Taking Stock at 40: The UN Convention Against the Taking of Hostages

This week, 40 years ago, the United Nations General Assembly adopted the International Convention Against the Taking of Hostages. Upholding the rights to “life, liberty, and security of person” enshrined by the Universal Declaration of Human Rights, the 1979 Convention sought to stem the growing contagion of hostage-taking terrorism that had plagued the prior decade.

A product of its time, the Convention emphasized preventing future terrorist attacks by punishing perpetrators. But now, several decades later, it’s clear that stopping hostage taking requires greater coordination on issues unaddressed by the Convention.

By 1979, hostage taking had become a global crisis. From the coordinated “Black September” hijackings of three international flights by the Popular Front for the Liberation of Palestine (PFLP), to the 444-day takeover of the U.S. embassy in Tehran, hostage taking was a favored tactic of terrorists and revolutionaries in pursuit of attention, concessions, or escape. Groups like the PFLP, the Japanese Red Army Faction, and the Baader-Meinhof Gang, a far-left militant group in West Germany, regularly hijacked commercial airplanes, holding hundreds of multinational passengers captive to their demands. In the decade before the UN Convention was adopted, there was an airplane hijacking every five and a half days.

It was thus “urgently necessary to develop international cooperation between States in devising and adopting effective measures for the prevention, prosecution and punishment of all acts of taking of hostages as manifestations of international terrorism.” As one of the UN’s 19 universal legal instruments against terrorism, the Convention set a global standard, establishing a universal definition of “hostage-taking”:

Any person who seizes or detains and threatens to kill, to injure or continue to detain another person (hereinafter referred to as the “hostage”) in order to compel a third party, namely, a State, an international intergovernmental organization, a natural or juridical person, or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offence of taking of hostages (“hostage-taking”) within the meaning of this Convention.

The Convention’s primary focus on swift and just punishment for hostage takers provides the scaffolding for litigating international crimes, outlining how and where hostage takers should be prosecuted. This is a result of the Convention’s emphasis on deterrence by punishment: an effort to curb international hostage taking by penalizing perpetrators. While perhaps fitting in 1979, the intervening four decades have thrown into relief the other coordination problems that the Convention missed: deterrence by denial, hostage recovery, and domestic hostage taking.

Deterrence by denial

Arguably more effective than deterrence by punishment is deterrence by denial: strategies that seek to prevent actions by making them less likely to succeed. After its peak in the 1970s, airplane hijacking declined in the 1980s and 90s. But this change was less likely an effect of the UN’s Convention than a dramatic change in airport security measures, designed to prevent hostage taking in the first place.

Beyond these security measures, States have taken varying approaches to what security personnel refer to as denial of benefits: “preventing hostage takers from enjoying the proceeds of their crimes,” by freezing, recovering, or otherwise negating ransom money. Colombia and Italy, notorious kidnapping hotspots, implemented hand-tying mechanisms that freeze families’ finances if they report a kidnapping to authorities. Countries’ “no concessions” policies obey a similar logic: If we make it clear that we won’t pay kidnappers their ransom demand, then our citizens won’t be kidnapped in the first place.

Unfortunately, such logic is flawed, often because targets have an incentive to cheat. Pronouncements against ransom payment sound good in theory, but families will do whatever they can when their loved one’s life is on the line. In 2007, leaders of the G8 countries agreed to “stamp out” ransom payments to terrorist groups. However, in the subsequent decade, some G8 leaders would provide hundreds of millions of dollars in ransom payments to al-Qaeda and the Islamic State. This is particularly devastating when one perpetrator holds hostages from countries with diverging policies. For example, the Islamic State’s French, German, Italian, and Spanish hostages were set free, while the American and British hostages were brutally killed. This suboptimal patchwork of legal regimes, in which some countries “take a hard line, and others are willing to talk,” suggests the urgency of coordinated deterrence.

Coordinated recovery

Second, the Convention is silent on the safe return of victims, and States have diverged dramatically in their approach to bringing hostages home. While some States rely on trading concessions or exchanging prisoners for hostages’ lives, others turn to private industry or the military. For instance, some corporations purchase kidnap and ransom insurance policies for their employees, which provide resources, including funding and crisis management personnel, to negotiate and facilitate ransom payment. States sometimes endeavor to rescue hostages through recovery missions, relying on foreign militaries or special forces operations. Sometimes they depend on official or non-official diplomatic engagement, or international organizations to facilitate hostages’ return. Taking advantage of these myriad approaches to hostage recovery, international coordination could improve efficiency and effectiveness in bringing captives home.

Domestic hostage taking

Third, the International Convention Against the Taking of Hostages “shall not apply where the offence is committed within a single State, the hostage and the alleged offender are nationals of that State and the alleged offender is found in the territory of that State.” In other words, the Convention is silent on domestic hostage taking, which represents more than 90 percent of hostage-taking incidents worldwide. Ignoring the violence when the perpetrator and victim are fellow citizens means that we are turning a blind eye to nearly all cases of this phenomenon.

This is important for combatting international terrorism because the groups with substantial expertise in kidnapping locals are often the groups with the interest and ability to target foreigners as well: the FARC and ELN rebel groups in Colombia, the Islamic State in Syria and Iraq, Abu Sayyaf in the Philippines. Attention to hostage taking within state borders would help world leaders understand the capabilities, intentions, and tactics when the same groups take foreign hostages.

Taking stock and looking ahead

Beyond these gaps, the Convention is indecisive on its central focus – how to punish hostage takers. Article 5 of the Convention allows both victims’ and perpetrators’ home countries to assert jurisdiction over a hostage-taking case. This becomes a problem when the relevant parties fail to coordinate on matters of extradition or sentencing.

For instance, in October, the U.S. military took custody of Alexanda Kotey and El Shafee Elsheikh – two of the four British-born Islamic State militants nicknamed “the Beatles” by their dozens of Western hostages. The foursome has been accused of torturing and beheading 27 hostages, including Americans James Foley, Steven Sotloff, and Peter Kassig. According to officials, Kotey and Elsheikh were taken into U.S. custody with the goal of eventually bringing them to trial in the United States. This fulfills a central aim of current U.S. hostage policy: to arrest, prosecute, and punish hostage takers “through a due process criminal justice system in the United States or abroad.” U.S. prosecutors seek to convict the two “Beatles” as “conspirators in hostage-taking resulting in death,” which carries a potential death sentence.

For the moment, the case remains in legal limbo, as Elsheikh’s mother seeks to prevent her son’s extradition and trial in the U.S. She has also sought to prevent British evidence sharing, without explicit legal assurances that her son will not be executed – a point the British government seems unwilling to uphold. According to Article 11 of the 1979 Convention, “State parties shall afford one another the greatest measure of assistance in connexion [sic] with criminal proceedings … including the supply of all evidence at their disposal necessary for the proceedings.” The coming months will provide an object lesson in how – and whether – this stipulation works.

The framers of the 1979 Convention could not have anticipated how much hostage taking would change over four decades, ultimately outgrowing the precipitating conditions of the original agreement. After the 20th century rise of airplane hijackings and embassy sieges, the 21st century has seen a dramatic spike in kidnappings, in which the hostage is taken to a new, often secret, location. This trend is exacerbated by changing technology’s effect on hostage taking and the growing risk of virtual kidnapping, in which perpetrators extort substantial sums without ever holding someone hostage at all. To combat these shifts, the next 40 years call for a renewed response to coordinating the prevention, prosecution, and punishment of hostage taking in all its forms.

Image: A banner calling for the release of Austin Tice, the only American journalist held captive in Syria, is displayed at the Newseum in Washington, DC on November 2, 2016. Photo by ANDREW CABALLERO-REYNOLDS/AFP via Getty Images

 

About the Author(s)

Danielle Gilbert

PhD candidate in Political Science at the George Washington University, 2018-2019 Minerva/Jennings Randolph Peace Scholar at the United States Institute of Peace, Fellow with the Bridging the Gap Project - Follow her on Twitter (@_danigilbert)