HRLA and the British Institute for International and Comparative Law (BIICL) were pleased to host their first joint event last month entitled ‘Human Rights and Diplomacy:British Citizens Detained Abroad’.

Gathered in the Grotius Library at BIICL, the panel explored how human rights protections can be undermined by a state’s desire to preserve stable relations with other states. This tension was examined with regard to the situation of British nationals detained overseas, in particular the high-profile cases of Nazanin Zaghari-Ratcliffe (detained in Iran) and Andy Tsege (previously detained in Ethiopia) whose respective spouses Richard Ratcliffe and Yemi Hailemariam joined their lawyers Alison Macdonald QC (Matrix Chambers) and Chris Esdaile (REDRESS) on the panel.

“Britain does not interfere in the legal systems of other countries”

Yemi Hailemariam opened the discussion by recounting the fear she experienced in June 2014 when Andy was arrested in Yemen whilst taking a connecting flight. From Yemen he was rendered to Ethiopia where he remained in prison for four years. Naturally devastated by his arrest and subsequent death sentence following a trial in absentia, Yemi contacted the Foreign and Commonwealth Office (FCO) for support. She described how the FCO’s dissatisfactory response to Andy’s case was exemplified by hollow public statements such as: “Britain does not interfere in the legal systems of other countries”and “the UK opposes the death penalty in all circumstances.” Fortunately for Andy, Yemi succeeded in rallying an army of volunteers who helped devise creative strategies such as running for MP in the Prime Minister’s constituency with a campaign message of “Don’t vote for me, write to Theresa May.”

Audience members were keen to hear how Yemi’s then nine-year-old daughter applied to judicially review the FCO’s handling of her father’s case in 2016. The basis of this claim was that the UK Government had acted unlawfully in focusing on ensuring due process for Andy after hearing from the Ethiopian authorities that had no right to challenge his in absentia convictions. Instead, it was argued, the Government should have publicly called for his release. The High Court eventually refused the request finding no grounds for review.[1]

It had been almost exactly a year since Andy’s eventual return to the UK, a moment Yemi described as surreal as his arrest. When asked why he had been released, she cited the change of government in Ethiopia as the principal reason. Soon after taking power in 2018, Prime Minister Abiy Ahmed introduced a raft of reforms including the release of numerous policital prisoners. Although undoubtedly a positive end to a hardfought campaign, this was perhaps a sobering message to human rights lawyers representing British citizens detained overseas. The law, it seems, can often have limited impact when a client’s detention is politically or diplomatically convenient.

Beyond Discretion: Law vs Policy

Chris Esdaile provided the audience with a background to the law affecting citizens incarcerated overseas. The Vienna Convention on Consular Relations 1963, he explained, ensures that the consulate is notified of the detention of its citizens and provides detainees with key protections such as the freedom to access and communicate with consular officials. The UK has incorporated the Convention into domestic law through the Consular Relations Act 1968, save for a few key sections.

Broadly, there are two key forms of assistance that the UK can provide its citizens detained overseas: consular assistance and diplomatic protection. Consular assistance seeks to prevent an international wrongful act through assistance to nationals facing general difficulty overseas (including detention). Diplomatic protection, on the other hand, seeks to remedy an international wrongful act through a formal State-to-State process and potential proceedings at the International Court of Justice.

Chris explained how in the UK consular assistance and diplomatic protection are not enshrined in law but are instead regulated as a matter of policy at the discretion of the Government. Critically, this means UK citizens cannot compel the Government to act on its behalf, which can undermine the protection of British nationals abroad. REDRESS’ report ‘Beyond Discretion’suggests three improvements to the legal and political framework in this area

  1. Make policies transparent and accessible to everybody so that those affected (and their families) understand the process and their options
  2. Make consular and diplomatic protection a legal right for UK citizens as is the case for many other countries
  3. Make human rights and reparations at the heart of UK foreign policy

 

Hostage Diplomacy

 

 

Richard Ratcliffe spoke candidly about the difficulties he had faced since his wife Nazanin was arrested whilst visiting family in Iran in April 2016. It had also been over three years since he had seen their daughter Gabriella who is currently living with her grandparents in Iran and approaching school age. Like Yemi, Richard shared frustrations dealing with the FCO but was grateful to the Foreign Secretary for publicly declaring that Nazanin is innocent of the national security charges brought against her, and for granting her diplomatic protection, the first time in 100 years.

Richard’s mantra during the early stages of the campaign was “if enough people care, the right people will care enough.” Recently however, he has felt the need to adopt a more robust approach, calling on the UK Government to respond to Iran’s policy of ‘hostage diplomacy’, which recently saw Aras Amiri (also a UK national) sentenced to 10 years in prison. When asked about the effect of Nazanin’s diplomatic protection, he said it had resulted in better treatment her (particularly access to medical care) but that there had not been more progress than that. Richard concluded by saying that those that wished to support Nazanin could sign their petitionand follow the campaign.

 

Non-justiciability: Entering the Forbidden Areas

  

Alison Macdonald QC opened the final section of the discussion by highlighting that although Andy and Nazanin’s cases were different, what they have in common is the remarkable eloquence and tenacity of their families. She said however, that citizens detained overseas should not have to rely on the efforts of their families to ensure their human rights are protected.

Dual nationality, she explained, is a complicating factor in cases where British citizens are detained abroad. Along with a team of other lawyers, Alison drafted the legal opinionthat helped persuade the Foreign Secretary to grant Nazanin diplomatic protection. It concluded that she had been discriminated against Iran on account of her dual nationality, a concept Iranian law does not recognise. She also emphasised that Nazanin’s background showed that her ‘predominant nationality’ was indeed British.

Finally, Alison addressed the issue of non-justiciability of FCO decisions affecting British citizens. Whilst not a particularly searching decision, she cited Abassias opening the door for achieving accountability in this area. The case held that there is:

“no reason why… [the FCO’s] decision or inaction should not be reviewable if it can be shown that the same were irrational or contrary to legitimate expectation; but the court cannot enter the forbidden areas, including decisions affecting foreign policy.”[2]

Where diplomacy and geopolitical interests appear to complicate the chances of redress for detained nationals, this decision may offer a glimmer of hope for the future. Further, as one audience member pointed out, efforts had already been made in Canada to introduce a Protection Charter, which would enshrine the right to consular assistance in law. In the meantime, the FCO continues to enjoy a wide discretion.

 

HRLA would like to thank BIICL for hosting this event and is immensely grateful to the speakers for sharing their personal and professional insights on this issue.

 

 

Markus Findlay is HRLA’s Bursary Officer and was Chair of this discussion. Follow him on Twitter @markus_findlay

 

 

[1]R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Menabe Andargachew [2016] EWHC 2881 (Admin)
[2]R (Abbasi) v Foreign Secretary [2002] EWCA Civ 1598 at [106]
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