by Amanda Arella
This blog post was adapted from a presentation entitled “Duty of Care in the Context of Kidnap for Ransom”
One of my major project during the course of my internship at Oceans Beyond Piracy was to research duty of care in the context of kidnap for ransom. Specifically, I examined the duty of care that employers owed to their employees travelling abroad. Aid workers and other non-governmental employees who travel to conflict regions are particularly vulnerable to the growing phenomenon of kidnap for ransom.
While researching this question, I came across a court case between the Netherlands and Médecins Sans Fronitères. Etat de Pays-Bays c. Médecins Sans Fronitères was a case that went Switzerland’s highest judicial body, the Federal Tribunal revolving around the alleged payment of a ransom.
In 2002, Arjan Ekel, a Dutch national, was kidnapped while volunteering with Doctors Without Borders in Dagestan. He was released after 20 months in captivity upon the payment of a ransom of 1 million euros. Following his release, the Dutch government sued MSF for the ransom amount, claiming it had arranged for a loan for MSF to cover the cost of the ransom. MSF countersued the Dutch government, arguing that it had been excluded from negotiations and never agreed to pay the money.
This case instantly captured my attention, and reflecting upon my work this summer, I realized that it is a good case study to highlight some of the issues I’ve focused on on this summer. Etat de Pays-Bays c. Médecins Sans Fronitères brings together the legal and the political elements of kidnap for ransom, and also ties in some of the fundamental elements of private law.
The three main elements at play in this case that I want to highlight, because they are all issues that came up again and again in my work this summer. This first is transparency in ransom negotiations, the second is the private law duty of care as it relates to non-governmental employees, and the third is contractual implications in cases of kidnap for ransom.
Transparency in Ransom Negotiations
This case is highly unusual for a variety of reasons, not the least of which being that non-government organizations and governments do not typically sue each other. Moreover, cases heard in court are part of the public record, a reality which stands in stark contradiction to the extremely secretive nature of most ransom negotiations.
The official position of virtually all countries and major NGOs is that they do not pay ransom. There are strong arguments in favour of this position: Many governments and organizations feel admitting to paying ransoms is tantamount to endangering their citizens or employees. Furthermore, there is a fear that publicly discussing negotiations many heighten the demands of kidnappers, and encourage further kidnapping.
However, the practical effect of this stance is that there is a lack of transparency as to what actually transpires when an individual is kidnapped. Whether or not a ransom is paid, there is often some level of official involvement both by governments and, in the case of aid workers, the organization they represent. This lack of transparency also comes at a cost. Firstly, it is very difficult to analyze trends in kidnapping, and to thus understand the full extent of kidnap for ransom in our modern world. Additionally, this lack of transparency discourages open conversation about kidnap for ransom. Together, these realities have profound implications.
Kidnap for ransom brings up many difficult ethical questions. While there is no consensus on best practices for addressing and eventually eliminating this phenomenon, there is a growing understanding that ransom payments are used to finance terrorism and criminal activities. Furthermore, the widespread instances of kidnap for ransom heightens violence and instability in the region where it takes place. These facts may illustrate some of the arguments in favour of a hardline stance against negotiating with kidnappers. Yet there can be no discussion of this question without acknowledging that a person’s life is at stake in every instance of kidnap for ransom.
The ethical questions of kidnap for ransom are an area which I have given much thought this summer, and to which I have no definitive answer. Familiarizing myself with this topic has only made it clearer to me that in an issue this complex and multi-faceted, a definitive solution or strategy to addressing the problem simply does not exist. It is for this reason that cases like Etat de Pays-Bays c. Médecins Sans Fronitères are so important. They provide an opportunity for all people to inform themselves on this issue and engage together in critical debate and reflection on kidnap for ransom.
Duty of Care and Non-Governmental Organizations
Next, the case reaffirms that nongovernmental organizations have a duty of care to their travelling employees. Duty of care is in many ways a moral duty enshrined in a legal principle that exists in virtually all legal jurisdictions in some form or another. It is legal obligation that requires a person or organization acts toward others and the public in a prudent manner to avoid the risk of reasonably foreseeable injury to those around them. Duty of care is premised on a relationship of proximity employer and employee. Where an employer breaches the duty of care owed to an employee, they may be found civilly liable for negligence.
In order for a duty of care to exist, there must be a relationship of proximity between the wrongdoer and the victim. In virtually all jurisdictions, the relationship between employer and employee is considered sufficiently close for a duty of care to exist.
An organization may face liability risk when an employee is injured or killed while travelling abroad on behalf of the organization. Employers may be held to a higher standard of care in instances where employees enter into situations of heightened risk during the course of their work, as may be the case for employees travelling abroad on behalf of their employer. This higher standard of care includes identifying and planning for higher risks to employees, and may be satisfied by adopting employee safety and risk management practices.
Ultimately, this case was decided on principles of contract law. Based on a letter between MSF Switzerland and the Dutch government, the Swiss Federal Tribunal held that the two parties must split the cost of the ransom. The Federal Tribunal found that in the letter, MSF put forward an offer, which was then accepted by the Dutch government. There was thus a meeting of the minds which produced a validly binding contract. It was particularly interesting to me that a case surrounding ransom payments – normally a topic which has largely been unexamined from a legal perspective, was decided through a well-established area of law.
Furthermore, this decision may have some significance for the growing phenomenon of kidnap and ransom insurance, in which employers or individuals themselves may take out insurance against the risk of kidnapping. These agreements are a new phenomenon that are in some ways uncharted territory, but are at their core contracts governed by deeply entrenched legal principles. It is unclear to what extent one or the other of these characterizations is more accurate. So too is it unclear if the extent to which government policies and political perceptions of this issue will interact with contract law. Undoubtedly, there are many unanswered questions of the implications of bringing kidnap for ransom into the sphere of private law, making it a dynamic area for further examination.