Introductory Remarks by Mike Newton

Let us come to order. These are friends. These are colleagues. This is why we come to ASIL, people of this caliber, people of this quality, people of this focused expertise on this topic. We are going to do a lot this morning.

Here is the motif. I will make very short introductions. I will not introduce Diane. I will let Diane introduce herself because she does that. But what we are going to do is, more or less, rapid fire. I guarantee you, every one of these people could talk all afternoon, and I would pay good money to listen to them talk all afternoon. I really would. But what we are going to do is a series of short questions interspersed.

I will begin at the very end with Cara. She is currently serving as the Senior Foreign Affairs Officer, the SPEHA, the Special Presidential Envoy for Hostage Affairs at the State Department, but she just completed a term as a Congressional Fellow, and so she is the voice here that is really plugged into current legislative developments and current challenges.

To her left, a force of nature. Ambassador Roger Carstens served for five years as the Special Presidential Envoy for Hostage Affairs. He is now a Senior Fellow at the McCain Center. He has got the war stories. He has got the being in the room with Maduro, but also the face of a true public servant.

Speaking of true public servants, Louis Martin Aumais, who is currently serving as the Legal Director in Global Affairs Canada, essentially their international law advisor, and he is here with the Canadian voice to speak to Canadian issues.

Then here, my dear friend, Dean Claudio Grossman, American University, Washington College of Law, a legend. He needs no introduction. He is published. He has written. He has been a heroic defender of human rights. He has served in many multilateral forums. He is currently serving in particular—and I am deeply appreciative of his time and energy—as one of the experts on the Canadian forum. And he will educate you and answer questions and foreshadow the report of this independent international panel of experts on arbitrary detention in state-to-state relations.

Without further ado, I want to introduce Diane Foley. I want you to listen particularly carefully to what she is going to say at the end. She is excited about the panel and knows that we are strongly united, and that is the theme of this panel. Everybody here is totally united, totally committed to doing their part in lifting their share of the water. Without further ado, here is Diane.

Remarks by Diane Foley

Dear Friends, I regret that I am not able to be with you in person today because I so applaud your coming together against the arbitrary detention of our people abroad by authoritarian regimes. Too many of our citizens are unaware of the way nation states like Russia, China, Iran, and others target our people who travel abroad for wrongful arrest and hostage diplomacy. Ten years ago, our oldest son, James Wright Foley, a freelance conflict journalist from New Hampshire, was kidnapped while reporting from Syria. The Arab Spring had begun in the Middle East, raising the hopes of their people. Meanwhile, Syrian President Bashar al-Assad, recognizing the risk to his regime, opened his jails and borders to allow radical terrorists to infiltrate his country so he could blame the bombing and gassing of his people on those terrorists.

Radical terrorists such as ISIS began targeting Western journalists and aid workers to raise income for their growing caliphate, and our son, James Foley, was kidnapped along with three other Americans, three British, French, Spanish, Italian, Danish, and German journalists and aid workers, all targeted and kidnapped for ransom.

All the European hostages were negotiated to freedom, while the American and British were brutally beheaded. Our country chose not to cooperate with our allied nations to negotiate for their freedom. Our country abandoned their citizens who were targeted solely for being American.

I was bitterly disappointed with our government and knew we could do better. So within three weeks of Jim’s murder, we had founded the James Foley Foundation to advocate for the moral courage in our government to prioritize the return of fellow Americans targeted abroad and to promote journalist safety.

By June of 2015, President Obama had issued his presidential policy directive, which established our current three-pronged hostage enterprise to bring our people home. It includes our Presidential Envoy for Hostage Affairs at the State Department, Interagency Fusion Cell, and Hostage Recovery Group at the National Security Council.

The Foley Foundation collaborated with the Levinson family to help pass the 2020 Robert Levinson Hostage Taking and Accountability Act, which made our U.S. hostage enterprise into law and gave us eleven criteria for our government to designate the arrest of a U.S. national as wrongful. This law has allowed subsequent Republican and Democratic administrations to decide which lawful arrests abroad are truly unlawful or arbitrary. These cases alone get the services of our SPEHA, our Special Envoy for Hostage Affairs.

Unfortunately, this designation process is often opaque to families, and interpretation varies between administrations. Families still bear the greatest burden to advocate for their loved ones and acquire the attention of our president and media to prioritize their loved one’s return. While not perfect, our U.S. hostage enterprise has enabled the return of over 150 fellow Americans since 2015. This has required many dedicated individuals, nationally and internationally, in our government and outside, and the brave advocacy of their families, fighting for the lives of their loved ones. It has required collaboration and cooperation with our fellow nations to help one another free our people.

This growing prioritization of our fellow Americans held captive abroad is a huge step forward, but now we must also work together to deter international hostage taking altogether. I beseech you to aspire to the moral courage necessary to both shrewdly negotiate for the freedom of our people held captive abroad while seeking ways to stop the use of people as weapons of war.

Today’s panel of dedicated experts gives me hope and must be multiplied until we are strongly united in strategy and decisive action to rid our world of arbitrary detention and international hostage taking. We owe this to the many who have died in captivity. May they not have died in vain. Thank you.

Mike Newton

I want to open up where she left off in terms of strategy and decisive action, and I want to open up, given respect for Diane, from the victim’s perspective. What is the single biggest thing that our friends and panelists think would help victims? What have you heard from victims?

Remarks by Cara Horan

In terms of what we have heard from victims, just at the outset, they want to be heard. They want to know that they have people actually listening and taking action on their cases, and they need a clear understanding of what is going on. In almost every situation of any U.S. national detained, that is the immediate response of our consular officers and is also the immediate response of our Special Presidential Envoy for Hostage Affairs.

Remarks by Roger Carstens

First off, I would quickly like to thank the American Society for International Law for hosting this event. Professor Newton, thanks for bringing me on this panel discussion. My fellow panelists, ladies and gentlemen, I see some distinguished people in the audience.

To answer the question, it depends on phase. If you want to define the victim as the person who is actually in the jail cell, that person wants out. If it is the family of the person who is in the jail cell, they want their loved ones out. At that point, they are not thinking about justice. They are not thinking about accountability. They are not thinking about solving the long-term problem. But the second they come home, they start to do the transition.

I would say of the many people that we have brought back as a nation, probably about 75 percent of them get involved in the process afterward. Twenty-five percent, they fade off. They heal. They go back to their normal lives. But you would be surprised at how many people stay in the fight and want to participate, and at that point, it does switch over. People want justice. They want accountability, and they want to know that we are solving the problem in the gross aggregate.

I will say that Diane Foley’s work in 2015 laid the groundwork for building an architecture to bring people home and take care of their families. But it also laid the groundwork for us to start working on closing those gaps in the international legal frameworks that are going to allow us one day to make this problem go away.

When I look at the problem now from not only a former government person but also from a victim who wants to solve the problem, the work that we are doing here today to an extent is now the main effort. Bring people home. Take care of their families. But find a way to make state-sponsored hostage-taking go away. That is going to come from efforts like this one today.

Mike Newton

We have spoken so far from Diane’s perspective of American victims. This is a worldwide problem. This is a global problem, and we framed this panel to be about authoritarian regimes that reject the rule of law, that reject the rules-based order and abuse institutions. Louis, what is the Canadian experience?

Remarks by Louis Martin Aumais

Thank you. It is a pleasure to be here in Ottawa. We have quite a number from the legal bureau. It is always important to come to this important meeting. Thank you, Mike, for being the moderator. Fellow panelists, it is wonderful to see you and see a number of people that I am familiar with in the room. Looking forward to more conversations.

From a Canadian perspective, where do I start? To link up with Cara and Roger’s points about victims, there is the immediate victim, the individual who often is taken away, traveling, working, studying, seeing family relatives, and then suddenly is being taken into a vortex where two states are in dispute. Those individuals have nothing to do with the dispute.

Some would say this has been happening for time immemorial, but it does not make it any more justifiable in this day and age to see individuals suddenly disappear because of international state-to-state dispute. It is absolutely unacceptable and abhorrent. That is why now there are eighty-one entities—eighty countries plus the EU—signed up to a declaration that says this is not an acceptable practice by states. When states have disputes, they use peaceful means to resolve those disputes. That does not include taking away our citizens.

That declaration was started by Canada in 2021 with fifty-nine countries. Now we are at eighty-one endorsements. There is momentum from all the regions of the world.

That initiative is country agnostic. It does not target any part of the world in particular, but it targets this practice.

The point is this. We are all in this together. The use of legal institutions, like Mike was mentioning at the outset, or at least the disguise of use of legal institutions, justice systems, to remove those individuals from scrutiny, from due process, from consular access, again, for reasons that have nothing to do with their own behavior, is something that has been a real focus of Canada, but not just of Canada. It has taken momentum, and I hope we will have an opportunity through you, Mike, to speak about the International Independent Panel on Arbitrary Detention in State-to-State Relations. It is not just arbitrary detention. It is arbitrary arrest. It is arbitrary sentencing and arbitrary detention. We want to have this opportunity to talk about that.

Mike, you mentioned that it is a Canadian panel. It is not a Canadian panel. It is an independent international panel. Canada has offered some resources to make it possible for that panel to operate, but it is important that it represents the view of a broad spectrum, from an international, a legal, a consular, a policy perspective. I look forward to the work of the panel coming to fruition very soon.

Mike Newton

Claudio, do you want to add anything about victims? He spent his entire career helping victims and people in human rights situations.

Remarks by Claudio Grossman

Thank you, Professor Newton. The first thing that I want to thank is your leadership, thoroughness, and ability to organize. I have been a witness and benefited from that. It is great to have you performing this leadership function.

I also want to thank the government of Canada. It is not surprising that Canada took an initiative in this respect. Anyone who has worked in multilateral organizations knows the value and the legitimacy of Canada presenting and representing important values of human dignity. It is great to be part of this effort.

Concerning victims, as has been said here first, there are direct victims, the individual that is affected. Family members and dependents also are very important. Lawyers who defend the peoples who are being impacted. It is very important for all those affected that the individual is released. But there are other things, a full system of reparations, material, morals, rehabilitation, measures of non-repetitions, and measures of not satisfaction.

I have read that in medicine, we are better at investigating illnesses than preventing them. But I think it is important that we move ahead with preventive mechanisms, because to a certain extent, society at large is a victim. There is a deterioration of the rule of law and the belief that the rule of law could be effective in guiding human behavior when we allow this type of action to take place. We are all victims on this type of thing, and this is related to a narrative of human rights. The key thing in human rights is that everyone has something at stake when the rule of law is violated.

From that perspective, measures that are important and are part of the panel include harmonization of legislation, clarity on the issue of dual nationality, measures involving safeguards. What is not acceptable is silence and lack of action on this topic.

To conclude, I want to say this. While we are talking about further measure, we need to understand that hostages taken in interstate relations is an outright violation of obligation. So when we are talking about development mechanisms, they have to clarify, implement, and make more effective things.

But the point of departure is an outright violation, and I am not going to bother you with this positive obligation laid down in numerous treaties. Thank you.

Mike Newton

We will do that in the report. Thank you, sir.

If you really had to capture the essence of this problem, do you see it as a human rights problem, a diplomatic problem, a structural problem, a procedural problem, an authoritarian problem that we say, well, here is a state? How would you best synthesize the nature of this problem?

Louis Martin Aumais

The reason why we are talking about that these days, when we have not discussed it before, is because it is a multifaceted issue. It has political considerations. It has legal ones.

There is a Venn diagram of areas of international law that are at play here. It is not just from a consular law perspective; it is also from an international human rights law perspective. You could also talk about how it affects the sovereign independence of states. To suddenly have some of their citizens taken out of traffic in order for them to do something or not do something, that engages very fundamental issues that we are hoping the International Independent Panel can look into. There are a number of conventions that are being discussed. There is the hostage convention. Does that apply here? Does it not? Is it just about individual criminal liability?

To answer that question, Mike, you have to say it covers all those aspects, and that is why, because there is a multiplicity of areas that are at play, it helps countries that are into that practice to continue to do it. By shedding light on the different areas of international law that are engaged here, we are trying to nudge the community of practitioners so that the cost for considering that practice, continuing to consider that practice into the future, increases from a legal liability perspective but also from an international relations perspective. If there are more countries that are attuned to the unacceptable nature of that practice, the countries that do that as a matter of practice will have to think deeper about doing it again for fear of the consequences from an international relations perspective, but also from a deeper conversation on the international law front that has been brought about by the multiplicity of cases.

Just to point out, I was being briefed before coming here, UK-based Hostage International, reported to my consular affairs colleagues that now 70 percent of their workload is state-supported hostage diplomacy. It says something about how it works.

Roger Carstens

You would think it is diplomatic because the cases that seem to hit the newspapers are the ones in which—for example, Russia is trying to leverage the United States, China is trying to this or that. Yet, in my mind, maybe it is because I am not a lawyer, it always comes down to a human rights issue. At the same time, I think you hit it. It is so multifaceted. You have to hit it from all these different angles, all these different lines of effort. But if it all boiled down to one thing, human rights for me.

Mike Newton

Claudio?

Claudio Grossman

I am in agreement that it is multifaceted, all of the above. But I want to add one thing that has not been mentioned here. It is an impermissible form of violation of the principle of non-intervention, because the goal behind hostage-taking is to force a country to change policies or to do certain things. And we live in a global world. There are measures of influence, but hostage taking is perhaps the most cruel form of influencing the dynamics of self-determination of the country. That also needs to be highlighted.

What is at stake here are the rights of victims, but also this aspect of resorting to a permissible means to influence the conduct of countries in international relations.

Cara Horan

To reiterate something that Louis had said, and Roger as well, while this also is a human rights issue as well as international security, we have also identified that if we just focus on one area alone, we are not solving this. This needs to be something that is discussed and analyzed in every space that we think that this intersects with, in international security, human rights, consular, you name it. If we miss one of those and if we are not identifying that, we are not solving this problem. Like Louis had said, these actors see these gaps. They are aware of how to manipulate them, and that is why we need to address this as a multifaceted approach.

Mike Newton

I want to circle back on something that was mentioned, but I want to ask Cara very specifically. The Levinson Act is probably the most comprehensive, detailed listing of criteria in the world, and that has in some ways served as a model for other countries to give us criteria to attempt to take it out of the political debate and the back-and-forth in politics with some rigor, objectivity, and detail. What is the next legislative piece that you think would help and perhaps give us a model to be spread around the world and emulated?

Cara Horan

Thanks, Mike. Hitting on the origins or the original mandate of the Special Presidential Envoy for Hostage Affairs, the mandate is really clear in the Levinson Act that we are to review the totality of the circumstances for any U.S. national detained abroad and review an expansive but clear set of criteria to understand what really is a case. From that, and largely due to Roger here, there has been a well-oiled machine of being able to at least coordinate and have clear understandings and processes on how we seek the release of a U.S. national abroad.

There have been so many recoveries. There are still many languishing, and the work of this office remains that this is the clear mandate. But the larger question remains, how does this stop, or how do we curb or counter this practice? Following these years of recoveries, I can say wearing both hats in both legislative and executive branches that the next question is and the next mandate to codify is how do you deter this practice? It has become clear that when you look at the theory of deterrence, there is a need to look at elements of deterring by punishment and elements by deterring through compelling as well as looking at prevention.

On my time at the Hill, there was so much bipartisan support on this issue, which remains truly a testament to how heartbreaking this issue really is, but we have identified that more countries need to be on alert, that they are engaged in this practice, and as a country themselves, we will recognize them as such.

Recently reintroduced was the state sponsor of unlawful or wrongful detention designation, which would apply to a country that we have determined to be involved in wrongful detention or materially supporting the practice. It has not passed into law yet, but it does have bipartisan support in both the Senate and the House.

Separate from that, there is a lot to say about what we can be doing on actually preventing this practice. We could write as many travel advisories as we want, but if we are not going to get the adventure tourists to stop traveling to Russia, Belarus, Colombia, or Venezuela, for example, how can we actually help prevent this and raise the awareness a lot clearer?

What has also recently passed in legislation is adding the Privacy Act waiver into the U.S. passport application and reapplication process to make very clear that there are countries to be aware of where you could be wrongfully detained or held hostage. If you are traveling to one of these countries, you may want to sign this waiver. That in a way deters or at least makes a U.S. citizen think twice about whether they want to travel to that country or at least take the steps necessary for when they could be wrongfully detained.

We have also looked at how can we connect with airlines and other sectors where you can purchase a ticket right now to Iran, for example, and get points from it. How can we at least ensure that when you are purchasing this ticket, you at least have to read a disclosure of information that says, here are the risks that you face of wrongful detention if you are traveling to this country?

There is a lot to say on the need to continue to codify and clarify this mandate on not only recovering Americans but deterring this practice and preventing even if we cannot stop those from traveling to these high-risk places. It is great work. It has been incredible to see this on both the legislative and executive side, and there is still so much to do.

Mike Newton

There is indeed. I would like Louis to circle back to the Canadian initiative here. We talked about the declaration already. But the Canadians also had the vision to initiate this independent international panel. What gaps would you like to see filled? There are many gaps, as we have talked about this multifaceted problem, but what is the biggest set of gaps that you would like to see addressed?

Louis Martin Aumais

From a practitioner’s perspective, going back to the Venn diagram analogy that I was talking about, where the different areas of international law are there, international human rights law, consular, diplomatic law, principles like UN Charter, non-interference, hostage convention, and reparation. Right now, the way I see the Venn diagram, right in the middle, there is a zone that is not covered by any of those circles. That is the opportunity proposition for those countries that are still interested in that practice.

The fundamental question that I am hoping to see an answer to in the report is the existing body of international law fit for purpose to stop that practice, to prevent it, to set an increased price for that practice. My intuitive answer to that is no, because it is still happening. There are still countries that contemplate that practice and that are taking innocent citizens out of traffic in order to build chips for the future. That cannot happen in 2025.

I am hoping that there will be momentum to work on developing new law, progressive development of law, maybe building on the practice of states. The fact that there is a declaration now that was not there five years ago, builds that momentum, so as to make it clear that it is not acceptable under international law.

Something that seems so obvious to us here on the panel has not stopped a number of countries in the world from contemplating that practice as a matter of international relations management. This is not acceptable.

What gap? I think there needs to be more work to develop the body of law that will stop this in its track or at least confirm that those areas that I was talking about in the Venn diagram extend to cover those areas. And that we are not stopped by very dry legal theoretical discussions that those that are in the practice of arbitrary detention and state-to-state relation rely on right now to continue to do that.

Louis Martin Aumais

I wanted to pick up on two points from the questions and from Claudio’s intervention. I have been using the term “arbitrary” throughout. The name of our declaration is Declaration Against Arbitrary Detention in State-to-State Relations. We do not want to rewrite the notion of arbitrary detention as it is understood under international human rights law. The intent here from the outset was to focus on what we see as a subset of detention—arrest, detention, sentencing that have an arbitrary nature and that is brought about by a desire to force a state to do or not do something.

I know that the Committee on Arbitrary Detention is fully cognizant of that issue. We had them join us in the context of legal advisors’ conversation at the UN, and they were very careful and wisely so to underscore that now. We do not want to do a redrafting of the notion, but from a state-to-state perspective, there is an arbitrary nature to the actions that are taken by the states that are adopting that practice.

Sometimes our American friends will speak about wrongfulness. You will often hear about hostage diplomacy. From a practitioner’s point of view, we are all talking about the same practice like the one that I have just been describing throughout this last hour.

What Claudio mentioned about using the existing body of law, it is important, and that is the exercise that I am hoping the panel will be able to explore. Only recently, there was a Special Rapporteur on Torture’s report that highlighted the growing trend of hostage diplomacy. It is a sign of something that I was talking about earlier about now trying to push the boundaries so as to really zero in on that practice. That gives me hope, and having a report like that, that makes recommendation to states and to the UN and those countries that are in those practice to address the issue, it gives me heart that what we are doing right now, what we have been doing for a number of years, is slowly yielding results that hopefully in the years to come will lead to tangible results and fewer individuals being victim to that practice.

Roger Carstens

First off, I want to say thanks to the Canadians for their leadership throughout this entire effort, especially with their efforts in 2020 and 2021 with the declaration.

I would say the next step is going to be the effort to pull this into a multilateral fashion where different countries can explore and identify tools in all areas of national power, not just diplomacy but also information, economic, financial, legal, military, the information space, intelligence. As you identify these tools, you can find which ones can work in concert with other countries so that one day, hopefully, if a citizen from Botswana is taken by the Iranians, twenty, thirty, forty countries can get together and come up with a strategy where countries use different elements of their national power as either a threat or in actual use against a country like Iran, to where Iran finally comes to the conclusion that the world has figured us out, they have now raised the cost of taking people and using them as bargaining chips to the point that we can no longer do it.

Secretary Blinken used to say that we are about ten to fifteen years away from getting there. I am hoping it is much faster. But the idea of a multilateral approach, the idea where we work together, and that it is not necessarily you going after your own citizens, but working with other countries to help get their citizens out too.

Mike Newton

My word for that is “interoperable,” and that, I think, is a word you will see in the report.

Speaking of multilateral processes, Cara gets the last word.

Cara Horan

Thank you.

To reiterate both Louis and Roger, just the fact that the United States took to domestic law and we could not be more grateful for Canada taking to the international multilateral space to address this, and we were both the first bites of the apple at this. Looking at wrongful detention criteria, which certainly overlaps in its criteria of arbitrary detention, by definition, as well as with elements of hostage taking, and looking at the term “arbitrary detention” in state-to-state relations, we have laid some groundwork for us to get to the point that Roger’s describing of having that interoperability. You need both in place in order to have that infrastructure. Other countries need to adopt domestic law, and we need to have international law that grounds us and holds us all accountable.

I echo Roger in thanking Canada for the incredible work, and we are your number one supporters on this entire declaration and initiative. But also, just doubling down, there is the need for both, and we are just at the beginning of it. We have a ways to go, but we are grateful for this panel because it truly is going to be the next iteration of this. Thank you.

Mike Newton

If you are a student in the audience, you see the fertile ground for involvement and engagement here, and if you are a diplomat in this audience, we would love to hear your insights for the panel because we have sought guidance from states and from civil society. With that, thank you so much.