Humans as “Bargaining Chips”

It has been 20 years since the 9/11 attacks, and it is not a cliché to say that they did change the counterterrorism landscape. What followed was a robust reaction on behalf of states that committed to fighting terrorism, often at the expense of human rights, especially of terrorist suspects (see, for example, Duroy, 2022, on the use of “black sites”). Against a backdrop of controversial practices, human rights bodies and scholars have been relentless in their calls for effective human rights safeguards for terrorist suspects (Nowak (ed.), 2018, Scheinin (ed.), 2013). What 9/11 and the subsequent events did however not change is the lack of a victim-oriented approach to terrorism. In fact, following the 9/11 attacks, it became more obvious that states are ready to sacrifice the human rights of victims in the fight against terrorism. This became particularly clear in hostage-taking situations, in which states face the dilemma of succumbing to terrorist demands for the sake of hostages or appearing defiant and ready to stop terrorists from attacking more civilians. This has prompted a debate on whether states are allowed under international human rights law (IHRL) to balance the human dignity and human rights of hostages with national security or the rights of future victims, which is worth revisiting 20 years after the 9/11 attacks.

Hostages as “Bargaining Chips”

Terrorist hostage-taking for the purposes of extorting ransoms, securing the release of fellow fighters or broadcasting political ideologies has been a threat since the early 1970s. The founding of Al-Qaeda and the rise in its affiliated groups, including Al-Shabaab and Boko Haram, as well as the proclamation of the Islamic State (IS) in 2014 marked a new era of brutality against civilians and spread the horror of hostage-taking to countries previously considered safe, such as France and Australia. While there has been a decline in terrorist hostage-taking incidents since 2015, the number of hostages has increased because terrorist groups opt for large targets making terrorist hostage-taking an ever-lasting concern.

Of all the manifestations of terrorism, the taking of hostages has by far the most profound impact on victims. Hostages are being objectified and used as “bargaining chips” by their hostage-takers in their effort to succeed in their demands. This practice deprives hostages of their inherent human dignity. Unlike bombings that mainly threaten the right to life, the captivity of a hostage can amount to a violation of almost every human right with a prolonged post-incident impact on the quality of life of the victim. Hostages face threats to their life, are subjected to ill-treatment (which might include beatings, rapes, deprivation of food and water, and psychological abuses), are deprived of their liberty and privacy, are forced to convert to Islam or get married (A/HRC/24/47). The longer a hostage-taking incident lasts, the more profound its impact is on the human rights of hostages. According to IHRL, a state has a duty to take appropriate measures to prevent the taking of hostages, if it knows or ought to have known of an imminent risk, to end a hostage-taking incident by releasing hostages, to investigate the incident and any loss of life during the attack or the rescue operation and to compensate the victims (Galani, 2021; Galani, 2019). Yet, in many incidents, and for the reasons explained below, states have chosen to take a strict stance, refusing to act upon their obligations and subjecting hostages to secondary victimisation.

Negotiations and Concessions

By definition, hostage-taking is aimed at compelling a state to do or abstain from an act (Article 1, International Convention on the Taking of Hostages, 1979). As a result, negotiations are an integral part of hostage-taking and terrorist groups mostly seek to negotiate their terms in order to release hostages. Negotiating with or making concessions to terrorists, however, is considered a political decision. Therefore, there has not been international consensus on whether states should negotiate with or make concessions to terrorists. Domestic and regional Courts have also abstained from indicating to states whether to negotiate or not (Almadani v Minister of Defense (2002); Finogenov and Others v Russia (2012); Tagayeva and Others v Russia (2017)). This has meant that state practice differs significantly, although states that refuse to negotiate usually rely on the same justifications: that negotiating with terrorists legitimises them or encourages them to continue their unlawful acts targeting more civilians (Miller, 2011). It is worth noting that all states have at some point negotiated with terrorist groups, which invalidates their own justifications (Powell, 2015). More importantly, the decision of states to negotiate or not and the way negotiations are handled can have a direct impact on the human rights of hostages. It is therefore urgent that they be approached as a human rights issue too. In the tragic incident of the Beslan School, for example, which was attacked by Chechen fighters, the refusal of the Russian authorities to start negotiations infuriated the hostage-takers who, on the second day, stopped giving food and water to the hostages, as well as allowing them to use the toilets. This had a dramatic impact on the hostages, especially on children, who started drinking their urine to quench their thirst, lost consciousness, hallucinated, had seizures and/or vomited, and had to use buckets to relieve themselves (Tagayeva and Others v Russia (2017); Galani, 2019). In many other incidents in which states refused to negotiate, the victims were executed. The same holds true about concessions. While ransom payments are banned under international law (measure 8 of UNSC Resolution 1989 (2011); UNSC Resolution 2133 (2014); and UNSC Resolution 2199 (2015) and UNSC Resolution 2253 (2015)), other concessions, such as prisoner swaps, could and should be considered as they are essential for the survival of hostages. While it used to be believed that terrorists treat hostages as their “capital” and the better they look after them, the more likely they are to succeed in their demands, this has changed, and terrorists employ violence against hostages as tool so that states are coerced into meeting their demands. Whether violence is employed or not, it is clear that hostages are dehumanized at the hands of their captors who treat them as “bargaining chips”. States, on the other hand, that refuse to discharge their human rights obligations further deprive victims of their human dignity and rights. The argument of states that victims must be sacrificed for the future common good and the sake of others who might fall prey to terrorist groups has no legal justification. All humans are equally entitled to their human dignity and the dignity of hostages is not worth less than others who might fall victims in the future.

Rescue Operations

Unlike negotiations and concessions, IHRL prescribes clear-cut criteria for a human rights compliant rescue operation. More specifically, a human rights compliant rescue mission should be accurately planned so as to minimize, to the greatest extent possible, recourse to lethal force; a state is required to take all feasible precautions to minimize incidental loss of life; and the primary aim of a rescue operation is to protect lives from unlawful violence, which means that states need to consider all available means to protect the life of hostages from the violence of their captors (Galani, 2021; Galani, 2019). Despite the legal clarity on the issue at hand, states have not always complied with these requirements in practice. Once again, states approach rescue operations as political rather than human rights decisions. It is a “power game” and states need to defeat terrorists at all costs. A botched operation can have a heavy political cost (see, for example, the failed American operation Eagle Claw for the release of the American embassy personnel in Tehran, Waugh, 1990). In practice, this makes states approach a rescue operation almost as a military style operation. In incidents, such as the Beslan School siege and the In Amenas siege, heavy artillery, military helicopters and tanks were used, which cost the life of hundreds of innocent hostages. Despite the heavy-handed responses of states, hostage-taking has not stopped being a threat. This reinforces the point that sacrificing hostages in the fight against terrorism has had no meaningful success. From a legal point of view, IHRL allows the right to life to be restricted only in clear-cut circumstances and the protection of the right to life of future victims is not one of them (Galani, 2020). The approach of states to weigh the rights of hostages against national security or the rights of future victims has been a meaningless exercise which has deprived victims of their dignity and rights.

Terrorist Suspects as “Bargaining Chips”

Before concluding, it is worth taking note of instances in which terrorist suspects have been used as “bargaining chips” by states in the fight against terrorism. The issue was examined in the “Bargaining Chip” case against Israel. The case was brought by Lebanese petitioners convicted of terrorism-related activities against the Israel Defence Forces (IDF) and South Lebanese Army, who challenged their ongoing detention following the completion of their sentences. Although there was no evidence of the prisoners posing threats to national security, the Israeli authorities refused to release them. They argued that there was an interest in detaining them, in order to exert pressure on the Hezbollah with whom Israel was negotiating the release of the Israeli army pilot, Ron Arad, who was captured in Lebanon in 1986 but whose whereabouts remain unknown. The Israeli Supreme Court concluded that the administrative detention was unlawful and Chief Justice Barak wrote that “[administrative detention] should not be extended to the detention of a person who is not regarded personally as any danger to national security, and who is merely a “bargaining chip” (para. 741). Following the judgment, Israel was forced to release those prisoners who did not pose any threat to national security. A similar decision was taken by the Israeli Supreme Court with reference to the bodies of Palestinians killed by the IDF. Their bodies were kept by Israel, in order to be used as “bargaining chips” for future negotiations or to exert pressure on the families of the deceased to make arrangements that would prevent funerals from being used as rallies against Israel. The Israeli judges concluded that Israel cannot hold on to corpses for the purposes of negotiations at a time when there is no specific and explicit law that allows it to do so. The judgment, however, did not convince the government to refrain from keeping bodies as “bargaining chips” but rather led to the adoption of a new law that gives legal ground to this policy. These practices should also be condemned, as treating humans as “bargaining chips” objectifies them.

Conclusion

Despite the recent decline in successful hostage-taking incidents, hostage-taking has been used by terrorist groups for decades and will remain a threat. Its modus operandi involves the taking and suffering of innocents and over the years, terrorist groups have only become more brutal towards hostages whose only chance to survive is negotiations or a rescue operation. Despite the tremendous impact of hostage-taking on the human rights of hostages, states have yet to approach it as a human rights matter. Whereas many times states lost sight of the human rights of terrorist suspects post-9/11, coordinated efforts put a spotlight on the matter and states faced accountability for their acts. Twenty years on, this has not happened in relation to the hostages, who states still appear willing to sacrifice in the name of the fight against terrorism. Thus, hostages are still being deprived of their human dignity and rights, both at the hands of their captors and because of state counterterrorism policies.

The blog post draws on findings of the author’s monograph “Hostages and Human Rights: Towards a Victim-Centred Approach” (Cambridge University Press, 2021).