The arrest of Meng Wanzhou, a senior Huawei executive in Canada, created a considerable steer in China. Meng was arrested at the United States’ request for alleged fraud in relation to the Iran sanctions regime. In an apparent act of retaliation, China arrested two Canadian nationals (the “two Michaels”) on what some interpreted to be trumped up charges. In other cases, foreign nationals, often dual nationals, have been detained seemingly arbitrarily in the midst of geopolitical tensions between various countries (cases include Nazanin Zachari-Ratfliffe, Cheng Lei, or Paul Whelan). Even where no particular effort to put pressure on a state is involved, cases in which nationals are unjustly arrested and detained have long been an irritant in international relations (recent cases include the Bali 9, Richard O’Halloran, or Trevor Reed).
In all cases, the state of nationality can come under considerable pressure from the national’s relatives and from civil society to address the detention and to do something to secure the release of those detained. Some of those detained have been released (the two Michaels), but others still languish in jail with uncertain prospects of release.
What can states do realistically to secure the release of their detained nationals? And how do they ensure that this release does not come at too high a cost to the point of being counterproductive?
This piece argues that states’ ability to obtain the release of their unfairly detained nationals will often require a deft diplomatic hand, cultural sensitivity and attention to how protests may play out with the foreign government, rather than a heavy-handed fixation on the legal unjustness of detention. But it also requires attention to the long term costs of obtaining a liberation. In some cases, confronting detaining states may prove unavoidable and the only option consonant with human rights.
The Challenge of Alleging Foreign Courts’ Lack of Independence
Consular assistance is a strict minimum and famously led to litigation before the International Court of Justice by Germany and Mexico against the United States. But it may have very little effect against a rigged process. Denying the presence of consular officers at a trial, as China did in the case of Michael Spavor, is clearly a violation of the Vienna Convention on Consular Relations, though in the Spavor case it is unlikely that consular assistance would have led to a different judicial outcome. There is also a long tradition of states espousing the case of their “unjustly detained” nationals. This dramatically raises the profile of individual cases such as happened with Nazanin Zaghari-Ratcliffe, but may also make a resolution of a diplomatic crisis more difficult.
The key problem is that states, which detain foreign nationals for apparently arbitrary reasons, are adamant that they are not simply instrumentalizing their judicial system for political gain, and that their tribunals are indeed independent. It may even be in some cases that the nationals accused did commit the offences they are accused of, especially in authoritarian states with very vague definitions of crimes involving national security which can easily catch a range of perfectly innocent behavior. At any rate, it may be difficult, as I have argued elsewhere, to accuse these states of bad faith in invoking the independence of their courts when one is simultaneously invoking the independence of one’s own courts.
Seen from outside, it may seem obvious that the courts of the state responsible for the arrests lack independence, and there may certainly be no shortage of indicia to that effect, especially when arrest and trial are timed to coincide with international events. Yet this can be difficult to prove beyond suspicion given the secrecy of judicial deliberations. General speculation about the lack of independence of the judiciary of another state is not the same thing as credibly alleging that the courts lack independence in the particular case at hand. Impugning the independence of a state’s courts is often viewed by states who stand accused of unfairly detaining foreign nationals as a direct interference with their sovereign independence. This is particularly so when the criticism is directed at states that have long suffered from patterns of imperialism and are uniquely sensitive about their sovereignty, including in its judicial dimensions.
Better Let Justice Run its Course?
When there is reason to believe a foreign court in question is independent (as is the case, for example, in Canada), letting justice run its course may be the wisest gambit. For example, upon the arrest of former Nissan-Renault CEO Carlos Ghosn, a French national, France did very little to protest his detention in Japan, insisting that it trusted the independence of Japan’s judicial system. Similarly, Italy for a while at least largely deferred to the Indian legal system in the case of two of its marines accused of having killed local fishermen and even intervened in domestic proceedings. In the case of Meng’s detention in Canada, the wisest course for the Chinese government might have been to let justice (or executive discretion) run its course.
Denouncing the insufficiencies of a particular judicial process is unlikely to lead to a miraculous release. For example, in the infamous case of the Bali Nine–young Australians arrested in Indonesia on drug trafficking charges, two of whom were executed–evidence emerged late in the day of bribery allegations that suggested the defendants were offered sentences short of the death penalty in exchange for money. However, given that the executions were carried out, it remains unclear what good exposing these forms of bribery solicitation did.
Adopting a relatively flexible and pluralist standard of what judicial independence means may also be helpful. “Independence” is not an all or nothing concept. It may mean subtly different things within different legal traditions, depending on different concepts of the ends of criminal justice and the type of procedure involved. It can appear patronizing and simplistic to draw a line between “independent” and “dependent” judiciaries where, even in the most liberal system, there are many nuances. Questions of pluralism in international criminal justice are routinely dealt with in the context of extradition for example, and make significant allowance for the diversity of legal systems.
This means that even where a state has suspicions about the lack of independence of foreign courts, it may not be the best course of action for that state to denounce that lack of independence as such. For example, France, in trying to secure the release of its allegedly arbitrarily detained and convicted citizen Florence Cassez (the spouse of a Mexican gang member who was apparently framed for kidnapping, creating a considerable commotion between France and Mexico), repeatedly emphasized its “confidence in the independence of Mexican justice.” This was despite much evidence that for example elected Mexican officials had met judges as part of their campaign to maintain her incarceration, in a context of traditional deference of the Mexican judiciary to the executive. In reality, however, this may have helped defuse the tension while, quite possibly, letting judicial nominations, meetings of judges in international fora and discreet diplomacy do the work of resolving the situation.
Red Lines?
But there may be cases where the independence of foreign courts is so significantly open to question that it becomes difficult for the state of nationality not to protest. These are cases where the arrest of one’s nationals come close to a “judicialized” arbitrary detention and in which the host state is clearly using foreign nationals as part of a political strategy. Examples include the detention of two Swiss nationals following the arrest of Hannibal Gaddafi, or the detention of the “two Michaels” in China following the arrest of Meng Wangzhou. That this detention came close to hostage taking has been made amply clear retrospectively by their release 24 hours after the release of Meng, despite attempts by the Chinese government to save face and present the release as being for health reasons. In such a case, to not challenge detention is to risk legitimizing a masquerade of a judicial process.
In line with this stronger stance inspired by human rights, fifty-two states have recently supported Canada’s diplomatic effort to encourage the adoption of a “Declaration against arbitrary detention in State-to-State relations”, which “express[es] grave concern about the use of arbitrary arrest or detention by States to exercise leverage over foreign governments, contrary to international law.” The Declaration has the advantage of drawing some red lines by reminding states that arbitrarily detaining foreigners is in violation of both the obligations owed under international law to protect foreign nationals and internationally recognized standards. And it is a powerful show of solidarity among, for the most part, Western states. In some cases, countries have withdrawn ambassadors in protest at unfair trials or executions. It may well be that the release of the two Michaels owes something to this symbolic show of force. The Declaration is poor on the specifics, however, and characteristically leaves states entirely at liberty to determine their preferred strategy to assist nationals abroad.
Conclusion: Making the Most of a Bad Situation?
Paradoxically, the dependence of courts on the executive in a foreign state may in some cases be one of the best hopes that a state has of protecting its nationals. It guarantees that, whatever the judgment of the courts, bilateral arrangements can be found at a diplomatic level that circumvent such judgments, even extending to ordinary individuals the kind of swaps that was more familiar during the Cold War between spies.
Indeed, one way of looking at the problem is that foreign courts should merely be treated as organs acting on the orders of their state and the issue resolved on a bilateral level. What the state can dictate its courts to do it can presumably require them to undo. This may involve some face-saving device by which the state appears to merely be surrendering to a domestic judicial decision, although some states will not even require that. There are also executive dimensions to these cases that provide some inbuilt flexibility, like pardons.
The challenge is that states, in their urge to obtain the release of their own nationals, should resist undermining the independence and integrity of their own judicial systems or any suspicion that they are giving in to transnational judicial hostage taking. Whilst universally welcome, the release of the two Michaels immediately following the release of Meng has raised concerns not only that some countries bully others through judicial hostage taking but that states of nationality (or sympathetic third states) could be seen as rewarding such behavior (despite all efforts to make the issues seem disconnected). This woud create a dangerous precedent both for their judicial systems and international relations.
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Frédéric Mégret is a Professor and Dawson Scholar at the Faculty of Law, McGill University and the co-Director of its Centre for Human Rights and Legal Pluralism.
Image Credit: International Court of Justice at The Hague on Flickr; Creative Commons 2.0 License
