Recent high-profile detentions of foreign nationals raise questions about what the best diplomatic response should be from the states of nationality of those detained. This piece emphasizes how difficult it can be to critique the lack of independence of foreign courts and argues for a policy that prioritizes diplomacy over systematic denunciation of the failings of other judicial systems. However, there may come a time where the manipulation of the justice system in the detaining country is so blatant that it should be called for what it is.
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
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.
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.
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