[DISCLAIMER : This post has not been adjusted to new developments in hostage taking situation. The recent release of another four Indonesian nationals has not been included. I was also seriously considering a redrafting by putting out analysis about whether the kidnapping by Abu Sayyaf falls as a sea piracy or hostage taking, either way, they are in and of itself, an interesting and intriguing field to be observed]
The hostage taking saga that has grabbed the emotion and attention of the Indonesian public is still on going. Recently, President Joko Widodo had made it public that Indonesia is preparing for a joint coordinated patrol with the Malaysian and the Philippines’ navies around the waters adjacent to their maritime borders. To that end, the Indonesian Government had convened the first round of trilateral discussion with the two countries and further meetings are expected to finalize the necessary modalities for the patrol.
Despite of such commendable endeavor, one might inquire, do we have other policy options at our disposal? How do we resolve the intricacies of a hostage taking situation while at the same time ensuring that deterrence will work its way in such future scenario? What sort of cooperation, that Indonesia, Malaysia and the Philippines, as ASEAN Member States, can foster to effectively and comprehensively address the hostage taking situation?
Apart from the safe release of Indonesian and other foreign nationals, another important goal, but which has not been adequately discussed in the public, is to ensure how such future enterprise by the hostage takers can be prevented and more importantly be deterred. This goal can be achieved through effective international cooperation.
There are two policy options in that regard upon which the Government can consider.
First, is to strengthen law enforcement cooperation between the concerned states. The goal is to go beyond the actual hostage takers and hence targeting their accomplices, as well as their instrumentalities and proceeds of crimes. By this spectrum, the response to hostage taking situation would not be a one-off, but a persistent and a continuous one.
Second, to carry out naval coordinated patrol in the maritime spaces that is prone to hostage taking. Such patrol can be carried out on a regular timeframe agreeable to all concerned states involved. The current initiative of joint coordinated patrol by the Indonesian Government attested to this second option.
For a law enforcement response, Indonesia, Malaysia and the Philippines can resort to the ASEAN Convention on Counter Terrorism (ACCT), which was signed in 13 January 2007 and entered into force on 27 May 2011. ACCT serves as a legal platform to which ASEAN Member States can cooperate in countering, preventing, and suppressing terrorism in all of its forms and manifestation.
Hostage taking is considered as an offence under the ACCT. Article II of the ACCT enlists all of the 14 (fourteen) international conventions on terrorism, including the 1979 International Convention against Taking of Hostages (Hostage Taking Convention), and stipulates that each of the offences prescribed in the enlisted conventions, to be regarded as an offence for the purposes of the ACCT.
Article 1 of the Hostage Taking Convention defines hostage taking as, “any person who seizes or detains and threaten to kill, to injure or to continue to detain another person (hostage) in order to compel a third party, namely, a state, an international intergovernmental organization, a natural or juridical person, or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offence of taking hostages (hostage taking)”.
In such a way, even though Indonesia is not a state party to the Hostage Taking Convention, it is bound to regard hostage taking as an offence under the ACCT. Corollary, on the same footing, other parties to ACCT are under the same legal obligation. Unless, if there is any of the parties to ACCT that stated otherwise, by virtue of declaration or notification. Indonesia, Malaysia and the Philippines made no such statement of that effect to the Hostage Taking Convention when depositing their Instrument of Ratification.
ACCT ensures that states parties can cooperate to extend their jurisdictional reach beyond the actual hostage takers. Article VI provides that states can cooperate to take measures, among others, against any persons who are accomplices to the offence or against those who are involved in the financing of terrorism.
Furthermore, states can take measures against the instrumentalities used in the hostage taking or the proceeds of crimes generated from the ransom money or from other illicit resources. This means that states parties can forfeit or seize the instrumentalities or proceeds of crimes which are under their respective jurisdiction or through cooperation on mutual legal assistance in criminal matters.
ACCT can also be utilized as a legal avenue to enhance intelligence exchange and sharing of information in order to bring out the most of law enforcement measures against the hostage taking.
In a shebang, the law enforcement policy will then prevent the hostage takers from making gains out of their criminal acts and penalize those who are involved. Hence, the law enforcement approach can also be seen as an incremental paralysis of the hostage taker’s capacity to resist and of its financial sustainability.
Just as Sun Tzu’s maxim goes, “When the enemy is relaxed, make them toil. When full, starved them. When settled, make them move”.