Chapter 5
Options and decisions—paying a ransom
5.1
The committee understands and supports the government's no-ransom policy
and as a consequence its position that it cannot be a direct party to any
negotiations toward such a payment. Even so, the committee understands that the
families of kidnap victims in their desperation to save the life of their loved
one may be prepared to pay a ransom. In this regard, the committee notes DFAT's
statement that it is open to others outside of government taking the lead in
responding to kidnapping cases—employers who choose to act through their
insurers and families who engage a private contractor.[1]
As noted in the previous chapter, the department holds the view that these
situations 'are entirely appropriate and it is open to employers and families
to take whatever approach they consider most effective to achieve resolution'.[2]
5.2
Despite the government's no ransom policy, and its understanding and
acceptance of families taking measures on their own initiative to secure the
release of a family member, these families are likely to need government
assistance. In this chapter, the committee explores the role of government
agencies in cases where a family is contemplating the payment of a ransom.
Difficult decisions
5.3
At the time of a kidnapping, family members are confronted with
difficult choices, including whether to pay a ransom. As noted in the previous
chapter, both the Wood and Brennan families supported the government's no-ransom
policy. Even so, both appreciated that when confronted with the reality of
kidnapping, their prime concern was with the immediate and safe return of their
loved one. Dr Wood explained to the committee that the 'threatened murder of a
loved family member is emotionally taxing and poses vexatious questions of
political and personal ethics'.[3]
5.4
Caught totally unaware by events, family members are in no position to
make decisions about the appropriateness of offering and/or paying a ransom and
ill-equipped to engage in negotiation with the hostage-takers. Yet at this time
of confusion, uncertainty and distress, they are faced with difficult choices.
Dr Wood stated:
The family had all sorts of people approaching us during the
crisis suggesting all kinds of actions, including that [engagement of private contractors].
We needed to assess whether we were prudent to rely only on the government,
basically, and our own exertions, which were pretty much limited to contacts
with the Muslim community or making media releases and so on.[4]
5.5
He agreed that expert private contractors have a role.[5]
The Wood family, however, struggled with the prospect of paying a ransom:
In the first week of such a crisis a family tries almost
anything...Anyway, to cover all bases I felt that we should at least be
prepared to pay money or say something about money. So, you can imagine, the
family...had some difficulty and faced some turmoil in coming to a position on
that....in the end we resolved that we would not be prepared to pay a ransom
but we could go so far as to offer to make a charitable donation to the people
of Iraq...But the family does try to do whatever it can.[6]
5.6
Having made the decision to make a donation instead of paying a ransom,
the family received confusing advice from government agencies. For example, while
DFAT informed them that the decision to pay a ransom was the family's to make,
some officials reportedly informed the family that a ransom would be necessary
and that their offer should be explicitly distinguished from a ransom payment.[7]
Dr Wood explained that DFAT 'encouraged diplomatic ambiguity, to keep the
captors guessing'.[8]
In his view, DFAT's opinion, carefully phrased and given orally, was clear—that
only a ransom was likely to secure Douglas' release. He noted that although
DFAT 'would not be party to any ransom being paid, they said what we might do
was our business'.[9]
5.7
While Dr Wood understood the position DFAT officials were in, he
suggested that the ambiguity of the advice caused some distress to the family:
It did seem that DFAT knew that we would need to pay some money
if we wanted a successful outcome, unless there happened to be a rescue. But
again, they did not feel in a position to advise anything about money—how much,
how to get it, how to pay it, to whom, what mechanisms to use, banking
arrangements. So we felt a little on our own, and I am not saying that it is
necessarily wrong, because I do agree that the government should not be paying
money.[10]
5.8
In this regard, Mr Brennan argued that if the Australian Government
decides not to pay a ransom, then 'families of kidnapped persons should be told
that immediately and provided [with] advice that alternatives exist external to
the government'.[11]
But while DFAT claimed to be open to families taking whatever approach they
considered effective to achieve a resolution, evidence indicated that the
department did not provide clear information or advice to the families on
alternative approaches.
Paying a ransom and advice to families
5.9
As noted previously, kidnapping for ransom can be described as 'a
lucrative business'. A large industry has grown in response to the number of
kidnappings that take place worldwide with insurers offering kidnap and ransom
insurance and companies hiring highly paid crisis response consultants,
negotiators, lawyers and security personnel to protect their staff. For
example, the President of the General Assembly in May 2010 noted that ship
owners can 'take out private insurance that covers negotiation assistance and
ransom payments'.[12]
5.10
A kidnap and ransom consultant informed the committee that in his
experience when a kidnapping occurs 'a lot of people come out of the woodwork,
approach the families and say, "I'm the bees knees, you just need to pay
me a lot of money and I'll do it" or they will say. "tell you what:
I'll work for free," because they just want the experience and the
exposure'.[13]
Clearly, having weighed up the options for a safe release, a family considering
paying a ransom needs guidance and support on how to proceed and whom to trust.
Assistance identifying a reputable
intermediary
5.11
From the first day, DFAT made clear to the Wood family that 'in no
circumstances would the Australian Government pay a ransom' and that it was
entirely up to the Wood family to decide what to do. Dr Malcolm Wood noted that
there 'was a bit of a disconnect between their official hands-off policy and
their willingness to allow us to do whatever, including pay money'.[14]
He accepted that it was a tricky position for government officials but in his
view 'there was perhaps some ambiguity or scope for misunderstanding'.[15]
Dr Wood explained:
As I recall, my eldest brother in England, Graeme, and my
brother in Melbourne, Vernon, between them sussed out the existence of such
firms from people that talked to them and then from the internet. They made
contact with people in those firms. Our principal interest at this stage was
not rescue; it was simply the matter of getting money into Baghdad. I then
talked to DFAT about our interest in this and the extent, limited though it was,
of our knowledge. They then told us what they knew, but not with any great
detail. They indicated probably only orally that there were some firms that
could help us. They could give us some names and it was then up to us to follow
up. I think they did give us a couple of names. We already knew of those firms
and we had already been in touch. So effectively, they were a bit behind the
eight ball.[16]
5.12
In Dr Wood's view, DFAT held back information: that they were not as
forthcoming as they could have been. He understood the position that the
department was in but, at the same time, it was not easy for the family. While
he acknowledged that the level of contact was exemplary:
There was a difficulty when money was necessarily being
discussed in draft authorities [for a third party intermediary], about Foreign
Affairs transmitting that to Nick Warner through their channels, because of the
possibility that at some stage, if people knew that they had passed such
information, they could be implicated in money.[17]
5.13
Dr Wood informed the committee that DFAT provided very little
information on the services available from private firms that act as
intermediaries to secure the release of a captive. He explained:
Only when we mentioned this to Foreign Affairs did they admit
that there were such firms that could help.[18]
5.14
He was of the view that the department's advice was 'somewhat reactive
and limited'.[19]
5.15
Mrs Bonney also acknowledged the overriding concern of securing the
release of a family member, and in the case of the Brennan family, a ransom
appeared to be the only viable option. She told the committee:
...if money was the thing that was going to get Nigel home,
that was what we were going to provide. I do not think, when push comes to
shove, that any other family would be able to do anything different.[20]
5.16
The Brennan family also received mixed and confusing messages from
government agencies about the payment of a ransom. Mrs Bonney explained that in
April 2009 she rang a consular official 'no less than three times asking for
names of companies'.[21]
5.17
The family had, however, already undertaken preliminary research. According
to Mrs Bonney, the family was not told explicitly to avoid engaging a K&R
specialist. She recalled that she specifically asked for names:
We were hoping to achieve some sort of credibility in the
names that we requested from the Australian government because we believed that
there were companies that do train Australians and are used for that purpose.
Two of them that we are in contact with now actually do and are quite involved
with the ABC journalists. That was the information that I was trying to get
because we had sourced five or six different ones. I wanted someone that I
believed the Australian government felt comfortable about recommending to us.
We were actually told by a consular official that they would not recommend
anyone lest they be regarded as cowboys or mercenaries.[22]
5.18
A K&R consultant suggested to the committee that DFAT could have a
role in establishing the bona fides of such companies—'do due diligence,
establish credentials'.[23]
It was an ABC journalist who eventually referred Mrs Bonney to the company that
finally secured her brother's release.[24]
Mrs Bonney told the committee that she had spoken to the kidnap and ransom
company that dealt with Colin Freeman, a British journalist held hostage in
Somalia from late November 2008 until January 2009. Based on the actions of a
family friend, Mr Freeman made contact and put Mrs Bonney in touch with his
titular head who then referred her to the K&R company in question.[25]
5.19
Evidence before the committee indicated that in addition to failing to
assist family members to identify credible companies in the K&R field,
pressure could be exerted on them to resist going down the ransom path. For
example, Mrs Bonney explained that a letter from the then Minister for Foreign
Affairs suggested that they should not be engaging a K&R firm: that that
was not an option the family should be taking whilst the Australian government
was involved.[26]
Indeed, the committee was told by a consultant who specialises in kidnap and
ransom cases that DFAT has not only discouraged families from engaging such
specialists but pressured them into not doing so. The consultant gave an example
of one case where, according to the family, DFAT told them that if they met a
kidnap and ransom consultant the department 'would walk away from the
case—"you make a decision: it is them or us"'.[27]
5.20
Government agencies are able to tap into a range of intelligence sources
to gain an insight into the circumstances of the kidnap and the kidnappers,
their motives and the way they operate. As such the agencies are in possession
of vital information and well placed to explain to families the options
available for the safe release of their loved one. Although the Australian
government has a no-ransom policy, the committee believes that government
agencies have an important role to inform the families of a kidnap victim of
all the possible avenues open to them. This information should be presented to
the families in such a way that would allow them to make a well informed
decision including the payment of a ransom. When providing this information,
agencies should be conscious of the need to be non-judgemental and to convey in
clear language what government agencies can and cannot do in respect of each
option.
Sharing information with private
contractors
5.21
The committee also took evidence indicating that DFAT refused to pass on
information about the circumstances of the kidnapping and intelligence on the hostage
takers to the Brennan family's K&R consultant. Mr Brennan noted that when
AKE came on board, the Australian Government refused to hand over any
documentation or information because they said there was a security clearance
problem which then slowed down the process.[28]
In his opinion, DFAT's decision not to hand over this critical information or provide
AKE with a formal situation briefing was a dangerous one: that 'through its
actions my own Government prolonged my kidnap and duress by many months'.[29]
5.22
In Mrs Bonney's assessment, there was a total lack of information and
intelligence on the ground of the situation. She explained that DFAT had the 'constant
security clearance issue'.[30]
She wanted to know whether there was some way whereby they could have overcome
these perceived security clearance issues:
Surely there is some way that that can be done. I do not know
what you have to do, but there has to be some way around that.[31]
5.23
The committee understands that some of the intelligence gathered by
Australian government agencies would have been highly sensitive yet of great
benefit to the K&R consultant. It is of the view that DFAT should have done
its utmost to converse with and to convey as much information as it could to
the family's K&R consultant.
Information on legal impediments
5.24
Finally, both the Wood and Brennan families were not informed about the
legal implications of transferring large amounts of money to another country
until the process was in train. The Wood family were only belatedly informed as
to possible legal problems they could face in transmitting money to Iraq in
order to facilitate a charitable donation. Dr Wood submitted that the family
only learnt of possible issues when Vernon Wood's bank referred to certain
provisions under the Criminal Code applicable to the transmitting of funds
which may be used by or benefit terrorists. After raising the issue with DFAT,
the family was informed of certain companies that could safely transmit funds
on behalf of the Wood family.[32]
The Wood family had, however, already researched and become aware of these
firms.[33]
5.25
Similarly, the Brennan family found out about serious legal problems
related to paying a ransom only after they had committed to this course of
action. Mrs Bonney informed the committee that the government was well aware
that her family was paying a ransom. According to Mrs Bonney, the bank expressed
concerns about handling the transaction because they might have been liable to
prosecution or sanctions themselves.[34]
Mr Brennan noted further the same concerns related to generous individuals as
well: that they would possibly face prosecution.[35]
5.26
The Brennan family encountered not only a lack of information in regards
to the legal issues around paying a ransom but also a lack of empathy for the
distressing predicament in which they found themselves. Mr Brennan's
sister-in-law, Kellie Brennan, arranged for the transfer of the ransom money
from Australia. She encountered resistance from the Somali money transfer
company, concerned that they could be prosecuted. The company was seeking
reassurances from the Australian government. Kellie Brennan explained in The
Price of Life that when she asked the head of DFAT operations in Canberra
to call the company and let them know that the department was aware of the
transaction, she was laughed at and told that the government cannot facilitate
the payment. In Mrs Brennan's account, she was told: 'Kellie, this is your
problem and we are not able to help. We won't stop the money going through but
we can't help you get it there'.[36]
5.27
The issue of legal impediments to ransom payments is examined further
in chapter 10.
McCarthy review
5.28
The McCarthy review recommended that if the next of kin wishes to
proceed with a contractor 'it would be in everyone’s interest to provide them
with the names of a couple of companies known to the Government that might be
able to help'.[37]
5.29
In light of recent experiences, DFAT has issued definite statements on
its approach to managing future kidnapping events. It has acknowledged the appropriateness
of a victim’s family engaging a private contractor to lead a response to secure
the release of a hostage. Furthermore, the department has recognised the
importance of providing clear advice on the implications of the no-ransom
policy for the handling of a particular case, including where a ransom payment
has been demanded and the possible timelines. DFAT Deputy Secretary, Ms Gillian
Bird, indicated that in future the department would be 'as upfront as we can'.[38]
She explained that one of the lessons coming out of the Brennan kidnapping,
identified in the McCarthy review, was the importance of communicating to next
of kin from the outset, 'what the government can and cannot do in an
international kidnapping case' and 'the option of engaging a private contractor
should they wish to pay a ransom'.[39]
She stated:
If the next of kin wishes to proceed with the contractor, we
will provide them with the names of some companies which might be able to help.[40]
5.30
Ms Bird explained further that the department had not in the past
explicitly said to a family at the outset that there was the private contractor
option—however, that option has always been open to families.[41]
She said:
We have never stood in the way of a family that wishes to
engage a private contractor. That has always been an option for them, but we
will in future be absolutely crystal clear at the outset that there is that
option should they wish to pursue it.[42]
5.31
Ms Bird explained that if a kidnapping occurred tomorrow, the department
would give that advice orally. She stated:
We are also in the process, to ensure that it is absolutely crystal
clear, of putting that in writing so that the family has a clear written advice
as well as what we would provide orally...We are still in the process of ensuring
that any names that we give are ones that we have done due diligence of. We are
talking to the Brits, the Americans and others as part of that process. We are
well advanced; we should have that done soon...my colleague made a good point
that we would not be endorsing this...It is like we do overseas. We give lists of
lawyers.[43]
5.32
Importantly, the department has indicated that it would continue to
provide consular support to the family and maintain the channels of
communication between the Australian and other relevant governments and
entities. It would also continue 'to monitor information on the case, including
through intelligence networks, and monitor the efforts of the employer or
negotiator'.[44]
5.33
The committee welcomes the assurances given by DFAT that in future it
would continue to support a family that chooses to pay a ransom and that it is
taking concrete steps in the form of drafting written guidelines to provide to
families.
Committee view
5.34
Even though, the Australian government has a clear no-ransom policy, it
still has an important role in providing advice and guidance to the family members
of a kidnap victim who opt to pay a ransom. They certainly should not be abandoned
and left to their own devices.
5.35
During its consideration of these matters, the committee touched on the
manner in which DFAT, in particular, related to the families. It noted
instances where rather than help them with their difficult choices, DFAT added
to their confusion, uncertainty, and distress; for example, by refusing to help
the family identify reputable companies and declining requests to share information
with the family's chosen negotiator. The committee also noted that the Wood and
Brennan families were not made aware of possible legal complications concerning
the transfer of funds to Iraq and Somalia. The committee was particularly
concerned by the Brennan's reports of a DFAT officer laughing in response to a request
by Kellie Brennan for assistance in regards to the transmitting of money to
Somalia.[45]
5.36
The committee believes that an important part of DFAT's consular role is
to continue to provide assistance to a family that decides to pay a ransom.
That support can take the form of providing information to the family on
reputable firms that undertake K&R tasks; passing on relevant intelligence to
the family's chosen K&R consultant; and informing the family about possible
legal complications with the transfer of money.
5.37
The committee fully supports DFAT's acceptance of the McCarthy
recommendation that it provide next of kin with the names of companies that
might be able to help family members should they decide to proceed with a
private K&R specialist. The committee, however, would like to expand on
some aspects of McCarthy's recommendation. These include ensuring that DFAT
provides comprehensive advice to the family on the options before them promptly
and in a non-judgemental way and, wherever possible, in a timely manner. Also,
that the department improves its relationship with the private consultant, and that
the family are made aware of the possible legal impediments to paying a ransom.
Recommendation 1
5.38 The committee recommends that:
- DFAT ensures that the next of kin of any future kidnap victim are
made aware of the option of engaging a private kidnap and ransom consultant; and
- if the next of kin decide to proceed with a private
consultant, DFAT ensures that any advice or information it then provides to the
family is given in a non-judgemental way; that it is willing to cooperate and
to share relevant information with the consultant as appropriate (given
national security concerns); and that it alerts the family to possible legal
complications to paying a ransom.
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