Last week the Australian Senate’s Standing Committee on Foreign Affairs, Defence and Trade handed down its report into the wrongful detention of Australian citizens overseas. A phenomenon that unfortunately only continues to grow, such wrongful detention (often referred to as “hostage diplomacy”) is increasingly used by authoritarian regimes around the world as a tool of leverage over democratic countries and their foreign policy. The United States, Canada, and some European countries have recognised the threat, and in recent years have crafted new strategies and institutions to “disincentivise” the practice.
Up until now Australia has stood back from this momentum, favouring what Australia’s Department of Foreign Affairs and Trade (DFAT) calls “flexibility” in dealing with instances of wrongful detention on a case-by-case basis. I was one of those cases, imprisoned in Myanmar following the 2021 coup until November 2022.
The Senate committee effectively found against DFAT’s approach, and, drawing upon the testimony of Australians wrongfully detained (including from me), various interested groups, as well as overseas experts and practitioners, made a series of important recommendations, that the Australian government:
- Adopt a clear definition of wrongful detention, collect data on its occurrence, and increase public awareness of the practice. The latter to include more explicit warnings to travellers of countries whose ruling regimes engage in wrongful detention.
- Create a “Special Envoy for Wrongfully Detained Australians”, resource the position properly, and support them with an inter-agency specialist team to manage all cases of arbitrary detention. Such management should be customised to each case, and include increased support for the families of detainees and to coordinate legal assistance. This should extent to greater support to detainees upon their return to Australia, including medical support and counselling, as well as legal and administrative assistance in the often-underestimated difficulties in reintegration. This recommended role of the Special Envoy closely aligns with the approach of the United States, and its newly appointed “Special Presidential Envoy for Hostage Affairs” (SPEHA).
Moore-Gilbert and Robertson also expressed to the Committee their disappointment that Australia had not employed Magnitsky-style sanctions against individuals involved in wrongfully detaining Australians.
- In acknowledging that travel after release is often complicated by the likelihood a detainee has been convicted (however unjustly), should supply former detainees with a written acknowledgement by Australian authorities that their detention was wrongful.
- To deter wrongful detention, should unambiguously call out hostage diplomacy, label it as a serious and egregious form of foreign interference, and make it clear that there will be severe diplomatic consequences from the behaviour.
- Should sanction senior officials responsible for the wrongful detention of Australians, including members of the judiciary for authorising such imprisonment.
- While an Australian is being wrongfully detained, should “exercise restraint” in its public engagement with representatives of the regime holding them.
In its own submission to the Senate committee, DFAT pushed back against much of the above, including the idea that Australia had ever been subject to the sort of attempt at leverage implied by the term “hostage diplomacy”. This was rejected in the testimony of Kylie Moore-Gilbert, Director of the Australian Wrongful and Arbitrary Detention Alliance (and a hostage of the ruling regime of Iran for 805 days in 2018–20), and by the renowned Australian jurist Geoffrey Robertson. Both Moore-Gilbert and Robertson also expressed to the Committee their disappointment that Australia had not employed Magnitsky-style sanctions against individuals involved in wrongfully detaining Australians, despite the fact that such laws are part of Australia’s sanctions armoury. As Roberston put it:
If you look at the background to the Magnitsky laws … you will see that they come about because there are certain officials who are hand-in-glove or are part of an oppressive state who have been the direct perpetrators of … wrongful imprisonment. Now, judges were the first to be sanctioned in the original 2012 Magnitsky laws that came to pass in America, because judges and prosecutors do the work. They do the dirty work of the state against their own ethics in cases where they are bound to be independent and are meant to be objective, and they’re also, of course, quite wealthy. They go abroad, they want to send their families abroad to study at other universities, so they’re good targets. They are worried by incurring Magnitsky sanctions yet they don’t get sanctioned.
With the Senate committee’s report now tabled, it must be hoped that its eminently sensible recommendations, all of which align closely with the best practices of countries similarly vulnerable as Australia, will be seriously considered.
Listen to Lydia Khalil and Sean Turnell discuss hostage diplomacy, its personal and global impacts and what can be done about it.
