Chapter 2Background
2.1The issue of arbitrary detention by states for diplomatic leverage — a practice referred to as ‘hostage diplomacy’ — is an increasingly prevalent global concern. Recent cases brought to the United Nations (UN) Working Group on Arbitrary Detention (WGAD) suggest that arbitrary detention for diplomatic leverage has been on an upward trajectory in the last five to ten years.
2.2While definitions of hostage diplomacy can vary slightly, broadly speaking the practice can be understood as a nation state arbitrarily detaining the citizen of another state in order to extract diplomatic, financial or other concessions in exchange for their release.
2.3As the submission from the Australian National University Law Reform and Social Justice Research Hub stated:
Hostage diplomacy is a phenomenon loosely described as occurring where ‘states detain foreign nationals as a means to coerce the foreign policy of another state’. The key feature distinguishing hostage diplomacy from arbitrary detention is ‘the existence of a demand as a condition for release’. Detention of foreign nationals in times of peace, in the absence of international humanitarian law which usually only operates in war, is a ‘way to gain leverage in the conduct of a country’s foreign affairs’.
2.4The phenomenon of hostage diplomacy is recognised by a vast number of international actors as a threat to cordial state-to-state relations which encompasses human rights and international security dimensions and requires a robust multilateral response from like-minded countries.
2.5This chapter provides information on:
the international framework for understanding arbitrary detention and hostage diplomacy;
the role of the Department of Foreign Affairs and Trade (DFAT) in assisting Australians detained overseas; and
a brief overview of models for responding to hostage diplomacy from like-minded countries.
The international framework for understanding wrongful detention
2.6Any understanding of arbitrary detention, and by extension wrongful detention and hostage diplomacy, should be situated within accepted international legal and human rights frameworks. These include the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Vienna Convention on Consular Rights.
2.7For example, in considering allegations of arbitrary detention, WGAD applies the principles set out in several international instruments, including:
Universal Declaration of Human Rights, Article 9: No one shall be subjected to arbitrary arrest, detention or exile.
International Covenant on Civil and Political Rights, Article 9(1): No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of liberty except on such grounds and in accordance with such procedure as are established by law.
Vienna Convention on Consular Relations: Article 36 sets out the right of the state of nationality to contact its nationals when they are detained. It also sets out the obligations of the detaining state to inform the state of nationality when its nationals are detained and to inform the detainee of their rights under this provision.
2.8A submission from the Canadian Government pointed out that there was still work to do in situating hostage diplomacy as ‘a particular subset of arbitrary detention by states for political leverage over another state’ within the international legal framework. It noted:
Looking ahead, it is critical that we understand how this issue is situated within the international legal framework. While several international instruments prohibit arbitrary detention, the particular subset of arbitrary detention by states for political leverage over another state is not yet clearly defined in international law. As such, in January 2024, Canada established an Independent International Panel on Arbitrary Detention in State-to-State Relations (“the Panel”). Comprising seven eminent jurists from around the world, the Panel is conducting an 18-month study into this issue, including an examination of the relevant international legal frameworks. It will provide its assessment as well as recommendations on what can be done to address this practice in its final report, expected in June 2025.
United Nations Working Group on Arbitrary Detention
2.9WGAD has a mandate from the United Nations Human Rights Council (UNHRC) to investigate cases of deprivation of liberty imposed arbitrarily or inconsistently with the international standards set forth in the Universal Declaration of Human Rights, or the international legal instruments accepted by the states concerned.
2.10It is composed of five independent experts from balanced geographical locations that together investigate individual cases and produce reports and opinions to fulfil the mandate.
2.11In carrying out its work, WGAD receives submissions from detainees, their legal representatives, civil society organisations, governments and others in relation to situations of alleged arbitrary detention worldwide. After examining the submission, the government of the alleged offending country is offered an opportunity to refute the claims. Once this has occurred, comments are sought from the person or organisation making the submission on the government response received by WGAD. Finally, WGAD adopts an opinion setting out its findings on whether the detention is arbitrary.
2.12The findings are often used by human rights advocates to draw attention to non-compliance by states with their international human rights obligations. A summary of the findings is also published in WGAD’s annual reports to the UNHRC.
2.13WGAD has acknowledged that the question of what makes deprivation of liberty arbitrary is ‘not clearly answered’ in international instruments.
2.14In light of this, WGAD has adopted specific criteria applicable in the consideration of cases submitted to it, drawing on the relevant provisions of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
2.15According to WGAD, deprivation of liberty is arbitrary if a case falls into one of five categories:
Category I: when it is clearly impossible to invoke any legal basis justifying the deprivation of liberty.
Category II: when deprivation of liberty results from the exercise of the of the rights of freedoms guaranteed under articles 7, 13, 14, 18, 19, 20 or 21 of the Universal Declaration of Human Rights and articles 12, 18, 19, 21, 22, 25, 26 or 27 of the International Covenant on Civil and Political Rights. Cases under this category are those in which detention is used in response to the legitimate exercise of human rights
Category III: the total or partial non-observance of the international norms relating to the right to a fair trial (as established in the Universal Declaration of Human Rights and relevant international instruments accepted by the state concerned).
Category IV: asylum seekers, migrants or refugees are subjected to prolonged administrative custody without the possibility of administrative or judicial review or remedy.
Category V: deprivation of liberty constitutes a violation of international law for reasons of discrimination based on birth, national, ethnic or social origin, language, religion, economic condition, political or other opinion, gender, sexual orientation or disability or other status, and is aimed at or can result in ignoring the equality of human rights.
The Declaration Against Arbitrary Detention in State-to-State Relations
2.16As noted at the beginning of this chapter, hostage diplomacy is an increasingly prevalent concern in the international arena, with many states and multilateral bodies keen to explore a collective response to mitigate the foreign policy and diplomatic challenges it presents.
2.17In 2021, Canada launched the Initiative Against Arbitrary Detention in State-to-State Relations to address the practice of arbitrary detention by states for diplomatic leverage. The centrepiece of the initiative is the Declaration Against Arbitrary Detention in State-to-State Relations (the Declaration) and the Partnership Action Plan, a mechanism enabling states to demonstrate their commitment to addressing the issue. The Declaration sets out universal values, firmly grounded in international law, to protect citizens working, living and travelling abroad. It aims to do this through commitment to the core principles of human rights, consular relations, the rule of law and the independence of the judiciary. As of 15 July 2024, 78 states had endorsed the Declaration, including Australia.
2.18The Declaration calls on states to prevent:
harsh conditions in detention;
denial of access to legal counsel;
torture; and
other cruel, inhumane or degrading treatment or punishment.
2.19The Partnership Action Plan supplements the Declaration and includes voluntary measures states may wish to adopt in order to ‘deter and sustain momentum against the practice of arbitrary arrest, detention or sentencing in state-to-state relations’.
2.20Areas of cooperation and engagement set out in the Partnership Action Plan are to:
Advocate and raise awareness of the Declaration and its principles through existing regional and international mechanisms.
Advance research and analysis on the prevalence of cases and use of arbitrary detention in state-to-state relations (including cases pertaining to dual citizens) to track and monitor the issue systematically.
Voluntarily share information on cases of arbitrary detention in state-to-state relations, with a view to raise awareness of the circumstances of cases of this nature, and explore lessons learned in the management and resolution of cases with a view to enhance responses.
Engage civil society, academics, think tanks and other organizations with relevant expertise, on the issues of arrest and detention, case management, international human rights law and international law more generally, to strengthen policy responses and collaboration, and to raise international awareness.
Support targeted and effective media and social media campaigns, where appropriate, to strengthen international awareness to stop arbitrary detention in state-to-state relations.
Meet periodically to consider issues pertaining to the Partnership Action Plan, assess its effectiveness and advance practical proposals.
Role of the Department of Foreign Affairs and Trade
2.21DFAT is responsible for promoting and protecting Australia’s international interests to support the nation’s security and prosperity. It works with international partners to tackle global challenges, protect international rules, ensure regional stability and help Australians overseas.
Consular assistance and travel advice
2.22Part of DFAT’s role is to provide consular assistance to Australian citizens overseas. Consular services offered to Australians are guided by the Consular Services Charter(the Charter)which outlines the nature of assistance DFAT can and cannot provide and sets expectations for citizens. The Charter states that Australians do not have a legal right to consular assistance when overseas and informs individuals that ‘you shouldn’t assume assistance will be provided’.
2.23DFAT also administers the Smartraveller website which provides travel warnings for countries around the world. Australians are advised to visit the Smartraveller website prior to travelling to ensure they are informed of the potential risks and dangers associated with travel to that country.
2.24Each country has a dedicated webpage with a country synopsis, an overview of safety precautions, health care and advice, local laws, travel arrangements within the country and local contacts (including where embassies and consulates are located). Where relevant, this synopsis may include a statement on whether there is a risk of a country arbitrarily detaining foreign citizens.
2.25Countries are allocated one of the following travel advice levels based on a risk assessment:
exercise normal safety precautions;
exercise a high degree of caution;
reconsider your need to travel; or
do not travel.
2.26The Smartraveller website also outlines what to do if a citizen is arrested or jailed oversea. It informs citizens that DFAT’s ability to assist arrested and imprisoned Australians overseas is limited.
2.27In 2023, the Smartraveller website added employment-specific advice for journalists and academics to highlight the risk of arbitrary detention for these professions.
2.28Further discussion on DFAT travel advice is contained in Chapter 3 of this report.
Management of wrongful detention cases
2.29DFAT is the first point of call for Australians who have been detained overseas.
2.30According to DFAT, it carefully assesses whether and when to use the term ‘arbitrary detention’ in relation to an Australian citizen detained overseas. Individual cases are judged on the circumstances of the case, including the charges laid, the nature of the legal process, detention conditions, the detainee’s own wishes, the country in which a citizen has been detained, and applicable international law.
2.31Once DFAT designates a case as an arbitrary detention, it adopts a ‘tailored approach to best support the welfare and interests of the client and their family’.
2.32DFAT classifies a person who has been arbitrarily detained as a ‘complex case’. In 2023, DFAT established the inter-departmental Complex Case Committee which determines what diplomatic, legal, economic or other levers are available to resolve the case in an attempt to facilitate a coordinated and deliberate approach.
2.33For example, DFAT can utilise a number of representational approaches, including bilateral, regional and multilateral advocacy channels undertaken through Ministers, Heads of Mission and diplomatic staff, and other officials. In some cases, DFAT will appoint a special envoy whose ‘specific knowledge and connections may enable them to achieve positive outcomes for clients’.
2.34DFAT assigns a case manager to the detainee’s family to act as the main point of contact and pass on information regarding the case. This information may include:
information on prison visits conducted by consular staff;
what actions DFAT has taken and what options they are exploring to resolve the case; and
discussions about why the case may be taking longer to resolve than expected.
2.35DFAT provides a limited amount of practical support to a detainee’s family through referrals to service providers and support organisations to assist with counselling and connect the family to others with similar experiences. It also provides a modicum of support to former detainees upon repatriation.
2.36The committee received evidence indicating that DFAT’s categorisation and management of wrongful detention cases is inadequate and in need of reform. These matters, including support for detainees and their families during and after a wrongful detention, are canvassed in detail in subsequent chapters of this report.
International comparison with like-minded countries
2.37As noted earlier in this chapter, the practice of arbitrary detention for diplomatic leverage (that is, hostage diplomacy) is internationally acknowledged as a serious problem requiring a strong bilateral and multilateral response.
2.38Several of Australia’s like-minded partners have domestic frameworks or policies in place that set out how that country will respond to the wrongful detention of their citizens, both in terms of individual case resolution and a broader foreign policy response. Two such examples are discussed below.
United States
2.39In 2014, four US hostages were executed by the Islamic State of Iraq and Syria, leading to an interagency review of the US hostage affairs enterprise. This review led to the June 2015 issue of Executive Order (EO) 13698 and Presidential Policy Directive (PPD) 30, which together mandated interagency coordination to recover US nationals taken hostage and wrongfully detained overseas.
2.40Specifically, the EO established:
the Special Presidential Envoy for Hostage Affairs (SPEHA), housed at the Department of State;
the Hostage Recovery Fusion Cell (HRFC), located at the Federal Bureau of Investigation; and
the Hostage Response Group (HRG), which sits within the White House.
2.41SPEHA leads US diplomatic engagement on hostage policy, coordinates all diplomatic efforts in support of hostage recovery efforts in coordination with the HRFC and consistent with policy guidance communicated through the HRG, and coordinates US efforts to recover wrongfully detained US nationals.
2.42In 2020, the Robert Levinson Hostage Recovery and Hostage-Taking Accountability Act (the Levinson Act) legislated much of PPD 30 and directs the Secretary of State to review cases of US nationals detained abroad to determine if their detentions are wrongful based on the totality of the circumstances and guided by discretionary criteria provided in the Act. The Levinson Act also requires an annual report to Congress and authorises the President to impose sanctions on those who direct or support hostage taking and wrongful detentions. Subsequently, EO 14078 vested the Secretary of State with the authority to impose those sanctions related to visa restrictions and the blocking of property.
2.43Further discussion on matters relating to the Levinson Act and the work of SPEHA is contained in Chapters 3 and 4 of this report respectively.
Canada
2.44In addition to establishing the Declaration Against Arbitrary Detention in State-to-State Relations and the Partnership Action Plan, in November 2023 Canada bolstered its efforts to combat hostage diplomacy with the appointment of the Senior Official for Hostage Affairs (SOHA).
2.45The SOHA’s purpose is to lead concerted consular efforts and enhance Canada’s capacity to respond to cases of hostage taking by both state and non-state actors. The SOHA responds to a range of complex hostage situations abroad and is supported by existing consular, advocacy and critical incident response tools and resources.
2.46A key aspect of the SOHA role is to raise awareness and facilitate international dialogue on hostage diplomacy, including highlighting its human rights and international security dimensions. The SOHA provides Canada with greater access to growing international networks working on hostage diplomacy, in turn strengthening advocacy efforts.
2.47Additionally, the SOHA enables Canada to better channel resources to respond to the complex needs of victims and their families, an area which the Canadian Government has recognised requires greater attention and resources.