On 30 March, Russia’s Federal Security Service (FSB) announced the arrest of the Wall Street Journal’s Moscow Correspondent, Evan Gershkovich, on “suspicion of espionage in the interests of the American government.” As the first arrest of an American journalist for espionage in Russia since the Cold War, the case signals an intensification of the government’s crackdown on freedom of expression following the invasion of Ukraine, effectively silencing foreign reporting from the country. Beyond its implications for media freedoms, Gershkovich’s case is one which should also be understood as an example of ‘state hostage-taking’ in international diplomacy.
After his arrest in the city of Yekaterinburg, Gershkovich appeared before a court in Moscow on unsubstantiated charges (which can carry up to a 20-year sentence), before being sent to pre-trial detention for two months. Given the proximity of these events to the indictment and arrest of alleged Russian agents by the US and Slovenia, and following the 2022 US-Russia prisoner exchange for the return of US basketball player Brittney Griner, many analysts have suggested that Gershkovich may have been detained as an asset for future exchanges. Ivan Pavlov, a Russian defence lawyer specialising in national security cases, stated that: “It’s clear that they’ve taken a hostage.”
While more often thought of as the practice of non-state groups, the phenomenon of state hostage-taking has gained increasing recognition in recent years. State hostage-taking – also known as ‘hostage diplomacy’ – is defined by the human rights organisation REDRESS as “when a state detains foreign or dual nationals in order to secure diplomatic leverage over another state.” Among the most high-profile recent cases of this kind was that of Nanazin Zaghari-Ratcliffe, held on national security charges in Iran from 2016 to 2022. In recognition of the wider phenomenon, the Canadian government in 2021 launched a non-binding Declaration Against Arbitrary Detention in State-to-State Relations, which has now received the endorsement of 70 states.
Under international law, the principal treaty concerning hostage-taking is the International Convention Against the Taking of Hostages 1979 (‘Hostages Convention’). Negotiated through the UN system in response to a series of international terrorist incidents during the 1970s, Article 1 of the Convention defines hostage-taking – which was already prohibited in armed conflict as a war crime – as occurring where any person:
“… seizes or detains and threatens to kill, 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 …”
A core element of this definition is the presence of the intention to compel another party, such as a state, to act in a certain way – the ‘leverage’ sought in hostage diplomacy. While there is some debate over the strict legal application of the Hostages Convention to cases where states are responsible, Ferstman and Sharpe (2022) use its provisions in their analysis of the pattern of state hostage-taking by Iranian authorities against foreign and dual nationals, which has affected at least 66 individuals since 2010.
At this early stage of Gershkovich’s case, the intention to compel might be inferred not only in the surrounding context concerning alleged Russian operatives in other countries, but from the nature of Russian government statements. On the day of the announcement, the Deputy Foreign Minister alluded to the potential for a future prisoner swap, albeit noting that such exchanges had previously only occurred after conviction. Meanwhile President Vladimir Putin’s spokesperson commented on the news that “since he was caught red-handed, the situation is plain and simple.”
Although the context of Gershkovich’s detention reflects a specific moment in US-Russian relations and domestic political developments arising from the war in Ukraine, it shares many characteristics with state hostage-taking cases from other jurisdictions. As elsewhere, the outcome of the domestic legal proceedings is all but certain, and any resolution is expected to be achieved through diplomatic means. This is not simply a criminal case with an international dimension – instead, the concept of state hostage-taking illuminates the fact that in such cases, the criminal process is merely a facade.
Friends of Evan Gershkovich have set up a website at freegershkovich.com to campaign for his release. Supporters can send letters through the website which will be translated into Russian and delivered to him in prison in Moscow.
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