The FCDO’s approach to state level hostage situations

The limited data available indicates that state hostage taking is an increasing problem globally. Arbitrary detention is also a growing phenomenon, increasing the likelihood of citizens in this position becoming pawns in state-to-state relations. All arbitrary detentions are illegal and unacceptable. The UK Government should be working toward their immediate resolution. Given that states rarely make explicit their demands for release, or intended area of leverage, this zero-tolerance approach is all the more important.

We recommend that within the next 12 months the Government formalises and publishes guidance outlining criteria for determining whether the detention of a UK national by a foreign state is considered arbitrary and at risk of being used for state leverage. Subsequently a review should be carried out of all UK nationals detained overseas according to the established criteria. The conclusions on the nature of the detention should be used to classify the case internally, in discussions with the family and, where appropriate, publicly. Where not deemed to meet the criteria, cases should be subject to ongoing assessment with the involvement of families.

The FCDO has a policy of not commenting on, or interfering with, a foreign state’s legal system. Evidence suggests that the existence of an opinion from the UN Working Group on Arbitrary Detention that a British national is illegally detained makes little or no tangible difference to the way the FCDO approaches resolving that case. This is counterproductive and risks undermining an important tool, as well as the Government’s commitment to a Rules-Based International Order based solution for ending this practice.

We recommend that when there is a UN Working Group on Arbitrary Detention opinion that a detention of a UK citizen is illegal, the FCDO assumes that the case will not be judged in line with international standards and should respond accordingly. The Government should as a matter of practice promote public acceptance of the opinion of the working group and consider promoting the concept of an additional category of “state sponsored hostage taking” to the criteria.

We also recommend that the Government uses its presence on the UN Human Rights Council to work to safeguard the Rules Bases International System by working to prevent countries which use hostage taking as a tool of diplomacy gaining influence in the UN Working Group on Arbitrary Detention.

Experience elsewhere would suggest that having a single point of contact who has a key decision-making, or high-level advisory, role outside consular services has the potential to improve the Government’s approach to responding to arbitrary detentions as well as its coordinating efforts in deterring this practice multilaterally. It is also likely such a high-level influencing role would attract high calibre staff with relevant experience. (Paragraph 24) 48 Stolen years: combatting state hostage diplomacy

By identifying and articulating the nature of detentions, the Government would have the option to put arbitrary detentions on a lane of engagement distinct to other diplomatic priorities with the detaining country. This could allow for creative solutions unconstrained by other bilateral objectives and expand the limited toolbox available to the consular directorate. It would allow the case to be segregated from wider geopolitics and bilateral negotiations, something the aggressor may not welcome.

Learning from previous cases needs to be central to the formulation of a coherent and flexible approach to securing the release of detainees. Given the high turnover of ministers and civil servants, we have seen insufficient evidence to indicate that any arrangements for institutional learning by the FCDO have been effective. This contributes to inconsistency of approach and increases the risks of missing opportunities, not least when dealing with autocratic states with greater ministerial security of tenure.

Starting immediately, we recommend a central repository be created for information on cases of arbitrary detention and hostage taking, both active and closed, detailing processes followed and learning gained. There should be a systematic approach applied to all cases, not simply a sample. The Minister for Consular Policy should have an up- to-date knowledge of all open arbitrarily detained and ‘complex’ cases.

We recommend biennial meetings of Ambassadors and Deputy Heads of Mission of ‘Five Eyes’ countries in states with a record of state hostage taking to discuss live cases and lessons learnt, and to disseminate best practice.

In cases we have examined, the FCDO has been too slow to identify detentions of concern and to escalate these cases within the department. Any system of rapidly identifying such cases needs to be able to harness the extensive knowledge of the environment held at Post with guidance based on the breadth of experience of the FCDO and external expertise.

It is important that the “no concessions” policy, and the limited toolbox of standard diplomatic responses, should not preclude creative negotiations and conversations within the confines of UK and international law; or limit the effectiveness of points of leverage the UK Government may be able to realise and apply.

On balance, we believe that the MacGregor review’s recommendations do not go far enough and the interests of the affected families and those of the FCDO in securing detainee releases are best served by concentrating responsibility for handling these cases in a single senior position. We recommend that over the next 12 months the Government undertake appropriate consultation to establish the position of Director for Arbitrary and Complex Detentions (DACD). This post should be specifically recruited on a renewable five-year term with a mandate that includes coordinating the response to certain cases, providing a point of contact for families, convening a cross- government response, and coordinating the UK’s response to the multilateral efforts to address state hostage taking and arbitrary detention with a relentless focus on them. The postholder should have a direct line to the Prime Minister. If the Government refuses to implement this recommendation the lead for all state hostage cases should sit with the Foreign Secretary. (Paragraph 42) Stolen years: combatting state hostage diplomacy 49

All cases of arbitrary detention should be pursued at speed from as early as possible with a full mobilisation response before the person is formally charged. We recommend that appropriate consultation take place to establish a clear system for quickly identifying cases that fall under the criteria to be handled by the Director of Arbitrary and Complex Detentions and escalating them to that unit. The FCDO should ensure that it has the in-house capacity and expert capability to negotiate. We recommend that the FCDO prepares advice for families and organisations on the options for engaging a third-party negotiator where the FCDO is unable or unwilling to negotiate with captors, does not recognise the legitimacy of the detaining government, or does not recognise a detention as state hostage taking. The FCDO should constructively work with specialist third-party negotiators and other experts from a very early stage, sharing with affected families as much information as possible.

The evidence would suggest that the Government’s use of diplomatic protection in cases of arbitrary detention was badly handled. It was ill thought through and poorly implemented. It is likely that this was due to officials’ discomfort with this approach and a failure to implement it fully. This episode serves to illustrate an inconsistent and, at times, clumsy approach by Government.

We recommend that in the next six months the Government learns lessons from the extending of Diplomatic Protection to Nazanin Zaghari-Ratcliffe and draws up clear guidelines on situations where diplomatic protection could be considered and how it might be employed. If this mechanism is to be used again, we recommend that the Government outlines to the family and this Committee from the outset the rationale for its use and means of enforcement.

There should be a more constructive relationship between Parliament and the FCDO in support of efforts to bring home UK nationals arbitrarily detained abroad and also to further long-term international efforts to deter the practice. Parliamentarians can also assist by providing a broader form of diplomacy.

We recommend that the FCDO demonstrates meaningful engagement and provides the Committee with an annual private report on the progress of UK nationals arbitrarily detained abroad, with follow-up briefing at the Foreign Office if required, to enable the work of Parliament and Government to better serve UK interests. (Paragraph 49) How the UK Government has communicated to Parliament and the public about cases

The presumption that “quiet diplomacy” and family silence is always appropriate throughout cases of state detentions and state hostage taking is a false one, other than in the initial phases. Silence abets state hostage taking. We recommend the Government uses the strongest possible language to call out situations of state hostage taking as soon as it becomes clear detentions are being used for leverage.

The Government and its allies have missed key opportunities to publicly demonstrate the importance placed on the release of UK nationals, both privately and in public. The decision of Richard Ratcliffe to begin a hunger strike is perhaps the starkest example of this failure. The onus should be on FCDO officials and ministers to demonstrate to the detaining state and to the families of state hostages that they 50 Stolen years: combatting state hostage diplomacy consider the detention of those concerned as both unjust and an issue that is considered distinct from other diplomatic priorities. Families should never be left to feel that the only way the Government will prioritise their case is by acting against advice and, in some cases, their better judgement, by going to the media and to Parliament.

We recommend that if a family believes their case would be best served by going public, the Government should have frank, detailed and regular conversations with them on the likely impacts of their decision and advise on how to proceed in the safest way possible and support them as they pursue that decision.

UK nationals have been let down by the information shared by Ministers— actions which were counterproductive and may have contributed to less favourable conditions for an earlier release. Coherence and accuracy are vital not only in fairness to the families involved, but also to send the message to countries that may consider using detainees as leverage, that the UK will not tolerate this form of statecraft involving any of its nationals. Additionally, care should be taken to ensure that the British nationality of the detainee be stressed in communications. We recommend that a publicity plan be created with families from the early stages and is adjusted in collaboration with them as the case progresses. (Paragraph 62) Consular support

The UK Government is judged on how it cares for its citizens at home and overseas. In Iran, the Government failed to assert and secure its rights under the Vienna Convention to provide consular assistance to UK nationals held in Iran. Moreover, the FCDO has been inconsistent in meeting its own commitments to supporting those arrested abroad. This failing, whilst not universal, is not confined to prisoners in Iran. If the recommendations in this report, and those of the MacGregor review, are implemented effectively, it should not be necessary to establish consular assistance as a legal right. However, if the situation does not improve, a legislative solution may be needed.

The UK Government, working with allies where possible, must use every means at its disposal to secure the basic level of consular access it commits to provide for its nationals and that it is entitled to under international law—regardless of the perceived legitimacy of the charges or rigour of the legal system. This could include imposing a political cost (such as delaying negotiation on other bilateral issues), walking out of speeches given by offending countries, or exploring legal options through the various international treaty mechanisms. In its annual report to this Committee on cases of arbitrary detention and state hostage taking, the Government should demonstrate how it has fulfilled these minimum standards of service.

The working assumption should be that families are partners who have the potential to be instrumental in the attempts to resolve the detentions. Despite Government assurances, we do not believe that sufficient progress has been made in improving communication with families. Families are frequently assured by officials and ministers that they are “doing all they can” to secure the release of their detained family members. This is an inadequate response. To communicate standard Stolen years: combatting state hostage diplomacy 51 diplomatic representations as substantive actions to families of detainees with little or no further detail is not conducive to a constructive and supportive working partnership.

We recommend that unless the detainee expressly withholds consent to do so, the families of any vulnerable or arbitrary detainee receiving consular assistance be provided by a senior manager or minister in the FCDO at the soonest possible time with a clear description of the Government’s plan of engagement. Briefings should be frequent and include as much detail as possible. It should be clearly explained that some information will be classified but that the aim will be for maximum transparency. The relevant official or minister should be prepared to give private briefings to the relevant constituency Member of Parliament if requested by the family. This requires a significant step-change in the Government’s approach, which reinforces the need for a Director for Arbitrary and Complex Detentions.

We welcome the willingness of the FCDO to refer detainees and families of detainees to organisations such as Hostage International, Reprieve, Fair Trials and Prisoners Abroad who are able to offer assistance and counsel. We believe this is a highly appropriate approach to supporting families but could go further.

We recommend a plan be prepared by the FCDO for providing material support for long-term arbitrarily detained persons on their release as well as support during detention for families especially where the detainee is the primary earner. In this context the FCDO should: • Continue to resource organisations who provide psychological support beyond release and physical rehabilitation such as drug addiction support; • Develop a programme of scheduled follow-up meetings at regular intervals for, say, the first three years post-release where requested; • Improve coordination with the Home Office and other Government Departments to ensure families are well supported throughout their ordeal. (Paragraph 80) International Military Services Debt

There is compelling evidence that the repayment of the IMS debt became a precondition for the release of UK nationals from Iran. The failure to pay it sooner was highly regrettable and almost certainly adversely affected the length of detentions by limiting diplomatic options for negotiating an earlier release and brought significant suffering.

The Government took longer to repay the IMS Debt than it needed to and the eventual circumstances under which it was paid were unsatisfactory. We conclude that the only factors which changed and therefore allowed repayment in March 2022 were the interpretation of the terms of the sanctions, and the political will to risk upsetting the US Administration. It would appear, from the limited information available, that the Government has no way of ensuring Iran abides by the conditions governing the spending of UK taxpayers’ money, nor is there any avenue for parliamentary scrutiny. (Paragraph 88) 52 Stolen years: combatting state hostage diplomacy Prevention and deterrence

The FCDO’s failure to have maintained robust travel advice on the front page of the website for Iran between 2016 and 2018 is a significant error which may have made UK nationals less safe in Iran and likely other countries too. We welcome the renewed commitment in the “Consular and Crisis Strategy” to making travel advice readily available and renewed campaigns to make travellers aware of it. However, there is more the FCDO could do, either directly or via third-party experts, to ensure organisations and individuals operating in high-risk countries are aware of times of particular vulnerability, steps to take to prevent arrests for minor infringements escalating and how to keep safe.

We recommend that a list is prepared of countries where UK nationals face an increased risk of arbitrary detention and being taken hostage. This should inform decisions around the escalation of cases as well as the outward facing travel advice. We recommend that updated FCDO travel advice includes clear criteria, with accompanying explanation, to support an obvious and user-friendly category of “Risk of arbitrary detention”. Moreover, the FCDO should actively brief organisations, businesses and individuals on the risks they face in travelling to these countries and on sensible precautions they can take to mitigate them.

The arbitrary detention of UK nationals and their subsequent use in hostage diplomacy is a growing threat not only to the safety of individuals but also UK national security. A robust response and deterrence need to be developed to counter this. It is important that attempts to deter this practice in the future are decoupled from efforts to resolve current individual detentions. Although there may be a case for varying approaches to communication in individual cases, if the normalising of this tactic as a form of diplomacy is to be avoided the Government must be ready to use the strongest possible language to call-out serial abusers at a macro level, as they have done since 2019 with Iran.

We welcome the UK Government’s continuing commitment to the Canadian-led initiative to address arbitrary detention in state-to-state relations. There needs to be a clear response to such behaviour at a national, and where possible, a multilateral level, to achieve effective deterrence. We recognise the challenges around securing a multilateral consensus and respecting the right of individual countries to act independently. However, the UK has the experience as well as the diplomatic networks and acumen required to be a thought leader in this area and to do the diplomatic heavy lifting required for meaningful action.

State hostage taking is not only a humanitarian outrage, but an attempt to undermine the Rules Based International Order. As a country that has committed to protect the RBIO, standing up for the rule of law and the protection of human rights, it is incumbent on the Government to hold other states to their commitments— particularly when it applies to UK nationals. It is important that the Government makes clear that state hostage taking is a humanitarian offence and does not shy away from public statements to this effect on specific cases.

We recommend that within the next six months the Government outline the measures, including Magnitsky-style sanctions and legal proceedings both domestically and Stolen years: combatting state hostage diplomacy 53 at the International Court of Justice, it is prepared to take against countries that might arbitrarily detain UK nationals for diplomatic leverage. It should work with international partners through the Canadian-led Declaration on Arbitrary Detention in State-to-State Relations to work with international partners multilaterally wherever possible and appropriate. Specifically: • the Government should identify one or more of the voluntary work areas listed in the Partnership Action Plan which it will commit to; • the Government should continue to explore opportunities through the International Law Commission to bring clarity to other international conventions including the Hostage Convention and Vienna Convention on Consular Relations, to provide further legal protection for individuals. (Paragraph 102) 54 Stolen years: combatting state hostage diplomacy

We recommend that the Government extend its review to reassess all cases where British nationals have received opinions of arbitrary detention and are being held in countries where there is a history of torture of foreign detainees. • The review should include all internal guidelines on recognising cases of arbitrary detention and cases vulnerable to use for diplomatic leverage. • We request a copy of the final report of the review.

We recommend, once again, that a Director for Complex and Arbitrary Detentions is appointed with relevant ancillary staff in order to deliver consistency, improved partnerships with families, better coordination across Whitehall, as well as benefitting from greater authority and flexibility in managing the Government’s approach.

The case of Matthew Hedges, and the Parliamentary Ombudsman’s report into the FCDO’s engagement in his case, is a stinging indictment of the FCDO’s approach to arbitrary detention and consular assistance. It demonstrates an inability to ensure that their own guidance to keep UK citizens safe is followed. More concerning is the unnecessarily defensive culture at the FCDO, which undermines trust and perpetuates the Government’s inability to accept any blind spots in relation to the mistreatment of British nationals detained abroad. It should not have taken an Ombudsman’s report to compel the Department to accept constructive criticisms, nor to take recommendations for reform seriously. The handling of this case, and others highlighted in our previous report, risks sending a message to those who would do harm to UK nationals that the Government is not always prepared to take decisive action to ensure obligations to consular assistance, fair trial and internationally recognised standards of detention are afforded to them. This leaves citizens at greater risk than necessary of prolonged arbitrary detention, torture and state hostage taking, with no assurance of the support they should be able to expect from their government. The Government should look again at our recommendations for reform. As we enter a world where more and more British citizens face arbitrary detention, they must be assured that the FCDO will do all it can to see its people supported, and free. (Paragraph 14) Combatting state hostage diplomacy: A follow-up to the Government’s response to the Committee’s Sixth Report 9