Playing chess with thugs. Brittney Griner, Paul Whelan and the Wests challenge in combating hostage diplomacy by dictators – Toronto Star
His name makes headlines around the world. His plight is a cause clbre in Washington. But its in Moscow that his fate hangs in the balance.
On Friday, the family of Canadian-born Paul Whelan met U.S. President Joe Biden, who is seeking the former Marines freedom from a Russian prison, where he is serving a 16-year-sentence for espionage.
Whelan has decried the case against him as political theatre. But the star of this geopolitical thriller and his anxious family have never been so powerless.
There is a need to do something, anything, his twin brother, David Whelan, told the Star. What a lot of people do not bother to understand is that, unlike normal hostage takers, nation states that engage in arbitrary detention are free to do whatever they want.
Free, in other words, to open the cell door for the likes of Whelan and American basketballer Brittney Griner, who is serving a nine-year Russian sentence on drug charges, and swap them, perhaps for a Russian drug trafficker, perhaps for a spy and assassin.
Or, perhaps not.
President Biden has acted, making an offer to the Russian government, David Whelan said. Now we all have to wait to see if the Russians have the concessions they want, or if theyre going to keep Paul in their exchange fund for some other purpose.
Last April, after a concerted campaign to engage the U.S. government and convince Washington to negotiate with Moscow, the Russians agreed to free former Marine Trevor Reed, who was jailed for assaulting two police officers, in exchange for Konstantin Yaroshenko, a Russian pilot arrested in Liberia and convicted in New York for his role in a multinational drug trafficking plot unravelled by the U.S. Drug Enforcement Agency.
The exchange took place on the tarmac of a Turkish airport, like a scene from a Cold War spy film except that, in that bygone era, the two sides would heed to a diplomatic code of conduct an eye for an eye, a spy for a spy.
The most famous of those classic prisoner exchanges was the 1962 swap of the downed American spy-plane pilot Gary Powers for the convicted British-born Soviet spy Rudolf Abel, retold in the 2015 film Bridge of Spies.
The most recent was the 2010 exchange of 10 Russian sleeper agents living under assumed identities in the U.S. for four double agents held in Russian prisons. Among them was Sergei Skripal, the former spy who later survived an assassination plot carried out by Russian military intelligence agents using the nerve agent Novichok.
But the days of prisoner exchange as a settling of accounts, as an act of zeroing the geopolitical scales between the CIA and the KGB, have been replaced by the troubling trend of hostage diplomacy in which westerners are wrongfully detained and harshly sentenced by authoritarian regimes who seek the upper hand in their dealings with other nations.
Theres no rules here, said Jonathan Franks, a crisis management adviser who was a spokesperson for Trevor Reeds family. The taking of civilians as leverage in state-to-state relations is the next frontier in international arm-wrestling.
The Cold War resulted in numerous cases of western tourists, students or business travellers being arrested on trumped-up charges only to later be exchanged for captured Soviet spies, said David Silbey, an adjunct associate professor of history at Cornell University. But it was still a more organized situation under the Communist Party of the Soviet Unions watch than under Putin, who was himself a former KGB agent director of its successor agency, the FSB.
The Russia that exists now is a lot more of a single-person state, as opposed to a single-party state (under the Soviet Union), and I think its much more subject to the kind of chaotic behaviour of Putin especially.
The most glaring example of hostage diplomacy is that of the two Canadian Michaels former diplomat Michael Kovrig and consultant Michael Spavor who were arrested in China in retaliation for the arrest in Vancouver of Huawei executive Meng Wanzhou on a U.S. extradition warrant.
The Canadian citizens were only released from prison in September 2021, after almost three years, when Meng struck a deferred prosecution agreement with American prosecutors and was allowed to return to China.
But their dystopian legal odyssey Kovrig told his wife upon being released he felt like he was coming into another world wasnt without consequence.
Gathering support from other nations
Outraged and powerless to secure the release of its detained citizens, Canada drafted a Declaration Against Arbitrary Detention in State-to-State Relations as the tactic of hostage diplomacy is referred to in official circles.
The declaration condemns such tactics as a breach of human rights law and calls on governments who detain foreign nationals to respect the rule of law, ensure consular assistance, and take steps to prevent mistreatment and torture.
In the year since the declaration was introduced, it was endorsed by 70 states a little more than one-third of the world.
The use of joint declarations and diplomatic condemnations to combat what, in its crudest form, amounts to state-sanctioned kidnapping is part of the problem.
Part of it is that we play by rules, we have standards, rule-of-law principles, and part of it is and Im sure its true in Canada, too a lot of the people who make policy decisions here are the best and the brightest, said Franks. Theyre not necessarily equipped for playing chess with thugs.
If you want to fight back against thuggery, you might need different guys.
If a Canadian, American or British citizen is taken hostage somewhere in the world by al-Qaida, the Islamic State or Boko Haram, the governments have a full range of lethal military options to draw on as they attempt a recovery.
But swooping down under the cover of night on a foreign government is a recipe for war.
To address this limitation, the U.S. adopted the Hostage Recovery and Hostage-Taking Accountability Act in 2020, a law obliging Washington to assist wrongfully detained U.S. citizens abroad.
The law established internal guidelines for handling the cases, but also authorizes travel bans and sanctions against foreigners responsible for or participating in the ordeal of American prisoners.
Around the same time as Canada released its declaration against arbitrary detentions, Sarah Teich, a Toronto-based human rights lawyer, came out with a similar legislative proposal for Canadian lawmakers that was released through the Macdonald-Laurier Institute, a think-tank.
Teich said she drew up the proposition not in response to the detention of the two Michaels but after hearing about Kylie Moore-Gilbert, an Australian academic and colleague of Teich who was jailed in Iran for two years, from 2018 to 2020, on charges she was an Israeli spy.
Moore-Gilbert was ultimately released in a prisoner swap for three Iranians jailed in Thailand for a 2012 bomb plot that targeted Israeli diplomats.
The key tools in Teichs legislative proposal are sanctions against foreign nationals, an obligation for the government to work with and inform families of wrongfully detained Canadians, and the ability to co-operate with foreign states and reward helpful foreign citizens with asylum or Canadian citizenship.
The federal Conservatives included all three points in their 2021 election platform, but the political momentum for the legal changes weakened when Prime Minister Justin Trudeaus Liberals were re-elected on Sept. 20, 2021, and, four days later, Kovrig and Spavor were released from Chinese custody.
Your guy for my guy
For now, prisoner swaps are the fastest method for a country to free its arbitrarily detained citizens though still not the simplest.
The negotiations, I would say, are not what one might expect if you went to business school, cause the other side, at times, did not go to business school, Roger Carstens, the U.S. special presidential envoy for hostage affairs, said this summer in a hostage diplomacy panel discussion organized by the International Bar Association.
Whether negotiating with officials in Yemen, Myanmar, Venezuela or Iran, every case is strangely and uniquely different, he told the panel.
In the U.S., Carstenss team seeks input from family members and non-governmental organizations and U.S. lawmakers before assembling a hostage resolution team that consists of CIA and military, the Treasury Department and other government agencies to develop possible courses of action and determine what branch of a foreign government, or specific officials, have the power and willingness to engage in talks.
And even with all that expertise and preparation, Carstens said, the most important part of any negotiation plan is flexibility to adapt to the demands of the other side.
Fifty per cent of the time we walk out of the negotiation on the first go-around saying Oh my gosh! We absolutely did not see that coming, he said. No matter how much information we gather, the other side always has a trick up their sleeve that theyre going to employ.
In the case of Paul Whelan and Brittney Griner, the U.S. took the rare step this summer of confirming that it had made a significant proposal to the Russians reportedly offering to exchange arms trafficker Viktor Bout, a former Soviet military officer, for the Americans.
CNN later reported that Moscow was came back with a demand that a Russian spy named Vadim Krasikov, convicted by a German court of killing a former Chechen rebel commander in Berlin in 2019, be added to the deal.
From Moscows perspective, the impetus to repatriate its jailed intelligence agents is akin to the dictum that wounded soldiers should never be left behind on the battlefield, said Silbey, the historian.
This idea that you protect your own and not just for good-hearted reasons but also so that the next person who goes out to spy for you knows that youre not going to abandon them, he said.
From the western perspective, Sibley said, there are three types of prisoners: captured spies; ordinary citizens arrested on genuine or trumped-up crimes; and celebrity prisoners.
Someone like Griner, a two-time Olympic gold medalist, does create more leverage for the Russians because she is famous, she has celebrity and the ability of getting her story into the press in a way that ordinary Americans dont necessarily have, Silbey said.
In the cold calculus of prisoner-exchange poker, Griner might be the ace that shifts the balance and allows Moscow to increase its demands.
American officials are broadly confident that Whelan and Griner will eventually be released. They just dont know whether it will be sooner or later, or what price Washington will be forced to pay.
Others worry that a higher price tag paid for their freedom will increase the risk for other westerners by incentivizing and inspiring rogue and ruthless regimes to continue jailing innocents. Russian investigative journalists Andrei Soldatov and Irina Borogan suggested recently that the Kremlin was creating a bank of hostages to be used in future negotiations.
Franks said the West must find its own way to match the ruthlessness of the regimes in Tehran, Caracas, Beijing and Moscow while also respecting the rule of law and keeping its moral high ground.
We are never going to solve the problem until we find the courage to cause these people and the people that they love pain, he said, referring to government officials, prosecutors, judges, police officers, investigators and others who facilitate hostage diplomacy.
I mean that if youre an elite from a hostage-taking country you dont get to hide your kids in the West anymore. No more fancy boarding schools in the U.S. or the U.K. You dont get to seek safe harbour That sounds cruel, but there is no uncruel way to do this.
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