protect all Americans abroad.186 According to a U.S. State Department spokeswoman, the U.S. government believes that paying ransoms would put “all Americans overseas at greater risk for kidnapping” and would also fund the terrorists groups that the U.S. is trying to combat.187
As late as August 2014, the U.S. government publicly defended its policy not to pay ransoms when ISIL released a video of the beheading of U.S. journalist James Foley.188 After Foley was kidnapped in November 2012, the U.S. government repeatedly told Foley’s family that they would face prosecution for financing terrorism if they paid a ransom to his captors.189
180
See United Nations, Security Council, Sixteenth report of the Analytical Support and Sanctions Monitoring Team submitted pursuant to resolution 2161 (2014) concerning Al-Qaida and associated individuals and entities,
S/2014/770, (29 October 2014).
181 See John McTernan, The Telegraph, “It Might Seem Hard-hearted, but Ransom Payments Only Encourage More
Kidnappings,” (3 September 2014).
182
See Rukmini Callimachi, The New York Times, “Paying Ransoms, Europe Bankrolls Qaeda Terror,” (29 July 2014).
183 See M.J. Hennigan, Paul Richter and Alana Semuels, Los Angeles Times, “Slaying of James Foley Revives
Debate on Paying Ransom to Terrorists,” (21 August 2014); See The Associated Press, The New York Times, “Obama: US Government Has Let Down Hostages’ Families,” (24 June 2015).
184 See M.J. Hennigan, Paul Richter and Alana Semuels, Los Angeles Times, “Slaying of James Foley Revives
Debate on Paying Ransom to Terrorists,” (21 August 2014); See also Haynes, Danielle. UPI. “U.S. Could Allow Families to Pay Ransoms for Hostages.” (27 April 2015).
185 U.S. Department of State, Daily Press Briefing, Deputy Spokesperson Marie Harf, (21 August 2014). 186 Ibid.
187 Ibid. 188
Karen DeYoung and Adam Goldman, The Washington Post, “After Foley Killing, U.S. Defends Refusal to Pay Ransom to Terrorist Groups that Kidnap,” (21 August 2014).
22
The family was told that there would be no negotiation and no ransom paid to obtain Foley’s release.190
While the U.S. government still maintained that it would not pay ransoms to terrorist organizations, it has been accused of violating its own policy.191 In 2014, the U.S. government was suspected of facilitating the payment of a ransom for an American hostage, Peter Curtis, being held by a terrorist organization since 2012.192 The U.S. government admitted to getting Curtis’ family in contact with the government of Qatar with the intent of securing his release, but asserted that it told the Qatari government not to pay any ransom.193 After Curtis’ release, his family issued a statement saying that the Qatari government told them that no ransom had been paid.194 In April 2015, the Federal Bureau of Investigation (FBI) disclosed its involvement in helping to facilitate a ransom payment to Al-Qaeda in 2012 for the release of an American hostage.195 The FBI admitted to providing intelligence to support the payment and to vetting a middleman for the family to use to pay the ransom, although the hostage was not released.196
To the families of victims taken hostage, the U.S. policy against the payment of ransoms to terrorist organizations is anything but clear.197 According to the Wall Street Journal, the families of multiple Americans taken hostage in Syria were all warned by senior White House officials that they would face prosecution if they attempted to pay a ransom, but were then repeatedly assured by FBI agents that they would never face prosecution.198 Many families filed complaints with the U.S. government stating that they received conflicting messages from the different government branches.199
Instead of ransom payments, the U.S. relies on rescue operations to secure the safe release of their citizens being held hostage.200 This option is not always successful.201 An
190
Ibid.
191 See Peter Baker, The New York Times, “U.S. Says It Told Qatar Not to Pay a Ransom,” (25 August 2014). 192 Ibid.
193
Ibid.
194 Ibid.
195 Adam Entous and Devline Barrett, The Wall Street Journal, “FBI Helped Facilitate Ransom for U.S. Hostage
Killed in Drone Strike,” (29 April 2015).
196 Ibid. 197 See Ibid. 198 Ibid. 199 Ibid. 200
See U.S. Department of the Treasury, Remarks of Under Secretary for Terrorism and Financial Intelligence David Cohen before the Center for a New American Security on “Confronting New Threats in Terrorist Financing,” [Press Release], 4 March 2014.
23
unsuccessful rescue operation was attempted for Foley.202 In December 2014, two hostages, one American and one South African, were killed in a botched rescue attempt by the U.S. It was the second attempt to rescue the hostages.203 In January 2015, an American hostage and an Italian hostage were both killed accidently in a U.S. drone strike.204
A week after announcing the drone strike, the U.S. government stated it was reviewing its policy that prohibited hostage’s families from paying ransoms to kidnappers and was even
considering creating an office to be a liaison between hostage’s families and the government.205 The recent hostage beheadings by ISIL have generated a lot of media attention.206 A recent poll taken by NBC News and the Wall Street Journal found that “94 percent of Americans say they have heard about the news of the beheaded journalists – higher than any other news event the NBC/WSJ poll has measured over the past five years.”207 With the media attention generating sympathy for the families of the hostages, the U.S. government likely faced new pressure to change its longstanding policy.
After a six month long review, U.S. president Barack Obama announced new changes to the U.S.’ policy, stating that the American government had failed to adequately help the families of hostages being held by terrorists.208 The president announced that families would no longer be prosecuted for paying ransoms to terrorists and can be helped by the U.S. government in
communicating and negotiating with the terrorists.209 The new changes will essentially mean that the while the U.S. government will continue to refuse to pay ransoms to terrorists, in accordance with international law, it will not apply the law when families decide to pay the ransoms.210 The top Counterterrorism advisor to President Obama stated that although the money from ransoms does fund the terrorist activity the U.S. is trying to stop, the U.S. government has “a
201 See U.S. Department of State, Daily Press Briefing, Deputy Spokesperson Marie Harf, (21 August 2014); See
also Kareem Fahim and Eric Schmitt, The New York Times, “2 Hostages Killed in Yemen as U.S. Rescue Effort Fails,” (6 December 2014).
202 U.S. Department of State, Daily Press Briefing, Deputy Spokesperson Marie Harf, (21 August 2014). 203 Kareem Fahim and Eric Schmitt, The New York Times, “2 Hostages Killed in Yemen as U.S. Rescue Effort
Fails,” (6 December 2014).
204 Peter Baker, The New York Times, “Obama Apologizes After Drone Kills American and Italian Held by Al
Qaeda, (23 April 2015).
205 Danielle Haynes, UPI News, “U.S. Could Allow Families to Pay Ransoms for Hostages,” (27 April 2015). 206
See Mark Murray, NBC News, “ISIS Threat: Fear of Terror Attack Soars to 9/11 High, NBC News/WSJ Poll Finds,” (9 September 2014).
207 See Ibid.
208 The Associated Press, The New York Times, “Obama: US Government Has Let Down Hostages’ Families,” (24
June 2015).
209
Ibid.
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responsibility to stand with families as they make the most difficult decisions we could ever imagine.”211
The United Kingdom
The United Kingdom has also maintained a strict longstanding national policy against the payment of ransoms to terrorists.212 According to the U.K. government, the basis behind its policy is that paying ransoms fuels terrorist activity and incentivizes more kidnappings.213 Its current domestic legislation, The Terrorism Act 2000, makes it a crime for any individual to provide funds with a reasonable suspicion or reasonable cause to suspect that the funds will be made available for terroristic purposes.214 While its policy applies to both government and private actors, in practice, the U.K. government “has been known to turn a blind eye if U.K. firms and individuals pay ransoms.”215 The U.K. Foreign Office has acknowledged that it does involve itself in negotiations with kidnappers but denies making or facilitating ransom
payments.216 When a hostage is taken, the U.K. government also requests a media blackout, a tactic that has come under a lot of scrutiny recently.217 Family members of murdered hostages have described the tactic as being “gagged by the government.”218
In 2008, a news agency paid a ransom to a terrorist organization linked to the Taliban for the release of one of its employees.219 “The Foreign office was reported as furious” when it learned of the ransom payment.220 In 2014, a British teacher in taken hostage in Libya was released after an alleged ransom was paid, but the origin of the money is unclear.221 The family and the foreign office denied any knowledge of a ransom being paid.222
211 Ibid.
212 See Mark Murray, NBC News, “ISIS Threat: Fear of Terror Attack Soars to 9/11 High, NBC News/WSJ Poll
Finds,” (9 September 2014); See also Danielle Haynes, UPI News, “U.S. Could Allow Families to Pay Ransoms for Hostages,” (27 April 2015).
213 Home Office, “Counter-Terrorism and Security Bill,” [Retrieved 1 May 2015]. 214 Ibid.
215
Sarah Knapton and Alice Philipson, The Telegraph, “Release of British Hostage David Bolam Could Fuel Terrorism if Ransom was Paid,” (5 October 2014).
216 Cobain, Ian. The Guardian. “UK Hostage Strategy Scrutinized after ISIS Threatens Fifth Western Hostage.” (8
October 2014). 217 Ibid. 218 Ibid. 219 Ibid. 220 Ibid. 221
Sarah Knapton and Alice Philipson, The Telegraph, “Release of British Hostage David Bolam Could Fuel Terrorism if Ransom was Paid,” (5 October 2014).
25
The U.K. has toughened up its policy in the past few years, but has mainly targeted insurance companies.223 In 2014, the United Kingdom proposed a bill that would make the reimbursement of ransom payments by insurance companies a criminal offense if the company had any reason to suspect the ransom was paid to a terrorist organization.224 While already illegal under domestic law, the reimbursement of ransoms by insurance companies would close
loopholes in the old legislation and make the law more clear.225 While the bill has been criticized for not affecting the current state of the law considering the already clear position the U.K. has on the issue, a report by the U.N. suggests otherwise.226 The report found that not all London-based insurance brokers were aware that even indirect ransom payments that went through several intermediaries still violated the Security Council sanctions obligations.227
Europe
The investigation by The New York Times revealed that counterterrorism officials believe that Al-Qaeda now finances the majority of its training, weapons purchases, and recruitment from ransoms paid to secure the release of European citizens.228 The investigation found that it was European governments that almost exclusively paid the $165 million in ransom payments cited by the U.S. Treasury department to have been amassed by terrorist organizations since 2008.229 “Put more bluntly, Europe has become an inadvertent underwriter of
Al-Qaeda.”230
While the official national policies of these States, and the policy of the European Union, are against the payment of ransoms to terrorist organizations, some States are suspected of using loopholes that allow them to maintain their public policy and yet use government funds to pay
223 See Home Office, “Counter-Terrorism and Security Bill,” [Retrieved 1 May 2015]. 224 Ibid.
225
See Ibid.
226 Shane Croucher, International Business Times, “ISIS: Why Theresa May’s Ban on UK Insurers Paying Ransom
Claims Changes Little,” (24 November 2014); See United Nations, Security Council, Sixteenth report of the Analytical Support and Sanctions Monitoring Team submitted pursuant to resolution 2161 (2014) concerning Al-Qaida and associated individuals and entities, S/2014/770 (29 October 2014).
227 United Nations, Security Council, Sixteenth report of the Analytical Support and Sanctions Monitoring Team
submitted pursuant to resolution 2161 (2014) concerning Al-Qaida and associated individuals and entities, S/2014/770 (29 October 2014).
228
Rukmini Callimachi, The New York Times, “Paying Ransoms, Europe Bankrolls Qaeda Terror,” (29 July 2014).
229
Ibid.
