Hostage Taking and International Law: New Thinking

This transcript is from an event hosted by Stanford’s Program in International and Comparative Law, Stanford’s Moghadam Program in Iranian Studies, and CSIS on October 24, 2024. Watch the full video here.

Mr. Sharp: I'm Danny Sharp. I'm a 2L here at SLS, and I'm also an adjunct fellow with the Middle East Program at CSIS. I'm delighted and honestly very inspired by our policy panel to talk about some of the legal issues that surround state hostage taking with a panel of truly extraordinary people.

They are practitioners, scholars, and public servants who have forgotten more about international law than I will ever know. I'm very much looking forward to it. These are people who my beloved boss and mentor, Jon Alterman, would call “serious people.”

These are the right people for the job. Professor Allen Weiner here teaches international law to J.D. students like myself. He’s the director of the Stanford Program in International and Comparative Law, director of the Stanford Humanitarian Program, and of the Stanford Center on International Conflict and Negotiation.

His research and teaching focus primarily on the fields of international security and international conflict resolution in the international security realm. And his work spans such issues as international law, the response to contemporary security threats, the relationship between international and domestic law in the context of armed conflict, the law of war, just war theory, and international criminal law.

Professor Weiner's scholarship is deeply informed by his experience at the U.S. Department of State's Office of the Legal Advisor. Before that, he clerked for Judge John Steadman on the District of Columbia Court of Appeals, and he graduated from SLS with the legendary class of 1989, who are also here this weekend for their reunion.

We're also very lucky to have Mr. John Bellinger with us, who's perhaps one of the most qualified lawyers in the United States to speak about these issues—and I don't just say that because he is my boss next summer at Arnold & Porter—but because he's the co-chair of the Arnold & Porter Global Law and Public Policy practice group. He started there after being the Senate-confirmed legal advisor at the State Department's Office of the Legal Advisor, and also a legal advisor to the National Security Council and associate counsel to the President. Later, he managed Secretary Condoleezza Rice's confirmation process and co-directed her State Department Transition Team.

Professor Chimène Keitner joins us from the University of California Davis School of Law. She's a leading authority on international law and civil litigation and served as the 27th counselor on international law in the U.S. Department of State. Chimène has authored two books and dozens of articles, essays, and book chapters on the relationship between law, communities, and borders.

Her work focuses on a range of issues, including jurisdiction, extraterritoriality, foreign sovereign and foreign official immunity, and the historical understandings underpinning current practice in those areas. Professor Keitner received a J.D. from Yale Law School, both a D.Phil. and M.Phil. in International Relations from Oxford University, and an A.B. in History and Literature from Harvard University.

Finally, last but not least, Mr. David Bowker is Chair of the International Litigation Practice at WilmerHale in Washington, D.C. He has spent 20 years there working on litigation and arbitration matters before international arbitration tribunals and U.S. state and federal courts, including the U.S. Supreme Court. Before joining WilmerHale, Mr. Bowker served as the attorney advisor for the law of armed conflict in the Office of the Legal Advisor at the U.S. Department of State. And prior to that, he worked on counterterrorism in the Office of Global Affairs and Multilateral Issues on the National Security Council staff.

He's a graduate of the great University of California, Berkeley School of Law, which we will not fault him for, and graduated with his B.A. from UCLA. 

My job for most of today is to stay out of the way and let the players play. But I just want to frame from the top that I think we're very lucky to have just moments ago been given our marching orders by the policymakers: Mr. Paley talked about needing novel tools to deal with this problem. Ms. Denham talked to us about finding a way to impose costs in a system where it's really difficult to impose those costs. When it comes to this question of: “How do we change the policy calculus?” It strikes me that the policy calculus is built on a framework of international law. If we can give wiggle room to the policymakers, we can change the way that that calculus comes together.

I want to start with Professor Weiner, given you’ve taught me everything I know about international law. If it is indeed the case that hostage taking was in the Code of Hammurabi and the Bible, isn't it illegal? Why is it so difficult to impose costs for this behavior?

Mr. Weiner: Thank you very much, Danny. Yes, it is illegal, so now you can move on to your next panelist. No, I'm an academic, so surely, I'm not going to stop there. My task today on the panel is to lay out a little bit of what the international law framework is with respect to the problem of hostage taking. I'm going to discuss the legal regime that applies to hostage taking in three different contexts and associated legal instruments or regimes of instruments. I'll just say one thing as an overview: There are two ways of thinking about the international legal regulation of hostage taking.

One is: The extent to which international law imposes obligations on states—that's the context that we're concerned about here—for state sponsored or state hostage taking. To what extent does international law prohibit the taking of hostages by states? The second kind of legal regime, or second set of legal instruments, applies to the criminalization of hostage taking. We have international instruments that impose obligations on states to make hostage taking a crime and to prosecute people who engage in it.

Let me start with that basic overview: The first kind of legal regime that I want to look at is the international human rights legal regime.

Again, it's unambiguous that hostage taking—what we're describing as hostage taking—is prohibited under international human rights law. Under the International Covenant on Civil and Political Rights, we see that, “No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with procedures established by law.” It's also the case that prolonged arbitrary detention is widely recognized as something that's prohibited under customary international law.

Now, we heard from some of our panelists, including Dani—Professor Gilbert, to me—earlier this morning, that there is a distinction—or we might think of a distinction—between hostage taking on the one hand and this prohibition on arbitrary detention. Hostage taking, as we know, is the act of detaining a person in order to compel a third party, often a state, to do or abstain from doing some act as an explicit or implicit condition of the release of the hostage.

Now, I don't necessarily share the view that hostage taking, and arbitrary detention are different. Rather, I see hostage taking essentially as a subset of the broader prohibition on arbitrary detention. It seems inconceivable to me that there could be a case of hostage taking that would not qualify as arbitrary detention. The U.N. Working Group on Arbitrary Detention—I believe John may be talking about this in a little bit—which is a body that's empowered to receive and issue non-binding rulings in cases of alleged arbitrary detention, does not separately assess whether states have engaged in hostage taking, because that's not explicitly enumerated in either the Universal Declaration of Human Rights or the ICCPR (the Covenant on Civil and Political Rights). But it's interesting that in recent cases, including the Evan Gershkovich case, the working group had before it claims that Russia was engaged in hostage taking and was “holding Mr. Gershkovich as a hostage to exploit his status as a citizen of the United States and to seek concessions.”

The Working Group did not determine whether Russia had engaged in hostage taking when it issued its ruling in March of this year. But it did state, in the context of the conclusion that Gershkovich’s detention was arbitrary, that given the facts of the present case and the pattern by the Russian Federation of political hostage taking, it is clear that the government of the Russian Federation has detained him on the basis of his nationality and citizenship. This seems to echo, at least my judgment, that hostage taking falls within as a subset within the definition of arbitrary detention and is prohibited under human rights law.

And just to be clear: These prohibitions on arbitrary detention apply to state action. We have the distinction between hostage taking by non-state groups and by states, and it's quite clear that the human rights obligations under the Covenant apply to actions by states. And that's relevant because, as we'll see, there are at least some questions about whether another instrument that I'll talk about briefly—the International Convention Against the Taking of Hostages—applies to state action. I think that it does, but I'll let you judge when we get there.

The second body of law that prohibits hostage taking is international humanitarian law or the Law of Armed Conflict. Again, it's quite clear that this explicitly prohibits taking of hostages by states, so it applies to state action. In an international armed conflict between states about the 1949 Geneva Convention in the context of at least occupied territory and the 1977 Additional Protocol One, more generally with respect to the conduct of armed operations, includes a prohibition on hostage taking. We see the same thing applicable in non-international armed conflict, under Common Article Three, that applies to persons taking no active part in hostility. There's an express, explicit prohibition on hostage taking. And again, I noted that there is both the question of whether there is a prohibition on state action: There is, in the context of armed conflict. And whether there's also criminalization of the offense, and under the Law of Armed Conflict, there's also an obligation to prosecute hostage taking. Hostage taking under the 1949 Geneva Convention is deemed one of the grave breaches, under the Geneva protocols that triggers an obligation on the part of states to try any person found in their territory who has committed a grave breach against a protected person.

So that's quite clear. Again, this applies to both regulated conduct of states and imposes a duty to prosecute individuals. And that, of course, would apply, necessarily, to the extent we're talking about the law governing interstate armed conflict. There's no question that obligation to prosecute them would apply to state actors.

And then I'll talk now for a moment about the hostage taking convention. In 1979, states negotiated the International Convention Against the Taking of Hostages. It's a multilateral treaty that entered into force in 1983. It's extremely widely adhered to: 176 states parties—so, 176 out of 193 U.N. Member States are parties to the hostage taking convention—reflecting, again, the notion that nobody has any question about whether taking of hostages is illegal or not. The underlying rule is, I think, settled and uncontested. Ironically, for our purposes—of course—three of the states that we have talked about today—Iran, Russia, and Venezuela—are all state parties to the hostage taking convention.

Now, the hostage taking convention is one of a group of conventions—there are about 19 of them—that were negotiated beginning in the 1970s that are basically a panoply of treaties that were designed to deal with international terrorism. And by virtue of that provenance, there is some question about whether the hostage taking convention applies to hostage taking by states or whether it is aimed at the acts of non-state actors like the Hague Convention, the Montreal Convention, the various other conventions that are part of that set of 19 anti-terrorism conventions.

It defines the offense of hostage taking, and then it imposes an obligation on all states to make that offense a crime under their domestic law, and to obligate states to try or prosecute people, or extradite to another state that will prosecute people, found in their territory.

This has given rise to a couple of questions: There are some doubts that are articulated about whether the Hostage Convention applies. For me, it's quite clear that states do have obligations under the Hostage Convention. It's quite clear: We see an obligation under the convention that states shall take all measures they consider appropriate to secure the release of hostages. I think if states are under an obligation to secure the release of hostages, it's quite clear that states are obligated themselves not to take hostages. So I think the basic prohibition on hostage taking applies to states.

With respect to the obligation to prosecute those who perpetrate hostage taking, there's some question about whether the convention applies to state actors—I think these doubts are wrong about whether the underlying obligation to prosecute applies to state actors. The prohibition the way the offense is defined, rather, on hostage taking. In article one of the convention applies to any person. There's nothing in the convention that limits the reach of this crime to any person who is not a state official.

There are indications from the negotiating record—the travaux preparatoire—that it was expected that the prohibition and the obligation to prosecute would apply to state actors as well. I'm reading from Beatrice Lau's article on this—Professor Gilbert—”The representative of the Federal Republic of Germany, which had written a foundational working paper for the convention, stated that the convention, ‘covers the case of a person who, acting on behalf of a public institution or state, committed an offense within the scope of the Convention.” So, it seems quite clear to me that persons can commit the offense of hostage taking even if they are state officials. Now there may be questions that my friends John and Chimène will talk about—whether or not those individuals could be prosecuted or civil lawsuits could be brought against them in the states of another jurisdiction under official immunity principles—that's beyond the scope of my expertise.

The second problem that we have is one that we've referred to already: It's the problem of dual nationals. The hostage taking convention is really designed to deal with purely international cases of hostage taking, where the person who's taken hostage is not a national of the country where the offense is being committed. We have some transnational dimension. And of course, where the convention applies within a single state and both the hostage taker and the alleged hostage are nationals of the same state, Article 13 of the convention says it doesn't apply. So, it's not designed to deal with purely domestic cases of hostage taking. And here we have the problem of dual nationals. In a country like Iran, which does not recognize dual nationals—when Iran takes Jason Rezaian hostage—it says: “This is a purely domestic matter, because we've taken an Iranian hostage.”

It's different in a country like Venezuela, which does recognize dual nationality, and would not treat a case of hostage taking of an American as necessarily being a purely internal matter.

And in such cases, where the country does not recognize dual nationality, they see this as a purely internal matter. Now, the reality is, of course, it's not a purely internal matter. And if we think about the logic of the hostage taking convention, which is the danger that states will try to use hostages to coerce or compel another state to do something, we know that in the case of these dual nationals, whether it's Swedes or Americans—even if they have Iranian nationality—Iran is directly interested in targeting the state of other nationality.

So, it seems to me to fall squarely within at least the purpose of the hostage taking convention. Another way to think about this would be to rely on precedent from other fora—like the Iran-U.S. Claims Tribunal, where I served as the U.S. agent for a time—where we similarly had questions about the status of dual nationals. The Iran-U.S. Claims Tribunal had jurisdiction, among other things, over cases of Iranian nationals against the government of Iran. And the same problem arose. There would be women who married Iranian men, automatically acquired Iranian nationality. The children of Iranian citizens were automatically Iranian nationals. They were Americans, they would bring claims against Iran, and Iran would say, “No. You're outside the scope of jurisdiction of our tribunal because you're Iranian nationals, not American nationals. The tribunal, in an interesting practice, developed this detailed inquiry into their personal lives and to decide what was their dominant and effective nationality—were you more American than Iranian?—as a way of figuring out how to resolve this problem. In other words, the domestic Iranian legal determination that you're an Iranian citizen was not dispositive. The question of what your dominant and effective nationality would be determined by international law standards.

And the last thing I'll say, that Danny asked me to mention—I teach use of force, though it's not one of the frameworks that I want to talk about. But the question is: If this happens, do states have the right to use force to try to rescue their nationals who are being held hostage abroad? I tend to be somewhat on the expansive view of the rights of states with respect to use of force. But in my mind, it is quite clear that states have a right, under extension of principles of self defense, to use force to rescue their nationals who are in the kind of danger that they would be in if they're being held in a prison unlawfully. The most famous precedent for this, of course, is the Israeli rescue operation in Uganda of the El Al flight that had been hijacked at Entebbe. Also, the U.S. was prepared to use force to rescue its nationals in Iran during the hostage taking. I don't think we had doubts about the legality of that.

It turns out the operation was, as I think Dani suggested, a catastrophe. We can talk about the whole design. But you can imagine that the idea of trying to shoot your way into an urban area to enter a prison, to extract one of your nationals from that, and then to shoot your way out is an extremely difficult operational challenge.

I don't think the issue with respect to use of force to rescue nationals is primarily a legal one—it's an operational one. And I will stop there and hand it over to the panelists.

Mr. Sharp: I think from the perspective of a law student who's taken your class, Professor Weiner—and I'm sure for most of the audience—I'm hearing there's a hostages convention. It defines hostage taking largely the way we've been talking about it. The people that we are trying to get to stop hostage taking are parties to it. I don't really understand why that wouldn't be the dominant way that we deal with this problem. But I gather from the fact that we are talking about it that it is not.

John, you deal with these cases all the time. Why isn't the Hostage Convention useful? Could it be? And what do we do instead of that?

Mr. Bellinger: Danny, thanks and thanks for organizing this great conference. What a great idea. I have to say I'm particularly proud—I can't take personal pride, but just institutional pride—in the fact that all the members of the legal panel are all alumni of the Office of the Legal Advisor, all four of us. I think we mentioned this with respect to Professor Keitner who served as Counselor to the Legal Advisor and, in addition to working on really interesting issues like this in the legal advisor's office, a good chunk of the legal advisor's office have then gone off into the academic community to be teaching international law. I see at least a few students in the room. So this is my pitch to you that I hope you all remember, maybe for a long time: This is just a fabulous office. If you really want to do international law, this is the place to do it. So apply—even as a law professor, like Chimène was a little bit late in coming, but she came later.

I'll also say, in addition to having served in the legal advisor's office, I've handled a number of these cases recently. I represented Princeton University for a number of years with respect to an unfortunate graduate student of theirs who had been working on his Ph.D. dissertation in Iran's National Archives and was charged with espionage and ultimately was swapped for an Iranian. I represented an American businessman named Ahmad Sharqi who had been doing business in Iran, and was charged with espionage and then swapped. I will say—actually today, a little bit of breaking news—you can all look at your phones this very second. On a plane right now, not from Iran but from Nigeria, is an American former IRS agent who worked for the cryptocurrency company Binance and who was taken by the Nigerians, not because he had personally done anything wrong but because they were mad at Binance and they held him for six months. And ultimately, the U.S. government intervened. If you look on your phones right this minute, you will see statements that have just popped up on the White House website and from Tony Blinken saying that they have arranged his release on humanitarian grounds. And I had represented Binance in that. We worked very hard on that.

So, let me just frame what you're going to hear from me. I think you've heard Professor Weiner, who's an old friend, say: Why aren't we using the Hostage Convention for this purpose? It seems like it ought to fit to me.

What you're going to hear from me—I'm not in the government anymore, but I think you're probably going to come closest to hearing a government perspective from me on this, and then you can see where you come out. I understand what I would call the “victim community”—and you'll be hearing from my friend Jason Rezaian in a few minutes on this—feel, and they are: They have been held hostage by foreign states. In the dictionary sense of the term, these people are being held hostage by foreign states. And we really ought to call a spade a spade. And the victim community has felt that people who are held by a state, state-sponsored, should be called hostages and not victims of arbitrary detention.

But what you will hear, and I think this panel will be a lot about, is that states—meaning, governments—have tended not to call people who are detained by states as hostages, or even state-sponsored hostages, but as victims of unlawful or arbitrary or wrongful detention. So we have used these two terms, and then the question really is: Why is that? And what should we do about it?

I have heard from the victim community, essentially, we feel like we're being treated as a kind of a second class citizen, almost. Everybody knows the hostages, and that's bad. But a victim of unlawful detention, that starts raising questions about, “Why were you being detained?” And, “Was there maybe something to that to begin with?” And, “The word ‘detention’ alone, that's not bad.” And so it does raise some real questions.

Here’s the international law problem. Allen previewed some of these, I'm going to do a little bit of a dive into it and then move on to what the U.S. government and the Canadian government can do about it in a possible solution. The problem with the convention: One, as you heard, it was not intended for this purpose. It was basically a counterterrorism convention that was sponsored by Germany in response to an enormous spate of international terrorism in Germany in the 1970s. So the Germans really pushed this. It's really an anti-terrorism convention.

If you start working your way through the actual provisions, the provisions are problematic in how they apply to state-sponsored terrorism. Allen has worked hard and is a good lawyer—I could do this too, I'm not sure I could do as well as he can—but he's been trying to put a square peg into a round hole. And you could do it. But I think the reason that basically no government in the world that I am aware of—and certainly not the U.S. government, and it sounds like not the Canadian government—have said, “Well let's just use the Hostage convention,” is that it doesn't quite fit.

Article 1, which defines what a hostage is, says it's “detention to compel a party to act or abstain from acting as an explicit or implicit condition of release.” Immediately, the Irans and Russias and Chinas are going to say, “Well, no. We're not detaining anybody as an explicit or even implicit condition to get someone released. Far be it from us to do that. We have just charged this person under our laws. They did something under our laws. We have no broader purpose than that, than enforcing our domestic laws.” And the rest of us may know differently, but it’s really hard to show that. Because the convention really defines “hostage” as someone who requires this explicit or implicit condition of release.

With respect to Iran, as Allen mentioned, there’s a carve out for what we call these internal cases. If the case involves the national of the country and the hostage taking takes place in a country, then it’s completely excluded. So Iran for any dual national will immediately say: “Well, this is excluded. This is just an internal matter.” And they have a fair point on that.

With respect to the obligations and the remedies, one of the remedies first is: Article 16 of the convention requires parties who cannot arbitrate a dispute go to the International Court of Justice.

The U.S. has actually historically taken Iran to the International Court of Justice under a different convention after our hostage taking under the Vienna Convention on Consular Relations. But Iran has taken a reservation to this provision and said, we do not agree to this provision. We will not take things to the ICJ.

Others have objected to that, but they stand within their rights. Here’s the most important piece that Alan referred to, and which I think is, even though I'm not in the government anymore, I suspect—I don't know if we can pull this out of Tara or not—but I think is the real problem, is the essential remedy obligation of the convention is: If the state determines that someone is a hostage, then the other states have to criminalize that behavior and to make it a crime and then to prosecute the person.

And so in this case, the United States government and the Canadian government, other governments would have to say any foreign government official, an Iranian, a Russian, a Chinese, who we determined was responsible for this hostage taking, we have to treat that as a crime under our criminal laws and try to prosecute the person.

That raises all kinds of government-to-government issues in terms of, reciprocally, would we want other countries to be indicting and prosecuting our justice ministry officials? It raises, Alan alluded to this, extremely complicated issues of immunity. In general, the U.S. government and the State Department in particular, believe that foreign government officials and our own officials have immunity for our official acts—meaning something that you’re doing officially and not in a personal capacity.

Undoubtedly these Iranians or Chinese or Russians are not off on personal frolics in hostage taking, it’s an official act. Chimène and Allen will tell you: State-sponsored hostage taking cannot be an official act. It’s so wrong, it cannot be official.

This gets into sorts of things that the U.S. government is just not really going to want to debate. Because reciprocally, the reason we have these immunity rules is not to be nice to other countries, but to protect ourselves. These are just, I think, not issues that governments have wanted to get into.

As a result, you have this bifurcation, this differentiation. And our Tara—our Special Envoy for Hostage Affairs, a guy named Roger Carstens, who’s extraordinarily good—housed in the State Department, testified recently and specifically said, we use different nomenclature. For hostages taken by terrorists, we call them hostages, but for state sponsored detention, we call it wrongful detention or unlawful detention or arbitrary detention.

So that’s, I think, why states have done that. Nationally, the U.S. Government, our Congress, passed a statute so domestic law addressing this specific issue, a few years ago. A number of people here worked on it. It’s called the Levinson Act, named after a former FBI agent who disappeared in Iran and who we’re convinced that the Iranians took and just disappeared. It creates a domestic legal framework that authorizes the Secretary of State, doesn't require, but authorizes the Secretary of State to determine if Americans or American nationals who have been taken by a foreign government are being subject to arbitrary detention.

It lists a number of factors that the Secretary is to consider, whether the person is actually innocent of what they’ve been charged with? Have they been given due process? Would diplomatic engagement actually work? Would it be helpful to have diplomatic engagement? Is that holding actually a pretext for something else? I think most of us would say that these—Jason didn’t commit espionage. This is obviously a pretext for something else. And is it really an effort to influence the U.S. government?

The law doesn’t say we require the secretary to make certain determinations if these factors are met. It allows the secretary to make them. If the secretary determines that someone is being unlawfully detained, then the case is transferred to our Special Envoy for Hostage Affairs, who then takes the case and then works on it essentially as a hostage case, but it’s called an arbitrary detention case. It also authorizes sanctions, visa denial, and freezing of assets.

This shows that Congress is using different tools instead of the criminal laws under the hostage convention that require states to criminalize, prosecute, and extradite the bad guys. This statute authorizes the Secretary of State to make these determinations and then to use sanctions and diplomatic engagement as the response.

The U.S. has also supported the Canadian initiative. Which I think, personally think, is terrific. I'm not in government, but I think this is the sort of thing that I would support. For one thing, it really does encourage countries to work together. One thing I found in one of the cases that I was working on was that It was very hard to talk to different countries, and they wouldn’t share information.

And I think it was Ben Franklin who said long ago, during the revolution, if we don’t hang together, we will all hang separately. And we saw this happening, and I think it’s probably what got the Canadian government. Countries would keep this stuff secret, like it was an embarrassment, or, “If we tell you what the Iranians are saying to us, then it’s going to interfere with our negotiations.

When I reached out, and admittedly, I was reaching out as a private counsel on behalf of Princeton University, and that is a little bit different than trying to get a government to talk to you, but I very much got the sense that countries who I knew had people being detained in Iran would not tell me. We’re not going to acknowledge that they were holding someone. So this idea of getting countries to work together, back to the very first point made by the ambassador, was: We have to get the international community to agree this is wrong and to hang together to address this behavior.

This also then becomes a form essentially of soft law—for the students here who don’t know the term soft law, and conservatives actually tend not to like the word soft law, but this is basically standards that are agreed to by countries that are not binding, so that’s why they’re soft, and therefore they’re really not law. But because countries have agreed to them, I agree with Canada that this is the way we are going to address this problem. And if you get, what,, 79 countries together to agree on something, you’re beginning to get the embryo of an agreement. Now, none of us said, “We’re actually required to do these things.” But we have agreed with each other that these are good things to do.

So this is a first step towards creating law on this subject. So, I will end where I began: I don’t think that the hostage taking convention is currently a good fit for the reasons that I said. But I think it’s possible that one could add a protocol to it. I negotiated, on behalf of the U.S. government, the last amendments to the Geneva Conventions in 2006, the third additional protocol to the Geneva Conventions. I will tell you that trying to get 196 countries to agree on the color of the sky is very close to impossible. That’s why we don't start with 196 countries on anything, even as basic as, “We don’t take hostages.”

But if we can start with a group, at 79 and then we get to 120, and then we have standards, then maybe the next thing we do is say, “Let’s have a protocol to the hostage taking convention that addresses state sponsored hostage taking.” I think that might be possible. I commend the Canadian government on what you’ve been doing and wish you Godspeed on it.

Mr. Sharp: I guess we’ve got an assignment back for you, Ms. Denham, as well as Mr. Paley and the CSIS Commission. There’s work to be done. In the meantime, these are people, these are human beings, these are our friends and neighbors. They need solutions now, and they need remedies when they return.

One of the ways that’s been done is through litigation, very often in the D.D.C., and so I’m going to turn to Mr. Dave Bowker who represented our dear friend Jason Rezaian in 2019 at the D.D.C. Could you tell us, in lieu of some grand international law solution, what have hostages and their families been doing? What do those cases look like? And what are the strengths and weaknesses and areas of change that you’ve been observing?

Mr. Bowker: Thank you for having me, and thank you, John, for the excellent remarks to kick us off. And Allen, thank you as well. I would just start by pointing out that Congress has done a couple of important things in this area of law. And maybe before I go there, I’ll just give a brief background on my work in this area.

For about 20 years, I’ve done political prisoner cases that have included some wrongful and arbitrary detention cases in the UN Working Group on Arbitrary Detention, and then some hostage cases, most recently including cases involving Americans held in Russia and Iran: Jason Rezaian, Washington Post reporter held in Iran; Evan Gershkovich, held in Russia; Trevor Reed held in Russia, Maziar Bahari held in Iran and Morad Tahbaz held in Iran.

We are currently litigating for the Tahbaz family against the Islamic Republic of Iran and the IRGC (the Islamic Revolutionary Guard Corps) for hostage taking. And I am totally comfortable using the term hostage taking as a matter of law, including in the context of state sponsored hostage taking, because that is the state of U.S. law on this question. And it is, I think, the state of international law on this question, not only for the good reasons that Allen mentioned under the convention and under the ICCPR, but because Congress, when it enacted the so-called terrorism exception to immunity under the Foreign Sovereign Immunities Act—that’s a 28 U.S.C. 1605A—it made very clear that what was at issue in that statute was state sponsored conduct, by state officials acting in their official capacity, and uses the term hostage taking to describe state sponsored wrongful detentions.

And then in the definitions at 28 U.S.C. 1605A(h)(2), it defines hostage taking by reference to Article 1 of the International Convention against the Taking of Hostages. This statute only applies to state actors, it only uses hostage taking, and it does not refer to wrongful detentions, and includes the international law definition of hostage taking that’s been well settled now since the convention took effect. Having said that, I agree entirely with John’s good point that the United States and others are understandably concerned about equating non-state hostage taking with state hostage taking, and in many cases failing to appreciate the very nuanced differences between different types of wrongful detention, and I’ll just use the Brittney Griner case as an example.

In that case, she was arrested for what even she conceded was criminal conduct under Russian law. But the case at some point became a wrongful detention case because of how Russia was prosecuting the case, and treating her detention and the length of her detention, in the context of U.S.-Russian relations. What had been a fairly standard, I think, run-of-the-mill arrest became a wrongful detention as Russia’s political intentions developed over the course of that case.

I think it’s very different when you look at a case like Morad’s case. And the reason we know it is not just because we investigated it ourselves and proved it in a court of law here in the United States, but because the Iranian government itself used a commission comprised of national security officials, mostly cabinet level officials, designated by then-President Rouhani for this purpose, that investigated the case and declared that there was no basis to detain Morad and he should be freed as soon as possible.

In Jason’s case, where I think it was clear from the outset that the Iranian government had no basis for his detention beyond his lawful work as an accredited and registered reporter under Iranian law, was proved in a court of law in his litigation against Iran. And in that case, the U.S. District Court for the District of Columbia concluded that he was held, not wrongfully or arbitrarily, but rather as a hostage under 28 U.S.C. 1605A, and that Iran’s detention of him fit the definition of the International Convention definition that is incorporated by reference in the Foreign Sovereign Immunities Act.

We had to actually persuade the U.S. executive branch officials that that was binding on them because the IRS attempted to levy penalties and fines on Jason during his time in detention, believing that he was a criminal defendant, and we had to use the U.S. court judgment to dissuade them from doing that, and to remind them that that conclusion was binding on the executive branch, and that had to go all the way to the secretary's office at the Department of the Treasury. But we prevailed.

The reason I say all of that is: There is a punishment and deterrence framework under U.S. law that exists now for state-sponsored hostage taking. And I think what we need to do is ensure that we enforce the judgments that are issued under that framework. And I’ll just preview that as an issue. But before I go there, turn it over to Chimène to give her opening remarks.

Mr. Sharp: Thank you, Dave. Just before we go to Professor Keitner—what’s fascinating to me is: You couldn’t get three more qualified lawyers to speak about the nature of the hostages convention and whether it applies. And they all have slightly, sometimes more than slightly, different opinions on that, which I think speaks to the complexity that Ms. Denham alluded to. Luckily for us, Professor Keitner is here to clear it all up for us. And I would just ask, in particular, what do we do with the fact that even the branches of our own government seem to have different interpretations of these various laws and statutes? And for those that are not in the room, what do other countries think about these moves that we’re making, and are they legitimate?

Ms. Keitner: Thanks so much, Danny. I just have to echo everyone else’s thanks for the warm welcome that we’ve received. I also really just want to acknowledge the deep pain and suffering at the heart of the problem that we’re talking about today. And we’ll get wonkish and legalistic and all of those things because that’s what we do. But I’m so glad, Mr. Rezaian, that you’re here. And, we really just can't forget, not that anyone has, but just to reiterate, the human dimension of this. That said, and I warned Danny about this, I am going to try to be a little bit of a provocateur. Not only am I not currently in government, and not currently representing or haven’t represented any clients in this area, but I do think I want to build on something maybe that, that Tara alluded to in her remarks, which is the moment that we’re in right now in international law and, I would say, quite precarious position U.S. leadership on a range of issues, including international legal issues, is facing right now—partly because of global dynamics more generally, and partly because of unforced errors on the part of the United States. I think that those are really important factors to keep in mind both as a legal matter, but also just atmospherically in terms of what options are on the table and what’s likely to be effective. I’m not running a clock, so just feel free to tell me when we need to move on to discussion because I appreciate that David has some more to say as well on executing on judgments, I want to make sure we leave time for that and for questions.

The terminology question that has come up: I think the point has been very well made that there are affective, in the sense of emotions, dimensions to terminology, the are, dictionary definitions, common usage definitions of terms, and there are more legalistic definitions and hostage taking is certainly not the only term in which we encounter this potential disconnect. And I say potential because we’ve heard different views on the panel about whether there is a disconnect between the sort of technical international legal meaning and the dictionary definition meaning I think you’ve got a really nice illustration of the range of views on that.

My own personal view, though, is that from a legal matter, the arbitration detention framework and the international human rights framework is the one that is most clearly applicable, and the one where I think there is still the most leverage. And, again, that is without prejudice to the use of the term hostage taking [or] the possibility of a soft law instrument that might become an additional protocol to the hostages convention. I think all of that is very well put and creates some real possibilities for future work. I also heard David use the term political prisoners. That’s another term that we’ve heard used again primarily in the context of individual dissidents who are detained by their own governments.

But, again, there are these terms that acquire a certain resonance and that come to have a certain agreed upon meaning. Maybe there’s even another term beyond state hostage taking that we could think of that would come to acquire the meaning that we want to ascribe to it. We’ve also heard that there are different legal frameworks in play. So there’s a domestic legal framework here. We’ve primarily been talking about U.S. domestic law. John introduced the Levinson Act and Dave has been talking about possibilities for bringing lawsuits. Those are under U.S. domestic law. We’ve also got the international legal framework. And, for those of you in the room who studied with Allen, we’ve got treaty law and customary international law. And I do appreciate that Allen of course noted that hostage taking is also prohibited during armed conflict, but I’m going to primarily focus on peacetime hostage taking.

So the two prior waves, as we’ve heard, in which this issue has really been addressed is in the context of terrorism and hostage taking by non-state actors. So whether or not the treaty can currently be interpreted as applying to state actors, I think everyone would agree at least that it’s impetus was a sort of wave of hostage taking by non-state actors. Very interestingly, there’s an American Journal of International Law article from 2017 that talks about the controversy at the time, or one of the controversies, with that convention was: A lot of states from the global south wanted to make clear that the terms of that convention would not apply to national liberation movements.

And the reason I mention that is because there is, in some of these international instruments, a desire for universality, a desire to create a new world, portray and build on these instruments as encapsulating and codifying broad international consensus. And yet, as those who’ve been at the table in negotiations, which I haven’t, will tell you, is that you’re often left with the lowest common denominator of language that countries can agree upon. Because they all do have their own agendas and priorities. And at least with respect to hostage taking by non-state actors, there was already this debate about national liberation movements. And one thing that I think is clear as a matter of law is that non-state actors do not have domestic authority to detain. And so when we think about the arbitrary detention definition that Allen recited for us, it’s detention, but there’s a carve out for detention pursuant to procedures established by law. And so I think, as Dani very much emphasized in her remarks this morning, a big difference in these cases, even if the leverage component is the same, is that we are talking about actors who do have domestic authority to use law.

And so the question becomes: Who gets to determine whether or not a particular detention falls within that category of procedures according to law? or not? And again, I think, as Dave mentions, the answer is clear under the Levinson Act. We’ve got a State Department process and ability to make that determination. But as a matter of international law, again, I think the underlying dynamic here, and I’m not an expert in Iran at all, and so I’ll talk about Iran and China and Russia together, understanding that, as we’ve heard, they’re very different countries with very different motivations. We need to maybe just refocus on some broader principles.

First of all, the principle of territorial sovereignty. The fact is that these countries are able to do what they’re doing because they have plenary territorial sovereignty. This is not at all to say that anyone who travels to a foreign country in any way deserves to or is at fault for putting themselves in a position of potentially being detained arbitrarily. Certainly there are very compelling academic, professional, personal reasons to travel. But I think one of the things that we're being reminded of more and more these days is that borders do make a difference. And notwithstanding the globalization of trade and human rights, countries do assert plenary territorial authority and they have, again, to use some legalese, exclusive enforcement jurisdiction within their borders. That is a reality.

We also have a principle in international law of non-intervention, and an idea of countries internal affairs as something called a domain réservé. Now again, yes, we do recognize that governments have counterparts that push against absolute territorial sovereignty and non-intervention. So we do recognize, for example, the ability of a state to exercise what we call prescriptive jurisdiction outside of its borders. Guess what country likes to do this a whole lot? The United States. And so, a lot of the swaps, as I understand it, that have been arranged—not all of them, but a lot of them—have been with respect to either assets that have been seized or individuals who have been apprehended for violating not only direct sanctions, but secondary sanctions. And so, I know this isn’t a panel about sanctions, but let me just take this opportunity to say the sanctions industrial complex is also, I think, at fault, not in a moral sense, but in a causal sense. United States overreach is giving rise to some of these problems.

In addition, pushing against territorial sovereignty and non-intervention is, of course, the idea that human rights standards apply everywhere. And those of you who take international law will know it used to be that international law said, “Hey, if you treat a non-national poorly in your territory, if you detain them without due process, if there’s something called the denial of justice, then that person’s country of nationality has a basis for seeking a remedy under international law.

And human rights law expands that and says even if you mistreat people of your own nationality, you are responsible under international law. These concepts that you can pierce the veil of territorial sovereignty are certainly well accepted. Certainly, the arbitrary detentions / hostage taking that we’re seeing do violate international law, but the question is: How can we most effectively respond to that?

Let me just take a moment to highlight some aspects of this changed international environment in which I think it’s become more difficult for the United States. And I’m talking about the U.S. just because we’re sitting in the U.S. But obviously, other countries have challenges in this regard as well that are making it more and more difficult for the United States, in my view, to emphasize the extraterritorial reach of prescriptive jurisdiction, the importance of human rights, and that are leading to a resurgence—not that it’s ever gone away—but a re-emphasis, realignment, on principles of territorial sovereignty and non-intervention. If you think of territorial sovereignty and non-intervention over here, human rights and extraterritorial prescriptive jurisdiction over here, they’ve always been in some tension. But the realignment that we’re seeing—particularly with the BRICS, and you’ve got Russia and China right up there as countries that are very explicitly saying that they reject this rules based order that the United States and its allies have sought to construct in the post World War II period, because they’re harnessing this feeling among a lot of other countries—that overreach by Western powers has tipped the scales too far in the direction of extraterritorial influence and away from territorial sovereignty and non-intervention.

Now, I teach human rights. I am not someone who’s going to say, as others have suggested in the literature, that we should be less ambitious in our international legal agenda and prioritize territorial sovereignty. I don’t think that’s necessarily the prescription here, but I do think we need to be increasingly cognizant of this disconnect and the greater difficulty that the United States is having, for example, in fora like the United Nations in getting other countries on board in the name of condemning behavior that doesn’t accord with the United States’ definition of a rules based international order. And if we look at this maybe as a criminal law problem, what do we want to deprive bad actors of? We want to deprive bad actors of means, motive, and opportunity. The means are the ability to invoke domestic law, pretextually or otherwise, to justify these actions. So I think the Canadian initiative, the idea of calling a spade, is at least going to help continue to erode the ability of countries to use the means of hiding behind or invoking their domestic law prohibitions as a veil or veneer of legitimacy for what they’re doing. Again, as Dave mentions, that might be harder in something like the Griner case than something like the Gershkovich case, but nonetheless I think depriving countries of the means is an important first step—removing the motive. Now, again, I’m not a policy person. I’m not an expert. I know there’s been long debates about: Do you negotiate with terrorists? Do you offer concessions? Does that create an incentive? But maybe part of removing the motive is really looking long and hard at instances of what at least other countries would perceive as U.S. overreach. Do we really need to arrest Meng Wanzhou for a comment on a slide presentation in Hong Kong that violated secondary sanctions?

I’m not saying sanctions enforcement isn’t important. I’m saying there are tradeoffs, and asking: Is that tradeoff really worth it? And then denying the opportunity. And denying the opportunity really does, I think, mean rethinking the ease of international travel that many of us, at least with U.S. or Canadian passports, have enjoyed in recent decades. I think what we’ll return to Dave for: Is denying the means, motive, and opportunity not sufficient? And again, hopefully thinking about those things constructively as our colleagues on the first panel so clearly are, will hopefully help, then what about attaching consequences? And again, to think of a criminal law model, I think that the goals of consequences tend to be deterrence—question whether that is actually happening, right? And particularly with the proliferation of sanctions, I think it’s hard for some of these countries to know anymore: Which sanction is attached to which bad thing they’ve apparently done.

So deterrence, I think, is questionable. There is certainly an expressive function in proceedings. And I think some of the jury, the verdicts that Dave has obtained and some of the important work that John has done certainly have an important expressive function. But, do they deter? Do they incapacitate? They don’t really incapacitate, right? So when we think of domestic criminal law and punishment as one of its functions being incapacitation, in terms of incarceration, you can’t do that with a sovereign state. Obviously not a novel observation on my part, but just to highlight.

And then there’s the retributive function that I think a lot of criminal lawyers will say the criminal justice system, at least some people’s conception of it, has. And again, there, I just think working in an environment of sovereign states, we really need to think long and hard about how we’re pursuing that retributive function for bad actions and the extent to which, particularly in this international environment, the United States can credibly be accused of hypocrisy and double standards, which is a huge theme both diplomatically and in the international law scholarly community these days. There is a sense that the United States has been bending the rules to its own purposes. And although the United States managed to avoid the International Court of Justice pronouncing on the international lawfulness of our state sponsors of terrorism exception to sovereign immunity, Canada does not appear to be poised to avoid a judgment by the ICJ on its state sponsors of terrorism exception.

And so I will just say that it’s at the international law foundation for those exceptions which has been questioned, and we will have to see what the International Court of Justice says about that. But if the exception itself is found to violate international law, it will be a much less potent weapon, I think, to stigmatize and punish for whatever behavior they are alleged to have done pursuant to this exception to immunity.

Mr. Sharp: I think I need to register as a visiting student at UCSD and take your class, Professor Keitner. I’m really glad you’re here and able to add that color. In the five minutes we have left, I think probably the best that we’ll be able to do, Dave, I hear the new ideas that you’ve been workshopping in Washington and that are floating around. I don’t think we’ll have much time to react to them, but maybe that’s a good thing. We can leave it out there for further discussion later on.

Mr. Bowker: Great, thank you. I’ll be quick. Thanks, Chimène, for the good reminder about the U.S. tendency to bend the rules to its own purposes. I think it’s a trend that’s unhelpful to our country and the international legal order generally. And so I think, as someone who does believe in the rule of law and the international legal order, I think it’s important that the United States lead by example and not simply be pressing the boundaries of the international legal order in order to accomplish what it feels it needs to accomplish.

Here, I think the United States can do more without bending or breaking the international legal order. I think the fact that there is widespread consensus under international law about the illegality of hostage taking is very helpful—whatever we call it. I think we know it’s not lawful, and I think we know it when we see it. And there are tough cases, no doubt, but I think the ones we’re talking about here today tend to be the easy cases as a factual matter. And I think there’s widespread consensus that what’s happening to people like Jason Rezaian and other victims of hostage taking or wrongful detention is clearly unlawful under international law. And that both the ICCPR and the Hostages Convention both make it an obligation of states that are parties to those conventions to do something about it. And John makes a good point that the Hostage Convention seems to be aimed at criminal prosecution of perpetrators within one’s national jurisdiction, but helpfully Article 2 is broader than that, and does say that states parties shall make these offenses punishable by, I think the term is, “appropriate penalties.”

And so I think it’s not a stretch to say that punitive damages in civil judgments are appropriate penalties for behavior of this type. It’s clear that Congress has spoken through statute on these issues and made it (1) a priority to punish this behavior by states. And they have targeted those states that are designated state sponsors of terror by the United States. That’s obviously not an international requirement. I think the United States was intentionally narrow in only deciding to recognize an exception to immunity for designated state sponsors of terrorism who engage in hostage taking. I think arguably it would have been appropriate to recognize an exception to immunity for all states that engage in this unlawful behavior. Congress chose not to do that. Instead, there would be a designated state sponsorship of terrorism requirement as a threshold. Right now, I think that’s a group of four, maybe five, countries, and it’s essentially just one pattern hostage taker, which is Iran. So this is very narrow, and Congress has already stripped immunity from attachment and enforcement for sovereign assets when judgments are obtained under this exception.

The limitation is: Those assets have to be commercial. They cannot be central bank assets, and in my view, shouldn’t be. I think that is pushing the boundaries of international law in a way that’s unnecessary. And so the proposal would just be to empower the president to seize the assets of Iran that are commercial assets, that are frozen or blocked in friendly jurisdictions, where the United States can obtain those assets through legal process, either by forfeiture or by executive action of a friendly government, and bring those funds back for the sole purpose of paying U.S. court judgments that are rendered in accordance with U.S. law and I would argue in accordance with international law. The international law prohibition on hostage taking which includes the international rule that states, “shall make these offenses punishable by appropriate penalties.”

So that’s the very simple proposal. It doesn’t go nearly as far as the REPO Act, which I think is much more complicated. That involves central bank assets, and it involves extrajudicial seizure as opposed to purely legal efforts to enforce judgments in accordance with applicable law. So I’ll just leave it at that, and thank you so much for facilitating this great conversation.

Mr. Sharp: Thank you. So we are at time. Unfortunately, I could do this all day. But, I think important to bring us back at the end to what Professor Keitner alluded to earlier: The human dimension. Which is why I’m so very glad that our keynote will feature my friend Jason Rezaian who was at the center of all this. Thank you, sorry we couldn’t get to audience questions, but we’ll come back together in 15 minutes for Jason's talk.