Towards holistic transnational protection: an overview of international public law approaches to kidnapping.

Author:Bailliet, Cecilia M.
 
FREE EXCERPT

This article assesses dilemmas presented by the global phenomenon of kidnapping. It highlights the challenge presented by failed or semi-failed states, the current reliance on private actors to provide assistance in the face of non-state violence, protection gaps in the transnational legal framework, and the pursuit of asylum as a remedy. It describes the evolution of civil society reclamations for cosmopolitan justice in past situations of state directed enforced disappearance in the Americas to current appeals for communitarian justice in non-state actor kidnapping epidemics. The conclusion calls for innovation in legal institutions and norms addressing the protection needs of victims, as well as broader strategies to tackle the root causes of inequality, poverty, and corruption which have enabled kidnapping to escalate as an industry.

  1. INTRODUCTION

    [P]ublic security is the duty and exclusive obligation of the State, strengthens the rule of law, and is intended to safeguard the well-being and security of persons and protect the enjoyment of all their rights.

    --Ministers Responsible for Public Security in the Americas, October 2008 (1)

    The global criminal phenomenon of kidnapping is on the rise around the world, increasing at alarming rates in countries such as Algeria, Argentina, China, Mexico, Venezuela, Brazil, Colombia, Ecuador, El Salvador, Georgia, Guatemala, Honduras, Afghanistan, Haiti, India, Indonesia, Iraq, Israel & Palestine, Kenya, Lebanon, Nigeria, Pakistan, the Philippines, Russia, Somalia, Sudan, Saudi Arabia, and Yemen. (2) The states with the highest kidnapping rates correlate with the characterization of "failed/failing state": in which the rule of law and civic trust is deemed to be extremely weak, corruption is endemic, and governance is fragmented. (3) In addition, these states demonstrate high levels of poverty, unemployment, income inequality, stratified social classes, and lower development resulting in the deprivation of a guarantee of basic human security to citizens. (4) At the root of insecurity is a foundation of a failure to fulfill social and economic rights. Essentially, it may be argued that, in part, kidnapping epidemics are the fruit of social injustice. (5) From Weber's perspective, the state has lost its monopolization of organized violence, and civil society has lost enjoyment of a domestic zone of peace. (6) Indeed, the Preamble of Brazil's National Plans of Actions for the Promotion and Protection of Human Rights sets forth: "Kidnapping ... may not be considered normal or even tolerated in a state and in a society that claims to be modern and democratic." (7) The notion of the rule of law is rendered opaque, as judicial systems prove ineffective in penalizing those involved in kidnapping. While private security companies grapple with securing release of hostages, individuals and families are frustrated with the inability of states to prevent abductions. Some pursue cosmopolitan preventive/responsive measures by seeking asylum on the basis of high risk of kidnapping. (8) Others choose to stay in pursuit of communitarian aspirations to reclaim the nation from criminal gangs and assist the state by participating in restoration of the rule of law and non-violence. (9)

    This article highlights civil society reclamations for justice in response to kidnapping, reviews accountability gaps within transnational law, and calls for the evolution of normative protection responses to the global kidnapping market in which private actors form part of both the cause and solution. Part II provides an overview of kidnapping as a transnational criminal activity, identifies the elements of the crime, reviews its connection to human rights violations by identifying cases and reports from UN and regional human rights bodies, and presents humanitarian and international criminal law dimensions. Part III gives an historic overview of kidnapping as state terrorism and the identification of the international crime of enforced disappearance. Part IV discusses the emergence of kidnapping, first by non-State actors, highlighting Latin America and the impact of two particular cases, Marti and Blumberg, and second, by underscoring the role of private companies in providing solutions. Part V assesses the provision of asylum as an important but often neglected aspect of international protection, reviewing select cases to highlight the need for increased attention. Part VI concludes by calling for improved harmonization among transnational actors as well as closer analysis of the public/private dimensions of the causes and solutions to the global kidnapping crisis.

  2. KIDNAPPING AS TRANSNATIONAL CRIMINAL ACTIVITY

    Kidnapping has evolved from constituting a means/weapon of warring gangsters, tribes, family feuds, or other groups to forming an actual profession/end in itself. The principal consequence of this change is the shift from targeting persons affiliated with these groups to civilians chosen on account of perceived wealth. To paraphrase Boaventura de Sousa Santos, there has been a "conversion of the human body into the ultimate commodity." (10)

    Although kidnapping now affects the middle and working classes, victims are often characterized as belonging to upper classes or having imagined wealth. (11) Kidnappers also target less wealthy younger persons because they lack the protection of body guards and armoured cars. (12) Furthermore, specific targeting of persons who have family members who have relocated abroad is common, given the assumption that they will have access to economic resources to pay higher ransoms. The payment of high ransoms can completely wipe out family savings, leaving the victimized family destitute. To make matters worse, governments rarely provide full restitution of economic loss to these victims. (13)

    Invisible criminal networks transcend borders. In Resolution 2002/16 of 24 July 2002, the UN Economic and Social Council indicated concern for the growing tendency of organized criminal groups to resort to kidnapping. (14) At the base is the purpose of extortion as a method of accumulating capital with a view to consolidating criminal operations and carrying out other illegal activities. (15) The UN Economic and Social Council strongly condemned the world-wide practice of kidnapping. Kidnapping is an element of the evolution of transnational crime as a business threatening local, national, regional and global security. (16) It is conducted by professional kidnappers; (17) gangs also dealing in narco-trafficking, illicit trade in firearms, money-laundering, trafficking of persons; (18) insurgents/rebels (FARC in Colombia, Afghanistan, Iraq); (19) state security forces; (20) terrorist groups (Russia, Peru, Philippines); (21) common criminals (Haiti, Mexico, Iraq); (22) and other actors, such as those engaged in bride kidnapping (Kyrgyzstan, Turkmenistan, Georgia, China, Uganda, Uzbekistan, Ethiopia). (23)

    In 2008 it was reported that organized crime gangs had exported the "kidnapping industry" to California, abducting Mexicans living in San Francisco and holding them in Tijuana, Mexico. (24) Spain reported that Moroccan immigrants were being kidnapped and ransom demanded from their family members in Morocco. (25)

    Furthermore, the targeting of innocent civilians by groups engaged in the pursuit of violence has resulted in characterization of these acts as "terrorism", or in the alternative that kidnapping is used to finance and facilitate terrorism, thereby escalating crime fighting initiatives to anti-terrorist strategies which are subject to international support and attention. (26) Nevertheless, common concepts of terrorism refer to the use of violence to coerce or intimidate governments or societies, in order to achieve political, religious, or ideological objectives. (27) At times kidnapping may fall into this framework, but most often the motive is sheer greed.

    1. Elements of Kidnapping

      The UN Economic and Social Council has characterized kidnapping as the unlawful detention of a person against his will for the purpose of demanding illicit gain, economic gain, or other material benefit; or in order to oblige someone to do or not do something in exchange for liberation of the victim. (28) Kidnapping is a criminal offence in national systems, however its motive is increasingly for private economic gain, incidentally spreading fear among the public.

      The common elements of kidnapping as a crime are:

      1. The illegal seizing, carrying off or deprivation of liberty of an individual without consent.

      2. The use of violence, the threat of violence and/or fraud and deception in the commission of the offence.

      3. The holding of the victim in a place that could not be found.

      4. [With] the specific objective of economic or financial gain and/or political or other influence, including through the practice of extortion. (29)

      Escalation to characterization as an aggravated crime occurs in circumstances in which kidnappers seek ransom or profit, engage in a conspiracy, use force or arms, result in death or injury (or threat therefore), torture, cruel mistreatment, psychological harm, or endangerment of the moral development of the victim (this is generally understood to be exposure of minors to drugs, alcohol, sexual acts, etc.). (30) Aggravated classification is also present in cases involving misrepresentation as a state authority, combination with assault on public or private mode of transportation, commission by a state official, commission by persons in security or insurance business, detention for a set period of time, sexual exploitation or forcible marriage, or coercion of the state to release a detainee, and so forth. (31) Domestic penalties range from imprisonment of between 1-10 years, and in the event of aggravated circumstances 10-20 years. (32) An unfortunate negative consequence of states' improved crime fighting against professional kidnapping tings is that that it allows smaller, more unprofessional...

To continue reading

FREE SIGN UP