Foreign Affairs Committee
Oral evidence: The FCDO’s approach to state level hostage situations, HC 166
Tuesday 19 July 2022
Ordered by the House of Commons to be published on 19 July 2022.
Members present: Chris Bryant; Neil Coyle; Alicia Kearns; Stewart Malcolm McDonald; Bob Seely; Henry Smith; Royston Smith; Graham Stringer.
In the absence of the Chair, Chris Bryant took the Chair.
Questions 136-180
Witnesses
I: Dr Tatyana Eatwell, Barrister, Doughty Street Chambers; Rupert Skilbeck, Director, Redress.
II: Dr Hans-Jakob Schindler, Senior Director, Counter Extremism Project.
Witnesses: Dr Tatyana Eatwell and Rupert Skilbeck.
Q136 Chair: Welcome to this afternoon’s sitting of the Foreign Affairs Committee. It feels like we are in a foreign clime, as this must be one of the hottest rooms in the Palace of Westminster, on the hottest day in British history.
I need to declare something: I chair the all-party parliamentary group on Magnitsky sanctions, which is supported by Redress. That is in the interests of full transparency, because one of our witnesses comes from Redress. It is good to welcome you both. Will you briefly say who you are for the record?
Dr Eatwell: Hello. My name is Dr Tatyana Eatwell, and I am a barrister at Doughty Street Chambers.
Rupert Skilbeck: I am Rupert Skilbeck, the director of Redress.
Q137 Chair: You may have to bear in mind that the fans are on because of the heat, so you need to speak as loud as you can.
To kick off, what is your assessment of why it took six years to secure the release of the two British dual nationals from Iran?
Dr Eatwell: A number of factors came into play here. It did take a long time. The first point that the family made was that they were advised—it is the advice of the FCDO in all cases of this kind—to treat the issues with a softly, softly approach, and not to be public about what had happened to their family member or loved one and the fact that they are being arbitrarily detained and denied justice. That policy or state advice seemingly prolongs issues and delays proactive action being taken in such cases.
Specific to Nazanin’s case would be the delay in considering whether to provide diplomatic protection on her behalf and, in so doing, recognise the violations of international law committed in her case—the denial of her right to a fair trial, the violation of the prohibition of arbitrary detention—and her ill-treatment.
That process took approximately two and a half years after we made submissions to the Government. Those were two and a half years of meeting people in the FCDO to seek to persuade them of the case that there had been a grave violation of international law and to persuade them to make a public statement and take action. Following that, there was a failure to have a plan by which the Foreign Secretary would take proactive steps to implement diplomatic protection, and take diplomatic or legal action to secure Nazanin’s release. I am sure Rupert might have some more points to make.
Rupert Skilbeck: I agree that there is certainly a need for a more robust approach. Richard Ratcliffe was very clear that that is what he preferred. In torture cases, Redress’s view is that that is what is required. In torture cases, the torture often takes place in the first 24 or 48 hours, so you have to be in there very quickly asserting consular support, asserting the right to visit to prevent that torture from taking place, and raising the profile of the case so it is much more difficult for the perpetrators to undertake torture because they know they are being watched.
Q138 Chair: Is that with any regime, or specifically with Iran?
Rupert Skilbeck: Anything. Torture is almost always done at the very beginning when it is incommunicado detention, when no one knows where people are. That is the critical moment when you have to get in there. That is the position that we have made clear on several occasions—not just in this case, but in other cases. For us, it is very important that there is a much quicker approach when it comes to torture cases.
It was also fairly clear that there wasn’t an obvious plan of action for how to escalate matters and how to take it forward, setting out the different opportunities and angles that could be observed. On several occasions when we had meetings either with Foreign Office legal advisers, or indeed with the Foreign Secretary, we were asked what we thought should be done. We had a long list of things that could be done, but it was never very clear whether any of them were being taken forward. It was rather disappointing that there did not appear to be a clear, planned-out course of action.
Q139 Chair: You said, “the Foreign Secretary”, but I think in that period we had four.
Rupert Skilbeck: Five.
Q140 Chair: Five, right—in six years. Did that help or hinder?
Rupert Skilbeck: Curiously, more than once we were asked what our views were. In many cases, that is great, because we often have suggestions about how to deal with torture cases, but I felt that it was more on the basis that there wasn’t necessarily a clear plan in which things had been set out as the next step, with an idea that we would escalate to this and then do this. We were constantly pushing the authorities to try to take the next steps.
Q141 Chair: I mean that if you keep changing Foreign Secretary, does that make it more difficult to get something done because each new Foreign Secretary has to be briefed into the subject and you do another round of meetings?
Rupert Skilbeck: I was going to talk about the use of diplomatic protection. Diplomatic protection was granted in this case, very unusually—for the first time in more than 100 years. The Foreign Secretary at the time took that bold political and diplomatic step. Certainly, the family’s impression was that that was not used in a particularly effective way. It seemed to us that, following the change in Foreign Secretary, there was less interest in using the tools that were available through diplomatic protection.
Chair: Tatyana, do you want to add on that?
Dr Eatwell: No, I don’t think I have anything to say, other than that, with respect to diplomatic protection, it was very important to the Foreign Secretary at the time, Jeremy Hunt. It was very much the exercise of his discretion. Had he been in place for longer, there may have been more proactive and forceful diplomatic action, in this case in the exercise of diplomatic protection. However, the statement itself, which was welcome and recognised Nazanin’s ill-treatment and the violations of international law in her case, said that it was unlikely to be a “magic wand”. That public statement, which was supposed to be forceful, with the United Kingdom Government coming out to protect its citizen who was being subject to the most abhorrent treatment, was sowing doubt about what could be done.
Chair: Which feels a bit self-defeating.
Incidentally, it is good to have Richard here with us. I note you are wearing a jacket, Richard. Nobody has to wear a jacket in the building today, so feel free to take it off if you want to, as it is very hot.
Q142 Bob Seely: With torture taking place very early on, is that tied to theories about the shock of capture? People get more information or more out of somebody, however they choose to manipulate them, immediately after they are captured and immediately after they are given a series of very profound shocks, psychological and perhaps physical. Once somebody is in a routine of abuse, they have a chance to get a sense of where they are, but there is the shock of capture in military thinking. Is this the same sort of psychological pressure that people find themselves under in the immediate period after they have been captured or taken hostage?
Rupert Skilbeck: You are referring to a slightly more sophisticated version of the capture shock technique designed by a psychologist at the CIA but, in general terms, the initial period of detention is very dangerous because no one knows where you are. In Nazanin’s case, for the first few days, no one knew where she was. She was suddenly 1,000 km away from Tehran. She was in a prison. They wouldn’t say where she was. That is the time when the interrogation takes place. It is a standard procedure, and it just means that there is a heightened risk of torture, particularly in regimes where torture is fairly standard.
Q143 Bob Seely: Because you haven’t got eyes on the person and you don’t know where they are, for those practical reasons—
Rupert Skilbeck: Exactly.
Q144 Bob Seely: Did the FCDO meet their own standards in the provision of consular support to the families of detainees in Iran? Tatyana, how do you feel about that?
Dr Eatwell: Certainly speaking on behalf of the family here, they have the utmost respect for the consular officers here in London and what they did on a staff level, on a day-to-day basis. In these cases, consular support is incredibly important. It is incredibly important to ensure the detainee has legal representation and to ensure that they are treated humanely, and then there is the consular support here, in London, with the family.
However, these cases go beyond what is consular. Consular is managing a situation as a person goes through due process, assuming you have a rule-of-law compliant system.
In terms of dealing with the family on a day-to-day basis, the family found they were professional, but in terms of taking that step further, demanding access to Nazanin when it was abundantly clear, at the very least by September 2016 when the working group on arbitrary detention had issued its opinion in that case, finding that she had been in prolonged solitary confinement, ill-treated and without legal representation, and when it had been abundantly clear that she had been through a trial process that was not rule of law compliant—
Bob Seely: Do you want to add anything to that, Mr Skilbeck?
Rupert Skilbeck: Yes. I would say also that Redress works very closely with the consular team, not just on this case but with others. We have done reports on consular support over the years and often there are changes in policy, procedure and practice, as a result of those. One of the problems is that not all of the criteria and procedures are public, so it is very difficult to assess whether or not everything was followed that could have been in this case. One of the complaints by the Radcliffe family was that the lack of transparency made it very difficult to find out what was actually done, rather than discussed—
Q145 Bob Seely: Sorry, I am just trying to divide this up into three. You broadly think that the consular teams did their best but there is some tweaking. Is it therefore that the issues you are raising, without having to repeat oneself over this, are with senior officials who are making a political judgment about where this fits into their priorities, or is this tied to the political leadership above that, who are effectively making those similar judgment calls?
Dr Eatwell: By naming these as consular issues, that very much confines the matter to managing a situation, assuming, as I said, rule-of-law compliance. It is an organisational issue of where these cases are dealt with. My understanding is that when they are designated as special cases, that is when you have members of the FCDO political division who are experts in the region, who speak with families and discuss the political approach to these cases.
Q146 Bob Seely: Was this made a special case quickly enough?
Dr Eatwell: I think, if turn around, Richard had to really push hard for it to be made a special case.
Q147 Bob Seely: Okay. So you, representing the family, do not think it was made a special case as quickly as it should have been?
Dr Eatwell: No. When you have the objective evidence available to you, the FCDO acted pretty slowly. It was very reactive. It took the family to push hard, and it should not take the family to push hard. Not all families have the personal resources and will that Richard has to push a Government agency.
Q148 Chair: Just to check: by personal resources, you mean personal strength not billionaire finances.
Dr Eatwell: Yes, sorry. Personal strength.
Q149 Bob Seely: What opinions do you both have on the opportunities to improve the level of support to detainees, and how the Foreign Office functions and deals with those?
Rupert Skilbeck: Certainly we have been recommending a review of the torture cases for quite some time. Because the policies are not entirely public, it is very difficult to know exactly what is supposed to be followed, so we think that those should be reviewed and published. We think that there could be an independent external evaluation to see how it is done in practice, because we do not really know how it is delivered. We know from the cases that we are involved in, but not more than that.
There is perhaps insufficient parliamentary oversight. The annual report gives us details of about 131 torture and ill-treatment cases per year. To what extent is there parliamentary scrutiny of the consular support given in each of those cases? Perhaps that could be enhanced. Another suggestion is changing things such as travel guidance. The United States gave an executive order this morning that changed travel guidance in cases where there is a risk of hostage taking. We will come on to that later. There are other things that could be done.
Bob Seely: I cannot believe that that is not in the FCDO’s guidance on Iran.
Rupert Skilbeck: I presume that it is for Iran, but it may not be for other countries, so certainly that could be enhanced.
Dr Eatwell: I agree with everything that Rupert said. One of the things in terms of management is that special cases are not just situations of state hostage taking; they are complex, difficult detention cases. One of the ways it could be improved in terms of recognising when a case falls within this category, or is arbitrary detention—not necessarily state hostage taking but arbitrary detention, dealing with the non-rule-of-law-compliance process—is having something similar to the special envoy that they have in the United States: a specialised unit to really be there to proactively engage with families and to examine these cases within that mandate.
Bob Seely: Could I ask one more, or do you want to move on, Chair?
Chair: I kind of want to move on, if that is all right, Bob.
Q150 Graham Stringer: You worked with the Ratcliffes to get a UN ruling on arbitrary detention. Why did you think that that was important, and when the ruling was achieved, did it achieve what you thought it would?
Rupert Skilbeck: We use UN procedures quite a lot for British citizens abroad, but also for our other cases, and the UN working group on arbitrary detention is very useful, because unlike other human rights mechanisms where we have to go through the domestic courts first, you do not need to for the working group, so you can get a decision directly from the United Nations. It is not as hard as a court decision, but it is very useful because the Government of Iran, in this case, was pushed to reply. They did not bother, as often happens, but they were given that opportunity. You often get clear factual findings from the United Nations experts based on their expertise of what is going on. Certainly, for the family it provides an element of justice and satisfaction in the human rights analysis of it—that someone has said that what is going on is wrong—and it draws attention to what is happening.
It also has the benefit politically in the country concerned of elevating the case. While it might just have been being dealt with by the local police, or the Ministry of the Interior, as soon as it becomes a UN matter the Ministry of Foreign Affairs is involved, and it may well come to a Cabinet discussion, so it has the ability to raise the political profile of the issue in the country concerned. For redress certainly, we find these incredibly useful. We had a decision in the case of Jagtar Singh Johal from Glasgow a few months ago that had a similar impact. The important thing is that those are part of the armoury. The Foreign Office is able to support the United Nations in those decisions and apply the diplomatic pressure that can be taken forward once you have got that decision.
Q151 Graham Stringer: In this particular case, did it have that effect? That was a very useful general answer.
Rupert Skilbeck: Certainly. It is all part of the armoury. It is not a magic bullet that solves the cases, but what it means is that suddenly this is a UN issue. It means that Iran is being asked questions in the Human Rights Council and in different places as to what is going on. It was also a way to help with the multilateralisation of the issue, to broaden out the fact that it was not just British nationals, or British dual nationals that were being detained; there were Australians, Swedes and Americans, and all the rest of it. It is part of that process of focusing attention on the problem and bringing it to the international level—not just a bilateral dispute.
Q152 Graham Stringer: Do you have any criticisms of the British Government’s attitude towards the process? Could it be improved, or is it satisfactory? What do you think of it?
Rupert Skilbeck: On that particular point, the difficulty we have is that Government statements quite often undermine the value of UN decisions. One can often disagree with an individual decision. You may disagree with a decision of the UK Supreme Court or the US Supreme Court, for example, but you maintain the authority of the procedures that follow. The risk is that when criticism is made of those UN procedures, it undermines when we need to use them on behalf of British citizens as well. We see that as slightly difficult. It is more difficult for the UK Government to push Iran to follow the United Nations if they are not doing the same in other areas. A more consolidated approach to supporting the working group decisions, even when you disagree with their decisions, would be helpful.
Stewart Malcolm McDonald: On the Jagtar Singh Johal case, his Member of Parliament will have a fit if he is accused of being from Glasgow—he is from West Dunbartonshire. As a Glaswegian, I know the difference.
Rupert Skilbeck: I do apologise. His brother is in Glasgow—you are quite right.
Chair: More factionalism!
Q153 Stewart Malcolm McDonald: I have a question specifically on the significance of using the term “hostage taking”. Before we get to that, I can’t remember who mentioned the US executive order—forgive me.
Rupert Skilbeck: I think I did.
Stewart Malcolm McDonald: Could you just talk about that a bit more?
Rupert Skilbeck: I do not have the full details—it only came out a couple of hours ago. I think President Biden issued an executive order responding to the current spate of US hostages who have been taken, not least in Russia. In particular, as I understand it, he has enhanced the opportunity for Magnitsky sanctions, with a specific category for when hostage taking is an element of it. The US Government have introduced a special travel advisory indicator—the “D” indicator—for countries where there is a high risk of hostage taking. I think there are six or seven countries where they have said that.
Curiously, they have also enhanced procedures for Government engagement with families of hostages, including the intelligence agencies. A critical element there—this came out in Richard’s evidence, I am sure—is that families often want to have as much information as possible, as do Members of Parliament when they are dealing with families, which we are fully aware of.
The US Government are taking quite a proactive approach—I must say, it is nothing we have ever been bold enough to suggest—by asking for the intelligence services to provide information families as best as they can. I do not know the detail of it, but we can dig it out.
Q154 Stewart Malcolm McDonald: As it happens, the Committee has just returned from the US, where we met the presidential envoy on hostage taking and a couple of people from his team. The different bits of the apparatus of state that come together is really quite something. Obviously, the apparatus of Government in the US is much vaster than what we have. Tatyana, I think you leaned into this question slightly earlier: what would a good British equivalent look like?
Dr Eatwell: Well—
Stewart Malcolm McDonald: Rupert said he would not be so bold as to suggest it—I guess I am inviting you to do just that.
Dr Eatwell: It would require people with expertise and an office that draws that together. The FCDO is full of people with amazing expertise in the different regions that they work in; it draws together that regional expertise in a single office where they are dealing with situations of state hostage taking and other arbitrary detention. Those situations are often only resolved through diplomatic action. What is required is for a properly resourced office to look at each case on a case-by-case basis, but also to recognise patterns of behaviour by certain states. You need to have that sort of expert, in-depth analysis in order to properly know, and in order for the Foreign Secretary to be able to exercise her discretion in these matters and know what diplomatic action will be most effective.
Q155 Stewart Malcolm McDonald: Certainly when we were in Washington, the importance of family communication almost couldn’t have been overstated. I don’t just mean the odd phone call here and there. It is properly woven into what came across as a very well-thought through strategy involving all these different arms of government.
Dr Eatwell: I think that is important, because what is often not recognised, or is only recognised by a few in these cases, is the impact on the family. We focus on the detainee, and they are obviously going through a tremendous ordeal, but quite often the impact and the abuse goes wider than that. It can be impacting the family financially; it certainly does emotionally. That feeling of real powerlessness can, I imagine in some cases, be overwhelming. In some cases, some clients I have represented have taken that and used it to campaign quite hard. In other cases, it can be quite debilitating for a family. So, to have that communication be open and seen to be transparent—and be transparent—is fundamental to the wellbeing of the family members, and to ensure there is trust between the family and those acting on their behalf.
Q156 Stewart Malcolm McDonald: Of course. I want to ask if you could just inform the Committee of your view of the significance of the term “hostage taking” in state detentions.
Dr Eatwell: I think it is significant—it is certainly significant to families—in as much as any action that has a definition is. There is a definition of hostage taking provided by the hostages convention. It provides a definition for the purposes of states’ obligations to implement legislation in their domestic criminal law to prosecute individuals for hostage taking. It does not exclude state actors from those prosecutions, and we have domestic criminal legislation that provides universal jurisdiction over hostage taking.
That definition captures the actions and the conduct of the Iranian officials in Nazanin’s case, and of Iran. Under that convention, Iran—or the state where the hostage taking is taking place—has obligations to bring that matter to an end. States have collectively undertaken to bring hostage taking to an end under that convention. In parallel to recognising individual criminal responsibility, it has state obligations and state responsibility for it. While there may not be any inter-state legal mechanisms in certain circumstances for the United Kingdom to follow under that convention, it labels what it is. The language used by the former Foreign Secretary, Jeremy Hunt, in his March 2019 statement said that she was being held for arbitrary detention for diplomatic leverage. That is a polite, diplomatic way of saying she is being held hostage. Hostage taking does not require the payment of ransom; it does not require the state to do something it should not lawfully do in any event. It is to compel the third party—a state, in this case— to do, or abstain from doing, any act. So, it captures exactly what it is, and it is incredibly important to the families that it is so captured. It potentially opens up legal routes for people to pursue redress. It potentially opens up legal routes for holding those involved criminally responsible for that particular act. It identifies exactly what it is.
Can I just make another point? In Nazanin’s case, there was a story being told in Iran for domestic propaganda purposes that she was a spy, that she was convicted of espionage, and that she was somehow involved in the “soft overthrow” of the regime. This was, of course, wholly baseless, but that is the story that was pushed. If the Government of nationality—in this case, the UK—does not call it out as hostage taking, does not call out the detention as arbitrary, and does not call out the fact that there is a total lack of due process and that the allegations are baseless, that enables the hostage taking state to re-enforce its domestic propaganda agenda. So, by failing to call it hostage taking and call it what it is, it somehow gives fuel to that domestic propaganda.
Chair: Henry, I think you had a quick question, and then I will go on to the others.
Q157 Henry Smith: Just following on from Mr McDonald’s question. We were indeed in Washington about a month ago, where we met the US Special Envoy for Hostage Affairs, and a very impressive operation it was to learn about. One of the things that they mentioned was the ambition for much greater working among the democracies together, so that you are not just dealing with one country if you take one of their citizens hostage, but with a whole panoply of democracies, with a unified response. So, whether it is a Swede, an Australian, a Brit, an American or anyone else who is taken hostage by a state in such a hostile manner, the broad response will be seen in total. What do you see as the chances of that sort of system coming about? We have seen a great deal of unity on things like Russia’s aggression against Ukraine—that bodes well for the international community, the democracies in particular, working together—but do you see potential for that?
Rupert Skilbeck: We think that that multilateralisation would be very helpful. Initially, these things are dealt with very quietly and, as I have been saying, for torture cases, it is important that they are not done so quietly. The Canadian partnership action plan might be a good opportunity to take some of those ideas forward. They are not always easy, but that is an opportunity that has not been in existence for a little while. There are a few things that it could enhance: perhaps more multilateralised Magnitsky sanctions, focusing on hostage cases.
It could be an opportunity to clarify some of the law—there is a little lack of clarity in some areas of international law in this area of human rights, because the problem does not happen much. We have the International Law Commission, but we do not necessarily have a developed legal framework, as we could, but if we had a number of states acting multilaterally and at the United Nations, that could be a good opportunity to do that.
It would also mean that those states could push for multilateral action at the United Nations, because when you have 15 or 25 states doing it, that is much easier than just one. That particular option, which I think has a meeting at the G7 in September this year, could be a way to take these things forward.
Dr Eatwell: I agree with everything Rupert said.
Chair: We love it when people say that, especially in heat like this.
Q158 Alicia Kearns: Thank you both for coming today. I want to go back to extending diplomatic protection. We touched on the inherent flaws in how it was announced, but at the time a great number of us were gravely concerned about the decision made by Jeremy Hunt. You went to the point about the domestic narrative in Iran, that Nazanin was a spy, and that decision confirmed for propaganda networks that she was indeed a spy or an instrument of the state in some way. My background is in the Foreign Office and I worked on hostage cases—people taken hostage by Daesh—and many of us did not support the decision, we did not think it was the right move and we did not think it was in Nazanin’s interests. Will you talk to us a bit more on what the benefit was, if any? Neither of you has set out as yet any benefit from having made that announcement. What benefits were there, or should that not have happened at all, because there was no actual meaningful benefit?
Rupert Skilbeck: The real issue with diplomatic protection is that it needs to be used and it needs to be asserted, because then you are asserting that there is an international wrong between the United Kingdom and Iran. That is the purpose of it. What could have been happening was various activities through the lens, in the scope of, diplomatic protection—for example, attending court hearings as an element of diplomatic protection. I think one démarche was issued through diplomatic protection. Potentially, there was consideration of other international legal proceedings. We had some discussions with the Government about how that could happen, but there was a real sense of caution about going in any of those directions.
We therefore had a number of meetings with the Foreign Office at every level, encouraging them to take action under diplomatic protection, but as far as we are aware, nothing took place except one démarche to the ambassador. For us, that was a disappointment, because it meant that the opportunity was squandered. In many ways, it had not been used before, so there was a certain degree of uncertainty as to what could be done with it. It would have required a little creative thinking and innovation perhaps, in order to assert this international wrong, but the disappointment was that, because not enough was tried, essentially, it was not used in a way that it could have been used.
Q159 Alicia Kearns: Fine. Essentially, we do not know whether it was a good idea or not, because they did not put the teeth behind whether they were going to do it. Does it not also set a dangerous precedent? Foreign countries that are hostile to us, with individuals in our country whom we are holding in detention, might give them the same diplomatic status in order to allow them something. If they were to put the teeth behind it, which we failed to do with Nazanin, does that not set a dangerous precedent for hostile states to use that against us?
Dr Eatwell: Forgive me, but she was not afforded diplomatic status. The purpose of diplomatic protection is that it is potentially a very powerful and useful tool for states to protect the rights of their citizens. It is claimed that her fundamental rights had been violated and that Iran is responsible. In these circumstances, Iran has not accepted the competence of a supervisory regional human rights court where she could seek relief. There are many states around the world where this is the case. Whether or not those in Iran are saying, “She is asserting diplomatic protection, so she’s a spy,” that is blatantly wrong, and it is very important to get it right when talking about the matter in Parliament and in public discourse. I remember that, at the time, there was a lot of stuff in the news about whether it was diplomatic immunity. The terminology is confusing, let’s face it, but it could have been used more effectively. Following the announcement, there was a repeated failure in Parliament, in answer to questions, to assert Nazanin’s British citizenship, and that being the reason for her detention. There was a repeated failure to underline that her fundamental rights had been violated.
It took a significant time to get the Foreign Secretary to eventually publicly recognise that she was a victim of torture. It was ongoing torture, as was recognised in the working group on arbitrary detentions ruling of 2016. It was only in 2021 that the British Government finally asserted that she had been tortured. So there was perhaps a reluctance in the FCDO; perhaps thinking “What can it give to us that we’re not doing already?” forestalled the approach being used effectively on a diplomatic level and looking at those creative solutions. Ultimately, her release was negotiated through diplomatic action and she came home. That may be seen as an exercise of diplomatic protection. Anoosheh Ashoori came with her, and that family were also calling for it; they were incredibly vocal about his situation. It may be that ultimately there was a political cost here created by families being open for the Foreign Secretary to do something in these cases. Diplomatic protection was part of that campaign to get the Government to recognise openly that her rights had been violated and that this was a manifestly unjust situation.
Q160 Alicia Kearns: Have you seen—forgive me, as I have not done so—any meaningful efforts by the FCDO to hold Iranian officials to account in any way?
Dr Eatwell: I have not been party to anything where I could see that.
Rupert Skilbeck: Through any legal procedures?
Q161 Alicia Kearns: Legal procedures, sanctions, or anything else like that, such as refusing travel or refusing to meet?
Rupert Skilbeck: Redress, together with the Free Nazanin campaign, submitted a dossier to the sanctions team, I think about nine months ago, naming 10 Iranian officials, two of whom have already been sanctioned by the United States Government for involvement in the hostage-taking process, including judges and so on from the Iranian regime. There are plans to submit a further 20 names so as to cover the full panoply of those responsible. Unfortunately, no decision has yet been made on those sanctions submissions. As part of the process of an effective response against Iran, one thing would perhaps be to look at those more quickly. I understand that there has been a backlog because of Ukraine, but the sanctions team is now built up to be about three times as it large as it was six months ago, so perhaps it is a matter of time. We think that the naming of those names, travel bans and so on will have an impact, and there are good examples of where that has been an effective mechanism.
Q162 Chair: We are going to have a debate on that on Thursday afternoon. Can I ask you what opportunities there are for further deterrence activities on state hostage taking through the Canada declarations partnership action plans? Any thoughts?
Dr Eatwell: I think Rupert outlined quite a few of those in his answer to the other question. It certainly shows a will, none of it is binding. It is a real opportunity for the United Kingdom to progress that action plan and support it at a multilateral level in the ways that Rupert pointed out.
Rupert Skilbeck: Perhaps one thing to add that is not yet part of the partnership action plan is looking at torture cases in particular, because they are different and do need to be treated differently. We mentioned before that the Foreign Office procedure is not a public document. We are not entirely sure of what steps and processes are followed when there is a torture case or a risk of torture, but perhaps that can be a future of the Canadian initiative.
There are various safeguards that are absolutely essential. I have already mentioned getting a consular visit within 24 or 48 hours, which could include getting a medical investigation within that very short period of time. That was a big problem for Jagtar Singh Johal, who has still not been properly medically examined many years later.
Could there be quick escalation to a Minister to make a decision as to whether there is a risk of torture here? Could there be a process to ask for investigations into torture, which often is not done by the national authorities? Could we ensure that there is psychosocial support for the torture victim in custody and insist on that? That possibility of a protocol for torture cases—on the understanding that they are different from ordinary consular cases—could be multilateralised through the Canada process, which would connect with the use of that pernicious form of treatment in a hostage-taking situation as well.
Q163 Chair: This is slightly tangential, but there is a situation in Ukraine, where British men have gone out to fight in Ukrainian army uniforms but the Russian-backed, theoretically independent Government and courts there have determined that they should suffer the death penalty for being mercenaries. How does that play into this story?
Rupert Skilbeck: There you have a rather added complication, in that you have got to have the law of human rights but also the law of armed conflict, the law of occupation and the law of war, which means there are a number of different procedures that have to be followed. It perhaps means that you have the International Committee of the Red Cross as a potential partner as well. I think those have to be treated very differently from ordinary consular assistance cases due to the legal and practical complications of those cases.
Q164 Chair: Would they be listed as special cases almost immediately or not?
Rupert Skilbeck: I must say that it is such an unusual situation that I would imagine they are being dealt with differently, but I do not know how it is being looked at.
Dr Eatwell: You would hope that they would be dealt with expediently.
Chair: We would hope that all of these would be dealt with expediently and expeditiously.
Dr Eatwell: Expeditiously. May I add something on the collective action point? It goes back to the question about consular assistance, and I am very sorry for not raising it earlier.
One thing that the family felt strongly about was the consulate offices in Iran attending Nazanin’s trial—even if that meant standing outside the building; that was not done. I would say that they would feel that that was a failing on the part of the consular services.
In terms of collective action, what we have seen in other cases, such as the case of Michael Kovrig in China, is that you had a collective action of embassy staff going down to the trials. They were not from the US embassy—they were from other embassies around the world—and it was poignant. It was a statement that all these states were particularly concerned about a case, and that kind of statement and collective action can be potentially very effective.
Q165 Chair: Indeed, and there are other situations. I went to Mikhail Khodorkovsky’s second trial in Russia. Watching the martinets performing their judicial function was quite interesting in itself, but it was a way of showing other nations that were interested.
One final question from me, which is about prison exchanges. That seems to be part of the equation for some states. Is that on the rise? Does it produce additional problems?
Rupert Skilbeck: They are not very frequent, but there are two that are currently being talked about. You may be aware that the Belgian Parliament was asked to approve a bilateral treaty with Iran—I am not sure whether it was passed—to allow three or four people convicted of a terrorist offence in Belgium to be swapped for a Belgian-Iranian detainee in Iran. Similarly, the Swedes are being put under pressure to swap a man who was sentenced only last Friday to life imprisonment for mass executions in 1988 for a Swedish dual national academic who is currently detained—I think he was detained at about the same time as Nazanin.
These are difficult situations that have to be looked at on a case-by-case basis. My only position would be to adopt a human rights approach to considering them: to assess what the violation of rights involved are on each side, and to assess the rights of the victim.
In the Belgian case, I think it was an attempted terrorist offence, which is slightly different from one that had taken place, but the rights of the victims have of course to be brought into consideration as well in such situations, so you are moving very much into diplomatic and political territory there. The only intelligent suggestion can be that following a cautious human rights approach would help in that decision-making process.
Q166 Chair: I presume that, in the Swedish case, the Iranians are intending to liberate that person when they get back to Iran. It is not like when a British national is stuck in a prison in Peru or whatever, and we might try to get them back to the UK, but to serve out their sentence in the UK. It is a very different set of circumstances.
Rupert Skilbeck: The agreement there would be that they serve their sentence. There are sometimes complications about early release and so on, and whether there is parity between the two legal systems, but the Belgian one is very clear: everyone will be released as soon as they are returned.
Chair: Right. Unless anyone has any more, thank you very much. That has been very helpful. We have to suspend briefly while we sort out technology, which has probably melted.
Witness: Dr Hans-Jakob Schindler.
Chair: Welcome, Dr Schindler. You represent our second panel this afternoon. Tom Tugendhat, our normal Chair, is off doing something else, so you have me, I am afraid. We are very grateful to you for joining us, not least because you have a particular area of expertise that will be useful to our inquiry. We will start the questioning with Alicia Kearns.
Q167 Alicia Kearns: Dr Schindler, thank you so much for joining us today. Will you please talk us through the German strategy for negotiating the release of hostages in Iran, and how that might differ from the UK approach, in your experience of working with us?
Dr Schindler: Thank you so much. I appreciate the invitation today. It is a great honour.
To clarify and to start with a small caveat, I used to work for the German Government, but I am no longer a civil servant, so I am speaking today in my personal capacity. Please: nothing that I say or argue should be taken as an official position of the current German Government.
My experience relates to the cases where Germany was affected that fall within my experience in Iran, so I can only draw on those. Unfortunately, as I am sure the briefings before me have already made abundantly clear, over the years it has become quite obvious that in the Iranian system some seem to perceive the arrest of dual nationals and foreigners as an opportunity to use them in complex foreign and security policy negotiations. Therefore, the overall nature of the bilateral relationship is an important determining factor in how this thing proceeds. Consequently, the way that cases develop in my case, or from other countries’ perspectives or experience, is not fully transferable to the UK case. I just want to make that clear from the outset.
In my experience, there have always been three general stages. There is the initial phase directly following the arrest, and the embassy receiving the information after the arrest. That stage, which is usually between 10 days and a maximum of a few weeks, is usually the best chance to get the individual released.
Key in that phase is not to generate publicity for the case, in order to avoid the Iranian side moving towards using the case as political leverage. Quick, clear and discreet engagement with the Iranian authorities is key during this phase. In some cases, arrests were made on small infractions that according to Iranian law would only lead to a monetary fine, not necessarily a prison sentence. Therefore, unless someone within the Iranian system recognises the political “value” of such a case early on, a resolution can usually be achieved. In my experience, it usually takes a few days for the information of an arrest of a foreigner to permeate through the Iranian system, so you have some time but not much. Therefore, speed is of the essence in this first phase.
However, if the arrest is done while attempting to leave the country at the airport, unfortunately my experience is that you do not need the initial phase. It is not possible. Only in very rare cases are arrests at the airport not well prepared for a long time by the system internally. In that case, the initial phase should simply be seen as an exploratory phase to ascertain the extent to which the arrest was prepared, and which part of the Iranian system has pushed for the arrest. You identify who you ultimately need to deal with.
The second phase, in my view, includes the first escalatory steps from our Government’s side, which are unfortunately unavoidable. When it becomes clear that the case cannot be resolved quickly and quietly, unfortunately the first steps towards publicity are necessary in my view. In my experience, this is a tough decision to make for the embassy. Of course, the representatives of the Iranian Foreign Ministry will always advise the embassy that publicity will complicate the matter. In my view, this is partly due to the fact that publicity—
Q168 Chair: Sorry, Dr Schindler. Could I just slow you down at that point? I was unsure whether you were saying that publicity always makes it worse, or that some people think that it always makes it worse.
Dr Schindler: The Iranian Foreign Ministry will advise your embassy that if you go public with the case it will make it more complicated. In my experience, this is partly because when you go public it becomes a political issue. Therefore, the Foreign Ministry is only a secondary player in the whole thing, so it loses its position in that case.
It is partly because in many cases the Foreign Ministry does not even know itself who in the system ordered the arrest, what the interests are, and what role part of the power centres within the regime are playing in this case. They are trying to gather the information, so they also need time. They need to position themselves and therefore ask for more time by your not making it public.
Movement to the next phase, because you will get the message that it is getting more difficult, is a very hard decision to make for the embassy. In my experience, it is best done in co-ordination with the capital at a senior Ministry level. This phase begins only once the collective decision is reached that it is no longer a regular consular matter but now a matter of bilateral negotiations. That is where you need to put your mindset towards.
One indication that can help you to see that you have to move to the next phase is when there is a clear change in the accusations made against your national—when it starts with a small infraction and all of a sudden you get charges of national security, espionage, et cetera. When you see that shifting, there is no need to think about quickly or quietly resolving the case. That phase is then, in my experience at least, most definitely over.
During the second phase, it is important to raise awareness of the case at home through press releases and potential the first media engagements by the family. My tactic at that point was always to concentrate on the smaller national news outlets to leave some escalation open.
In my experience, it is important to understand that the ability of the representative of the Iranian Foreign Ministry to effect meaningful change through the progress of the case is diminished in this case, and additional Iranian interlocuters must be engaged. Chief among them is the National Security Council, in my view, especially if you do not know who the beneficiary or demand maker is. As it is the highest decision-making structure in the Iranian system and the collective decision maker on all cases of national security or that are deemed to be of national importance by the regime, engagement with that body is, in my assessment, absolutely important, because you cover all the bases and ultimately any decision on that case will be made collectively at the National Security Council anyway. In rare cases—
Q169 Alicia Kearns: Forgive me. So in the Iranian system, you recommend the Security Council.
Dr Schindler: The Supreme National Security Council.
Q170 Alicia Kearns: You said that it is difficult sometimes to work out who has ordered the arrest and who is behind it, but essentially are you saying that in terms of what part of the regime you negotiate with, it is pointless going to anyone other than the Security Council?
Dr Schindler: You definitely have to go to the National Security Council. You can then, if you have figured it out—in some cases it is very obvious, if you have an ongoing court case as was sometimes the case in Germany, and this is an official and he belongs to a certain part of the Government, obviously that part of the Government is the ultimate beneficiary and is very likely to be behind all this. Then you engage them in addition to the National Security Council, not instead of it. You are adding rather than replacing, at least in my experience.
In very rare cases, we were able to resolve this in the second phase through slight escalation and talking to the right people. Usually, in my experience, this phase ends after a few months. If a resolution is not reached during the second phase, it is unavoidable that you have to go full-on thinking about what leverage you have. That means the third phase: generating leverage and the run-up to the eventual negotiations. In this phase, in my view, it is central to generate leverage for unavoidable upcoming negotiations, because you start out with none. The challenge in this phase is regularly that the Iranian side is not or has difficulty with communicating clearly what their specific demands are.
Q171 Chair: Dr Schindler, it feels as if you are reading something out.
Dr Schindler: Yes, because I want to make sure that I give you the precise information.
Chair: I understand that, but I wonder whether it might be better if you sent that to us, not least because you are going so fast that it is difficult to hear some of it and for our records it would be better for us to have the full transcript. If you do not mind, we will take what you have got written down as read, because you are going to send it to us, and Alicia has another question that she is going to ask now. We will then come on with other questions, if that is okay.
Dr Schindler: Fantastic.
Q172 Alicia Kearns: There is a real challenge when you are looking at hostage cases in terms of the concept of transparency. From my perspective, transparency for the family is vital and that should be a very private and transparent conversation. What is your view about how transparent hostage negotiations should be in terms of the role of the Bundestag or other organisations, or that public understanding of what steps a Foreign Office should follow in dealing with a case? My view is that in general that sort of negotiation around the most sensitive things we do—the main job of a Foreign Office is to keep our people safe—should all be done behind the scenes and there should not be public knowledge of what the steps are within those hostage negotiations. What approach does Germany take to balancing the transparency on hostage negotiations?
Dr Schindler: The details of the negotiations are never made public, right? I was about to say that the third phase is about what sort of merits you have, and part of this is about publicity. But since there are Government constraints, of course, on how much you want to or can make public—we have quite strong protection laws in Germany—you need to work with the family on the more interesting stories you can get out of this. In this phase, you move from national to international media to create as much noise about the case on as many levels as possible as one part of your leverage. Other leverage includes communicating at all levels in bilateral engagements. That is a massive problem that will hinder any further engagement or progress in whatever cases you have on the Iranian side. And, of course, there is economic pressure. In my opinion, the publicity part—the human interest, the legality of the case, the injustice of the case and the fabrication of allegations—is essential. The Iranian system is somewhat not impervious to reputational damage, and that is one of the levers that you need to pull, unless you want to go full hard in hostage negotiations where, without leverage, you are not ending up in a good place.
Q173 Chair: Thank you, Dr Schindler. Obviously, there is a view around that if a country such as the UK or Germany gives in to Iran, or to a country like it, it will embolden Iran to do it again. Is that your take?
Dr Schindler: It depends how much leverage you have and how much you have to give. First of all, there are things that you cannot do here: there is an independent judiciary both in the UK and in Germany. If there is a court case, there is a court case, and the Government cannot manipulate that court case. That needs to be clear to the Iranian side, so you need other leverage.
Over time—this is the frustrating bit—these demands from the Iranian side may morph. They start with one demand and then, a couple of months later, change that demand, just to see where your pressure points are. Your guiding principle must always be to give as little as you possibly can, because the more valuable return the Iranian side will get from that, the more likely you will get another case down the line at the next opportunity.
Q174 Stewart Malcolm McDonald: What conditions might determine the effectiveness of a negotiation strategy from country to country? Could you talk about why the UK might find, say, the German approach more challenging in a country like Iran?
Dr Schindler: I can only speak to the Iranian cases; I have no detailed knowledge of how Germany handles this anywhere else, let alone with non-state actors. The bilateral relationship used to be quite good—very different to some phases of the UK-Iranian bilateral relationship, which is not only saddled with everything that had happened—you had the embassy invaded essentially a couple of years ago, which is only the second time that has happened in the Iranian Islamic republic.
You are also saddled with the fact that many in the regime, if you ask, think you are a de facto representation of the US interests in the country, despite the fact that Switzerland does that. There is a bilateral US-Iranian issue demonstration in front of the British, not the Swiss, embassy. That complicates things because that creates a set of issues that you have no way of resolving.
Nevertheless, you approach this with a clear understanding that you will end up not with a question about legality and illegality, but a simple negotiation where the only way to avoid giving painful things is to create leverage that you are willing to give up. One is publicity. Another is diplomatic engagement at bilateral level and the other one is economic pressure. When they come with unfulfillable demands or demands that are going to encourage them to do this again, you have other leverage that you are willing to give up and that is not generating the same kind of interest.
Q175 Alicia Kearns: Dr Schindler, you mentioned just now that the Iranian regime is not impervious to reputational damage, which is not something we would necessarily have heard before. It would be helpful to understand how you can hurt the Iranian system internally, and what exactly you meant by that.
Dr Schindler: First of all, in my experience in my time, there was massive economic engagement and investment in Iran from Europe. Germany used to be the largest trading partner. Reputational damage for Iran in Germany was quite effective. It also gave us a range of administrative tools that were far below sanctions: export licences to be issued and permits to be issued. Those processes cannot be stopped legally, but there is a timeline in which they can happen, and that timeline can vary. So we had administrative leverage that we were able to pull at that particular point.
Now, I think it would be more challenging to do the same, but because there was an interest in the economic engagement of Iran with Europe, and Germany in particular—I would argue that there still is, to a certain extent, if there is ever going to be a sanctions environment that would allow that—that is part of the reputational damage that they were paying attention to.
Q176 Chair: In the British system, these cases are mainly dealt with—certainly initially—through the consular department. We have often experienced that other countries are more robust and more proactive on a wide range of consular issues—for example, other countries hired aeroplanes to get people back during covid, or whatever. Is it your experience that Germany has a different attitude to what the state should provide by way of consular services to its citizens?
Dr Schindler: I would not be able to answer that in general, but I can tell you in particular that as soon as it is clear that we are not dealing with someone who broke the law, who will get a sentence and will be in prison for a while and then come out in Iran—that this is an actual case where a negotiation is needed—it is immediately transferred to the crisis response team of the Foreign Ministry. That includes consular protection, but there is also a co-ordination function across the Ministry and, if necessary, it can get a co-ordination function across the Government. Because if you then want to use administrative means that are not part of the Foreign Ministry’s toolbox, you need an all-of-Government approach, and someone somewhere needs to co-ordinate that.
Q177 Chair: Do you happen to know roughly how many people work in the German Foreign Ministry in total?
Dr Schindler: I think it is 10,000.
Chair: And in consular services?
Dr Schindler: I do not know.
Q178 Chair: Okay, we will try to get those figures, because it might just be that this is an issue of capacity and having enough people to be able to deliver. One other thing: in the six years that it took to get Nazanin out, we had five Foreign Secretaries. How many Foreign Ministers would there have been in Germany in that period?
Dr Schindler: In six years, usually 1.5.
Q179 Chair: Quite. I think that is all our questions, unless you have something else that you want to say to us. Please do send us your full comments.
Dr Schindler: I will. One important point is not to approach cases like this with a sense of nervousness. You have to be clear, once you finish the second phase, that this is not going to resolve quickly. We have had everything from a couple of weeks to several years, and we have had a death sentence and not death sentences; we had the full claviature of this. It is really important to ensure that you communicate to the family that you are doing whatever you can, but that this is then no longer a simple legal case or a case that you can simply resolve. Once you leap to the political level, it is fairly hard to predict precisely how long it will take, but you can be fairly sure that it will take more than a couple of months.
Q180 Chair: Do you think sanctions and travel bans on individuals who have been involved in the process are helpful or unhelpful?
Dr Schindler: We never used that, because we had other economic leverage that we could use, and we did not have the necessity of using sanctions at that particular point. However, now that no one has that leverage in Europe at the moment, sanctions are certainly something that could be contemplated. Obviously, they would be focused on the individuals in charge. I would also argue that you would be able to increase the effectiveness if you approached the sanctions issue as a two-way street—back and forth. If it is clear that you will impose sanctions if things do not go well, but relieve sanctions if the case is resolved, you create a motivational potential among the targeted individuals to actually do something, because Iranian officials tend to be used to being sanctioned.
Chair: Okay. We are very grateful to you for joining us this afternoon, Dr Schindler. If you could send us the script that you had earlier, that would be really helpful for us in drawing up our report. Once again, thank you very much, and I hope you have a good day.
Dr Schindler: Thank you. Same to you.