1

DEVELOPMENTS IN THE FIGHT AGAINST KIDNAPPING:

COLOMBIA AND ITS INFLUENCE IN LATIN AMERICA AND THE

CARIBBEAN

ACRONYMS

INTRODUCTION

CHAPTER I - A GENERAL VIEW OF THE DILEMMA

A. Scope and purpose

B. Understanding the problem

C. Types of kidnapping

i. Kidnapping for extortion, to demand ransom, influence business decisions or obtain

commercial advantages

ii. Kidnapping between or within criminal groups for purposes of debt collection or securing

advantage in a particular criminal market

iii. Kidnapping for purposes of sexual exploitation

iv. Kidnapping (although often termed abduction) linked to domestic or family disputes

v. Kidnapping for political or ideological purposes

vi. Kidnapping in the course of carrying out another criminal act

vii. Feigned or fraudulent kidnapping

D. Sequence of a Kidnapping

i. Information about the victim

ii. Modus operandi

iii. Captivity

iv. Negotiation

v. Ransom/Release

vi. The victims

vii. The perpetrators

CHAPTER II – OPERATIONAL STRATEGIES IN COLOMBIA

A. Legal development

i. Citizens and civil society

ii. Multinational Corporations

B. National Strategies against kidnapping

i. Prevention

2

ii. Dissuasion

iii. Dismantling

iv. Prosecution

v. Assistance

C. Human Rights, International Humanitarian Law and Kidnapping

CHAPTER III - THE INTERNATIONAL SCENARIO

A. International Framework

B. The kidnapping and hostage-taking, two egregious conducts

CONCLUSIONS

BIBLIOGRAPHY

SELF-AUTHENTICATION STATEMENT

3

ACRONYMS

CONASE Consejo Nacional de Lucha contra el Secuestro / National Council to Combat

Kidnapping

CI2DLP Centro Integrado de Inteligencia para la Defensa de la Libertad Personal

/Integrated Intelligence Center for the Defence of Personal Freedom

DIASE Dirección Antisecuestro y Antiextorsión/ Direction Antikidnap and

Antiextortion

DIJIN Dirección de Investigación Criminal / Direction of Criminal Investigation

ECOSOC United Nations Economic and Social Council

FARC Fuerzas Armadas Revolucionarias de Colombia/ Armed Revolutionary Forces

of Colombia

FGN Fiscalía General de la Nación / Prosecutor General of the Nation

GAULA Grupo de Acción Unificada por la Libertad Personal/ Unified Action Groups

for the personal Freedom

NGOs Non-Governmental Organizations

UN United Nations

UNODC United Nations Office on Drugs and Crime

4

INTRODUCTION

“Kidnapping also seems to occur in rashes, acquiring a momentum of its own when crime

groups realize its utility... For some reason, it appears to be more common in areas of civil

conflict that are also affected by the drug trade, such as the country best known for its

kidnapping problem, Colombia.”1 This quote is an excerpt from a United Nations document.

It allows one to deduce that at the international level, together with drug trafficking,

kidnapping was now an additional factor in the stigmatization of the country. In comparison

with the number of cases presented ten years ago, there has been a 94% decrease,2 although

absolute eradication of this phenomenon has not happened yet. Given this impressive

reduction rate, the international community now recognizes the struggle of the Colombian

people to restore their security, and to affirm that everything is possible when taking unified

action as a nation.

In light of the violence Colombia has endured over the years, the country has developed skills

and significant experience in the fight against kidnapping, particularly through its national

security forces and judicial institutions, both of which could share their experience with the

international community.

Not all governments pay sufficient attention to the phenomenon of kidnapping. At first, the

upper classes are most affected by the crime, but when they take the measures to avoid

becoming targets, criminals broaden their scope and also affect middle and lower classes.

There are also increasingly clearer links between armed groups outside the law and the

practice of kidnapping, as this is a very important source of funding and expansion around the

world.

The UN has made progress in building an international legal framework to combat

kidnapping, through legally binding international conventions for state parties, and the

issuance of resolutions expressing the will and cooperation of countries that provide specific

mandates to specialized agencies.

1 United Nations Office on Drugs and Crime; Crime and Development in Central America, Caught in the

Crossfire (2007). 2 Republic of Colombia, Ministry of National Defence, Operational Direction for the Defense of Personal

Freedom: Colombia went from 3,572 cases in 2000 to 229 in 2011.

5

CHAPTER I - A GENERAL VIEW OF THE DILEMMA

A. Scope and purposes

The main objective of this paper is to contribute in some way to combating the crime of

kidnapping, by serving as a reference to members of the legal profession, members of NGOs,

law enforcement and government officials in general, in addition to all those who may be

interested in the evolution of this phenomenon in Latin America and the Caribbean.

The Colombian case presents more than two decades of valuable experience for other nations

that are beginning to suffer the overwhelming experience associated with crimes of this kind.

On the one hand, the various armed groups (illegal armed groups, criminal gangs and

common criminals) perpetrate the high rates of kidnappings per year. On the other hand, the

state (i.e., government officials, law enforcement techniques, criminal investigation teams and

the judicial system) has strengthened its own experience, to the extent that it has had to work

to reduce cases of kidnapping.

Although kidnapping is not a new element in the spectrum of the crimes against personal and

individual freedoms, this paper seeks to demonstrate that Colombia is playing an important

role in developing strategies to manage the crime of kidnapping, while also strengthening

cooperation with its neighbors on this important issue. Learning from Colombia’s experience

will help other citizens of the world and of the Latin American region to avoid the suffering

that thousands of families in Colombia suffered, since the scourge of kidnappings began, and

brought with it serious consequences for the development of societies in the region.

B. Understanding the problem

Kidnapping is a criminal activity with several faces; not only does it involve attacks on

personal freedom and patrimony, but it is also an attack against society, community values,

and the trust citizens have in the State´s ability to effectively serve and protect them from the

risks presented by agents of evil. Furthermore in the international field, this phenomenon

damages the positive image of a nation and its development in the political, economic and

cultural realms. When human beings commit crimes, there is a tendency to repeat them if the

act is successful or the gains are realized.

Kidnapping is a transnational crime. While for States and law enforcement officers their

authority borders are delineated and real, for criminals those border lines are simply a product

6

of an imaginary world; on this point, once again, international cooperation finds a paramount

justification in fighting this scourge.

This paper will adhere to the official definition of kidnapping, as proposed by the United

Nations Economic and Social Council (ECOSOC): “Kidnapping” in unlawfully detaining a

person or persons against their will(including through the use of force; threat; fraud or

enticement) for the purpose of demanding for their liberation an illicit gain or any other

economic gain or other material benefit, or in order to oblige someone to do or not do

something, and resolves to treat it henceforth as a serious crime, particularly when it is

connected with the action of organized criminal groups or terrorist groups. “Kidnapping”

excludes disputes over child custody.3

According to a survey conducted by the United Nations on the extent of kidnapping

throughout the world, there are several comments4:

Kidnapping is a growing international problem, in which both victims and

offenders (and the ransom demands of the latter) often transcend international

borders;

There is a growing trend among organized crime groups and terrorists to resort to

kidnapping, especially for purposes of extortion, or as a means of accumulating

capital to strengthen their criminal operations and undertake other illegal activities

such as human trafficking, firearms trafficking or drugs, money laundering and

crimes related to terrorism;

The crime of kidnapping creates a complex and critical web of intricacies which

requires timely and effective action from government authorities and agencies

responsible for enforcing the law.

C. Types of kidnapping

The reasons for kidnapping, and the result(s) sought by the criminals (and terrorists) involved,

varies significantly. Although these distinctions are not always recognized in the law, they

may be helpful in understanding the modus operandi and objectives of the kidnapper, and to

3 ECOSOC, Resolution 2002/16, International cooperation in the prevention, combating and elimination of

kidnapping and in providing assistance for the victims, 37th plenary meeting, 24 July 2002. 4 ECOSOC, Commission on Crime Prevention and Criminal Justice: International cooperation in the prevention,

combating and elimination of kidnapping and in providing assistance to victims, E/CN.15/2003/7/Add.1.

7

determine the most appropriate response of the authorities responsible for enforcing the law.5

The most common types of kidnapping are:6

i. Kidnapping for extortion, to demand ransom, influence business decisions or obtain

commercial advantage;

An Ecuadorian 13-year-old boy and his mother were kidnapped by five armed men who

approached them in the area of Majagual, Ecuador. Two days later, the father and husband

of the victims, began receiving threatening telephone calls, through which the kidnappers

demanded payment of $500,000 US dollars as compensation for the freedom of their loved

ones. Nearly a month later, those responsible for the kidnapping received the sum of 41

thousand 300 US dollars, money that was delivered in the area of Puerto Palma, in the

Colombian Pacific, a situation that led to the Ecuadorian Unit Anti-kidnap and Anti-extortion

UNASE seek the cooperation of the National Police of Colombia to keep track of the

hostages. Despite the women's liberation on May 27 near the same site where the abduction

occurred, the GAULA7 kept tracking in Colombia, until as a result of technical investigation

work and collaboration from sources, located the whereabouts of the child, who had been

converted into a makeshift bedroom on the second floor of the house raided. The 13-year-old

boy was found on June 2012 in a rustic house located on the shores of the Pacific Ocean, on

the site of the municipality of Puerto Saija Timbiquí in the department of Cauca-Colombia,

where was also captured an individual Colombian national, apparently responsible for its

custody.8

ii. Kidnapping between or within criminal groups for purposes of debt collection or securing

advantage in a particular criminal market;

Nuevo Laredo, Tamaulipas, Mexico - The Navy arrested ten alleged kidnappers belonging to

the Gulf Cartel and effectuated the rescue of 13 people who were deprived of their liberty.

The Navy also found 17 AK-47 rifles, two grenade launchers, a machine gun and six pistols.

In addition, an arsenal of weapons was also seized, including 25 hand grenades, 241

magazines and 16 thousand 500 cartridges of different caliber weapons, plus two cars and

diverse equipment of communication. The city of Nuevo Laredo is considered a stronghold of

the criminal organization Los Zetas, whose control is disputed by the Gulf Cartel. It is

5 United Nations Office on Drugs and Crime, Manual de Lucha contra el Secuestro (2006)

6 ECOSOC, International cooperation in the prevention, combating and elimination of kidnapping and in

providing assistance to victims, E/CN.15/2004/7. 7 GAULA, Grupo de Acción Unificada por la Libertad Personal/ Unified Action Group for the personal Freedom

8 Available at http://www.elnuevosiglo.com.co/articulos/6-2012-polic%C3%AD-rescata-menor-ecuatoriano-en-

cauca.html, last visited June 2012.

8

rumored that the Sinaloa Cartel may have recently come to the city presumably in support of

the Gulf Cartel, but also to try to gain control of the area.9

iii. Kidnapping for purposes of sexual exploitation;

Masha was living in a Russian orphanage when an American man was allowed to adopt her.

He was divorced and no background check was done on him; also no follow-up visits were

ever conducted by the New Jersey based adoption agency. He began sexually abusing her

almost immediately, and shortly thereafter, using her in internet child pornography. So much

so, that the police began a task force to rescue the child, since her images were exploited

over the internet. The search was profiled on CNN, where police digitally removed the girl’s

image leaving only her surroundings in the hopes someone would recognize her location.

Through one picture, people were able to identify a bedspread from a hotel at a Disney theme

park. After several years of this incomprehensible lifestyle, Masha was rescued by police.10

iv. Kidnapping (although often termed abduction) linked to domestic or family disputes;

YUMA, Ariz. (AP) — A Yuma woman turned herself in to authorities after allegedly abducting

her daughter and fleeing to Mexico nearly four years ago. 44-year-old Chrystal Lopez was

booked into the Yuma County Detention Center on suspicion of kidnapping and other

charges. 13-year-old Damaris Herrera is said to be in good health and was turned over to the

state Child Protective Services. Police say the girl fled from a YMCA parking lot in Yuma in

December 2008 after a failed attempt of a custody exchange between her parents. Authorities

say they later learned Lopez fled to Mexico with her daughter. Yuma detectives worked with

the FBI and Mexican authorities to arrest Lopez and return the girl to Arizona. Lopez

surrendered to Arizona authorities.11

v. Kidnapping for political or ideological purposes;

Beirut. Syrian authorities handed over a kidnapped Lebanese man to a Lebanese Army

officer; it said Khaled Ahmad Suleiman, who was kidnapped in north Lebanon, was escorted

out of Syria by the Lebanese Army officer. Suleiman's release was the result of talks between

Lebanese and Syrian officials. As a goodwill gesture toward Syria’s decision to release

Suleiman, residents of Wadi Khaled in north Lebanon released one of several men they had

9Available at http://sdpnoticias.com/nota/345120/os last visited on June 2012.

10 Available at http://listverse.com/2008/08/28/10-terrible-cases-of-kidnapping-and-abuse/ last visited on June

2012 11

Available at http://lasvegas.cbslocal.com/2012/05/17/yuma-woman-surrenders-in-2008-child-abduction-case/

last visited on June 2012

9

kidnapped in retaliation for Ahmad’s abduction. At least eight people were kidnapped in a

series of tit-for-tat sectarian abductions in Akkar, raising more fears that the unrest in Syria

and the tension between the Sunni opponents and the Alawite supporters of the Syrian regime

would spread Tripoli’s instability further afield. Security sources said Suleiman was involved

in the arms dealing business and was handed over to the Syrian authorities after a dispute

with his Syrian clients near Wadi Khaled.

vi. Kidnapping in the course of carrying out another criminal act;

Toulouse – France. A gunman claiming links to al-Qaida was holding three employees of a

bank hostage; police said a man went into the bank and fired one shot shortly after staff

refused to hand over cash. Four hostages were taken, including one woman, who was

released after negotiations. Police have made contact with the gunman, who claims to have

explosives and has demanded to speak to officers from Raid, the Paris-based elite Special

Forces police brigade who negotiated with the man during a 32-hour siege before shooting

him dead. He reportedly tried to rob a jeweler before walking into the bank, where his

demand for cash was not taken seriously.12

vii. Feigned or fraudulent kidnapping;

Albuquerque, New Mexico, U.S, Carlos Sisneros case. It all started when her mother received

several phone calls stating that her son had been kidnapped by a Mexican cartel and had to

pay 2500 dollars to save him. The woman agreed to meet with the alleged kidnappers to

provide the ransom, but when she showed up accompanied by police, she realized that the

person in charge of the operation was her own son, who was arrested after a short chase.

D. Sequence of a Kidnapping

Taking into account the different forms of legal systems around the world, it is important to

mention that although definitions of kidnapping vary greatly, kidnapping laws in some

countries often do not distinguish between the unlawful removal of a person for non-financial

motives (such as often occurs during a custody dispute over a child) and organized

kidnapping for ransom;13

the roots and basic structure of the crime have some common

convergence points, as can be observed in the following description which is composed of

five stages:

12

Available at http://www.guardian.co.uk/world/2012/jun/20/toulouse-hostage-bank-al-qaida last visited June 2012 13

United Nations Office on Drugs and Crime; Crime and Development in Central America, Caught in the

Crossfire (2007).

10

i. Information about the victim

Usually in the first stage of the cycle of kidnapping, criminals develop some strategies

for selecting the appropriate victim, so that they can carry out the crime in the easiest

way. The main objective of this stage is to obtain personal information about the

potential victim, including biographical data such as name(s), age, occupation,

residence address, phone numbers, and physical characteristics. Similarly, they

attempt to carry out a study of the socioeconomic status of the victim, i.e., social

status, occupation, family structure, economic activities of the person or immediate

family, and finally they try to establish routines of daily life, which means places of

study or work, recreation, points of contact with friends or family so that criminals can

take stock of the risks, opportunities, difficulties or facilities to carry out the crime.

Nowadays social networks have become the main source of information for this type

of crime, given that people increasingly use technology to communicate, express

feelings, project plans, or even mention activities they are involved in, simultaneously

describing minutely the mood, the company involved, the vehicles they use, and even

brag about the money they have. People post information that contains many details

that criminals only need to analyze in order to generate the profile of the perfect

victim.

ii. Modus Operandi

The methods used by the criminals to fulfill the goal may vary according to the

circumstances. Aspects such as the profile of the victim, the time in which the

abduction is going to be made, and the characteristics of the perpetrators can influence

in the way to carry out the criminal activity. The most common modalities are:

- Impersonation of authorities, public servants or even private employers, that

implies the use of clothes (uniforms or garments), with the aim of deluding the

victim, or getting access to places that would not normally be accessible to the

perpetrator(s) otherwise; the most common impersonation is the police officer or

soldier, due to the fact that this impersonation enables the criminal to gain some

level of authority over the context in which they are acting.

- Simulation of car accidents--after the criminals have chosen the right place or

gathered information about the routines of the victims, they can set up a car

11

accident in the moment in which the victim is passing through with his/her own

car; when he/she stops to assist the potential injured persons or provide help, the

abduction is committed. A variation of this modality is to crash the victim’s car (at

a red traffic light or even while moving), in order to force that the person to exit

the vehicle, at which point the kidnapping can take place.

- Bait--This strategy is when members of the criminal group use other men or

women to approach the potential victim in social places (bar, restaurants, parks), or

lure them with some other enticement, pretending to be friendly, inviting the

victim for a drink or a cigarette, and once the victim feels comfortable and trust the

perpetrator, she/he is taken to an adequate location and held against their will. This

is where the kidnapping scenario develops.

- Express Kidnapping--is one of the most common modalities in Latin America. The

term is coined “express” due the fact that the abduction does not last more than

two or three hours. It often occurs when the victim takes a taxi, without knowing

that the taxi driver is a member of the criminal group. The victim is obliged under

the threat of a weapon, to withdraw money from an ATM, stopping into several

ATM locations to obtain the cash, and afterwards the victim is abandoned in some

location outside of the city.

Of course, illegal armed groups also have other means to hurt more victims, including

the use of heavy weapons, hijacking of airplanes, or massive kidnappings.

iii. Captivity

In this stage the victim is isolated, confined, and put under conditions that barely

provide any chance to fulfill their basic physical and psychological needs, and

prevented from communication with the external world.

iv. Negotiation

In this moment the perpetrators present their demands, or the conditions to release the

victim, depending on the motivations of the abduction or gains they wish to obtain.

12

v. Ransom/Release

On the one hand, the freedom of the victim is the result of tactical operations held by

the security forces, and normally linked to an investigative process; on the other hand,

it can be the result of the negotiations between the captors and the person in charge, to

make the dialogue in representation of the victim (could be a negotiator or a member

of the family) after complying with the demands imposed by the kidnappers. There are

some cases in which the perpetrators release the victim without any exchange. This

can result from external pressures or from coming under the siege of the security

forces.

vi. The victims

The profile and characteristics of the victims in present day are more heterogeneous.

In the past, kidnappers targeted persons whose wealth represented a good source of

profit in order to achieve a given purpose. Depending on the dynamics of the crime

today, the student, the employer, the child, the farmer, the average citizen could be

subject to kidnapping. For that reason, it is of paramount importance that the whole of

society fight to reject this panacea and tackle this crime.

vii. The perpetrators

There are three main groups committing the crime of kidnapping: criminal organized

crime, illegal armed groups (making presence in countries involved in both

international and non-international armed conflicts) and common delinquency, the

factor that determine the profile is modus operandi used to realize the criminal

conduct.

13

CHAPTER II OPERATIONAL STRATEGIES IN COLOMBIA

A. Legal development

In Colombia, there has been an evolution in the models of crime prevention, from a

perspective that sought mainly to reduce crime, with a focus on epidemiology in the 70s and

80s, followed by a focus on situational and social prevention in the decades of the 80s and

90s, and more recently, a comprehensive perspective, with greater emphasis on a community

prevention approach.

This prevention model, which is based on shared responsibility, provides a mechanism for

interaction between the private and public sectors, and the strengthening of inter-institutional

relations, with the understanding that the prevention of kidnapping requires the participation

of all actors and forces of the State and civil society, including vulnerable people, the

productive sector, business, unions, NGOs and social organizations, among others.

In this context of community prevention, it is essential to identify the responsibilities of each

actor involved and the synergies between them.

i. Citizens and civil society. Citizens have the responsibility to know their environment. Since

kidnapping impacts on society as a whole, the at-risk population should be prepared and learn

to recognize the crime and how to confront it. Every individual is responsible for learning

how to minimize risk, and for take measures of self-care and self-protection. Citizens should

also know the authorities responsible for combating crime and strengthen their relationship

with those authorities.

Similarly, civil society has a responsibility to participate in strengthening the social fabric by

promoting citizen mobilization (e.g., sensitize the average citizen, raise awareness, and

promote solidarity). The role of lobbying and advocacy in public policy development is a key

role of civil society organizations too. In this regard, the strengthening of civil society as key

player should be promoted, and civil society actors should make it known that they are against

this phenomenon and help its known victims to fight it too. Social organizations can share

best practices for prevention and treatment of victims, and civil society’s efforts should be

considered complementary to the efforts of the state, and therefore, should be encouraged and

strengthened. These organizations are a channel of communication between authorities and

the victims. When there is fear or distrust to go to the competent authorities of the state, civil

society can play a relevant role in the symbolic reparation of victims.

14

Another important role of civil society is the promotion of specific regulations in the fight

against kidnapping. Lastly, it also has an important responsibility to work with the

international community to support recognition of certain crimes and frame criminality in

national legislation.

ii. Multinational Corporations. Another aspect to consider are patterns of behavior and

responsibility of multinational corporations operating in countries like Colombia and facing

complex transnational crimes such as kidnapping. In this sense, there are international

frameworks of ethical behavior to guide them, and encourage them, for example, not to pay

and not to yield to the demands associated with kidnapping and extortion, because these

payments are the basis for building illegal structures in Colombia. The following example is

presented by way of a case study:

The construction of the Bogotá-Villavicencio highway14

A very telling example of how foreign investors operating in a rural area can bring about

more violence by yielding to extortive demands is the following case-study of the construction

of the Bogotá-Villavicencio highway.15

In 1994, the enlargement and reconstruction of the Santafé de Bogotá-Villavicencio highway

was allocated to three different firms by virtue of a public tender: the first stretch of the

highway, Santafé de Bogotá – Cáqueza, to the Spanish firm Dragados, the second stretch,

Cáqueza-Pipiral, 33 kilometers, to the Brazilian firm Andrade Gutierres, and the last one,

Pipiral-Villavicencio, to the Italian firm Grandi Labori. By that time in Colombia the highway

crossed zones with certain presence of the FARC16

fronts no. 53, 52 and 51). The firm

Andrade Gutierrez was the first to start working on the enlargement and reconstruction of the

highway in the zone. Shortly after having started the construction, the guerrilla commander of

the 53rd front notified the company that they had to pay a vacuna (revolutionary tax), if they

wanted to continue with their work. The management of Andrade Gutierrez refused. In order

to step up the pressure on the company, the 53rd front kidnapped two Brazilian engineers who

were working on the project on August 14, 1996. The ransom demands of the FARC

amounted to US$ 8 million. After eight months of negotiations, during which period the

14

Pax Christi Netherlands, The kidnap industry in Colombia, Our business? Foreigners; the most favored prey

the involvement of foreign investors in the Colombian conflict, 75-76 (2000) 15

Abstract of Meluk, E., El secuestro en Colombia y las multinacionales Europeas, survey composed for Pax

Christi Netherlands (Santafé de Bogotá, 2000). 16

FARC, Fuerzas Armadas Revolucionarias de Colombia/Armed Revolutionary Forces of Colombia

15

political tensions between Brazil and Colombia mounted, the ransom was agreed upon at US$

1.8 million.

The ransom was paid in cash, using old US$ 100 bills. The money was brought over from

abroad and picked up at the airport of Villavicencio, without any record of the transfer. Worse

still, the Colombian authorities were not informed about the transport. The money transaction

left no traces. Surprisingly, the two engineers were not released after the payment. Two days

later, the negotiator of the FARC’s 53rd front made an additional demand of US$ 100,000.17

Two weeks later, on March 7, 1997, the two engineers were ransomed for the additional

amount.18

After the two engineers were finally released in 1997, the victim’s negotiators

informed the FARC’s Alto Secretariado (executive board) about the additional amount that

had to be paid to the 53rd front for the release. In reprisal, the 53rd front blew up the Andrade

Gutierres’ infrastructure of asphalt and crushing plants, as well as their vehicle storage

facility, close to Guayabetal. The losses were estimated at US$ 10 million, compelling the

company to suspend their work and resign from the contract.

During the construction of the third stretch of the same highway, the Italian firm Grandi

Labori was confronted with the kidnapping of a French engineer in October 1996. He was

released on October 26. The Colombian army informed the public that the family of the

victim had paid ransom, without specifying the amount paid. Grandi Labori refused to make

any statement on the subject, arguing that the engineer was not on their payroll, as he was the

employee of a subcontractor.19

However, two European companies Dragados and Grandi

Labori, continued working on the highway. No new guerrilla harassment was reported. The

tunnel, part of the second stretch of the highway, was completed by Dragados on time,

according to the terms and conditions of the contract.

Even though, the case was presented in the 90’s, and the security conditions on the highways

in Colombia have changed due to the control brought by the Army and the National Police

since the year 2002, the aim of the example is to show one of the economic sources of the

illegal armed groups and their criminal activities. The example entails a very important

amount of money, which once paid, fueled the work of the criminal organizations.

17

In Colombia, this kind of non-compliance with a verbal agreement is known as hacer conejo (literally: ‘to

make a rabbit’, but it means ‘to swindle’). 18

In that time only a Sao Paulo newspaper confirmed the second payment. “El viacrucis de dos brasileños

secuestrados”, in: El Tiempo, March 16, 1997, 9. 19

Colombian National Army, Epitafio de los Inocentes. Human Rights Office. Fifth Division (Santafé de Bogotá

1998).

16

The production and business sector is responsible for knowing and applying the ethical

frameworks of international crime prevention, such as the provisions of the Global Compact

on Human Rights and Combating Corruption,20

the adoption of Corporate Social

Responsibility practices,21

observing the Voluntary Principles Security and Human Rights22

and having an implemented code of business conduct.

Similarly, employers, merchants and manufacturers must identify the risk to kidnapping

according to their commercial activity and location area and adopt mitigation measures and

policies to prevent it. Also, it is important to foster a culture of non-payment of ransom or

extortion, and build or upgrade their crisis management policies. One example called to mind

is British Petroleum (BP), the company that operates a major part of Colombia’s oil

exploitation infrastructure. It is an example of a European multinational that makes it an

explicit policy commitment not to bargain or give in to extortionist demands. BP’s option not

to yield to the guerrilla’s extortion campaigns in Casanare has been ‘reprimanded’ in several

ways. The company and its local subcontractors have regularly faced extortionists’ demands,

and personnel have actually been kidnapped near the premises of BP’s compound in

Casanare.23

BP’s explicit policy to strictly comply with Colombian governmental policies are

meant to be seen as a clear signal to common criminals and guerrilla active in the region of

Casanare, that it will not easily yield to their demands. But it could also partly be explained

by the fact that BP risks losing its contract with the state company Ecopetrol (Empresa

Colombiana de Petróleos - Colombian Petroleum Company), if the state should find out about

payments to the illegal armed parties (a practice that once was common, according to a former

Mannesmann project leader). It is also being alleged that despite this formal corporate policy

of non-payment, ransom money is reimbursed to the family of kidnapped employees.24

20

The United Nations Global Compact is a strategic policy initiative for businesses that are committed to

aligning their operations and strategies with ten universally accepted principles in the areas of human rights,

labor, environment and anti-corruption, available at http://www.unglobalcompact.org/ (last visited on June 19,

2012). 21

Open and transparent business practices that are based on ethical values and respect for employees,

communities, and the environment. It is designed to deliver sustainable value to society at large, as well as to

shareholders. Aaronson, 'Corporate responsibility in the global village: The British role model and the American

laggard', Business and Society Review, vol. 108, no. 3, pp. 309-38, 2003. 22

The Voluntary Principles on Security and Human Rights (VPs) are a set of non-binding principles created to

assist extractive companies to balance security concerns with human rights, available at http://www.business-

humanrights.org/ConflictPeacePortal/Specialinitiatives/VoluntaryPrinciples (last visited on June 19, 2012). 23

Peñate, Andrés, Arauca: Politics and Oil in a Colombian Province. (Oxford 1993) 24

Pax Christi Netherlands, The kidnap industry in Colombia, Our business? Foreigners; the most favored prey

the involvement of foreign investors in the Colombian conflict, 80 (2000)

17

The Colombian penal code provides penalties for all crimes against personal freedom as

hostage taking, illegal detention and violation of due process, the constraint to support war

(forced recruitment), and the illegal recruitment (of children). It also imposes penalties for

crimes against individual freedom as the forced disappearance, kidnapping, kidnapping for

extortion and kidnapping express.25

Since 1936, Colombia has been making progress in the articulation of coordinated strategies

and legal mechanisms to coordinate the various agencies that have responsibilities in the fight

against kidnapping.

The national statute against kidnapping, Law 40/93, amending Decree 100 of 1980 (Former

Criminal Code) increases the quantum punishment against this kind of crime. It defines the

crime of conspiracy for the purpose of kidnapping, and related conduct. This law prohibits,

and can even lead to the prosecution of relatives of victims who engage in negotiations with

kidnappers. However, this law was declared unconstitutional because the Court considered it

a double victimization of the family. It created special prosecutors in the fight against

kidnapping. The National Unity against the kidnapping and Extortion - UNCSE is created.

B. National Strategies against kidnapping26

The governments of the last ten years in Colombia have created a number of conditions and

built a set of capabilities for various actions against kidnapping and extortion, making strong

gains in recent years to materially advance and obtain results.

In addition to the difficulties of recording and analyzing complex information about the

kidnapping figures, it became clear that more specialized, professional law enforcement and

coordination with legal entities was needed. Once implemented, this gave rise to a forceful

strategy that resulted in the aforementioned drastic decrease of kidnapping in recent years.

25

Penal Code, Law 599; article 168, Simple kidnapping. He who for purposes different from those provided in

the following article, seizes, removes, withholds or conceals a person shall be liable to imprisonment for twelve

(12) to twenty (20) years and a fine of six hundred (600) one thousand (1000) minimum legal monthly salaries;

article 169, Kidnapping for ransom. He who seizes, removes, withholds or conceals a person, for the purpose of

demanding for their liberty an advantage or profit, or to be done or omitted something, or for advertising or

political character shall be liable to three hundred twenty (320) to five hundred and four (504) months and a fine

of two thousand six hundred sixty-six point sixty six (2.666.66) to six thousand (6,000) legal monthly minimum

salaries. The same sentence applies when the conduct is carried temporarily on means of transport in order to

gain economic advantage under threat. A legal monthly minimum salary is equivalent to 563.13 EUR. 26

Republic of Colombia, Ministry of Defence, Política Nacional de Defensa de la Libertad Personal 2010-2014,

2010.

18

However, kidnapping and other threats to personal freedom continue to produce an

unacceptable number of casualties in the country. Criminal elements have demonstrated a

rapid adaptation to any state action, resulting in changing criminal patterns which require

other solutions. For this reason, the government must rethink current policies, update current

strategies and even formulate new policies.

The starting point of this institutional policy role was a series of actions dating back to the

beginning of the 1990´s, expressed in Colombian legislation. The National Policy for the

Defence of Personal Liberty draws on criminological analysis of the Direction of Criminal

Investigation DIJIN, the Attorney General of the Nation FGN and valuations of the various

intelligence agencies of the State, as well as observations of NGOs such as the Foundation

País Libre27

and analysis prepared by the Directorate Operational Personal Liberty and the

Department of Defense and Security Policy of the Ministry of National Defense.

In order to develop appropriate policy, the government carried out a series of discussions and

crafted agreements between the various entities that make up the CONASE28

, under the

direction of the Deputy Minister of Defense for Policy and International Affairs.

The defense of personal freedom is a commitment not only of state institutions, but also one

requiring the permanent assistance of civil society. Similarly, it is a shared responsibility

between the national government, provincial and municipal governments. For this reason, the

following lines of action have been created and implemented:

i. Prevention

This measure is aimed at preventing the commission of crimes against personal freedom. This

logic seems essential because, once the crime has been committed; many times the life of the

victim and their family is dramatically affected.

Furthermore, it is less costly to work on preventing the commission of crimes, than to invest

large sums of cash to rescue the hostage once the perpetrators have committed the crime.

From this perspective, this line of action aims to create security conditions that make it

27

The Foundation País Libre is a NGO, non-profit organization that works to prevent and fight against

kidnapping, extortion and forced disappearance, from the following lines: Prevention and treatment of victims,

advocacy in policy, knowledge management, resources management and mobilization, available at

http://www.paislibre.org/site/ , last visited June 15 2012. 28

CONASE is an advisory body of consultation and coordination in the fight against crimes against individual

freedom, it is integrated by the Minister of National Defence, the General Commander of the Armed Forces,

Commander of the Army, the Commander of the Navy, the Director General of the National Police, the Attorney

General's Office.

19

increasingly difficult and expensive for illegal armed groups committing crimes such as

kidnapping or extortion, to exist, forcing them to phase out these practices.

- Citizen cooperation. Increase the commitment of the population to report suspicious

activities leading to these crimes, and support the authorities with evidence to clarify and

prosecute crimes against personal freedom, using community organizations, foundations,

NGOs (Non-Governmental Organizations) and private companies to support this end. To

achieve this goal, the local authorities should develop and promote opportunities for

ongoing dialogue with citizens. It is also important to promote active public participation

on security matters through various programs in coordination with the police, to prevent

crime and respond appropriately when it occurs.

- Inter-institutional coordination and synchronization. Strengthen cooperation between

different institutions and the territorial governments, so that local plans for development

and plans for security and antiviolence incorporate prevention from the optical of crimes

against personal freedom.

ii. Dissuasion

In other words, seek to deny the possibility of committing a crime of this type and raise the

cost of these illegal activities so that offenders desist in advance of carrying out such

actions. To dissuade perpetrators of these crimes, it is key that they understand that they

will be punished to the full extent of the law for crimes of this type.

- The effectiveness of the response to the crimes against personal freedom. Increasing

the capabilities of the components of the country’s security forces, including the Judicial

Police, responsible for acting before the commission of a crime, and having the reach to

dismantle the organizations involved.

- Facilitating the reporting of the crimes against personal Freedom. It is of critical

importance that citizens have a safe environment to report their knowledge of a crime or its

perpetrators, and that the authorities be in a position to immediately and adequately

respond.

- Rewards. Enhance rewards for citizens who bring law enforcement authorities information

to prevent crimes against personal freedom.

20

iii. Dismantling

Beyond the rescue of those citizens who have been victims, this line of action aims to

achieve the dismantling of the structures responsible for the kidnapping. Thus, it is

expected to protect the victims and families directly affected by these acts, as well as

eliminate the ability of offenders to re-commit, which define the irreversibility of

achievements.

- Intelligence capabilities. Strengthen the capacity of state intelligence agencies to identify,

characterize and anticipate threats against personal freedom, as well as to support

operations and raids against the perpetrators of these crimes. To that end, an Integrated

Intelligence Service for the Defence of Personal Freedom CI2DLP, whose secretariat is in

charge of the DIASE National Police, has been established, and is supported by the Chief

of Intelligence of the General Command of the Armed Forces.

- Complementarity of GAULA of the Police and the Armed Forces. Define a new model

of action of the Unified Action Groups for the personal Freedom of Police and Armed

Forces, to consider constitutional roles and missions, changes in threats, avoid duplication

of effort between these agencies and ensure more efficient use, effective and flexible.

- General reaction capabilities of the security forces. The strengthening of GAULA must

be accompanied by an increase in the capacity (logistics, personnel, technology) of the

various units of the Public Force to assist in the fulfillment of the objectives of this

strategy.

- International cooperation. Deepening the exchange of information and strategic and

operational experience, to build capacity to combat transnational crime. It is important to

maintain, expand and strengthen programs for technical assistance, training and counseling

in investigative processes.29

iv. Prosecution

To achieve this objective, it is necessary to strengthen all stages of prosecution of crimes

against personal freedom. By modernizing the means of criminal investigation of the

institutions responsible for the prosecution of these crimes, and strengthening the

29

Every year the National Police of Colombia is in charge to training members of security forces from another

countries in recent years the personnel trained is: Mexico 38, Brazil 25, Honduras 5, Guatemala 15, Peru 5, Chile

3, Paraguay 5, Argentina 1, Ecuador 28, Panama 10 and Dominican Republic. These are members of institutions

that struggle the kidnapping in their own countries.

21

capacities of the Attorneys dedicated to prosecuting these crimes, there would be a greater

drive to complete court cases in a timely manner. This implies that the inter-agency work

should be oriented primarily to the prosecution of members of organized criminal

organizations.

- Criminal investigation capabilities. To strengthen capacity of the judicial police with an

emphasis on forensic science and the interception of communications with a warrant, to

advance the investigation of crimes and ensure both prosecution of offenders and their

exemplary sentence.

- International judicial cooperation. Strengthen regional cooperation mechanisms in the

field of combating crime, with special emphasis on the collaboration of justice agencies.

- Safety of judges and prosecutors. Commit to improving the security conditions for

judicial officials that deal with crimes against personal freedom, to ensure that they can act

with full guarantees of their protection.

- Intersectoral coordination and synchronization. Strengthen cooperation with the

Judicial Branch to establish mechanisms for working with the Supreme Judicial Council

and, in general, the judges who are most familiar with crimes against personal freedom.

v. Assistance

This strategy focuses on victims' rights, with the main goal of providing the initial care for

those affected from a psychosocial perspective. It is necessary to emphasize that this axis

should also include any necessary legal advice and access for victims to those who can

help them in obtaining justice and reparation, bearing in mind the following aspects:

- To provide immediate assistance from a psychosocial perspective.

- The immediate presence to the occurrence of crime victims and their families.

- Ensure the rights of victims.

- Advise victims to access rights, truth, justice and reparation.

- Inform victims about specialized programs.

- Provide victims with the knowledge of state programs and legal benefits they are entitled

to by law.

22

C. Human Rights, International Humanitarian Law and Kidnapping30

In the legal sense, deprivation of life refers to the action that kills a person, and deprivation of

liberty refers to the action by which a person is stripped of his or her individual capacity.

However, it must be kept in mind that deprivation of liberty may be legitimate (or legal) or

illegal (or illicit). Deprivation of freedom is legitimate when perpetrated by persons engaged

on the basis of legal grounds and in exercise of a constitutional or statutory jurisdiction.

Included among the unlawful deprivation of liberty are acts arising from unlawful arrest,

arbitrary detention, forced disappearance, kidnapping or hostage taking. Examples of such

deprivation of freedom include people deprived of their liberty:

i. As a result of illegal actions executed by state agents.

ii. Those who are under the control of a non-party state, in a non-international armed

conflict.

iii. People who have been victims of a crime against personal freedom perpetrated by

individuals (e.g. kidnapping for ransom).

iv. Persons that in violation of international humanitarian law, have become hostage

to one of the disputing parties (Article 3, b. Common to the four Geneva

Conventions and Art. 4, 2, c. Protocol II).

There are several international instruments relating to deprivation of liberty and persons

deprived of freedom:

i. Article 2 of the American Convention on Forced Disappearance of Persons31

states: "... forced disappearance is considered the imprisonment of one or more

persons, whatever their form ... “

ii. Article 7, 2, i) of the Statute of the International Criminal Court32

states: "By

'forced disappearance' means the arrest, detention or abduction of persons by a

State or a political organization, or with the authorization, support or acquiescence,

followed by a refusal to report on deprivation of liberty ... “

iii. Article 4 of the Protocol Additional to the Geneva Conventions states, to

establishing the principle of fundamental guarantees, they shelter all persons

30

Michael Frühling, Human Rights, International Humanitarian Law, kidnapping and special agreements panel

on international humanitarian agreement and children in war, Colombia 2003. 31

Twenty-fourth regular session of the general assembly to the organization of american states, 06 September

1994. 32

United Nations Doc. A/CONF.183/9, Rome, 17th day of July 1998.

23

"taking no active part in hostilities or who no longer participate in them, whether

or not deprived of their liberty ... ".

iv. Article 5, 1. Protocol II states: "In addition to the provisions of Article 4, shall be

respected at least in regard to persons deprived of their liberty for reasons related

to armed conflict, whether they are interned or detained, the following provisions:

.. . ".

v. Article 5, 4. Protocol II states: "If it is decided to release persons deprived of their

liberty, who decide what should take the necessary measures to ensure the safety

of such persons."

vi. The Article 6, 5. Protocol II states: "A the cessation of hostilities, the authorities in

power shall endeavor to grant the broadest possible amnesty to persons who have

participated in armed conflict or who are detained, interned or detained for reasons

related to the armed conflict.”

The above allows distinguishing between persons legitimately deprived of their liberty

and people who have been deprived of it by an act which violates the criminal law. People

today, to a greater or lesser extent, know when a person has been victim of unlawful

arrest, arbitrary detention, forced disappearance, kidnapping or hostage taking; these

behaviors, criminal actions against Colombian criminal law, are also relevant to the

various branches of international law that protect fundamental human rights. Such

behaviors can be considered internationally as appropriate, such as human rights

violations, crimes of war or crimes against humanity.

It is therefore clear that the legal status is different in two groups of persons deprived of

liberty today in Colombia. The members of guerrilla groups that under written order of a

competent judicial authority are deprived of liberty in prisons in the country, and accused

of political crimes, common crimes, or convicted of an offense after being accused

thereof. Under international law these persons are considered as being under arrest or as

inmates. Under the International Covenant on Civil and Political Rights and to the

American Convention on Human Rights, each of these guerrillas is a "person arrested or

detained on a criminal charge," or a "person accused of a crime." The rights and

guarantees of these individuals are recognized and enunciated in articles 9, 10, 14 and 15

24

of the International Covenant on Civil and Political Rights33

and Articles 7, 8, 9 and 10 of

the American Convention on Human Rights.34

By contrast, the military, policemen and civilian persons deprived of liberty by illegal

armed groups are forced to pay with their freedom, bodily integrity, or their life, in order

to satisfy the demands made by those who hold power over them, are the victims of

criminal conduct prohibited by the laws of both the Colombian and international

humanitarian law and international criminal law. Under national legislation these people

are really passive subjects in the crime of kidnapping for ransom. By international

standards, however, they are victims of a war crime called hostage-taking. The

explanation of this topic is described in the next chapter.

33 General Assembly, Resolution 2200A (XXI); article 9, 1. Everyone has the right to liberty and security of

person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except

on such grounds and in accordance with such procedure as are established by law; article 10 1. All persons

deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human

person; article 14 1. All persons shall be equal before the courts and tribunals. In the determination of any

criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair

and public hearing by a competent, independent and impartial tribunal established by law; article 15 1 . No one

shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal

offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be

imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to

the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender

shall benefit thereby. 34

Pact of San Jose, Costa Rica; article 7, Right to personal liberty; article 8. Right to a fair trial; article 9.

Freedom from ex post facto laws; article 10. Right to compensation.

25

CHAPTER III THE INTERNATIONAL SCENARIO

On land, acts of kidnapping are becoming more common in many countries in the Americas.

Police-recorded acts of kidnapping in one Central American country increased fourfold

between 2004 and 2011.35

Underlying causes of kidnapping in this region may be linked in

particular to developments in the traffic in narcotic drugs. Inter-cartel feuding and a steady

decline in the demand for cocaine in North America, may be leading criminal groups to

kidnapping either for monetary gain or for other ends.36

A. International Framework37

The United Nations has made progress in building an international legal framework to combat

kidnapping, through legally binding international conventions for state parties and the

issuance of resolutions expressing the will and cooperation of countries that establish specific

mandates to specialized agencies.

The General Assembly of the United Nations, issued the Universal Declaration of Human

Rights,38

which established the basic parameters and minimum requirements to which any

person could claim, as inherent in their physical existence.

In this context, the crime of kidnapping violates the provisions of the instrument above

mentioned in their Articles 1, 3, 5 and 9,39

since it affects not only the victim but also their

families and society in general, since they are generally exposed to psychological pressure of

fear and anguish, in order to achieve its objective which is to obtain a ransom.

Therefore, this act is a punishable violation by one of the most basic human rights all persons

possess, which is freedom, a fact which makes the crime of kidnapping, as one of the most

despicable acts a person can commit.

35

Ernesto Santamaría, Procedimientos policiales Colombia; cases in Mexico increased from 323 in 2004 to 1322

in 2011; available at http://procedimientospolicialescolombia.blogspot.it/2012/02/estadisticas-de-secuestro-en-

mexico_3190.html, last visited June 24 2012. 36

Twelfth United Nations Congress on Crime Prevention and Criminal Justice; Salvador, Brazil, 12-19 April

2010. 37

Carlos fleitas, Kidnapping in the International Law, available at http://www.abc.com.py/articulos/el-secuestro-en-el-derecho-internacional-307067.html, last visited June 2012. 38

United Nations, adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948.

39 Universal Declaration of Human Rights, adopted and proclaimed by General Assembly resolution 217 A (III)

of 10 December 1948; article 1.All human beings are born free and equal in dignity and rights. They are

endowed with reason and conscience and should act towards one another in a spirit of brotherhood; article 3.

Everyone has the right to life, liberty and security of person; article 5. No one shall be subjected to torture or to

cruel, inhuman or degrading treatment or punishment; article 9. No one shall be subjected to arbitrary arrest,

detention or exile.

26

Some international legal instruments are relevant to the implementation of an effective

national and transnational strategy to combat kidnapping:

The UN GA Resolution 59/154 which is about international cooperation in the prevention,

combating and elimination of kidnapping and in providing assistance to victims, clearly notes:

1. Vigorously condemns and rejects once again the practice of kidnapping, under any

circumstances and for any purpose, especially when it is carried out by organized criminal

groups and terrorist groups; 2. Reiterates that organized criminal groups and terrorist groups,

as well as all perpetrators, are responsible for any harm or death that may result from a

kidnapping for which they are responsible and should be punished accordingly.40

The Hague Convention on the Civil Aspects of International Child Abduction, in order to

protect children internationally from the harmful effects of their wrongful removal or

retention and to establish procedures to ensure their prompt return to the State of their habitual

residence, as well as to secure protection for rights of access.41

Convention on the prevention and punishment of crimes against internationally protected

persons, including diplomatic agents (also referred to as the “Protection of Diplomats

Convention”) was adopted by the United Nations General Assembly on 14 December 1973.

It is one of a series of “sectorial” anti-terrorism conventions negotiated within the United

Nations and its specialized agencies. It built on the great codification of conventions in the

field of privileges and immunities, including the Vienna Conventions on Diplomatic and

Consular Relations. Already in February 1971, the Organization of American States had

adopted a convention on the subject. The Convention was negotiated in response to a spate of

kidnappings and killings of diplomatic agents beginning in the late 1960s, such as the killing

of von Spreti, Federal Republic of Germany’s Ambassador to Guatemala. The adoption of the

sectorial conventions typically occurred in response to such events: aircraft hijacking, aircraft

sabotage, attacks on shipping, etc.42

International Convention against the taking of hostages, which considers that taking of

hostages, is an offence of grave concern to the international community and that, in

40

United Nations - General Assembly, A/RES/59/154, 74th plenary meeting, 20 December 2004. 41

Hague Conference on Private International Law, Hague XXVIII¸ Entry into force: 1 December 1983. 42

Sir Michael Wood, Senior Fellow of the Lauterpacht Centre for International Law University of Cambridge,

United Nations Audiovisual Library of International Law, 2008.

27

accordance with the provisions of this convention, any person committing an act of hostage

taking shall either be prosecuted or extradited.43

The Protocol Against the Smuggling of Migrants by Land, Sea and Air, supplements the

United Nations convention against transnational organized crime. The purpose of this

Protocol is to prevent and combat the smuggling of migrants, as well as to promote

cooperation among States Parties to that end, while protecting the rights of smuggled

migrants.44

Further, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially

women and children, supplements the United Nations Convention against transnational

organized crime; the purposes of this Protocol is: (a) To prevent and combat trafficking in

persons, paying particular attention to women and children; (b) To protect and assist the

victims of such trafficking, with full respect for their human rights; and (c) To promote

cooperation among States Parties in order to meet those objectives.45

The purpose of the United Nations Convention against Transnational Organized Crime is to

promote cooperation and to prevent and combat transnational organized crime more

effectively.46

This Palermo Convention is of particular importance, compliance of which

should be strengthened in the Americas. In the Latin American hemisphere, all States are

party except Barbados, Saint Lucia, Saint Vincent and the Grenadines and Haiti. This is a

very important Convention because it seeks to strengthen the ties of international cooperation

to combat organized crime. It is not directed exclusively to combat kidnapping, but it contains

very important provisions to deal with it, such as defining elements of the crime.

The Convention also provides mechanisms and tools to address these transnational crimes,

such as extradition, mutual legal assistance, joint investigations, implementation of special

investigative techniques such interception of communications, controlled delivery,

surveillance and tracking and infiltration of criminal organizations, among others.

43

United Nations – General Assembly, Vol. 1316, I-21931, entry into force in 1983. 44

United Nations - General Assembly, Convention against Transnational Organized Crime, A/RES/55/25,

Annex III, January 2001. Entry into force January 28, 2004. 45

Ibid., annex II. Entry into force December 25, 2003. 46

Ibid., annex II. Entry into force September 19, 2003.

28

The United Nations Office on Drugs and Crime has developed a Manual Anti-Kidnapping

pursuant to Resolution 59/154 of the General Assembly dated December 20, 2004, in which it

is established that "Each case of kidnapping is not only a serious crime, it is also an incident

of critical and life threatening. It is a violation of individual freedom that undermines human

rights." Colombia worked closely with UNODC to develop the Manual.

Similarly important are the resolutions of the UN ECOSOC relating to international

cooperation in the prevention, combating and elimination of kidnapping and in providing

assistance for the victims:

UN ECOSOC Resolution 2002/16, exhorts member States that have not already done so, in

furtherance of the fight against kidnapping, to strengthen their measures against money-

laundering and to provide international cooperation and mutual assistance through the tracing,

detection, freezing and confiscation of proceeds of kidnapping, in order to undermine the

structure of organized criminal groups;47

Also, the Commission on Crime Prevention and Criminal Justice, establishes the extent and

types of kidnapping and links to organized crime and terrorist groups, as well as identifying

five broad categories of kidnapping: kidnapping for prostitution; kidnapping for extortion;

kidnapping by terrorists; kidnapping for other purposes such as camel racing or begging; and

kidnapping where a person (generally a female) was kidnapped with consent for marriage, but

the consent was invalid because the person was legally a minor.48

UN ECOSOC Resolution 2006/19 invites member states, once they have considered the

operational manual against kidnapping, to consider the possibility of using it in their national

efforts to combat kidnapping, and requests the United Nations Office on Drugs and Crime,

within available extra budgetary resources, not excluding the use of existing resources from

the regular budget of the Office, to provide to Member States, upon request, technical

assistance and advice in implementing the provisions of the manual.49

UN ECOSOC Resolution 2009/24 requests the United Nations Office on Drugs and Crime, in

coordination with other relevant entities, to provide technical assistance to Member States,

upon request, to enable them to strengthen their capacity to combat kidnapping, including by:

47

ECOSOC, 37th plenary meeting, 24 July 2002. 48

ECOSOC, E/CN.15/2003/7/Add.1. 49

ECOSOC, 41st plenary meeting 27 July 2006.

29

(a) Providing training for judges, judicial officials, prosecutors and law enforcement officials

to promote their understanding of processes and mechanisms available for disbanding

criminal organizations, including training in the use of special investigative techniques for the

rescue of kidnapped persons, bearing in mind the particular need to safeguard and protect

victims of kidnapping; (b) Reviewing trends and enhancing understanding of the problem in

order to create a basis for developing policies and strategies against kidnapping; (c)

Organizing practical courses or workshops for the exchange of experiences and best practices

in combating kidnapping, in collaboration with international or regional organizations.50

As can be seen, the block of international standards set by the United Nations is composed of

a variety of elements that give member states a variety of tools that play a guiding role in the

design of preventive, juridical, investigative and training strategies. On the other hand, it can

also be noted that each day, awareness is growing in the different member states to deal with

crime in a holistic manner, i.e. the origin and development of kidnapping may be related to

other crimes or simply the result of the commission of any criminal enterprise.

However, these measures prove ineffective in some cases, often due to the overwhelming

increase in certain crimes, the levels of corruption in some state institutions, the failure to act

by some authorities, and the lack of social solidarity to reject the presence of crime.

B. The kidnapping and hostage-taking, two egregious conducts51

One of the most egregious crimes against individual freedom is kidnapping. Unfortunately, an

observation of the Colombian reality yields sad data on the frequency and magnitude of the

brutal violation of criminal law. Although the rates are down over the past 10 years, in the

present day there are hundreds of Colombians, including children and adolescents, caught up,

misappropriated, withheld or concealed by people with the purpose of permitting their

freedom only in exchange of large sums, that help them achieve profits, perform or withhold

from the performance of violent acts on third parties, or obtain some political purposes.

Kidnapping is a barbaric attack on the individual's ability for self-determination, and not only

affects the autonomy of human beings to determine its own destiny, but also involves the

50

ECOSOC, 44th plenary meeting 30 July 2009. 51

Michael Frühling, Human Rights, International Humanitarian Law, kidnapping and special agreements panel

on international humanitarian agreement and children in war, Colombia 2003.

30

objectification of persons, the brutal reduction of the human being to the sad role of an

innominate object, with total disregard for dignity.

All of this can be said about the unlawful, immoral, reprehensible and blameworthy nature of

kidnapping for ransom. It also extends to hostage-taking. Hostage taking is no more than the

kidnapping of a person protected under international humanitarian law, as perpetrated by

those who act in any armed conflict taking part directly in the hostilities. The hostages and

victims of kidnapping for extortion purposes suffer the same abuse and the same injustice.

Through kidnapping and hostage taking, a serious disrespect of human rights materializes and

the State is obliged to prevent, prosecute, investigate, prosecute and punish this.

The fulfillment of this obligation is not easy. But the state which has come to violate this

requirement would be violating international commitments by ratifying the International

Covenant on Civil and Political Rights, the American Convention on Human Rights, the

Geneva Conventions of 1949 and the Additional Protocols thereto, signed in 1977.

The international human rights treaties impose on each State Party "the obligation to take

measures to protect life, liberty, privacy, reputation and other fundamental rights of people

against common and organized crime ...” In the specific field of the right to individual liberty,

these treaties require that national authorities to criminalize the acts violating or threatening

the juridical good and apply the punitive power of the state to carry out behaviors such as

kidnapping and hostage taking having as unavoidable legal consequence, the imposition of

criminal penalties according to law.

31

CONCLUSIONS

Without the government's policy decisions to fight head on against kidnapping within the law,

without timely response from the military and police force, without the strong pressure of

civil society, and without support from the private sector, Colombia would not have achieved

the gains that it has had to date in the fight against kidnapping. Nonetheless, this fight needs a

comprehensive policy under the leadership of the national government that can allocate a

substantial budget for national Armed Forces, in order to ensure that they have all necessary

means at their disposal. This would include technical means, modern communication

methods, and effective training of armed forces members, and support and visibility by civil

society to eradicate the problem.

The countries of Latin America and the Caribbean should not stand idly by when faced with

this crime. The matter must be attacked from the moment it arises, as it is a phenomenon that

can send a state reeling, much as Colombia did when the phenomenon first arose.

To fight against kidnapping, it is necessary to advance a cooperative plan and create joint

policies that include civil society, authorities, victims and governments, since military actions

are insufficient to solve the problem. Political will is needed from both the state and from the

part of illegal armed groups.

It is essential to have a permanent investment in technology, because criminals are always at

the forefront of technology and the state must maintain its research and monitoring

capabilities with the most state of the art technology.

The international community has set numerous legal rules to protect all human beings of

kidnappings in different frameworks, specifically within the framework of international

humanitarian law in the applicable legislation on terrorism, the common law and generally,

under the law of Human Rights. These frameworks, both nationally and internationally, seek

to repress the crime of kidnapping and ensure the prosecution of its perpetrators.

The Geneva Conventions of 1949, particularly Article 3 Common to the Geneva Conventions

and two Additional Protocols of 1977 and other International Humanitarian Law treaties that

Colombia has approved and ratified, are binding, not only for the Colombian Government and

its military forces, but also for the guerrillas and other illegal armed groups.

32

When illegal armed groups do not fulfill their obligation to return the hostages or release

hostages, it is up to the State to consider and examine all possibilities to ensure the human

rights of victims. In search of possibilities it is essential that the state always starts from one

premise: that is, always to have the duty to protect and ensure the full enjoyment of

fundamental rights of each of the hostages, including rights to life, personal integrity and

freedom. Any State action taken must be guided by the respect for these rights.

33

BIBLIOGRAPHY

Articles/ Reviews

Abstract of Meluk, E., El secuestro en Colombia y las multinacionales Europeas,

survey composed for Pax Christi Netherlands (Santafé de Bogotá, 2000).

Carlos fleitas, Kidnapping in the International Law, available at

http://www.abc.com.py/articulos/el-secuestro-en-el-derecho-internacional-307067.html, last

visited June 2012.

Peñate, Andrés, Arauca: Politics and Oil in a Colombian Province. (Oxford 1993)

Michael Frühling, Human Rights, International Humanitarian Law, kidnapping and special

agreements panel on international humanitarian agreement and children in war, Colombia

2003.

Sir Michael Wood, Senior Fellow of the Lauterpacht Centre for International Law

University of Cambridge, United Nations Audiovisual Library of International Law, 2008.

International legislation

Pact of San Jose, Costa Rica; article 7, Right to personal liberty; article 8. Right to a

fair trial; article 9. Freedom from ex post facto laws; article 10. Right to compensation.

Penal Code, Law 599; article 168, Simple kidnapping. He who for purposes different

from those provided in the following article, seizes, removes, withholds or conceals a person

shall be liable to imprisonment for twelve (12) to twenty (20) years and a fine of six hundred

(600) one thousand (1000) minimum legal monthly salaries; article 169, Kidnapping for

ransom. He who seizes, removes, withholds or conceals a person, for the purpose of

demanding for their liberty an advantage or profit, or to be done or omitted something, or for

advertising or political character shall be liable to three hundred twenty (320) to five hundred

and four (504) months and a fine of two thousand six hundred sixty-six point sixty six

(2.666.66) to six thousand (6,000) legal monthly minimum salaries. The same sentence

applies when the conduct is carried temporarily on means of transport in order to gain

economic advantage under threat. A legal monthly minimum salary is equivalent to 563.13

EUR.

Hague Conference on Private International Law, Hague XXVIII¸ Entry into force: 1

December 1983.

34

NGO reports

Pax Christi Netherlands, The kidnap industry in Colombia, Our business? Foreigners; the

most favored prey the involvement of foreign investors in the Colombian conflict, 75-76

(2000)

Pax Christi Netherlands, The kidnap industry in Colombia, Our business? Foreigners;

the most favored prey the involvement of foreign investors in the Colombian conflict, 80

(2000)

Other documents

Republic of Colombia, Ministry of National Defence, Operational Direction for the

Defense of Personal Freedom: Colombia went from 3,572 cases in 2000 to 229 in 2011.

Colombian National Army, Epitafio de los Inocentes. Human Rights Office. Fifth

Division (Santa fé de Bogotá 1998).

Republic of Colombia, Ministry of Defence, Política Nacional de Defensa de la

Libertad Personal 2010-2014, 2010.

Twenty-fourth regular session of the general assembly to the organization of american

states, 06 September 1994.

Press releases

Available at http://www.elnuevosiglo.com.co/articulos/6-2012-polic%C3%AD-

rescata-menor-ecuatoriano-en-cauca.html, last visited June 2012.

Available at http://sdpnoticias.com/nota/345120/os last visited on June 2012.

Available at http://listverse.com/2008/08/28/10-terrible-cases-of-kidnapping-and-

abuse/ last visited on June 2012

Available at http://lasvegas.cbslocal.com/2012/05/17/yuma-woman-surrenders-in-

2008-child-abduction-case/ last visited on June 2012

Available at http://www.guardian.co.uk/world/2012/jun/20/toulouse-hostage-bank-al-

qaida last visited June 2012

UN Documents

United Nations Doc. A/CONF.183/9, Rome, 17th day of July 1998.

United Nations Office on Drugs and Crime, Manual de Lucha contra el Secuestro (2006)

United Nations Office on Drugs and Crime; Crime and Development in Central America,

Caught in the Crossfire (2007).

35

UN reports

ECOSOC, Commission on Crime Prevention and Criminal Justice: International

cooperation in the prevention, combating and elimination of kidnapping and in providing

assistance to victims, E/CN.15/2003/7/Add.1.

ECOSOC, International cooperation in the prevention, combating and elimination of

kidnapping and in providing assistance to victims, E/CN.15/2004/7.

Twelfth United Nations Congress on Crime Prevention and Criminal Justice;

Salvador, Brazil, 12-19 April 2010.

UN resolutions

ECOSOC, Resolution 2002/16, International cooperation in the prevention, combating and

elimination of kidnapping and in providing assistance for the victims, 37th plenary meeting,

24 July 2002.

UN ECOSOC Resolution 2006/19

ECOSOC, E/CN.15/2003/7/Add.1.

UN ECOSOC Resolution 2009/24

International Covenant on Civil and Political Rights, General Assembly, Resolution

2200A (XXI)

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2004.

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of 10 December 1948.

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Crime, A/RES/55/25, Annex III, January 2001. Entry into force January 28, 2004.

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Crime, A/RES/55/25, Annex II, January 2001. Entry into force December 25, 2003.

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Crime, A/RES/55/25, Annex I, January 2001. Entry into force September 19, 2004.

Universal Declaration of Human Rights, adopted and proclaimed by General

Assembly resolution 217 A (III) of 10 December 1948

36

Notes

This article was written in June 2012.

1. The United Nations Global Compact is a strategic policy initiative for businesses that

are committed to aligning their operations and strategies with ten universally accepted

principles in the areas of human rights, labor, environment and anti-corruption,

available at http://www.unglobalcompact.org/ (last visited on June 19, 2012).

2. Open and transparent business practices that are based on ethical values and respect

for employees, communities, and the environment. It is designed to deliver sustainable

value to society at large, as well as to shareholders. Aaronson, 'Corporate

responsibility in the global village: The British role model and the American laggard',

Business and Society Review, vol. 108, no. 3, pp. 309-38, 2003.

3. The Voluntary Principles on Security and Human Rights (VPs) are a set of non-

binding principles created to assist extractive companies to balance security concerns

with human rights, available at http://www.business-

humanrights.org/ConflictPeacePortal/Specialinitiatives/VoluntaryPrinciples (last

visited on June 19, 2012).

4. The Foundation País Libre is a NGO, non-profit organization that works to prevent

and fight against kidnapping, extortion and forced disappearance, from the following

lines: Prevention and treatment of victims, advocacy in policy, knowledge

management, resources management and mobilization, available at

http://www.paislibre.org/site/ , last visited June 15 2012.

5. CONASE is an advisory body of consultation and coordination in the fight against

crimes against individual freedom; it is integrated by the Minister of National

Defence, the General Commander of the Armed Forces, Commander of the Army, the

Commander of the Navy, the Director General of the National Police, the Attorney

General's Office.

6. Ernesto Santamaría, procedimientos policiales Colombia; cases in Mexico increased

from 323 in 2004 to 1322 in 2011; available at

http://procedimientospolicialescolombia.blogspot.it/2012/02/estadisticas-de-secuestro-

en-mexico_3190.html, last visited June 24 2012.

7. Every year the National Police of Colombia is in charge to training members of

security forces from another countries in recent years the personnel trained is: Mexico

38, Brazil 25, Honduras 5, Guatemala 15, Peru 5, Chile 3, Paraguay 5, Argentina 1,

37

Ecuador 28, Panama 10 and Dominican Republic. These are members of institutions

that struggle the kidnapping in their own countries.