Is the Hostage Convention Fit For Purpose to Address ‘Hostage Diplomacy’?

[Beatrice Lau is a humanitarian worker from Hong Kong and Advanced LL.M candidate in Public International Law at Leiden University]

On 6^th July, the Belgian parliamentary committee passed the first reading of the bill, ratifying the provisional “prisoner exchange” treaty, signed between Belgium and Iran in March this year. The bill, if passed in the lower house of the Belgian parliament, will provide the legal framework to allow the two states to swap jailed nationals. In introducing the bill for the first reading, the Belgium justice minister, Vincent Van Quickenborne, is reported to have said that a Belgian had been held in Iran on espionage charges and that the risks were grave for him and others “unless a deal could be cut with Tehran”. The Belgian man referred to is later revealed to be Olivier Vandecasteele, an aid worker who has worked in a number of countries with various international humanitarian organisations and had stationed in Iran for more than six years. Vandecasteele was seized on 24 February on espionage charges as negotiations for the bilateral treaty was underway. Additionally, Iran is believed to have been leveraging the death sentence over the Swedish-Iranian medical doctor and visiting professor at an university in Brussels, Ahmadreza Djalali, who had been arrested in 2016 for “acting against Iran’s national security”, to pressure Belgium to enter into a swap deal (see here, here, and here).

It is widely reported (see, for example, here, here, here, here, and here) that Iran’s interest in the bilateral treaty is intended to facilitate the exchange of Assadollah Assadi – a former Iranian diplomat who is serving a 20-year prison sentence in Belgium for his involvement of an attempted bomb attack in Paris in June 2018. Amnesty International has reported to have gathered convincing information linking Iran’s treatment of Djalali to also another high-profile trial in Sweden of Hamid Nouri, the first criminal case brought under universal jurisdiction against an Iranian defendant. A former Iranian security official is said to have confided in an audio recording that the authorities are holding Djalali on death row for the purpose of “pursuing a ‘swap’ with Belgium and that coordinated state media articles expressing the authorities” view that the death sentence of Djalali “in retaliation for criminal proceedings against Hamid Nouri” may deter similar actions against Iranian officials in the future. 

Belgian MPs, human rights groups, critics, and US politicians raised red flags on the proposed treaty, condemning that it risks granting impunity for perpetrators of serious human rights violations and international crimes. This is a valid concern, considering that the assumption justifying a transfer or exchange of prisoners, i.e. the convicted person will continue to serve his or her sentence in the home country is unlikely to be respected in the case of Assadi, as analysed by observers (see here and here). This post, however, aims to focus on the discussion of the risk that such move will encourage and normalise the practice of what is commonly referred as ‘hostage diplomacy’. While there is no agreed definition of the term, Gilbert and Piché propose that ‘hostage diplomacy’ is the phenomenon where states detain foreign nationals under the guise of national law as a means to coerce the foreign policy of another state. One would quickly recall, for example, the detention of British-Iranian Nazanin Zaghari-Ratcliffe by Iran and Canadian nationals, Michael Kovrig and Michael Spavor, by China. Ratcliffe (and two other dual/multiple-nationals) were released one day after the UK had finally settled the historic debt of £400 million owed due to an uncompleted sales contract of defence equipment. Similarly, the “two Michaels” were released just hours after the US Department of Justice had announced a deferred prosecution agreement with Meng WanZhou, the Chief Financial Officer of Huawei, resulting in the extradition request to Canada against Meng being dismissed. Other than Iran and China, Turkey, Egypt, and North Korea have also been accused of engaging in ‘hostage diplomacy’.  

This label, however, is problematic. The mischaracterisation as a form of ‘diplomacy’ conveniently avoid the need to call a cat a cat: to detain a person in order to compel a third party to do or not do any act as a condition for the release is, legally speaking, an act of hostage-taking (Article 1, International Convention Against the Taking of Hostages [“ICATH”]). It is, therefore, a positive development that more actors are dropping the euphemism in this current case (as compared to the incident of Ratcliffe and the “two Michaels”) and pin-pointing it as an act of hostage-taking by state. Amnesty International is also calling the Swedish and Belgian authorities to investigate the detention of Djalali in accordance to the framework of the ICATH. 

There are, however, at least two areas where the ICATH may fall short in serving the purpose of addressing state-to-state hostage taking.

Qualification as a Hostage

Article 1(1) defines hostage-taking as:

Any person who seizes or detains and threatens to kill, to injure or to continue to detain another person (hereinafter referred to as the “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 of hostages (“hostage-taking”) within the meaning of this Convention.

In the cases of Djalali, Ratcliffe, and the two Michaels, they are all ‘officially’ a prisoner convicted and sentenced according to the domestic legal system of the detaining state (as of the time of this post, Vandecasteele is not convicted yet). This should not be a surprise as the criminalisation is part of the design to disguise the otherwise unjustified detention. It is also for this reason that victims are often charged for ‘espionage’ or activities endangering ‘national security’ – offences to which ‘evidence’ need not be disclosed due to state secret privilege and are extremely difficult to challenge, if at all.

The existence of another concurrent reason for the detention is not enough to establish that the persons were not hostages, as the US court in Simpson v Socialist People Libyan Arab Jamahiriya has held, because the perpetrator ‘may have more than one reason for the(ir) detention’ (§6-7). A ‘criminal proper’, therefore, may also be used as a hostage. Nevertheless, it is obvious that not all acts of convicting a foreign national by a state are to be called hostage-taking. The key distinction is, as per the definition in Article 1(1), the existence of a demand as a condition for release.

This is where the biggest challenges to the qualification lies. States make demands to each other on a daily basis; it is just in the nature of international relations and cooperation. The mere existence of a demand by one state to another is, therefore, insufficient; the onus is to establish the nexus between the demand and the detention: that the fulfilment of the demand as a condition for release in order to qualify the situation as hostage-taking. Perpetrating states, however, seldom overtly communicate the linkage; rather, they orchestrate to have the demand ‘to be understood’ by the victims or their families, in bilateral diplomatic negotiations, or simply let it be inferred through the synchronised timing of the events.

Article 1(1) expressly covers condition for release that is “implicit”; the Appeals Chamber of the Special Court for Sierra Leone (“SCSL”) in Prosecutor v. Sesay, Kallon and Gbao (RUF case) also drew on this definition and found that the offence of hostage-taking “requires only an intention by the perpetrator to compel a third party, which may be proved […] by the issuing of a threat to the detained person alone, or inferred from other evidence” (§582). Similarly, the US court in Simpson, relying on the explanatory commentary on the Convention, also held that “the words ‘in order to compel’ do not require more than a motivation on the part of the offender” (§5). However, the difficulty in proving the mens rea of a state cannot be underestimated, especially as suspected perpetrating states often deny the connection (for example, here and here). A set of explicit criteria to ‘pierce the veil’ and qualify the situation as state-to-state hostage-taking would be critical to facilitate the application of the Convention.

Operation of Article 13

Article 13 removes the application of the Convention from hostage-taking which are ‘internal in nature’, whereby the hostage being a national of the hostage-taking state is one of the four cumulative conditions defining the exclusion. This gives rise to the question whether victims, such as Djalali and Ratcliffe, who hold more than one nationality, including that of the perpetrating state, are protected by the Convention. Particularly states which do not recognise dual-nationality (including Iran and China) may be tempted to rely on this clause to exclude the application of the Convention.

As the purpose of the hostage-taking is to compel the other state of nationality, Ferstman and Sharpe argue that it internationalises what might otherwise be a purely domestic act. The travaux préparatoires show that the drafting delegations had debated quite extensively the question of whether the Convention applies when the target of demands was a foreign state (Lambert, p. 308-310). Opinions were divided: one group believed that “the Convention should apply whenever any state is subjected to demands”; a second group supported the view that it only applies “when the State that was subjected to demands was other than the State wherein the offence took place”; and a third group treated the targeted state being a foreign state as irrelevant “if the offence was otherwise purely internal” and that the situation would be caught by Article 13 and the Convention would not apply (p. 310). Lambert reckons the fact that the draftsmen did not adopt the various proposals which would have given effect to the first two groups’ position but instead agreed with the adoption of the final wording as in the existing provision, even though the delegates were well aware it would result ‘in a restriction of the scope of the Convention’, seem to suggest that Article 13 would operate to bar the application of the Convention if the demand is targeted to a foreign state.

To say the least, Lambert recognises that the purely domestic circumstances contemplated by Article 13 would not apply if the pattern of hostage-taking by the perpetrating state involves multiple nationals including foreign nationals. This is because for the offence to remain outside of the scope of the Convention, ‘all the hostages and all the offenders must be nationals of the state in which the offence was committed’ (p. 312). It signifies that continuous monitoring of cases to establish a pattern of practice of specific states is crucial for supporting the operation of the Convention. In the case of Iran, the UN Special Rapporteur on Iran has reported and the UN Working Group on Arbitrary Detention has stated (for example, here, here, and here) that individuals were targeted for detention “because of their status as foreign or dual nationals”. However, these observations are made within the framework of arbitrary detention with the absence of qualification as hostage-taking. Their value to bar the operation of Article 13 may, therefore, be discounted.

Conclusion

It is becoming increasingly pertinent to recognise that a legal response is needed to address the proliferation of the practice of detaining foreign or dual nationals to coerce the other state.  The first step is to correctly label it as state-to-state hostage-taking. However, the ICATH may not exactly be fit for purpose. There is a strong case to call for further development in international law, through jurisprudence to fill the gaps identified, or even more ideally, a specific instrument to sanction state-to-state hostage taking.