For the past twelve months, US journalist Evan Gershkovich, a correspondent for the Wall Street Journal, has been held in a Moscow prison awaiting trial. Arrested by security services on still unsubstantiated espionage charges, he is permitted minimal human contact and no visitors other than lawyers and consular officials. Although reportedly remaining in good health, he is allowed to shower only once per week and can leave his cell for only one hour per day, generally to walk in a caged area on the prison roof under armed guard. On 20 February, Moscow City Court denied the latest in a series of appeals against his pre-trial detention. 

As discussed in an earlier post at the time of Gershkovich’s arrest, as well as having a significant chilling effect for press freedoms in Russia, this case is one which should be understood as an instance of state hostage-taking. Under international law, the principal treaty on hostage-taking is the International Convention Against the Taking of Hostages 1979 (Hostages Convention), which defines the relevant elements of the offence of hostage-taking as occurring where any person:

“seizes or detains … 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”

International and domestic jurisprudence has drawn on the Convention definition to find that analogous hostage-taking offences do not require the intention to compel to be communicated to the third party, but may be inferred from other evidence (see decisions of the Special Court for Sierra Leone, Appeal Chamber in Prosecutor v Sesay, Kallon and Gbao (2009) [576]-[586]; US District Court for the District of Colombia in Simpson v Socialist People’s Libyan Arab Jamahiriya (2006) [360]).

From the outset of Gershkovich’s case, the intention to compel a third party – namely, the United States – has been implicit in the surrounding circumstances, amid declining relations following Russia’s full-scale invasion of Ukraine in 2022. His detention forms part of an emerging pattern of conspicuous arrests of US nationals in recent years, including those of basketball player Brittany Griner in February 2022 (later exchanged for Russian arms dealer Viktor Bout), Radio Free Europe/Radio Liberty journalist Alsu Kurmasheva in October 2023, and dual national Ksenia Karelina in January 2024.

Yet over the course of the last year, the intention to compel has also been made explicit, with the conditions of Gershkovich’s release being openly discussed by the head of state. Speaking in an interview in February, President Vladimir Putin stated: “I do not rule out that … Mr. Gershkovich may return to his motherland. We are ready to talk … but we have to come to an agreement.” Putin alluded to ongoing negotiations about the case, saying: “There are certain conditions that are being discussed between special services. I believe an agreement can be reached.”

Further removing any doubt that this case should be seen as one of state hostage-taking are reports of a specific proposed prisoner swap. Prior to the death of opposition leader Alexei Navalny in a Siberian prison colony in February, an apparent deal was being developed which could have seen the exchange of Navalny, Gershkovich, and another US national, Paul Whelan. Reports suggest that the condition of their release was the return of Vadim Krasikov, a Russian national currently imprisoned in Germany for the assassination of a former Chechen rebel in Berlin in 2019. In light of Navalny’s death, negotiations now appear to have stalled.

State hostage-taking is a tactic which is now gaining increasing recognition at the international level, with Beatrice Lau (2022) describing it as using “the guise of national law as a means to coerce the foreign policy of another state.” In Gershkovich’s case, while the coming year may see him face trial and conviction, his trial will not be a meaningful one. If, in practical terms, there is unlikely to be any resolution of his case via international law, the Hostages Convention can at least make clear the nature of the offence, beyond the appearances of the domestic legal process.