Loss of liberty due to state actor intervention
Much is written and said about the threat from kidnapping and hostage taking overseas and a lucrative industry has developed around kidnap and ransom insurance policies and negotiating expertise. The reality, however, is that you or your staff are far more likely to be detained by state actors such as the police or immigration services than by criminals or terrorists, yet the subject gets far less coverage. So, what are the key issues to consider?
We discuss loss of liberty, as we call it on our Complex Environment Awareness Training (CEAT) courses from a kidnap perspective but also possible arrest or detention by state actors. At the outset we always ask our students “have any of you been detained?” It’s very rare to find anyone who has been a kidnap victim, bar our own loss of liberty instructor who was held by the Khmer Rouge while working as a UN Observer!
On the other hand, we do on occasion come across one or two in a group who have been arrested. In fact, around 6,000 British nationals are detained while overseas every year with over 100, around 2%, complaining to the UK authorities of ill treatment or torture.
The reasons for their detention vary widely. At one end of the scale it may relate to espionage or be politically inspired. The student Mathew Hedges was detained for spying for six months in 2018 when in Dubai. Or in the case of the journalist, Nazanin Zaghari Radcliffe charged with promoting the soft overthrow of the Iranian regime. She was sentenced to five years imprisonment in 2016. Others are held for serious criminal offences, such as Jagtar Singh Johal who was accused of murder and criminal conspiracy in India.
At the other end of the scale are those seemingly innocent acts, such as carrying the prescription drug Tramadol into Egypt for which Laura Plummer was sentenced to three years in prison, serving fourteen months before she was recently released. Or Neil Jones who spent two months in prison prior to his trial in Cambodia for partying and what was described as “singing and dancing pornographically” or a British engineer held for two days in Jeddah due to apparent visa inconsistencies. Other common misdemeanours include carrying or use of drugs, antisocial behaviour and photography of sensitive locations.
So, the first simple message is, it can happen to anyone perhaps due to genuine error or ignorance of local laws, or by finding yourself to be a pawn in a wider political powerplay on the basis of your nationality, employment, or activities. So, loss of liberty due to state actor intervention should be recognised as a potential hazard when we are travelling overseas.
When detention’s do occur, the treatment detainees receive ranges from UK standards to gross violations of basic human rights. So, it’s important to understand the realities of the country you are visiting. To look beyond the friendly smiling poster faces, the gloss of welcoming luxury hotels and courteous local guides. The apparent adherence to western liberal attitudes and prima facie sophisticated political and legal system as the reality may be quite different.
Mathew Hedges, while held in Dubai, alleges that he was kept in solitary confinement for up to 23 hours a day, drugged then interrogated for long periods of time and persuaded to make a confession while under duress. Jagtar, when arrested in India, was also held in solitary confinement, denied consular access for twelve days and, he claims, tortured using electric shock treatment as well as being asked to sign blank sheets of paper with “the details to be added later”.
So, the second message is, don’t assume the worlds policemen are all like your local village bobby or that they adhere to the rule book, even if there is one. Understand the realities of the countries you are visiting in terms of their legal system and standards of policing.
As well as intentional ill treatment there’s also the issue of basic living conditions. Shared and over crowded cells, poor sanitary conditions, lack of clean water and food as well as harassment from other inmates can all be a concern. In many countries’ detainees have to rely on friends or relatives to supply food and sometimes money to help them survive, by buying additional food or privileges while in prison. The Chennai six in India, for instance, gave money to their prison guards who would then buy them food from the local market.
A British business man I know who was sentenced to one month’s imprisonment in a Middle Eastern country followed some simple local advice. On being placed in a large and overcrowded cell with less beds than inmates he simply approached the biggest, toughest looking man in the room and offered him 250 dollars if he took on the role of minder with another 250 dollars to follow at the end of the month.
The minder immediately took the businessman under his wing, identified a bed in one corner of the room, announced that it was now his for the month and that he would sleep on the floor beside him each night. The businessman served his month’s sentence without any harassment, received his fair share of food and water and slept soundly. Afterwards he said it was the best 500 dollars he had ever spent.
The third consideration is, if someone is being detained, make sure you understand the local conditions and if required put a local support plan in place. The British Consulate may assist and facilitate but don’t expect them to provide the complete package.
So, if you or someone else is being detained what happens next and what should you expect from the Consulate and wider Foreign and Commonwealth Office (FCO)? Well, if you’re lucky those detaining you or your staff member will offer to inform your consulate but that’s not guaranteed, at least not immediately. You may have to keep insisting as well as press for any other external contact. Jagtar was not allowed to communicate with anyone for twelve days after his detention. When the UK Consulate are informed, they will aim to conduct a meeting with a detainee within 24 hours and every three months thereafter however, they have no statutory duty of care or obligation to do so despite this popular myth.
The Consulate’s only role is to ensure that your basic human rights are being observed. That you have access to adequate food and water, medical treatment if required, legal representation and the ability to speak in confidence with consular staff in order to raise any claims of ill treatment. They will not lend you money, pay your legal fees or seek preferential treatment because you are British. Nor will they attempt to influence the due legal process, with just two exceptions.
Firstly, in cases where the death penalty is imposed. If it is, the British Government will appeal for the sentence to be commuted, as it is stated UK policy to oppose the use of the death penalty in all circumstances. There are currently around fifteen British nationals on death row around the world. Secondly the government may lobby on someone’s behalf where there is a blatant miscarriage of justice, no due process has taken place or there is a belief that the detention is politically motivated.
As well as visiting detainees in country the Consular Service will also liaise with families and employers at home, offer advice and put you in touch with other organisations such as Prisoners Abroad, a charity that can assist in establishing communication links between detainees and their families and provide local in-country support.
So, the message here is push hard for consular access and seek advice and support drawing on their local knowledge but don’t expect too much. You will need to secure and pay for legal representation and fight in the courts like everyone else, as well as provide assistance while they are in prison if conditions are poor.
Then there’s the question of your wider strategy, where you believe there’s genuine injustice and the use of publicity. In several high-profile cases with political connotations or apparent injustices publicity has been used to bring pressure to bear but sometimes low-key lobbying can be a more effective tool.
So as a rule, seek advice, speak to the FCO and if there appears to be merit in trying a low-key approach try that first. It avoids a public stand off and allows for face saving on the host country’s part.
If low profile does not work, then consider taking a more public line. Engage with the FCO, the detainee’s constituency MP, the national media, pressure groups and charities. Mathew Hedges wife pursued a low-key policy on FCO advice for several months then in the absence of any real progress changed track. When she finally went public, she did so very effectively, and wheels started to move, especially in Whitehall. A publicity campaign takes time to have effect though, don’t expect quick results and you need to keep your case live in the national and other media. Social media can also be an effective enabler for fundraising if monies are needed to pay for legal representation. The Chennai six relied heavily on public donations to fund their legal fees.
Remember that the FCO has a wider agenda and a low-key approach may suit them in terms of preserving cordial relations or not disrupting an impeding trade deal or official visit so don’t simply assume that they are promoting a low-key approach for your benefit alone.
Going public can have a double effect. Firstly, it puts pressure on the UK government to take a more proactive approach so to be seen to be doing something and secondly it puts pressure on the host government in terms of international reputation. Dubai relies heavily on its positive reputation in the UK as a leisure and business venue. I doubt that fact was lost on the government when deciding to pardon Mathew Hedges after the high-profile media coverage his case received at home.
So, think about your wider strategy, seek advice, including from the FCO, but don’t forget their agenda is different to yours. Consider the low-key option but be prepared to change tack if it does not work.
Finally, from an organisational perspective consider the wider implications. The impact on your reputation and being seen to do the right thing. The cost not just in terms of legal fees but of assets that may be impounded, such as ships and aircraft and the risk of litigation after the event if your personnel claim they were not properly briefed and trained or supported while being held.
So, in summary some of the key factors to consider as part of a detention policy:
- Don’t think it can’t happen to you or your staff, guilty or innocent
- Make sure travellers understand any relevant local laws
- Don’t assume the treatment detainees receive or the conditions under which they will be held will be to UK standards, be prepared to provide local support
- Seek consular access and FCO advice but don’t expect them to concern themselves with anything more than basic welfare
- Develop a wider strategy where you believe an injustice has been done including lobbying and the use of publicity. Seek FCO advice but remember their agenda is different to yours
- Consider the wider implications in terms of reputation, cost and litigation
And finally, for those who find themselves detained some simple dos and don’ts:
- Do appear cooperative but push for external contact and make it clear your employers have told you to seek consular access before you say or sign anything
- Don’t be confrontational, it will only make matters worse. Instead build relationships with those holding you to encourage better treatment and privileges
- Do not admit to or sign anything without seeking counsel from trusted sources especially if it’s a blank piece of paper or in a foreign language (yes it does happen!)
- Try not to panic or be intimidated by verbal or physical threats – they are more than likely only that
- Do not be drawn in by apparent offers of leniency or freedom in return for cooperation or an admission of guilt, a confession is difficult to refute later
So, when drawing up your loss of liberty plans remember to include arrest and detention by state actors as well as the organisation’s response higher profile kidnapping incidents. Make sure your staff understand the local laws and customs in advance and can spend their spare time taking in the sights rather staring at blank walls and socialising in local bars, rather than locked behind them.
David Curran MA FCIPD MSyl
Director, Edson Tiger