Captive Humans for Trade: Where’s the Law in “Hostage Diplomacy”?

The August 2024 prisoner exchange involving Russia, the United States, and several other countries has been lauded as a triumph of international diplomacy. Foreign hostages were not the only people released by Russia. Rights advocates were joyfully surprised and relieved that several Russian human rights defenders and political prisoners were released as part of the deal.

The August hostage exchange remains darkly tinged with the reality that Russia continues to hold over 1,300 prisoners on politically motivated charges. Worldwide, wrongfully detained people number at least a million. Authoritarian governments also conduct extraterritorial harassment to silence dissidents living abroad.

This column seeks to illuminate issues that are overshadowed by intense media spotlights on State-to-State hostage-taking. Broader patterns of wrongful detention by China, Russia, and Iran are examined in light of international law. Concluding paragraphs offer reflections from a Canadian perspective on how to prevent and deter the taking of prisoners by State actors for purposes of economic or political leverage.

State hostage-taking and arbitrary detention violate international law

Attention to dramatic international prisoner exchanges obscures the plights of less prominent people unjustly imprisoned in many countries. The August prisoner swap illustrates blurred boundaries between State-to-State hostage-taking and wrongful imprisonment (arbitrary detention) to silence local dissenters. In both types of cases, the purpose of arbitrary detention is to secure or leverage power, either to gain concessions from other governments or to get rivals – and their narratives – out of the way.

Hostage-taking and systematic arbitrary detention are international crimes that authorities often attempt to cover up with unconvincingly thin veneers of “criminal charges” under “laws” that bear no true resemblance to international understandings of the rule of law.

Calling a cat a cat: State hostage-taking is an international crime

The term “hostage diplomacy” is a mischaracterisation, says legal scholar Beatrice Lau. In this context the term “diplomacy” is a euphemism that avoids “the need to call a cat a cat.”

Ms. Lau points out that detaining someone “to compel a third party to do or not do any act as a condition for the release is, legally speaking, an act of hostage-taking” (citing Article 1 of the 1979 International Convention Against the Taking of Hostages (Hostage Convention).

Hostage-taking also violates peremptory (jus cogens) norms of customary international law from which no State may lawfully derogate even if they are not Parties to the Hostage Convention, not even in the interests of national security. It is an international crime for anyone, including a State actor, to cause the arbitrary detention of a person to gain diplomatic or economic leverage over anyone, including another State.

Tactful language of “diplomacy” and “prisoner exchanges” fails to disguise State actors’ abuses of laws and non-independent courts to disingenuously attempt to cover up crimes of hostage-taking.

Every State Party to the Hostage Convention is obligated to prevent and punish hostage taking, including by criminalizing it in domestic law. The Hostage Convention’s 176 States Parties include Canada, the US, Russia, China, and Iran. Canada’s Criminal Code allows the prosecution of persons for crimes of hostage-taking that occur outside Canada’s borders, but prosecuting foreign officials for State-to-State hostage-taking would face practical and legal hurdles, including the difficulty of identifying and arresting the offenders and unclear international law on immunity of State officials.

Arbitrary detention, torture, and enforced disappearance: Criminal associates

Hostage-taking of foreign nationals by other States is not the only form of arbitrary detention. Any deprivation of liberty without a valid legal basis violates international human rights law.

Arbitrary detention is prohibited by the 1948 Universal Declaration of Human Rights and the 1966 International Covenant on Civil and Political Rights (ICCPR). The ICCPR has 174 States Parties including Canada, the US, and Russia, but not China or Iran. Nevertheless, the prohibition applies to China and Iran, because arbitrary detention violates customary international law, which is binding on all States whether they are States Parties to the ICCPR or not.

Arbitrary detention is often accompanied by torture, ill-treatment, or prolonged or temporary enforced disappearance. These additional violations contravene the United Nations (UN) Convention Against Torture (UNCAT) which has been ratified by 174 States, including Canada, the US, China, and Russia, but not Iran.

None of these five countries (Canada, US, China, Russia or Iran) have joined the UN Optional Protocol on the Convention Against Torture (OPCAT), which would allow UN inspections of facilities where torture or ill-treatment may take place. And none of these countries have joined the International Convention for the Protection of All Persons from Enforced Disappearance (Convention on Enforced Disappearance), although Canada advises that it is planning to join both these treaties.

Even so, torture, ill-treatment, and enforced disappearance violate jus cogens norms of customary international law, which are binding on all countries without exception. These abhorrent crimes are facilitated when authorities deny detainees’ their right of access to lawyers of choice and independent courts, or in the case of foreign detainees, their right to consular assistance from their own government.

China, Russia, and Iran: Arbitrary detention and transnational repression

Canada is no stranger to hostage-taking of its citizens by States. This column focusses on examples from Russia, China, and Iran, where Canadians have been recently or are now arbitrarily detained. These countries also practice systematic arbitrary detention of their own citizens and reportedly engage in transnational repression of people in Canada.

China’s notorious record of arbitrary detention, torture, and disappearances

Julia and Kevin Garratt and the “two Michaels” may be the best-known Canadian hostages. They were released from unjust imprisonment in China through bargains with Canadian and US governments. Sadly, a Canadian Uyghur rights advocate and a Canadian persecuted for religious expression, have suffered prolonged wrongful imprisonment in China for years.

Most of the approximately 93 Canadians detained in China have been charged with offences ranging from traffic offences to drug smuggling. China’s justice system falls notoriously short of international standards. No one is assured of a fair trial before an independent court.

Foreign prisoners comprise a tiny fraction of the people arbitrarily detained by China. Also wrongfully imprisoned are Chinese, Tibetan, Uyghur, Taiwanese, and Hong Kong dissidents, as well as human rights advocates and religious minorities. China also harasses Chinese dissidents living abroad.

Julia and Kevin Garratt held hostage for trade with Su Bin

China took Canadian Christian aid workers, Julia and Kevin Garratt, as hostages in 2014. Chinese authorities abducted and arbitrarily detained the Garratts on bogus accusations of spying. It was clear that China hoped to trade the Garratts for Su Bin, a Chinese national detained by Canadian officials pending hearings regarding a US request for his extradition to the US on charges of cyber-spying on US companies.

The Garratts were repeatedly denied access to lawyers and subjected to lengthy interrogations and other ill-treatment. When their captors instructed them to tell Canadian consular officials that Canada’s government must “do more. They know what to do,” the Garratts deduced that their imprisonment was due to “something going on between the governments.”

Julia Garratt was released on bail after six months. Kevin Garratt was held until 2016 and convicted of spying in an unfair, closed trial. Chinese authorities lost negotiating power regarding the Garratts when Su Bin allowed himself to be given up to US authorities. The Garratts were then deported back to Canada.

Michael Spavor and Michael Kovrig traded for Meng Wanzhou

From 2018 to 2021, Canadians Michael Spavor and Michael Kovrig – the “two Michaels” – were separately arrested in China on false spying charges. The arrests occurred shortly after Chinese Huawei executive Meng Wanzhou was detained in Canada pending hearings regarding extradition to the US on bank fraud charges.

Mr. Spavor and Mr. Kovrig were held in isolation. For some time, China refused to reveal Mr. Kovrig’s exact whereabouts. Both were interrogated, denied access to lawyers of their choosing, and subjected to unfair criminal proceedings.

In September 2021, the two Michaels were returned to Canada in exchange for Ms. Meng’s release. The US deferred the charges against her, which ended its request to Canada for extradition.

Sun Qian: Religious persecution – and a bargaining chip?

Associated with the situation of Meng Wanzhou is the little-known case of a Canadian woman, Sun Qian, arrested in China in 2017 for an offence related to her peaceful expression as a Falun Gong practitioner. After Canada refused to release Ms. Meng in 2020, China suddenly sentenced Sun Qian to prison for eight years; she remains imprisoned in China.

Huseyin Celil: Uyghur rights advocate

Huseyin Celil, a Canadian, is an advocate for the rights of Uyghur people. He has been imprisoned in China since 2006 on spurious “terrorism” charges.

China refuses to recognize his Canadian citizenship and has denied him Canadian consular visits. He has been forcibly disappeared since 2017, the same year China intensified its atrocity crimes against Uyghur people.

Many have worried that the Canadian government has forgotten Huseyin Celil. Yet, Canadian officials regularly affirm that his case “…is a priority… as the Government of Canada continues to be deeply concerned with his detention. Canada has repeatedly raised Mr. Celil’s case with the government of China at the highest levels, and will continue to do so.”

Canada’s refrain of assurances wears thin with advocates for Mr. Celil. Canada’s quiet diplomacy in his case – and that of Sun Qian – pales in the contrasting light of Canada’s vigorous campaigns for the Garratts and the two Michaels.

China’s imprisoned dissidents

The Chinese expression, “kill the chicken to scare the monkeys” has been used to describe China’s practice of meting out prison sentences to dissidents, journalists, and human rights defenders, including lawyers. Dissidents are routinely arrested, held incommunicado without bail, tortured, convicted in unfair trials, and given lengthy prison sentences. Detainees are often subjected to enforced disappearance for months or even years at a time.

China’s extraterritorial harassment

China’s persecution of dissidents extends to people living in Canada. Canada’s Uyghur residents have been subjected to threats and cybersurveillance to stifle advocacy for Uyghur rights in China.

Dissidents and pro-democracy advocates from Hong Kong, Tibet. and religious minorities such as Christians and Falun Gong practitioners in Canada also face threats, harassment, attacks, suspicious deaths, or coerced returns to China. According to 2021 testimony to the House of Commons Special Committee on Canada-China Relations, “(d)issidents are not safe – not in their own homes, not in civil societies, not at work, and not in Canada.”

Russia’s crackdown on dissent

Canadian connections: Hostages Paul Whelan and Vladimir Kara-Murza

The August 2024 release of foreigners imprisoned by Russia included Canadian-born Paul Whelan along with US journalist Evan Gershkovich, Russian-American radio journalist Alsu Kurmasheva, and Russian-British opposition politician Vladimir Kara-Murza. Mr. Kara-Murza was awarded honorary Canadian citizenship in 2023. Also released were five German citizens and seven Russian political or human rights activists, including human rights defender Oleg Orlov, and poet and peace-activist Sasha Skochilenko.

Paul Whelan and Evan Gerskovich reported additional rights violations during their captivity, including denial of lawyers of choice, unfair trials, incommunicado detention, enforced disappearance, ill-treatment, denial of medical care, and denial of consular visits.

A few days before the August prisoner exchange, ominous reports emerged that several foreign and Russian political prisoners, including Paul Whelan, Vladimir Kara-Murza, and Oleg Orlov, were missing from their detention facilities. Swirling rumours of impending prisoner exchanges mingled with chilling spectres of enforced disappearance and extrajudicial killing.

Such fears became acute after the forcible disappearance and suspicious prison death of Alexei Navalny in February 2024. After Mr. Navalny’s death, foreign and local detainees, their families, and their colleagues around the world, including families of Paul Whelan and Vladimir Kara-Murza, worried that no prisoner in Russia is free from mortal danger.

After his release, Mr. Kara-Murza recounted:

“When a group of officers burst into my cell at 3 a.m. on July 28 and told me to get up and get ready in 10 minutes, my first thought was that I was going to be led out to be executed.”

News confirming the prisoner exchange brought palpable relief to the prisoners, their families, their friends, their colleagues, and human rights advocates around the world.

Dissidents persecuted in Russia

More than 1,300 people remain unjustly confined in Russian prisons on politically motivated charges. UN human rights experts have expressed grave concern about Russia’s pattern of disappearing detained dissidents and human rights defenders.

Peaceful anti-war advocates have been imprisoned under laws against “discrediting” the Russian armed forces. The laws were passed hastily after Russia’s full-scale invasion of Ukraine in February 2022. Analysis of these laws shows that they violate Russia’s international human rights obligations and its own Constitution.

At the time of his release, Russian human rights defender, Oleg Orlov, was serving a two-and-a-half-year prison sentence for his anti-war advocacy. Russian poet, Sasha Skochilenko, was serving a seven-year prison sentence for replacing supermarket labels with anti-war messages. The illegitimate offence of “repeated discrediting” was among the charges used to imprison Mr. Kara-Murza in 2022.

Russia’s extraterritorial prosecutions in Canada

Russia’s intimidation tactics extend to in-absentia criminal charges, trials, and sentences against dissidents living abroad. Since 2023, Russia has extraterritorially prosecuted at least two residents of Canada for their peaceful advocacy against Russia’s war crimes in Ukraine. Prokhor Protasov, a music composer, was sentenced in absentia to five years imprisonment for social media posts of news about the war. Maria Kartasheva, a tech worker, was sentenced in absentia to eight years in a Russian penal colony for posting news about Russia’s war crimes on social media. Their safe return to Russia is impossible.

Iran: Canadian hostages and Iranian dissidents

Iran has a lengthy history of jailing dual nationals for diplomatic leverage. Iran also imprisons Iranians to suppress dissent.

Canadian dual nationals detained by Iran

When Iran detains Canadian-Iranian dual citizens, they are denied their right to Canadian consular assistance. Iran refuses to recognize their Canadian citizenship.

In 2018, Iran jailed nine members of the Persian Wildlife Heritage Foundation. Included was Canadian academic Dr. Kavous Seyed Emami who died in Evin prison in 2018 in suspicious circumstances.

Canadian environmental professor Niloufar Bayani was held on false charges from 2018 until her release in April 2024. Dr. Bayani’s release is believed to be linked to a September 2023 hostage deal with the US which involved the release of several Iranian-Americans and a Canadian-Iranian businessman in exchange for the US unfreezing billions of dollars of Iranian assets for “humanitarian purposes.”

Canadian environmental law professor, Dr. Reza Eslami, has been imprisoned since 2020 on charges of “cooperating with a hostile State” (the US). It is believed he is being held as a potential “bargaining chip.”

Iran’s imprisoned dissidents

Iran suppresses the advocacy of local human rights defenders, including lawyers, through lengthy prison sentences. Particularly vulnerable to persecution are women’s rights advocates who protest Iran’s compulsory veiling laws.

Iran’s transnational repression

A May 2024 report of Canada’s National Security and Intelligence Committee of Parliamentarians, recorded Iran’s transnational repression of Iranian exiles in Canada. According to the report, the purpose of State-sponsored transnational repression is to send a message that “regime opposition will not be tolerated anywhere in the world and Western democracies cannot offer protection from the regime…”

Halting the international scourge of arbitrary detention: Concluding reflections

In the wake of the 2021 release of the two Michaels, Canada introduced a Declaration Against Arbitrary Detention in State-to-State Relations.  The Declaration is now endorsed by 78 countries. This initiative is accompanied by an Action Plan for education, research, and advocacy to deter cross-border hostage-taking. The Canadian government has also tasked an expert independent international panel to produce a June 2025 report that will “analyze existing international legal frameworks, identify gaps and develop recommendations to strengthen the norms related to arbitrary detention in state-to-state relations.”

There are undoubted gaps in international law related to State-to-State hostage taking. The 1979 Hostages Convention is noted to be in need of updating, among other things to ensure viable mechanisms to combat hostage-taking.

There are also calls to update the 1963 Vienna Convention on Consular Relations to ensure dual citizens’ right to consular assistance. Canada’s approach to consular assistance for Canadians wrongfully detained abroad has been criticized for being discretionary, selective, and discriminatory. A Canadian law ensuring the right of consular assistance for all Canadians could ensure that Canadians imprisoned abroad are entitled to adequate, robust, persistent, and non-discriminatory consular assistance.

Canada’s Declaration Against Arbitrary Detention in State-to-State Relations cannot be allowed to distract from existing, binding, international law that prohibits wrongful detention wherever it occurs, along with torture, ill-treatment, and enforced disappearance. Canada needs to go beyond its non-binding Declaration by joining, implementing, and insisting that all States comply with both customary international law and the treaties they have ratified.

For example, international pressure and moral pressure to combat torture and enforced disappearance – both prolonged and temporary – would be strengthened if Canada acceded to the Convention on Enforced Disappearance and the OPCAT, and advocated that other States ratify and implement them. Canada has long been urged to accede to these treaties and recently indicated it is “prioritizing becoming party” to them. So far, however, there is no clear timeline for necessary federal, provincial, and territorial consultations needed prior to accession.

Canada also needs to fully implement its Voices at Risk policy to advocate for human rights defenders abroad. Some Canadian diplomatic missions have solid reputations for supporting human rights defenders. Other missions prioritize Canada’s trade interests. Canada needs to consistently and impartially apply this policy.

The global scourge of arbitrary detention and other associated violations is undoubtedly multi-faceted. At its heart, however, the problem is simplified when the issues are analyzed and addressed through the central lens of international human rights law and standards. This is not to say that it is easy to maintain a clear focus through a human rights lens. On the contrary. But the most difficult challenge is to persuade leaders to put on the lens of human rights in the first place and to apply this lens consistently and equally to all persons and peoples everywhere.

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