Written evidence submitted by Dr Danielle Gilbert (SLH0020)

Dr. Danielle Gilbert

Department of Military & Strategic Studies

United States Air Force Academy

danielle.gilbert@usafa.edu

Executive Summary

• State-level hostage taking, or “hostage diplomacy,” occurs when states use their criminal justice system to take foreign hostages. State hostage takers arrest foreigners under the guise of national law, yet they do so with the intention to use the prisoner for foreign policy leverage. Such cases have risen in prominence in recent years, as states including China, Iran, and Russia have detained foreign nationals.

• There were notable merits and mistakes in the Foreign, Commonwealth & Development Office’s handling of the Iran hostage crisis. Specifically: it was prudent to involve the government of Oman in negotiations. However, the  government made key mistakes, drawing out Zaghari-Ratcliffe and Ashoori’s detention for years, ultimately giving the appearance of satisfying hostage takers’ demands.

• The government’s deterrence efforts rely on policies that deny benefits to hostage takers; such policies can be unreliable, ineffective, and harmful. Deterrence through the threat of punishment is difficult to achieve but transfers the onus from hostage families to hostage-taking states.

Recommendations

• For effective deterrence, shift from policies of denial to policies of punishment.

• Establish national criteria for designating international detentions “unlawful or wrongful,” including but not limited to state hostage taking.

• Lead a process at the United Nations to establish an international convention against state hostage taking, focusing on definitions, coordination, and punishment.

I. Contributor Credentials

1. I am an Assistant Professor of Military & Strategic Studies at the United States Air Force Academy and a Nonresident Fellow with the Modern War Institute at the U.S. Military Academy at West Point. My research explores the causes and consequences of hostage taking in international security, including insights on rebel kidnapping, hostage recovery policy, and hostage diplomacy (state hostage taking). In my personal capacity, I worked closely with the U.S. Senate Foreign Relations Committee as they drafted the Robert Levinson Hostage Recovery and Hostage Taking Accountability Act, detailed below.[1]

2. Before entering academia, I served four years on the legislative staff in the U.S. House of Representatives, including as a Senior Legislative Assistant and Appropriations Associate to the State Department and Foreign Operations Subcommittee. I hold a PhD in Political Science from George Washington University, master’s degrees from the London School of Economics and George Washington, and a BA in Ethics, Politics & Economics from Yale.

3. At the invitation of Richard Ratcliffe, husband of Nazanin Zaghari-Ratcliffe, I am submitting evidence on state hostage takings based on my academic research and public engagement on the subject. I have published peer-reviewed research on kidnapping by rebel groups,[2] media coverage of international kidnapping,[3] and the problem of hostage diplomacy.[4] The views expressed in this submission are mine and do not represent the United States Air Force Academy, the Department of the Air Force, the Department of Defense, or the U.S. government.

II. Key Terms and Policies

4. State-level hostage taking, or what I call “hostage diplomacy,” is “the taking of hostages under the guise of law for use as foreign policy leverage.”[5] Hostage diplomacy occurs when:

… a state deploys its criminal justice system to detain a foreigner and then uses the prisoner for leverage in the pursuit of foreign policy objectives. This… occupies an ill-defined middle ground between legitimate arrests and prosecutions on the one side, and illicit kidnapping on the other. The early stages of hostage diplomacy resemble lawful detention: The state arrests a foreigner for suspected criminal wrongdoing, often espionage. The accused is detained and formally charged. However, the pretense soon falls away. Hostage diplomacy ends with the state negotiating for the prisoner’s release through a series of diplomatic or economic concessions. Along the way, the accused transitions from prisoner to bargaining chip.

Legally, the victims of hostage diplomacy are detainees. Functionally, they are hostages. This inherent duality makes hostage diplomacy particularly striking—and difficult to counter—because of the ways it blurs established categories of detention, norms of state behavior, and the rule of law.[6]

5. Some observers have noted that state-level hostage takings have increased in recent years, replacing kidnapping by non-state actors as the chief international hostage-taking concern.[7] Quantifying hostage taking is difficult, as many cases are never made public, but state hostage taking has undoubtedly risen in prominence, led by high-profile negotiations over American, Australian, British, Canadian, and Japanese citizens detained in countries including China, Cuba, Egypt, Iran, North Korea, Syria, Russia, and Turkey.

6. State hostage taking presents two definitional problems that are relevant for policymakers. First, how do we know when an international detention is, in fact, a hostage taking? Detaining states rarely make their hostage taking so explicit. Instead, target states rely on a series of indicators that their citizen is being held for foreign policy leverage. Has the detaining state—explicitly or implicitly—made the prisoner’s release conditional on the satisfaction of demands beyond fulfilling a prison sentence? Do the arrest and other significant moments in the ordeal (hearings, charges, changes in treatment) follow equivalent decisions in the target country?

7. For instance, when China arrested Canadian citizens Michael Kovrig and Michael Spavor in 2018, the Chinese government never announced that the Canadians were taken to pressure the release of Huawei CFO Meng Wanzhou from Canada. However, any time there was an update in Meng’s case—from arrest, to formal charges, to her release in late 2021—there was a coincident update in the two Michaels’ status. Such observed tit-for-tat behavior strongly suggests a case of hostage diplomacy. Nevertheless, stage hostage takers maintain the guise of a legal process. State hostage taking works for perpetrators precisely because of this ambiguity: they rely on target states’ respect for and commitment to the rule of law.

8. Second, even without demands, target states may be concerned about the arrests of their citizens abroad. Individuals regularly break laws in foreign countries and face criminal consequences. However, target states may object to the treatment of their citizens by foreign criminal justice systems, even if they are unsure whether their citizen is a hostage—especially since detaining states may not make their intentions explicit. Thus, it is useful to establish a set of criteria for classifying international detentions as “wrongful” or “unlawful,” as described below.

9. Two recent policy updates in the United States deal with these problems, which may be relevant to the Committee’s inquiry. In 2015, in the wake of the kidnapping and beheading of several Americans by the Islamic State, the Obama White House conducted an internal policy review on U.S. hostage recovery activities. At the conclusion of the investigation, the White House released Presidential Policy Directive 30 (PPD-30) and Executive Order 13698.[8] In addition to creating an interagency, operations-level body to coordinate hostage recovery activities, the Executive Order created the Special Presidential Envoy for Hostage Affairs (SPEHA), a senior-level position at the Department of State to coordinate diplomatic efforts to recover Americans kidnapped or wrongfully detained abroad. The definitional ambiguity in this office—empowering the SPEHA to work cases regarding both state and non-state actors, as well as those not explicitly labeled as hostage takings—provides useful flexibility in responding to hostage diplomacy cases.

10. In 2020, the U.S. Congress passed the Robert Levinson Hostage Recovery and Hostage-Taking Accountability Act. The law serves three central purposes: (1) It outlines the criteria that qualify an international detention as “unlawful or wrongful,” thereby referring the case to the SPEHA; (2) codifies PPD-30 and EO 13698; and (3) establishes new sanctions to punish hostage-taking individuals and organizations. The criteria to qualify a detention as “unlawful or wrongful” include explicit political targeting—foreigners arrested because of their nationality or for leverage—or if the government has credible information that the arrest is invalid or the prisoner will be treated unfairly.

11. With these key terms and policies established, I turn to answering the Committee’s three questions included in the Call for Submissions.

III. What were the merits and mistakes made in the approach of the FCDO to the handling of the Iranian hostage situation and any other similar situations in recent years?

12. There is one clear merit of the FCDO’s handling of the Iranian hostage situation, which the government should keep in mind for similar cases in the future. Reporting suggests that the British government worked with the government of Oman to facilitate the prisoners’ release; Prime Minister Johnson thanked the “Sultan and the government of Oman for their invaluable assistance…highlighting it as an example of the UK and Oman’s successful and enduring partnership.”[9] Working with third-party intermediaries, whether foreign governments or private organizations, is beneficial to hostage-recovery negotiations. Third-party intermediaries may be able to communicate or take actions that the target and detaining state are unable or unwilling to do. Bringing in a third party increases the likelihood of negotiating success, allows for face-saving solutions, and helps ensure that agreements are upheld.

13. However, the FCDO made several key mistakes in handling the Iranian hostage situation. While the British and Iranian governments have publicly denied any connection between Zaghari-Ratcliffe and Ashoori’s release and the £400 million payment that the UK government pledged to the Iran,[10] the public perception that these actions were connected is enough to suggest to any would-be hostage takers that the UK government makes concessions. This perception will not deter future attacks; in fact, it may increase them. In some ways, it is the worst possible option for everyone: Zaghari-Ratcliffe and Ashoori spent unnecessary, devastating years in prison, only for the UK government to eventually take the very action that the Iranian government had originally demanded. The UK government appears to have made an expensive concession, which puts a target on the backs of future British citizens abroad.

IV. Does the Government’s approach provide an effective deterrent to state-based hostage situations?

14. In short: no. There are two central reasons that the current policy does not provide an effective deterrent: (1) The appearance of making concessions to bring hostages home incentivizes rather than deters future hostage taking; (2) Existing policy focuses on deterrence by denial—which can be ineffective when not consistently followed—rather than deterrence by punishment. I explain both points in turn, in Paragraphs 15—17.

15. In both non-state and state-level hostage takings, the most reliable way to bring hostages home is to make concessions to the perpetrators’ demand. However, from the government’s perspective, making such concessions is undesirable for multiple important reasons: (1) Making concessions may be illegal;[11] (2) making concessions rewards an adversary for targeting civilians; (3) making concessions—such as ransom payments or prisoner exchanges—may strengthen adversarial actors; and (4) making concessions teaches perpetrators that hostage taking works, incentivizing future attacks. Thus, the actions that may best resolve the immediate hostage crisis serve to strengthen and reward the adversary and increase future risk.

16. Stated policy, in both the United Kingdom and United States, is that the government will provide “no concessions” to hostage takers. Such policies rely on a denial logic: hostage takers will be denied the benefits of taking hostages if targets are unwilling to pay ransoms.[12] There are several problems with relying on “no concessions” to deter hostage taking. First, such policies punish the target (along with, or instead of, the perpetrator) both directly and indirectly. Directly, “no concessions” policies may lead to literal punishment or prosecution of hostage families. In the United States, for instance, the government has threatened hostage families with prosecution if they paid terrorist ransoms, which punishes families for attempting to bring their loved ones home.[13] Indirectly, “no concessions” policies punish families by decreasing the likelihood of bringing hostages home. Such policies might satisfy the government’s goal of denying benefits to hostage takers, but it is cruel treatment of families in crisis.

17. Second, the “no concessions” policy is inconsistently applied. The United Kingdom and United States governments frequently make exceptions to blanket “no concessions” policies, allowing ransom payments and prisoner exchanges in some cases while proscribing them in others.[14] At the same time, other countries’ governments have no such prohibition at all. This creates an uneven patchwork of concessions policies in which hostage takers can expect that they will not be denied benefits.

18. A third potential problem with strict “no concessions” policies is that—if misinterpreted—they can constrain the government from taking action required to bring hostages home. While for reasons articulated in Paragraph 15 making concessions does not deter hostage taking, governments should not confuse pursuing negotiations and creative solutions with making concessions. In all cases, governments or third-party intermediaries should pursue negotiations with hostage takers. The record suggests that negotiations provide many benefits for hostage recovery, including: (1) intelligence and information gathering, useful in other avenues of recovery; (2) an opportunity to learn about hostage takers’ interests beyond their stated demands; (3) an opportunity to discuss creative solutions, which do not resemble “concessions” but may be effective to bring a hostage home. Governments should not confuse negotiations with concessions.

V. What efforts is the Government taking, or should take, to secure international agreement on deterring and handling state-based hostage taking?

19. Rather than rely on policies of denial, consistent, humane, and effective deterrence policies would instead focus on punishment. Deterrence by punishment requires promising such severe consequences for hostage taking that no rational state or non-state actor would take hostages in the first place.[15] Unfortunately, designing and implementing a punishment strategy is difficult. Existing punishments include sanctions and prosecution. For example, the Levinson Act outlines the authorization of sanctions on any foreign person that the target government determines:

…is responsible for or is complicit in, or responsible for ordering, controlling, or otherwise directing, the hostage-taking of a United States national abroad or the unlawful or wrongful detention of a United States national abroad; or

knowingly provides financial, material, or technological support for, or goods or services in support of [hostage taking or unlawful detentions].[16]

20. PPD-30 establishes criteria for prosecution: “the United States shall diligently seek to ensure that hostage-takers of U.S. nationals are arrested, prosecuted, and punished through a due process criminal justice system in the United States or abroad for crimes related to the hostage-taking.” PPD-30 then clarifies that the United States has jurisdiction over the taking of a U.S. national hostage abroad. Despite this provision, very few such prosecutions have taken place. One notable exception is the recent trial of London-born El Shafee Elsheikh, found guilty in a court in Virginia of lethal hostage taking and conspiracy to commit murder.[17] Such trials—and the international cooperation they require among allies—are key to deterrence by punishment.

21. Among the goals of the Committee’s inquiry are to “[clamp] down on the practice internationally,” including pursuing “multilateral action.” There is a mixed record for international coordination on hostage-taking prohibitions. In 2013, the British government led an effort among G8 countries to agree not to pay hostage ransoms, agreeing to a “communique rejecting the payment of ransoms and calling on other countries and companies around the world to follow their lead.”[18] Despite this agreement, several G8 countries continued to pay ransoms to recover their citizens from Islamic State captivity: governments have strong incentives to cheat when their own citizens are at risk.

22. One possible example for international coordination comes from the International Convention Against the Taking of Hostages, adopted by the United Nations General Assembly in 1979.[19] Crafted at the height of airplane hijacking and embassy siege incidents, the 1979 Convention established a legal definition of “the offence of taking hostages (“hostage-taking”) and set out criteria for determining where a hostage taker might face trial. While a useful start, the Convention has not kept pace with some of the biggest hostage-taking challenges today.[20]

23. The UK government should strongly consider leading efforts at the United Nations on a new convention to define state hostage taking and coordinate to punish perpetrators. This convention may be modeled after the 1979 Convention, laying out clear definitions and criteria for state hostage cases. To effectively deter state hostage taking, any international agreement should focus on punishment for perpetrators, to include sanctions, extradition, prosecution, and other processes in line with international law.

May 2022

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