Locked Up Abroad

Anyone who has ever watched an American cop show on TV knows that when you’re arrested in the United States, you have the right to legal representation. But did you know that when you’re arrested and jailed in a foreign country, you’re also likely to have the right to consular representation?

More than 170 states have agreed, in the event that a foreign citizen is arrested in their country, to inform the respective foreign government of the detention. The right is one of basic decency, as getting arrested abroad can be quite intimidating. It’s scary enough when you don’t speak the language. It’s downright overwhelming when you don’t know the intricacies of the criminal justice system.

Just imagine, for instance, if you were an American studying abroad in Italy — remember Amanda Knox? — or working in Syria and were arrested on suspicion of a serious crime. How would you plead your innocence? How would you navigate your case through the courts? How would you find a good attorney and arrange payment of your legal fees? Add to this that you’re not likely to be detained in a jail whose conditions are on par with those in American prisons, and it’s no surprise that foreigners arrested overseas often suffer physical decay and mental anguish.

This is exactly what the 1963 Vienna Convention on Consular Relations (VCCR), which entitles an individual arrested in a foreign land to receive the aid of his or her consulate, is designed to address. Under its terms, not only must the consulate be informed of the detention "without delay," but the consulate "shall have the right to visit a national … who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation." That is, unless the detaining government opts to ignore these obligations and rights — a practice that is increasingly having a detrimental effect on foreigners arrested in the United States and, reciprocally, on Americans arrested abroad.

When Americans Sarah* Shourd, Shane Bauer, and Joshua Fattal were arrested by Iranian authorities in July 2009 on espionage and trespass charges after hiking along the Iran-Iraq border, they became the latest pawns in a game of one-upmanship between the United States and Iran — a game that put the issue of VCCR obligations front and center.

Shourd was released in September 2010 on medical grounds, and the two men received their freedom one year later, after the government of Oman reportedly paid a total of $1.5 million in "bail" for all three.

All along, the American hikers have maintained their innocence. At a news conference last month upon their return to the United States, Bauer insisted that their detention was "never about crossing the unmarked border between Iran and Iraq. We were held because of our nationality."

The Iranian authorities showed little mercy to their American captives, keeping both men in solitary confinement in an 8-by-13-foot cell, frequently blindfolded, and with minimal outdoor time. According to Shourd, both men were subjected to physical punishment, with Bauer beaten and Fattal thrown down a flight of stairs. While neither man has publicly confirmed Shourd’s allegations, Fattal did acknowledge the brutality of the guards at Iran’s notorious Evin prison, where they were held: "Many times, too many times, we heard the screams of other prisoners being beaten."

During their ordeal, both men requested more humane treatment and greater access to the Swiss Consulate, which, in the words of Switzerland’s ambassador to Iran, Livia Leu Agosti, functions as the "surrogate consulate for the U.S." in Iran. (The Swiss took on the vital role of representing American interests in Iran after the United States severed its diplomatic relations with Iran in 1980, following the seizure of the U.S. Embassy in Tehran by a group of militants that resulted in 52 Americans being held hostage for 444 days.) Although all three American hikers were permitted a highly publicized, emotional meeting with their mothers in May 2010 — which Iran exploited for propaganda purposes — Swiss officials were given access to the Americans on just four occasions over their 26-month detention.

The United States frequently chastised Iran for depriving the hikers of their right to consular representation. As State Department spokesperson Mark Toner protested on May 23 of this year, "We urge Iran to permit immediate consular access by the Swiss protecting power, and that’s obviously an issue." Toner noted during his news conference that "the last regular consular access … was October 26, 2010, which is quite a long time ago."

When the United States raised the matter of access to the hikers, Iran countered that there are at least 60 Iranians in American custody, many of whom have also been deprived of their right to consular representation. Iran’s Foreign Ministry has been particularly vocal about the case of Shahrzad Mir Gholikhan, an Iranian woman arrested for violating American export-control laws that prohibit the transfer of military technology to Iran. Addressing Mir Gholikhan’s case, Hamid Reza Shakeri-Niasar, a senior official at the Iranian Foreign Ministry, complained, "Despite the Islamic Republic of Iran’s repeated demands and protests, the U.S. administration has failed to do its responsibilities" under the VCCR. According to Iranian authorities, Mir Gholikhan has been in U.S. custody for nearly four years on espionage-related charges, and at no time has she been permitted either consular access or a meeting with her family.

When Bauer arrived in Oman after being released from prison, he made a brief statement that "Two years in prison is too long." He then followed up his declaration with a hope that the release of him and his two companions would lead to "freedom for political prisoners in America and Iran." At first, this struck many observers as bizarre, with one blogger suggesting, "Maybe Shane was suffering from some kind of late onset Stockholm Syndrome when he made that remark about political prisoners."

But Bauer’s words seem to have been carefully chosen. He told reporters, "Sarah, Josh, and I oppose U.S. policies towards Iran which perpetuate this hostility." Among those policies is the United States’ evident disregard for the VCCR rights of Iranians detained by American authorities. And to the hikers, it is this game of political tit-for-tat between the two countries that ensnared them and left them to rot unjustly in jail, without adequate representation.

Most Americans evaluating the hikers’ unfortunate fate might conclude that even if the United States has trampled on the rights of Iranians in custody, the U.S.-Iran relationship is unique and therefore not likely to affect them, as very few Americans visit Iran.

The problem, though, is that the United States’ disregard for its Vienna Convention obligations is vast in scope, which has lead to a slew of diplomatic complaints — and concerns of retaliation — from even its closest allies. In the last 15 years, strong protests and diplomatic démarches have been issued by Britain, Canada, the European Union, Germany, Mexico, and Paraguay — hardly the group of rogue states with which Iran often gets lumped.

If states are offended by another state’s failure to grant consular access to detainees under the VCCR, imagine the frustration when their nationals are sentenced to death — and then executed — without proper consular representation. When it comes to executing foreign nationals in violation of the VCCR, the United States is in a class all by itself. According to the Death Penalty Information Center (DPIC), a Washington, D.C., nonprofit organization that is often critical of capital punishment, out of at least 160 capital cases in which a foreign national was sentenced to death in the United States, only seven — less than 5 percent — were in full compliance with the VCCR’s requirements. DPIC has calculated that since 1976, when capital punishment was reinstated by the Supreme Court, 27 foreign nationals from 15 countries have been put to death in the United States without full and proper compliance under the VCCR — the most recent incident being Florida’s execution of Cuban national Manuel Valle on Sept. 28. With Valle’s death, there are now at least 135 foreigners representing 34 nationalities on death row, most of whom have raised a VCCR violation claim. The plurality of these inmates are from Mexico.

In 2003, Mexico brought legal action against the United States in the International Court of Justice (ICJ) on behalf of dozens of Mexicans on death row who were denied proper consular access. The ICJ, in its Avena decision, held that 51 of the Mexican citizens had indeed been deprived of appropriate consular notification and access. The ruling — which amplified the ICJ’s determinations in two previous cases brought against the United States, respectively by Paraguay and Germany — ordered the United States to provide "review and reconsideration of convictions and sentences" in order to determine if the failure to notify the 51 Mexican defendants of their consular rights prejudiced their cases. To date, the vast majority of these defendants have never been granted judicial "review and reconsideration." In fact, two of them — José Ernesto Medellín and Humberto Leal — were executed in defiance of the ICJ’s binding Avena ruling.

And that’s just capital cases culminating in death sentences. Imagine how many other occurrences of violation there have been. While there is limited data on this, one investigation found that in 1997, the New York City Police Department arrested more than 53,000 foreign nationals, but notified the respective consulates in only four instances.

So, are you an American thinking about taking a trip to Bangkok? Or Berlin? Or Santo Domingo? Or just a drive across the border to Tijuana or Toronto? Well, you’re not alone. Every year, Americans take 60 million trips abroad. And every year, upwards of 6,000 Americans are arrested by foreign authorities. Obviously, the odds are slim that you’ll be arrested while traveling overseas. But, should you have that misfortune, don’t forget that you have a right to consular notification and representation.

Of course, as the realm of international relations operates under the rule of reciprocity, don’t be surprised if your requests for consular access are ignored. Former American police officer Scott Loper, who was denied consular access after being arrested in Canada on "criminal harassment" charges, can attest to this. So can American contractor Alan Gross, who remains jailed in Cuba on espionage-related charges, with restricted consular representation.

As the American hikers detained by Iran learned — the hard way — in diplomacy, what goes around comes around.