Hostage diplomacy is about as low as it gets in a system of sovereign states that supposedly adheres to the inherent principles of comity, good faith and state responsibility.
Hostage diplomacy in the diplomatic sphere or hostage justice in the commercial sphere is the weapon of choice for some countries. A recent example of the former is the current case of Dr Kylie Moore-Gilbert being held in solitary confinement in an Iranian jail charged and convicted of espionage through a flawed judicial process that offended all principles of a fair hearing based on proven evidence. Dr Moore-Gilbert is an Early Career Academic Fellow and Lecturer in Islamic Studies at the University of Melbourne’s Asia Institute, specialising in Middle Eastern Politics with a particular focus on the Arab Gulf States. She has an impressive list of publications to her credit and presumably is well informed in her area. She would hold her own in any such academic circle. That does not make her a spy.
Iran should recall that it is a party to the Vienna Convention on Consular Relations 1963 – which allows for a country to safeguard, help and assist its nationals abroad (note particularly Article 36 relating to access); and has ratified the International Covenant on Political and Civil Rights 1966 (acceded 1975). It has obligations in law which it cannot evade.
Dr Moore-Gilbert’s case won’t be helped of course by the US targeting and assassinating this week – among other senior Iranian military personnel – the Head of its Revolutionary Guards’ Quds Force, General Qasem Soleimani; more so if Australia is drawn unthinkingly into another US adventure against Iran in the coming weeks or months.
The detention in Canada of the deputy chairwoman of Huawei, Meng Wenzhou, is a recent example of hostage taking in the commercial sphere – on trumped up fraud charges on Mr Trump’s instructions; utilising an extradition treaty with Canada intended for other purposes.
These moves are designed to leverage pressure on states with which they may have a major disagreement or to gain concessions in a trade negotiation, or otherwise to display broad displeasure. The arbitrary nature of these tactics appals international lawyers and defies , when they occur, any notion of a credible rule of law in the international system.
For countries that seek to uphold and support the presumed international system, as most do, there are two particular areas of vulnerability. One is that the supporting country must have ‘clean hands’ – and not be notorious itself for breaches of law, particularly in the area of human rights. The other is the twilight area between international law and domestic jurisdiction which can be problematical either way.
Once a national is detained a satisfactory outcome will depend mostly on diplomacy and negotiation with little scope for the option of ‘self help’. A notable case of the latter, was the dramatic flight from Japan by Nissan car chief, Carlos Ghosn – a flight he asserts was not from justice but to escape injustice and political persecution. He had not then been tried but the Japanese system is one where its prosecutors seek and expect a 95% success rate through a preliminary process of wearing down their detainee with unrelenting interrogation over long periods in uncomfortable cells until they get a confession. Truth or otherwise is immaterial. Mr Ghosn had both the financial resources and Houdini-like skills to effect his escape – and land in his country of nationality (Lebanon) which calculatedly does not have an extradition treaty with Japan.
Not many victims of unlawful incarceration in foreign jails on spurious charges have the option of self-help to this degree. But they do and should have the option of effective consular assistance from their own country’s diplomatic service, holding the detaining country to account for any serious failure to observe its duty under international law.
In the mid-1990s the then Australian Foreign Minister, Julie Bishop, sought consultations with interested parties on the competencies and effectiveness of the Australian consular services at that time. Because of relevant background and experience I joined with two other former colleagues to respond to this challenge. (They were: Garry Woodard, former Australian Ambassador to Burma, China and Malaysia, and member of the Administrative Appeals Tribunal; and Paul Barratt, former Secretary of the Department of Defence, and former Deputy Secretary of the Department of Foreign Affairs and Trade.
We were received with courtesy at a high level in DFAT but I for one cannot discern much improvement in this area since. Admittedly there can be a fine balance between the citizen’s interest and the national interest – trade and commercial considerations, among others. But too often the excuse or rationale is that the domestic jurisdiction of other countries has to be respected.
It was submitted that, in general, governments should defer to the due legal processes of the country where an Australian citizen may be detained, but that this principle is not absolute, especially where there is evidence of a serious failure of natural justice or other factors that would taint the process. The following observation by a distinguished legal scholar was noted as being relevant in such cases:
“It is a well established principle that a State cannot invoke its municipal legislation as a reason for avoiding its international obligations. For essentially the same reason a State, when charged with a breach of its international obligations with regard to the treatment of aliens, cannot validly plead that according to its Municipal Law and practice the act complained of does not involve discrimination against aliens as compared to nationals. This applies in particular to the question of the treatment of the person of aliens. It has been repeatedly laid down that there exists in this matter a minimum standard of civilisation, and that a State which fails to measure up to that standard incurs international liability.” (5th Edition of Oppenheim, International Law, (ed. Hersch Lauterpacht, 1937, at p. 283).
International law in this respect has not retreated since that statement though too commonly it is honoured more in the breach than in its observance. Given the increasing level of trade and investment and tourism between Australia and other nations it is vital that there be confidence in our respective legal and consular processes.
The Australian community should be assured that its citizens when faced with these situations will be assisted with the full diplomatic resources of their government, and if that fails the defaulting State should be made to incur full international legal responsibility and liability, a consequence which should have repercussions for its overall international standing in a globalised world.
When other countries become tenacious and uncooperative in these matters there may be underlying corruption issues (as in certain Asian, Middle Eastern and East European countries) or plain bloody-mindedness (as seems to be the case with Iran).
A comprehensive survey of government practice, entitled “Australia’s Consular Services” was issued in February 2015, and contains much useful information in this area: https://www.anao.gov.au/work/performance-audit/delivery-australias-consular-services].
Andrew Farran is a former diplomat, law academic and trade policy adviser