This document provides my opinion on the following matter: is it lawful for an individual or company to pay a ransom for the release of a person abducted by a terrorist organization?
I hereby conclude that under Colombian regulations it is lawful to pay such a ransom, provided that the payer acts with the precise intention of protecting the abducted person´s life and integrity.
This document is structured as follows: (1) Regulations under the Colombian Criminal Code, (2) Rulings of the Constitutional Court, (3) Current Political Landscape, and (4) Conclusions.
1. Regulations under the Colombian Criminal Code
1.1.1. Provision of Funds to Terrorists
The Colombian Criminal Code – Law 599 of 2000 – regulates the crime of Provision of Funds to Terrorists in Article 345[1]. Individuals engaged in that criminal activity shall be punished to imprisonment for 13 to 22 years.
Article 345 states:
“Art. 345. Provision of Funds to Terrorists and Management of Assets Related to Terrorist Activities (Article modified by Article 16 of Law 1121 of 2006. The new text reads as follows). Any person who directly or indirectly provides, collects, gives, receives, manages, grants, custodies or keeps funds, goods or assets, or who performs any other act that furthers, organizes, supports, maintains, finances or sustains financially illegal armed groups or its members, or national or international terrorist organizations, or terrorist activities, shall incur in prison for thirteen (13) to twenty two (22) years and shall be fined for one thousand three hundred (1,300) to fifteen thousand (15,000) minimum monthly wages.”
As it is apparent, transferring assets or money to illegal organizations is a way of fostering such organization´s criminal activity. Therefore, in furtherance of Article 345 of the Criminal Code Colombian authorities could find an individual or corporation that has transferred money to an illegal organization liable for the crime of Provision of Funds to Terrorists.
Moreover, Article 30 of the Criminal Code determines that any person who contributes to the commission of an illegal conduct or provides aid after the crime has been committed, acting in furtherance of an agreement, shall be held criminally liable.[2] This means that corporate directors, family members, or risk management corporations involved with a transaction whereby an individual or a company gives money to a terrorist organization (such as FARC or ELN), could be found criminally liable under Article 345 of the Criminal Code.
However, as it will be explained below in Chapter 1.2.1 the transfer of assets in furtherance of the payment of ransoms, is deemed to be a lawful conduct, provided that the motivation of such conduct is the protection of the abducted person´s life and integrity.
1.1.2. Ransom Negotiations
Article 12 of the Criminal Code regulates the crime of Unlawful Execution of Insurance Agreements, as follows:
“Article 12. Unlawful Execution of Insurance Agreements. (The Constitutional Court held this Article is conditionally constitutional)[3] The individual involved in the execution of an agreement which purpose is the payment of a ransom, or in the negotiation or mediation of the ransom, shall incur in prison for one (1) to two (2) years.”[4]
According to the above, the involvement of an individual in the negotiation or execution of a contract or agreement which purpose it the payment of a ransom is deemed to be a criminal conduct under Colombian law.
According to the language used in the quoted rule it is irrelevant whether the individual acts as an agent of the victim or in his interest, or as an agent of the victimizer or in his interest.
Therefore, the involvement or negotiation of a ransom on behalf, representation or in the interest of an abducted individual is, first hand, deemed to be a criminal conduct.
However, as it will be explained below in Chapter 1.2.1 the involvement, negotiation or execution of agreements in furtherance of the payment of ransoms, are deemed to be lawful conducts, provided that the motivation of such conducts is the protection of an abducted person´s life and integrity.
Article 25 of Law 40, 1993, punishes directors, officials or agents of corporations involved with the concealment or payment of ransoms, as follows:
“Article 25. Sanctions to Domestic or Foreign Corporations (The Constitutional Court held this Article is conditionally constitutional)[5]. If a director of a domestic or foreign corporation or his agent conceals or aids the payment of a ransom to further the release of an official or employee of said corporation or of its subsidiaries, government will be entitled to terminate unilaterally the contracts executed by such corporation with public entities.
If the conduct is committed by an official or agent of a subcontractor of the corporation referred to above, government will order the subcontractor´s immediate removal of the country, provided that the subcontractor is a foreign corporation. Domestic subcontractors will be punished with the sanctions regulated by this law. (…)”[6]
According to the above, the concealment or payment of a ransom by a director of a domestic or foreign corporation or by his agent shall cause the unilateral termination of contracts entered into by the corporation and the Colombian state. Subcontractors that do not have a direct contractual relationship with the Colombian state may also be punished. The state will be allowed to expel the subcontractor from the country. It is unclear, however, the proceeding that should be applied by the Colombian government to impose such sanction. For this reason, we believe that the sanction may not be imposed until Congress enacts a law regulating such proceeding.
Further, as it will be explained below in Chapter 1.2.1 the concealment or payment of ransoms, are deemed to be lawful conducts, provided that they are committed with the purpose of protecting an abducted person´s life and integrity.
1.2. Absence of Criminal Liability
The Criminal Code regulates circumstances of “Absence of Liability” (Excuses and Justifications) for the commission of conducts that, in principle, would be deemed punishable. Excuses show compassion. They assume that under certain circumstances persons may engage in criminal or unlawful conduct.
We hold here that two excuses are applicable in the hypothesis under scrutiny – ransom payments – provided that the payment(s) is (are) made with the sole intention to further the release of an abducted person. Below we elaborate on each of them: (i) Necessity, and (ii) Duress.
1.2.1. Necessity
Persons have the right to protect their rights or those of third parties when those rights are of equal or higher importance than those of others, provided that the protection cannot be made otherwise.
According to Article 32, Paragraph 7:
“Art. 32. Absence of Liability. There shall not be criminal liability in the following cases: (…) 7. When the person acts with the aim to protect itself or others of imminent danger –not avoidable otherwise – and such danger was not created intentionally or recklessly by said person, and such person does not have the legal duty to withstand such danger.”
In sum, necessity justifies criminal conducts in situations of conflict between two rights, in which the salvation of one requires the sacrifice of the other. The classical example is the shipwreck case: after the ship has sunk, three individuals survive in a boat. They remain afloat for several days, but begin to starve. Two of the individuals decide to kill the third one with the aim of feeding themselves and safe their lives. After the “sacrifice” is committed, a rescue patrol finds the survivors. The survivors are tried in a criminal court for homicide, but are found not guilty, because they are justified by necessity.
This case is similar: As explained above (i) Article 345 regulates the crime of Provision of Funds to Terrorists, (ii) Article 12 regulates the crime of Unlawful Execution of Insurance Agreements, and (iii) Article 25 regulates the Sanctions to Domestic or Foreign Corporations.
Those provisions intend to deter the payment of ransoms to terrorist organizations – payment from which those organizations fund their illegal activities and terrorist actions. However, if the payment, negotiation or transfer of assets to the criminal organization is made by necessity to protect an abducted person´s life, the individual that makes the payment cannot be held criminally liable, because he is justified by the law.
If an individual has been abducted by a terrorist organization – such as FARC – it can be argued that that person´s life and integrity is in imminent danger. Moreover, in many cases the reaction of the Colombian state to rescue the kidnapped individual is ineffective, which makes the necessity of payment the only way to avoid the imminent danger of death or harm. Last, in a case where the individual did not create a risk or put himself at reckless risk, necessity is deemed to be a complete excuse.
In sum, necessity is a complete excuse to transfer assets to a terrorist group, provided that the payer acts with the sole intention of obtaining the release of the abducted individual.
1.2.2. Duress
Necessity and duress are closely intertwined excuses of criminal liability under Colombian law. Necessity and duress differ in that necessity can involve natural occurrences that force a person to commit a certain act while duress implies a situation created by another that forces a person to commit a certain act.
However, duress is a form of necessity present in cases where an individual commits a crime under external force, violence or threat of violence in detriment of a third party, in order to save his or others rights of equal or higher interest.
According to Article 32, Paragraph 8:
“Art. 32. Absence of Liability. There shall not be criminal liability in the following cases: (…) 8. If the individual acts under duress.”[7]
If the terrorist group that keeps detained an abducted individual contacts his family members or his employer requiring the payment of a ransom, extortion will occur and the use of violence against the abducted individuals in case of withholding the payment can be deemed as imminent and unavoidable otherwise.
In the landmark Erdemovic case the appeals chamber of the International Criminal Tribunal for Crimes in Yugoslavia held about duress:
“Law is based on what society can reasonably expect of its members. It should not set intractable standards of behavior which require mankind to perform acts of martyrdom, and brand as criminal any behavior falling below those standards.”[8] (emphasis in original)
A just law should not demand supererogatory or unreasonable behavior from common persons. Individuals in these situations should be taken just as they commonly are – scared, vulnerable and emotional, instead of abstracted, cold and depersonalized rational agents. The idea of demanding a person to jeopardize the life of a loved one or of any other human being in the name of an intangible societal good is repugnant.[9]
Moreover, if the company or family members are contacted by a terrorist group, and such group demands the payment of a ransom, it may be assumed that such petition has a correlative threat to the life and integrity of the abducted individual, because (i) it is apparent that the release will not occur unless the payment is made, and (ii) the most likely outcome of non-payment is the execution or indefinite detention of the kidnapped subject.
Further, it is worth noting that in many cases the first demand of kidnappers to the victim´s family members or employers is not contact any authorities. That contact might put at additional danger the victim´s life and integrity. It seems cruel to demand from individuals to take such significant risk, particularly given the fact that ransom cases often occur precisely because there is a minimal chance of detection, or given the untrustworthiness of local police and security forces.[10]
1.2.3. Notice
The excuses described in 1.2.1. and 1.2.2. are not a complete safeguard against criminal charges being filed by the Attorney General´s Office for the commission of the criminal conducts described above in 1.1.1., 1.1.2. and 1.2.3.
However, from their existence in the penal code it can be said that (i) the probability that the Attorney General´s Office indicts the negotiator or payer of the ransom is very low, and (ii) that even if the Attorney General´s Office indicts the negotiator or payer, the payer will have a very high probability of being acquitted by a criminal court.
Finally, it is noteworthy that a company or individual that intends to make a negotiation or ransom payment must avoid the execution of any type of broader agreement or contract that grants additional benefits to the company or individual entering into the agreement, particularly agreements whereby the victimizer agrees to withhold any kind of further aggression against the victim, his relatives or the company.
2. Rulings of the Constitutional Court
The Colombian Constitution grants the Constitutional Court the competence to examine through judicial review the harmony between the Constitution of 1991 and laws enacted by Congress. In furtherance of that competence, the Court issued a judicial review sentence regarding Law 40 of 1993 – better known as Anti-Abduction Statute – which intended to deter the payment of ransoms by domestic and foreign corporations, as well as to prohibit the execution of abduction insurance agreements. Chapters 1.1.2. and 1.1.3. above elaborate in two articles of Law 40 of 1993.
The Constitutional Court concluded that Law 40 of 1993 was “conditionally constitutional”, which means that the law is constitutional only if interpreted and construed in certain specific form.
The Court concluded that no law could prohibit an individual from paying a ransom if the payment intends to protect other person's life; and further argued that necessity could be an excuse for paying a ransom in order to protect human dignity and life.
The tribunal held:
"The payment of the ransom is, in itself, a neutral act, nor good or bad. It is the goal pursued what defines its moral nature. (...) Whoever intervenes in making a payment under necessity as a mean to save its or other person's life or liberty, acts with an altruistic goal which is universally accepted. Whoever acts without necessity... with the purpose of ... providing funds to criminals, commits a crime."[11]
The Paragraph quoted above is a small example of the blurry line that divides what could be a payment protected under the Court's ruling, from a payment that could be cause of criminal liability. The main arguments of the Court were the following:
1. The abduction´s victim confronts an imminent risk of losing its life, and has lost, at least temporally, its liberty.
2. According to the Constitution and universal principles (of justice), human life and liberty are values which protection is mandatory for state and citizens. Therefore, any rule which intends to punish a reasonable conduct of individual oriented to protect life and liberty infringes the Constitution.
3. Moreover, no rule can displace the justifications and excuses set forth by the law, necessity among them.
4. The general interest argument in favor of the prohibition of payment is unpersuasive. Man is an end in itself and cannot be utilized as a means to reach the goals of society, unless man himself decides to admit that unjustified burden. Hence, the principle of prevalence of the general interest applicable in cases of clash between inferior rights is not applicable in this case.
5. The state has the means to combat abduction; among them the investigation, prosecution and punishment of criminals. Thus, the state does not have the right to criminalize the victim or those who intend to defend her life and integrity in criminals.
6. Article 12 of the Constitution prohibits cruel, degrading and inhumane treatments. Those treatments are imposed on the victim of an abduction and on his relatives when the law bans their option of using the only available means at their disposal (this is negotiating and paying a ransom), consequently aggravating the situation caused by the victimizers.
7. The person that pays a ransom complies with the solidarity duty which Article 95 of the Constitution imposes on Colombian citizens: “Act according to the solidarity principle, performing humanitarian actions in situations that put at risk human´s life or health”.
Taking into account the arguments above presented, we hereby conclude that (i) the payment of ransoms is lawful under Colombian regulations, that (ii) the Constitutional Court´s opinion is compatible with the arguments presented here in 1.2.1., and therefore the Court agrees that necessity and duress are forms of excuse of the crimes described in Chapters 1.1.1., 1.1.2. and 1.1.3.
3. Current Political Landscape
Abductions and extortions are the second source of funding of Colombian terrorist groups. After the nineteen nineties studies concluded that terrorist groups collected more than 1.5 billion dollars derived from such crimes during that decade. Those assets were invested in the purchase of weaponry, technical assistance, and deposited in banking accounts abroad, through complex money laundering operations.[12] That situation remains today.
As of March 10, 2011, President Juan Manual Santos delivered a speech warning multinational corporations operating in Colombia that they should avoid paying ransoms to illegal armed groups engaged in the abduction of their employees or officials, or they would be expelled from the country.[13]
President Santos emphasized:
“I hereby make a very clear warning: any company that pays one single cent to one of those criminals, will be expelled from the country”[14]
The President delivered the speech after listening the testimony of some of the 22 employees of South American Exploration – a contractor of the Canadian oil company Talisman – which had been abducted as of March 7 of 2011 and rescued one day after by the Colombian military. The employees stated that the guerrilla was seeking the payment of a 2.6 million dollars ransom.[15] According to President Santos, the company had already made an economic arrangement with the guerrilla, which could not be completed due to the forceful action of the Colombian military.
In the same speech President Santos added:
“We cannot allow anyone to “feed” those criminals, who will use that money to produce more violence and insecurity”[16]
Finally, the President stated that Colombian law prohibits and punishes the payment of ransoms. As it has been explained above, this is only partly true. After the Constitutional Court ´s ruling C-543 of 1993 analyzed above, any law punishing the payment of ransoms will be deemed unconstitutional.
However, President Santos´ speech shows the government´s attitude regarding ransom payments. It is apparent that the government is willing to push very hard in order to repress their payment and it is highly probable that it will take administrative action to punish and deter companies and individuals engaged in those payments.
4. Conclusions
The negotiation and payment of ransoms is lawful under Colombian law and under ruling C-542 of 1993 of the Colombian Constitutional Court, provided that the negotiation or payment is made under necessity or duress, and with the sole intention to further the release of the abducted person´s life and integrity.
[1] As modified by Article 16 of Law 1121 of 2006.
[2] Original text in Spanish: “ARTICULO 30. PARTICIPES. Son partícipes el determinador y el cómplice. Quien determine a otro a realizar la conducta antijurídica incurrirá en la pena prevista para la infracción.
Quien contribuya a la realización de la conducta antijurídica o preste una ayuda posterior, por concierto previo o concomitante a la misma, incurrirá en la pena prevista para la correspondiente infracción disminuida de una sexta parte a la mitad. Al interviniente que no teniendo las calidades especiales exigidas en el tipo penal concurra en su realización, se le rebajará la pena en una cuarta parte.” Law 599 of 2000.
[3] This means that the article is deemed to be constitutional only if interpreted in the way construed by the Colombian Constitutional Court in the constitutionality decision whereby the court examined whether the law was compliant with the Constitution or not.
[4] Original text in Spanish: “ARTÍCULO 12. CELEBRACIÓN INDEBIDA DE CONTRATOS DE SEGURO. <Artículo CONDICIONALMENTE EXEQUIBLE> Quien intervenga en la celebración de un contrato que asegure el pago del rescate de un posible secuestro o en la negociación o intermediación del rescate pedido por un secuestrado, incurrirá en prisión de uno (1) a dos (2) años.” Law 40 of 1993.
[5] This means that the article is deemed to be constitutional only if interpreted in the way construed by the Colombian Constitutional Court in the constitutionality decision whereby the court examined whether the law was compliant with the Constitution or not.
[6] Original text in Spanish: “ARTÍCULO 25. SANCIONES A EMPRESAS NACIONALES Y EXTRANJERAS. <Artículo CONDICIONALMENTE EXEQUIBLE> Sin perjuicio de las demás sanciones a que hubiere lugar, cuando algún directivo de una empresa nacional o extranjera, o su delegado oculten o colaboren en el pago de la liberación de un secuestro de un funcionario o empleado de la misma, o de una de sus filiales, el Gobierno quedará facultado para decretar la caducidad de los contratos que esta empresa tenga suscritos con entidades estatales.
En caso de que el hecho sea cometido por un funcionario o delegado de un subcontratista de la anterior, si ésta es extranjera, el Gobierno ordenará su inmediata expulsión del país. Los subcontratistas nacionales serán objeto de las sanciones previstas en esta Ley. (…)” Law 40 of 1993.
[7] Original text in Spanish: “ARTICULO 32. AUSENCIA DE RESPONSABILIDAD. No habrá lugar a responsabilidad penal cuando: (…) 8. Se obre bajo insuperable coacción ajena.” Law 599 of 2000.
[8] ICTY, 1996b, Paragraph 46. In: http://www.unt.edu/honors/eaglefeather/2004_Issue/HensonC7.shtml June 27, 2011.
[11] Constitutional Court. Decision 542 of November 24, 1993. Justice Jorge Arango Mejía.
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