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Home EJIL Analysis Refusing to Negotiate Can Have Tragic Consequences

Refusing to Negotiate Can Have Tragic Consequences

Published on September 9, 2014        Author: 

bellish2Jon Bellish is the Project Development Manager at the One Earth Future foundation and a fellow at the Ved Nanda Center for International & Comparative Law at the University of Denver Sturm College of Law.

On August 19, the Islamic State in Iraq and Syria (ISIS) released a video showing the beheading of American journalist James Foley, after the United States government refused to pay a nine-figure ransom. Foley’s execution prompted a debate about the propriety of paying ransoms:  on the one hand, paying can save the life of the captured hostage; on the other hand, paying ransoms fuels the very activity that gave rise to the need to pay a ransom in the first place.

Earlier this week, ISIS released another video, this one claiming to show the beheading of another American freelance journalist, Steven Sotloff. The video depicting Mr. Sotloff’s murder also showed another hostage, thought to be a British national, which has led to pressure on the U.K. government to negotiate with ISIS for his release. British Prime Minister David Cameron continues to remain faithful to the U.K.’s 40 year-old policy of not making concessions.

The United States also has a no-concessions policy and will not negotiate with hostage takers, and also encourages its citizens not to. Other countries have paid ransoms and secured the safe release of their citizens, including other journalists held by ISIS.

Which policy is the better one?  There appears to be momentum towards a ban on paying ransoms.  Because of the rise in kidnapping for ransom as a means of financing terrorism in recent years, in January 2014, the United Nations Security Council unanimously adopted a Resolution calling on states to refuse to pay ransoms to terrorists and also work with the private sector to respond to terrorist kidnappings without paying ransoms. On August 15, 2014, the Council issued Resolution 2170 directly addressing the various threats posed by ISIS. That Resolution expressed the Council’s determination to secure the safe release of hostages taken by terrorist groups without the payment of ransoms.

This is not the first time there has been a push for a ransom ban. Only a couple of years ago, some argued for a ban on paying Somali pirates the huge ransoms that had been fueling their business model, a model that led to the capture of thousands of seafarers and receipt of some $220 million in ransom payments since 2011.

In an article set to be published next month in the Cornell International Law Journal, Professor Yvonne Dutton and I analyze a potential piracy ransom ban from legal, practical, and ethical standpoints. While sympathetic to the arguments in favor of and against a ransom ban, we conclude that a ban could serve as an effective deterrent only if it is unequivocally and universally employed—a situation we conclude is unlikely. Though there are some important distinctions between paying ransoms to pirates and to terrorists, the issues considered in the article are worth considering in light of the latest atrocities perpetrated by ISIS.

Under American law, receiving a ransom payment is illegal in the context of kidnapping, extortion, and bribery, but only in the case of bribery is the payment of a ransom illegal. This distinction suggests that, in the cases of kidnapping and extortion, the payer of a ransom is treated as a victim rather than a conspirator under the theory of duress.

Particularly relevant to the tragic events perpetrated by ISIS, Prof. Dutton and I note that United States law is unclear as to the legality of a private individual paying a ransom to a terrorist under 18 U.S.C. § 2339B, which criminalizes the “knowing[]” provision of “material support or resources to a foreign terrorist organization.” Although the statute’s language suggests that specific intent to further terrorist activity is not required, the closest Supreme Court case on point, Holder v. Humanitarian Law Project, did not consider the voluntariness of the payment and explicitly declined to “address the resolution of more difficult cases that may arise under the statute in the future.”

As a purely practical matter, a pirate ransom ban suffers from coordination problems stemming from both political and economic incentive structures. Politically speaking, one state’s ransom ban would negatively affect the citizens of many states, since ships flagged in (and under the primary jurisdiction of) one state are likely to be both owned and crewed by citizens of several other states. This suggests that the world’s seafaring nations would not be likely to support such a ban. Ditto the flag states and states of incorporation of the world’s commercial fleets, the latter of which have strong financial and ethical reasons to allow payments, and the former of which rely on shipping registration fees for significant amounts of national revenue.

Because anything short of a universal ban would be worse than useless and a universal ban is all-but-impossible to achieve, continuing to pay ransoms to pirates is the soundest course of action, notwithstanding its long-term consequences.

To be sure, there are key differences between the situation faced by hostages of Somali pirates and that of journalists in the hands of terrorist groups like ISIS. The largest ransom ever paid to Somali pirates was $13.5 million for the Irene SL. ISIS was reportedly asking for €100 million. Additionally, though the economic and human costs of maritime piracy are grave, they pale in comparison with the damage wrought by terrorists over the last decade alone, suggesting that the additional long-term benefits may be worth the short-term sacrifices. Finally, national governments have much deeper pockets than and lack the insurance coverage of large shipping companies, making the downsides to paying ransoms much greater for the United States government in Mr. Foley’s and Mr. Sotloff’s cases.

Paying a ransom to an international criminal syndicate is – irrespective of the context – about as close to a Faustian bargain as is imaginable. Not only is it making a deal with the devil, it is a choice between all but certain loss of innocent life in the short term and all but certain loss of innocent life in the longer term. Maritime piracy is no longer on the front pages, despite the fact that 37 hostages remain in pirate captivity, but the terrible deaths of James Foley and Steven Sotloff remind us that deals with the devil should never be taken lightly, let alone forgotten or ignored.

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