Who Gets to Say Who is Wrongfully Detained?: The Muddy Contours of “Hostage Diplomacy”

[Beatrice Lau is a humanitarian professional from Hong Kong who has worked in Niger, Haiti, Tajikistan, Malaysia, Libya, Tunisia, and Belarus. She holds an LL.M in Advanced Studies in Public International Law from Leiden University.]

Brittney Griner, the American Women National Basketball star and two-time Olympic gold medalist, was convicted in Russia on August 4 for drug possession and sentenced to nine years in prison. Numerous media outlets and commentators have described Griner as a human pawn in a political quid pro quo between Russia and the US (see for example, here, here, here, and here). 

Facts of the Case

Griner was arrested in February at a Moscow Airport while returning to play for a Russian team: the airport customs officials found two vape canisters containing cannabis oil in her luggage. Cannabis is illegal in Russia. In her trial in July, Griner admitted that the cartridges were hers and pleaded that they were included in her luggage due to an oversight as she was ‘packing in a hurry’. According to the evidence submitted by her lawyer to the court, a medical doctor had advised Griner to use medical cannabis for chronic pain management. 

The US government first made the determination that Griner was a case of “wrongful detention” on May 3, seventy five days after her arrest. This change in official designation signified that her detention was no longer a consular matter but elevated to be supervised by the Office of the Special Presidential Envoy for Hostage Affairs. In other words, the US government officially classified Griner as a hostage.

Upon the conviction by the Russian court, the deputy chief of mission at the US embassy in Moscow, Elizabeth Rood, described the 9-year prison sentence given to Griner had been “a miscarriage of justice“. The US Secretary of State, Anthony Blinken, responded in a statement that ‘the conviction and sentencing by a Russian court of U.S. citizen […] further compounds the injustice of (the) wrongful detention’. Similarly, President Biden said the sentencing of Griner is ‘one more reminder of what the world already knew: Russia is wrongfully detaining Brittney’.

Wrongful Detention? Says Who?

Griner was indeed carrying controlled narcotics into Russia. How, then, was her detention wrongful and the conviction a “miscarriage of justice”? Russia has a reputation of zero-tolerance on narcotics addition since the 1920’s and has long enforced stringent drug control laws equally towards its own nationals (the fact that the narcotic laws are allegedly being used as a “weapon” against Russia’s political opponents, civil-society activists, and journalists is yet another story).  Nevertheless, it is argued that strict narcotic laws do not only exist in Russia. In the U.S., for example, the state laws of Mississippi and Louisiana provide for life sentences over the possession of a ‘small amount of cannabis’. In other words, Griner could have equally been detained in the US, at least in certain states, under the exact same set of facts.   

From the procedural point of view, a scholar of Russian law points out that, in accordance to the Russian Criminal Procedure Code, a foreigner with no permanent residence in Russia, such as Griner, is ineligible for bail. Additionally, the criminal procedures in Russia do not recognise “pleas” – prosecutors are ‘to prove guilt regardless of any confession’.

According to a correspondent reporting from the courtroom, Griner is convicted under Part 1 of Article 228 and Part 2 of Article 229.1 of the Russian Criminal Code (illegal possession drugs on a large scale without the purpose of sale). “Large scale” is defined in the Code as ‘a quantity […] exceeding the average one-time consumption dose by 10 or more times’ and shall be ‘punishable by deprivation of liberty for a term of three to ten years […]’. While human rights lawyers and scholars familiar with Russian law have different views on whether the total of 0.702 grams of cannabis oil found in Griner’s luggage warranted a nine-year sentence, they agree that the amount is considered as “significant quantity” for the purpose of the provisions, thus meeting the threshold to give rise to a sentence of maximum ten years. The sentencing decision by the Khimki City Court was well within the allowance of the law.

A “Prisoner Proper” or a “Hostage”?

Certainly, the proposition to classify just any national of one state detained or convicted according to the domestic laws of another state as a “hostage” or a case of “wrongful detention” has no leg to stand in international law. States would no longer be able to enforce their legitimate national jurisdiction against foreign nationals found on their territory. Such submission would be assault on the principle of sovereign equality. Equally, it is untenable to suggest that the sentencing decision by the judiciary of one state is to be scrunitised by another state.  Yet, as discussed in my previous post, “hostage diplomacy” or as I have argued, should be more correctly referred as “hostage-taking by state”, is precisely built on the convoluted design of detaining foreign national under the guise of one’s national law as a means to coerce the conduct of another state. This highlights the crux of the challenge in addressing the phenomenon of “hostage-taking by states”: without a proper framework to differentiate whether the criminalisation or detention of the individual is a pretense to achieve other ulterior motives, victim states may have limited legal avenues to sanction the practice without, ironically, being accused of intervening the domaine réservé of the perpetrating state. 

The US’s Framework – The “Robert Levinson Act”

When announcing the decision to classify Griner’s detention as “wrongful”, the Spokesperson of the US Department of State, Ned Price, explained that such determination is ‘a deliberative process’ guided by the “Robert Levinson Act”, which spells out eleven criteria, to be weighed according to ‘the totality of circumstances’, in order to determine ‘whether an American who is detained overseas is held wrongfully or unjustly’. 

The “Robert Levinson Hostage Recovery and Hostage-Taking Accountability Act” is a law passed by the US Congress in 2020. The Act is named after the longest-held American hostage, Robert Levinson, who was believed to have been detained in Iran while on an alleged CIA mission in 2007 and was presumed to have died in custody after 13 years of disappearance. The purpose of the Act is said to be for ‘provid(ing) assistance for United States nationals taken hostage or unlawfully or wrongfully detained abroad, and for other purposes’. It is applicable regardless whether the detention is by a foreign government or a non-state actor (section 2b). It empowers the Secretary of State to make the determination, ‘based on the totality of the circumstances’ and ‘credible information’, that the detention of a US national abroad is unlawful or wrongful (ibid). Section 2(a) is where the said eleven criteria can be found. These criteria upon which the Secretary of State shall review the detention cases include:

• ‘the United States officials receive or possess credible information’ or ‘questions by independent non-governmental organisations or journalists have raised legitimate questions’ about ‘the innocence of the detained individual’, indicating that ‘the detention is a pretext for an illegitimate purpose’ (§1, 6, and 7);
• ‘the individual is being detained solely or substantially because he or she is a United States national’ (§2); 
• ‘the individual is being detained solely or substantially to influence the United States Government policy or to secure economic or political concessions from the United States Government’ (§3); 
• ‘the detention appears to be because the individual sought to obtain, exercise, defend, or promote freedom of the press, freedom of religion, or the right to peacefully assemble’ (§4);
• ‘the individual is detained in a country where the Department of State has determined in its annual human rights reports that the judicial system is not independent or impartial, is susceptible to corruption, or is incapable of rendering just verdicts’ (§8); 
• ‘the individual is being detained in inhumane conditions’ (§9) and ‘due process of law has been sufficiently impaired so as to render the detention arbitrary’ (§10); 
• ‘United States diplomatic engagement is likely necessary to secure the release of the detained individual’ (§11);

With the US being a powerful state and one that is arguably most frequently targeted in hostage-taking by states, this codification shed significant light in the qualification question. Nevertheless, It is not difficult to immediately see how problematic this set of criteria is. Except for the criteria in sub-paragraphs 9 and 10, the qualifiers are primarily political rather than legal assessment: for example, the assessment of the judicial system or the general human rights record of the alleged perpetrating state, the “innocence” of the individual or that individual is being detained ‘for the purpose of influencing the victim state’. The evaluation is susceptible to political disputes, tensions or agenda between the concerned states; moreover, such qualification is prone to criticisms of undue influence of western centrism.   

Indeed, it is not unwarranted to question why only the detained nationals of the “western” states are to be acknowledged defacto as hostages but not the other way around. For example, a Hong Kong barrister questioned in the case of Meng Wanzhou that, as Canada had not imposed sanctions against Iran, the double criminality condition for extradition could not have been met. Wouldn’t that also render Canada’s arrest of the “Princess of Huawei” wrongful? The need to develop more objective criteria based on commonly agreed legal principles is pertinent particularly given the observed emerging trend that alleged perpetrating states are beginning to reciprocate the accusations and calling the supposed victim state of hostage-taking. For example, in the recent cases between Iran and Belgium/Sweden as discussed in this post, Iran’s ministry of foreign affairs spokesperson, Saeed Khatibzadeh, has accused Sweden and Belgium for engaging in hostage-taking by ‘unjustly prosecuting Hamid Nouri and ‘holding Asadollah Asadi hostage’ to compel Iran to release Ahmadreza Djalali’ 

Conclusion: The Way Forward

“Hostage diplomacy” currently seems to be operating outside the reach of international law primarily because of the challenges in qualifying a foreign prisoner or person under detention as a hostage. International law needs to be developed to allow objective determination of whether the criminalisation or the detention is a pretense to coerce. The Canadian initiative galvanising awareness and support from 69 states to-date can be a conducive platform to develop a common set of criteria. Nevertheless, the initiative is couched in the language of “arbitrary detention in state-to-state relations” and not hostage-taking by states. It is yet to see how many of those currently supporting states would agree to address the increasingly threatening state practice with the framework of hostage-taking instead.  
Concurrently, or alternatively should consensus in the Canadian initiative platform cannot be reached, it would be an important force to advance the development of opinio juris if more states will develop national legislation akin to the objective of the US Robert Levinson Act whereby a set of criteria in determining what constitute a hostage-taking or wrongful detention in state-to-state relations.