Part II

Part II

Response to kidnapping incidents

Chapter 4

Australia's no-ransom policy

4.1        The key policy shaping the Australian Government's response to the kidnapping of Australian citizens overseas is that the government does not pay ransoms. This policy existed in 1994 when Mr David Wilson was kidnapped in Cambodia. At that time, the three governments involved—the United Kingdom, France and Australia—were united in their decision not to pay a ransom. The Wilson family accepted the government's position but David's brother could not understand why 'support could not have been given to the Cambodian government's ransom plans'.[1] This vexed issue of the extent to which the government should become involved in assisting, facilitating or recognising the payment of ransom while upholding the principle of no ransom arose in both the Wood and Brennan cases.

4.2        In this chapter, the committee examines the rationale for this no-ransom policy, how the policy determines the response of government agencies to incidents of kidnapping and the way it is explained to the families of kidnapping victims.

The rationale for the no-ransom policy

4.3        The Department of Foreign Affairs and Trade's (DFAT) submission to the inquiry stated:

Our response to each kidnapping situation varies, according to the specific details of each case and location.

The underlying policy, however, is clear: the Australian Government does not pay ransoms. The no-ransom policy is standard across all our major international consular partners and many other countries as well, on the basis that paying ransom would encourage other kidnappings.[2]

4.4        This policy is made clear in DFAT's 'General Advice to Australian Travellers', made available on its Smartraveller website:

The Australian Government's longstanding policy is that it does not make payments or concessions to kidnappers. The Australian Government considers paying ransoms increases the risk of further kidnappings.[3]

4.5        As detailed in Part I of this report, kidnap for ransom can be a lucrative business and the payment of ransom by any party creates an incentive for individuals and groups to engage in kidnapping. The government's prime rationale in not paying ransoms is to avoid creating any incentive for Australian citizens to be kidnapped.

4.6        Further to this rationale are a number of domestic and international legal obligations on the government preventing the payments to certain groups or individuals. These legal obligations are discussed further in chapter 10 and were outlined in the Attorney-General's Department's submission to the inquiry. These legal obligations primarily relate to ransom payments that could be transmitted to or which support certain individuals or groups, particularly terrorist organisations. The provision of support or funds to terrorist organisations falls foul of provisions of both Australia's domestic criminal code as well its obligations under international law.

Support for the no-ransom policy

4.7        The committee did not receive any submissions or hear any evidence which suggested that the government should change its policy of not paying ransoms. Both the victims of kidnappings and their families spoke in favour of the policy. Dr Malcolm Wood told the committee:

DFAT made it very plain from the very first day when I asked the question that in no circumstances would the Australian government pay a ransom. I agreed with that, and the family as a whole agreed with that without reservation.[4]

4.8        Kidnapping victim, Nigel Brennan, also stated his opposition to the government paying a ransom:

In the press it has been construed that I expected the Australian government to pay a ransom. That is actually incorrect. Even before being kidnapped, I did not expect the government to pay a ransom, as that endangers the lives of other Australian citizens.[5]

4.9        This position was supported by Mr Brennan's sister, Nicole Bonney, who wrote in her submission:

In reality we would agree that governments should not pay ransom as it encourages the practice; however, we are aware that some governments do exactly this.[6]

4.10      One submission received by the committee emphasised the risk to family members overseas if the government were to consider changing their policy:

The merest hint that the Australian government may become involved in the ransoming of kidnap victims makes me apprehensive, because of the perception in the minds of some people that this is an indication that any ransom will be underwritten by our government, rather than an impecunious foreigner.[7]

4.11      The committee heard evidence from those with experience in dealing with kidnap situations that reinforced this view. It was asserted that the possibility of a government financing ransom raises the expectations of hostage takers in regards to the value of the hostage and the amount they will receive in exchange for them. One of the consultants engaged by the Brennan family told the Australian newspaper that it is impractical and highly inappropriate for governments to pay ransoms and that governments should be open with families about how this limits what government agencies can do in response to a kidnapping.[8]

Position of other governments

4.12      DFAT's evidence to the committee noted that the no-ransom policy to kidnapping cases is held in common with other governments:

The no ransom policy remains the cornerstone of our approach. It has been the consistent policy of successive Australian governments and is shared by our likeminded consular partners—namely, Canada, New Zealand, the United Kingdom and the United States. To do otherwise would only encourage the kidnapping of Australians and the kidnapping-for-ransom business more generally.[9]

4.13      The department also stated that it was not aware of any country that admits to paying ransom.[10]

4.14      Media reports of kidnappings of foreign citizens for ransom have often alleged that some governments were involved in the payment of ransom, particularly governments in Western Europe.[11] Some of these reports also alleged that foreign governments facilitated the meeting of hostage takers' demands by offers of foreign aid or other forms of assistance to local authorities.[12] The committee has not seen evidence to substantiate these reports and is not in a position to comment beyond the evidence DFAT has provided.  

Constraints on the government's response to kidnappings

4.15      In international kidnapping cases, the Australian Government is bound to respect the sovereignty of the State in which the kidnapping takes place. This will mean that the government is often limited to pursuing the release of an Australian hostage through diplomatic channels and through assistance to local authorities. The degree to which Australian government agencies can become involved on the ground, and the range of actions open to them, will differ from cases to case and country to country.

4.16      In situations where Australian agencies can be directly involved in a case of an Australian kidnapped for ransom overseas, the government's clear policy on not paying ransom places considerable limitations on the kind of response that can be undertaken. The options left open to agencies include:

4.17      Each of these options is fraught with difficulties and significant risks—the most serious being the possible death of the hostage. This risk is clear and present when government policy is adamantly against meeting the key demand of hostage takers in kidnap and ransom cases, as Nigel Brennan argued in his submission:

By offering the kidnappers no hope of receiving any payment for keeping the kidnapped person alive and returning them home safely, the kidnappers have no incentive to do so. People like those who kidnapped me are clearly not taking people for ideological reasons, so failure to address their financial motives is a sure way to get people killed.[14]

4.18      Balanced against the risk to the hostage if ransom is not paid are the increased risk of Australians being targeted in the future by hostage takers and the risk of the hostage not being released following the payment of ransom, as the Australian Federal Police (AFP) noted:

The difficulty in these scenarios is the fact that there have unfortunately been cases where, even with the payment of a ransom being effected, the individual is not released...typically, you do not know whom you are dealing with at the other end of the phone; you have not necessarily been able to establish their credentials, particularly in failed states...There is the potential, unfortunately, to make significant payments to individuals and not secure the release of the victim.[15]

4.19      These risks underscore the rationale for the no-ransom policy as well as problems that can arise in negotiating with those claiming to represent a kidnapping group.

Negotiating for release without ransom

4.20      Identifying a way to influence or pressure those behind a kidnapping in a way that does not involve a ransom or material reward is the primary means for government agencies to negotiate a release within the limits of the no-ransom policy. The use of Australia's intelligence networks is, in these situations, vital.

4.21      In its submission to the committee, DFAT stated that its role in responding to kidnapping events included gathering information and intelligence that could be brought to bear on the situation. DFAT stated that, where appropriate, they will work closely with their colleagues in other governments, particularly Australia's key consular partners. It noted that:

In some cases, other foreign services may have detailed on-the-ground knowledge or influence. This cooperation can be invaluable in providing access to additional information or insights, including into the circumstances of the location concerned and the group or organisation responsible for the kidnapping or adding pressure or influence on the kidnappers.[16]

4.22      DFAT noted that it would also work with Australian and international non-government organisations that may have expertise in the area or location that a kidnapping has occurred.[17] In some cases, it would work with local intermediaries, 'who may be able to provide further information or insights, or bring influence to bear'.[18] The AFP also told the committee that, on occasion, it would make use of third-party intermediaries to provide information and assist in their efforts to negotiate in kidnapping cases.[19]

4.23      The committee heard that the use of third-party intermediaries was pursued in both the Nigel Brennan and Douglas Wood cases. Nicole Bonney stated in February 2009 that the Brennan family were informed of a contact the Royal Canadian Mounted Police (RCMP) had made in Somalia who they believed would be able to generate the release of the hostages.[20] In May 2009, the family were informed that this contact had been unable to obtain a proof of life from the kidnappers and the strategy involving this intermediary had failed.[21]

4.24      Malcolm Wood stated that he and the Wood family were kept regularly informed as to DFAT's meetings with possible intermediaries with the kidnappers but it is unclear whether any of these intermediaries were used or whether any direct negotiations took place.[22] Dr Wood told the committee that he did not believe that the response team in Baghdad had any direct contact with the kidnappers:

I believe that if they had they would have told us. Nick Warner had contact with various characters, some of whom were pretty shady, including the people who presented the ransom note. His difficult task throughout was to gauge how trustworthy people were and whether in fact they had Douglas.[23]

4.25      The reliability and trustworthiness of any possible intermediaries is a key difficulty for agencies involved in negotiating the release of hostages. The issue is exacerbated in countries where Australia and its partner governments have little presence or limited intelligence capabilities.[24]

4.26      The interaction between any Australian government official and those who belong to or have influence over the kind of criminal or militant groups that engage in kidnappings is of concern. The committee notes, however, that all such activities are required to be carried out within the framework set by the government's no-ransom policy and its domestic and international legal obligations.

4.27        The evidence before the committee suggests that the utility of such intermediaries is limited without some further incentive being offered to the kidnappers. In relation to the specific cases considered in this report, the government was unable to negotiate the release of the hostages through the use of intermediaries.

The military option

4.28      The option of a rescue operation is a high risk operation for all involved on the ground. In its submission to the committee, the Department of Defence stated that the Australian Defence Force (ADF) 'maintains contingency plans for select response capabilities, including kidnap recovery options overseas'.[25] Defence noted that 'the capacity of the ADF to effect kidnap recovery operations is contingent on a number of external factors. Recovery operations are not feasible or advisable in every case'.[26] DFAT also raised the possibility of a military option to respond to kidnapping cases but submitted:

While our approach will always be based on exploring all available options, the reality is that this option is rarely feasible and unlikely to be deployed. This is due to safety concerns for both the hostage and Defence personnel, as well as complex practical and legal issues preventing an operation in another country.[27]

4.29      The victims who participated in this inquiry and their families also held strong reservations about any rescue operation being conducted. Dr Wood told the committee:

Fairly early the family asked Foreign Affairs about the range of their activities, including rescue. I had heard again from an academic whom I had consulted that the prospects of a successful rescue in historic kidnapping cases were pretty dim—quite a low percentage. The family basically said to Foreign Affairs, 'We can't demand that you do or don't attempt rescues, but we're concerned. As far as we're concerned, an attempted rescue perhaps should be a last resort because of the risk of mischance—accident, killing.' They never really told us what their position was, except to say a number of times, 'All options are on the table'. I took this to be code for 'of course rescues will be attempted'.[28]

4.30      Nigel Brennan outlined to the committee his opposition to such operations:

...with regard to rescue attempts: that should never, ever be an option, because they usually end in disaster with hostages dying and possibly Army personnel that are tasked to go in. I felt uncomfortable enough having an extraction team—guys who were married who were risking their lives for mine.[29]

4.31      The risks involved in any rescue operation were underscored by the deaths of Andrew Thirsk and three Britons in Yemen in 1999; killed during a military assault by Yemeni government forces on the camp of the kidnappers, the Aden-Abyan Islamic Army. Mr Thirsk and the other victims were part of group of 16 sightseeing in Yemen when they were abducted. Another Australian who was part of the group, Catherine Spence, survived the rescue operation.[30]

4.32      As noted by Defence and DFAT, the possibility of a rescue operation being conducted by the ADF would be contingent on a range of factors and would not be feasible in every case.

Negotiating on behalf of another party

4.33      Evidence before the committee suggested that the government's no-ransom policy does not preclude government agencies from negotiating some form of payment to the kidnappers on behalf of family members or another party. In the case of Nigel Brennan, the committee heard that AFP negotiators acted on behalf of the family to offer a payment of up to US$250,000 for the release of the hostages.

4.34      Nicole Bonney reported that the Brennan family were asked by AFP officers in the first week of the kidnapping how much money they would be able to make available within 24 hours.[31] Nicole Bonney submitted that at the beginning of the kidnapping the family were opposed to the paying of ransom. However, on being asked by AFP officers as to their net worth, the family reversed its position and 'indicated that they would be prepared to pay a ransom for Nigel's safe release'.[32] For the Brennan family, the question as to how much money they could secure indicated that the AFP would negotiate a ransom payment with the kidnappers. Nicole Bonney told the committee: 'to our thinking this was clearly a cash ransom'.[33]

4.35      The issue of whether the money offer to the kidnappers constituted ransom payment was particularly ambiguous. DFAT was clear in its evidence to the committee that its 'basic starting point is that the government will not negotiate a ransom payment'.[34] Nicole Bonney submitted that the money raised by the family to offer the kidnappers was explained by DFAT and the AFP as 'costs involved that would cover the outlay the kidnappers had incurred' and that 'this word play was intended to convince the family that they were not in reality paying a ransom'.[35] Nicole Bonney told the committee:

The Australian Government continued to perpetuate this confusion of ransom by ensconcing the wording of the $US250,000 as costs, when it was clearly a ransom being paid for by the Brennan family...It was evident to our family that we were paying the ransom, however, all negotiations in relation to ransom were undertaken by the Australian Federal Police and the RCMP in Nairobi. I was under direct instruction to deflect all discussion with regard to ransom with the kidnappers to the negotiators in Nairobi.[36]

4.36      While the evidence indicated that the AFP was involved in negotiating a financial payment on behalf of the Brennan family, the distinction between a ransom payment and 'costs' incurred by the kidnappers is not clear. Irrespective of this distinction, government involvement in the negotiation of a payment or a ransom does carry considerable risk. Nicole Bonney argued:

All evidence we have since gleaned from NGOs and private K&R [kidnap and ransom] companies indicates that discussions between governments and kidnappers increases kidnappers' expectations of substantially large ransoms being paid by those governments. The stance of not paying a ransom yet negotiating for the Brennan family to pay a ransom had a twofold effect. It took considerably longer to gain Nigel's release and it was considerably more costly than previous land based kidnappings in Somalia.[37]

4.37      The confusion felt by the family at the government's participation in the negotiation of a payment to the kidnappers increased when they were informed that DFAT and the AFP could not be involved in or assist in the facilitation of any payment over US$250,000.[38] According to the Brennan family, DFAT and the AFP informed them that this amount was mandated by the Australian and Canadian governments as an amount representing costs and that anything over that amount would, therefore, constitute a ransom payment.[39]

4.38      This decision by government agencies to set a limit on the amount that they could be involved in negotiating or facilitating points to the tensions involved in any government participation in such an interaction. Government agencies need to limit their exposure to any involvement in a ransom payment. However, the fact that government agencies are involved in negotiations gives rise to a legitimate concern that the kidnappers will have higher expectations as to the importance of a hostage and the payment they might receive for them. 

4.39      Furthermore, the ambiguity and confusion surrounding any government involvement in negotiating a payment on behalf of others is bound to create significant levels of confusion and distress for the families of those in captivity.  

Allowing others to negotiate a ransom payment

4.40      In some cases involving Australians kidnapped overseas, the victim's employer has stepped in to resolve the hostage situation. Such negotiations have frequently resulted in the victim's firm, generally through the engagement of its insurance company and a specialist K&R consultant, paying a ransom to secure the release of hostages. These cases have typically involved Australian employees of resources companies operating in regions such as West Africa where kidnappings are commonplace. In such cases, the Australian government takes a step backwards.

4.41      DFAT noted in its submission that it was open to others outside of government taking the lead in responding to kidnapping cases:

If the kidnap victim is in the region as an employee, the employer may have their own avenues to explore. Some employers choose to employ a private contractor to take the lead in negotiations. Employers may also choose to act through their insurers, as has happened in hostage cases related to piracy.

In other situations, the victim's family might nominate or engage a private contractor to lead the response.[40]

4.42      In the department's view, these situations 'are entirely appropriate and it is open to employers and families to take whatever approach they consider most effective to achieve resolution'.[41] In the following chapter, the committee considers the implications for a family contemplating paying a ransom but without the wherewithal of a well-resourced corporation to do so.

Communicating the no-ransom policy

4.43      As noted previously, DFAT includes a statement on its no-ransom policy in the 'General Advice to Australian Travellers' section of its Smartraveller website. The policy is restated elsewhere on the website in the travel bulletin on the 'Kidnapping threat worldwide' and in country specific travel advisories where there is a perceived risk of kidnapping.[42] DFAT stated in its submission that:

While we highlight the kidnap threat effectively in our travel advisories and have made clear publicly the no-ransom policy, we are in the process of making this fundamental principle clearer in each relevant travel advisory and in other relevant travel publications.[43]

4.44      DFAT told the committee that in terms of responding to cases of kidnappings and explaining the policy to families:

We make it absolutely clear that we cannot pay that ransom—that, if a ransom is required, that is not something that the government can do...We will be as direct as we can and provide as frank advice as we can.[44]

4.45      In the cases under the committee's consideration, however, the families of kidnapping victims were often confused by the messages received from the government departments. As described above, the no-ransom policy was clearly explained at the outset but this message was then muddled by instances such as when the Brennan family were asked how much money the family could put together for a payment.

4.46      In the Brennan case, the communication of the no-ransom policy was confused further by the decision to negotiate a payment of 'costs' to the kidnappers. As noted above the Brennan family did not differentiate this payment from a ransom and was frustrated by the limit put on the amount that could be negotiated with the kidnappers.

4.47      The evidence before the committee suggested that DFAT did not adequately explain to families the no-ransom policy and its implications in regards to what actions government agencies could take in response to kidnappings. One of the recommendations of the internal review of the Brennan case, conducted by former DFAT Deputy Secretary, John McCarthy, described in DFAT's submission was that:

The Government must make clear to next of kin from the outset what it can and cannot do in an international kidnapping case, including an explanation of the no ransom policy and its implications for the handling of kidnapping cases.[45] 

4.48      DFAT stated in it submission that it was preparing a written guide for families on what to expect in kidnapping situations.[46] DFAT told the committee that such advice is currently delivered orally.[47]

Conclusion

4.49      The committee agrees with the Australian Government's no-ransom policy. The rationale for the policy is sound: ransom provides an incentive for and emboldens potential hostage takers, it may finance terrorists' activities, and the payment of a ransom risks breaching Australia's domestic and legal obligations. The committee agrees that any involvement of the Australian Government in the payment of a ransom would increase the risk of kidnapping for Australian citizens abroad.

4.50      Australia’s no-ransom policy is consistent with that of its major allies and the broader international community under the umbrella of the United Nations. The payment of ransoms undermines the cooperation of States endeavouring to prevent or contain future acts of hostage-taking and their efforts to starve terrorists of the means to finance their activities. The committee recognises the importance of the international community remaining united in its efforts to discourage future kidnappings.

4.51      The committee notes the issues raised by the Brennan family with regards to the involvement of government agencies in negotiating a limited payment, financed by the family, to the kidnappers. The committee is concerned at the participation of government officials in any communications with those connected to kidnapping which involve the negotiation of monetary or material offers. While the committee believes that agencies should be open to all options that might secure the release of Australians who have been kidnapped, it should only pursue those that fall within the framework of the no-ransom policy and Australia's legal obligations. The involvement of government officials directly in any monetary or material offer to kidnappers threatens to undermine the rationale of the government's no-ransom policy which states clearly that no payments or concessions will be made to kidnappers. The committee is concerned that any ambiguity in regards to this issue has the potential to put Australians at greater risk.

4.52      Finally, the committee believes that it is important for those agencies involved in kidnapping cases to be clear with families from the beginning as to the details of the government's no-ransom policy and what agencies can and cannot do in regards to ransom payments. The committee supports the proposal to issue written guidelines to families.

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