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Arbitrary detention in state-to-state relations - Report

Report of the independent international panel on arbitrary detention in state-to-state relations as submitted to Global Affairs Canada on July 16, 2025.

Independent international panel on arbitrary detention in state-to-state relations

CompositionFootnote 1:

Table of contents

Chapter 1

1 – Introduction

Chapter 2

2 – Defining arbitrary detention in state-to-state relations

Chapter 3

3 – Arbitrary detention in state-to-state relations and international human rights law

Chapter 4

4 – Arbitrary detention in state-to-state relations and international criminal law

Chapter 5

5 – Arbitrary detention in state-to-state relations in general international law

Chapter 6

6 – Reparations and safeguards and the relevance for arbitrary detention

Chapter 7

7 – Consolidated recommendations

Bibliography

Annex I – Biographies of members of the independent international panel on arbitrary detention in state-to-state relations

Annex II – Questionnaires for States and civil society organizations

Annex III – Declaration against arbitrary detention in state-to-state relations

Annex IV – Non-exhaustive list of critical safeguards, as well as some of their legal basis

Abbreviations

Specifications for the list of abbreviationsFootnote 2

AfCHP
African Court on Human and Peoples’ Rights
CAJP
Committee on Juridical and Political Affairs
CCPCJ
Commission on Crime Prevention and Criminal Justice
CERD
International Convention on the Elimination of All Forms of Racial Discrimination
CTI
Convention Against Torture Initiative
ECHR
European Convention on Human Rights
ECtHR
European Court of Human Rights
GAC
Global Affairs Canada
IACtHR
Inter-American Court of Human Rights
IACHR
Inter-American Commission on Human Rights
ICATH
International Convention Against the Taking of Hostages
ICCPR
International Covenant on Civil and Political Rights
ICMW
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families
ICPPED
International Convention for the Protection of All Persons from Enforced Disappearance
IIP
Independent International Panel
ICSFT
International Convention for the Suppression of the Financing of Terrorism
ICRC
International Committee of the Red Cross
ICTR
International Criminal Tribunal for Rwanda
ICTY
International Criminal Tribunal for the Former Yugoslavia
OHCHR
Office of the High Commissioner for Human Rights
OSCE
Organization for Security and Cooperation in Europe
UDHR
Universal Declaration of Human Rights
UN
United Nations
VCCR
Vienna Convention on Consular Relations
UNWGAD
United Nations Working Group on Arbitrary Detention

Foreword

I was deeply honoured to be invited by the Government of Canada, in particular Global Affairs Canada, to chair the Independent International Panel on Arbitrary detention in state-to-state relations. The initiative to establish the panel reflects a continuation of Canada’s commitment to international law-based solutions to the practical problems confronting our world. The work would build on the widely supported February 2021 Declaration Against Arbitrary detention in state-to-state relations. I was therefore pleased to accept the invitation. But felt I could only do so on two conditions. First, that the work of the panel will be undertaken independently without any interference from the Canadian government. As part of that understanding, the panel would draft our own detailed terms of reference, frame our research questions, and decide our working methods without official input or approval.

Second, that we would closely collaborate to convene a globally representative group of international legal scholars and practitioners from each of the five geographic regions of the United Nations. I was to play a key role in identifying the distinguished international lawyers from the different regions and legal systems to carry out our independent study with the view to presenting legally sound and non-political recommendations for the consideration of all States and the international community. I was immensely grateful that Canada’s vision of the panel aligned with my preferred approach. But equally importantly, once the Panel’s work got underway, Global Affairs Canada fully respected the understanding we reached from the beginning through to the end of the process.

It is against the above backdrop that I am very delighted, on behalf of myself and my colleagues, to present to Canada and the international community the outcome of our independent analysis of the sometimes-sensitive issue of arbitrary detention in state-to-state relations. That is to say, the seemingly increasing practice whereby a State may arrest or detain a foreign or a dual national as diplomatic leverage to secure a concession from another State. This practice, which has been described in the literature as State hostage-taking because it targets and uses individuals as pawns or bargaining chips, violates the human rights of the persons concerned and foundational rules of international law. All States are affected by this practice, which ultimately, undermines human dignity and hampers the peaceful conduct of inter-State relations.

The present report on State hostage-taking, which we now have the honour to present, reflects the consensus effort of a group of international lawyers from across each of the regions of the world to study this practice and to present practical suggestions on how States might address it. It is the unanimous outcome of the work our independent panel undertook over the course of an intense 18-month period filled with many hours of research, many virtual meetings, and three multi-day in-person meetings in Miami, Nashville, and Ottawa respectively.

Throughout the Panel’s mandate, I stressed that two core principles should be our north stars. First, that we would faithfully reflect the state of current international law on the topic. In so doing, we would seek to transparently explain any ambiguities and gaps that we find on the legal issues surrounding State hostage-taking while being mindful that what States seek are multilateral solutions based in international law rather than geopolitical considerations. As international lawyers, rather than international politicians, our task was not to name and shame certain States that seem to engage in this practice, or to engage in an “us” versus “them”, or “good States” versus “bad States” binary. In our deeply divided world, such an approach would be quite tempting. But ultimately, it would be unhelpful to advancing legal solutions that could benefit the many innocent persons who often get caught in such nightmare situations through no fault of their own other than holding a certain nationality or residency and being at the wrong place at the wrong time.

Second, while as with any expert process we had our share of differences of views, we as international lawyers from different regions of the world were deeply conscious that if we could find consensus amongst ourselves, we could more practically symbolize the hope that the same spirit of consensus could be mirrored by States and the international community. Each of us had personal views, and in relation to some of the issues and recommendations, strong preferences. Some of us would have gone further, on some of the issues, while others among us would have preferred less. In the end, I hope that readers would agree that the present final report reflects a thoughtful and balanced compromise text. The text not only breaks new ground, but also offers constructive solutions for States and the international community to better tackle the practice of State hostage-taking under international law.

In big picture terms, the twenty-six recommendations that we have presented in our report are divided into six key parts reflecting their key themes. Our point of departure was that, rather than being stuck in the realm of bilateral relations between the States concerned, part of what is required to end – or at least limit – State hostage-taking is a reframing of this issue as the key challenge that it is to multilateralism and the rule of law in international affairs. The recommendations we have presented, some for the short-term, medium term and long-term, are principally directed to States, but in some cases, also organs of international organisations such as the United Nations General Assembly and subsidiary bodies such as the United Nations Human Rights Council, the United Nations Working Group on Arbitrary Detention and the United Nations International Law Commission. We however remained mindful that any global traveler, whether for work or for leisure, could become a target without any warning. All States, and their people, are therefore affected and should have an interest in cooperating with each other through multilateral institutions to stem the practice. Our recommendations flow from the analysis of international law in each substantive chapter and are included at the conclusion of the chapters. They are also consolidated in a final chapter for ease of reference.

I would be remiss if I did not warmly thank each of my distinguished colleagues on the Panel, and their research assistants, for their excellent and collegiate approach which has led to the successful completion of this final report. Professor Shaheen Ali, Professor Claudio Grossman, Dr. Marja Lehto, Professor Seon-Phil Hong and Professor Mike Newton demonstrated extraordinary dedication and deep knowledge of international law throughout the 18-months of our intense work on the topic and the preparation of this report. I could not imagine a better team of fellow international lawyers to work with on this important issue. We had many spirited debates, but in the end, with everyone’s flexibility and generosity of spirit, we always found a consensus.

While the final report and recommendations in the present report are the result of our collective efforts, and consensus, I hope that my colleagues will forgive me for singling out Dr. Lehto for a special word of gratitude. Marja, with whom I had the great pleasure of serving in the International Law Commission between 2017 and 2022 where we first started what we called the African-Nordic and Nordic-African collaboration in relation to the rule of law agenda item for the annual report to the General Assembly, was again a delight to work with. She without hesitation said yes when, around the half-way point of our mandate, I invited her to serve as vice-chair. I have benefited from her friendship and wise counsel. And wish to warmly thank her for her invaluable contributions.

Finally, I am also grateful that the Panel benefited from the presence and enthusiastic input of Dr. Jelena Pejic (formerly Senior Legal Adviser in the Legal Division of the International Committee of the Red Cross) in the early stages of our work. I regret that, for understandable personal reasons, she ended up resigning in October 2024. That said, as the substantive work on the present report was carried out after her departure, the views expressed here should not be attributed to her.

Prof. Dr. Charles C. Jalloh

Chair, Independent International Panel on Arbitrary detention in state-to-state relations

July 16, 2025

Acknowledgements

Research

The Panel members carried out extensive research. They received assistance from an excellent team of junior professionals and students. We thank Ms. Clea Strydom, assistant to the chair, Mr. Janakan Muthukumar, a visiting scholar at Global Affairs Canada (GAC) and a Ph.D. candidate at Carleton University and the international team of graduate students specializing in international law and global affairs from various universities for their hard work: Mr. Lanz Araullo, Ms. Hamzia Bawa-Zeba, Mr. Tristin Bezte, Ms. Zeinab Mohamed, Mr. Abhinav Mynampati, Mr. Dheya Al-Saeedi, and previously Ms. Isabela Bibulovic and Mr. Matthew Chasmar.

Administrative support

Besides the assistant to the Chair, we thank the following persons for providing administrative support, especially in arranging the logistics for the three in person meetings held by the Panel: Ms. Ana Gonzalez, from the University of Miami School of Law; Ms. Alesa Lacey, from Vanderbilt University Law School; and Mr. Eric Proulx, University of Ottawa, Faculty of Law.

Funding

We appreciate GAC’s support in contracting the visiting scholar and research students to assist Panel members. The University of Miami Law School and Vanderbilt University Law School, institutions affiliated with the Chair and a Panel member respectively, as well as the University of Ottawa Faculty of Law working with funding from GAC, sponsored the in-person meetings for which the Panel remains grateful. Special thanks are due to Interim Dean Patricia Abril (UM Law), Dean Chris Guthrie (Vanderbilt) and Dean Kristen Boon (University of Ottawa Law). In appreciation, several Panel members held three separate public side events at the three law schools to share their work and speak on of the topic of arbitrary detention and related aspects of international law with the students and broader community. The events proved to be useful ways to promote public engagement with the topic.

Global Affairs Canada

The Panel is grateful to the entire team in Global Affairs Canada’s Consular Policy, Arbitrary Detention and Hostage Affairs Division. Special thanks to Ms. Alexandra MacKenzie (former Director-General for Consular Policy), who oversaw the coordination of the Panel’s establishment (with the advice of Sabine Nolke), followed by the exceptional Ms. Toby Schwartz, Director, and Mr. Robb Stewart and Ms. Margaret McGuire, Deputy Directors, for their leadership in advancing the initiative and supporting the Panel as needed.

Executive summary

Chapter 1

1 – Introduction

1.1 – The issue of arbitrary detention in state-to-state relations

In different parts of the world, foreign and dual nationals are susceptible to arbitrary arrest and detention or sentencing by governments seeking to compel action from other States. Victims in cases of arbitrary detention in state-to-state relations are deprived of liberty without warning and often held incommunicado for an indefinite period. They are frequently subjected to torture and other ill-treatment, as well as other human rights violations. Charges against them are often vague and overbroad, ranging from espionage to coup plotting, collaborating with foreign governments, or threats to national security. Yet, these crimes carry severe punishments, which allow the detaining State to keep the victim arbitrarily detained for a long period, subject to broader geopolitical objectives and negotiations. Such tactics expose the millions of persons who travel, work and live abroad to greater risk.

Arbitrary detention violates established principles of human rights, the rule of law and the independence of the judiciary. Not only is this practice contrary to international law, it carries serious repercussions for international peace and security, as it undermines trust and friendly relations between States, global cooperation, travel, trade and commerce.

Under international human rights law, “arbitrary detention” has a relatively well-defined meaning, ensuring that the liberty of individuals is protected from unjust or politically motivated imprisonment usually by their own governments. In upholding well-established international law, considerable work has been done to define and address arbitrary detention, including by regional human rights courts and the United Nations Working Group on Arbitrary Detention (UNWGAD). At the same time, “arbitrary detention in state-to-state relations,” involving the deprivation of the liberty of foreign or dual nationals in order to exercise leverage over other States, while clearly a violation of international law, is still an underexplored phenomenon. This form of arbitrary detention has specific implications because of its inter-State dimension challenging the principle of peaceful dispute resolution and exploiting individuals as tools for Statecraft. Addressing this issue requires an understanding of the legal framework applicable to such coercive practices.

1.2 – The panel

The background to the current report is in the Initiative Against Arbitrary detention in state-to-state relations (Initiative) launched by Canada in 2021. The objective of the Initiative is to increase the legal and political cost for States that arbitrarily arrest, detain, or sentence foreign nationals to leverage their home government. The best-known part of the initiative is the Declaration Against Arbitrary detention in State-to-State Relations,Footnote 3 now publicly endorsed by 81 States, representative of all major regions in the world, and the European Union (see Annex III).Footnote 4 The increasing number of supporters of the Declaration indicates the global concern around the issue.

The Independent International Panel on Arbitrary detention in State-to-State Relations (hereafter IIP or the Panel), was convened by the Government of Canada, with the aim to situate the issue of arbitrary detention within a clear normative legal framework under international law. A central question in that context is whether existing tools of international law, including those pertaining to human rights law and State responsibility, are sufficient to address this practice, or whether new norms, mechanisms, or processes should be considered if the practice is to be curbed or eliminated.

The Panel was comprised of Prof. Charles C. Jalloh, who was appointed Chair by Canada, Dr. Marja Lehto, Prof. Shaheen Sardar Ali, Prof. Claudio Grossman Guiloff, Prof. Seong-Phil Hong, Prof. Michael A. Newton and Dr. Jelena PejicFootnote 5(see Annex I for biographies of the Panelists). The Panel’s composition takes into account geographic and gender diversity, and representation of the world’s legal systems. The Panel was convened for a period of 18 months, from January 2024 to June 2025.

While convened by Global Affairs Canada’s (GAC) Office for the Declaration Against Arbitrary Detention, the Panel operated autonomously without relying on GAC for approval or guidance regarding its processes, substance of its work, findings, or counsel.

1.3 – The IIP’s mandate and objectives

The Panel, upon its composition and in order to preserve its independence, had the task of formulating its own detailed terms of reference. The Panel’s terms provided that its mandate was to focus specifically on arbitrary detention in state-to-state relations, including phenomena such as political hostage-taking and using individuals as “bargaining chips,” but excluding arbitrary detention cases that lack the element of pressure on one State by another State.

The Panel defined its objectives as follows:

To meet the above objectives, the Panel identified the international legal frameworks that are relevant and applicable to this specific form of arbitrary detention (i.e. where State-to-State relations are a factor). It undertook an in-depth examination of the complex potential linkages, intersectionality, and gaps among and between the relevant bodies of international law, with a view to further advancing the principles enunciated in the Declaration and to anchoring them more clearly to international legal norms.

The Panel also formulated a set of recommendations to the international community, in particular to the endorsers of the Declaration, on how to potentially address the issues and gaps identified and how to more effectively prevent and respond to this practice from the perspective of international law.

1.4 – Methodology

The Panel adopted a mixed-methods approach to collect and analyse data on the phenomenon of arbitrary detention in state-to-state relations. Besides periodically holding virtual and in-person meetings over the course of the period coinciding with its mandate, the Panel conducted a literature review, considering relevant cases, international legal instruments, and the work of international institutions and experts. In addition, the Panel also consulted with various stakeholders, including representatives of international organisations, civil society, and academia, to gain insights from their experience and perspectives. An interim report was submitted to the Government of Canada on January 31, 2025. The Panel received useful feedback on some of the technical aspects, which it took into account in the finalization of its independent report.

Panel meetings

The Panel held many virtual meetings between January 2024 and May 2025 to determine the scope of the report, as well as decide on working methods as well as to work through the preliminary chapters and recommendation. A further two 2.5 day in-person meetings were held in Nashville, Tennessee, USA and Miami, Florida, USA in October 2024 and January 2025 respectively with a view of mapping the applicable legal landscape, formulating recommendations, and finalising the report. The Panel held a final 2.5 day in-person meeting in Ottawa, Ontario, Canada.

For facilitating the in-person meetings, the Panel thanks Prof. Charles C. Jalloh, its chair and the Richard A. Hausler Chair in Law at the University of Miami Law School, and its member Prof. Michael A. Newton of Vanderbilt Law School as well as Dean Kirsten Boon, Professor Frederick John Packer, Director of the Human Rights Research and Education Centre, University of Ottawa Faculty of Law.

Questionnaire

Early in the process, the Panel decided to formulate a questionnaire, which was circulated to all permanent missions of the United Nations member states in Geneva and New York. The questionnaire aimed at gathering qualitative information on the experiences, perspectives, and practices of States regarding arbitrary detention in state-to-state relations (see Annex II). The responses to the questionnaire were received directly by the Panel at a secure email address provided for such purpose. The Panel is grateful to the eight governments that submitted information in response to its questionnaire.

The Panel also sought to secure input of civil society organisations on their experiences with the question of arbitrary detention in the State-to-State context. The International Commission of Jurists, a non-governmental organisation based in Geneva, administered the questionnaire prepared by the Panel and submitted a summary of the input received from five non-governmental organisations in their May 2, 2025, report to the Panel. The Panel is grateful to Prof. Carlos Ayala (President), Mr. Santiago Canton (Secretary-General) and Ms. Sarah Le Mesurier (Director of External Relations) of the International Commission of Jurists for their collaboration regarding the civil society input on the topic as well as to the various organisations that submitted feedback to the questionnaire.

While the responses received from both States and civil society organisations have greatly contributed to our understanding of the prevalence of such practices, including the efforts undertaken to combat them, they have not been directly included in the report.

Consultations and side events

In order to stimulate debate and ensure that the Panel heard the broadest possible range of views during the course of its mandate, members participated in a number of consultations and events.

The Panel was represented at a side event during the 56th session of the UN Human Rights Council (2024) organised by Canada, Belgium and Argentina on arbitrary detention, at which an overview and background of the panel was provided, the goals and objectives were discussed, with a focus on the impact that arbitrary detention in state-to-state relations has on human rights. The questionnaire prepared by the Panel was highlighted, requesting States present to complete the same.

At a hybrid side event during International Law Week 2024 in New York, convened by the Chair, the Panel met at the Permanent Mission of Canada to the United Nations on the theme of the Challenges and Opportunities for Multilateralism and the Rule of Law in International Affairs, at which State delegates were briefed on the Panel’s work. Mr. Louis-Martin Aumais, Legal Adviser and Director-General for International Law in GAC, shared the Canadian government’s legal perspective on the topic. Several delegations to the United Nations engaged with the Panel along with several members of the International Law Commission who also attended the event. The Panel thanks the staff of the Canadian Permanent Mission to the United Nations, in particular, Ms. Beatrice Maille (Minister-Counselor and Legal Adviser) and Mr. Kevin Mead (Legal Adviser) and their colleagues in New York for the assistance in organizing the side event.

Following introduction of language on arbitrary detention in state-to-state relations in the OAS Omnibus Resolution on International Law in June 2024,Footnote 6 Canada led a discussion on arbitrary detention in the Organization of American States’ Committee on Juridical and Political Affairs (CAJP) during a regular meeting on January 23, 2025. This meeting flows from a mandate in the resolution passed by the Organization of American States General Assembly in June 2024. The Panel was represented at the CAJP meeting, as well as with members of the Inter-American Juridical Committee, at which the discussion focused on the human costs and legal implications of arbitrary detention in state-to-state relations. The meeting aimed to develop actionable recommendations for the Permanent Council, fulfilling the mandate of Resolution AG/RES. 3030 (LIV-O/24) to address this pressing issue within the framework of the Organization of American StatesFootnote 7.

Several side events were convened in various fora to raise public awareness of the topic. A public event was held on the topic at the University of Miami Law School in January 2025 and at the University of Ottawa Faculty of Law in June 2025. A panel on the topic of arbitrary detention was also convened at the Annual Meeting of the American Society of International Law in April 2025.

1.5 – Structure of the report

The current report is comprised of seven chapters. Following the present introduction, comprising Chapter 1, Chapter 2 defines the notion of arbitrary detention in state-to-state relations. The chapter identifies the key terms that have been used to describe this practice, ultimately providing a working definition of the concept for the purpose of this specific report along with some guiding criteria that can be used to identify this pernicious form of arbitrary detention. Chapter 3 examines international human rights law and the prohibition of arbitrary detention in state-to-state relations. It analyses the rich jurisprudence of the UNWGAD, which more than any other international body, has grappled with a wide variety of forms of arbitrary detention including in the State-to-State relations context.

In Chapter 4, the report turns to the inter-State dimension of arbitrary detention in state-to-state relations. The first of them, the international criminalization of hostage-taking under the only international treaty directly prohibiting such practice, is followed by an analysis of State hostage-taking as torture, and as a crime against humanity under international criminal law.

While the first set of chapters examines the question of arbitrary detention in state-to-state relations from the perspective of various sub-regimes of international law, Chapter 5 of the report analyses the topic under general international law. The chapter shows how the practice of arbitrary detention violates the prohibition of intervention in the internal affairs of other States. It then examines general limitations on State action, taking as key examples the principle of good faith, the obligation to cooperate and the prohibition of the abuse of rights. Finally, it deals briefly with legal consequences of internationally wrongful acts as set out in the law of State responsibility.

Every violation of an established right of an individual gives rise to the need for victims to have access to a remedy. Chapter 6 opens by defining who a victim is, before turning to the issue of reparations as developed in the jurisprudence at the regional and universal levels. The chapter then turns to the importance of compliance with safeguards against arbitrary detention as required by international human rights law.

While the end of each of the chapters described above provide some recommendations, directed principally to the attention of the interested governments, Chapter 7 presents a consolidated list of recommendations that States and other actors in the international community might wish to consider to better address arbitrary detention in state-to-state relations in the future.

The last part of the report contains relevant annexes. These include the biographies of the members of the Panel and the questionnaires used to collect information from governments and civil society respectively.

Chapter 2

2 – Defining arbitrary detention in state-to-state relations

2.1 – Introduction

The practice of detaining individuals as a means of exerting political leverage in international relations—sometimes described as “arbitrary detention in state-to-state relations”, “hostage diplomacy”, “State hostage-taking”, or “coercive diplomacy”—poses significant challenges to global justice and the rule of law. Such practice, where the purpose of the detention is to put pressure on another State, is politically motivated and exploits individuals as pawns or bargaining-chips in broader disputes between States. Not only is this practice an egregious violation of individual human rights and fundamental principles of international law, hurting directly the individuals arrested and indirectly their families and broader communities, it also erodes trust among States and causes tension in international relations, potentially imperilling friendly diplomatic relations. Such practice also undermines the rule of law in international affairs.

The phenomenon is characterized by the targeting of another sovereign State, typically through the arbitrary detention of its nationals. However, complexities arise in cases involving dual nationals, where some States refuse to recognize the detainee’s second citizenship.Footnote 8 As well, these detentions often involve multilateral diplomacy – meaning intermediary nations are needed to facilitate negotiations – and cooperation through international mechanisms.Footnote 9 Understandably, the interposition of an intermediary to resolve the issues that arise, though usually welcome, makes the resolution of such cases more intricate than straightforward bilateral discussions.

Official justifications for State-to-State detentions of individuals vary, often involving criminal or administrative charges, though procedural violations can render them arbitrary. Regardless, international law provides procedural protections for both criminal and administrative detentions, and violations of these safeguards can classify an instance of detention as arbitrary.Footnote 10

The motive behind the arrest or detention is the most critical and challenging element of arbitrary detention in state-to-state relations. The detaining State often claims legitimate reasons for detaining the foreign nationals.Footnote 11 These may include allegations of violations of national security, counterterrorism, or public safety. However, while such justifications may on their face seem legitimate, the main purpose of the arrest or detention is to gain leverage over another State. In such cases, the detainee’s health, safety, or survival is made contingent upon fulfilling the detaining State’s demands, which may include concessions in diplomatic or economic negotiations, retribution for perceived past wrongs, or deterrence of future threats.Footnote 12

Various civil society organisations have found that, in cases of arbitrary detention for leverage, charges are often fabricated or highly disproportionate, and usually, there is some concession sought in exchange for the release of the detainee, whether it is conveyed directly or indirectly. Concessions or leverage may include release of nationals from custody, which is often disproportionate either quantitatively (higher number) or qualitatively (criminals convicted of serious offences); financial benefits, such as easing of financial sanctions or outright transfer of funds; transfer of property or territory; change in defence or security policy, such as troop placements and missile defences; and deterrence of a particular prospective policy decision, such as a terror designation or further sanctions.

Despite the prevalence of this practice, the terminology surrounding it is inconsistent and context-dependent, leading to varying interpretations that hinder coherent analysis and the development of effective remedies. Various terms have been invoked with increasing frequency to describe scenarios where States leverage the detention of individuals for political, economic, or strategic advantage. While many of these terms have become central to debates in international law and diplomacy, their meanings and applications vary, often shaped by the context in which they are deployed. The lack of a consistent terminology fails to reflect the systematic nature of the practice, the degree of State involvement, and the leverage dimension, where victims are turned into bargaining chips for the benefit of the detaining State.

Broadly recognized under international human rights law, arbitrary detention is defined as the deprivation of liberty that lacks a legal basis, occurs without due process, or contravenes international law norms. The Universal Declaration of Human Rights (UDHR), which is not a binding instrument but is widely accepted as reflective of customary international law, and the International Covenant on Civil and Political Rights (ICCPR) provide foundational principles for this concept, yet its application varies in practice. Article 9(1) of the ICCPR expressly provides that: “everyone has the right to liberty and security of person. 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 such procedure as are established by law.” Based on the ordinary meaning of this provision, the prohibition of arbitrary deprivation of liberty and security of the person applies to “everyone.” The requirement is such that “no one” shall be subject to arrest or detention without specification that the protective prohibition is in any way limited to nationals of the State party to the ICCPR.

A relatively newer term “hostage diplomacy” describes situations where States detain foreign nationals to leverage diplomatic concessions or influence the policy decisions of other States. Unlike arbitrary detention, hostage diplomacy explicitly implies a strategic motive—often political or economic coercion. This term raises additional questions about the intersection of sovereignty, reciprocity, and international accountability.

Conceptual clarity on these terms is not merely an academic exercise but a practical necessity. Inconsistent or overlapping interpretations risk diluting their impact and hindering the development of robust, enforceable mechanisms to address such practices. Conversely, consistency in terminology ensures that all stakeholders—victims, policymakers, legal professionals, and scholars—operate with a shared understanding, facilitating more effective communication and collaboration. This clarity also aids in the development and implementation of international legal standards and mechanisms to address and mitigate the impact of the practice.

This chapter presents a consistent framework for interpreting subsequent analyses and situates these concepts within the broader context of State and regional practices related to arbitrary detention in state-to-state relations. By examining State practice, this report aims to identify the gaps and normative uncertainties that currently impede effective enforcement of international law in respect of arbitrary detention in state-to-state relations.

The chapter also contains important contextual information for the remainder of the present report. After setting out issues of terminology and conceptual overlaps, it proposes criteria for determining what constitutes arbitrary detention in state-to-state relations for the purposes of exerting leverage, in an effort to distinguish it from other types of arbitrary detention. The Panel stresses the importance of taking into account the gravity of the practice irrespective of the nomenclature chosen. Finally, the chapter seeks to provide empirical grounding through data and case studies before concluding with a synthesis of findings and their implications. We hope to set the conceptual stage for the detailed analysis and recommendations that follow in the subsequent chapters of the present report.

2.2 – Defining arbitrary detention in state-to-state relations

Before discussing the different terms invoked to discuss the phenomena, whereby a State detains a national of another in order to secure some kind of concession, it is necessary to define “arbitrary detention.” Each of these two terms (i.e. arbitrary, detention) warrant a few comments.

The meaning of “arbitrary”

The term “arbitrary” as understood ordinarily speaks to an action, decision or rule that “is not seeming to be based on a reason, system or plan” and “using power without restriction.”Footnote 13 It is the latter sense which most accurately captures the aspect under discussion. Against this backdrop, a detention is considered arbitrary if:

Arbitrary detention encompasses a wide range of State actions, procedural defects, and judicial shortcomings, none of which are necessarily conclusive on their own, hence the elusiveness of the practice. Determining whether a detention is arbitrary involves a holistic approach in the consideration of multiple relevant factors.Footnote 14

At its broadest form, arbitrary detention includes unlawful detentions, which international tribunals and bodies have defined as those that violate due process, lack a legitimate legal basis or justification, or fall outside the jurisdiction of the detaining authority or the judicial body responsible for oversight.Footnote 15 Such detentions may violate domestic laws or fail to meet broader international standards of lawful arrest, as established by international law, jurisprudence and legislative frameworks. For instance, as regards the latter component, detaining individuals exercising fundamental freedoms under the ICCPR can be arbitrary, even if aligned with local laws.

Put differently, the concept of arbitrariness includes detentions that flagrantly breach domestic laws and procedures and those that conflict with broader international legal principles. The International Court of Justice further illustrates this distinction in the Elettronica Sicula S.p.A. case, where arbitrary action was described as conduct that “shocks, or at least surprises, a sense of juridical propriety.”Footnote 16 The outlined actions, motivated by political aims, undermine the rule of law and corrupt justice, though it remains subjective and reliant and dependent on judicial interpretation.

As will be explained in Chapter 3 of the present report, in greater detail, unlawful detentions also extend to procedural defects, such as retroactive application of laws, violations of the presumption of innocence, detentions beyond the sanctioned sentence, or pre-trial detention despite prior exoneration (double jeopardy).Footnote 17 Even if legal under domestic law,Footnote 18 detentions may be deemed arbitrary under international law due to inconsistencies in the application of laws, the absence of formal charges, or disproportionate sentences that fail to serve rehabilitative, preventative, or deterrent purposes.Footnote 19 The context of the detention also influences the substantive and procedural protections required under international law. In peacetime, international human rights laws govern, while in conflict, international humanitarian law provides specific standards.Footnote 20 The two bodies of law may, in some cases, apply at the same time subject to the lex specialis rule.

Fair trial principles are critical to the rule of law, and their absence can render detentions arbitrary. These principles include the right to be informed of charges, access to legal representation or aid, and trials before independent and impartial judicial bodies. Article 9 of the ICCPR and similar provisions in regional human rights instruments—such as the African Charter on Human and Peoples’ Rights, the American Convention on Human Rights, and the European Convention on Human Rights (ECHR)—underline these safeguards.Footnote 21 Courts have consistently upheld fair trial standards as a bulwark against arbitrary detention, as seen in Villagrán Morales and Öcalan.Footnote 22

Further, the conditions of detention play a role in determining arbitrariness – inhumane treatment, inadequate facilities, exacerbation of health issues, or violations of dignity can render custody arbitrary.Footnote 23Acts of torture, dangerous cohabitation, or excessive ill-treatment that exceed the ordinary hardships of imprisonment are critical factors as well.

The meaning of detention

“Detention,” in its ordinary meaning, encompasses deprivation of an individual of their liberty: “the state of being kept in a place, especially a prison, and prevented from leaving.”Footnote 24In international law, detention refers to the deprivation of physical liberty, often involving forced confinement in a specific location. This could range from imprisonment in purpose-built facilities to house arrest, confinement in medical settings, or other forms of custody. Although there are some distinctions between “detention,” “arrest” and “internment” in international law generally, the terms can often overlap in other contexts.Footnote 25

The UN Commission on Human Rights defined detention as:

According to Ferstman, there is a need to take the particular circumstances into account:

With that, cases of detention in jurisprudence generally share the fundamental characteristic of imposing physical restrictions on an individual’s freedom of movement, which can then be assessed for arbitrariness.

2.3 – Language that has been used to describe the phenomenon of arbitrary detention in the state-to-state context

While the term arbitrary detention is important to describe the phenomena that will be considered in this report, it does not on its own encapsulate the full extent of harm associated with the practice of arbitrary detention in the State-to-State relations context. As Ferstman and Sharpe argue, “it does not reflect the targeted nature of the practice, the extreme suffering it engenders, the pattern of the cases, the degree of state involvement, and the leverage dimension.”Footnote 28

The inconsistency in the terminology surrounding the practice of arbitrary detention in state-to-state relations results in ambiguity and challenges the establishment of a unified international response. To ensure conceptual clarity for the remainder of the report, it is necessary to define the five key terms that seem widely used in practice and literature to describe this phenomenon. We start with the term “arbitrary detention in state-to-state relations” or “State-sponsored arbitrary detention” followed by a discussion of “wrongful and unlawful detention,” “State/political hostage-taking,” “State kidnapping,” and “coercive diplomacy.”

Arbitrary detention in state-to-state relations/State-sponsored arbitrary detention

The term used by the Declaration which led to the creation of the present Panel, is arbitrary detention in state-to-state relations, which the Declaration defines as a situation of “arbitrary arrest or detention of foreign nationals to compel action or to exercise leverage over a foreign government[,] contrary to international law.”Footnote 29 The advantage of this definition, besides its acceptance by a large group of States, is that it makes it clear that the phenomena blurs the line between international relations and domestic criminal law, as individuals are used as bargaining chips in geopolitical disputes.

There are four important elements to this formulation. The first, “arbitrary arrest or detention,” has been discussed above.Footnote 30 The Declaration “reaffirm[s] that arbitrary arrests and detentions are contrary to international human rights law and instruments, including the UDHR, the ICCPR and other international and regional human rights instruments.”Footnote 31

The second element that the Declaration alludes to, “foreign nationals,” indicates that the focus of this type of arbitrary detention implicates nationals of another State. While the issue of dual nationals may complicate matters and will be dealt with separately later in the present report, the usual scenario includes the capture of a national of another State. It is often the nationality of the person concerned that gives rise to the person being targeted by the detaining State as a way to leverage the person vis-à-vis the State of nationality.

The third element of the Declaration captures those features of seeking to “compel action” or “to exercise leverage” over a foreign government. This is the dimension of hostage-taking whereby the detention is for the purposes of obtaining some benefit for the State concerned.

Finally, although already implicit in the preceding elements, is the “State-to-State relations” aspect which refers to the inter-State dimension. That is, interactions and relationships between States in the global community. These relations become especially important in cases of arbitrary detention, where one State detains citizens of another State. In such situations, the affected State often uses diplomatic efforts to request the release of its citizens and resolve the issue. State-to-State relations in this context involve not only international legal frameworks but also include diplomacy, agreements between States, sanctions, and the involvement of international organisations to help address and resolve conflicts.

Based on the above, it is argued that the issue of arbitrary detention within State-to-State relations requires distinct criteria due to its complexity and unique characteristics. The broader prohibition of arbitrary detention is well-established, under international law, but most legislation and case law focus on the undertaking of such actions by non-State actors or situations where the arbitrary detention of a State concerns its own citizens.Footnote 32 In contrast, State-to-State dynamics introduce additional layers of complexity, necessitating consideration of factors that set these cases apart from other instances of arbitrary detention under international law.

A related term that is sometimes used, in an effort to capture the inter-State dimension, is “State-Sponsored Arbitrary Detention.” Neither the UDHR nor ICCPR, both of which prohibit arbitrary detention, specifically use the term State-sponsored or State-to-State relations regarding arbitrary detention. According to the Human Rights Committee, which serves as the treaty monitoring body, the ICCPR obligates States parties to respect and ensure the rights under Article 9 to all persons within their territory and subject to their jurisdiction, without discrimination on the grounds of, inter alia, nationality and social origin.Footnote 33 The Human Rights Committee has further determined that, “the obligations of the Covenant in general and Article 2 in particular are binding on every State party as a whole,”Footnote 34as such all branches of government engage the responsibility of the State party, as well as any public or governmental authorities. This is instructive as to the nature of “State-sponsored” within the ICCPR, suggesting that a wide range of State actions could fall under this category. It further suggests that the question of how closely tied a body is to the State, or how an action was authorized, would not necessarily pose a barrier to a finding that an action was attributable to a State under the ICCPR.

The term “State-Sponsored Arbitrary Detention” has the merit of capturing the feature of the phenomenon reflecting the involvement of the State. It is at the same time limitative, seeming to only refer to situations in which the State provides funds or other background support for hostage-taking while arbitrary detention is normally carried out by a State through its organs. States might sometimes either subcontract the unlawful arrests or detention to third parties such as government-controlled militia or other non-State actors or endorse such actions subsequently. States may also look the other way while militia or other non-State actors detain foreign nationals without legal justification, essentially ratifying their actions after the fact.

From the perspective of international law, a State need not carry out the detention through its agents for it to bear responsibility. It may also fail to act, and by its omissions, engage responsibility. When State power is integral to achieving the purpose of detention or acquiesces to the unlawful detention of foreign nationals, international responsibility can follow the State. The conduct at issue must not only be internationally wrongful, but it must also be an act of State, whether an action or omission or both.

For example, in the Tehran Hostages Case, the International Court of Justice found the Iranian government accountable for its support of student-led detention of American embassy officials. The initial wrongful act of Iran had been a failure to prevent the attack or stopping it before it reached its completion, or once they occupied the premises, requiring the militants to withdraw from the United States Embassy.Footnote 35 The attacks on the embassy seemed to be spontaneous, arising from a demonstration, even though they took place against a backdrop of anti-American sentiment expressed by the highest Iranian government and religious officials. Nonetheless, certain organs of the Iranian State subsequently endorsed the acts by characterizing the militia actions as heroic and patriotic, and in so doing, thereby transformed their actions into wrongful acts of the Iranian State.Footnote 36

On the other hand, in some cases, the unlawful conduct may be carried out by a private person with no affiliation to the State. In such cases, the conduct is not attributable to the State, as was determined in the Tellini Case in 1923 whereby private individuals in Greece attacked several members of an international task force constituted to delimit the Greek-Albanian border.Footnote 37

The more complex situation is when a government lacks effective control over the militia, which unilaterally takes the decision to take foreign nationals as hostages. In the latter case, both the foreign government and the local government may be considered victims of the activities of the militia. It is difficult, in the case of the latter, to attribute State responsibility to the local government for the actions of the militia taken independently to seize foreign nationals in order to seek to compel certain actions or to exercise leverage over the foreign State. The actions at issue will be reviewed considering whether there was a positive obligation on the part of the State to act, and if so, whether there was a failure to fulfill such obligation. The overarching point is that different factual circumstances might give rise to different legal implications depending on who is detaining the individual and whether or not the local government bears certain legal duties.

Wrongful and unlawful detention

The term “wrongful and unlawful detention,” or “unlawful confinement”, is often used interchangeably with arbitrary detention. It refers to detention without a legitimate reason or legal process.Footnote 38 A detention may be considered unlawful if it is not based upon grounds and procedures formally established by law including informing the detainee the reason for their detention and their right to consular communication, as well as a fair trial or hearing.Footnote 39 The International Law Commission’s 2001 Articles on the Responsibility of States for Internationally Wrongful Acts (Articles on State Responsibility)Footnote 40 set out numerous circumstances by which wrongful acts can be attributed to a State, including the “unlawful detention of a foreign official.”Footnote 41

The designation of “wrongful or unlawful detention” is a broader term that encompasses different forms of detention. While every arbitrary detention in inter-State relations is wrongful, not every wrongful detention is arbitrary detention in inter-State relations. It omits key elements covered in the preceding section such as the role of the State and the compelling of actions for leverage unaddressed. Additionally, States have their own laws and legal procedures. Therefore, determining what is “unlawful” requires taking into account the relevant rules of both domestic and international law. It is possible, however, that an action might comport with domestic law but still violates the State’s international legal obligations found in a treaty such as the ICCPR or customary international law. International law does not generally permit a State to invoke the provisions of its internal law as justification for its failure to perform its treaty obligations.

Hostage-taking

“Hostage-taking” is sometimes used interchangeably to describe arbitrary detention in state-to-state relations, and in some cases, with variations such as the use of the term “political hostage-taking” or “hostage diplomacy.” International instruments, such as the International Convention Against the Taking of Hostages (ICATH), condemn hostage-taking as a practice inimical to human rights and international law. ICATH defines “hostage-taking” in Article 1 as seizing or detaining and threatening to kill, to injure or to continue to detain another person in order to compel a third party to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage.

The ICATH will be discussed separately in Chapter 4 of the present report. For now, it suffices to note three points when it comes to the specific definitional issue under consideration here. First, this is a widely accepted definition among States and is incorporated into domestic legislation throughout the world. The choice to use this term could constitute a significant advantage because the term is already familiar to and accepted by States.

Second, there are some key general features shared with the arbitrary detention in state-to-state relations context as defined by the Declaration (see the preceding section A - above). The element of holding someone in return for an act or omission from the other side is present. While the element of compelling an action for implicit or express gain is present, on its plain terms, there is no explicit qualification of the ICATH definition of hostage-taking to the holding of nationals of another State, the central concern being the seizing and holding in detention of another person.Footnote 42

Third, while it is widely known that the above definition was primarily meant to encompass non-State actors, it also applies to State officials. State involvement in detentions carried out under the guise of legal enforcement, often involving questionable judicial participation, challenge the distinction between hostage-taking and arbitrary detention in state-to-state relations.Footnote 43

Arbitrary detention in state-to-state relations and hostage-taking share a common motive. Employing the term arbitrary detention in state-to-state relations rather than hostage-taking provides an air of legitimacy to the actions of perpetrator States, thereby obscuring their primary intent of leveraging influence over other States.Footnote 44 The Centre for Strategic and International Studies captured this concept using the term “State hostage-taking”.Footnote 45 Whichever term might prevail in a particular context, both practices involve bargaining over human life and suffering in exchange for whatever the detainers seek to gain.Footnote 46

State kidnapping/Enforced disappearance

In some instances, “State (sponsored) kidnapping” has been used interchangeably with the term “hostage diplomacy”. However, the picture is complicated when the alleged perpetrator of the “kidnapping” is itself a State organ, and the kidnapping is performed pursuant to some alleged infraction against the laws of that State, with widely varying degrees of police or judicial participation. It is worth noting that the Rome Statute of the International Criminal Court safeguards against State-kidnapping by prohibiting enforced disappearances as a crime against humanity. This would require the fulfilment of a contextual threshold of a widespread or systematic attack directed against a civilian population under Article 7 of the Rome Statute. An attack in this context is a course of conduct involving the multiple commission of certain acts.

“Enforced disappearance” entails “the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organisation, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.”Footnote 47 Such enforced disappearance can occur in peacetime, as crimes against humanity no longer require a connection to armed conflict.

Where there is a legal basis for the arrest and detention, under domestic law, the appropriate term to describe the holding of a person for leverage might not be “kidnapping”. Nor would it be an enforced disappearance except where there is an express failure to acknowledge the person is being held. In the context under discussion, for this report, the value of the detainment is awareness of the other State that the person is being held. For the above reasons, the Panel does not consider that such descriptions would be appropriate in most of the cases.

Coercive diplomacy

“Coercive diplomacy” has been used as an umbrella term that encompasses hostage diplomacy or State hostage-taking, referring to the ways governments attempt to coerce other States, without the use of force, to take certain actions before the release of the detained citizens (or hostages).Footnote 48 More formally, coercive diplomacy can be defined as “the exploitation of potential force to induce an adversary to comply with one’s demands” as a means of negotiation.Footnote 49 The threat or execution of the threat can range from economic sanctions to military force.

Historically, coercive diplomacy has been used by governments in times of crisis to persuade the other State to end an aggression,Footnote 50 whereas in many instances of arbitrary detention in state-to-state relations, ending an aggression was not a key concern in the detention of foreign nationals, and was rather due to alleged concerns of national security, an unpaid debt, or in some instances, in retaliation to the arrest of a national from the detaining State. Coercive diplomacy is often used as a tool to target foreign policy, for example, demanding a State not to join certain international security alliances or change political alliances, or release frozen assets.Footnote 51This form may be more aligned to the existing manifestations of arbitrary detention in state-to-state relations.

Hostage diplomacy

“Hostage diplomacy” involves “the taking of hostages under the guise of national law for diplomatic purposes.”Footnote 52 While the term is widely used, it is a misnomer as there is nothing “diplomatic” or lawful about the practice. Hari Osofsky refers to the phenomenon as “bargaining over human lives.”Footnote 53 Essentially, hostage diplomacy utilizes a State’s criminal justice system to leverage the detainee’s detention to pursue foreign policy goals. This tactic exists in “an ill-defined middle ground between legitimate arrests and prosecutions on one side, and illicit kidnapping on the other.”Footnote 54

Beatrice Lau elucidates additional characteristics of hostage diplomacy that highlights its parallels with arbitrary detention in state-to-state relations. Lau’s observations are as follows:

Without adequate disclosure, challenging these claims becomes nearly impossible. Additionally, in many cases, due process is not upheld, access to legal representation is limited, and detainees have little to no communication with their families or with consular representatives of their home States.

Based on the above review, it is evident that multiple terms have attempted to grapple with the phenomenon that is being studied by this report. All the terms discussed have some advantages and some disadvantages, with two in particular (“arbitrary detention in state-to-state relations” and “hostage-taking”) reflecting a closer degree of accuracy in describing the conduct at issue. The missing elements of the “hostage-taking” definition is the fact that, for our purposes, the detention is usually of a foreign or dual national. The clearest additional aspect is the explicit State involvement in the detention. Because this dimension is missing from the terminology, it could be remedied by the use of the alternative term adding the word State so that the conduct is described as “State hostage-taking”. The only aspect that would not, in using this terminology be expressly captured, is the foreign national element.Footnote 56The latter could however be mitigated by the fact that there are many instances where the detention is argued to be not of a foreign national due to dual nationality or habitual residence. The formulation thus captures more accurately what occurs in practice.

It follows that some of the above terms, at least the two immediately above, can be used interchangeably. Insofar as they focus on the arrest and detention of a person for the objective of gaining diplomatic leverage, or coercion, with concessions such as prisoner swaps, resolving bilateral disputes, or other forms of political and economic interests.Footnote 57

This report mostly uses the term “arbitrary detention in state-to-state relations,” or its variant “arbitrary detention in inter-State relations.” These terms are used in the Declaration, and as explained above, are more accurate than the other terms discussed above. The Panel was established pursuant to the Partnership Action Plan to advance the Declaration so consistency of our choice of terms with the latter could be beneficial. However, in some contexts as discussed immediately above, the Panel will use the term “State hostage-taking.” This, however, is without prejudice to the occasional use of related broader terms such as “hostage diplomacy” in other parts of this report. Some States might understandably be reticent to describe the conduct of other States as “State hostage-taking.” The Panel considers, however, that there is a need for stigma to attach to the practice to reflect its condemnation as wrongful under international law.

2.4 – Provisional criteria/indicia

It is acknowledged that, even with the preceding shared understanding of arbitrary detention in state-to-state relations, a one size fits all definition may not always work. To guide the work of the Panel, given the nature of arbitrary detention as a prohibition under international law, the IIP has established criteria/indicia in an effort to distinguish between genuine political hostage situations and cases where the purpose of the detention is not to put pressure on another State.

The criteria/indicia seek to provide a set of standards, based on a totality of circumstances test, to determine whether a specific situation can be classified as an instance of arbitrary detention in state-to-state relations. None of the criteria will necessarily be determinative but will to a greater or lesser extent influence the final determination. That a particular case does not meet all the criteria does not automatically imply it is not or no longer an instance of arbitrary detention in inter-State relations.

Rather, the criteria can serve as a tool to help compare cases to one another and arrive at a decision based on a holistic weighing of all factors, not any one in particular. The criteria must also be applied to the concrete situations of the various cases, considering all the subtleties, “grey zones” and contextual differences that will inevitably colour every occurrence.Footnote 58 In other words, the different factual circumstances will always have to be considered.

UNWGAD – Arbitrary detention

The Panel is aware of the need to avoid fragmentation of global legal standards and norms derived from such standards. Thus, in proposing some indicia to distinguish between the phenomenon under discussion, from other types of arbitrary detention, it is considered that there is no need to propose new factors. This is because the UNWGADFootnote 59, as will be discussed in Chapter 3 of the present report, has developed some considerations that are relevant to the determination of what constitutes arbitrary detention which can be applied to such conduct in the context of State-to-State relations. The IIP builds on the definition of arbitrary detention proffered by that body, as the UNWGAD is one of the few bodies that have developed an extensive body of experience addressing the various factual dimensions of the question.

The Panel considers that use of these criteria at least as initial indicia not only has the merit of providing a basis for a principled assessment of the different situations of arbitrary detention, but it also reinforces them. In this way, we hope to ensure a greater degree of coherence of evolving standards against existing ones and to thereby avoid introducing confusion and ensuring greater unity and coherence of international law.

The UNWGAD jurisprudence has developed a set of categories for classifying detentions as arbitrary. The UNWGAD broadly considers any deprivation of liberty as arbitrary when the deprivation:

  1. lacks any legal basis,
  2. results from the exercise of fundamental rights or freedoms of the detainee guaranteed international human rights instruments,
  3. partially or completely ignores international norms relating to the right to a fair trial,
  4. administratively detains refugees, asylum seekers or immigrants for prolonged periods of time without the possibility for judicial review, or
  5. is grounded on discrimination on the basis of birth; national, ethnic or social origin; language; religion; economic condition; political or other opinion; gender; sexual orientation; or disability or other status.

Criteria/Indicia

Building on the UNWGAD’s five arbitrary detention categories, but also drawing on the experiences of individuals detained in the context of their use as bargaining chips to extract concessions from other States, the criteria/indicia provided at the end of this chapter could be deemed relevant for arbitrary detention in state-to-state relations. It is important to reiterate that none of the criteria listed are independently determinative. These criteria are not intended as a checklist for categorizing cases of State hostage-taking, nor as elements of a crime, all of which may be necessary to meet the definition. Instead, they are intended as general indicia to help arrive at an informed conclusion based on a weighing of a constellation of different factors, some of which may be more or less relevant to a particular case than others. They serve as a compilation of features common to the many cases of hostage diplomacy analysed so far. As such, any particular case of arbitrary detention in state-to-state relations may include some or all of these features but is by no means limited to them.

The two main issues flagged below contain within them further indicative questions, which can be found at the end of this chapter. The questions are framed as guiding factors of those situations commonly considered as unlawful detentions but are not intended to be an exhaustive list of all situations that may fall under that category. The exact form, frequency and consistency of detention can vary depending on the particular State actor, and due attention should be paid to the past practices of that State actor in determining whether a particular situation resembles a wrongful detention.

Determining if the incident is a detention

Given the widely differing circumstances between cases of State hostage-taking, it is important to adopt a broader approach to the concept of detention. Arbitrary detention in state-to-state relations by its very nature seeks to leverage human suffering in order to extract concessions. As such, any form of deprivation of liberty that seems to inflict human suffering must be taken into account in assessing whether a detention has taken place.

Bearing in mind that other sections of the report as well as other organisations (particularly the UNWGAD) and research has dealt with defining arbitrary detention, the questions below are meant to cover the common features, both procedural and factual, that characterize arbitrariness in the detention process. The broad theme of any arbitrary detention is that it involves the conduct of a State actor.

Determining whether the detention is made pursuant to state-to-state relations

Arbitrary detention in state-to-state relations is ultimately a vehicle through which the detaining State seeks concessions from another State, unlawfully reacting, for instance, to the exercise of jurisdiction or enforcement of legitimate treaty rights. Such a reaction by the detaining State undermines State’s rights, either individually or multilaterally. It represents a violation of the norms of international law and the medium of cooperative, good faith diplomatic engagement in favour of coercive action aimed at compelling the other State to meet the detaining State’s demands. Key to any act of hostage diplomacy is the fact that the State of nationality is usually legally and morally bound to advocate for its citizens abroad and makes sincere efforts to securing their release. Arbitrary detention in state-to-state relations creates a situation where a State, in flagrant violation of international norms, uses the victim State’s sensitivity to its commitment to protect its own citizens. The pain and suffering of the detainee’s loved ones is also co-opted as a means of gaining leverage in the dispute.

Despite the detaining State’s conduct, past practice indicates that detaining States usually assert that their actions align with international and domestic law, and that action in opposition to said conduct would amount to interference with internal sovereignty.Footnote 60 Individuals may be detained on charges such as espionageFootnote 61 which, though sometimes merely a pretext for the detention, are nonetheless official. This then furnishes the detaining State with an excuse to treat the issue as an internal matter. These claims are bolstered by the as-yet fragmented position of international law on the issue of hostage diplomacy, which creates a gap for State actors to perpetuate the practice.

The questions in the table below serve to bypass the outward position of the detaining State to look at both the objective factors of the detention, as well as the underlying motives so far as they can be gleaned. This is not to say that the political motivations behind the detention justify it, but rather that they can shed light on the ulterior motives of the detaining State. The indicators therefore focus on the purpose of the detention, borrowing from factors used in other instruments such as the US Levinson Act.Footnote 62 It must also be stressed that, given the inherently political nature of hostage diplomacy, the contours of this practice are constantly evolving. Therefore, new practices and patterns may come to light as time goes on that are not reflected in these criteria, but nonetheless signal an instance of arbitrary detention in state-to-state relations.

Criteria/Indicia for arbitrary detention in state-to-state practice

Is the incident a detention?
Is there a deprivation of physical freedom of movement? Can the deprivation be described as a form of confinement, imprisonment, internment, arrest, seizure or custody, regardless of the facility, frequency or consistency of detention? Are they unable to leave at will?
Is the detained individual unable to carry out the normal functions of their daily life because of the restraints?
Is the detention arbitrary?
Overarching Criteria to determine whether the detention was arbitrary
Has the due process of law been sufficiently impaired so as to render the detention arbitrary?
Did the detention take place in violation of legal safeguards?
Unlawful detention
Is the detention unlawful, in that it does not comply with the domestic laws of the detaining State?
Is the detention unlawful, in that it does not comply with the international instruments to which the detaining State is a party?
Is the detention unlawful, in that it does not comply with the international norms and customs protecting the liberty and security of the individual and prohibiting arrest without due process (even if the detaining State assert pretextual justification under their own criminal justice system)?
Was the detainee charged with a crime they had already been acquitted of in the past (double jeopardy)?
Was the accused arrested for an action that was not a crime at the time it was committed, but was retroactively designated a crime by later legislation?
Is the individual continually detained even after the sentence passed by the detaining authority has lapsed?
Is the detention unlawful, in that the arrest and sentencing of the individual was carried out by authorities who lack the jurisdiction and/or competence to do so?
Was the detention because the individual sought to obtain, exercise, defend, or promote freedom of the press, freedom of religion, or the right to peacefully assemble?
Procedural Defects: Arrest
Was the individual detained without a formal charge or warrant from the relevant authority?
Were they informed of the nature of their alleged charge or infraction upon arrest?
Were the arresting authorities clearly identified as such?
Was the manner of arrest, the conduct of the arresting authorities and the arrest itself consistent with the States obligations under international law?
Was the manner of arrest, the conduct of the arresting authorities and the arrest itself consistent with prior practice of the detaining State?
Procedural Defects: Trial
Were the proceedings related to political or legal determinations relating to the detainee undertaken in secret or in violation of domestic rules of procedure and due process?
Was the detainee able to exercise their habeas corpus rights, and petition for a judicial determination of the legality of their detention?
Was the detainee brought before a tribunal or court to decide the necessity of their continued detention in a prompt fashion (as defined by international and/or domestic standards)?
Was the judicial authority that ruled on the detention of the individual an independent and impartially constituted tribunal in an open and transparent manner?
Did the detainee have an opportunity to examine any and all charges laid against them and the evidence offered in support of said charges prior to trial? Were they given sufficient time to do so?
Was the casefile made accessible to the detainee based on their individual requirements (ex. Language translation)?
Did the detainee have a full opportunity to defend themselves before the deciding judicial authority in an adversarial manner or trial? Were they presumed innocent until proven guilty?
Did the detainee have access to legal representation?
If so, did the detainee’s legal representatives have sufficient access to the detainee and the casefile to discuss their case with them?
Did the detainee have access to consular services of their home State and was such contact facilitated or established?
 Procedural Defects: Sentencing
Is the sentence passed disproportionate to the crime committed, unnecessary for the purposes of rehabilitation, prevention or deterrence, or simply inappropriate in the circumstances?
Was the sentence based on concrete evidence and sound judicial reasoning?
Was the sentence consistent with similar cases in the past?
Conditions of Detention
Are the conditions of detention in violation of legal and procedural safeguards established in international law (such as the Nelson Mandela rules)?
Is the detention undertaken in secret accompanied by denial of access to necessary medical care; family members, any international organisation with a legal right to consult with the detainee, or in violation of applicable norms of consular access?
Were the conditions of detention hygienic, humane, dignified and incorporated necessary adjustments for any medical conditions the detainee may have had?
Prior to any conviction, was the detainee placed in a separate facility to convicted persons?
Did the detainee suffer any physical or psychological harm while in detention, beyond the ordinary level of suffering inherent in such circumstances?
Did the detainee suffer conditions of torture?
Was the detainee held in solitary confinement?
Was the detention made pursuant to State-to-State relations?
Can the detaining authority be considered a State, or acting on behalf of or with the support of a State?
Is the detainee a national of another State, or share dual citizenship with two or more States including the detaining State?
Is the individual being detained solely or substantially because he or she is a national of a specific State or States?
Was the detention made in order to compel the State of nationality to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage?Footnote 63
Was the detention made, or is the detention being continued as retribution for perceived past wrongs against the detaining State, or as insurance against perceived future threats?
Was the detention undertaken in temporal or substantive proximity to other overarching legal, political, or economic disputes between the affected States?
Is the individual being detained solely or substantially to influence or pressure a State’s government policy or to secure economic or political concessions from a State’s government?

Was the detention made, or is the detention being continued for the purposes of extracting concessions from the detainee’s (sole or other) State of citizenship, State of habitual residence or an interested State?

This can include economic concessions (past debts, easing of sanctions, asset freezing, reparations, etc.), diplomatic concessions (prisoner exchange swaps, recognition, restoration of consular services, military presence, etc.), or a combination of both.

Are there actions or statements of public officials of the detaining State that indicate that diplomatic action on the part of the aggrieved State is or would be the dispositive factor in securing the release of the detained individual? Are there other extrinsic or intrinsic indicators of the detaining State’s illegitimate purpose?
Will the detention require diplomatic engagement, sustained or otherwise, from the State of nationality in order to secure release?

2.5 – Conclusions

2.6 – Recommendations

Recommendation 1 - States should use consistent terminology to condemn the practice

To enhance clarity and ensure a measure of consistency in describing the practice of detaining individuals to leverage their States of nationality or residence as wrongful conduct under international law, the Panel recommends that States use the terms “arbitrary detention in state-to-state relations” (or its variant “arbitrary detention in inter-State relations”) or “State hostage-taking” to describe this practice.

The Panel considers that, under current international law, certain instruments such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (and where applicable regional human rights instruments), apply to arbitrary detention carried out by States. Adoption of the Panel’s terminology would help bolster the legal condemnation of such a practice as violative of both the rights of persons as well as States under international law.

Rationale: A wide variety of terms are used in practice to describe arbitrary detention of individuals as a means of exerting leverage against their States of nationality or residence. These include “arbitrary detention in state-to-state relations,” “State-sponsored arbitrary detention,” “wrongful and unlawful detention,” ‘State kidnapping,” “hostage diplomacy,” “State hostage-taking” or “coercive diplomacy.” The Panel understands that States might, for a range of reasons, prefer different expressions to describe the same phenomenon. Having carefully analysed the merits of each of these terms, however, the Panel sees many advantages in using a common terminology to describe the practice. It is vital that, at every opportunity, States use – especially in the context of universal or regional bodies – the same terminology to describe and condemn the practice. Whether a detention can be classified as State hostage-taking requires that regard be had to the facts of each case based on a totality of the circumstances test. A key feature of this type of detention is the compelling of the other State to do or refrain from doing something. The detained individuals become ‘bargaining chips ', and their release is largely dependent on political negotiations between the concerned States.

The Panel considers that treating arbitrary detention as a diplomatic issue, without naming and shaming the practice as State hostage-taking, emboldens those States that engage in such practices. The States that act in compliance with international law should not hesitate to invoke such laws in the circumstances where it is established that their nationals are being held for the purposes of leveraging.

Recommendation 2 – States should endorse the arbitrary detention declaration

The Panel recommends that more States, from all regions of the world, endorse the Declaration against Arbitrary detention in state-to-state relations. Regional organisations empowered to do so may also endorse the declaration or adopt decisions incorporating its substantive contents.

Rationale: The Declaration on Arbitrary detention in state-to-state relations was launched by Canada in 2021 and has so far been publicly endorsed by 81 States representative of all major regions in the world, and the European Union. It can be expected that further States will join to reaffirm the fundamental importance of the rule of law, independence of the judiciary, respect for human rights, and respect for the obligation to provide consular access in accordance with international law.

The Panel considers that the Declaration, as endorsed, already represents a significant statement by States of their views on the practice under international law. The Panel urges a campaign to achieve universality by increasing the participation of as many States as possible as this would strengthen the normative value of the declaration and send a strong and unified message underlining the importance of this issue, which affects all States. Any State irrespective of geographic region could become victim of such conduct, and all States benefit from stability and compliance with the rule of law in international affairs.

Chapter 3

3 – Arbitrary detention in state-to-state relations and international human rights law

3.1 – Relevant human rights treaties/Instruments

As discussed in the preceding chapter, arbitrary detention can be described as the deprivation, without due process, of the foundational human right to liberty.Footnote 64 Arbitrary detention, in its ordinary form, as well as where specifically used by States for diplomatic leverage is a clear violation of the guarantees provided to all persons under international human rights law. The Declaration against Arbitrary detention in state-to-state relations recognizes that “arbitrary arrests and detentions are contrary to international human rights law and instruments, including the UDHR, the ICCPR and other international and regional human rights instruments.”Footnote 65 The Panel agrees with this assessment by many States from around the world signatory to the declaration.

The human rights law framework is an obvious point of departure for the legal analysis of arbitrary detention in state-to-state relations. In addition to the negative obligation to refrain from arbitrary detention, international human rights law also places a positive obligation on States to protect individuals from arbitrary detention and mandates that States take action to facilitate the enjoyment of the right to liberty and security of the person.Footnote 66 These obligations entail that “legal and procedural safeguards must be put in place to prevent unlawful and arbitrary detention, and to prevent its continuance and recurrence.”Footnote 67

This section of Chapter 3 provides a general overview of human rights treaties and other instruments applicable to the practice of arbitrary detention in state-to-state relations as an introduction to the discussion of the UNWGAD’s work in the following section.

3.1.1 General international human rights treaties and instruments

The 1948 UDHR and the ICCPR adopted in 1966 set out the liberty of persons as a fundamental human right, as also confirmed by many regional and other human rights instruments. The UDHR stipulates in Article 9 that, “[n]o one shall be subjected to arbitrary arrest, detention or exile.” Each State Party to the ICCPR, under Article 2(1), “undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction” all the rights recognized in the Covenant. While Article 9(1) of the ICCPR provides for the universal right to liberty and security of all persons without being subjected to arbitrary arrest or detention, paragraphs 2–5 outline specific safeguards for the protection of the liberty and security of the person.Footnote 68Paragraph 2 delineates the right of any person arrested or detained to be informed of the reason for their arrest and any charges levied against them in a language they understand. Paragraphs 3 and 4 establish rights to promptly be brought before a judge and to a timely trial and judicial review of the lawfulness of the reasons for detention. Paragraph 5 provides victims of unlawful arrest with an enforceable right to compensation.

The Human Rights Committee, in General Comment No. 35, has observed that “[l]iberty and security of person are precious for their own sake, and also because the deprivation of liberty and security of person have historically been principal means for impairing the enjoyment of other rights.”Footnote 69 The Human Rights Committee is a body of independent experts which has been charged by States to serve as guardians of the ICCPR, and as the International Court of Justice determined in the Diallo Case, interpretations given by the Human Rights Committee to obligations of States in the ICCPR ought to be taken into account and be given great weight.Footnote 70

Where deprivation of liberty does occur, it must not be “arbitrary,” a requirement which lies at the core of the provisions. As Article 9 of the UDHR and Article 9(1) of the ICCPR recognize, not every arrest and detention will violate the prohibition of arbitrary detention. Yet, what amounts to “arbitrary” is not defined or elaborated upon in international treaty instruments. Defining when detention becomes arbitrary requires careful analysis of the circumstances of each case. The outputs of the special mandate holder, the UNWGAD, are important in articulating the key characteristics and parameters of arbitrary detention.

The Human Rights Committee has also provided further guidance on when detention may be considered arbitrary under Article 9 and other provisions of the ICCPR.Footnote 71The Committee emphasized that the ICCPR obligates State Parties to respect and ensure the rights under Article 9 (and other articles) to all persons within their territory and subject to their jurisdiction.Footnote 72 Though Article 9 is not a non-derogable right under the ICCPR, the ICCPR only permits derogations in a situation of public emergency to the extent required, based on the situation, and provided that they are consistent with a State party’s other obligations under international law.Footnote 73 Therefore “the prohibitions against taking of hostages, abductions or unacknowledged detention are […] not subject to derogation.”Footnote 74 Furthermore, “[t]he fundamental guarantee against arbitrary detention is non-derogable, insofar as even situations covered by Article 4 [public emergencies] cannot justify a deprivation of liberty that is unreasonable or unnecessary under the circumstances.”Footnote 75 In its General Comment on Article 4, the Committee clarified that:

This position was confirmed by the UNWGAD which held that “derogation from customary international law’s prohibition of arbitrary deprivation of liberty is not possible.”Footnote 77

Every person is entitled to the rights provided in the UDHR and ICCPR without distinction of any kind, including on the basis of “national or social origin.” The ICCPR, which currently has 174 States parties including some States that engage in hostage-taking, specifically obligates each State Party to ensure to “all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind.”Footnote 78 Foreign and dual nationals are thus clearly entitled to the protections found in both instruments, including the rights to liberty and freedom from arbitrary arrest or detention, as well as to equality before the law, and the equal protection of the law without discrimination.Footnote 79

As set out in detail in a later part of this report, the UNWGAD has developed a set of categories for classifying detentions as arbitrary. The second category refers to cases of deprivation of liberty resulting from the exercise of and in relation to the rights or freedoms guaranteed in both the UDHR and the ICCPR.Footnote 80 These rights and freedoms include: the right to equality before the law and equal protection from violations of any of the rights in the UDHR;Footnote 81 the right of free movement including the right leave and return to their own country;Footnote 82the right to seek asylum;Footnote 83 the right to freedom of thought, conscience and religion;Footnote 84 the right to freedom of opinion and expression;Footnote 85 the right to freedom of assembly and association;Footnote 86 the right to political participationFootnote 87 and minority rights.Footnote 88

3.1.2 Specific international human rights treaties and instruments

There are specific human rights treaties that provide further prohibitions against arbitrary detention with regard to specific groups of people who may be particularly vulnerable or specific circumstances. For instance, the Convention on the Rights of the Child adopted in 1989 provides, in Article 37(b), that “[n]o child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.”Footnote 89 Article 40 of the Convention on the Rights of the Child provides additional safeguards.Footnote 90 As with the UDHR and the ICCPR, the treaty guarantees the rights to all children within the State Party’s jurisdiction, without discrimination on various grounds including on the basis of nationality and or social origin.Footnote 91

The 1979 Convention on the Elimination of All Forms of Discrimination Against Women sets out provisions for the equal rights, obligations, and legal protection of women in all areas. Article 2 obligates States parties “[t]o refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation”Footnote 92 and “[t]o repeal all national penal provisions which constitute discrimination against women.”Footnote 93Article 3 requires States parties to take appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.Footnote 94 This will presumably include ensuring that, in the context of State hostage-taking, women are also guaranteed the enjoyment of their rights in full equality with men.

Similarly, the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW), under Article 16(1), provides that “[m]igrant workers and members of their families shall have the right to liberty and security of person.”Footnote 95 Subparagraph (4) specifically prohibits the arbitrary arrest and detention of migrant workers and members of their families, individually or collectively, and that “they shall not be deprived of their liberty except on such grounds and in accordance with such procedures as are established by law.”Footnote 96 Articles 17 to 20 provide further safeguards for migrants deprived of their liberty and freedom.Footnote 97 As with the aforementioned human rights instruments, the ICMW guarantees all the rights in the Convention to all migrant workers and their families without discrimination on any of the prohibited grounds including nationality and or social origin.Footnote 98

A fourth example is the 2006 Convention on the Rights of Persons with Disabilities, which in Article 14, requires States parties to ensure that persons with disabilities are treated on an equal basis with others. It provides that they shall “enjoy the right to liberty and security of person;” and “are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.”Footnote 99Article 13 provides for equal access to justice for people with disabilities.Footnote 100

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture) of 1984 requires States to take effective measures to prevent acts of torture within their jurisdiction, providing not only a definition of the crime but also establishing the unavailability of exceptional circumstances to justify torture. The Convention against Torture obligates States parties, under Article 2, to take “effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.”Footnote 101 The Convention also has important procedural protections such as providing for systematic review of rules, instructions and methods with the view to preventing cases of torture.Footnote 102 The UN Special Rapporteur on Torture has pointed out that the same safeguards that are essential to prevent torture are also necessary for the protection of persons arbitrarily deprived of liberty.Footnote 103

The International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), adopted in 2006, regulates enforced disappearance and in so doing prohibits the arrest, detention, abduction, or any other form of deprivation of liberty by agents of the State or persons acting with State authorization, followed by a refusal to acknowledge the deprivation of liberty or concealment of the person’s fate or whereabouts, placing them outside the protection of the law.Footnote 104The ICPPED establishes a set of obligations for State Parties, including the prohibition of enforced disappearances under any circumstances, even in times of war or internal political instability. States are required to criminalize enforced disappearance in their national legislation, establish jurisdiction over the crime, and cooperate with other States in investigating and prosecuting cases.Footnote 105 Furthermore, the ICPPED recognizes the right of victims (both direct and indirect) to justice, truth, and reparations.Footnote 106 It also mandates States to ensure protection for relatives of the disappeared and human rights defenders from any form of intimidation or reprisal.Footnote 107

While the 1963 Vienna Convention on Consular Relations (VCCR) is not explicitly considered a human rights instrument, it does contain a provision, Article 36, that is crucial for protecting the rights of foreign nationals detained in a foreign country by guaranteeing them access to consular assistance, which is seen as essential for due process and fair treatment.Footnote 108That provision of the VCCR entitles a foreign national to be notified, by the State detaining the person on arrest or commitment for trial, of the right to access a consular official of their home State provided that the detained person makes such a request.Footnote 109The VCCR can therefore be argued to indirectly contribute to the protection of human rights. Consular assistance can have a significant impact in securing the release of foreign and dual nationals who are arbitrarily detained abroad and may also enhance international cooperation between States.Footnote 110 The UNWGAD regards access to consular assistance as a human right, as well as an element of the right to a fair trial.Footnote 111 This is also the approach of other UN Special Procedures mandates.Footnote 112

3.1.3 Regional human rights treaties and instruments

The prohibition against arbitrary detention on a global level is built on regional consensus around the impermissibility of the practice, supplementing and complementing its illegality in international law. In this way, the regional instruments and mechanisms that have reinforced the prohibition of arbitrary detention are both contributing to as well as implementing the universal condemnation of the practice, forming a two-way nexus between the wider international prohibition and its various regional counterparts. It is pertinent for this reason to review some of these instruments and mechanisms.

Besides the treaties mentioned above, and the soft law documents mentioned below, regional bodies also have stipulations regarding arbitrary detention. Article 5 of the ECHR protects the right to liberty and security of persons, ensuring that no one is deprived of their liberty unlawfully or arbitrarily.Footnote 113 The provision further provides an exhaustive list of cases where a person may be deprived of their liberty. Compared with other international and regional approaches, the ECHR is notable for its more detailed and exhaustive provision governing the right to liberty and security which allows less flexibility in terms of its scope, therefore making it less susceptible to abuse.Footnote 114

The American Convention on Human Rights of 1969 also protects personal liberty and security against arbitrary detention in Article 7 also providing that no one shall be subject to arbitrary arrest or imprisonment.Footnote 115 Deprivation of physical liberty is only allowed “for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto.”Footnote 116The Inter-American Court on Human Rights (IACtHR) found that this last mentioned provision “addresses the issue that no one may be subjected to arrest or imprisonment for reasons and by methods which although classified as legal, could be deemed to be incompatible with the respect for the fundamental rights of the individual because, among other things, they are unreasonable, unforeseeable or lacking in proportionality.”Footnote 117The American Convention on Human Rights, and the Inter-American human rights system generally, are built on and intrinsically connected to the Organization of American States’ 1948 American Declaration of the Rights and Duties of Man (American Declaration), the widespread acceptance of which reflects customary international law for most, if not all of its provisions.Footnote 118 The American Declaration in Article 25 expressly prohibits arbitrary arrest and deprivation of liberty, and mandates the provision of minimum safeguards during custody.Footnote 119

The 1981 African Charter on Human and Peoples Rights (African Charter) states in Article 6 that “[n]o one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.”Footnote 120The case law of the African Court on Human and Peoples’ Rights (AfCHPR) similarly appears to convey that the legal standards under the African Charter are the same as those contained in Article 9 of ICCPR. Much like the ICCPR, reference to the “law” means that deprivation of liberty may only occur if authorities have respected the relevant national law as well as international norms in the process.Footnote 121

Turning to the Middle East, Article 14(1) of the Arab Charter on Human Rights (2004) provides that: “[e]veryone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest, search or detention without a legal warrant.”Footnote 122 Article 14(1) requires that a deprivation of liberty may only occur “in such circumstances as are determined by law and in accordance with such procedure as is established thereby.”Footnote 123

The Arab Charter on Human Rights, like the aforementioned instruments, also affirms the right to liberty and security of person, a fair, speedy and accessible trial before an independent judiciary, and the various procedural protections and prohibitions that accompany these guarantees in Articles 12 through 14.Footnote 124 Article 4(a) of the Cairo Declaration of the Organization of Islamic Cooperation (OIC) on Human Rights states that “[n]o one shall be subjected to arbitrary arrest or detention, kidnapping or enforced disappearances. No one shall be deprived of his/her liberty except on such grounds and in accordance with such procedures as are established by law.”Footnote 125

The Association of Southeast Asian Nations Human Rights Declaration (2012), states that “[e]very person has the right to personal liberty and security. No person shall be subject to arbitrary arrest, search, detention, abduction or any other form of deprivation of liberty.”Footnote 126 The Declaration is notable in not only expressly prohibiting arbitrary arrest and detention, but also any other unlawful method of depriving a person of their liberty, such as abduction.Footnote 127 The Asian Human Rights Charter likewise promotes the prohibition of arbitrary arrest and inhumane conditions of detention under Article 14 of its section on the Rights of Vulnerable Groups, highlighting that “[i]n few areas is there such a massive violation of internationally recognized norms as in relation to prisoners and political detainees.”Footnote 128It is important to note, however, that the Asian Human Rights Charter was the result of a wide ranging consultation between non-governmental organisations, civil society and leading figures in human rights discourse and judicial practice in Asia under the aegis of Asian Human Rights Commission.Footnote 129Although the document adds strength to the customary prohibition of the practice, it does not contain legal obligations that are binding on States.Footnote 130

3.1.4 Non-binding instruments

There are several non-binding instruments that are relevant to the issue of arbitrary detention in state-to-state relations. While such instruments do not constitute a source of binding obligations for States, they do reflect a set of standards broadly supported by States and the international community and in some instances reflects customary international law. Three are particularly important. The first one is the UN Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment (Body of Principles) which sets out principles to protect all persons under any form of detention, emphasizing that detention must be lawful (Principle 4), based on clear legal grounds (Principle 2), and subject to judicial review (Principle 9).Footnote 131 The instrument sets out the specific protections to be afforded to an individual deprived of liberty at every stage of their interaction with the authorities, from the initial taking into custody (Principles 11-13) to the conditions of their pre-trial and/or post-conviction detention (Principles 1, 6, 8, 15-16, 19-24, 28-29) and up to the procedures that must be guaranteed when facing trial or other forms of judicial recourse (Principles 14, 17-18, 30-39).Footnote 132 Principle 16(2) in particular protects the right of foreign detainees to contact officials of the consulate of their State of nationality.Footnote 133The instrument is cited extensively in the Opinions of the UNWGAD, as a reminder of specific trial, custody and detention rights not necessarily codified in other instruments.Footnote 134

The second instrument, entitled UN Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules), focuses specifically on the rights of prisoners in detention, whether before, during or after trial, whether or not the detainee is actually afforded a trial at all.Footnote 135Like the Body of Principles, the Nelson Mandela Rules are a non-binding instrument intended to act as a set of guidelines for countries to shape their rules of prisoner treatment around.Footnote 136 The instrument covers prohibitions on ill-treatment such as torture for medical experimentation (Rule 32(1d)), basic guarantees of hygienic and safe cell conditions (Rule 42), as well as the rights of the detainee to contact with the outside world, including family and consular access (Rules 43(3) and 62(1)).Footnote 137 This instrument is also extensively cited across the jurisprudence of the UNWGAD as a source of authority for prisoner rights, in particular where the body encounters allegation of torture or deplorable conditions of detention imposed on the complainant detainee.Footnote 138

The third example is the UN Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court (Basic Principles and Guidelines). These principles were developed by the UNWGAD in fulfillment of UN Human Rights Council Resolution 20/16 requesting the body to outline the basic procedural protections and remedies every detainee is entitled to under international law.Footnote 139 The purpose of the instrument is to create a standard of conduct for States to implement in their own domestic practices, so as to avoid any and all instances of arbitrary detention or address any allegations of the same that may have arisen in the past, in line with their international obligations.Footnote 140 The instrument is centred on the right of any detainee to bring proceedings before a judicial authority so they may decide on the legality of the detention and order a release in the event it is not so, from which many more specific procedural protections flow.Footnote 141 While the Principles of the instrument lay out the broad rights of detainees and responsibilities of States towards them, the Guidelines deal with particular measures States may take in order to meet their responsibilities, such as detainee records (Guideline 6), physical trial presence (Guideline 10) and adversarial proceedings (Guideline 11).Footnote 142 Principle 21 and Guideline 21, in particular, deal with the rights of detained non-nationals, and the measures commensurate to achieving those rights and avoiding arbitrariness, such as consular access.Footnote 143

The international and regional human rights conventions and instruments discussed above demonstrate a deliberate and long-standing commitment by the global legal community to safeguard the rights of persons and detainees. They show a considerable body of opinio juris indicating widespread condemnation of the practice of arbitrary detention as a human rights violation. Regardless of the varying contexts, these established legal frameworks offer adaptable solutions to address instances of arbitrary detention in state-to-state relations and provide a model for States to follow. The jurisprudence of the UNWGAD has further clarified the content of the prohibition of arbitrary detention and shaped the protection against such detention in international human rights law.

3.2 Prohibition against arbitrary detention: An analytical overview of the jurisprudence of the UNWGAD

3.2.1 Introduction

This section presents an analytical overview of jurisprudence generated by the UNWGAD, with a specific focus on arbitrary detention in state-to-state relations. The jurisprudence of the UNWGAD draws upon provisions of the UDHR and, where applicable, the ICCPR, reflecting existing international human rights law and its application. As one of the Special Procedures of the UN Human Rights Council (successor to the Commission on Human Rights), which is a central element of the UN human rights machinery, the UNWGAD has the thematic mandate to investigate cases of detention alleged to be imposed arbitrarily or otherwise inconsistently with international human rights standards.Footnote 144 The UNWGAD is the only non-treaty-based mechanism with a mandate that expressly provides for the consideration of individual complaints aimed at qualifying whether a detention is arbitrary.Footnote 145 Its views are therefore pertinent for our discussion.

3.2.2 UNWGAD definition of detention

In Fact Sheet 26 (Revised), the UNWGAD clarifies the meaning of “detention” as including all cases of deprivation of liberty imposed arbitrarily. The relevant excerpt states:

3.2.3 Understanding what constitutes arbitrary “deprivation of liberty”

The question of what makes deprivation of liberty arbitrary is not clearly answered in international human rights instruments. Article 9 of the UDHR provides merely that “no one shall be subjected to arbitrary arrest, detention or exile.”Footnote 147 Article 9(1) of the ICCPR is not much clearer: “Everyone has the right to liberty and security of person. 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 such procedure as are established by law.”Footnote 148

When determining the mandate of the UNWGAD, the Commission on Human Rights used a pragmatic criterion: While it did not define the term “arbitrary”, it considered as arbitrary those deprivations of liberty, which for one reason or another are contrary to relevant international provisions set out in the UDHR or in the relevant international instruments ratified by States.Footnote 149 In contrast, the Commission considered that deprivation of liberty is not arbitrary if it results from a final decision taken by a domestic judicial instance and is in accordance both with domestic law and with other relevant international standards set forth in the UDHR and the relevant international instruments accepted by the State concerned.Footnote 150

To enable it to carry out its tasks using a sufficiently precise methodology, the UNWGAD has adopted specific criteria applicable in the consideration of cases submitted to it, drawing on the relevant provisions of the UDHR, the ICCPR and the Body of Principles. The UNWGAD broadly considers any deprivation of liberty as arbitrary as follows:

3.2.4 The process of generating UNWGAD jurisprudence

It is important to note at the outset that the UNWGAD does not in and of itself constitute an effective enforcement mechanism, but rather serves as a persuasive authority for determining cases of arbitrary detention, recommending measures to prevent it, and advocating for abolition of the practice. The heart of this inquiry then is whether the jurisprudence of the UNWGAD further contributes to the normative prohibition against arbitrary detention in state-to-state relations, and whether the body, by virtue of its findings and its authority within the international community, helps raise the prohibition to the level of customary international law. To answer this question however, an overview of the different types of UNWGAD jurisprudence is necessary.

There are five main avenues through which the body of UNWGAD jurisprudence has been generated up to this point in time. The bulk of the UNWGAD’s findings come through the Opinions issued upon receipt of complaints of arbitrary detention.Footnote 152 Aside from this, the UNWGAD also issues Deliberations considering wide ranging issues pertaining to arbitrary detention, Annual Thematic Reports highlighting areas of concern in the previous year, Special Country Reports that focus on risks within specific countries, and general Reports on the legal definitions, procedures and remedies relating to arbitrary detention.Footnote 153 These will be further expanded upon below.

A. Opinions of the UNWGAD

This is the main process through which the UNWGAD jurisprudence is generated. Most opinions are issued through what is called the “regular communications procedure”, where complaints are filed before UNWGAD and an opinion is drafted on the arbitrariness of the detention (after following the adversarial procedure prescribed in the working methods of UNWGAD).Footnote 154 A follow up procedure is also undertaken, with a view to finding the means that would lead not only to the release of those whose detention has been declared by the UNWGAD to be arbitrary, but also to the adoption by the States concerned of legislative and executive measures which would prevent and protect against arbitrary detention.Footnote 155It is important to note in this regard that where States provide responses to allegations of arbitrary detention to the UNWGAD, they have not challenged the fact that arbitrary detention is prohibited, lending strength to the customary nature of this norm.

Like other special procedures of the UN, the UNWGAD has developed an urgent action procedure for time-sensitive cases in which there are sufficiently reliable allegations that a person may be detained arbitrarily and that the continuation of the detention may constitute a serious danger to that person’s health or life.Footnote 156 Even when no such threat is alleged to exist, the UNWGAD may determine that there are particular circumstances that warrant urgent action.Footnote 157 An extended body of jurisprudence has evolved from this procedure, most of which is also reflected in the Opinions.

B. Breakdown of UNWGAD opinions

A total of 29 UNWGAD Opinions on cases of arbitrary detention that involve elements of State-to-State relations were analysed. Below are some findings gleaned from those Opinions:

Table 1. Breakdown of data extracted from UNWGAD opinions.Footnote 158
Opinions# of Opinions% of Total
Total29100%
Category I2172%
Category II1034%
Category III2586%
Category V1241%
Opinions involving reported successful prisoner swaps1655%
Opinions involving Undue Delay831%
Opinions involving Lack of Counsel Access2379%
Opinions involving Inequality of Arms1448%
Opinions involving Lack of Casefile Access1034%
Opinions involving Inability to Effectively Participate in Defence621%
Opinions involving Lack of Consular Access1138%
Opinions involving Forced Confession724%
Opinions involving a Partial Tribunal1034%
Opinions involving violation of Article 2 of UDHR1138%
Opinions involving violation of Article 3 of UDHR1241%
Opinions involving violation of Article 5 of UDHR414%
Opinions involving violation of Article 6 of UDHR621%
Opinions involving violation of Article 7 of UDHR1138%
Opinions involving violation of Article 8 of UDHR1133%
Opinions involving violation of Article 9 of UDHR2483%
Opinions involving violation of Article 10 of UDHR2276%
Opinions involving violation of Article 11 of UDHR1965%
Opinions involving violation of Article 19 of UDHR931%
Opinions involving Dual Nationals827%
C. Deliberations of the UNWGAD

Deliberations are formulated on matters of general nature, and similarly to general comments of treaty bodies, they provide guidance to States in preventing and addressing cases of arbitrary deprivation of liberty.Footnote 159 Furthermore, they “are a means of setting out a position of principle in order to develop a consistent set of precedents on questions which require special consideration.”Footnote 160

Deliberation no. 9

The deliberation most closely relevant to the work of the Panel is Deliberation No. 9. The UNWGAD formulated a deliberation in which it looked more broadly at the definition and scope of arbitrary deprivation of liberty under customary international law.Footnote 161 This was the result of wide-ranging consultations and, in formulating it, the UNWGAD relied on a rich array of sources.Footnote 162 The Deliberation clarifies the qualification of particular situations as a deprivation of liberty, and expands upon the notion of “arbitrary” and its constitutive elements:

Deliberation no. 10

Deliberation No.10 also offers insights on the compensatory duties of States involved in arbitrary detention. Specifically, the UNWGAD reaffirms the right to reparations for the victims of arbitrary detention, and lists examples of State action that can remedy its violation:

D. Annual reports

Arbitrary detention in state-to-state relations have been addressed in the thematic issues section of the UNWGAD’s Annual Reports, which provide an opportunity for the body to address subjects of relevance to its work and develop various aspects of its jurisprudence.Footnote 165 Some examples of thematic issues related to arbitrary detention in state-to-state relations highlighted in the UNWGAD Annual Reports are provided below:

The 2021 Annual Report is notable for its endorsement of the Declaration Against Arbitrary detention in state-to-state relations, the Partnership Action Plan and the extension of support to the Initiative.Footnote 166 The UNWGAD also reiterated that “prompt consular assistance” is an essential safeguard against arbitrary detention, and that the prohibition against arbitrary detention is an accepted component of customary international law, making it a non-derogable right:

The UNWGAD also affirmed the rights to consular access ingrained in the VCCR, urging all States to ensure foreign national detainees are informed of those rights upon arrest.Footnote 168

The 2018 Annual Report is noteworthy for the UNWGAD’s emphasis on the importance of consular access to securing the fair trial rights of foreign nationals detained abroad, and as a deterrent to torture.Footnote 169 It also distinguishes between consular protection, which it defines as primarily a communicative aid for the detainee, and diplomatic protection, which it considers a remedial measure against internationally wrongful acts in customary international law.Footnote 170The UNWGAD also opined on the application of diplomatic protection to dual nationals:

Although stated in the context of migrant and refugee detention, the UNWGAD also reiterated that access to a Court of law to contest the legality of their detention applies to all non-nationals:

Addressing how cases of arbitrary detention should be resolved by the detaining country, the UNWGAD in the 2010 report states that immediate release, even in the case of foreigners, is still the typical remedy:

In the Annex to a Special Report of 2006 is a reference to a General Comment from the Human Rights Committee on Article 4 of the ICCPR, which permits some derogations from the Covenant in times of national emergency.Footnote 175 The Committee is clear, however, that such permitted derogations do not include hostage-taking:

In response to an incident of hostage-taking by paramilitary group in Colombia, the UNWGAD in the 2000 Annual Report outlined the distinction between hostage-taking and arbitrary detention, explaining that the former was outside the scope of the UNWGAD’s mandate:

In light of the UNWGAD’s later endorsement of the Initiative Against Arbitrary detention in state-to-state relations, it is unclear what relevance, if any, this distinction has to political hostage-taking, given that this particular case was an instance of a non-State actor hostage-taking.

Within the 1994 Report is an account of the case of two ethnic Armenians allegedly detained by Azerbaijan and used as leverage in a negotiation for the release of Azerbaijani prisoners held in the disputed region of Nagorno-Karabakh.Footnote 178 The UNWGAD found that the detention was arbitrary on the basis that it was not made in pursuance of any criminal offence, but purely on the basis of origin:

In contrast to the 2018 Annual Report, the UNWGAD here considers the arbitrary detention of a foreign national for the sake of leverage a Category I (no legal basis) violation, rather a Category III (fair trial) violation. This at least confirms that cases of arbitrary detention in state-to-state relations may span multiple categories of arbitrary deprivation, depending on the details.

The UNWGAD also remarked on the issue of national sovereignty, and the prohibition against the interference by one State in the affairs of another:

Condemnation of the arbitrary detention of foreign nationals has in the past been criticized as interference with national sovereignty and the judicial processes of the detaining State.Footnote 181 These principles are recognized and upheld by the UNWGAD, and although the accusations of sovereign interference may be baseless, it is incumbent on the detainee’s home State to stay within the bounds of international law when dealing with such issues (see Section 6.2).

E. The UN basic principles and guidelines on remedies and procedures on the right of anyone deprived of their liberty to bring proceedings before a court

As noted above, this report was produced by the UNWGAD following Resolution 20/16 of the UN Human Rights Council, which tasked it “to present to the Council before the end of 2015 draft basic principles and guidelines on remedies and procedures on the right of anyone deprived of his or her liberty by arrest or detention to bring proceedings before a court in order that the court may decide without delay on the lawfulness of his or her detention and order his or her release if the detention is not lawful.”Footnote 182The Basic Principles contained in the report are based on international law, standards and recognized good practices, and are intended to provide States with guidance on fulfilling, in compliance with international law, their obligation to avoid the arbitrary deprivation of liberty.Footnote 183 The report offers a specific set of procedural rights and guarantees for States to implement in order to avoid practising arbitrary detention, and remedy it where it does occur.Footnote 184

F. Summary

Looking at the various strands of the UNWGAD’s jurisprudence, a number of important inferences relevant to the Panel’s mandate emerge. From the Opinions, it can be gleaned that cases of arbitrary detention potentially containing some elements of State-to-State engagement cut across all categories of international law violations identified by the UNWGAD. From the Deliberations, a more comprehensive definition of the concept of arbitrariness can be extracted: one that includes a wider scope of conduct than merely that which is not in accordance with domestic law. Most importantly, the Annual Reports provide an absolute endorsement of the Declaration Against Arbitrary detention in state-to-state relations, and affirmation that the aims of the mandate dovetail with that of the UNWGAD.

In conclusion, the UNWGAD’s jurisprudence provides a comprehensive overview of the many forms that arbitrary detention in state-to-state relations takes, its current legal ramifications and other considerations that need to be addressed in order to develop robust measures against it. However, how this information is used will also depend on the authority and perception of the UNWGAD amongst States, as well as other international bodies that contribute to shaping the structures of customary international law.

3.2.5 How the UNWGAD jurisprudence is incorporated in international law

This section highlights the wide reach and influence of the UNWGAD’s jurisprudence and its influence on domestic, regional and international norms in the area of arbitrary detention. In reviewing the use of UNWGAD Opinions and general jurisprudence by regional human rights mechanisms as well as domestic courts of various jurisdictions, the section demonstrates the UNWGAD’s role as a persuasive authority for reinforcing cross-cutting international legal norms. This in turn has implications for the UNWGAD’s capacity to contribute to the prohibition of arbitrary detention in state-to-state relations in customary international law. Gaps in international law relating to arbitrary detention in state-to-state relations may also be extrapolated from the jurisprudence.

A. Use of UNWGAD opinions in domestic courts and legislation

The UNWGAD has been highlighting the importance and role of national judiciaries in implementing the recommendations given in its opinions, in particular in ordering the release of and compensation for detained individuals. For instance, opinions of the UNWGAD were taken into account by national courts in the conditional release of two detained individuals in TurkeyFootnote 185 and in the context of a public hearing before the Supreme Court of the Republic of Korea on conscientious objection to military service and its status under international human rights law.Footnote 186 In the latter case, the Government informed the UNWGAD that, in November 2018, the Supreme Court had reversed its jurisprudence, under which the punishment of conscientious objectors had previously been considered as necessary to public safety, and that that change could result in detained objectors being eligible to file a claim for compensation.Footnote 187

The High Court of Malawi has cited four of the five categories of arbitrariness in any deprivation of liberty in helping to define arbitrary detention and censure the actions of police authorities.Footnote 188 The Supreme Court of Appeal of South Africa, the apex court of the country, has cited the UNWGAD’s recommendations (as part of broader insights from the Special Rapporteur on the rights of migrants) on migrant detention conditions in evaluating whether local refugee detention centres met international standards.Footnote 189 Likewise, the High Court of Ireland also called on the UNWGAD’s jurisprudence to help establish the international legal position on the rights of conscientious objectors against detention and double jeopardy.Footnote 190

In the United Kingdom, the Supreme Court has referred to the UNWGAD’s guidelines as an aid to interpreting the ECHR.Footnote 191 The High Court of Australia considered the UNWGAD jurisprudence in evaluating international legal norms on migrant detention, though it was not ultimately pertinent to the constitutional question being considered.Footnote 192 In the same vein, the New Zealand High Court also referenced the UNWGAD’s Opinion as an example of international jurisprudence on the relationship between refusal to rehabilitate and delayed release.Footnote 193

The UNWGAD’s work is also a constant feature of legislation passed by the United States Congress, including both House and Senate resolutions condemning human rights violations in other countries, reviewing the United States’ conditional assistance programmes to other nations, or advocating for greater intervention to address those concerns.Footnote 194The UNWGAD’s Opinions often underpin the concerns expressed in these resolutions, providing a factual background to the state of judicial independence or other practices the legislature condemns.

B. References to the UNWGAD from other bodies
Inter-American Court of Human Rights (IACtHR)

In interpreting and applying the American Convention on Human Rights, the IACtHR has come to rely extensively on the work of the UNWGAD to supplement and substantiate its jurisprudence. References to the UNWGAD are scattered across the case law of the IACtHR, with UNWGAD Opinions being cited in support of merits judgements, advisory opinions, compensation awards and other rulings of the IACtHR.

In particular, the IACtHR has often looked to opinions of the UNWGAD to elaborate on the procedural guarantees of the fair trial process, which under the UNWGAD’s classification would normally fall under Category III. This has included aspects such as the requirement for prompt judicial hearing, the maximum length of pre-trial detention, and legitimacy, necessity and proportionality in the deprivation of liberty, particularly in the context of migrant and refugee detention, asylum processing and in-house arrests (known as “arraigo” in Mexico).Footnote 195

The Inter-American Commission on Human Rights (IACHR) has likewise utilised the opinions of the UNWGAD in arriving at recommendations, pleas or petitions to be made to the IACtHR. Notable instances where the UNWGAD’s opinion on the detention of a particular individual have informed the Commission’s work include its requests for provisional measures from the IACtHR in cases of urgent remedy, where the psychological, physical or moral integrity of the detainee are gravely endangered by their continued detention.Footnote 196

The IACtHR has also made extensive use of the reports arising from the UNWGAD’s Country Visits, using the general observations on the state of the judiciary, law enforcement and general social, economic and political context to place the circumstances of the particular case before it. The UNWGAD’s 2003 visit to Argentina for example, and the critical findings it produced on the irregularities and procedural failures in identification checks and arrests carried out by local police, was integral to the Court’s judgement in Fernández Prieto and Tumbeiro v Argentina.Footnote 197

The UNWGAD’s jurisprudence on discrimination and discriminatory application of domestic law to detainees on the basis of distinguishing characteristics has also found its way into the Court’s judgements. The UNWGAD’s identification of the conduct and attitude of the detaining authority as a key factor to determining whether discriminatory conduct took place has been used in cases concerning racial profiling by law enforcement.Footnote 198

European Court of Human Rights (ECtHR)

Like its North American counterpart, the ECtHR has also incorporated jurisprudence from the UNWGAD into its judgements, relying consistently on the UNWGAD’s opinions to substantiate, clarify and emphasise international law and custom as it applies to any particular case.

In fact, the ECtHR goes as far as to consider the UNWGAD “another procedure of international investigation or settlement” under Article 35.2 of the ECHR.Footnote 199 As such, applications made to the Court that have already been submitted to and considered by the UNWGAD will not be considered afresh, as the UNWGAD is considered competent to address those matters by itself as well as recommend reparations.Footnote 200It is considered akin to the Court in both “procedural perspective and in terms of its potential impact.”Footnote 201

The Court has also utilised the reports of personal visits by the UNWGAD to individual detainees who have lodged complaints in order to corroborate conditions of detention and the physical or psychological well-being of the detainee. This is particularly poignant where allegations of torture have been levelled by the detainee against their captors, as the UNWGAD’s observations of the detainee’s condition have been used to help form conclusions on the veracity of those claims.Footnote 202

Apart from this, the Court, in setting out the facts and relevant law applicable to a case, has cited reports of the UNWGAD as they pertain to fundamental rights and freedoms. Examples include the UNWGAD’s legal analyses of constitutional provisions relating to detention, its position on the rights of conscientious objectors to abstain from military service and not be detained on those grounds, and the coverage of religious evangelism under the freedom of religion.Footnote 203

As with the IACtHR, the ECtHR has also relied extensively on the UNWGAD’s traditional Country specific reports to inform the factual background of any given case.Footnote 204 This has proved particularly useful in documenting the conditions of migrant detention centres in Europe, as opposed to purely prison facilities, as well as the procedural irregularities related to migrant processing.Footnote 205

African Commission on Human and Peoples’ Rights

The African Commission on Human and Peoples’ Rights (African Commission) is a complementary body to the AfCHPR, with both institutions providing an interpretive function to the African Charter on Human and Peoples’ Rights (the African Charter).Footnote 206The African Commission can make applications to the AfCHPR on behalf of petitioners and/or NGOs, draft advisory opinions on the request of the AfCHPR, and make recommendations to States on receipt of complaint.Footnote 207

Critically, the African Commission is no different from its regional counterparts regarding references to the work of the UNWGAD to inform its judgements and help develop the factual background and legal landscape of the issues before it. However, it has adopted a different approach from that of the ECtHR when dealing with parallel complaints submitted both to it and the UNWGAD. Where the latter has considered matters disposed of by the UNWGAD as precluding the need for a second consideration by the Court, the African Commission places particular importance on the ability of the alternative body to “offer the envisioned remedy.”Footnote 208In the African Commission’s jurisprudence, the UNWGAD is not considered capable of granting the same kinds of effective relief as the Court beyond political resolutions or statements (though there are other UN bodies that can do so), and as such matters submitted to the UNWGAD can still be admissible in the African Commission.Footnote 209

However, this does not mean that the UNWGAD’s jurisprudence has not formed an important part of the Commission’s opinions. For instance, the UNWGAD’s categorisation system and the procedural functions it has upheld as defining arbitrary vs non-arbitrary detention have featured in African Commission jurisprudence.Footnote 210 UNWGAD jurisprudence has also been incorporated into regional human rights instruments, such as the Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in Africa.Footnote 211

One important function of the UNWGAD in the African Commission’s jurisprudence is as a medium through which States which are alleged to have infringed the rights guaranteed under the Charter can be made aware of ongoing proceedings against them. In this way, States are precluded from claiming ignorance to a particular complainant’s plight before they had petitioned the African Commission, and can be expected to redress these complaints prior to the Commission taking cognizance of them, particularly where ample time has passed between the UNWGAD’s Opinion and the African Commission’s own.Footnote 212

In sum, the rich and varied jurisprudence of UNWGAD has been a constant source of persuasive authority to various regional bodies and domestic courts. While canvassing the experience of State parties, it has even been indicated to the IIP that UNWGAD jurisprudence assists States in forming criteria to determine when incidents of arbitrary detention of their own citizens is being pursued for leverage. These affirmations thus lend credence to the proposition that the prohibition against arbitrary detention, including when arising in State-to-State relations, is a norm of customary international law. Simultaneously, the close analysis of this jurisprudence also flags areas where new rules of international law may be identified and developed.

3.2.6 Gaps in the law around arbitrary detention in state-to-state relations

A. Consular access

Denial of consular assistance and a failure to inform consular officials of the relevant State of the detention of one of its nationals has been consistently deemed to violate the basic rights and privileges of detainees under international law. Case law from the International Court of Justice has repeatedly reaffirmed both in the past as well as in more recent times the centrality of the right to consular access in international law, and it has censured States that it deems have infringed upon that right or taken insufficient steps to fully implement it in their practices towards foreign nationals detained in their territory.Footnote 213

Three international instruments explicitly prohibit the practice, namely the VCCR (Article 36) the Nelson Mandela Rules (Rule 62(1)), and the Body of Principles (Principle 16(2)).Footnote 214 All of these instruments have been cited in the UNWGAD Opinions involving denial of consular access and form the basis (among other instruments) for concluding that a Category III violation has occurred in any particular instance.Footnote 215

In assessing whether a particular detainee’s consular rights have been infringed, the Working Group takes a holistic view of the right. Denial of consular access therefore can occur where there is a complete restriction on any and all communication between the detainee and their consulate, but can also be found where the communication is partially restricted, or only permitted after a long time in detention has elapsed.Footnote 216 Likewise, even regular communication between the detainee and their consulate officials may not fulfil a State’s obligations if those conversations are constantly monitored and deprived of confidentiality, or if the consulate is unable to discuss the substance of the detainee’s legal situation with them to aid in their defence.Footnote 217 This is particularly relevant where the detainee is unable to access other legal assistance or translation services, and must therefore depend on the consulate to understand the charges against them and mount an effective rebuttal.Footnote 218

The test of whether a particular detainee has been deprived of consular access therefore is linked to the effectiveness of that access, not merely the presence of a channel of communication. The UNWGAD also does not limit the detainee’s right to consular access to only communication with the consulate of the detainee’s home or second State of nationality. Where a particular State does not have a direct consular presence in the country of detention but relies on an ally to act as a protecting consulate or provide an ambassadorial presence on its behalf, the UNWGAD is no less insistent on the detainee’s right to contact such an authority as well.Footnote 219

Wherever the UNWGAD in its jurisprudence has received reports of denial of consular access, it has consistently reiterated the centrality of consular access to securing the human rights of foreign nationals detained abroad. For instance, in a recent opinion involving denial of consular access, the UNWGAD noted:

In the opinion issued on the arbitrary detention of Nizar Zakka, the UNWGAD noted that effective enforcement of consular rights does not only help promote the rights of the detainee, but also serves to preserve harmony in international relations:

The former Chair of the UNWGAD, Elina Steinerte, has also commented on the wider responsibilities of the detainee’s consulate during the period of detention, suggesting it may include more active outreach than just passive communication:

Article 36 of the VCCR enshrines the freedom of consular officers to communicate with detained nationals in the receiving State as well as the freedom of the detainees themselves to request consular access.Footnote 223 Though there is some dispute over whether or not this provision creates a right enforceable by individuals as opposed to an obligation incurred by the receiving States to sending States, there is a broad acceptance that outright denial of consular access to a detained national by the receiving State when requested by the sending State would constitute a violation of their undertakings under the VCCR.Footnote 224 Nevertheless, the idea that the provision of consular protection is an obligation of the sending State is still disputed and has not yet achieved consensus within the international community.

Regardless of the precise scope of the right however, the UNWGAD jurisprudence is unequivocal in attaching the deprivation of consular access to the definition of arbitrary detention. A subsequent question, which arises in this context, concerns the role that consular access plays in raising a particular case from mere arbitrary detention to arbitrary detention in state-to-state relations, since consulates inevitably play a critical role in negotiating the conditions and release of the individual at the heart of the dispute between States. The relevant question for the purpose of the Panel’s mandate is about the extent to which international law on the subject of consular access to foreign detainees applies similarly to dual nationals detained in one of the countries of their nationalities. In cases of dual nationality, one nationality may be the main or predominant one whereas the other is the less dominant.

B. Diplomatic protection

A further question relates to the obligation, if any, of States to afford diplomatic protection to their detained nationals abroad. The International Law Commission’s Articles on Diplomatic Protection underline the discretionary nature of the State’s right to exercise diplomatic protection on behalf of its nationals who have suffered injury abroad.Footnote 225 According to the commentary, a “State has the right to exercise diplomatic protection on behalf of its national. It is under no duty or obligation to do so.”Footnote 226

At the same time, the Commission refers to “the view that there is some obligation, however limited, either under national or international law, on the State to protect its nationals abroad when they have been subjected to serious violation of their human rights” and formulates “recommended practices” in this regard.Footnote 227State practice indicates that States often do undertake serious efforts to provide consular services and even diplomatic efforts to safeguard detained nationals, particularly where the detention is arbitrary or access is denied. However, these efforts are often discretionary rather than backed by a systematic and specific framework, either domestically or internationally, and difficulties remain where the detaining State is uncooperative.

C. Dual nationality

As has been emphasized throughout the report, the key difference between arbitrary detention and arbitrary detention in state-to-state relations is the motive behind the treatment, rather than the treatment itself, and this applies equally to dual nationals. They may be officially detained for a multitude of reasons ranging from political dissidence to national security, or without charge at all, kept in detention for lengthy periods of time before facing trial, denied access to basic legal services, convicted by non-independent tribunals, sentenced to punishments disproportionate to their alleged crime and then face deplorable conditions of confinement. But the animating reason for their detention is ultimately to extract concessions from the other State of nationality, though the official reasons for their arrest may differ. In those Opinions where this is apparent, the basis of the detention is usually national origin, prohibited under Category V of the UNWGAD’s categorisation system for arbitrary detention.Footnote 228

There have been at least 41 opinions issued by the UNWGAD involving dual nationals over the course of its now 32-year mandate. Where the UNWGAD has determined that a detention was motivated by national origin, it has done so using the same methods adopted for identifying cases of arbitrary detention pursuant to other grounds of prohibited discrimination. This includes examining the context of the detention, any prevailing patterns of detention of that general group or even that particular person by the detaining State, as well as the public statements of the detaining authority and any implications it may contain suggesting that the motive for the detention was discriminatory.Footnote 229

A topic of particular concern when it comes to the arbitrary detention of dual nationals in the context of State-to-State relations is the disputed status of dual nationals in jurisdictions that do not recognise dual nationality to begin with. Although the question of the rights of dual nationals to consular access has been the subject of some ambiguity in the past, more recent trends in international law have tended to move towards a more robust conception of such protection that applies to all nationals, whether or not they possess multiple passports.Footnote 230

Despite these developments, State responses to the IIP’s questions on dual nationality demonstrate that the extent of consular assistance that can be provided is often dependent on the cooperation of the detaining country. Though most States adopt the same approach to provision of consular assistance regardless of whether the detained individual possesses dual citizenship or not, they equally acknowledge that this becomes practically difficult where the detaining country does not recognise dual nationality at all. In addition, some States that recognise dual nationality may nonetheless only provide consular access as a courtesy to dual nationals, rather than as of right.

This is all the more concerning especially because a significant number of opinions issued by the UNWGAD deal with dual nationals detained in Iran, one of several countries that do not recognise dual nationality.Footnote 231These opinions are relevant particularly because most if not all of these detainees have been used as pawns in order to extract diplomatic concessions of one kind or another from their other State of nationality in exchange for their safe return. This practice was most explicitly demonstrated in the cases of Kamran Ghaderi and Saeed Abedinigalangashi, both of whom were denied any access to their respective consulates before eventually being released in a prisoner swap deal.Footnote 232

The issue of arbitrarily detained dual nationals, however, goes beyond any one individual country. UNWGAD Opinions involving dual nationals have been addressed to several States, each of which may have distinct practices regarding recognition of dual nationality. In 2018, for instance, the UNWGAD issued an Opinion on the detention of Ola Yusuf al-Qaradawi and Hosam al-Din Khalaf, a married couple with dual Qatari-Egyptian nationality and US permanent residency detained in Egypt, in which it again highlighted the common issue of limited consular access.Footnote 233 Though the motive behind the detention is unclear, the couple’s legal representatives raised concerns that their arrest was made pursuant to the extradition of a relative in Qatar, potentially bringing the detention into the realm of State-to-State relations.Footnote 234

Siblings Omar and Sarah Aljabri, dual Maltese-Saudi nationals detained by Saudi Arabia, were similarly the subject of a UNWGAD Opinion in 2022.Footnote 235 Their detention too was linked by some reports to an effort to force the extradition of their father, an ex-Saudi intelligence official.Footnote 236 The difficulties of determining the precise motive behind each detention only serves to emphasise the complexity involved in distinguishing ordinary cases of arbitrary detention from those of arbitrary detention in state-to-state relations, even when the individuals in focus are dual nationals, since shared nationality alone is not determinative.

Determining when nationality matters

The above-described practice raises the question of what role nationality plays in the definition of arbitrary detention in state-to-state relations, and what light the UNWGAD jurisprudence can shed on the matter. It is pertinent to note that there are a number of countries that do not recognise dual nationality, although the practice in these cases is to surrender the individual’s previous citizenship upon their acquisition of a new one, rather than insist they are still citizens of their country of origin.Footnote 237 Instances of individuals whose release from arbitrary detention is tied to extracting some overtures from another country are also not limited to dual or even foreign nationals in the UNWGAD’s Opinions.

Individuals who hold permanent residency in one country but the citizenship of another have also been the subject of this practice, and their cases have been documented by the UNWGAD. Nizar Zakka, Saeed Malekpour, and Ahmadreza Djalali, Iranian citizens holding residencies in the United States, Canada and Sweden respectively, are three examples in particular of this phenomenon.Footnote 238 Ho Van Hai, an American resident of Vietnamese citizenship, is another.Footnote 239Zakka and Hai were eventually released, while Malekpour escaped, and it was suspected in each case that their eventual return was mediated by the sustained diplomatic engagements of their countries of residence.Footnote 240 Ahmadreza Djalali is still under detention awaiting execution.Footnote 241

Even the nationals of the perpetrating State may be subject to arbitrary detention in state-to-state relations as a means of political leverage, provided they have some connection with the other State in the equation. Usually, the “connection” in question can include academic pursuits, employment relationships or family ties. One notable example of this is the case of Ngawang Choephel.Footnote 242Rebiya Kadeer, Doan Viet Hoan, Doan Thanh Liem and Do Ngoc Long are other examples of UNWGAD cases that may follow this particular pattern.Footnote 243

These incidents raise the question of whether nationality should play a key role in the definition of arbitrary detention in state-to-state relations. The UNWGAD jurisprudence confirms it does have relevance but seems to suggest that nationality is not always determinative. To be sure, discrimination based on national origin is often a strong indicator that the detainee is being used as a bargaining chip in the diplomatic blackmail of their other State of nationality. However, individuals caught in the web of political hostage-taking may have less official ties with the country from whom concessions are being sought in exchange for their release, but are nonetheless subject to arbitrary detention in state-to-state relations because that country has an interest or even a responsibility in ensuring their safe return.

Addressing the gaps

As the issues of recognition of dual nationality, consular protection and arbitrary detention in state-to-state relations are closely linked, so does the law addressing one area have knock-on effects on the others. The law around dual nationality in particular has been an area of ambiguity for some time. States refusing to recognise dual nationality and insisting on the permanence of citizenship regardless of circumstances inherently challenge international standards and norms around the extent of diplomatic and consular protection of citizens abroad.Footnote 244 Limitation or outright restriction of consular access on this basis has also raised important questions of sovereignty, and the extent to which diplomatic concern over a detained dual national may impinge upon or interfere with the domain of sovereign affairs exclusive to another country.Footnote 245

The traditional approach to this question, grounded in the 1930 Convention on Certain Questions Related to the Conflict of Nationality Laws, was to limit the reach of consular protection to individuals who solely possessed the nationality of the protecting nation, or in the case of dual nationals, when the particular dispute did not involve the other State of nationality.Footnote 246It provided, in Article 4, that “[a] State may not afford diplomatic protection to one of its nationals against a State whose nationality such person also possesses.”Footnote 247 As alluded to earlier however, approaches towards nationality and the responsibility of a State towards its nationals have evolved considerably over the course of the last century, and so have the contours of the international law on the rights of dual nationals. The current practice is for the State of predominant nationality to exercise diplomatic protection, a practice which has now become well established and forms part of customary international law. Indeed, according to the International Law Commission, it dates back to at least the Mergé claim in 1955Footnote 248in which the Italian-United States Conciliation Commission found the predominant nationality rule applicable to diplomatic protection.Footnote 249 The rule was later bolstered by the practice in which over 50 subsequent cases of dual nationality were adjudicated. Therefore, the more current approach to look at the specific circumstances of a dual national to determine whether one or both countries of nationality have a right, or even a duty, to ensure their safety and act within the scope of their diplomatic sphere of concern, already complies with international law. To that end, the jurisprudence now affirms the right of States to extend consular protection to dual nationals, even against the other State of nationality, provided that the nationality of the State extending consular services is the “predominant” one amongst the two.Footnote 250

This inevitably raises the question of what “predominant” means in this context. The International Law Commission elucidates some of the factors germane to determining whether one nationality is predominant over the other, including amount of time spent in each country of nationality, employment and financial interests, family ties in each country, participation in social and public life, use of language, use of passport, taxation, bank accounts, social security insurance, visits to the other State of nationality, possession and use of the passport of the other State and military service.Footnote 251 The presence of one or more of these factors is not decisive, meaning that the weight attributable to them will vary. The determination therefore is a holistic one, taking into account several factors that may strengthen the individual’s ties towards one country over another.

At the same time, the multiplicity of factors that go into determining whether one nationality is predominant over the other also introduces a level of uncertainty into the legal landscape around this issue.Footnote 252Consular intervention on behalf of a dual national therefore does not become a matter of a right, enshrined in customary or conventional international law, but rather a careful evaluation of the circumstances of the individual case to arrive at a prudent, but not necessarily certain, judgement.Footnote 253 This may introduce an element of ambiguity into State efforts to contact, aid, represent and ultimately even negotiate for the release of dual nationals detained as political leverage. States dealing with such instances may become reticent to explore the full extent of their diplomatic options, wary of the potential legal gaps that they may fall into.

There is thus a pressing need to develop clear rules in international law for a right to consular access, in the wider context of the exercise of diplomatic protection, where a person is detained in the State of the less dominant nationality which asserts dominant rights over them. Many cases of arbitrary detention in state-to-state relations involve this scenario, leading to conflict between the countries of nationality and ambiguity of rights to consular access. The proliferation of individuals with multiple nationalities and country links has also posed questions as to whether basing access on predominant nationality is in need of elaboration, given the constraints on action it potentially creates, or if a broader right of interested States can be envisaged. Such States could include States of habitual residence of the wrongfully detained person or that person’s immediate family; the State that has an obligation under relevant international human rights norms to protect the rights of the wrongfully detained person, or any other State that has a good faith basis to argue that it has an affirmative right to protect the rights of the wrongfully detained person in particular. While wider changes are mooted, there may still be scope to develop more precise guidelines as to permissible actions within the existing frameworks before any wider doctrinal changes are needed.

Given the lack of precision on these elements, the international community could benefit greatly at this juncture from a full consideration of the issue by the International Law Commission. This could not only address the extent of diplomatic options open to sending nations when their nationals are detained by receiving nations, but also the effect, if any, that the exercise of diplomatic and consular protection has on State sovereignty, particularly in the context of hostage diplomacy. This could also involve broader work on the distinct complications created by incidents of dual national detainees, the measures for determining which country is entitled to extend access and assistance, and the scope of State responsibility or State capacity to afford diplomatic protection in these scenarios.

This is all the more important given that States are increasingly seen to hold not just a right to extend consular protection to their nationals abroad, but an active duty to do so. If States have an obligation to extend their full diplomatic efforts and consular assistance to citizens who find themselves in situations of deprivation of liberty, there is a need for a legal framework that explicitly outlines the situations in which State action is permitted, the extent of said action, and the limits of sovereignty within the context of dual national detention. Though it is recognised that unanimity on this interpretation has not yet been reached, it is incumbent upon States to act in favour of individuals holding their nationality, especially in cases where they have been subjected to serious violations of their human rights. Similarly, to treat dual nationals unequally by failing to assert and even exercise diplomatic protection in their favour even as against their country of birth or origin would leave them in a grey zone without any protection under international law. That individuals could be caught in a grey zone, without any legal protection, should be avoided.

The VCCR, by virtue of its almost universal acceptance in the international community, is a relevant source of protection.Footnote 254 Although Article 36(2) of the VCCR demands that the Convention must be exercised “in conformity with the laws and regulations of the receiving State,” this provision has not been interpreted in a way that would give a free pass to State parties to simply ignore the consular rights of dual nationals.Footnote 255 Indeed, the drafting history of the Convention suggests that consular access to dual nationals is protected under the VCCR, and it has been regularly cited by the UNWGAD in Opinions dealing with dual nationals.Footnote 256

Nonetheless, efforts to clarify the wording of the VCCR even further would be beneficial. One way to pursue this avenue while preserving the integrity of the VCCR would be through an Optional Protocol to the main treaty, or to convene a conference to this effect. Such an instrument could address the rights of dual nationals and the obligations of the receiving and sending States, especially in the context of arbitrary detention in state-to-state relations, without placing the main body of the treaty at risk through an amending process. Negotiations on an Optional Protocol would also present an opportunity to address the nature of consular rights as a right owed by States to one another or as a right accruing to and assertable by individuals, as it has been conceived of by other parties and forums.Footnote 257Further deliberations on this front could build on the work of the Special Rapporteur on extrajudicial, summary or arbitrary executions in the report on the application of the death penalty to foreign nationals and the provision of consular assistance by the home State.Footnote 258

Short of an Optional Protocol, an interpretative declaration on the scope of Article 36 of the VCCR could be considered. This could serve to clarify for all States parties that when dual nationals are implicated, protection should still be extended. However, while there may not be a legal obstacle to such a declaration, there still could be practical obstacles to its proclamation. The conference of the states parties to the VCCR will also have to be seized of the matter.

For its part, the UNWGAD has not shied away from reaffirming the rights of dual nationals to access consular assistance from their other State of nationality, and has refuted any justification for depriving such assistance on the grounds of non-recognition of dual nationality.Footnote 259 This serves as an important indicator for the direction of the customary international law on the issue, and precludes States that deny consular access to detainees on arbitrary grounds from relying on international condonation of the practice to do so. Nonetheless, according to its mandate, the UNWGAD is a Special Procedure Mechanism of the United Nations Human Rights Council.Footnote 260The Human Rights Council did not contemplate the body as an enforcement mechanism in and of itself, but rather as a means of redress for instances of arbitrary detention.Footnote 261 The UNWGAD at best then serves as a persuasive authority, and can reinforce, rather than spearhead, the full consular protection of dual nationals under international law.

Introducing clarity into these overlapping sources of authority in order to allow States and consular officials to act with determination, safe in the knowledge that they are doing so within the confines of the law, would therefore be a timely intervention. This could be achieved through variety of strategies, from supplying international bodies such as the International Law Commission with the mandate to further clarify the application of specific treaty provisions in these situations to codification through international instruments such as the recommended Optional Protocol to the VCCR, or to adopting an interpretative declaration. Even continued domestic practice, legislation and jurisprudence reinforcing the role of States in extending consular protection to dual nationals would help to shape the customary international law around this issue. These steps, in combination with the ongoing reinforcement of the consular rights of dual nationals by the UNWGAD in its jurisprudence, will hopefully help to address these gaps adequately.

3.3 Conclusions

3.4 Recommendations

Recommendation 3 – The United Nations Working Group on Arbitrary Detention should expressly include arbitrary detention in state-to-state relations in its work

The Panel recommends that the United Nations Working Group on Arbitrary Detention amend its list of five bases for a finding of arbitrary detention to include arbitrary detention in state-to-state relations and/or issue a deliberation on that practice.

Rationale: As the main body responsible for investigating cases of arbitrary detention, the United Nations Working Group on Arbitrary Detention regularly receives follow-up responses from many States implicated in past incidents of arbitrary detention in state-to-state relations. Since the three-year mandate of the body is scheduled for renewal before October 2025, this presents an opportune opening to suggest adding to the five categories and build consensus on issuing a specific deliberation with existing members of the Human Rights Council, potentially through Intersessional meetings.

Action on this front can also take the shape of an annual thematic report specifically on rising cases of arbitrary detention in state-to-state relations that cites this report as well as incorporates from other Special Rapporteur reports relevant to the issue. It could also opt for drafting a special country report on States that have been known to use the practice as a regular foreign policy tool based on past incidents rather than a physical country visit.

The United Nations Working Group on Arbitrary Detention could also leverage its quasi-judicial function and legal and moral persuasive authority to promote condemnation of arbitrary detention in state-to-state relations through norm reinforcement. This could include dedicating a particular year to activism around combatting the practice, publishing a statement from the United Nations Working Group on Arbitrary Detention chairperson on the issue, making greater use of the urgent action procedure in such cases and/or making concerted efforts to highlight victims of the practice within Opinions.

Recommendation 4 - States should strengthen the right to consular access for dual nationals

The Panel recommends that States strengthen the right to consular access where a person of dual nationality is detained in one of their States of nationality, and frame consular access as a human rights issue involving, inter alia, prohibition against arbitrary detention, freedom from torture, cruel, inhuman and degrading treatment, and the right to a fair trial, among others. To this end, the Panel recommends concluding an Optional Protocol to the Vienna Convention on Consular Relations regarding the consular rights of dual nationals.

Rationale: Many cases of arbitrary detention in state-to-state relations involve this scenario, leading to conflict between the countries of nationality and ambiguity of rights to consular access. Given the risks inherent in bringing the Vienna Convention on Consular Relations up for further discussion, a practical approach to addressing this issue would be to develop an Optional Protocol to the Vienna Convention on Consular Relations specifically centred on consular rights relating to dual or multi-nationals. Such a Protocol would secure an avenue to affirm the inclusion of dual nationals under the aegis of consular access and notification, reassert the obligations of the receiving State and emphasize deprivation of consular access in situations of arbitrary detention in state-to-state relations as a human right rather than diplomatic issue. Pursuing this plan of action would also create scope to discuss legal issues related to dual nationality and the notion of predominant nationality.

Recommendation 5 – The United Nations General Assembly’s Third Committee should adopt a resolution affirming State hostage taking as a violation of international human rights law

The Panel recommends that the Third Committee of the United Nations General Assembly negotiate and adopt a resolution on the use of State hostage taking as a violation of international human rights law.

Rationale: The United Nations General Assembly’s Third Committee addresses, among other issues, the promotion of human rights and related issues of a cultural and humanitarian character. Universal human rights instruments set out the liberty of persons as a fundamental human right, as also confirmed by many regional and other human rights instruments. Every person is entitled to such rights without distinction of any kind, including on the basis of nationality. State hostage-taking is always a grave violation of human rights of the victim. This practice can be regarded as a form of torture or other inhuman, cruel or degrading treatment or punishment, and may constitute a crime against humanity depending on the circumstances.

The Third Committee could, building on the Declaration on Arbitrary detention in state-to-state relations, condemn the practice of arbitrary detention in State hostage taking, expressing concern about the seeming increasing use of such practice as a tool of coercive diplomacy, and calling on States to refrain from such practices while taking steps to end any such detentions. The same resolution could also request the United Nations Secretary-General to address the issue in his biennial report on the challenges and good practices related to human rights in the administration of justice; and invite the relevant special procedures mandate holders of the United Nations Human Rights Council and treaty bodies to give special attention to arbitrary detention in state-to-state relations.

Recommendation 6 – States should use the universal periodic review to address arbitrary detention in state-to-state relations

The Panel recommends that States take action, individually or jointly, to use the Universal Periodic Review mechanism to raise concerns and make recommendations about the practice of arbitrary detention in state-to-state relations when a detaining State is under review.

Rationale: Under the Universal Periodic Review mechanism, the human rights records of all 193 United Nation member States are scrutinized by other States. It may be used by States to engage in an exchange with the State under review by posing questions, comments, and/or making recommendations in relation to the full gamut of its human rights obligations and practices, including its views and practices on State hostage-taking. The State being examined is expected to provide information on the steps it has taken to implement the recommendations made when it is next reviewed.

Recommendation 7 – The United Nations Human Rights Council should request relevant special rapporteurs to address arbitrary detention in state-to-state relations

The Panel recommends that the United Nations Human Rights Council request country‑specific Special Rapporteurs, where relevant, to address the issue of arbitrary detention in state-to-state relations and make recommendations to the detaining State related to the unlawfulness of the practice.

The Panel also encourages United Nations Human Rights Council thematic Special Rapporteurs to make use of joint statements and/or convene an expert meeting on the practice of arbitrary detention in state-to-state relations. Such a meeting could be organised in conjunction with the relevant country-specific Special Rapporteurs.

The Panel further recommends that the Council consider establishing a Special Rapporteur on Arbitrary Detention, whose mandate could include—and in any event would imply—dealing with the practice of arbitrary detention in state-to-state relations. Alternatively, an independent expert could be appointed to deal specifically with the practice of arbitrary detention in state-to-state relations, perhaps on a time-limited basis.

Rationale: The Human Rights Council appoints Special Procedures—individuals serving as Special Rapporteurs or independent experts, and five-member working groups —for thematic or country issues. Some of the mandates of the thematic Special Rapporteurs touch on aspects of the practice of arbitrary detention in state-to-state relations, including those of the Special Rapporteurs on the right to freedom of opinion and expression, on the independence of judges and lawyers, and on the right to reparation, as well as the Special Rapporteur on torture, who has already focused on hostage-taking, including where perpetrated by States, in her 2025 report.

Special Rapporteurs may issue joint public statements on issues of common interest, in which they analyse the law and make recommendations to remedy a situation. Several thematic Special Rapporteurs conduct thematic studies and convene expert consultations contributing to the development of international human rights standards. They could also be called on to act in individual cases of alleged violations and concerns of a broader, structural nature by sending communications to the States concerned.

Recommendation 8 – States parties to relevant human rights treaties should, as appropriate, use inter-state complaint procedures to address arbitrary detention in state-to-state relations

The Panel recommends that States parties to relevant human rights treaties make use of the State-to-State complaint procedure provided for in the treaties, or other options provided for in a treaty, where appropriate, to address cases of State hostage-taking.

Rationale: States parties to relevant treaties are often entitled to initiate inter-State complaints against other States or to engage in pacific means of dispute settlement with respect to compliance with human rights treaty obligations. States could also encourage the submission of individual complaints to a treaty body, alleging violations of the rights covered by the respective treaty, or follow treaty body deliberations in individual cases and the preparation of “general comments” to provide State views on the practice of arbitrary detention in state-to-state relations.

Recommendation 9 – Human rights treaty bodies should, as appropriate, address arbitrary detention in state-to-state relations

The Panel recommends that human rights treaty bodies, within their mandates, address the practice of State hostage-taking and, in so doing, promote the unity and coherence of international legal standards and avoid fragmentation.

Rationale: Human rights treaty bodies are charged with monitoring the implementation of the respective core international human rights treaties. The United Nations human rights treaty body system is made up of committees of independent experts, elected by a meeting of States parties and chosen in their personal capacity. The outcomes of treaty bodies could serve to raise awareness of the practice of arbitrary detention in state-to-state relations in a concerted manner and produce a variety of expert opinions on various violations involved.

Depending on their mandates, the activities undertaken by human rights treaty bodies may include receiving periodic reports from States parties; engaging in dialogue with, and issuing concluding observations on, a State’s compliance with its obligations under the relevant treaty; receiving and issuing findings with respect to individual complaints—submitted either by aggrieved individuals directly or by persons on their behalf; inter-State complaints where provided for and if the particular treaty’s jurisdictional and admissibility requirements are met; initiating, on their own initiative, inquiries if they receive reliable information containing well-founded indications of systematic violations of the relevant treaty by a State Party; issuing general comments or general recommendations, which are considered to be authoritative treaty body interpretations of the provisions of each of the instruments and serve as a means of facilitating respect for the respective treaty; holding days of general discussion or thematic debate; and taking early warning measures aimed at preventing existing situations from escalating into conflicts and urgent procedures to respond to problems requiring immediate attention to prevent or limit the scale or number of serious violations of a convention.

Chapter 4

4. Arbitrary detention in state-to-state relations and international criminal law

4.1. International criminalization of hostage-taking

Hostage-taking was first criminalized under the law of armed conflict. The Geneva Conventions of 1949 and their Additional Protocols of 1977 contain a prohibition of hostage-taking applicable in all types of armed conflict, both international and non-international, including situations of occupation.Footnote 262 Over time, this prohibition has gained status as customary international humanitarian law.Footnote 263Hostage-taking is also a crime giving rise to individual criminal responsibility and State responsibility under the grave breaches regime of the Fourth Geneva Convention,Footnote 264 even though it is not referenced in the grave breaches provisions of the Third Convention. The Rome Statute criminalizes hostage-taking in both international and non-international armed conflict.Footnote 265 Hostage-taking has appeared as a war crime also in the Statutes of other international criminal tribunals.Footnote 266

Footnote 267 At the same time, the Convention’s objective was to achieve a comprehensive criminalization of hostage-taking, whether in times of peace or in armed conflict, by filling in the gaps that existed in this regard in the law of armed conflict. This objective is clear from Article 12 of the ICATH, which excludes from the Convention’s scope of application situations of hostage-taking during armed conflict but only where the State party has an obligation pursuant to the Geneva Conventions of 1949 or their Additional Protocols to prosecute or extradite the alleged offender.Footnote 268

4.1.1. Definition of hostage-taking

The definition of the crime of hostage-taking is contained in Article 1 of the 1979 Convention. It reads as follows:

This definition captures the essential elements of arbitrary detention in state-to-state relations: detention, threat and intention to compel a State. Its notable feature is that it covers acts of hostage-taking broadly regardless of their purpose, or the identity of the perpetrator, hostage or the “third party”. The term “any act” is similarly generic and the phrase “seizes or detains” contains no specification regarding how the detention is effectuated. The element of “compelling” has been understood to indicate “that the hostage-taker is bargaining for the health, safety and release of the hostage in exchange for the act of forbearance.”Footnote 270 At the same time, as is clear from the wording of the article, there is no requirement that an explicit demand has to be presented to the “third party”.Footnote 271Rather, as is often the case in arbitrary detention in state-to-state relations, the element of pressure, or leverage, is clear from the overall context. Whether or not the “third party” complies with the demand is also not relevant to the definition of the offence.

While the Convention does not expressly require that the hostage (“another person”) is a foreign national, it only applies to acts of hostage-taking, which have an international element and excludes situations, in which the offence is committed within a single State, the hostage and the alleged offender are nationals of that State and the alleged offender is found in its territory.Footnote 272This exclusion clause means that the notion of hostage-taking would not apply to arbitrary detention of political opponents who are nationals of the detaining State even when the intention to compel a third party is present. In case of hostages who are dual nationals of the detaining State and another State, however, it can be argued that the other nationality constitutes the necessary international dimension, in particular, if this other State of nationality is being compelled.Footnote 273

The definition of the act of hostage-taking provided in Article 1 of ICATH enjoys authority also beyond the scope of application of the Convention. The established status of the ICATH definition of offence is notably shown by the reliance on it in proceedings concerning hostage-taking as a war crime. As the relevant instruments – the Geneva Conventions of 1949, their Additional Protocols, and the Rome Statute – do not define the crime of hostage-taking, use has been made of the ICATH definition, which has provided an authoritative reference. The Elements of Crimes of the International Criminal Court reproduce the ICATH definition with a minor addition in the definition of the taking of hostages as a war crime.Footnote 274 Other international criminal tribunals have either referred to the International Criminal Court Elements of Crimes,Footnote 275 or made direct use of the ICATH definition for the purpose of interpreting the war crime of hostage-taking.Footnote 276 This consistent practice reflects the general acceptance of the ICATH definition of offence and means that there is a clear understanding of the conduct that constitutes hostage-taking.

The Hostages Convention has been widely but not universally ratified.Footnote 277 At the same time, all States are bound by the corresponding prohibition of hostage-taking in the law of armed conflict,Footnote 278which constitutes customary international law.Footnote 279 The UN General Assembly has reaffirmed that “hostage-taking wherever and by whomever committed, is a serious crime aimed at the destruction of human rights and is, under any circumstances, unjustifiable.”Footnote 280 Similarly emphasizing the universal application of certain fundamental prohibitions, the International Court of Justice has stated that the rules in Common Article 3 of the Geneva Conventions – which include the prohibition of hostage-taking – reflect “elementary considerations of humanity” which are “even more exacting in peace than in war.”Footnote 281 Taking into account the established status of the ICATH definition, it may be argued that general international law prohibits hostage-taking, even if the more specific provisions of the ICATH have not yet reached customary status.

4.1.2. Applicability of the ICATH definition of offence to State officials

An essential feature of arbitrary detention in state-to-state relations as a means of coercing another State is that it is disguised as lawful State action. This feature also constitutes a particular challenge for the efforts to legally define and sanction such wrongful practice. While the Hostages Convention was primarily negotiated in the latter half of the 1970s as a response to transboundary criminal activity by private actors Footnote 282and is still conceived as being mainly applicable to crimes by non-State actors, the broad definition of an act of hostage-taking allows its use in other contexts as well.Footnote 283 The application of this definition to arbitrary detention with the intention to put pressure on another State is facilitated, in particular, by two considerations. The first of these concerns the personal scope of the definition of the offence and the second the central role given to the mental element of the offence.

A. Personal scope of the offence

By referring to the perpetrator as “any person”, Article 1 of the ICATH defines a broad personal scope, which is consistent with the purpose of the Convention of creating a comprehensive prohibition of hostage-taking in all circumstances.Footnote 284 At the same time, it is aligned with a number of other criminal law conventions using the same term. The meaning of the term “any person” was recently commented on by the International Court of Justice in respect of the International Convention for the Suppression of the Financing of Terrorism (ICSFT) in the Financing of Terrorism and CERD case between Ukraine and the Russian Federation.Footnote 285 The Russian Federation, as the respondent, held that the term “any person” in the definition of the offence of terrorism financing had to be interpreted as meaning “private persons only” and excluding State officials.Footnote 286 According to Ukraine, the correct interpretation of the term did not distinguish between private individuals and public or government officials.Footnote 287

In its conclusions regarding the scope ratione personae of the offence of terrorism financing, the Court referred to the ordinary meaning of the term “any person” pointing out that it covers individuals in a comprehensive manner. As the Convention on Terrorism Financing contains no exclusion of any category of persons, it applies “both to persons who are acting in a private capacity and to those who are State agents.”Footnote 288 Accordingly, the Convention on Terrorism Financing requires States parties “to take appropriate measures and to co-operate in the prevention and suppression of offences of financing acts of terrorism committed by whichever person.”Footnote 289

Like the Convention on Terrorism Financing, the ICATH does not contain any provision that would exclude a certain category of persons from its scope. As pointed out above, Article 12 only seeks to ensure that any act of hostage-taking is investigated and prosecuted.Footnote 290This provision is different in nature from the exclusion clause that has become common in more recent counter-terrorism conventions and which aims at broadly excluding certain categories of State officials from the scope of the respective instruments.Footnote 291 The Court’s conclusion concerning the financing of terrorism can therefore be applied to the definition of an act of hostage-taking as defined in ICATH, which thus has to be interpreted to cover State officials.Footnote 292 This interpretation is also consistent with the travaux preparatoires of the Convention.Footnote 293 It may be added that in case of hostage-taking taking place in international armed conflict, the perpetrator would normally be a State official rather than a private individual.

B. Mental element of the offence

As pointed out above, the actus reus of the offence of hostage-taking (“seizes or detains and threatens to kill, to injure or to continue to detain another person”) is generic and can be seen to roughly correspond to the treatment of an individual in arbitrary detention, whether or not the intention is to put pressure on another State. The inter-State aspect of the phenomenon, on its part, relies primarily on the mens rea of the offence, namely the specific intent to compel a State or another third party “to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage.” It is also because of the specific intent that the term “hostage-taking” cannot in a general manner be applied to any arbitrary detention. A commentary on hostage-taking in the context of armed conflict points out that it is the specific intent that “characterizes hostage-taking and distinguishes it from the deprivation of someone’s liberty as an administrative or judicial measure.”Footnote 294

The Special Court for Sierra Leone has considered in more detail the role and relevance of the specific intent in the offence of hostage-taking as defined in the ICATH. In the Sesay case, the Court notably pointed out that hostage-taking may begin as a judicial or administrative measure. According to the Appeals Chamber, “[a]s a matter of law, the requisite intent may be present at the moment the individual is first detained or may be formed at some time thereafter while the persons were held.”Footnote 295This “could not be otherwise for it would mean that the crime of hostage-taking could never arise out of an initially lawful detention.”Footnote 296 In other words, the fact that a person is detained by a law enforcement officer, under the guise of law, does not as such prevent the characterization of the detention as hostage-taking, provided that the intent to compel is present either from the beginning or crystallizes later. In addition, framed as hostage-taking, arbitrary detention in state-to-state relations may cover instances in which the detained person has violated some of the territorial State’s laws or regulations.Footnote 297

In conclusion, the ICATH definition is applicable to acts of hostage-taking that fulfil the criteria set forth in the 1979 Convention also when committed by State officials, including when hostage-taking begins as a judicial or administrative measure. In line with this understanding, detention of individuals by State officials with the intention to use them for bargaining purposes has been characterized as “hostage-taking” both by a national courtFootnote 298and “hostages” by the UN Commission of Human Rights.Footnote 299

4.1.3. Applicability of the ICATH definition of offence to State action

A. State responsibility for international crimes

The applicability of the ICATH definition of the offence to acts of State officials does not as such give rise to State responsibility for acts of hostage-taking and requires further examination of the obligations that the Convention sets forth for States parties. In general, State responsibility arises if two criteria are fulfilled: the act or omission (a) is attributable to the State under international law, and (b) constitutes a breach of an international obligation of the State.Footnote 300 In other words, attribution alone is not sufficient if there is no violation of an obligation binding on the State. The ICATH is a typical crime-suppression convention, which requires States parties to establish in their domestic legislation as criminal offences the various forms of conduct it prohibits.Footnote 301 The question is thus whether States parties to the ICATH also have an obligation not to commit hostage-taking, or not to pursue a policy of hostage-taking.

The International Court of Justice has in its recent jurisprudence shed light on the complex question of State involvement in criminal activities with regard to two criminal law conventions, the 1948 Convention on the Prevention and Punishment of GenocideFootnote 302 (Genocide Convention) and the already mentioned International Convention on the suppression of Acts of Financing of Terrorism.Footnote 303In its 2007 judgment on Application of the Convention on the Prevention and Punishment of the Crime of Genocide, the Court considered whether the parties to the Genocide Convention are “also under an obligation, by virtue of the Convention, not to commit genocide themselves” and concluded that such an obligation was necessarily implied by Article 1 of the Convention, under which States parties are bound to prevent genocide as a crime under international law.Footnote 304 According to the Court,

On the basis of this reasoning, the Court affirmed that:

The conclusion that the Genocide Convention would impose on States an implied obligation of not committing genocide, based on the obligation to prevent, raised at the time objections by some judgesFootnote 307 and in part of the academic commentary.Footnote 308 The focus on prevention can be explained by the requirement that for State responsibility to arise, there must be a breach of an obligation binding on the State. The Genocide Convention, like all crime-suppression conventions, addresses crimes committed by individuals. The obligations to prevent and punish are nevertheless addressed to States parties; hence the need to construe the obligation of not committing genocide on the obligation to prevent. The Court itself saw also reason to underline the particular nature of the Genocide Convention, given that the obligation to prevent is a standard element in most if not all criminal law conventions. While the quoted statements are clear, the Court pointed out that the “content of the duty to prevent varies from one instrument to another, according to the wording of the relevant provisions, and depending on the nature of the acts to be prevented.”Footnote 309The above analysis therefore only concerned the Genocide Convention, and the Court cautioned against applying it more generally.Footnote 310

In addition to the obligation of prevention, two other grounds for State responsibility are mentioned in the first cited passage: the purpose of the 1948 Genocide Convention and the reference in the Convention to genocide as a crime under international law. Similarly to the obligation of prevention, reference to purpose is not specific to the Genocide Convention. As Judge ad hoc Pocar noted in the context of the Financing of Terrorism and CERD case, “[a] convention imposing on States parties the obligation to criminalize in their legislation a specific individual conduct, and to prevent and suppress it, inevitably presupposes that the States accepting the convention would not engage themselves in that conduct.”Footnote 311 It may be argued that State involvement in any international crime it is legally bound to prevent and suppress amounts to abuse of State authority and has the effect of undermining the object and purpose of the relevant crime-suppression convention. For instance, there is little question that using State machinery to commit hostage-taking undermines the object and purpose of the Hostages Convention and the system of international cooperation it establishes.

The remaining ground, acknowledgement of the status of genocide as a crime under international law, sets the Genocide Convention clearly apart from “ordinary” crime-suppression conventions. Genocide is a crime which has from its inception been closely related to State policy,Footnote 312 and States have a customary obligation not to commit genocide.Footnote 313 The 1948 Genocide Convention also contains an explicit reference to State responsibility for genocide.Footnote 314In the doctrine, a distinction is often drawn between a limited number of crimes under international law – such as aggression, genocide, and crimes against humanity – on the one hand, and “transnational crimes” on the other. This distinction reflects two conceptions of international criminal law, the first one limited to a small number of international “core crimes” (international criminal law sensu stricto) and a broader category (international criminal law sensu largo) comprising all international criminalizations. While both categories are open-ended,Footnote 315 it is indisputable that the crimes under the jurisdiction of international criminal tribunals, including genocide, are international crimes sensu stricto. The characteristics of these crimes include most notably individual criminal responsibility under international law, independently from criminalization at the national level.

From the point of view of international responsibility, an important characteristic of the narrow category of crimes under international law is that State responsibility is concurrent to individual criminal responsibility, i.e. the two types of international responsibility arise from the violation of the same primary rule.Footnote 316 Such dual responsibility is also well-established under international law for war crimes.Footnote 317While even the Genocide Convention is a crime-suppression convention, which requires States parties to establish in their domestic legislation as criminal offences the conduct prohibited by Convention, genocide has an additional dimension as a crime under international law.

B. Transnational crimes

The subsequent judgements of the International Court of Justice in the Financing of Terrorism and CERD case confirm the distinction between “crimes under international law” on the one hand and other international (or “transnational”) crimes, on the other, in making it clear that the particular logic that applies to the Genocide Convention does not apply to the ICSFT.

In the 2019 judgment in the Financing of Terrorism and CERD case, the Court stated the following:

The same understanding was confirmed in a subsequent judgment in 2024:

These judgments confirm that the commission by a State official of an offence described in Article 2 of the Terrorism Financing Convention does not in itself engage the responsibility of the State concerned under this Convention. Furthermore, since there is no corresponding obligation on the State, the Convention does not apply to State policy to pursue terrorist financing. As the Court’s conclusions in this case only concern the scope of the ICSFT as a treaty instrument, however, this outcome does not indicate that such State policy would be lawful under international law.Footnote 320 State sponsoring, including financing of terrorist acts, is a well-known phenomenon that has been addressed in the UN Security Council’s Resolution 1373(2001) as well as, more broadly, in the Friendly Relations Declaration of the UN General Assembly, which refers to the duty of every State “to refrain from organizing, instigating, assisting or participating in (…) terrorist acts in another State (…) when the acts (…) involve a threat or use of force.”Footnote 321 At the same time, the international responsibility of a State party to the ICSFT would be engaged by its failure to comply with its own obligations related to the offence of terrorism financing. As the Court points out, “all States parties to the ICSFT are under an obligation to take appropriate measures and to co-operate in the prevention and suppression of offences of financing acts of terrorism committed by whichever person. This includes actions taken to prevent terrorism financing by State officials.”Footnote 322

What does this jurisprudence mean for the crime of hostage-taking? The offence of terrorism financing is different from hostage-taking in that it is a derivative offence consisting of transfer of funds with the intention that they be used to commit terrorist acts.Footnote 323It is also a new crime and exclusively a “treaty crime” unlike hostage-taking, which has an established customary status as a war crime. As a treaty instrument, the ICATH nevertheless belongs to the same category as the Terrorism Financing Convention. In light of the Financing of Terrorism and CERD judgments, the following observations can be made regarding the Hostages Convention:

4.1.4. Obligations on States in the ICATH

As pointed out above, the 1979 Hostages Convention is a criminal law convention, which requires States parties to establish in their domestic legislation as criminal offences the conduct prohibited by the Convention. In line with other similar instruments, the ICATH also sets forth an aut dedere aut judicare obligation to either extradite or prosecute the alleged offender, intended to ensure that those allegedly committing hostage-taking are brought to justice.Footnote 325In addition, States parties to the Convention have an obligation to cooperate in the prevention of hostage-taking, including by “taking all practicable measures to prevent preparations in their respective territories for the commission of those offences within or outside their territories”Footnote 326 as well as more specific obligations concerning the safety, security and release of the hostage.Footnote 327

Most of these obligations are standard provisions in criminal law conventions with additional obligations reflecting the particular nature of hostage-taking and providing tools to effectively fulfill the Convention’s purpose. For instance, a similarly formulated article on cooperation to prevent is contained both in the Convention on the Protection of DiplomatsFootnote 328 and the Convention against the Financing of Terrorism.Footnote 329Both the International Law Commission Commentary to the draft articles that provided the basis for the former Convention,Footnote 330 and the International Court of Justice in the Financing of Terrorism and CERD caseFootnote 331agree that the article gives the territorial State a wide discretion regarding the measures it will take.

Moreover, the obligation to take measures to ensure the release of the hostage is expressly limited to measures the territorial State considers appropriate.Footnote 332 In spite of this margin of appreciation, the territorial State does not have the option of not taking any measures, and the measures it takes have to be “generally envisaged” ones.Footnote 333 As far as cooperation in prevention is concerned, the Court has interpreted the term “all practicable measures” to mean “all reasonable and feasible measures that a State may take to prevent the commission” of the relevant crime.Footnote 334 Its action or inaction must also be assessed on the basis of the general requirement of good faith in the implementation of international obligations.

As these obligations are addressed to States parties of the Convention, their violation necessarily engages the international responsibility of the violating State. A State Party may thus be found responsible, if not for the commission of an act of hostage-taking, then for the omission to take appropriate measures for preventing and suppressing such activities. It is clear from the Financing of Terrorism and CERD case that these obligations are intact also when the perpetrators of the relevant offences are State officials, and when they engage in the criminal conduct in the course of their duties. This may mean, as Judge Donoghue pointed out in the Financing of Terrorism and CERD case, that the consequences for States parties would be “substantively similar” to consequences of State policy of terrorism financing.Footnote 335

The possibility of establishing State responsibility under the ICATH is nevertheless limited in different ways. Most notably, the Convention contains a provision that allows States parties to opt out from the dispute settlement regime it establishes.Footnote 336The States that have made use of this possibility are not bound by the relevant provision,Footnote 337 and are protected by the principle that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent.Footnote 338 While this opt-out provision makes the establishment and implementation of State responsibility more difficult, there is reason to underline that it does not affect the wrongful nature of State hostage-taking, nor prejudice the rights of the victims.

As pointed out above, the comprehensive prohibition of hostage-taking the ICATH seeks to establish presupposes good faith cooperation between States. A State involved in the arbitrary use of detention for foreign policy purposes, or State hostage-taking, quite obviously acts in bad faith. It is also unlikely that such a State would honour its obligations under the system of judicial cooperation the Convention establishes. For instance, while the jurisdictional bases defined in the Convention provide for the mandatory jurisdiction of both the State of nationality of the hostage, and the State that is being compelled,Footnote 339 it can be doubted that the State whose officials allegedly commit hostage-taking would cooperate either regarding their extradition or waiver of their immunity.

Additionally, it can be expected that the State responsible for arbitrary detention in state-to-state relations would disagree with the qualification of its practice as hostage-taking and thus the applicability of the 1979 Convention. A wider international recognition of the practice as hostage-taking within the meaning of the 1979 Convention would therefore be required. In this sense, the analysis above supports the more general conclusion that arbitrary detention in state-to-state relations is not a problem that could easily be solved bilaterally between the target State and the detaining State.

A further limitation is that the ICATH, as an ordinary criminal law convention, addresses crimes committed by individuals, and is built on the assumption that incidents of hostage-taking are isolated cases. In other words, the Convention as such is unable to deal with situations characterized by general State involvement in the criminal activity, resulting in a pattern of similar cases. To complement the analysis, there is reason to consider other crimes of relevance to arbitrary detention in state-to-state relations.

4.2. Torture and other cruel, inhuman or degrading treatment or punishment

Torture has a recognized connection to detention. “Victims of torture are invariably persons who are being confined or detained,”Footnote 340 and arbitrary detention increases the risk of torture or other cruel, inhuman and degrading treatment.Footnote 341As the UN Special Rapporteur on Torture has pointed out, the distinguishing feature of torture is the “powerlessness” of the victim: “A situation of powerlessness arises when one person exercises total power over another, classically in detention situations, where the detainee cannot escape or defend him/herself.”Footnote 342Persons arbitrarily detained for leverage are all the more powerless, as their fate depends on external developments including geopolitical tensions and negotiations between the concerned States, and not on anything they can do themselves.

Victims of arbitrary detention in state-to-state relations are particularly vulnerable to torture.Footnote 343It can moreover be argued that their treatment as such – detention without a proper legal basis, often in prolonged solitary confinement and without visitation rights – amounts to torture. Reference can be made in this regard to the latest report of the UN Special Rapporteur on Torture, which focuses on hostage-taking, including when perpetrated by States, and in which she concludes that “hostage-taking inevitably entails forms of physical and mental torture, or other cruel, inhuman or degrading treatment.”Footnote 344 Victims of arbitrary detention in inter-State relations are subjected to baseless or disproportional sentences,Footnote 345 which adds to their anguish compared to detainees in general. In State-perpetrated hostage-taking, as the Special Rapporteur points out, the hostage first tends to regard his or her detention as a mistake, and expects that it will soon be corrected. When this does not happen, “the sense of injustice and disbelief of the hostage is compounded by the broken expectation that the law will be adhered to,” with a resulting sense of confusion and mental torment.Footnote 346

The Convention against Torture defines torture as:

The definition covers the intentional infliction of both physical and mental pain. “Psychological torture” has been interpreted to include “all methods, techniques and circumstances which are intended or designed to purposefully inflict severe mental pain or suffering without using the conduit of severe physical pain or suffering.”Footnote 348 A typical hostage-taking incident, according to a Human Right Council’s Advisory Committee, “generally threatens not only the physical but also the psychological well-being and integrity of the hostage throughout and after the duration of the incident.”Footnote 349 Commenting on the typical cognitive, emotional and social reactions of adults taken in hostage, the UN Special Rapporteur on Torture concludes that these correspond to the symptoms experienced by survivors of torture.Footnote 350 While compelling a third party in order to gain advantage or concession, which is the essential element of hostage-taking, does not appear among purposes of torture in the above definition, its wording (“such purposes as”) makes it clear that the list is not exhaustive. The residual category of “any reason based on discrimination of any kind” is moreover broad enough to cover arbitrary detention of a foreign national for obtaining leverage from his or her government.

As defined in the Convention against Torture, torture is always committed by State officials, or other persons acting in an official capacity, or at their instigation or with their consent or acquiescence.Footnote 351According to Article 1, the definition “does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”Footnote 352The reference to “lawful sanctions” is to be understood to mean that any sanction must not only be based on national law but also be consistent with the requirements of international law. In a case of conflict, international law takes precedence. It is a general rule that a State cannot invoke its national law to justify violation of international rules.Footnote 353

In addition to torture, the Convention against Torture prohibits “other acts of cruel, inhuman or degrading treatment or punishment.” While these acts have not been defined in the Convention, the requirement of involvement of public officials is common to both notions. A notable difference concerns the absolute nature of the prohibition of torture. While torture is prohibited in all circumstances, the circumstances in which the “other acts” take place are decisive for determining whether they fall under the Convention’s prohibition.Footnote 354 Detention stands out also in this regard because of the direct control of the authorities over the detainee. It is always required, and normally possible to assess, that the acts of law enforcement authorities are proportionate and necessary for a lawful purpose. However, in a situation of detention, “no such test of proportionality applies” and “any form of physical or mental pressure or coercion constitutes at least cruel, inhuman or degrading treatment.”Footnote 355

Framing arbitrary detention in state-to-state relations as torture, or other cruel, inhuman or degrading treatment or punishment, when such terms are applicable, strengthens the opportunities for ensuring the accountability of the perpetrators. The prohibition of torture is well-established in international law. Contained in several international treaties, most importantly in the Convention against Torture, the prohibition also has a customary statusFootnote 356 and is moreover recognized as a peremptory norm of general international law (jus cogens).Footnote 357 The prohibition thus binds all States irrespective of their treaty obligations, and significantly, States have an obligation not to recognize arbitrary detention in state-to-state relations as lawful, or as an internal affair of the detaining State.Footnote 358

A State Party to the Convention against Torture has the obligation to establish its jurisdiction over acts of torture, including when the alleged offender is present in a territory under its jurisdiction, and will not be extradited to another State Party in accordance with the Convention.Footnote 359 In addition, all States have the right to right to establish and exercise universal jurisdiction over acts of torture.Footnote 360 As an international crime, torture also belongs to the limited category of crimes, for which State officials may be prosecuted in foreign criminal jurisdictions without benefitting from the immunity normally attached to all official acts.Footnote 361 States parties to the Optional Protocol on Torture, furthermore, are bound by its provisions regarding additional measures to prevent torture.Footnote 362

4.3. Crimes against humanity

Given that the State policy element, which is not addressed in the Hostages Convention, is integral to all the established core crimes, there is also reason to ask whether arbitrary detention in state-to-state relations could under certain circumstances qualify as a crime against humanity.Footnote 363 This characterization could be appropriate in situations in which the practice of arbitrary detention used as a tool to put pressure on another State constitutes, or is part of, a widespread or systematic attack against a civilian population.

Hostage-taking does not make part of the prohibited acts in the definition of crimes against humanity either in the Rome StatuteFootnote 364 or in the International Law Commission’s Articles on Crimes against Humanity.Footnote 365 At the same time, some of the prohibited acts may be applicable to arbitrary detention in state-to-state relations.Footnote 366Ferstman and Sharpe suggest that this would be the case for “imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law,”Footnote 367 “torture”Footnote 368and “persecution.”Footnote 369In addition, reference can be made to “enforced disappearance of persons”Footnote 370 and “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”Footnote 371

Any of the prohibited acts amounts to a crime against humanity only when committed “as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”Footnote 372 An “attack directed against any civilian population” has further been defined as “a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organisational policy to commit such attack.”Footnote 373This contextual requirement is an essential part of the definition of crimes against humanity.

The meaning of this requirement has been clarified in the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court. For instance, an attack “may be widespread due to the cumulative effect of multiple inhumane acts or the result of a single inhumane act of great magnitude.”Footnote 374 The alternative requirement that the attack is systematic refers to “the organised nature of the acts of violence and improbability of their random occurrence.” More specifically, it has been deemed to require “high levels of organisation and patterns of conduct or recurrence of violence.”Footnote 375

According to the ICTY, the phrase “directed against” requires that civilians be the intended primary target of the attack, rather than incidental victims.Footnote 376The word “any” indicates that “civilian population” is to have a broad definition and should be interpreted broadly.Footnote 377An attack can be committed against any civilians, “regardless of their nationality, ethnicity or other distinguishing feature,”Footnote 378 and can be committed against either nationals or foreigners.Footnote 379Finally, “population” does not mean the entire population of a given geographical location.Footnote 380 Rather, “the term implies the collective nature of the crime as an attack upon multiple victims.”Footnote 381

Regarding the definition of an attack against a civilian population, it has been clarified that the phrase “a course of conduct involving the multiple commission of acts” may but does not have to constitute a military attack.Footnote 382The requirement of “State or organisational policy” refers to a deliberate attempt to target a civilian populationFootnote 383 and “requires that the acts be ‘linked’ to a State or organisation” while excluding “spontaneous or isolated acts of violence.”Footnote 384 At the same time, “a policy need not be formally adopted”Footnote 385and “proof of a particular rationale or motive is not required.”Footnote 386

The required policy element is almost by definition present in arbitrary detention in state-to-state relations given that the practice relies on the use of the State machinery. It also seems to be systematic in the sense of being organised in nature, rather than a random phenomenon. The nature of State policy is also evident from the intention to compel another State and to seek advantage from it. At least in certain circumstances, the practice also fulfills the criteria of “high levels of organisation and patterns of conduct or recurrence of violence.” While the hostages are detained individually, the conditions of their detention and treatment often follow a clear pattern.Footnote 387

A further question concerns whether the practice can be called widespread. This question is also relevant for the characterization of the practice as an attack against a civilian population. Focusing on the situation in Iran, Ferstman and Sharpe point out that the number of 66 victims arbitrarily detained over a period of more than ten years may justify calling the practice as “widespread” given that the victims come from multiple States and their families also are victimized.Footnote 388In addition, it can be pointed out that foreign and dual nationals are often targeted in the context of a broader attack against a civilian population and their detention has a clear connection to such a broader attack.

Reference can be made in this regard to the findings of the Independent International Fact-finding mission on the Islamic Republic of Iran mandated by the UN Human Rights Council.Footnote 389According to the Mission’s report, foreign nationals arbitrarily arrested, detained, and prosecuted in the context of the “Woman, Life, Freedom” protests in Iran “appear to have been targeted based on their nationality.”Footnote 390 The report further notes that “foreign/dual nationals who were arrested during the protests are likely to have been unjustly used to blame foreign involvement in the protests or for other purposes in the context of the so-called hostage diplomacy. In this context, the Mission is particularly concerned about the indication of detention and threats to continue to detain foreign/dual nationals to compel States to a course of action as an implicit or explicit condition for the release.”Footnote 391

Where arbitrary detention in state-to-state relations fulfills the criteria of crimes against humanity, the door is opened for implementation of individual criminal responsibility at the national level on the basis of universal jurisdiction or at the international level by the International Criminal Court or another international criminal tribunal with jurisdiction.

4.4. Conclusions

4.5 Recommendations

Recommendation 10 – All forms of hostage-taking should be condemned

The Panel recommends that the international community, at both the State and international organisation level, condemn all forms of hostage-taking, including when perpetrated by States.

Rationale: A wider international recognition of arbitrary detention in state-to-state relations as hostage-taking within the meaning of 1979 Hostages Convention is required. In particular, it is important to reduce the air of legitimacy surrounding the practice of arbitrary detention in state-to-state relations by highlighting that the Convention is applicable to acts of hostage-taking by State officials. The Panel recalls that the Special Rapporteur on Torture, in her report on hostage-taking, also states that “the international community must condemn all forms of hostage-taking” and requires that States, “[i]n particular, recognize that arbitrary detention for leverage is hostage-taking.”Footnote 392

Recommendation 11 – The United Nations General Assembly should adopt a resolution on State hostage-taking

The Panel recommends that the United Nations General Assembly adopt a resolution reiterating its earlier statement that hostage-taking is unjustifiable under any circumstances and specifying that the same applies to hostage-taking as State policy. States should refer to Resolution 61/172 in other resolutions and texts to highlight its importance and relevance in current conditions.

Rationale: A General Assembly Resolution, even though non-binding per se, can be influential. Such a resolution may crystallize existing obligations or serve as a precursor to binding instruments. As for adding references to the resolution, States may do so in many relevant contexts, including the work of the Human Rights Council and the Third and Sixth Committees of the United Nations General Assembly.

Recommendation 12 – States parties to the Hostages Convention should seek to strengthen implementation

The Panel Recommends that States parties to the 1979 Hostages Convention consider opening a process of consultation to see how they can further the implementation of the Convention, respond to particular dilemmas in its application, and facilitate their mutual cooperation.

Rationale: In the Panel’s assessment, the most obvious problem regarding the Hostages Convention in the context of State hostage-taking is the abuse of State power contrary to the object and purpose of the Convention. The Panel therefore recommends establishing a forum for States parties to cooperate in strengthening the implementation of the provisions of the Convention, in particular those regarding prevention and cooperation, in situations of State hostage-taking. States parties could enter into a subsequent agreement regarding the interpretation or application of the relevant provisions of the Hostages Convention. Such consultations could, for instance, consider clarifying that all persons who contribute to State hostage-taking with the aim of furthering its unlawful purposes are criminally responsible under the convention. Modern formulations of individual criminal responsibility encompass a broad range of acts that contribute to a crime committed by a plurality of persons.Footnote 393

Recommendation 13 – States parties should adopt an optional protocol to the Hostages Convention to establish a special fund for victims

The Panel recommends that States parties to the 1979 Hostages Convention consider adoption of an optional protocol to the convention providing for the establishment of a special fund to assist victims of State hostage-taking.

Rationale: Detainees report to the Panel that one of their foremost concerns is for the welfare of family members and children affected by the wrongful detention. Similar to the Special Fund established under the Optional Protocol to the Convention against Torture,Footnote 394 a special fund related to wrongful detentions in State-to-State relations established within the framework of the United Nations General Assembly could provide assistance to victims and their families, in addition to outreach efforts, educational efforts, support to State institutions, and a wide range of projects dedicated to supporting victims and eradicating the recurrent practice of arbitrary detentions employed by States seeking to gain diplomatic leverage over other States.

The optional protocol could be formulated along the lines of Article 26 of the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. Article 26 of the Optional Protocol to the Convention against Torture provides as follows:

  1. A Special Fund shall be set up in accordance with the relevant procedures of the General Assembly, to be administered in accordance with the financial regulations and rules of the United Nations, to help finance the implementation of the recommendations made by the Subcommittee on Prevention after a visit to a State Party, as well as education programmes of the national preventive mechanisms.
  2. The Special Fund may be financed through voluntary contributions made by Governments, intergovernmental and non-governmental organisations and other private or public entities.

Recommendation 14 – States parties should use the 1984 Torture Convention in the context of arbitrary detention in state-to-state relations

The Panel recommends that States parties use the mechanisms and procedures provided under the Convention against Torture and its Optional Protocol to address situations of arbitrary detention in state-to-state relations.

Rationale: Victims of arbitrary detention in state-to-state relations, or State hostage-taking, are particularly vulnerable to torture. This practice may also as such amount to torture or other acts of cruel, inhuman and degrading treatment or punishment. The Convention against Torture and its Optional Protocol provide procedures, such as the inquiry and complaints procedure of the Optional Protocol to the Convention against Torture, that can be used to make the plight of the victims of State hostage-taking more visible and to contribute to ensuring the accountability of the perpetrators.

Recommendation 15 – States should consider criminalizing hostage-taking as a crime against humanity in the future convention

The Panel recommends that States consider adding hostage-taking, as understood in the 1979 Hostages Convention, as an underlying act to the definition of crimes against humanity in the upcoming United Nations General Assembly negotiations of a Convention on the Prevention and Punishment of Crimes against Humanity.

Rationale: As recommended by the International Law Commission, and decided by the United Nations General Assembly in December 2024, States will begin negotiations on a legally binding instrument on the Prevention and Punishment of Crimes against Humanity in 2026, with a view to convening a diplomatic conference in 2028. While the threshold for crimes against humanity is high, there are situations, in which arbitrary detention used as a tool to put pressure on another State constitutes, or is part of, a widespread or systematic attack against a civilian population.

The Panel notes that several already recognized crimes against humanity proscribe certain conduct of similar gravity, for instance, Article 7(1) of the Rome Statute prohibits “torture” and the “imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law.”Footnote 395The Special Rapporteur on Torture, while concluding that “hostage-taking involves torture other cruel, inhuman or degrading treatment,” also suggests that hostage-taking should be incorporated as an explicit offence in the draft articles on prevention and punishment of crimes against humanity.Footnote 396

Chapter 5

5. Arbitrary detention in state-to-state relations in general international law

5.1 Introduction

While procedural safeguards against arbitrary detention are well-developed, the international law on detention contains few rules concerning the substantive legitimacy of decisions to detain, or the motivations of States for deciding how this sanction is used. In the context of the disproportionate impact of detention laws, policies and practices on particular groups, it has been noted that there are limitations regarding “the extent to which international law engages with states’ motivation for pursuing detention as a tool of a particular policy.”Footnote 397 In a similar manner, the concept of arbitrary detention does not as such capture the inter-State dimension of detention that is being used as a tool to put pressure on another State. Conceptualizing the inter-State dimension of State hostage-taking also confronts particular challenges, not the least because criminal jurisdiction belongs to the core of State sovereignty. As was pointed out above, condemnation of the arbitrary detention of foreign nationals by the UNWGAD has at times been criticized as interference with national sovereignty and the judicial processes of the detaining State.Footnote 398 It is therefore necessary to analyse this coercive practice from the point of view of the law governing international relations.

This chapter discusses the inter-State dimension of the specific types of arbitrary detention the Panel is mandated to study from the point of view of the general international law, which contains both specific prohibitions and general limitations on State action. A possible avenue would be to construe arbitrary detention in state-to-state relations in terms of harm emanating from the detaining State’s territory, and thus a violation of “every State’s obligation not to knowingly allow its territory to be used for acts contrary to the rights of other States.”Footnote 399 While this line of argument is not without merit, the focus of study in this chapter is on the prohibition of intervention in the internal or external affairs of States. The non-intervention principle seems to more accurately capture the specific features of arbitrary detention with the purpose of compelling another State. In addition, this chapter deals with the principle of good faith, as well as its more specific applications, the obligation of cooperation and the prohibition of the abuse of rights. The chapter ends with a brief overview of the legal consequences of internationally wrongful acts.

5.2 Prohibition of the intervention in the internal or external affairs of a State

As is clear from the preceding chapters, arbitrary detention in state-to-state relations violates various rules of international law. In addition to being a human rights violation and an international crime, such practice often violates the prohibition of intervention in the internal or external affairs of another State. This prohibition is well-established in customary international law and has been codified in several instruments both at the universal and at the regional level. The most notable of these are the Friendly Relations Declaration of the UN General Assembly,Footnote 400 as well as the Charter of the Organization of American StatesFootnote 401 and the Helsinki Final Act of the Organization for Security and Cooperation in Europe (OSCE).Footnote 402 The International Court of Justice has confirmed the customary nature of the non-intervention principle, which flows from the territorial sovereignty and political integrity of all States.Footnote 403

The UN Charter contains a prohibition of intervention “in matters, which are essentially within the domestic jurisdiction of any State,” applicable to the world organisation itself.Footnote 404 In clarifying the principles of international law contained in the UN Charter, the Friendly Relations Declaration confirms the applicability of the prohibition of intervention as between States. According to the Friendly Relations Declaration, “[n]o State or group of States has the right to intervene directly or indirectly, for any reason whatever, in the internal or external affairs of any other State.” Furthermore, “[n]o State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind.”Footnote 405 While the concrete examples given in the Declaration concern armed intervention and terrorist or armed activities in another State’s territory, the formulation of the non-intervention principle with the mention of “any other type of measure”, in addition to specifically mentioning economic measures, underline that the scope of the principle is broader than the prohibition of the use of force.Footnote 406

The International Court of Justice has further clarified the content of the prohibition of intervention in its Military and Paramilitary Activities Judgment of 1986, in pointing out that:

There are thus two major elements that must be fulfilled: a prohibited intervention must a) concern areas in which the State is free to act and b) be coercive in nature.

Regarding the first element, the International Court of Justice mentions, as examples of matters, which belong to the sphere of sovereignty, “the choice of a political, economic, social and cultural system, and the formulation of foreign policy.”Footnote 408 Another often-used expression in this context is “an area free of international obligations.”Footnote 409 More generally, reference has been made to prohibited intervention as any action that hampers another State’s sovereign decision-making, such as exercise of governmental powers within its territory. “What the principle of non- intervention ultimately protects,” according to Roscini, “is the decisional sovereignty of a state in all its facets and manifestations in the absence of international obligations.”Footnote 410

While the Court did not further elaborate on the second element, it would be wrong to draw the conclusion that coercion must always be forcible. Such a conclusion would contradict the mention of the use of force as just one, although a particularly obvious, case of coercion. In addition, the Court made it clear that it only commented on those aspects of the non-intervention principle that appeared to be relevant to the dispute at hand, which primarily concerned “forms of action that violate both the prohibition of the use of force and the principle of non-intervention.”Footnote 411In the doctrine, it is widely agreed that non-forcible coercion, when directed at issues on which the State can decide freely, may amount to a prohibited intervention.Footnote 412

The content of the principle of non-intervention has lately been discussed in the context of cyber operations. This discussion, including the various national position papers on the application of international law in cyberspace,Footnote 413 confirms the view that the principle can be applied in different contexts and that coercion indeed extends beyond forcible action. According to the Tallinn Manual on International Law Applicable to Cyber Operations, coercion is “not limited to physical force” but rather should be understood as “an affirmative act designed to deprive another State of its freedom of choice, that is, to force that State to act in an involuntary manner or involuntarily refrain from acting in a particular way.”Footnote 414

In recent scholarly debate, the notion of coercion has been further refined. Roscini distinguishes between two different forms of coercion relevant to the non-intervention principle: “compelling another state to do or not to do something” (“dictatorial coercion”) and “taking control of a certain matter and forcibly imposing a condition of things” “forcible coercion”).Footnote 415 Along the same lines, Milanovic identifies two models of coercion. “Coercion-as-extortion” (or “dictatorial” model) “consists of imposing costs on the victim state, so as to cause it to change its decision-making calculus and policy choices.”Footnote 416The “costs” referred to in this context may include either the threat or use of force, the threat or infliction of harm that would breach the rights of the victim State or its nationals, or other particularly serious or severe harm.Footnote 417

The second model (“control model”) consists of action that “removes the victim state’s ability to exercise control over its policy choices.”Footnote 418 Interpretations of coercion that focus on the notion of “control” have received considerable attention in recent years in relation to attempts to characterize certain forms of cyber interference as prohibited intervention.Footnote 419 As far as arbitrary detention in state-to-state relations is concerned, however, the traditional notion of “dictatorial intervention” seems to best capture its essential features. Dictatorial intervention has been defined as “making a demand either explicitly or implicitly to obtain from the victim state the subordination of the exercise of its sovereign rights or to secure advantages of any kind.”Footnote 420

As was pointed out above, the definition of prohibited intervention in the Friendly Relations Declaration refers to “any other types of measures,” provided that they are coercive. A relevant question with regard to arbitrary detention in state-to-state relations is therefore, to what extent arbitrary detention of a national or permanent resident of a foreign State can be regarded as a coercive act against this State. Jamnejad and Wood point out that it would be “difficult to see how non-discriminatory application of a State’s laws by the judicial branch could be coercive” but seem to leave the door open for situations, in which the conduct of the judicial authorities is clearly discriminating.Footnote 421 In the context of extraterritorial jurisdiction, they add that the exercise of such jurisdiction, if there is no basis at all for it, “will very likely contravene the non-intervention principle.”Footnote 422Reference can also be made to a judgment of the Swiss Federal Tribunal, which confirmed that a domestic criminal justice system may be able to violate the non-intervention principle, pointing out that such systems, in accordance with the general principles of international law, should avoid intervening in the affairs of other States.Footnote 423

In the Immunities and Criminal Proceedings case of the International Court of Justice, furthermore, Equatorial Guinea claimed that France had breached its obligation to respect the principles of the sovereign equality of States and non-interference in the internal affairs of another State. This was allegedly done by permitting the French courts to initiate criminal proceedings against the Second Vice-President of Equatorial Guinea.Footnote 424While the International Court of Justice denied that its jurisdiction regarding the principle of non-intervention could be based on the Palermo Convention that provided the basis for its jurisdiction in the case, it did not challenge the assumption that the initiation of criminal proceedings could violate the principle of non-intervention.Footnote 425 Even more explicitly regarding arbitrary detention in state-to-state relations, the Court stated in the Tehran Hostages case that Iran had “deliberately maintained [the] occupation of the United States Embassy and detention of its staff as a means of coercing the sending State.”Footnote 426 It can therefore be concluded that the non-intervention principle may be breached by the action of national courts and that hostage-taking amounts to coercion against the State of nationality.

Some scholars have specifically characterized arbitrary detention of foreign nationals for leverage as an example of prohibited intervention. Referring to the arrest of two Canadian citizens in China as a response to the arrest on a Chinese citizen, Meng Wanzhou, in Canada pursuant to an extradition request by the United States, Milanovic holds that “it is clear that this was an interference with Canada’s reserved domain, which in principle includes matters of criminal law and extradition on which every state retains a large measure of discretion.”Footnote 427 Ferstman points out more generally that arbitrary detention with the intention to “obtain some kind of leverage from the state of nationality […] constitutes unlawful coercion, which breaches the fundamental international law principle of non-intervention.”Footnote 428

Arbitrary detention in state-to-state relations has been used to obtain different kinds of advantages.Footnote 429Often, it seems, foreign or dual nationals are detained specifically for the purpose of a prisoner exchange. The arbitrarily detained persons are, in other words, used as bargaining chips to obtain the release of persons imprisoned in in the target State, often after conviction of espionage or other serious domestic or international crimes, such as crimes against humanity,Footnote 430 terrorismFootnote 431 or murder.Footnote 432Arbitrary detention in state-to-state relations may in such contexts also have more far-reaching goals to the extent it is used as a retaliation for a certain policy choice of the target State that does not violate international law, such as the exercise of universal jurisdiction,[433] and intended to make it stop that policy.

The notion of “dictatorial coercion”, described as causing or threatening to cause a certain harm to another State and thereby bending the will of the target State, making it do or not to do something,Footnote 434fits well to such situations. This type of coercion is evident when a State has to choose between the life, safety and well-being of the arbitrarily detained national, on the one hand, and policy decisions it would otherwise not make, such as the release of a convicted murderer, on the other. The decisions required of the target State may not only adversely affect its ability to ensure internal security but also raise questions about the division between the judicial and the executive power. Even if, as part of a political agreement, such decisions cannot be characterized as “forced” in the traditional sense,Footnote 435 they may be described as “bending the will” of the target State.

There is also reason to underline that when an incident of arbitrary detention in state-to-state relations is resolved diplomatically, for instance through a prisoner exchange scheme facilitated by an intermediary power, this does not change its nature as an internationally wrongful act. This conclusion has importance in relation to the different perceptions concerning prisoner exchange schemes. For the arbitrarily detained person and his or her family the issue is above all humanitarian and the release of the person concerned a pressing priority, which the government of the target State cannot ignore. From the point of view of the State that pursues the practice of arbitrary detention in state-to-state relations, however, every successful prisoner exchange confirms that the tool of political hostage-taking works as intended and may constitute an incentive to continue the practice. The general public, on its part, may be under the false perception that prisoner exchanges of this kind are business as usual– an equivalent to exchanges of prisoners of war in an international armed conflict – and not a result of ruthless blackmailing.

It should therefore be underlined that exchanging an arbitrarily detained person for a convicted murderer or spy is a transaction that results from a grave violation of the arbitrarily detained person’s rights. Similarly, the act of coercion on the part of the State that has arbitrarily detained foreign nationals remains an internationally wrongful act against the target State, unaffected by the fact that the target State has agreed to do what it was pressured to do. A violation of the non-intervention principle remains a violation, whether or not the target State complies with the demand.Footnote 436

While coercion in the form of arbitrary detention is always wrongful, it does not constitute a prohibited intervention when its purpose is not to intervene in matters which the target State is free to decide. This would be the case when the State that arbitrarily detains one or more nationals of another State does this to compel the target State to pay its debts or otherwise comply with its international obligations. Even though the detaining State might under certain circumstances have a right to institute countermeasures against an indebted State reluctant to pay, countermeasures may never violate fundamental human rights, as is the case with arbitrary detention in state-to-state relations.Footnote 437

While arbitrary detention as State hostage-taking often requires “manipulating justice systems and exploiting procedural mechanisms,”Footnote 438it may sometimes be formally compliant with the detaining State’s domestic legislation, even though it lacks an internationally recognized basis. Questioning the lawfulness of such detention may lead to accusations of intervention in the detaining State’s internal affairs. As has been pointed out above, even the determinations of the UNWGAD concerning the arbitrary detention of foreign nationals have been characterized as interference with national sovereignty and the judicial processes of the detaining State.Footnote 439 There is thus reason to clarify that the notion of prohibited intervention does not apply to outside criticism of arbitrary detention. The obvious point of departure is to look at the necessary elements of prohibited intervention: are we dealing with a situation, in which the State is free to act, and is the other State using coercion?

Regarding the first element, reference can be made to the resolution of the Institute of International Law on protection of human rights and the prohibition of intervention, according to which a State that violates its human rights obligations “cannot evade its international responsibility by claiming that such matters are essentially within its domestic jurisdiction.”Footnote 440This conclusion is consistent with the general understanding that intervention is prohibited only when it concerns an area where there are no international obligations. Similarly, without the element of coercion, any diplomatic, economic or other measures taken in accordance with international law against a State that violates its human rights obligations “cannot be considered an unlawful intervention in the internal affairs of that State.”Footnote 441

5.3 Other limitations to State action

5.3.1 The principle of good faith

In addition to specific prohibitions, international law contains a number of general limitations for State action. Many of such limitations have their basis in the principle of good faith. According to the UN Charter, all member States shall fulfill in good faith the obligations they have assumed in accordance with the Charter.Footnote 442The Friendly Relations Declaration clarifies that the duty of fulfillment in good faith applies to all generally recognized principles and rules of international law.Footnote 443 This obligation is thus generally applicable in international relationsFootnote 444It is seen both as a general principle of law in the sense of the Statute of the International Court of JusticeFootnote 445 and a general principle of international law.Footnote 446 In the context of the UN Charter, the principle of good faith is closely related to the guarantee of the sovereign equality of all States.Footnote 447This means that “no State can invoke its sovereignty in order to evade its international obligations as determined by the duty of good faith and in accordance with the Charter.”Footnote 448

The fundamental principle of treaty law, pacta sunt servanda, is also based on good faith. As codified in Article 26 of the Vienna Convention on the Law of Treaties, the principle reads as follows: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”Footnote 449In addition, the requirement of good faith concerns any interpretation to be given to a treaty.Footnote 450It is notable that Article 26 is understood to also include an obligation of a State Party not to defeat the object and purpose of the treaty.Footnote 451The International Court of Justice has accepted in this regard that the principle pacta sunt servanda can be violated even where no specific treaty provision is directly breached.Footnote 452

The International Court of Justice has referred to the principle of good faith in a number of its judgments and has recognized it as a well-established principle of international law.Footnote 453 While the principle of good faith, according to the Court, is “not itself a source of obligations where none would otherwise exist,”Footnote 454 it is an essential element of the interpretation and implementation of existing obligations.

5.3.2 Obligation to cooperate

The obligation to cooperate is a specific application of the principle of good faith. It is also one of the basic principles of international law confirmed in the Friendly Relations Declaration. According to this Declaration, “States have the duty to co-operate with one another […] in the various spheres of international relations,” including “in the maintenance of international peace and security” and “in the promotion of universal respect for, and observance of human rights and fundamental freedoms for all.”Footnote 455 As operationalized in various treaty provisions at universal and regional level, the Charter-based obligation to cooperate in promoting respect for human rightsFootnote 456 has been given a wide-ranging scope affecting both national legislation and policy and international relations. While it seems clear that arbitrary detention in state-to-state relations undermines the duty to cooperate, it falls also, and even more accurately, within the scope of the notion of abuse of rights.

5.3.3 Prohibition of abuse of rights

A further function of the principle of good faith is to prohibit abusive and arbitrary action, “notably the use of legal entitlements for aims and purposes alien to their grant and harmful to others or to the collectivity at large.”Footnote 457 According to the World Trade Organization Appellate Body, the principle of good faith “controls the exercise of rights by States. One application of this general principle […] prohibits the abusive exercise of a state’s rights.”Footnote 458

As a specific application of the broader principle of good faith,Footnote 459 abuse of rights requires two elements: existence of rights – such as those related to domestic criminal law and policy – and their use in a way that distorts their purpose. Abuse of rights occurs “whenever a State avails itself of its rights in such a way as to inflict injury on another State, which cannot be justified by a legitimate consideration of its own advantage; that is to say, when its actions, although strictly speaking “legal”, are coloured by bad faith.”Footnote 460 The doctrine of abuse of rights has particular relevance in the context of discretionary rights, where it serves to limit “the discretionary behaviour of states so as to ensure that it does not exceed the bounds of arbitrary and malevolent action.”Footnote 461 One relevant context, in which the doctrine of the abuse of rights is often referred to, is the treatment of foreign nationals.Footnote 462

The prohibition of the abuse of rights can be found in different domestic jurisdictions and its applicability to international relations has been widely recognized.Footnote 463This prohibition also appears in a number of treaties, such as the UN Convention on the Law of the Sea and its implementing agreements.Footnote 464The International Court of Justice, in its recent Palestinian Territory Advisory Opinion did not take a stand on the legality of the occupation in 1967 but concluded that the abuse of the rights that an Occupying Power has as a temporary authority had rendered the continued presence of Israel in the Occupied Palestinian Territory unlawful.Footnote 465 This conclusion confirms the general understanding of the notion of the abuse of rights as referring to the exercise by a State of an otherwise lawful right in an unlawful manner.

More specifically, different situations are seen to constitute abuse of rights in inter-State relations. This is the case, first of all, of a situation in which a State exercises its rights in a way that hinders the exercise of another State’s rights, resulting in injury to the other State. A second situation concerns the exercise by a State of its right intentionally for an end, which is different from that for which the right has been created, and the third the exercise of a right in an arbitrary manner.Footnote 466A further situation of abuse of rights recognized in case law is about a State causing intentional harm to another State.Footnote 467

The first-mentioned situation has mainly been referred to in cases of unreasonable use of a shared natural resource, other shared resource, or the use of common spaces.Footnote 468 The two other situations of abuse of rights, however, seem to correspond particularly well to arbitrary detention in state-to-state relations. The second form of abuse of rights is applicable to situations in which a public authority uses its powers to pursue other aims than the ones for which it has the right. This is the case when a State exercises its criminal jurisdiction intentionally for an unlawful ulterior purpose – that of detaining persons of a certain nationality as bargaining chips or otherwise as tools for pressure. It goes without saying that the criteria of the third situation, “arbitrary action” are then also fulfilled. Arbitrary acts are those that are “manifestly unjustified with regard to the facts” and unreasonable.Footnote 469The specific prohibitions of arbitrary action in human rights law, including the prohibition of arbitrary detention,Footnote 470 derive from the general principle of good faith and the prohibition of arbitrary action.Footnote 471

In the doctrine, there are different views regarding whether abuse of rights qualifies as such if it does not cause injury. Kiss, for instance, maintains that any of the three situations he mentions constitutes abuse of rights, provided that the conduct in question causes injury to the other State.Footnote 472 According to Kolb, the requirement of injury is only relevant to the first-mentioned situation, in which the abuse of rights prevents the other State from exercising its rights.Footnote 473 Whether or not this requirement is applicable, it seems clear that arbitrary detention in state-to-state relations causes injury to the target State.

According to Article 31 of the Articles on State Responsibility, injury to a State “includes any damage, whether material or moral, caused by the internationally wrongful act of [another] State.”Footnote 474 The relevant commentary clarifies that “moral damage” “includes such things as individual pain and suffering, loss of loved ones or personal affront associated with an intrusion on one’s home or private life.”Footnote 475 As far as arbitrary detention in state-to-state relations is concerned, it violates the private life of the detainee and his or her family, in addition to the individual pain and suffering that it causes to the detainee.

The principle of good faith, the obligation to cooperate and the prohibition of abuse of rights are most powerful when applied in judicial proceedings but they are applicable to all aspects of international relations. To the extent that arbitrary detention in state-to-state relations is not covered by specific rules of international law, the broader notion of abuse of rights may have a particular role to play. As pointed out above, while hostage-taking as State policy is not covered by the ICATH, it clearly amounts to abuse of State authority.

5.4. Legal consequences of an internationally wrongful act

Basic principles

Any arbitrary detention is a violation of the detaining State’s human rights obligations and therefore an internationally wrongful act. As has been shown above, arbitrary detention of a foreign national with the purpose of using the detention for diplomatic leverage may also violate the prohibition of intervention in the affairs of another State, as well as other international obligations of the detaining State. It is therefore necessary to address the broader legal consequences of an internationally wrongful act as set forth in the law of State responsibility.

An internationally wrongful act gives rise, most importantly, to an obligation for the responsible State to cease the wrongful conduct, and to make full reparation for the injury caused by it.Footnote 476 In the case of arbitrary detention in state-to-state relations, the release of the detained person or persons, as the case may be, would be a necessary element of cessation.

In addition to releasing the detained person or persons, the responsible State may be obliged to give assurances or guarantees of non-repetition of its wrongful conduct.Footnote 477 An example is given by the La Grand case, in which the International Court of Justice held that the United States’ commitment to take specific measures to ensure that its obligations under Article 36 of the VCCR would be honoured in the future was to be regarded as a general assurance of non-repetition.Footnote 478Should the United States nevertheless fail to give consular notification in any future case of conviction of a German national, the Court continued, it would have to allow the review and reconsideration of the conviction and sentence.Footnote 479In any event, “an apology would not suffice in cases where the individuals concerned have been subjected to prolonged detention or sentenced to severe penalties” following a failure of consular notification.Footnote 480

There is also reason to point out that the release of a person arbitrarily detained for the purpose of putting pressure on another State is not only a bilateral issue between the detaining State and the State of nationality. The function of cessation, in general, goes beyond the interests of the injured State. As noted by the International Law Commission, its function “is to put an end to a violation of international law and to safeguard the continuing validity and effectiveness of the underlying primary rule.”Footnote 481 In this way, the responsible State’s obligation to cease the wrongful conduct protects the relevant international rules and the interests of the international community as a whole in upholding the rule of law in international relations.Footnote 482

In reference to cases, in which the detaining State objects to what it calls interference in its judicial system, it should be recalled that a State responsible for an internationally wrongful act may not rely on the provisions of its internal law as justification for failure to comply with its obligations under international law. Irrelevance of a State’s internal law to compliance with international obligations is a well- established principle of international law.Footnote 483 It is for States to ensure that their laws and policies are in line with international human rights standards, including those concerning arbitrary detention.

The detaining State also has an obligation to make full reparation for the injury caused by the wrongful act. The concept of injury for the purposes of reparation, to the extent it relates to personal injuries suffered by nationals of the State, has already been touched on above in the context of abuse of rights. It has for long been recognized in the law of State responsibility that a State may seek compensation in respect of personal injuries suffered by its nationals within the framework of diplomatic protection.Footnote 484 Such personal injuries may relate, for instance, to unlawful detention. In the Saiga case, the flag State was entitled to compensation for injury to the crew, their unlawful arrest, detention and other forms of ill-treatment.Footnote 485 Reference can also be made to the Diallo case, in which the International Court of Justice stressed the importance of providing reparation for the injury suffered by Mr. Diallo in breach of international law.Footnote 486 Other examples in cases of deprivation of liberty include awarding a set amount for each day spent in detention, and increased awards when the wrongful arrest and imprisonment was accompanied by abusive conditions of confinement resulting in particularly serious physical or psychological injury.Footnote 487 Compensable personal injury also includes “suffering, injury to feelings, humiliation, shame, degradation, loss of social position or injury to credit and reputation,”Footnote 488 which notably may all belong to the consequences of arbitrary detention in state-to-state relations.

As far as compensation to a State itself is concerned, it is not limited to compensation for material harm. The obligation to make reparation also concerns unlawful action against certain non-material interests, such as violation of sovereignty or the symbols, representatives or embassies of a State. Non-material damage may also be defined in terms of the dignity or prestige of a State. Reference can in this regard be made to the Rainbow Warrior arbitration, in which the Tribunal referred to the indignation and public outrage provoked by France’s action in New Zealand and described it as an “affront to the dignity and prestige not only of New Zealand as such, but of its highest judicial and executive authorities as well.”Footnote 489

Forms of reparation

Full reparation for the injury caused by the internationally wrongful act can consist of restitution, compensation or satisfaction, or a combination of these. Restitution is defined as re-establishment of the situation that existed before the wrongful act was committed.Footnote 490 In cases of arbitrary detention in inter-State relations, the release of detained persons can be regarded as material restoration. In addition, measures of juridical restoration, such as the rescinding or reconsideration of the judicial measures unlawfully adopted in respect of the detained person, may be in order.Footnote 491

Furthermore, restitution in kind in cases of arbitrary detention in state-to-state relations, has to be understood to include the support given to the released detainee to facilitate his or her reintegration to the society. The person released from arbitrary detention may need various kinds of support including medical and trauma treatment, support in securing employment, and assistance with regard to legal and administrative issues created by the detention.Footnote 492 Reintegration into the society may be a long process. Such support and assistance should primarily be provided by the State of nationality after the person’s return to its territory. In such cases it is relevant that, as a general rule, payment of a sum that corresponds to restitution in kind is accepted as an alternative when restitution in kind is not possible.Footnote 493 Compensation of the costs of the measures the former detainee’s re-integration in society requires thus seems to be an adequate form of reparation in the relations between the detaining State and the State of nationality.

Satisfaction, as a further form of reparation, may “consist of an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality.”Footnote 494A State responsible for an internationally wrongful act is under an obligation to give satisfaction only in exceptional situations, when restitution or compensation have not provided full reparation for the injury.Footnote 495Satisfaction is most often used in cases of direct injury to the State, such as violation of its sovereignty or damage to its symbols, representatives or embassies.Footnote 496Such affronts to the State cannot, or not entirely, be made good by way of restitution or compensation. Satisfaction is often of a symbolic nature, such as declaration of wrongfulness or apology. In addition, disciplinary or judicial action against the individuals, whose conduct caused the injury has also been accepted as satisfaction.Footnote 497

In instances of arbitrary detention in inter-State relations, State responsibility acts as a legal framework to hold governments accountable for the conduct of their agents or institutions. Reparations have an important role in restoring the relations between the injured State and the responsible State. An injured State may seek reparations in different ways. Cessation and satisfaction may follow from diplomatic negotiations with the responsible State but may also require intervention by third States or international organisations. Compensation is often but not always a result of third-party dispute settlement.

Countermeasures

In cases when the detaining State refuses to cease the wrongful action or to make reparations, the State of nationality may have the right to respond with countermeasures, i.e. measures that in any other context would themselves be wrongful.Footnote 498 There are several restrictions on the use of countermeasures, including that countermeasures must be temporary in nature and that they may not be undertaken after the fact when the wrongful act has ceased.Footnote 499 These restrictions seek to ensure that countermeasures cannot be used punitively; their only legitimate use is to persuade the State responsible for the wrongful act to cease its wrongdoing and, if necessary, to make reparations for the damage caused.

Importantly, countermeasures must not involve the use of armed force and must not violate certain fundamental norms such as those of international humanitarian law or human rights law, or the core norms of diplomatic relations.Footnote 500

5.5 Conclusions

5.6 Recommendations

Recommendation 16 – States should be more proactive in condemning arbitrary detention in state-to-state relations in multilateral fora

The Panel recommends that States be more proactive in highlighting the internationally wrongful nature of arbitrary detention in state-to-state relations in multilateral fora. This is required to avoid normalizing as a tool of diplomacy an abhorrent practice that violates core international rules. Being more proactive is without prejudice to the need for confidentiality regarding individual cases.

Rationale: In addition to being a grave human rights violation, and an international crime, the practice of arbitrary detention in state-to-state relations violates the rights of the target State, for instance the prohibition of intervention in the internal or external affairs of another State. A violation of the non-intervention principle remains a wrongful act, whether or not the target State complies with the demand. Focusing on arbitrary detention in state-to-state relations as a wrongful practice, the recommendation acknowledges the need for confidentiality regarding individual cases and the need to prioritize the safety of those detained.

Relevant multilateral fora in this context could be the United Nations Security Council, the United Nations General Assembly, its committees and subsidiary bodies as well as regional bodies. Options for being more vocal could include, inter alia, presidential statements, declarations, joint statements, media stakeouts, language in resolutions, inclusion in high-level speeches, and include requesting thematic reports and contributing to them, or proposing Special Procedures (See also Part II recommendations on human rights issue).

Recommendation 17 – States should affirm their right to question the lawfulness of arbitrary detentions

The Panel also recommends that States affirm their right to question the lawfulness of the acts of judicial authorities in cases of arbitrary detention in state-to-state relations.

Rationale: Questioning the lawfulness of arbitrary detention of foreign nationals should not be conflated with an attempt to interfere with national sovereignty and the judicial processes in the detaining State. It should be recalled that intervention is only prohibited when it uses methods of coercion concerning matters in which each State is permitted to decide freely. Arbitrary detention in order to compel or coerce remains wrongful and cannot be justified by invoking the domestic law of the detaining State. Assessments of the wrongfulness of the detention would depend on the facts of each case.

Recommendation 18 – The United Nations General Assembly’s Sixth Committee should adopt a thematic focus on arbitrary detention in state-to-state relations in relation to the rule of law at the national and international levels

The Panel recommends that the Sixth Committee of the United Nations General Assembly consider adopting a thematic focus on State hostage-taking in the context of its standing agenda item on the “Rule of Law at the National and International Levels” to raise awareness of the practice.

Rationale: The Sixth Committee considers a wide range of questions of international law. A longstanding agenda item concerns the current state of the rule of law at the national and international levels. An annual thematic focus to the debates enables States to address their views to the relevant topic. By proposing the selection of arbitrary detention in state-to-state relations as a theme for one of the upcoming years, the Sixth Committee could help States, in the context of the plenary debate, to shine a spotlight on the unlawful nature of arbitrary detention in state-to-state relations.

Recommendation 19 – The United Nations Security Council members should organize an Arria formula meeting on arbitrary detention in state-to-state relations to highlight the threats the practice poses to international peace and security

The Panel recommends that one or more of the 15 United Nations Security Council members organize an Arria formula meeting on arbitrary detention in state-to-state relations. Such a meeting could be used to highlight the issue of State hostage-taking and its potential to create or maintain friction in relations among States, as well as its implications for human rights. It could also serve to establish a procedure within the United Nations for listing, at the request of States of nationality, persons considered to be arbitrarily detained for political or diplomatic leverage. Such a list could possibly subsequently provide a basis for a bilateral, multilateral, or United Nations sanctions process.

Rationale: The United Nations Security Council has the primary responsibility for the maintenance of international peace and security, and State hostage-taking has the potential to negatively affect international peace and security. While State hostage-taking has so far directly concerned a limited number of States, it is of a nature to shock the conscience of the international community as a whole, being a grave abuse of State authority and an affront to human rights and the peaceful conduct of international relations.

Against this backdrop, a United Nations Security Council “Arria formula” meeting could usefully generate greater awareness of arbitrary detention in state-to-state relations as a source of friction in relations between States. Arria formula meetings provide interested Council members an opportunity to engage in a direct dialogue with high representatives of governments and international organisations, as well as non-State parties, on matters with which they are concerned and which fall within the purview of the Security Council’s responsibilities.

Recommendation 20 – States could take into account a nominating State’s record in elections

The Panel recommends that a State’s record in relation to arbitrary detention in state-to-state relations is taken into account by other States when assessing whether or not to support the nomination of that State to multilateral bodies. This could be a relevant consideration also regarding individual candidates nominated by that State for international positions of trust, especially when they have a direct connection to such practice.

Rationale: Current State practice permits States to consider a variety of explicit and implicit criteria when selecting which States or individuals can secure their support in voting for positions in the United Nations bodies or in other international organisations. In addition to the qualifications of the nominee for the position, which should be the primary consideration, the nominating State’s practice on State hostage-taking could be an element for other States to consider in international elections since the decision on whom to elect is to some extent a political act.

Recommendation 21 – States should invoke State and individual responsibility in the context of arbitrary detention in state-to-state relations

The Panel recommends that States seek to hold accountable violating States and/or their agents responsible for arbitrary detention in state-to-state relations, using all lawful tools at their disposal consistent with the Charter of the United Nations. State responsibility and individual criminal responsibility should be pursued through inter-State proceedings before appropriate international and regional courts and through prosecutions in national courts where jurisdiction exists.

Rationale: Arbitrary detention in state-to-state relations violates several fundamental rules of international law. In addition to being a grave human rights violation and an international crime, such practice often breaches the prohibition of intervention in the internal or external affairs of another State. The continued use of State hostage-taking with impunity undermines the peaceful conduct of international relations and threatens the rule of law in international affairs.

While criminal prosecution in accordance with the 1979 Hostages Convention would in most cases require cooperation of the territorial State (regarding extradition, legal assistance, or waiver of immunity in case of State officials), acts of former State officials, to the extent they fulfill the criteria of torture, or crimes against humanity, could be investigated and prosecuted in foreign national courts. The Panel notes that, as of writing, 74 States have accepted the compulsory jurisdiction of the International Court of Justice. Regarding State-to-State relations, there may be also other bilateral and multilateral conventions, which provide for the jurisdiction of the International Court of Justice (Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes; bilateral treaties of friendship, commerce and navigation etc.).

Recommendation 22 – States should seek full reparation for arbitrary detention in state-to-state relations

The Panel recommends that States focus more on pursuing the legal consequences of arbitrary detention in state-to-state relations as an internationally wrongful act, including the obligation of the detaining State to make full reparation. Full reparation could include requiring compensation of the costs of the measures the former detainee’s re-integration into society requires.

Rationale: While the release of the detained person is the target State’s immediate objective, other elements of reparations are also important. They serve the broader goal of bringing the practice of arbitrary detention in state-to-state relations to an end. The responsible State’s obligation to cease the wrongful conduct protects the relevant international rules, and the interests of the international community as a whole in upholding the rule of law in international relations. Reparations also have an important role in restoring the bilateral relations between the injured State and the responsible State.

Chapter 6

6. Reparations and safeguards and the relevance for arbitrary detention

6.1 Introduction

The two immediately preceding chapters have considered the approach of general international law to State hostage-taking and the impacts of the practice on States. They have focused on the inter-State dimension. The present chapter highlights the individual dimension, implicating rights under human rights law, which are severely hampered when persons are wrongfully detained and instrumentalized as bargaining chips in geopolitical power struggles. In a world where human rights violations are persistent, the role of victims in international legal proceedings has been evolving. The participation of individuals in various international settings is progressively recognized and valued as an essential part of the realization of human rights. This understanding reflects a conception and approach that places human dignity and the inherent value of each person at the forefront, recognizing victims as both legally and politically relevant actors and as best positioned to adequately express the grievances suffered, free from the interests that States might have in a particular agenda.

This chapter examines the critical role that victims play in the contemporary international human rights system, through the lens of reparations and safeguards. For that purpose, it will start by defining the concept of victims. After exploring the legal evolution of the concepts of reparation and safeguards, it will show the growing movement toward attributing significance and standing to victims of various human rights violations. This movement started in a regional setting and then influenced general developments in the universal context. Additionally, this chapter elucidates the contemporary understanding of reparations and underscores the importance of safeguards to ensure that victims can fully contribute to the advancement and protection of their rights.

Important human rights instruments address reparation to individuals for violations of international human rights law by focusing on the right to an effective remedy, a concept that encompasses both access to justice and the issue of reparation.Footnote 501 As pointed out above, Article 2(3) of the ICCPR also establishes the right to effective remedy. The prohibition of arbitrary detention as enshrined in the ICCPR is accompanied by specific procedural safeguards, according to which, inter alia, victims of unlawful arrest are entitled to an enforceable right to compensation.Footnote 502This chapter provides a general overview of the different aspects of this obligation. The chapter links reparations and safeguards to arbitrary detention, including in the context of State-to-State relations, where one State violates the rights of foreign nationals. It is important to note that, in addition to the protection of individuals, which is the main purpose of safeguards, their absence facilitates proving the existence of arbitrary detention. Highlighting the link between reparations and safeguards, they work together to ensure that States are held accountable and that victims are protected from future harm. Reparations in international human rights law are closely connected to safeguards, and to the objective of preventing and deterring future violations. That is, reparations are not just about compensating victims; they are also a way to uphold the rule of law and stop further violations.

6.2 The notion of victims

A key aspect of addressing arbitrary detention that plays an important role also in the context of State-to-State relations, is recognizing its broad impact on victims who do not only include those directly detained but also their families, dependents, and others who suffer harm due to the violations and lack of justice. According to General comment No. 3 (2012) of the Committee on Torture,Footnote 503 victims are “persons who have individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that constitute violations of the Convention.”Footnote 504

Victims are not only the persons directly affected by unlawful acts against human rights but also, as the IACtHR has noted, family members and other related persons, who often become indirect victims of cruel, inhuman, and degrading treatment because they are denied access to justice and live with the uncertainty.Footnote 505 As General comment No. 3 (2012) clarifies, the term victim “includes affected immediate family or dependents of the victim as well as persons who have suffered harm in intervening to assist victims or to prevent victimization,” and this consideration does not depend on “whether the perpetrator of the violation is identified, apprehended, prosecuted or convicted, and regardless of any familial or other relationship between the perpetrator and the victim.”Footnote 506

Along the same lines, the Rome Statute, in Rules 85 and 86, defines victims as individuals or organisations that have suffered harm from a crime within the International Criminal Court’s jurisdiction.Footnote 507 This includes people who have experienced physical, psychological, or material harm, as well as victims of sexual or gender violence and vulnerable groups such as children, elderly people, and those with disabilities.Footnote 508Victims may participate in proceedings by sharing their views and concerns with the judges, either directly or through a legal representative, at any stage deemed appropriate by the judges.Footnote 509The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power further elaborates on the definition of victims, stating that “victims” means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss, or substantial impairment of their fundamental rights, through acts or omissions in violation of criminal laws within member States, including those laws that prohibit the criminal abuse of power. This definition aligns with the broader understanding of victims under the Rome Statute, underscoring the importance of addressing the harm caused by violations of criminal laws.Footnote 510

This concept of victims is essential to the discussion at hand, as it highlights those who can assert rights at the international level, thereby adding legal standing to political, family, or group interests for action on the international stage. Arbitrary detention in state-to-state relations is defined by a multiplicity of victims. The rights of the detained person are violated, but this violation also entails prolonged suffering, without a legitimate cause, by family, friends, and employers as they are held hostage to the political whims of the detaining power. As the Special Rapporteur on Torture has pointed out, “[h]ostage-taking has been described as consisting of concentric circles of psychological torture that extend far beyond the immediate victims.”Footnote 511 The primary victims are the hostages themselves, and secondary victimization affects immediate family members, “who become involuntary participants in a high-stakes negotiation process.”Footnote 512

6.3 Reparations

6.3.1 Historical evolution

The concept of reparations initially existed in international law as a State obligation based on minimum standards of treatment of foreign nationals. This obligation developed further in the 1900s when individuals became subjects of international law.Footnote 513 However, the specific content of this obligation was largely left to interpretation by the universal and regional human rights systems.

The basic premise of reparations for human rights violations is the need to restore the situation that preceded the violation. That said, restoring only provides guidance, because restoring a situation that no longer exists is impossible since the consequences of wrongdoing simply cannot be erased as if they never happened. Furthermore, human rights violations entail not only the reparations for individual harm, but also the reestablishment of the rule of law as a whole. Accordingly, this chapter of the report will refer to the development of the concept of full reparation, including measures that directly impact the victims, society as a whole, and the rule of law.

As pointed out above, reparation for harm suffered by individuals began as an obligation owed to the State of the individual’s nationality for violations by another State based on the minimum standard of treatment to foreign nationals, as prescribed under international law. This included, among other rights, due process, principles of legality, and compensation for expropriated or confiscated property. Under the minimum standard theory, the State could not only decide whether to exercise diplomatic protection on the individual’s behalf but also whether to agree with the content and scope of the reparation with other States.Footnote 514

Since the beginning of judicial adjudication before international tribunals, it is a general principle of international law that the breach of an international obligation involves an obligation to make reparation in an adequate form.Footnote 515 In 1928, in the Factory at Chorzów Case, the Permanent Court of International Justice clearly articulated the content of this general obligation, stating that “reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.”Footnote 516 The Articles on State Responsibility reiterated, and even crystallized, this principle by establishing that “[t]he responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.”Footnote 517 Moreover, the International Court of Justice, foreign investment tribunals, and other jurisdictional and quasi-jurisdictional international bodies have recognized this principle.Footnote 518

As the individual emerged as a subject of international law, a development also took place involving reparation. To a certain extent, some norms had already emerged under the minimum standard theory through the exercise of diplomatic protection, but diplomatic protection was contingent on the State of the individual being interested in its own right for wrongful acts committed against its nationals. Nevertheless, these norms established valuable parameters concerning reparation, including the early notion of full compensation.

In this context, Latin America was an active proponent of the prohibition of non-discrimination as the applicable rule for remedies and reparations, as opposed to the minimum standard of treatment theory.Footnote 519Latin American States and jurists reacted against the theory of the minimum standard, which afforded protection only to foreigners, because it violated the principle of non-discrimination by granting foreigners more protection than to the nationals of the State. By the end of the 19th century, during a period in which Latin American States formally emerged as independent from the Spanish and Portuguese empires, Argentinian scholar Carlos Calvo, presented a new thesis that resident aliens have the same rights to protection as nationals but no more (later known as the Calvo Doctrine).Footnote 520

6.3.2 Evolution towards rights of individuals at the regional level: the concept of reparations

As a consequence of the Second World War, States developed the international bill of rights, signalling an end to the Theory of Minimum Standard,Footnote 521 as well as to the Theory of Non-discrimination, both of whom did not recognize rights to the nationals by the State of their nationality. This development, moving from standards of achievement to obligations, as well as the establishment of supervisory organs providing individuals with the possibility to accede to different forms of supervision, including the development of the law of reparations.

The full scope of appropriate reparations for human rights violations was not developed until the late 1980s to early 2000s, mostly in Latin America, when allegations of gross human rights violations in several Latin American countries, including Chile and Colombia, were addressed at the IACHR and in the IACtHR jurisprudence. The role of the Commission was particularly important prior to the creation and widespread utilization of the Court. After the IACtHR was established, the Commission continued to play a role by representing the interests of the victims before the Court. Later, the Court’s regulations were modified to allow victims themselves to appear before the tribunal once a case is brought to the Court, therefore creating another avenue to present victim’s views on the content of reparations. The pendulum on the law of reparations then moved from the IACHR being the final organ to the IACtHR becoming the final decision maker.

Beginning in the 1980s, the Inter-American System, particularly through the IACHR, started a process whereby reparations could not be restricted to pecuniary damages. During that time, gross and mass human rights violations were committed in Latin America. In responding to a victim’s lawyers, the IACHR concluded that mere monetary compensation could not achieve the goal of satisfying the victims and their families, achieving justice, and ensuring restoration of peace in a society. Thus, in 1988, the IACHR first recommended reparations in addition to monetary compensation in the Rojas DeNegri v Chile.Footnote 522Additionally, the IACHR also recommended that Chile compensate victims and their families for moral injury.Footnote 523 The case was an important step for addressing arbitrary detention of a foreign national. It was adopted in the context of the government of the United States extending diplomatic protection to Rojas DeNegri who was a permanent resident in the United States.Footnote 524It also expanded the notion of reparations including the need for investigation and punishment for those responsible for the arbitrary detention and confirmed that there were not only “direct victims.”Footnote 525

A further development related to the role of victims took place in Velásquez Rodríguez, in this case by the IACHR, that triggered a process of change, ultimately allowing direct representation of the victims before the Court including the reparations stage.Footnote 526 The Court in Velásquez Rodríguez also defined what local remedies victims were required to exhaust before bringing their case to an international tribunal. Although the failure to exhaust domestic remedies is a preliminary, procedural objection, the Court’s later jurisprudence concerning this issue relied on the substantive right to judicial protection under Article 25 of the ACHR and the general obligation to respect and ensure rights under Article 1. The Court held that member States must offer their citizens an effective domestic judicial remedy; the existence of formal domestic remedies on the books is insufficient.Footnote 527

The Court’s rulings concerning the burden of proof and lawyers’ fees also influenced later procedural developments. By articulating a reasonableness standard for the evidence required to prove a case of disappearances, the Court provided valuable guidance for petitioners and governments. While the Court did not award lawyer’s fees to the plaintiffs’ lawyers,Footnote 528 its ruling opened the door for future lawyers to argue that the State should pay such fees. The Court currently awards legal fees and court costs based on issues of equity, the circumstances surrounding the case, the international jurisdiction, and reasonable expenses incurred by the parties.

Relying on Velásquez Rodríguez and its interpretation of Article 1(1), the Court in later cases explicitly ordered the State to investigate and punish those who appear responsible for violating provisions of the Convention as a part of the required reparations.Footnote 529 Investigation and punishment are important because victims of human rights violations do not accept that “money cures all wrongs;” for them it is fundamental that the truth be told, and that those responsible be held accountable, in order to prevent repetition of these events in the future.Footnote 530

This interpretation has been found valuable because of providing a valid legal basis to fight impunity and seek justice in the region.Footnote 531 Other court cases building on the Velásquez Rodríguez decision required that States actively investigate and punish human rights abuses, and this interpretation provided a tool to attack amnesty laws in the region.Footnote 532 Even when States have not immediately applied the Court’s decisions, investigation and punishment have taken place years later.Footnote 533 When criminal liability has not been established, the duty of the State to investigate and punish those responsible has resulted in many occasions the end of careers or untenable political consequences for those involved in violating human rights.Footnote 534 This is relevant in cases of arbitrary detention in state-to-state relations because the lack of consequences and total impunity for arbitrary detention contributes to the repetition of this heinous crime.

Another development in the IACtHR law of reparations took place in Aloeboetoe v Suriname. In the reparations phase, the Court required measures going beyond monetary payments by ordering the State to reopen a school and provide effective education.Footnote 535 Then, in Benavides Cevallos v Ecuador, as part of the reparations the State must fully satisfy, the Court ordered the State to investigate human rights violations.Footnote 536 The Court continued on this trend by ordering broader measures of reparation such as obligations to reform legislation that violate human rights standards, and the construction of public memorials.Footnote 537

These modes of reparations were later labeled as “measures of satisfaction and non-repetition.”Footnote 538Satisfaction includes, at a minimum, the State’s obligation to publish the Court’s ruling and publicly acknowledge its responsibility. Non-repetition refers to institutional reforms intended to cease an ongoing or structural violation and to prevent future similar violations.Footnote 539These measures have become both a tool for removing laws contrary to human rights, and for helping States develop legislation and institutions that guarantee human rights.Footnote 540By ordering the State to take measures aimed at restoring victims’ rights and ensuring that violations do not recur, this decision links the concept of reparations to long-term institutional reforms, which in the context of arbitrary detention in state-to-state relations contributes to deterring this heinous criminal practice.

The cases discussed below further detail the obligation of States, developing the content of reparations, that equally play a role in the context of arbitrary detention in state-to-state relations, including the need to modify national legislation as required.

Furthermore, in Last Temptation of Christ (Olmedo Bustos and others), the IACtHR held that Chile’s film censorship laws violated Chile’s obligations in Article 2 of the Pact of San José and the right to freedom of expression in Article 13 of the Convention. Thus, “the State must modify its domestic legal system, within a reasonable period of time, in order to abolish prior censorship to allow the exhibition of the film The Last Temptation of Christ.”Footnote 541 Accordingly, in June 2001, the Chilean National Congress approved the draft constitutional reform bill which codifies the right to free artistic creation by replacing cinematographic censorship with a film rating system.Footnote 542

The Court addressed the issue of amnesty laws in Barrios Altos, which dealt with the extrajudicial killings of fifteen persons and the violation of personal integrity of other four persons by members of the Peruvian army during the Alberto Fujimori administration. In 1995, Peru passed amnesty laws that exonerated the military, police forces, and civilians that participated human rights violations:

Since 2008, the IACtHR and IACHR have also considered measures of rehabilitation as a form of reparations. In Palacio de Justicia v Colombia, the IACHR included measures of rehabilitation in the order of reparations, such as the provision of free, immediate, effective, and adequate medical, psychiatric, and psychological treatment to victims.Footnote 544Moreover, in the category of “other reparations,” the Commission requested that the IACtHR order the State to provide training to its security forces.Footnote 545

As reflected in the jurisprudence discussed above, orders of reparations have varied throughout the years, culminating in an understanding that full and comprehensive reparations are necessary and cannot be merely monetary compensation. In Gonzales Lluy et al. v Ecuador, the IACtHR recognized that the duty of reparations means:

In that case, the IACtHR ordered various reparations, including: ordering the State to investigate, prosecute and punish; measures of restitution, rehabilitation, and satisfaction; education scholarship to the individual harmed; housing for the individual harmed; and guarantees of non-repetition.Footnote 547 Additionally, in Villagrán Morales et al. v Guatemala, the IACtHR allowed the murdered natural persons and their next of kin to be named directly as injured parties;Footnote 548 found that the State violated human rights by allowing or failing to prevent their deaths; espoused that providing reparation to individuals harmed in this way is a principle of international law;Footnote 549 and ordered reparations including the payment of non-pecuniary and pecuniary damages,Footnote 550 legislative reforms,Footnote 551performance of effective investigations to bring the individual perpetrators to justice,Footnote 552 transfer of victim remains to locations requested by the victims’ families,Footnote 553 and creation of an educational centre in honour of the victims.Footnote 554

In Maldonado Vargas and Others v Chile, the Court held Chile responsible for failing to comply with its duty to adopt domestic legal provisions that guarantee victims an effective judicial remedy to review harmful convictions handed down by the courts. The Court ordered Chile to adopt appropriate legislative, administrative, or other measures to “make available to persons convicted by the war councils during the Chilean military dictatorship an effective mechanism to review and annul the sentences of conviction that were handed down in proceedings that may have taken into account evidence and/or confessions obtained under torture.”Footnote 555In this case, the structural problem was resolved not only by annulling the case victim’s convictions, but also all the convictions of those in the same situation.Footnote 556

Later on, in the 2008 report, “Principal Guidelines for a Comprehensive Reparations Policy,” the IACHR established the principle that reparations should consist of measures that are designed to repair the effects of the human rights violations.Footnote 557 The measure’s nature and extent depend on both the pecuniary and non-pecuniary damage. Moreover, State’s reparations should be the outcome of an open and transparent process of dialogue and consultation between civil society and State institutions.Footnote 558 The State must also play a primary role in guaranteeing victims’ effective access to reparations, including the State’s obligation to investigate and punish the persons responsible for human rights violations.Footnote 559 Lastly, in Lhaka Honhat v Argentina, the Court dealt with a violation of the right to a healthy environment based on ACHR Article 26 for the first time. In considering the question on reparations, the Court ordered the creation of a “community development fund” to redress the harms caused.Footnote 560

Thus, in the Inter-American System of Human Rights, the notion of reparation includes what has been called “integral or comprehensive reparations,” meaning reparations include restitution of the infringed right, satisfaction, rehabilitation measures, the search for truth and justice, and guarantees of non-repetition, in addition to compensation for material and non-material damages.Footnote 561

The development of the law of reparation, a key feature of the Inter-American System compared to other regional systems, was not only restricted to the Western Hemisphere. For instance, within the European Human Rights System, the ECtHR has traditionally adopted a more restrictive approach on restitution, deferring to the State's discretion in addressing violations and determining the appropriate form of reparation. Since 2004, however, the ECtHR has notably begun shifting its approach. Two cases can be marked as the start of this novel approach: Assanidze v Georgia and Ilascu v Moldova and Russia. These cases involved the applicant’s unlawful detention and a violation of ECHR Article 5. The ECtHR declared that a violation existed, and requested the immediate release of the applicants as the continuation of the unlawful detention would entail the continuation of the violation.

Although created later than the Inter-American or European regional systems, the AfCHPR has established a clear trend toward awarding reparation to individuals. In Malawi African Association v Mauritania, the Court recommended reparations.Footnote 562 Later, in Mtikila v Tanzania, the Court recognized its power to award reparations for human rights violations, but declined to do so due to inadequate evidence of the applicant’s claimed losses and expenses.Footnote 563 Finally, in Zongo v Burkina Faso, the Court ordered reparations for the applicants for the first time in the Court’s history, including measures of satisfaction and guarantees of non-repetition.Footnote 564 The Court has relied heavily on decisions from the IACtHR and the Articles on State Responsibility in establishing its authority to issue reparation.

The development described above regarding the law of reparations was not limited to regional systems. The concept of integral or comprehensive reparation, which extends beyond the classical reparation of injury (both material and immaterial) through economic compensation, has also made its way into the universal system. This approach recognizes that reparation should not only address economic harm but also consider a broader perspective, one that acknowledges the individual’s place within a world of social interaction.Footnote 565 As stated before, applicable also in the context of State-to-State relations, these cases highlight the obligation of States to offer effective remedies for victims of arbitrary detention, whether through domestic legal reforms, investigation of abuses, or international orders of reparation.

6.3.3 Evolution towards rights of individuals at the universal level: in the context of reparations

Treaty bodies of the UN human rights machinery have also addressed the issue of reparations concerning defining scope and legal nature. As an example of this important development stands the General Comment No. 3 adopted by the Committee against Torture. Analyzing Article 14 of the Committee against Torture, a norm common in human rights conventions, the Committee specifies the right of victims of torture or cruel, inhuman, degrading treatment to seek redress, and receive compensation and rehabilitation.Footnote 566 According to the Committee, reparation is contained within the concept of redress, which also includes effective remedy.Footnote 567 Importantly, in agreement with the recent jurisprudence at the regional level, the term “redress” includes the whole spectrum of measures: from restitution, satisfaction, compensation, to rehabilitation, and guarantees of non-repetition.

General Comment 3, reflecting customary international law, also includes the following key points: restitution means the victim is re-established to their situation prior to the violation; compensation means the victim is economically compensated for assessable pecuniary or non-pecuniary damage resulting from the violation; rehabilitation includes medical and psychosocial care, legal and social services, and the acquisition of new skills as required by any change of circumstances caused by the violation; satisfaction and the right to truth includes effective measures to end any continuing violations and to both verify and publicize the facts of the violation; guarantees of non-repetition means the State undertakes preventative efforts to combat impunity for violations; victims are persons individual or collectively harmed by the acts or omissions that constitute a violation of the Convention; and lastly, reparations vs. criminal proceedings, which clarifies that compensation does not depend on the establishment of criminal liability.Footnote 568

Concerning the evolution of the concept of reparation from a notion that included simply economic measures of reparation to the normative requirement of comprehensive or integral reparation by those States that violated the rights of victims is essential for the analysis of the topic of our study. In fact, it is not enough simply to terminate arbitrary detention without addressing all the legal consequences that derive from this illegal action, including the right of individuals to achieve full redress.

Providing proper compensation to the victims and seeking collective means to satisfy affected communities are always desirable paths. This might include granting property rights to communities that had been expelled from their lands, providing basic services to disadvantaged communities, and ensuring medical and educational assistance. Memorialization and commemorations are also possible reparative actions. An official apology and the public recognition of international responsibility are core elements of a reparation programme. In any event, reparations should be tailored according to the specific needs of each victim and community.

States are also responsible for adopting public policy measures that should be aimed first and foremost at stopping any ongoing violations. Institutional change can be achieved by adopting legislative and administrative regulations to better enforce the protection of the affected rights, providing continuous training in human rights and ensuring the independence of the judiciary, as well as protecting human right defenders.

Reparations in the International Criminal Court jurisprudence, and as conceived within the Rome Statute, have also referred to the practice of regional Courts.Footnote 569 Pursuant to Article 75 of the Rome Statute, the International Criminal Court has the power to issue an order for reparation. As of April 2025, the Court has ordered reparations orders in four cases: Lubanga, Katanga, Al Mahdi, and Ntaganda, and Ongwen. Moreover, the Ntaganda order modified the initial legal framework on reparations, as laid out in Lubanga, thus making the current framework more victim-centred.Footnote 570 For example, when calculating the imposition of monetary liability upon the accused individual, the Court considered the harm and damage suffered by the victims, instead of considering the harm caused by the person in question.Footnote 571

By placing victims at the centre of the calculations for compensation, the International Criminal Court is shifting away from its previous paradigm. Thus, the modes of liability, gravity of crimes, and conditions for mitigation of punishment no longer play a central role in calculating monetary compensation.Footnote 572 However, the shift to a victim-centred approach has vastly increased the calculated reparations. For instance, in Ongwen, the financial liability was set at €52,429,000 EUR, a significant amount compared to previous cases.Footnote 573 The Chamber also ordered collective community-based reparations, including rehabilitation programmes and symbolic measures such as a €750 EUR award for each eligible victim, further emphasizing the victim-centred approach.Footnote 574 Because the International Criminal Court handles the criminal responsibility of individuals, and not that of States, the convicted person’s inability to make reparations to their victims poses a significant problem, a problem which has only intensified with this novel victim-centric approach to reparations.

6.4 Compliance with safeguards

6.4.1 Introduction

This section defines the concept of safeguards, traces its origin and identifies its context. A non-exhaustive list of critical safeguards and some of their legal bases can be found in Annex IV.

According to General Comment No. 4 on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which is seen as expressing the obligations established under international law, “[i]n its procedure of assessment, the State party should provide the person concerned with fundamental guarantees and safeguards, especially if the person has been deprived of the person’s liberty or is in a particularly vulnerable situation.” Additionally, it states that “[g]uarantees and safeguards should include linguistic, legal, medical, social and, when necessary, financial assistance, as well as the right to recourse against a decision.”Footnote 575

Compliance with safeguards is essential due to many reasons, including the fact that their absence creates a presumption of wrongdoing. This presumption is crucial because the proof of wrongdoing is difficult in a context where, on many occasions, it is the word of individuals against the word of those who have allegedly violated their rights. Accordingly, the safeguards are established

6.4.2 Origin and definition

Safeguards were firstly introduced by the Geneva Conventions of 1949, which provide minimal requirements to safeguard combatants, or members of the armed forces, who are wounded, sick or shipwrecked, prisoners of war, and civilians, as well as medical personnel, military chaplains and civilian support workers of the military. The safeguards’ purpose was to prevent human rights abuses.

More specifically, safeguards are guarantees afforded to individuals in order to protect the interests of justice for all persons detained and eventually brought to trial. They must benefit from procedural rules and fundamental rights designed to ensure that individuals receive a fair trial and are protected from being unlawfully or arbitrarily deprived of their fundamental human rights and freedoms. At the same time, as stated before, their absence creates a presumption of violations of the rights of individuals. This presumption, while valid for all cases where safeguards are not implemented, are also of particular importance for arbitrary detention in state-to-state relations, because ab initio the absence of safeguards constitutes a violation with evidentiary significance.

6.4.3 Critical safeguards

Critical safeguards are essential to preventing and rectifying arbitrary detention in state-to-state relations under international human rights law. A more comprehensive, but not exhaustive, list of safeguards can be found in Annex IV. By ensuring judicial oversight, access to legal representation, humane conditions of detention, and transparency in legal proceedings, these safeguards protect individuals from arbitrary detention. Key safeguards include: the Right to Judicial Oversight which ensures that any detention is subject to independent judicial review, preventing arbitrary detention by allowing detainees to challenge the legality of their detention in State-to-State relations;Footnote 577 the Right to Humane Conditions of Detention, which protects detainees from inhumane or degrading treatment in cases of arbitrary detention, preventing further harm or mistreatment during detention in State-to-State relations;Footnote 578the Right to Information on the Nature and Cause of the Alleged Offense, which ensures that detainees are informed of the nature and cause of the offence for which they are detained, preventing States from abusing their power and ensuring transparency in cases of arbitrary detention within State-to-State relations;Footnote 579 and the Right to Access to a Fair Trial, which guarantees that detainees have the right to be tried before an independent and impartial court, ensuring that arbitrary detention is challenged and that victims have access to justice in State-to-State relations.Footnote 580

Currently, State practice establishes that even in armed conflict, whether international or non-international, no one may be convicted or sentenced except pursuant to a fair trial affording all essential judicial guarantees. The four Geneva Conventions and their Additional Protocol I lay down minimum legal safeguards.Footnote 581 Many of these guarantees and procedural protections are aligned with those found in human rights instruments, such as the UDHRFootnote 582 and the ICCPR.Footnote 583 The basic guarantees and principles set forth by international humanitarian law must be upheld without exception and cannot be subject to derogation.Footnote 584 Additionally, the strict conditions for their application must be recognized and enforced through national legislation. The practice of the UN treaty bodies provides further evidence of the applicability of these safeguards and the impact that derives from their absence.

Generally, the first issue to bear in mind is that detention is an extreme measure against a person, so non-custodial measures, including bail, seizure of travel documents, and electronic monitoring, should always be considered preferential alternatives to deprivation of liberty. In any case, States must ensure that fundamental principles of legality, necessity, proportionality, respect for dignity, and non-discrimination are complied with.

Whenever someone is in police custody or police detention, or subject to any form of deprivation of liberty, the State taking such measures has to secure not only rights related to access to justice and due process of law, including safeguards specific for investigations and information gathering during interviewing consolidated in the Principles on Effective Interviewing for Investigations and Information Gathering (known as The Méndez Principles),Footnote 585 but also safeguards connected to protecting the health and dignity of persons in custody. This is the case, for instance, of the safeguard that guarantees the right to access to medical care and independent medical examination, which should be provided at the earliest opportunity and with due respect to patient-doctor confidentiality. Individuals held in police custody must be treated humanely as prescribed by international standards, including the Nelson Mandela Rules.Footnote 586 Women and children are benefited from rules that take into account their specific conditions. Registration in the place of detention is mandatory, as well as immediate notification of family or third party, to ensure the detainee's access to the outside world and to prevent enforced disappearances and incommunicado detention.

In the case of States that have ratified the European Convention on Human Rights (EcTHR), American Convention on Human Rights (Pacto de San José), Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the African Charter on Human and Peoples' Rights (also known as the Banjul Charter), to mention some widely ratified conventions, there is a treaty-based right for individuals to reparations. Reparations include: compensation for material and moral damages, and, at times, measures of satisfaction and guarantees of non-repetition.

6.5 Conclusions

6.6 Recommendations

Recommendation 23 – States should seek more remedies for the victims of arbitrary detention in state-to-state relations

The Panel recommends that together with the release of arbitrarily detained persons, States ensure that reparations are provided to the victims of arbitrary detention in state-to-state relations in a manner that fully accounts for the harm caused, including restitution, compensation, measures of rehabilitation, non-repetition and satisfaction.

Rationale: In arbitrary detention in state-to-state relations, as an attempt to coerce another State, the instruments of coercion are individuals, their dependents, and those who suffer damage for advocating for their release. Human rights law creates an obligation due to the victims. That obligation includes restitution of the full rights of the victims, compensation for material and moral damages, measures of rehabilitation as needed, as well as the adoption of the norms and regulations designed non-repetition of the acts that led to the violation, and the satisfaction (e.g. form of apologies) to the victims. These reparations are due by the State that violates the detainees’ human rights and the legal obligations under applicable universal and regional treaties and customary international law.

Recommendation 24 – States should ensure effective legislation and mechanisms for victim redress under their domestic laws

The Panel recommends that States ensure that effective legislation and mechanisms exist in their domestic legal systems for the purpose of guaranteeing that the reparations owed to victims in accordance with international law are compensable, notwithstanding the victims’ nationality.

Rationale: Under human rights law, nationality of the victim is not relevant for the purposes of considering a detention arbitrary, and therefore compensable. Universal and regional treaties in this matter use expressions such as “all persons,” or “everyone,” or “no one.” In addition to the plain language, there is no practice in international law that would justify that a detention was not arbitrary based on a victim’s nationality. The presence of an effective system of reparations by itself constitutes a deterrence. States should consider enacting legislation to ensure that direct and indirect victims of arbitrary detention in state-to-state relations benefit, as appropriate, from support, including for reintegration into society after prolonged periods of detention abroad. The Panel also notes that in some national jurisdictions, such as the United States, legislative provision is made to ensure that victims of State hostage-taking and their families receive appropriate support, reparations and other remedies.

Recommendation 25 – States and expert codification bodies, especially the International Law Commission, should cooperate to clarify international law in the context of arbitrary detention in state-to-state relations

The Panel recommends that a group of like-minded States jointly propose the inclusion of the topic of State hostage-taking in the International Law Commission’s programme of work, with a view to the preparation of a set of guidelines, together with commentaries, in the discharge of its mandate to assist States with the progressive development and codification of international law. A letter signed by a representative group of States endorsing the Declaration—from all geographic regions of the United Nations—could provide a strong basis for the Commission to address the issue.

The Panel further recommends that the Commission, acting on the basis of its Statute, also separately consider the inclusion of the topic of Arbitrary detention in state-to-state relations into its long-term programme of work. The latter would require that a member or group of members of the Commission motivate the inclusion of the topic within the Working Group on the Long-Term Programme of Work and, ultimately, the current work programme of the Commission. The output would be the same: the preparation of a set of draft guidelines with commentaries.

Rationale: The International Law Commission was established by the General Assembly in 1947 to assist with the mandate of the Assembly under Article 13(1)(a) of the Charter of the United Nations to “initiate studies and make recommendations for the purpose of... encouraging the progressive development of international law and its codification.” Thus, the International Law Commission is a subsidiary organ of the General Assembly, which reports to the Sixth Committee, and together they have played a significant role in the codification and progressive development of modern international law.

Under the International Law Commission Statute, a State or group of States (such as the signatories to the Declaration or some of them, especially where those can be representative of the various regions) or the General Assembly itself may refer the topic of State hostage-taking or arbitrary detention in state-to-state relations to the Commission and invite it to study the matter. Any such referral should explicitly address the International Law Commission’s established criteria for inclusion of topics on the long-term programme of work. This will require demonstrating that:

  1. the topic meets the needs of States in respect of the progressive development and codification of international law;
  2. the topic is at a sufficiently advanced state in terms of State practice to permit progressive development and codification;
  3. the topic is concrete and feasible for progressive development and codification; and
  4. the topic reflects new developments in international law and pressing concerns of the international community as a whole.

The Panel considers that, while the ultimate decision will be for the International Law Commission itself, these criteria for the inclusion of topics are fulfilled in this case. The Panel notes, in passing, that the Commission could take into account that besides its work on Diplomatic Protection and State Responsibility, it has recently adopted topics on “Reparations to individuals for gross violations of international human rights and serious violations of international humanitarian law” (2021 long-term programme of work) and “Compensation for the damage caused by internationally wrongfully acts” (2025 current programme of work).

The procedures of the International Law Commission ensure thorough consideration of any legal issue included on its agenda and entail regular consultations with States through the Sixth Committee, as well as increasingly with other actors. Placement of the topic on the agenda of the International Law Commission would underline the legal aspects of the practice—which violates several rules and principles of international law—and ensure annual plenary debate consideration of the topic in the Sixth Committee. This will not only give a high profile to the topic, it would also enable the International Law Commission to benefit from the rich State practice available to provide a set of useful guidelines on which the input of all States would be taken into account.

The Panel considers that the same recommendation for the conduct of studies of the topic State hostage-taking would also be relevant at the regional level, taking into account the relevant statutory and institutional contexts by States as well as regional codification bodies, such as the Inter-American Juridical Committee, the African Union Commission on International Law, the Council of Europe Committee of Legal Advisers on Public International Law and the Asian-African Legal Consultative Organization.

Recommendation 26 - States should consider advisory opinions

The Panel recommends that States consider the possibility of requesting, through the United Nations General Assembly or other competent United Nations organs, an Advisory Opinion from the International Court of Justice on the practice of arbitrary detention in state-to-state relations. States should also consider pursuing similar advisory opinions through competent regional judicial bodies, including those in Africa, the Americas, and Europe.

Rationale: While advisory opinions are in principle non-binding, such proceedings, whether before the International Court of Justice or regional bodies, provide all member States and relevant entities with an opportunity to participate in the written and oral proceedings. Statements made before these courts may also help clarify and crystallize international and regional legal norms in this area.

Depending on the formulation of such a request, an advisory proceeding could help shift the issue beyond the confines of bilateral relations, inviting the Court to consider arbitrary detention in state-to-state relations as a grave abuse of rights and a serious affront to the rule of law in international affairs. While advisory opinions are, in principle, non-binding, such a request provides all United Nations member States from all geographic regions an opportunity to participate in the written and oral proceedings before the International Court of Justice—the principal judicial organ of the United Nations. Statements made during these proceedings may also contribute to the clarification and crystallization of international legal norms in this area.

The Panel notes that, in addition to the International Court of Justice, the principal judicial organ of the United Nations, regional human rights courts and tribunals in Africa, Europe, and in the Americas may also be in a position to provide advisory opinions on arbitrary detention in state-to-state relations under their respective legal instruments. These regional jurisdictions have the advantage of broader advisory mandates, particularly in terms of the range of entities that may submit such requests. For example, in the Inter-American system, any of the member States of the Organization of American States, as well as some of its organs, may request an advisory opinion. Similarly, in the African system, the African Court may receive requests from African Union member States, African Union organs, and African organisations, including non-governmental organisations with observer status recognized by the African Union. Under Protocol No. 2 of the European Convention on Human Rights, the European Court may issue advisory opinions at the request of the Committee of Ministers.

Chapter 7

7. Consolidated recommendations

In this final chapter, the various recommendations made at the end of each previous chapter are consolidated in a single place to facilitate access to readers. A brief rationale for the individual recommendations is provided. The substantial analysis underlying the recommendations can be reviewed under the relevant chapter.

The recommendations have been arranged into six parts, with the first part, providing two recommendations on general and definitional issues, followed by seven recommendations on human rights matters in the second part, six recommendations on hostage-taking and international crimes in the third part, five recommendations on internationally wrongful acts in State-to-State relations in the fourth part, four recommendations on accountability and reparations in the fifth part, and finally, two recommendations regarding clarification of the existing law in the sixth part.

Part I – Recommendations on terminological and general issues

Recommendation 1 – States should use consistent terminology to describe the practice

To enhance clarity and ensure a measure of consistency in describing the practice of detaining individuals to leverage their States of nationality or residence as wrongful conduct under international law, the Panel recommends that States use the terms “arbitrary detention in state-to-state relations” (or its variant “arbitrary detention in inter-State relations”) or “State hostage-taking” to describe this practice.

The Panel considers that, under current international law, certain instruments such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (and where applicable regional human rights instruments), apply to arbitrary detention carried out by States. Adoption of the Panel’s terminology would help bolster the legal condemnation of such a practice as violative of both the rights of persons as well as States under international law.

Rationale: A wide variety of terms are used in practice to describe arbitrary detention of individuals as a means of exerting leverage against their States of nationality or residence. These include “arbitrary detention in state-to-state relations,” “State-sponsored arbitrary detention,” “wrongful and unlawful detention,” ‘State kidnapping,” “hostage diplomacy,” “State hostage-taking” or “coercive diplomacy.” The Panel understands that States might, for a range of reasons, prefer different expressions to describe the same phenomenon. Having carefully analysed the merits of each of these terms, however, the Panel sees many advantages in using a common terminology to describe the practice. It is vital that, at every opportunity, States use – especially in the context of universal or regional bodies – the same terminology to describe and condemn the practice. Whether a detention can be classified as State hostage-taking requires that regard be had to the facts of each case based on a totality of the circumstances test. A key feature of this type of detention is the compelling of the other State to do or refrain from doing something. The detained individuals become ‘bargaining chips’, and their release is largely dependent on political negotiations between the concerned States.

The Panel considers that treating arbitrary detention as a diplomatic issue, without naming and shaming the practice as State hostage-taking, emboldens those States that engage in such practices. The States that act in compliance with international law should not hesitate to invoke such laws in the circumstances where it is established that their nationals are being held for the purposes of leveraging.

Recommendation 2 – States should endorse the arbitrary detention declaration

The Panel recommends that more States, from all regions of the world, endorse the Declaration against Arbitrary detention in state-to-state relations. Regional organisations empowered to do so may also endorse the declaration or adopt decisions incorporating its substantive contents.

Rationale: The Declaration on Arbitrary detention in state-to-state relations was launched by Canada in 2021 and has so far been publicly endorsed by 81 States representative of all major regions in the world, and the European Union. It can be expected that further States will join to reaffirm the fundamental importance of the rule of law, independence of the judiciary, respect for human rights, and respect for the obligation to provide consular access in accordance with international law.

The Panel considers that the Declaration, as endorsed, already represents a significant statement by States of their views on the practice under international law. The Panel urges a campaign to achieve universality by increasing the participation of as many States as possible as this would strengthen the normative value of the declaration and send a strong and unified message underlining the importance of this issue, which affects all States. Any State irrespective of geographic region could become victim of such conduct, and all States benefit from stability and compliance with the rule of law in international affairs.

Part II – Recommendations on human rights issues

Recommendation 3 – The United Nations Working Group on Arbitrary Detention should expressly include arbitrary detention in state-to-state relations in its work

The Panel recommends that the United Nations Working Group on Arbitrary Detention amend its list of five bases for a finding of arbitrary detention to include arbitrary detention in state-to-state relations and/or issue a deliberation on that practice.

Rationale: As the main body responsible for investigating cases of arbitrary detention, the United Nations Working Group on Arbitrary Detention regularly receives follow-up responses from many States implicated in past incidents of arbitrary detention in state-to-state relations. Since the three-year mandate of the body is scheduled for renewal before October 2025, this presents an opportune opening to suggest adding to the five categories and build consensus on issuing a specific deliberation with existing members of the Human Rights Council, potentially through Intersessional meetings.

Action on this front can also take the shape of an annual thematic report specifically on rising cases of arbitrary detention in state-to-state relations that cites this report as well as incorporates from other Special Rapporteur reports relevant to the issue. It could also opt for drafting a special country report on States that have been known to use the practice as a regular foreign policy tool based on past incidents rather than a physical country visit.

The United Nations Working Group on Arbitrary Detention could also leverage its quasi-judicial function and legal and moral persuasive authority to promote condemnation of arbitrary detention in state-to-state relations through norm reinforcement. This could include dedicating a particular year to activism around combatting the practice, publishing a statement from the United Nations Working Group on Arbitrary Detention chairperson on the issue, making greater use of the urgent action procedure in such cases and/or making concerted efforts to highlight victims of the practice within Opinions.

Recommendation 4 - States should strengthen the right to consular access for dual nationals

The Panel recommends that States strengthen the right to consular access where a person of dual nationality is detained in one of their States of nationality, and frame consular access as a human rights issue involving, inter alia, prohibition against arbitrary detention, freedom from torture, cruel, inhuman and degrading treatment, and the right to a fair trial, among others. To this end, the Panel recommends concluding an Optional Protocol to the Vienna Convention on Consular Relations regarding the consular rights of dual nationals.

Rationale: Many cases of arbitrary detention in state-to-state relations involve this scenario, leading to conflict between the countries of nationality and ambiguity of rights to consular access. Given the risks inherent in bringing the Vienna Convention on Consular Relations up for further discussion, a practical approach to addressing this issue would be to develop an Optional Protocol to the Vienna Convention on Consular Relations specifically centered on consular rights relating to dual or multi-nationals. Such a Protocol would secure an avenue to affirm the inclusion of dual nationals under the aegis of consular access and notification, reassert the obligations of the receiving State and emphasize deprivation of consular access in situations of arbitrary detention in state-to-state relations as a human right rather than diplomatic issue. Pursuing this plan of action would also create scope to discuss legal issues related to dual nationality and the notion of predominant nationality.

Recommendation 5 – The United Nations General Assembly’s Third Committee should adopt a resolution affirming State hostage taking as a violation of international human rights law

The Panel recommends that the Third Committee of the United Nations General Assembly negotiate and adopt a resolution on the use of State hostage taking as a violation of international human rights law.

Rationale: The United Nations General Assembly’s Third Committee addresses, among other issues, the promotion of human rights and related issues of a cultural and humanitarian character. Universal human rights instruments set out the liberty of persons as a fundamental human right, as also confirmed by many regional and other human rights instruments. Every person is entitled to such rights without distinction of any kind, including on the basis of nationality. State hostage-taking is always a grave violation of human rights of the victim. This practice can be regarded as a form of torture or other inhuman, cruel or degrading treatment or punishment, and may constitute a crime against humanity depending on the circumstances.

The Third Committee could, building on the Declaration on Arbitrary detention in state-to-state relations, condemn the practice of arbitrary detention in State hostage taking, expressing concern about the seeming increasing use of such practice as a tool of coercive diplomacy, and calling on States to refrain from such practices while taking steps to end any such detentions. The same resolution could also request the United Nations Secretary-General to address the issue in his biennial report on the challenges and good practices related to human rights in the administration of justice; and invite the relevant special procedures mandate holders of the United Nations Human Rights Council and treaty bodies to give special attention to arbitrary detention in state-to-state relations.

Recommendation 6 – States should use the universal periodic review to address arbitrary detention in state-to-state relations

The Panel recommends that States take action, individually or jointly, to use the Universal Periodic Review mechanism to raise concerns and make recommendations about the practice of arbitrary detention in state-to-state relations when a detaining State is under review.

Rationale: Under the Universal Periodic Review mechanism, the human rights records of all 193 United Nation member States are scrutinized by other States. It may be used by States to engage in an exchange with the State under review by posing questions, comments, and/or making recommendations in relation to the full gamut of its human rights obligations and practices, including its views and practices on State hostage-taking. The State being examined is expected to provide information on the steps it has taken to implement the recommendations made when it is next reviewed.

Recommendation 7 – The United Nations Human Rights Council should request relevant special rapporteurs to address arbitrary detention in state-to-state relations

The Panel recommends that the United Nations Human Rights Council request country-specific Special Rapporteurs, where relevant, to address the issue of arbitrary detention in state-to-state relations and make recommendations to the detaining State related to the unlawfulness of the practice.

The Panel also encourages United Nations Human Rights Council thematic Special Rapporteurs to make use of joint statements and/or convene an expert meeting on the practice of arbitrary detention in state-to-state relations. Such a meeting could be organised in conjunction with the relevant country-specific Special Rapporteurs.

The Panel further recommends that the Council consider establishing a Special Rapporteur on Arbitrary Detention, whose mandate could include—and in any event would imply—dealing with the practice of arbitrary detention in state-to-state relations. Alternatively, an independent expert could be appointed to deal specifically with the practice of arbitrary detention in state-to-state relations, perhaps on a time-limited basis.

Rationale: The Human Rights Council appoints Special Procedures—individuals serving as Special Rapporteurs or independent experts, and five-member working groups —for thematic or country issues. Some of the mandates of the thematic Special Rapporteurs touch on aspects of the practice of arbitrary detention in state-to-state relations, including those of the Special Rapporteurs on the right to freedom of opinion and expression, on the independence of judges and lawyers, and on the right to reparation, as well as the Special Rapporteur on torture, who has already focused on hostage-taking, including where perpetrated by States, in her 2025 report.

Special Rapporteurs may issue joint public statements on issues of common interest, in which they analyse the law and make recommendations to remedy a situation. Several thematic Special Rapporteurs conduct thematic studies and convene expert consultations contributing to the development of international human rights standards. They could also be called on to act in individual cases of alleged violations and concerns of a broader, structural nature by sending communications to the States concerned.

Recommendation 8 – States parties to relevant human rights treaties should, as appropriate, use inter-state complaint procedures to address arbitrary detention in state-to-state relations

The Panel recommends that States parties to relevant human rights treaties make use of the State-to-State complaint procedure provided for in the treaties, or other options provided for in a treaty, where appropriate, to address cases of State hostage-taking.

Rationale: States parties to relevant treaties are often entitled to initiate inter-State complaints against other States or to engage in pacific means of dispute settlement with respect to compliance with human rights treaty obligations. States could also encourage the submission of individual complaints to a treaty body, alleging violations of the rights covered by the respective treaty, or follow treaty body deliberations in individual cases and the preparation of “general comments” to provide State views on the practice of arbitrary detention in state-to-state relations.

Recommendation 9 – Human rights treaty bodies should, as appropriate, address arbitrary detention in state-to-state relations

The Panel recommends that human rights treaty bodies, within their mandates, address the practice of State hostage-taking and, in so doing, promote the unity and coherence of international legal standards and avoid fragmentation.

Rationale: Human rights treaty bodies are charged with monitoring the implementation of the respective core international human rights treaties. The United Nations human rights treaty body system is made up of committees of independent experts, elected by a meeting of States parties and chosen in their personal capacity. The outcomes of treaty bodies could serve to raise awareness of the practice of arbitrary detention in state-to-state relations in a concerted manner and produce a variety of expert opinions on various violations involved.

Depending on their mandates, the activities undertaken by human rights treaty bodies may include receiving periodic reports from States parties; engaging in dialogue with, and issuing concluding observations on, a State’s compliance with its obligations under the relevant treaty; receiving and issuing findings with respect to individual complaints—submitted either by aggrieved individuals directly or by persons on their behalf; inter-State complaints where provided for and if the particular treaty’s jurisdictional and admissibility requirements are met; initiating, on their own initiative, inquiries if they receive reliable information containing well-founded indications of systematic violations of the relevant treaty by a State Party; issuing general comments or general recommendations, which are considered to be authoritative treaty body interpretations of the provisions of each of the instruments and serve as a means of facilitating respect for the respective treaty; holding days of general discussion or thematic debate; and taking early warning measures aimed at preventing existing situations from escalating into conflicts and urgent procedures to respond to problems requiring immediate attention to prevent or limit the scale or number of serious violations of a convention.

Part III – Recommendation on hostage-taking and other international crimes

Recommendation 10 –All forms of hostage-taking should be condemned

The Panel recommends that the international community, at both the State and international organisation level, condemn all forms of hostage-taking, including when perpetrated by States.

Rationale: A wider international recognition of arbitrary detention in state-to-state relations as hostage-taking within the meaning of 1979 Hostages Convention is required. In particular, it is important to reduce the air of legitimacy surrounding the practice of arbitrary detention in state-to-state relations by highlighting that the Convention is applicable to acts of hostage-taking by State officials. The Panel recalls that the Special Rapporteur on Torture, in her report on hostage-taking, also states that “the international community must condemn all forms of hostage-taking” and requires that States, “[i]n particular, recognize that arbitrary detention for leverage is hostage-taking.”Footnote 587

Recommendation 11 – The United Nations General Assembly should adopt a resolution on State hostage-taking

The Panel recommends that the United Nations General Assembly adopt a resolution reiterating its earlier statement that hostage-taking is unjustifiable under any circumstances and specifying that the same applies to hostage-taking as State policy. States should refer to Resolution 61/172 in other resolutions and texts to highlight its importance and relevance in current conditions.

Rationale: A General Assembly Resolution, even though non-binding per se, can be influential. Such a resolution may crystallize existing obligations or serve as a precursor to binding instruments. As for adding references to the resolution, States may do so in many relevant contexts, including the work of the Human Rights Council and the Third and Sixth Committees of the United Nations General Assembly.

Recommendation 12 – States parties to the Hostages Convention should seek to strengthen implementation

The Panel Recommends that States parties to the 1979 Hostages Convention consider opening a process of consultation to see how they can further the implementation of the Convention, respond to particular dilemmas in its application, and facilitate their mutual cooperation.

Rationale: In the Panel’s assessment, the most obvious problem regarding the Hostages Convention in the context of State hostage-taking is the abuse of State power contrary to the object and purpose of the Convention. The Panel therefore recommends establishing a forum for States parties to cooperate in strengthening the implementation of the provisions of the Convention, in particular those regarding prevention and cooperation, in situations of State hostage-taking. States parties could enter into a subsequent agreement regarding the interpretation or application of the relevant provisions of the Hostages Convention. Such consultations could, for instance, consider clarifying that all persons who contribute to State hostage-taking with the aim of furthering its unlawful purposes are criminally responsible under the convention. Modern formulations of individual criminal responsibility encompass a broad range of acts that contribute to a crime committed by a plurality of persons.Footnote 588

Recommendation 13 – States parties should adopt an optional protocol to the Hostages Convention to establish a special fund for victims

The Panel recommends that States parties to the 1979 Hostages Convention consider adoption of an optional protocol to the convention providing for the establishment of a special fund to assist victims of State hostage-taking.

Rationale: Detainees report to the Panel that one of their foremost concerns is for the welfare of family members and children affected by the wrongful detention. Similar to the Special Fund established under the Optional Protocol to the Convention against Torture,Footnote 589 a special fund related to wrongful detentions in State-to-State relations established within the framework of the United Nations General Assembly could provide assistance to victims and their families, in addition to outreach efforts, educational efforts, support to State institutions, and a wide range of projects dedicated to supporting victims and eradicating the recurrent practice of arbitrary detentions employed by States seeking to gain diplomatic leverage over other States.

The optional protocol could be formulated along the lines of Article 26 of the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. Article 26 of the Optional Protocol to the Convention against Torture provides as follows:

  1. A Special Fund shall be set up in accordance with the relevant procedures of the General Assembly, to be administered in accordance with the financial regulations and rules of the United Nations, to help finance the implementation of the recommendations made by the Subcommittee on Prevention after a visit to a State Party, as well as education programmes of the national preventive mechanisms.
  2. The Special Fund may be financed through voluntary contributions made by Governments, intergovernmental and non-governmental organisations and other private or public entities.

Recommendation 14 – States parties should use the 1984 Torture Convention in the context of arbitrary detention in state-to-state relations

The Panel recommends that States parties use the mechanisms and procedures provided under the Convention against Torture and its Optional Protocol to address situations of arbitrary detention in state-to-state relations.

Rationale: Victims of arbitrary detention in state-to-state relations, or State hostage-taking, are particularly vulnerable to torture. This practice may also as such amount to torture or other acts of cruel, inhuman and degrading treatment or punishment. The Convention against Torture and its Optional Protocol provide procedures, such as the inquiry and complaints procedure of the Optional Protocol to the Convention against Torture, that can be used to make the plight of the victims of State hostage-taking more visible and to contribute to ensuring the accountability of the perpetrators.

Recommendation 15 – States should consider criminalizing hostage-taking as a crime against humanity in a future convention

The Panel recommends that States consider adding hostage-taking, as understood in the 1979 Hostages Convention, as an underlying act to the definition of crimes against humanity in the upcoming United Nations General Assembly negotiations of a Convention on the Prevention and Punishment of Crimes against Humanity.

Rationale: As recommended by the International Law Commission, and decided by the United Nations General Assembly in December 2024, States will begin negotiations on a legally binding instrument on the Prevention and Punishment of Crimes against Humanity in 2026, with a view to convening a diplomatic conference in 2028. While the threshold for crimes against humanity is high, there are situations, in which arbitrary detention used as a tool to put pressure on another State constitutes, or is part of, a widespread or systematic attack against a civilian population.

The Panel notes that several already recognized crimes against humanity proscribe certain conduct of similar gravity, for instance, Article 7(1) of the Rome Statute prohibits “torture” and the “imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law.”Footnote 590 The Special Rapporteur on Torture, while concluding that “hostage-taking involves torture other cruel, inhuman or degrading treatment,” also suggests that hostage-taking should be incorporated as an explicit offence in the draft articles on prevention and punishment of crimes against humanity.Footnote 591

Part IV – Recommendations on internationally wrongful acts in state-to-state relations

Recommendation 16 –States should be more proactive in condemning arbitrary detention in state-to-state relations in multilateral fora

The Panel recommends that States be more proactive in highlighting the internationally wrongful nature of arbitrary detention in state-to-state relations in multilateral fora. This is required to avoid normalizing as a tool of diplomacy an abhorrent practice that violates core international rules. Being more proactive is without prejudice to the need for confidentiality regarding individual cases.

Rationale: In addition to being a grave human rights violation, and an international crime, the practice of arbitrary detention in state-to-state relations violates the rights of the target State, for instance the prohibition of intervention in the internal or external affairs of another State. A violation of the non-intervention principle remains a wrongful act, whether or not the target State complies with the demand. Focusing on arbitrary detention in state-to-state relations as a wrongful practice, the recommendation acknowledges the need for confidentiality regarding individual cases and the need to prioritize the safety of those detained.

Relevant multilateral fora in this context could be the United Nations Security Council, the United Nations General Assembly, its committees and subsidiary bodies as well as regional bodies. Options for being more vocal could include, inter alia, presidential statements, declarations, joint statements, media stakeouts, language in resolutions, inclusion in high-level speeches, and include requesting thematic reports and contributing to them, or proposing Special Procedures (See also Part II recommendations on human rights issue).

Recommendation 17 – States should affirm their right to question the lawfulness of arbitrary detentions

The Panel also recommends that States affirm their right to question the lawfulness of the acts of judicial authorities in cases of arbitrary detention in state-to-state relations.

Rationale: Questioning the lawfulness of arbitrary detention of foreign nationals should not be conflated with an attempt to interfere with national sovereignty and the judicial processes in the detaining State. It should be recalled that intervention is only prohibited when it uses methods of coercion concerning matters in which each State is permitted to decide freely. Arbitrary detention in order to compel or coerce remains wrongful and cannot be justified by invoking the domestic law of the detaining State. Assessments of the wrongfulness of the detention would depend on the facts of each case.

Recommendation 18 – The United Nations General Assembly’s Sixth Committee should adopt a thematic focus on arbitrary detention in state-to-state relations in relation to the rule of law at the national and international levels

The Panel recommends that the Sixth Committee of the United Nations General Assembly consider adopting a thematic focus on State hostage-taking in the context of its standing agenda item on the “Rule of Law at the National and International Levels” to raise awareness of the practice.

Rationale: The Sixth Committee considers a wide range of questions of international law. A longstanding agenda item concerns the current state of the rule of law at the national and international levels. An annual thematic focus to the debates enables States to address their views to the relevant topic. By proposing the selection of arbitrary detention in state-to-state relations as a theme for one of the upcoming years, the Sixth Committee could help States, in the context of the plenary debate, to shine a spotlight on the unlawful nature of arbitrary detention in state-to-state relations.

Recommendation 19 – The United Nations Security Council members should organize an Arria formula meeting on arbitrary detention in state-to-state relations to highlight the threats the practice poses to international peace and security

The Panel recommends that one or more of the 15 United Nations Security Council members organize an Arria formula meeting on arbitrary detention in state-to-state relations. Such a meeting could be used to highlight the issue of State hostage-taking and its potential to create or maintain friction in relations among States, as well as its implications for human rights. It could also serve to establish a procedure within the United Nations for listing, at the request of States of nationality, persons considered to be arbitrarily detained for political or diplomatic leverage. Such a list could possibly subsequently provide a basis for a bilateral, multilateral, or United Nations sanctions process.

Rationale: The United Nations Security Council has the primary responsibility for the maintenance of international peace and security, and State hostage-taking has the potential to negatively affect international peace and security. While State hostage-taking has so far directly concerned a limited number of States, it is of a nature to shock the conscience of the international community as a whole, being a grave abuse of State authority and an affront to human rights and the peaceful conduct of international relations.

Against this backdrop, a United Nations Security Council “Arria formula” meeting could usefully generate greater awareness of arbitrary detention in state-to-state relations as a source of friction in relations between States. Arria formula meetings provide interested Council members an opportunity to engage in a direct dialogue with high representatives of governments and international organisations, as well as non-State parties, on matters with which they are concerned and which fall within the purview of the Security Council’s responsibilities.

Recommendation 20 – States could take into account a nominating State’s record in elections

The Panel recommends that a State’s record in relation to arbitrary detention in state-to-state relations is taken into account by other States when assessing whether or not to support the nomination of that State to multilateral bodies. This could be a relevant consideration also regarding individual candidates nominated by that State for international positions of trust, especially when they have a direct connection to such practice.

Rationale: Current State practice permits States to consider a variety of explicit and implicit criteria when selecting which States or individuals can secure their support in voting for positions in the United Nations bodies or in other international organisations. In addition to the qualifications of the nominee for the position, which should be the primary consideration, the nominating State’s practice on State hostage-taking could be an element for other States to consider in international elections since the decision on whom to elect is to some extent a political act.

Part V – Recommendations on accountability and reparations

Recommendation 21 – States should invoke State and individual responsibility in the context of arbitrary detention in state-to-state relations

The Panel recommends that States seek to hold accountable violating States and/or their agents responsible for arbitrary detention in state-to-state relations, using all lawful tools at their disposal consistent with the Charter of the United Nations. State responsibility and individual criminal responsibility should be pursued through inter-State proceedings before appropriate international and regional courts and through prosecutions in national courts where jurisdiction exists.

Rationale: Arbitrary detention in state-to-state relations violates several fundamental rules of international law. In addition to being a grave human rights violation and an international crime, such practice often breaches the prohibition of intervention in the internal or external affairs of another State. The continued use of State hostage-taking with impunity undermines the peaceful conduct of international relations and threatens the rule of law in international affairs.

While criminal prosecution in accordance with the 1979 Hostages Convention would in most cases require cooperation of the territorial State (regarding extradition, legal assistance, or waiver of immunity in case of State officials), acts of former State officials, to the extent they fulfill the criteria of torture, or crimes against humanity, could be investigated and prosecuted in foreign national courts. The Panel notes that, as of writing, 74 States have accepted the compulsory jurisdiction of the International Court of Justice. Regarding State-to-State relations, there may be also other bilateral and multilateral conventions, which provide for the jurisdiction of the International Court of Justice (Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes; bilateral treaties of friendship, commerce and navigation etc.).

Recommendation 22 – States should seek full reparation for arbitrary detention in state-to-state relations

The Panel recommends that States focus more on pursuing the legal consequences of arbitrary detention in state-to-state relations as an internationally wrongful act, including the obligation of the detaining State to make full reparation. Full reparation could include requiring compensation of the costs of the measures the former detainee’s re-integration into society requires.

Rationale: While the release of the detained person is the target State’s immediate objective, other elements of reparations are also important. They serve the broader goal of bringing the practice of arbitrary detention in state-to-state relations to an end. The responsible State’s obligation to cease the wrongful conduct protects the relevant international rules, and the interests of the international community as a whole in upholding the rule of law in international relations. Reparations also have an important role in restoring the bilateral relations between the injured State and the responsible State.

Recommendation 23 – States should seek more remedies for the victims of arbitrary detention in state-to-state relations

The Panel recommends that together with the release of arbitrarily detained persons, States ensure that reparations are provided to the victims of arbitrary detention in state-to-state relations in a manner that fully accounts for the harm caused, including restitution, compensation, measures of rehabilitation, non-repetition and satisfaction.

Rationale: In arbitrary detention in state-to-state relations, as an attempt to coerce another State, the instruments of coercion are individuals, their dependents, and those who suffer damage for advocating for their release. Human rights law creates an obligation due to the victims. That obligation includes restitution of the full rights of the victims, compensation for material and moral damages, measures of rehabilitation as needed, as well as the adoption of the norms and regulations designed non-repetition of the acts that led to the violation, and the satisfaction (e.g. form of apologies) to the victims. These reparations are due by the State that violates the detainees’ human rights and the legal obligations under applicable universal and regional treaties and customary international law.

Recommendation 24 – States should ensure effective legislation and mechanisms for victim redress under their domestic laws

The Panel recommends that States ensure that effective legislation and mechanisms exist in their domestic legal systems for the purpose of guaranteeing that the reparations owed to victims in accordance with international law are compensable, notwithstanding the victims’ nationality.

Rationale: Under human rights law, nationality of the victim is not relevant for the purposes of considering a detention arbitrary, and therefore compensable. Universal and regional treaties in this matter use expressions such as “all persons,” or “everyone,” or “no one.” In addition to the plain language, there is no practice in international law that would justify that a detention was not arbitrary based on a victim’s nationality. The presence of an effective system of reparations by itself constitutes a deterrence. States should consider enacting legislation to ensure that direct and indirect victims of arbitrary detention in state-to-state relations benefit, as appropriate, from support, including for reintegration into society after prolonged periods of detention abroad. The Panel also notes that in some national jurisdictions, such as the United States, legislative provision is made to ensure that victims of State hostage-taking and their families receive appropriate support, reparations and other remedies.

Part VI – Recommendations regarding clarification of the applicable international law

Recommendation 25 – States and expert codification bodies, especially the International Law Commission, should cooperate to clarify international law in the context of arbitrary detention in state-to-state relations

The Panel recommends that a group of like-minded States jointly propose the inclusion of the topic of State hostage-taking in the International Law Commission’s programme of work, with a view to the preparation of a set of guidelines, together with commentaries, in the discharge of its mandate to assist States with the progressive development and codification of international law. A letter signed by a representative group of States endorsing the Declaration—from all geographic regions of the United Nations—could provide a strong basis for the Commission to address the issue.

The Panel further recommends that the Commission, acting on the basis of its Statute, also separately consider the inclusion of the topic of Arbitrary detention in state-to-state relations into its long-term programme of work. The latter would require that a member or group of members of the Commission motivate the inclusion of the topic within the Working Group on the Long-Term Programme of Work and, ultimately, the current work programme of the Commission. The output would be the same: the preparation of a set of draft guidelines with commentaries.

Rationale: The International Law Commission was established by the General Assembly in 1947 to assist with the mandate of the Assembly under Article 13(1)(a) of the Charter of the United Nations to “initiate studies and make recommendations for the purpose of... encouraging the progressive development of international law and its codification.” Thus, the International Law Commission is a subsidiary organ of the General Assembly, which reports to the Sixth Committee, and together they have played a significant role in the codification and progressive development of modern international law.

Under the International Law Commission Statute, a State or group of States (such as the signatories to the Declaration or some of them, especially where those can be representative of the various regions) or the General Assembly itself may refer the topic of State hostage-taking or arbitrary detention in state-to-state relations to the Commission and invite it to study the matter. Any such referral should explicitly address the International Law Commission’s established criteria for inclusion of topics on the long-term programme of work. This will require demonstrating that:

  1. the topic meets the needs of States in respect of the progressive development and codification of international law;
  2. the topic is at a sufficiently advanced state in terms of State practice to permit progressive development and codification;
  3. the topic is concrete and feasible for progressive development and codification; and
  4. the topic reflects new developments in international law and pressing concerns of the international community as a whole.

The Panel considers that, while the ultimate decision will be for the International Law Commission itself, these criteria for the inclusion of topics are fulfilled in this case. The Panel notes, in passing, that the Commission could take into account that besides its work on Diplomatic Protection and State Responsibility, it has recently adopted topics on “Reparations to individuals for gross violations of international human rights and serious violations of international humanitarian law” (2021 long-term programme of work) and “Compensation for the damage caused by internationally wrongfully acts” (2025 current programme of work).

The procedures of the International Law Commission ensure thorough consideration of any legal issue included on its agenda and entail regular consultations with States through the Sixth Committee, as well as increasingly with other actors. Placement of the topic on the agenda of the International Law Commission would underline the legal aspects of the practice—which violates several rules and principles of international law—and ensure annual plenary debate consideration of the topic in the Sixth Committee. This will not only give a high profile to the topic, it would also enable the International Law Commission to benefit from the rich State practice available to provide a set of useful guidelines on which the input of all States would be taken into account.

The Panel considers that the same recommendation for the conduct of studies of the topic State hostage-taking would also be relevant at the regional level, taking into account the relevant statutory and institutional contexts by States as well as regional codification bodies, such as the Inter-American Juridical Committee, the African Union Commission on International Law, the Council of Europe Committee of Legal Advisers on Public International Law and the Asian-African Legal Consultative Organization.

Recommendation 26 – States should consider advisory opinions

The Panel recommends that States consider the possibility of requesting, through the United Nations General Assembly or other competent United Nations organs, an Advisory Opinion from the International Court of Justice on the practice of arbitrary detention in state-to-state relations. States should also consider pursuing similar advisory opinions through competent regional judicial bodies, including those in Africa, the Americas, and Europe.

Rationale: While advisory opinions are in principle non-binding, such proceedings, whether before the International Court of Justice or regional bodies, provide all member States and relevant entities with an opportunity to participate in the written and oral proceedings. Statements made before these courts may also help clarify and crystallize international and regional legal norms in this area.

Depending on the formulation of such a request, an advisory proceeding could help shift the issue beyond the confines of bilateral relations, inviting the Court to consider arbitrary detention in state-to-state relations as a grave abuse of rights and a serious affront to the rule of law in international affairs. While advisory opinions are, in principle, non-binding, such a request provides all United Nations member States from all geographic regions an opportunity to participate in the written and oral proceedings before the International Court of Justice—the principal judicial organ of the United Nations. Statements made during these proceedings may also contribute to the clarification and crystallization of international legal norms in this area.

The Panel notes that, in addition to the International Court of Justice, the principal judicial organ of the United Nations, regional human rights courts and tribunals in Africa, Europe, and in the Americas may also be in a position to provide advisory opinions on arbitrary detention in state-to-state relations under their respective legal instruments. These regional jurisdictions have the advantage of broader advisory mandates, particularly in terms of the range of entities that may submit such requests. For example, in the Inter-American system, any of the member States of the Organization of American States, as well as some of its organs, may request an advisory opinion. Similarly, in the African system, the African Court may receive requests from African Union member States, African Union organs, and African organisations, including non-governmental organisations with observer status recognized by the African Union. Under Protocol No. 2 of the European Convention on Human Rights, the European Court may issue advisory opinions at the request of the Committee of Ministers.

Bibliography

107th Congress (2001-2002), Foreign Relations Authorization Act, Fiscal Year 2003, HR 1646 2002, 702(5).

African Commission on Human and Peoples’ Rights, Principles and Guidelines on Human and Peoples’ Rights while Countering Terrorism in Africa, 2015.

Asian Human Rights Commission, Asian Human Rights Charter, 1998.

Association of Southeast Asian Nations, ASEAN Human Rights Declaration, 2012.

Council of Europe, Council of Europe Convention on the Prevention of Terrorism, No. 196 2006.

———, European Convention for the Protection of Human Rights and Fundamental Freedoms and Protocol, ETS 5 1950.

Institute of International Law, The Protection of Human Rights and the Principle of Non-Intervention in Internal Affairs of States, 1989.

International Atomic Energy Agency, Amendment to the Convention on the Physical Protection of Nuclear Materials, 2005.

International Committee of the Red Cross, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention), 75 UNTS 31 1949.

———, Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention), 75 UNTS 85 1949.

———, Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 75 UNTS 287 1949.

———, Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), 75 UNTS 135 1949.

———, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1125 UNTS 3 1977.

———, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 1125 UNTS 609 1977.

International Maritime Organization, Protocol of 2005 to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 2005.

League of Arab States & UN Office of the High Commissioner for Human Rights (OHCHR), Arab Charter on Human Rights, 2004.

Organisation of Islamic Cooperation, Cairo Declaration of the OIC on Human Rights, 2020.

Organization of African Unity, African Charter on Human and Peoples’ Rights (Banjul Charter), CAB/LEG/67/3 1986.

Organization of American States, American Convention on Human Rights (Pact of San Jose), 1969.

———, American Declaration of the Rights and Duties of Man, 1948.

———, Charter of the Organization of American States, 119 UNTS 3 1948.

Organization of American States General Assembly, International Law, AGRES 3030 LIV-O24 2024.

UN Commission on Human Rights, Commission on Human Rights Resolution 2003/8: Human Rights Situation of the Lebanese Detainees in Israel, E/CN4/RES/2003/8 2003.

UN General Assembly, Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, A/RES/2625(XXV) 1971.

———, Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, A/RES/2131(XX) 1965.

———, Resolution 61/172 Adopted by the UN General Assembly: Hostage-Taking, A/RES/61/172 2007.

———, Statute of the International Law Commission, A/RES/174(II) 1947.

UN Security Council, Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994, S/RES/955 1994.

———, Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (International Tribunal for the Former Yugoslavia), S/RES/827 1993.

———, Statute of the Special Court for Sierra Leone, S/2002/246 2002.

UNGA, Universal Declaration of Human Rights, UN Doc A810 1948.

United Nations, Charter of the United Nations, 1 UNTS XVI 1945.

———, Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, 1035 UNTS 167 1973.

———, Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277 1948.

———, International Convention on the Suppression of Acts of Nuclear Terrorism, 2445 UNTS 89 2005.

———, International Convention on the Suppression of Terrorist Bombings, 2149 UNTS 256 1997.

———, International Convention on the Suppression of the Financing of Terrorism, 2178 UNTS 197 1999.

———, Rome Statute of the International Criminal Court, A/CONF183/9 1998.

———, Statute of the International Court of Justice, 1945.

———, Vienna Convention on the Law of Treaties, 1155 UNTS 331 1969.

United Nations General Assembly, Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 2167 UNTS 3 1995.

———, Agreement under the United Nations Convention on the Law of the Sea on the Conservation and the Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction, A/RES/78/272 2024.

———, Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 2375 UNTS 237 2002.

United Nations International Law Commission, Expulsion of Aliens, Memorandum by the Secretariat, UN Doc ACN4565 2006.

Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, A/RES/43/173 1988.

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 UNTS 85 1987.

Convention on Certain Questions Relating to the Conflict of Nationality Law, 179 LNTS 4137 1930.

Convention on the Elimination of All Forms of Discrimination Against Women, 1249 UNTS 13 1981.

Convention on the Rights of Persons with Disabilities, 2515 UNTS 3 2006.

Convention on the Rights of the Child, 1577 UNTS 3 1989.

International Convention Against the Taking of Hostages, 1316 UNTS 205 1979.

International Convention for the Protection of All Persons from Enforced Disappearance, 2716 UNTS 3 2006.

International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 2220 UNTS 3 2003.

International Covenant on Civil and Political Rights, 999 UNTS 171 1966.

UN Standard Minimum Rules for the Treatment of Prisoners, A/RES/70/175 2015.

United Nations Convention on the Law of the Sea, 1833 UNTS 397 1982.

Vienna Convention on Consular Relations, 596 UNTS 261 1963.

Abd Ali Hameed Al-Waheed (Appellant) v Ministry of Defence (Respondent), [2017] UKSC 2.

Adamov (Evgeny) v Federal Office of Justice Appeal Judgment, [2005] Case No. 1A 288/2005, ILDC 339 (CH 2005).

Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), [2012] ICJ Rep 2012.

AM & Anor v The Refugee Appeals Tribunal & Ors, [2014] IEHC 388.

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, [2007] ICJ Rep 2007.

Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v Russian Federation), 2019 International Court of Justice.

Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v Russian Federation), [2024] ICJ Rep 2019 .

Border and Transborder Armed Actions (Nicaragua v Honduras), [1988] ICJ Rep 1988.

Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), [2010] ICJ Rep 639.

Case Concerning Avena and Other Mexican Nationals (Mexico v United States of America), [2004] ICJ Rep 12.

Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria), Preliminary Objections, Judgement, [1998] ICJ Rep 1998.

Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v Iran), [1980] ICJ Rep 1980 3.

Case of Acosta Martínez et al. v Argentina, Judgment of August 31, 2020 (Merits, Reparations and Costs), [2020] Inter-American Court of Human Rights (ser C) No. 410.

Case of Fernández Prieto and Tumbeiro v Argentina, Judgment of September 1, 2020 (Merits and Reparations), [2020] Inter-American Court of Human Rights (ser C) No. 411.

Case of Gangaram Panday v Suriname, [1994] Inter-American Court of Human Rights (ser C) No. 16.

Case of Hilal Mammadov v Azerbaijan, [2016] App. No. 81553/12.

Case of Mohammadi v Austria, [2014] App. No. 71932/12.

Case of Ossewaarde v Russia, [2023] App. No. 27227/17.

Case of Rashad Hasanov and Others v Azerbaijan, [2018] App. No. 48653/13.

Case of Taganrog Lro and Others v Russia, [2022] App. No. 32401/10.

Case of Tzompaxtle Tecpile and others vs. Mexico, Judgement, Merits, Reparations and Costs, [2022] Inter-American Court of Human Rights (ser C) No. 470.

Case of Velez Loor v Panama, Preliminary Objections, Merits, Reparations and Costs, [2010] Inter-American Court of Human Rights (ser C) No. 218.

Case of X v Sweden, [2018] App. No. 36417/16.

Corfu Channel (United Kingdom of Great Britain and Northern Ireland v Albania), [1949] ICJ Rep 4.

Dr Amin Mekki Medani and Mr Farouq Abu Eissa v Republic of Sudan, [2022] (Communication 511/15) ACHPR 3.

Genge v Chief Executive, Department of Corrections, [2018] NZHC 1447.

Ibrahimov and Mammadov v Azerbaijan, [2020] App. No. 63571/16.

Immunities and Criminal Proceedings (Equatorial Guinea v France) Preliminary Objections, Judgement, [2018] ICJ Rep 2018.

Jadhav Case (India v Pakistan), [2019] ICJ Rep 2019.

Jean-Marie Atangana Mebara v Cameroon, [2015] (Communication 416/12) ACHPR 3.

John Does v Ministry of Defence, [2000] CrimFH 7048/97.

LaGrand Case (Germany v United States of America), [2001] ICJ Rep 466.

Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, Including East Jerusalem, [2024] ICJ Rep 2024.

Legality of the Use of Force (Yugoslavia v Spain) Provisional Measures Order, [1999] ICJ Rep 1999.

Mergé Case, [1955] Decision No. 55 UNRIAA vol XIV (Sales No. 65V4).

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States), [1986] ICJ Rep 1986.

Mohammed Abderrahim El Sharkawi (represented by EIPR and OSJI) v the Republic of Egypt, [2020] (Communication 396/11) ACHPR 521.

Nuclear Tests (Australia v France), [1974] ICJ Rep 1974.

Order of the Inter-American Court of Human Rights of July 11th, 2007 Provisional Measures regarding Mexico Matter of Gallardo Rodríguez, [2002] Inter-American Court of Human Rights (ser E).

Partial Decision as to the Admissibility of Application No. 51243/08 by Dmitriy Petrovich Puzan Against Ukraine, [2009] App. No. 51243/08.

Peraldi v France (dec), [2009] App. No. 2096/05.

Prosecutor v Clément Kayishema and Obed Ruzindana, Judgment, Trial Chamber II, [1999] Case No. ICTR-95-1-T.

Prosecutor v Delalić, Judgment, [1998] Case No. IT-96-21-T.

Prosecutor v Dragoljub Kunarac, Radomir Kovač and Zoran Vuković, Judgment, Trial Chamber, [2001] Case No. IT-96-23-T & IT96-23/1-T.

Prosecutor v Duško Tadić a/k/a “Dule”, Opinion and Judgment, Trial Chamber, Judicial Reports 1997, [1997] Case No. IT-94-1-T.

Prosecutor V Germain Katanga and Mathieu Ngudjolo Chui Decision on the Confirmation of Charges, Pre-Trial Chamber I, [2008] Case No. ICC-01/04-01/07.

Prosecutor V Jean-Pierre Bemba Gombo, Judgment Pursuant to Article 74 of the Statute, Trial Chamber Iii, [2016] Case No. ICC-01/05-01/08.

Prosecutor V Laurent Gbagbo, Decision on the Confirmation of Charges Against Laurent Gbagbo, Pre-Trial Chamber Ii, [2014] Case No. ICC-02/11-01/11.

Prosecutor v Mile Mrkšić, Miroslav Radić and Veselin Šljivančanin, Judgment, Trial Chamber II, [2007] Case No. IT95-13/1-T.

Prosecutor v Milorad Krnojelac (Trial Judgement), [2002] No. IT-97-25-T.

Prosecutor v Radovan Karadžić, Public Redacted Version of Judgment, [2016] Case No. IT-95-5/18-T.

Prosecutor v Sesay, Kallon, & Gbao, Judgment, [2009] Case No. SCSL-04-15.

Prosecutor v Tihomir Blaskić, Judgment on Appeal, [2004] Case No. IT-95-14.

Prosecutor v Zoran Kupreškić et al., Judgment, Trial Chamber, Judicial Supplement No. 11, [2000] Case No. IT-95-16-T.

Rahim v The Minister of Home Affairs, [2015] (965/2013) ZASCA 92.

Re Woolley; Ex Parte Applicants M276/2003 by Their Next Friend Gs, [2004] HCA 49.

Saiga MIV “SAIGA” (No 2) (Saint Vincent and the Grenadines v Guinea), [1999] ITLOS Rep 1999.

Simpson v Socialist People’s Libyan Arab Jamahiriya, [2006] DC Cir 2003 356.

Situation in the Republic of Kenya, Prosecutor, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, [2010] ICC Case No. ICC-01/09, ICL 924.

Subject of four Mayangna indigenous people deprived of their liberty regarding Nicaragua, Provisional Measures, Resolution of the Inter-American Court of Human Rights [2025]

The Matter of Ally Rajabu and Others v United Republic of Tanzania, [2019] App. No. 007/2015.

The State v The Officer In-Charge | Ex Parte: Banda & Others, [2022] MWHC 139 (Judicial Review 28 of 2018).

Western Sahara, Advisory Opinion, [1975] ICJ Rep 12.

Zimbabwe Human Rights NGO Forum v Zimbabwe, [2006] (Communication 245 of 2002) ACHPR 73.

Bonafè, Beatrice, The Relationship Between State and Individual Responsibility for International Crimes (Leiden: Brill, 2009).

Cassese, Antonio & Paola Gaeta, Cassese’s International Criminal Law (Oxford University Press, 2013).

Fröhlich, Manuel & Abiodun Williams, eds, The UN Secretary-General and the Security Council: A Dynamic Relationship (Oxford: Oxford University Press, 2018).

Henckaerts, Jean-Marie & Louise Doswald-Beck, Customary International Humanitarian Law: Volume 1: Rules, 1 (Cambridge: Cambridge University Press, 2005).

International Court of Justice, France Institutes Proceedings Against Iran, Press Release No 2025/26 (2025).

International Criminal Court, Elements of Crimes (International Criminal Court, 2013).

Kolb, Robert, Good Faith in International Law (Portland: Hart Publishing, 2017).

Kolb, Robert, La Bonne Foi En Droit International Public (Geneva: Graduate Institute Publications, 1998).

Lambert, Joseph J, Terrorism and Hostages in International Law: A Commentary on the Hostages Convention 1979 (Cambridge: Grotius Publications, 1990).

McGregor, Lorna, Detention and its Alternatives under International Law (Oxford: Oxford University Press, 2023).

Roscini, Marco, International Law and the Principle of Non-Intervention: History, Theory, and Interactions with Other Principles (Oxford: Oxford University Press, 2024).

Schmitt, Michael, Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (Cambridge: Cambridge University Press, 2017).

Simma, Bruno, The Charter of the United Nations: A Commentary, 2nd ed, 1 (Oxford: Oxford University Press, 2002).

UN General Assembly, International Covenant on Civil and Political Rights, United Nations, Treaty Series, vol. 999, p. 171, 16 December 1966, 999 (1966).

UN Human Rights Council, Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: Hostage-Taking as Torture, 58th Sess, UN Doc A/HRC/58/55 (2024).

UNGA Secretary-General, Special Fund established by the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment U.N. Doc. A/HRC/58/32, 31 December 2024.

United Nations Committee Against Torture (CAT), General Comment No. 4 (2017) on the Implementation of Article 3 of the Convention in the Context of Article 22. (2018).

Weatherall, Thomas, Duality of Responsibility in International Law: The Individual, the State, and International Crimes (Leiden: Brill, 2022).

Acer, Eleanor & Jake Goodman, “Reaffirming Rights: Human Rights Protections of Migrants, Asylum Seekers, and Refugees in Immigration Detention” (2010) Int Migr Bill Rights Symp.

Associated Press, “China Releases a Tibetan Scholar From Prison”, N Y Times (2002).

CBC, “Trial of Michael Kovrig concludes with verdict to come later, Chinese court says”, CBC News (22 March 2021).

Cerna, Christina, “Reflections on the Normative Status of the American Declaration of the Rights and Duties of Man Anniversary Contributions - International Human Rights” (2009) 30:4 Univ Pa J Int Law 1211–1238.

Dayal, Anjali, “How the U.N. Secretary-General Gets Around Security Council Gridlock. United States Institute of Peace.”, U S Inst Peace (2023).

Eckhard, Frederic, “Whose Responsibility to Protect?” (2011) 3:1 Glob Responsib Prot 89–101.

European Union, “Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on Combating Terrorism and Replacing Council Framework Decision 2002/475/Jha and Amending Council Decision 2005/671/Jha” (2017) 31:3 Off J Eur Union.

Ferstman, Carla & Marina Sharpe, “Iran’s Arbitrary Detention of Foreign and Dual Nationals as Hostage-taking and Crimes Against Humanity” (2022) 20:2 J Int Crim Justice 403–435.

Frank Gardner, “Family of Exiled Top Saudi Officer Saad Al-Jabri ‘Targeted’” (2020).

Gaeta, Paola, “On What Conditions Can a State Be Held Responsible for Genocide?” (2007) 18:4 Eur J Int Law 631–648.

Ghoussoub, Michelle, “Canadian resident escapes Iran after 11 years of detention”, CBC News (2019).

Heller, Kevin Jon, “What is an International Crime? (A Revisionist History)” (2017) 58:2 Harv Int Law J.

Hurst, Daniel, “Australia Denied Access to Dual Citizen Detained for Alleged ‘Subversion’ in Hong Kong”, The Guardian (2022).

Jamnejad, Maziar & Wood, Michael, “The Principle of Non‑Intervention” (2009) 22 Leiden J Int Law.

Jessica Peake, “Diplomatic Protection for Dual Nationals: Effective-Nationality or Non-Responsibility?” (2007) 10 Trinity Coll Law Rev.

Jordan Sekulow & Matthew Clark, “Pastor Saeed Abedini’s Holy Week Struggle”, Wash Post (2013).

Lau, Beatrice, “‘Hostage Diplomacy’ - A Contemporary State Practice outside the Reach of International Law?” (2022) 53 Georget J Int Law 343–386.

Lesley Wroughton, Arshad Mohammed, & Jonathan Landay, “Exclusive: Iran’s Release of Lebanese Prisoner Was Failed Overture to U.S.”, Reuters (2019).

Michael Pearson & Elise Labott, “5 Americans Released by Iran, 4 as Part of Prisoner Swap”, CNN (2016).

Milanovic, Marko, “Revisiting Coercion as an Element of Prohibited Intervention in International Law” (2023) Am J Int Law.

Milanović, Marko, “State Responsibility for Genocide” (2006) 17:3 Eur J Int Law 553–604.

Nadeem Shad, “Iran Frees More Europeans After Prisoner Swap”, BBC (2023).

Nowak, Manfred & Elizabeth McArthur, “The Distinction Between Torture and Cruel, Inhuman or Degrading Treatment” (2006) 16:3 Torture Q J Rehabil Torture Vict Prev Torture 147–151.

Pomson, Ori, “The Prohibition on Intervention under International Law and Cyber Operations” (2022) 99:4 Int Law Stud 180–219.

Saber, Indlieb Farazi, “Israel’s War on Gaza: Can Guterres’s Use of UN’s Article 99 Bring Peace?”, Al Jazeera (2023).

Sassòli, Marco, “State Responsibility for Violations of International Humanitarian Law” (2002) 84:846 Int Rev Red Cross 401–434.

Slim, Randa M, “Small-State Mediation in International Relations: The Algerian Mediation of the Iranian Hostage Crisis” in Jacob Bercovitch & Jeffrey Z Rubin, eds, Mediat Int Relat Mult Approaches Confl Manag (London: Palgrave Macmillan UK, 1992) 206.

Stephanie Romans & Paul Peachey, “Iran Uses Life of Jailed Academic to Pressure Belgium Over Diplomat Trial, Lawyer Claims”, The National (2020).

Toomey, Lauren, “The Declaration Against Arbitrary detention in state-to-state relations: A New Means of Addressing Discrimination Against Foreign and Dual Nationals?” (2022) 35 Harv Hum Rights J 99–120.

Wheatley, Steven, “Foreign Intervention in Elections Under the Non‑Intervention Principle: We Need to Talk About ‘Coercion’” (2020) 31:1 Duke J Comp Int Law 161–197.

“Dissident Doctor Ho Hai Leaves Vietnam for the US”, VOA Vietnam (2021).

“Family of Couple Detained in Egypt Call on US to Intervene”, Al Jazeera (2018).

Australian Foreign Affairs, Defence and Trade Reference Committee, Wrongful detention of Australian citizens overseas, by Australian Foreign Affairs, Defence and Trade Reference Committee (2024).

Canada, Global Affairs, “Declaration Against Arbitrary detention in state-to-state relations” (2021), online: GAC.

Comisión de Asuntos Jurídicos y Políticos, Organization of American States Omnibus Resolution on International Law, by Comisión de Asuntos Jurídicos y Políticos, CP/CAJP-3787/24 rev 9 (Organization of American States, 2024).

Council of Europe, Legal Protection of Human Rights (2002).

Elina Steinerte, The Fcdo’s Approach to State Level Hostage Situations: Written Evidence Submitted by Dr Elina Steinerte, by Elina Steinerte, SLH0041 (2023).

Ferstman, Carla, “Conceptualising Arbitrary Detention: Power, Punishment and Control” (2024) Rochester, NY.

Human Rights Council Advisory Committee, Human Rights and Issues Related to Terrorist Hostage-Taking, by Human Rights Council Advisory Committee, A/HRC/24/47 (UN Human Rights Council, 2013).

International Court of Justice, “Jurisdiction”, online: Int Court Justice.

International Law Commission, Articles on State Responsibility, by International Law Commission, Yearbook of the International Law Commission (Vol. 2, Part 2) (2001).

———, Draft Articles on Diplomatic Protection with Commentaries, by International Law Commission, Yearbook of the International Law Commission (Vol. 2, Part 2) (2006).

———, Draft Articles on Prevention and Punishment of Crimes Against Humanity, by International Law Commission, Yearbook of the International Law Commission (Vol. 2, Part 2) (2019).

———, Draft Articles on Responsibility of States for Internationally Wrongful Acts, by International Law Commission, Yearbook of the International Law Commission (Vol. 2, Part 2) (2001).

———, Draft Articles on the Prevention and Punishment of Crimes Against Diplomatic Agents and Other Internationally Protected Persons with Commentaries, by International Law Commission, Yearbook of the International Law Commission (Vol. 2, Page 2) (1972).

———, Draft Conclusions on Identification and Legal Consequences of Peremptory Norms of General International Law (jus Cogens), by International Law Commission, Yearbook of the International Law Commission (Vol. 2, Part 2) (2022).

———, Report of the International Law Commission, Seventy-Third Session (18 April–3 June and 4 July–5 August 2022), by International Law Commission, A/77/10 (United Nations General Assembly, 2022).

———, Report of the Working Group on Review of the Multilateral Treaty-Making Process, by International Law Commission, A/CN.4/325 Vol. II (Part One) (1979).

Keller, Helen, “Friendly Relations Declaration” in Max Planck Encycl Public Int Law (Oxford University Press, 1970).

Kiss, Alexandre, Abuse of Rights, by Alexandre Kiss (Max Planck Encyclopedias of International Law, 2006).

Klamberg, Mark, Universal Jurisdiction Under Threat of Hostage-Taking: Sweden’s Release of Iranian War Criminal Nouri, Policy Brief, by Klamberg, Mark, Policy Brief (Torkel Opsahl Academic EPublisher (TOAEP), 2024).

Kotzur, Markus, “Good Faith (Bona Fide)” in Max Planck Encycl Int Law (Oxford University Press, 2009).

Kretzmer, David, “Torture, Prohibition of” in Oxf Public Int Law (2022).

Loertscher, Cynthia, Bringing Americans Home 2024: A Non-Governmental Assessment of U.S. Hostage Policy, Family Engagement, and the Hostage and Wrongful Detainee Landscape, by Loertscher, Cynthia (Foley Foundation, 2024).

Moynihan, Harriet, The Application of the Non-Intervention Principle in Cyberspace, by Moynihan, Harriet (Chatham House, 2019).

OHCHR, “About Arbitrary Detention”, online: OHCHR.

———, “Committee on the Elimination of Racial Discrimination” (2022), online: OHCHR.

———, “Committee on the Rights of the Child Today Held a Day of General Discussion on the Right of the Child to Education in Emergency Situations” (2008), online: OHCHR.

———, “Detention” (2025), online: OHCHR.

———, “Treaty Bodies”, online: OHCHR.

Organization for Security and Cooperation in Europe (OSCE), Conference on Security and Co-Operation in Europe Final Act., by Organization for Security and Cooperation in Europe (OSCE) (1975).

Oxford Learner’s Dictionaries.

Special Rapporteur Alice Jill Edwards, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, by Special Rapporteur Alice Jill Edwards, A/HRC/58/55 (OHCHR, 2025).

Special Rapporteur James Crawford, First Report on State Responsibility, by Special Rapporteur James Crawford (International Law Commission, 1998).

Special Rapporteur Manfred Nowak, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, by Special Rapporteur Manfred Nowak, A/HRC/7/3 (2008).

Special Rapporteur of the Human Rights Council on Extrajudicial, Summary or Arbitrary Executions, Application of the Death Penalty to Foreign Nationals and the Provision of Consular Assistance by the Home State, by Special Rapporteur of the Human Rights Council on Extrajudicial, Summary or Arbitrary Executions, A/74/318 (2019).

Special Rapporteur On The Situation Of Human Rights In The Islamic Republic Of Iran, Situation of Human Rights in the Islamic Republic of Iran - Report of the Special Rapporteur on the Situation of Human Rights in the Islamic Republic of Iran, by Special Rapporteur On The Situation Of Human Rights In The Islamic Republic Of Iran, A/HRC/46/50 (2021).

Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Report on Psychological Torture and Ill-Treatment, by Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, S/HRC/43/49 (UN Human Rights Council, 2020).

Tsagourias, Nicholas, “Electoral Cyber Interference, Self-Determination and the Principle of Non-Intervention in Cyberspace” (2019), online: EJIL Talk.

UN Committee Against Torture, General Comment No. 3: Implementation of Article 14 by States Parties, Uncator, 48th Sess, by UN Committee Against Torture, UN Doc CAT/C/GC/3 (13 December 2012).

UN General Assembly, Report of the International Law Commission, Seventieth session (30 April–1 June and 2 July–10 August 2018), by UN General Assembly, A/73/10 (2018).

Human Rights Committee (HRC), CCPR General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment) (1992).

Human Rights Committee (HRC), CCPR General Comment No. 29: Article 4: Derogations During a State of Emergency, by Human Rights Committee (HRC), CCPR/C/21/Rev.1/Add.11 (2001).

———, General Comment No. 31 (80), The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, by Human Rights Committee (HRC), CCPR/C/21/Rev.1/Add.13 (2004).

———, General Comment No. 35, Article 9 (Liberty and Security of Person), by Human Rights Committee (HRC), CCPR/C/GC/35 (2014).

UN Human Rights Council, Report of the Independent International Fact-Finding Mission on the Islamic Republic of Iran, by UN Human Rights Council, A/HRC/55/CRP.1 (2024).

———, Summary of the Human Rights Council Interactive Panel Discussion of Experts on the Use of Remotely Piloted Aircraft or Armed Drones in Compliance with International Law, by UN Human Rights Council, A/HRC/28/38 (2014).

UN Office of the High Commissioner for Human Rights (OHCHR), Working Group on Arbitrary Detention, by UN Office of the High Commissioner for Human Rights (OHCHR), Fact Sheet No. 26 Rev. 1 (2024).

UN Secretary General, Special Fund established by the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, by UN Secretary General, A/HRC/58/32 (United Nations General Assembly, 2024).

UN Security Council, Arria-Formula Meetings: UN Security Council Working Methods, by UN Security Council (2020).

UN Special Rapporteur on Torture, Calls for Input: Hostage-Taking as Torture: Legal Frameworks, Supporting Victims and Families, and Strengthening Global Responses, by UN Special Rapporteur on Torture (2024).

United Nations, A More Secure World: Our Shared Responsibility, Report of the High-Level Panel on Threats, Challenges and Change, by United Nations (2004).

———, “UN Rights Council Examines Nuclear Legacy Consequences in the Marshall Islands” (2024), online: U N.

United Nations International Law Commission, Responsibility of States for Internationally Wrongful Acts, by United Nations International Law Commission, A/56/49(Vol. I)/Corr.4 (2001).

United Nations Office for Disarmament Affairs, “Open-ended Working Group on Information and Communication Technologies”.

UNWGAD, Deliberation No. 9 on the Definition and Scope of Arbitrary Deprivation of Liberty, by UNWGAD, A/HRC/22/44 (2012).

———, Deliberation No. 10 on reparations for arbitrary deprivation of liberty, by UNWGAD, A/HRC/45/16 (2020).

———, Opinion No. 2/1999 Concerning Ngawang Choephel (china), by UNWGAD, E/CN.4/2000/4/Add.1 (1999).

———, Opinion No. 11/2024 Concerning Evan Gershkovich (russia), by UNWGAD, A/HRC/WGAD/2024/11 (2024).

———, Opinion No. 15/1993 Concerning Doan Thank Liem, Do Ngoc Long, and Others (vietnam), by UNWGAD, E/CN.4/1994/27 (1993).

———, Opinion No. 26/2018 Concerning Ola Yusuf Al-Qaradawi and Hosam Al-Din Khalaf (egypt), by UNWGAD, A/HRC/WGAD/2018/26 (2018).

———, Opinion No. 27/1998 Concerning Professor Doan Viet Hoat (vietnam), by UNWGAD, E/CN.4/2000/4/Add.1 (1998).

———, Opinion No. 27/2021 Concerning Kamran Ghaderi (islamic Republic of Iran), by UNWGAD, A/HRC/WGAD/2021/27 (2021).

———, Opinion No. 27/2022 Concerning Jamshid Sharmahd (emirates, Oman and the Islamic Republic of Iran), by UNWGAD, A/HRC/WGAD/2022/27 (2022).

———, Opinion No. 28/2016 Concerning Nazanin Zaghari-Ratcliffe (islamic Republic of Iran), by UNWGAD, A/HRC/WGAD/2016/28 (2016).

———, Opinion No. 29/2022 Concerning Omar Aljabri, Sarah Aljabri and Salem Almuzaini (united Arab Emirates and Saudi Arabia), by UNWGAD, A/HRC/WGAD/2022/29 (2022).

———, Opinion No. 30/2000 Concerning Rebiya Kadeer (china), by UNWGAD, E/CN.4/2002/77/Add.1 (2000).

———, Opinion No. 32/2019 Concerning Saeed Malekpour (islamic Republic of Iran), by UNWGAD, A/HRC/WGAD/2019/32 (2019).

———, Opinion No. 37/2023 Concerning Olivier Vandercasteele (islamic Republic of Iran), by UNWGAD, A/HRC/WGAD/2023/37 (2023).

———, Opinion No. 51/2019 Concerning Nizar Zakka (islamic Republic of Iran), by UNWGAD, A/HRC/WGAD/2019/55 (2019).

———, Opinion No. 52/2018 Concerning Xiyue Wang (islamic Republic of Iran), by UNWGAD, A/HRC/WGAD/2018/52 (2018).

———, Opinion No. 54/2022 Concerning Nahid Taghavi (islamic Republic of Iran), by UNWGAD, A/HRC/WGAD/2022/55 (2022).

———, Opinion No. 81/2020 Concerning Ho Van Hai (vietnam), by UNWGAD, A/HRC/WGAD/2020/81 (2020).

———, Opinion No. 85/2021 Concerning Anoosheh Ashoori (islamic Republic of Iran), by UNWGAD, A/HRC/WGAD/2021/85 (2021).

———, Opinion No. 92/2017 Concerning Ahmadreza Djalali (islamic Republic of Iran), by UNWGAD, A/HRC/WGAD/2017/92 (2017).

———, Report of the Working Group on Arbitrary Detention, by UNWGAD, E/CN.4/1994/27 (1993).

———, Report of the Working Group on Arbitrary Detention, by UNWGAD, E/CN.4/2000/4 (1999).

———, Report of the Working Group on Arbitrary Detention, by UNWGAD, A/HRC/13/30 (2010).

———, Report of the Working Group on Arbitrary Detention, by UNWGAD, A/HRC/19/57 (2012).

———, Report of the Working Group on Arbitrary Detention, by UNWGAD, A/HRC/39/45 (2018).

———, Report of the Working Group on Arbitrary Detention, by UNWGAD, A/HRC/48/55 (2021).

———, United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court, by UNWGAD, A/HRC/30/37 (2015).

World Trade Organization, United States – Import Prohibition of Certain Shrimp and Shrimp Products, by World Trade Organization, WT/DS58/AB/R, AB-1998-4 (WTO Appellate Body, 1998).

“African Court & African Commission.” Online: African Court.

“Consulate General of India, Toronto. Surrender Certificate - General Information.”

“Iran: Further Information: Elderly Prisoner at Risk of Losing His Eyesight: Kamal Foroughi” (2016), online: Amnesty Int.

“The Core International Human Rights Instruments and their monitoring bodies”, online: OHCHR.

Annex I: Biographies of members of the Independent International Panel on Arbitrary detention in state-to-state relations

Charles C. Jalloh (Chair) is Professor of International Law and Richard A. Hausler Chair in Law at the University of Miami Law School. He is a member of the International Law Commission, where his peers elected him Chair of the Drafting Committee for the 70th (2018) session, General Rapporteur for the 71st (2019) session and Second Vice-Chair for the 74th (2023) session. Since 2023, he has chaired the Commission’s Working Group on Methods of Work and Procedures and also serves as its Special Rapporteur for the topic “Subsidiary means for the determination of rules of international law.”

Professor Jalloh has advised governments and international organisations on domestic and international law. In addition to serving as Counsel, Department of Justice Canada, he was Associate Legal Officer, International Criminal Tribunal for Rwanda and a Legal Adviser in the Special Court for Sierra Leone. First called to the Ontario Bar in 2004, he has represented several African States and the African Union in proceedings before various international tribunals, including the International Criminal Court, the International Tribunal for the Law of the Sea, and the International Court of Justice. He has participated in numerous independent expert groups, including as Chair of the Panel of Experts on the Election of the Prosecutor for the Assembly of States of the International Criminal Court, as member of the Advisory Board for the ASIL Taskforce on Policy Options for U.S. Engagement with the International Criminal Court and the Independent Expert Panel for the Legal Definition of Ecocide.

A prolific scholar, Professor Jalloh is founder of the African Journal of Legal Studies and African Journal of International Criminal Justice and sits on the editorial boards of the American Journal of International Law, Canadian Yearbook of International Law and Max Planck Yearbook of United Nations Law. His books include The Sierra Leone Special Court and Its Legacy: The Impact for Africa and International Criminal Law (Cambridge, 2013; sole editor); The International Criminal Court and Africa (Oxford, 2017; lead editor); The African Court of Justice and Human and Peoples’ Rights in Context (Cambridge, 2019; lead editor) and The Legal Legacy of the Special Court for Sierra Leone (Cambridge, 2020; sole author).

Born and raised in Sierra Leone, his education includes a Bachelor of Arts from the University of Guelph, Bachelor of Laws and Bachelor of Civil Law degrees from McGill University and a Master’s in International Human Rights Law from the University of Oxford where he was a Chevening Scholar and graduated with Distinction. He holds a Ph.D. in Public International Law from the University of Amsterdam.

Marja Lehto (Vice Chair) is Ambassador for International Legal Affairs at the Legal Service of the Ministry for Foreign Affairs of Finland. She is also Adjunct Professor of International Law at the University of Helsinki. With a distinguished career, she previously served as Finland’s Ambassador to Luxembourg, from 2009 to 2014. Prior to that, she was Director of the Unit for Public International Law at the Ministry for Foreign Affairs, from 2000 to 2009, and Counsellor and Legal Advisor at the Permanent Mission of Finland to the United Nations in New York, from 1995 to 2000.

From 2017 to 2022, Ambassador Lehto was member of the UN International Law Commission and served as the Special Rapporteur on the protection of the environment in relation to armed conflicts. For her work in this area, she was awarded the prestigious Elisabeth Haub Award for Environmental Law and Diplomacy in 2023, along with former ambassador Marie Jacobsson of Sweden. She is currently a member of the Council of the International Institute of Humanitarian Law and a member of the OSCE Court of Arbitration and Conciliation.

Ambassador Lehto’s leadership on the international stage is evidenced by her active participation in numerous negotiations and conferences and her chairpersonship of several international bodies. Her scholarly contributions span a wide array of international legal questions, ranging from the intricacies of the law of the sea and environmental protection to issues such as State succession, peace and security, armed conflict, terrorism and cyber law.

Ambassador Lehto continues to make significant strides in advancing the understanding and application of international law, contributing both to diplomatic efforts and academic discourse.

Shaheen Sardar Ali is a distinguished scholar and leading authority in the fields of Islamic law and jurisprudence, the rights of women and children, and international human rights law, with extensive expertise on legal and constitutional issues in Pakistan, South Asia and the broader Muslim world.

Having served as Rector of the National Academy of Higher Education (NAHE) in Pakistan and as a Professor of Law at the University of Peshawar for 25 years, Professor Ali has made significant contributions to legal academia. She also directed the Women’s Study Centre at the University of Peshawar.

Professor Ali’s commitment to advancing women’s rights is evident in her roles on the Commission of Inquiry for Women and the Prime Minister’s Consultative Committee on Women in Pakistan. Her groundbreaking achievements include being the first woman cabinet minister for health, population welfare and women’s development in the Khyber Pakhtunkhwa province of Pakistan and the inaugural chair of the National Commission on the Status of Women in Pakistan.

Internationally, Professor Ali served as a member and vice-chair of the UN Working Group on Arbitrary Detention from 2008 to 2014. International organisations have consulted extensively with her, and she has also provided expert legal opinions on Islamic law in courts in the United Kingdom and the United States.

Professor Ali’s commitment to advancing human rights is also evident through her participation in the Independent International Fact-Finding Mission on the Islamic Republic of Iran, formed by the President of the UNHRC to investigate the protests and alleged human rights violations during the September 2022 protests in Iran.

Acknowledged as one of the 100 most influential women in Pakistan, Professor Ali received the British Muslims Annual Honors achievement plaque in the House of Lords in May 2002. Her academic qualifications include an LLB (Peshawar), LLM (Hull), MA (Peshawar) and PhD (Hull).

Claudio Grossman Guiloff is Professor of Law, Dean Emeritus and Raymond I. Geraldson Scholar for International and Humanitarian Law at American University Washington College of Law, where he served as dean for 21 years. Professor Grossman has left an indelible mark on academia and various international and domestic organisations.

Professor Grossman is a member of the UN International Law Commission (re-elected in 2022) and serves as the Commission’s Special Rapporteur on the immunity of State officials from foreign criminal jurisdiction (elected in 2023). Professor Grossman has extensive experience in international litigation and has demonstrated a steadfast commitment to advancing the rule of law, human rights and democracy before UN bodies as well as regional forums. He represented or decided seminal cases concerning reparations, women’s rights, separation of powers, disappearances, freedom of expression, prohibition against torture and inhumane treatment, children’s rights and the rights of Indigenous populations, among others. Professor Grossman served as Chile’s agent at the International Court of Justice (2015 to 2018), and in March 2023 he was elected Vice-President of the Technical Admissibility Committee for Chile’s ongoing constitutional process. Professor Grossman served as a member of the UN Committee against Torture (2003 to 2015) and as its chair from 2008 to 2015. He also chaired the UN’s human rights treaty bodies in 2013.

He served as member (1994 to 2000) of the Organization of American States’ Inter-American Commission on Human Rights, was twice elected its president, and was appointed by the Commission to serve as the Special Rapporteur on the Rights of Women and Special Rapporteur on the Rights of Indigenous Peoples.

Professor Grossman has authored numerous publications on international law, international organisations and human rights, solidifying his reputation as a thought leader in the field.

Seong-Phil Hong has more than 25 years of comprehensive expertise in international human rights instruments, norms and principles. He is currently a member of the High‑Level Panel of Legal Experts on Media Freedom, and served as chairperson and distinguished member of the UN Working Group on Arbitrary Detention from 2014 to 2021. He also served as a member of the Advisory Council of Jurists, Asia Pacific Forum, from 2009.

In the Republic of Korea, Professor Hong has actively collaborated with key governmental bodies and provided crucial legal advice on human rights policies and national reports to international human rights conventions. Notably, from 2001 to 2002, he played a pivotal role as a member of the presidential committee tasked with establishing a national human rights commission.

Professor Hong continues to demonstrate his steadfast commitment to defending human rights both domestically and internationally. In the Republic of Korea, he co-founded the Citizens’ Alliance for North Korean Human Rights, a prominent NGO that advocates for the rights of North Korean citizens. Through international conferences, Professor Hong’s advocacy efforts have focused on shedding light on injustices within North Korean detention centres and political prisons. He is also active in multilateral forums, including the UNHRC in Geneva and the UNGA in New York.

Professor Hong obtained a Bachelor of Laws and a Master of Arts in International Law from Seoul National University’s esteemed School of Law. His academic journey continued at Yale Law School in the United States, where he earned both a Master of Laws and a Doctorate of Juridical Science. Throughout his career, he has been keen on ensuring that actual victims have rights to remedies under international law in the cases of historical injustices and gross violations of human rights. He has made significant contributions to the understanding and progression of international law and addressing human rights issues, through numerous books and articles. Through his diverse roles, Professor Hong continues to shape and advance the discourse on human rights and international law.

Michael A. Newton is widely recognized as an authoritative figure on issues related to terrorism, transnational justice and the conduct of hostilities. He has had an illustrious career, with a prolific portfolio of more than 100 publications, expert witness roles in terrorism trials, and inclusion in the International Criminal Court (ICC) List of Counsel. At Vanderbilt University Law School, Professor Newton is the driving force behind the School’s International Law Practice Lab and directs the esteemed International Legal Studies Program. Notably, Professor Newton was the Senior Advisor to the United States Ambassador-at-Large for War Crimes Issues. In this role, he implemented policy positions related to accountability mechanisms in ad hoc international tribunals and other internationalized hybrid efforts and played a pivotal role in negotiating the ICC’s Elements of Crimes document. He was on the UN planning mission that established the Special Court for Sierra Leone. He also coordinated U.S. support and provided advice on accountability mechanisms in Iraq and other tribunals. He remains deeply involved in documenting crimes committed by Da’esh and providing support to prosecutions arising from these crimes.

Professor Newton also had a distinguished military career of more than 21 years, with numerous deployments including in Iraq, Kosovo and Haiti. Notably, his deployments included organizing human rights education for multinational forces.

Beyond the military arena, Professor Newton’s commitment to legal education is evident in his roles teaching international and operational law at the Judge Advocate General’s Legal Center and School at the University of Virginia and at the United States Military Academy at West Point. He has also advised judges and prosecutors in domestic contexts around the world and been active in human rights litigation and shaping domestic statutory mechanisms.

Actively participating in various international law organisations, Professor Newton served on the executive council of the American Society of International Law and contributed his expertise to initiatives such as the Genocide Prevention Task Force. His continued commitment is exemplified through advisory roles for the American Bar Association’s International Criminal Court Project and Center for Human Rights, showcasing his enduring impact on legal scholarship, education and global initiatives.

Annex II: Questionnaires for States and civil society organizations

Independent International Panel on Arbitrary detention in state-to-state relations

A. Questionnaire for States

Introduction

Canada launched a formal Declaration Against Arbitrary detention in state-to-state relations (the Declaration) on February 15, 2021, which urges all States to refrain from the practice of arbitrary detention in state-to-state relations and calls for the immediate release of all individuals arbitrarily arrested, detained or sentenced for diplomatic leverage. It has been endorsed by 75 States, from different parts of the world, as well as by the European Union.

To further advance the aims of the Declaration, the Office for the Declaration Against Arbitrary Detention at Global Affairs Canada, with the support of State endorsers of the Declaration, has convened an Independent International Panel on Arbitrary detention in state-to-state relations (hereafter IIP or the Panel). The IIP’s purpose is to advance the Declaration’s substance within the international legal framework.

Through the creation of the IIP, the hope is to situate the issue of arbitrary detention in state-to-state relations within a clear normative legal framework under international law. A central question in that context is whether existing tools of international law, including those pertaining to human rights law, consular law and State responsibility, are sufficient to address this practice, or whether new norms, mechanisms, or processes should be considered if the practice is to be curbed or eliminated.

This questionnaire, compiled by the IIP, aims to gather qualitative information on the experiences, perspectives, and practices of States regarding arbitrary detention in state-to-state relations. The annex contains information about the IIP’s membership. We would be grateful if your Permanent Mission and/or Capital could assist by completing this survey to enable your State’s practice to be taken into account. Responses will contribute to understanding the prevalence of such practices and potential avenues for addressing them. Understanding that many of the issues may be sensitive, we kindly ask you to provide us with as much information as you are comfortable with.

Please indicate below whether you have any objections to your State being named in the Panel’s final report. If you do not consent to being named, the information you provide will only be used for evidentiary purposes for the Panel’s findings without specifically mentioning the State.

We kindly request that the completed questionnaire be submitted electronically to iiparbitrarydetention@protonmail.com by Thursday, October 31, 2024.

Note: Information provided by States are to be sent to a secure email to which only the IIP members have access. Therefore, full confidentiality is assured at all stages of this process. If your Government prefers to not fill out the questionnaire in writing, or in addition to completing the questionnaire wish to provide additional information, a confidential virtual meeting with one of the Panel members may be arranged for you to discuss the matter informally. Indications of such a preference or requests for virtual meetings can be sent to the Panel: iiparbitrarydetention@protonmail.com.

Responding government and contact person

Responding government:

Name of contact person:

Position and title:

Email address:

Phone number:

The responding government consents to being mentioned in the IIP’s report: Yes / No

Questionnaire

  1. Awareness and perception
    • 1.1. There is a perception that arbitrary detentions in State-to-State relations are on the increase. Would you agree with this assessment and, if so, when and why do you think the uptick started?
    • 1.2. How does your Government define incidents of arbitrary detention for leverage in State-to-State relations? What terminology has your government used to refer to such practices?
    • 1.3. Does your Government deem that your nationals have been arbitrarily detained in another State for purposes of leverage by such State? Please provide numbers and examples if possible.
    • 1.4. Were the individuals affected by such practices detained pursuant to national criminal laws, special security-related legislation (e.g. espionage or terrorism acts), administrative legislation, or during states of emergency declared by the detaining State, or on other bases? Please provide examples if possible.
    • 1.5. What is the type of action that has been sought from your Government by the detaining State in exchange for the release of your citizen(s)? E.g., release of their nationals from your custody, financial payments, other?
  2. Determining a case of arbitrary detention in state-to-state relations
    • 2.1. On what basis, and at what stage, has your Government determined that a particular detention is not a usual consular matter, but rather a case of State-sponsored arbitrary detention for leverage?
    • 2.2. What criteria - legal and others - do you employ to determine that the detention of one of your nationals amounts to an arbitrary detention for leverage? Please provide as much detail as possible.
    • 2.3. What legal and evidentiary principles have been applied to assess the veracity of your detained nationals’ narratives/complaints and to examine the motivations of the detaining State?
    • 2.4. Once your Government has concluded that a detention is for leverage, how has this determination changed the approach taken to the matter, if at all?
    • 2.5. Does your Government exercise diplomatic or consular protection when the national concerned also has the citizenship of the detaining State? Do you apply the concept of “predominant nationality” in that case? Is similar protection extended to permanent residents as well?
  3. Response to incidents nationally
    • 3.1. How has your Government responded to incidents of arbitrary detention by another State for leverage? What actions were taken and was there a particular sequence among them over time?
    • 3.2. Does your Government have a legislative, regulatory, or guidance document that guides its approach to such incidents? If so, are these documents publicly available? If so, please share them.
    • 3.3. To what extent, in your State’s normative order, are regional and/or universal treaties or political bodies relevant to this issue? Have they ever been resorted to by your Government?
    • 3.4. Are existing norms related to arbitrary detention as established by treaty law, whether universal or regional, self-executing in your State? If not, have they been incorporated in your domestic law so that they may be invoked by those who are detained? Have there been situations of arbitrary detention in state-to-state relations in which your citizens implicated that involved invocation of self-executing legislation?
    • 3.5. How does your State’s existing policy or legislation incorporate international human rights obligations around vulnerable groups, that would be applicable to incidents of arbitrary arrest or detention?
    • 3.6. Which branches of Government, and at what level of seniority, have been engaged in efforts to secure the release of your nationals/residents in situations deemed to be of arbitrary detention in state-to-state relations? (e.g., consular/diplomatic officials, ambassadors, Government legal advisors, ministers, prime ministers/presidents).
    • 3.7. Are officials with responsibility of executing or responding to arbitrary detentions trained on the norms applicable under international and domestic law? Please provide as many examples as possible.
  4. Response to incidents at the international level
    • 4.1. Does your Government believe that there is a legal gap in the international regulation of arbitrary detention in state-to-state relations?
    • 4.2. Do you have any suggestions for new international law mechanisms/procedures that may be useful in combatting arbitrary detention in state-to-state relations?
    • 4.3. What other avenues of international legal or political accountability may be envisaged to deal with arbitrary detention in state-to-state relations?
  5. Additional information
    • 5.1. Please provide us with the situations/examples and, where possible, links to or documents of situations that your Government has been involved in regarding arbitrary detention in state-to-state relations.
    • 5.2. Does your Government have any other information concerning your State’s practice or experience regarding arbitrary detention in state-to-state relations that would be useful for the Panel’s work?

B. Questionnaire for civil society organizations

Introduction

Canada launched a formal Declaration Against Arbitrary detention in state-to-state relations (the Declaration) on February 15, 2021, which urges all States to refrain from the practice of arbitrary detention in state-to-state relations and calls for the immediate release of all individuals arbitrarily arrested, detained or sentenced for diplomatic leverage. It has been publicly endorsed by 79 States, from different parts of the world, as well as by the European Union.

To further advance the aims of the Declaration, the Office for the Declaration Against Arbitrary Detention at Global Affairs Canada, with the support of State endorsers of the Declaration, has convened an Independent International Panel on Arbitrary detention in state-to-state relations (hereafter “IIP” or the “Panel”). The IIP’s purpose is to advance the Declaration’s substance within the international legal framework. The annex contains information about the IIP’s membership.

Through the creation of the IIP, the hope is to situate the issue of arbitrary detention in state-to-state relations within a clear normative legal framework under international law. The phenomenon of arbitrary detention in state-to-state relations is characterized by the targeting of another sovereign State. While the detaining State often claims legitimate reasons for detaining the foreign nationals, the main intention of the arrest or detention is to gain leverage over another State. Therefore, the phenomenon includes situations such as political hostage-taking and using individuals as “bargaining chips”, but excludes arbitrary detention cases that lack the element of pressure on one State by another State in order to secure a concession in return.

A central question in that context is whether existing tools of international law, including those pertaining to human rights law, consular law and State responsibility, are sufficient to address this practice, or whether new norms, mechanisms, or processes should be considered if the practice is to be curbed or eliminated. The Panel is also specifically interested in humanizing their report by including individual stories of victims that have been subjected to the practice of arbitrary detention in state-to-state relations to emphasize that this is not just an issue affecting States and international relations but has significant human consequences. Victims, whether direct or indirect, deserve to tell their stories and to be included in the discussions at the highest levels in terms of identifying law-based solutions on how to address this concerning practice.

The present questionnaire, compiled by the IIP, aims to gather qualitative information on the experiences, perspectives, and practices combatting the practice of Civil Society Organisations (CSO) regarding arbitrary detention in state-to-state relations. We would be grateful if you could assist by completing this survey to enable your views to be taken into account. Responses will contribute to understanding the prevalence of such practices and potential avenues for addressing them. Understanding that many of the issues may be sensitive, we kindly ask you to provide us with as much information as you are comfortable with. The questions are purposefully broad and intended to cover a wide range of issues; we ask that you answer as many of the questions possible in so far as they relate to your CSO’s work related to arbitrary detention in state-to-state relations. If you feel that there are additional issues to that need to be highlighted, even if not flagged by our questionnaire, the Panel would welcome your views on those as well.

The International Commission of Jurists (ICJ) are supporting the IIP’s efforts to collect CSO input on arbitrary detention in state-to-state relations, given their global reach, which is important to ensure inclusivity of all regions in the gathering of CSO input.

Please indicate below whether you have any objections to your CSO being named in the Panel’s final report. If you do not consent to being named, the information you provide will only be used for evidentiary purposes for the Panel’s findings without specifically mentioning the CSO.

We kindly request that the completed questionnaire be submitted electronically to iiparbitrarydetention@protonmail.com and [ICJ email] by [March 17], 2025.

Note: Information provided by CSOs are to be sent to a secure email of the ICJ. Therefore, full confidentiality is assured at all stages of this process. If your CSO prefers to not fill out the questionnaire in writing, or in addition to completing the questionnaire wish to provide additional information, a confidential virtual meeting with one of the staff of the ICJ, may be arranged for you to discuss the matter informally. Indications of such a preference or requests for virtual meetings can be sent to iiparbitrarydetention@protonmail.com.

Responding CSO and contact person

Responding CSO:

Name of contact person:

Position and title:

Email address:

Phone number:

The responding CSOs consents to being mentioned in the IIP’s report: Yes / No

Questionnaire

  1. Awareness and perception
    • 1.1. There is a perception that arbitrary detentions in State-to-State relations are on the increase. Would you agree with this assessment and, if so, when and why do you think the uptick started?
    • 1.2. How does your CSO define incidents of arbitrary detention for leverage in State-to-State relations? What terminology have you used to refer to such practices?
    • 1.3. Has your CSO worked with cases or people that have been arbitrarily detained in another State for purposes of leverage by such State? Please provide numbers and examples if possible.
    • 1.4. Were the individuals affected by such practices detained pursuant to national criminal laws, special security-related legislation (e.g. espionage or terrorism acts), administrative legislation, or during states of emergency declared by the detaining State, or on other bases? Please provide examples if possible.
    • 1.5. In your experience and to the best of your knowledge what is the type of action that has been sought from States by the detaining State in exchange for the release of their citizen(s)? E.g., release of their nationals from custody, financial payments, other?
  2. Determining a Case of Arbitrary detention in state-to-state relations
    • 2.1. What criteria - legal and others - do you employ to determine that the detention of a person amounts to an arbitrary detention for leverage? Please provide as much detail as possible.
    • 2.2. What legal and evidentiary principles have been applied to assess the veracity of the detained nationals’ narratives/complaints and to examine the motivations of the detaining State?
    • 2.3. Once your CSO has concluded that a detention is for leverage, how has this determination changed the approach taken to the matter, if at all?
    • 2.4. In your experience with arbitrary detention, which fundamental guarantees and legal safeguards, relevant to the protection of the rights of individuals, are not complied with by States that detain individuals to gain leverage over another State? Critical safeguards include, inter alia, ensuring judicial oversight, access to legal representation, humane conditions of detention, and transparency.
    • 2.5. In your experience and to the best of your knowledge do governments exercise diplomatic or consular protection when the national concerned also has the citizenship of the detaining State? Is the concept of “predominant nationality” applied in that case? Is similar protection extended to permanent residents as well?
  3. Response to Incidents
    • 3.1. How has your CSO responded to incidents of arbitrary detention by another State for leverage? What actions were taken and was there a particular sequence among them over time?
    • 3.2. Does your CSO have a policy or guidance document that guides its approach to such incidents? If so, are these documents publicly available? If so, please share them.
    • 3.3. To what extent, in your experience, are regional and/or universal treaties or political bodies relevant to this issue? Have you ever resorted to them in your work on this issue?
    • 3.4. Can you provide any examples from your experience in this matter on how international human rights obligations around vulnerable groups, that would be applicable to incidents of arbitrary arrest or detention, have been used?
    • 3.5. Which branches of government, and at what level of seniority, have you engaged with in efforts to secure the release of any nationals/residents in situations deemed to be of arbitrary detention in state-to-state relations? (e.g., consular/diplomatic officials, ambassadors, government legal advisors, ministers, prime ministers/presidents).
    • 3.6. In your experience, have you found that government officials with responsibility of executing or responding to arbitrary detentions are trained on the norms applicable under international and domestic law? Please provide as many examples as possible.
    • 3.7. In your experience have States offered reparations that fully account for the harm caused by arbitrary detention in state-to-state relations? Please provide examples and the type of reparations offered including restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition.
  4. Response to Incidents at the International Level
    • 4.1. Do you believe that there is a legal gap in the international regulation of arbitrary detention in state-to-state relations?
    • 4.2. Do you have any suggestions for new international law mechanisms/procedures that may be useful in combatting arbitrary detention in state-to-state relations?
    • 4.3. What other avenues of international legal or political accountability may be envisaged to deal with arbitrary detention in state-to-state relations?
  5. Additional information
    • 5.1. Please provide us with the situations/examples and, where possible, links to or documents of situations that your CSO has been involved in regarding arbitrary detention in state-to-state relations. We are especially interested in individual stories of victims that have been subjected to arbitrary detention in state-to-state relations.
    • 5.2. Does your CSO have any other information regarding arbitrary detention in state-to-state relations that would be useful for the Panel’s work?

Annex III: Declaration against Arbitrary detention in state-to-state relations

The arbitrary arrest or detention of foreign nationals to compel action or to exercise leverage over a foreign government is contrary to international law, undermines international relations, and has a negative impact on foreign nationals travelling, working and living abroad. Foreign nationals abroad are susceptible to arbitrary arrest and detention or sentencing by governments seeking to compel action from other States. The purpose of this Declaration is to enhance international cooperation and end the practice of arbitrary arrest, detention or sentencing to exercise leverage over foreign governments.

Recognising a pressing need for an international response to the prevalence of these practices, and guided by international law and the principles of the Charter of the United Nations:

  1. We reaffirm that arbitrary arrests and detentions are contrary to international human rights law and instruments, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and other international and regional human rights instruments;
  2. We express grave concern about the use of arbitrary arrest or detention by States to exercise leverage over foreign governments, contrary to international law;
  3. We are deeply concerned that arbitrary arrest, detention, or sentencing to exercise leverage over foreign governments undermines the development of friendly relations and cooperation between States, international travel, trade and commerce, and the obligation to settle international disputes by peaceful means;
  4. We are alarmed by the abuse of State authority, including judicial authority, to arbitrarily arrest, detain or sentence individuals to exercise leverage over foreign governments. We call on States to respect their obligations related to a fair and public hearing by a competent, independent and impartial tribunal;
  5. We urge all States to refrain from arbitrary arrest, detention, or sentencing to exercise leverage over foreign governments in the context of State-to-State relations;
  6. We reaffirm the fundamental importance of the rule of law, independence of the judiciary, respect for human rights, and respect for the obligation to provide consular access in accordance with international law, including the Vienna Convention on Consular Relations and other applicable international instruments;
  7. We call upon States to take concrete steps to prevent and put an end to harsh conditions in detention, denial of access to counsel, and torture or other cruel, inhuman or degrading treatment or punishment of individuals arbitrarily arrested, detained or sentenced to exercise leverage over foreign governments. We reaffirm the urgent need to provide these individuals with an effective remedy consistent with international human rights law, and call for their immediate release;
  8. We stand in solidarity with States whose nationals* have been arbitrarily arrested, detained or sentenced by other States seeking to exercise leverage over them and acknowledge the need to work collaboratively to address this issue of mutual concern at the international level.

This Declaration remains open to endorsement.

(*) Including dual nationals in accordance with endorsing countries’ laws on nationality.

List of endorsements of the Declaration Against Arbitrary detention in state-to-state relations

Status of endorsements [81] as of 14 July 2025

Initial endorsements (as of February 15, 2021)

Additional endorsements (as of November 21, 2024)

Annex IV: Non-exhaustive list of critical safeguards, as well as some of their legal basis

  1. The principle of individual criminal responsibilityFootnote 592
    Art. 75(4)(b) AP I; Art. 6(2)(b) AP II; Art. 25; ICC Statute; Rule 102 ICRC
  2. The principle of nullum crimen, nulla poena sine lege (no crime without a law, no punishment without a law)
    Art. 99.1 GC III; Art. 75(4)(c) AP I; Art. 6(2)(c) AP II; Arts 22(1) and 23 ICC Statute; Rule 101 ICRC Study CIHL
  3. The principle of non bis in idem (double jeopardy)
    Art. 86 GC III; Art. 117.3 GC IV; Art. 75(4)(h) AP I; Art. 6(2)(a) AP II; Art. 20 ICC Statute; Rule 100 ICRC Study CIHL)
  4. The right of the accused to be judged by an independent and impartial court and without undue delay
    Art. 84.2 GC III; Art. 75(4) AP I; Art. 6(2) AP II; Arts 67(1) and 67(1)(c) ICC Statute; Rule 100 ICRC Study CIHL
  5. The right of the accused to be informed of the nature and cause of the offence alleged against him
    Art. 104.2 GC III; Art. 71(2) GC IV; Art. 75(4)(a) AP I; Art. 6(2)(a) AP II; Art. 67(1)(a) ICC Statute; Rule 100 ICRC Study CIHL
  6. The rights and means of defence, for example the right to be assisted by a qualified lawyer freely chosen
    Arts 99 and 105 GC III; Arts 72 and 74 GC IV; Art. 75(4)(a) and (g) AP I; Art. 6(2)(a) AP II; Art 67(1)(b), (d) and (e) ICC Statute; Rule 100 ICRC Study CIHL)
  7. The right to free legal assistance when the interests of justice so require
    Art. 105(2) GC III; Art. 72(2) GC IV; Art. 67(1)(d) ICC Statute; Rule 100 ICRC Study CIHL
  8. The right of the accused to have the assistance of an interpreter, if so needed
    Arts 96.4 and 105.1 GC III; Arts 72.3 and 123.2 GC IV; Art. 67(1)(f), ICC Statute; Rule 100 ICRC Study CIHL
  9. The right of the accused to communicate freely with counsel
    Art. 105.3 GC III; Art. 72.1 GC IV; Art. 67(1)(b), ICC Statute; Rule 100 ICRC Study CIHL
  10. The right to sufficient time and facilities to prepare the defence
    Art. 105.3 GC III; Art 72.1 GC IV; Art. 67(1)(b) ICC Statute; Rule 100 ICRC Study CIHL
  11. The right of the accused to examine witnesses and to have witnesses examined
    Arts 96.3 and 105.1 GC III; Art. 72.1 GC IV; Art 75(4)(g) AP I; Art. 67(1)(e) ICC Statute; Rule 100 ICRC Study CIHL
  12. The presumption of innocence
    Art. 75(4)(d) AP I; Art. 6(2)(d) AP II; Art. 66 ICC Statute; Rule 100 ICRC Study CIHL
  13. The right of the accused to be present at their trial
    Art. 75(4)(e), AP I; Art. 6(2)(e), AP II; Art. 67(1)(d) ICC Statute
  14. The right of the accused not to testify against themselves or to confess guilt
    Art. 75(4)(f) AP I; Art. 6(2)(f) AP II; Art. 67(1)(g) ICC Statute; Rule 100 ICRC Study CIHL
  15. The right of the accused to have the judgment pronounced publicly
    Art. 75(4)(i) AP I; Art. 76(4) ICC Statute; Rule 100 ICRC Study CIHL
  16. The right of the accused to be informed of their rights of appeal
    Art. 106 GC III; Art. 73 GC IV; Art. 75(4)(j) AP I; Art. 6(3) AP II; Rule 100 ICRC Study CIHL
  17. The right of the accused to Judicial oversight
    Art. 9, International Covenant on Civil and Political Rights (ICCPR); Art. 7, American Convention on Human Rights “Pact of San Jose, Costa Rica” (ACHR)
  18. The right to access to medical care and independent medical examination
    CTI UNCAT Implementation Tool 2/2021 on Initial Medical Assessment
  19. The right to notification of family or third party
    Directive 2013/48/EU of the European Parliament and of the Council of 22 Oct.2013.
  20. The right to registration and custody records
    UNHRC Resolution 31/31 (2016)
  21. The right to international standards on body searches
    Art. 50, 51 and 52, United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules); Guideline 3, Guidelines on the Conditions of Arrest, Police Custody and Pre-trial Detention in Africa (the Luanda Guidelines).
  22. The right to time limits on questioning
    Principles on Effective Interviewing for Investigations and Information Gathering (the Méndez Principles)
  23. The right to humane conditions of detention
    Nelson Mandela Rules; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
  24. The right of women, children and persons with mental health conditions or physical disabilities to specific conditions of detention
    The United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules); Convention on the Rights of the Child and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules)
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