GeoLegal Weekly #28 - Human Pawns in the Geopolitical Game
How do we keep our businesses and staff safe in a world where executives and ordinary citizens are being arrested for political leverage? Some recent examples and key questions.
In 2019, a UK business group I was part of was planning a trip to Moscow to meet Russian business leaders. The itinerary was strong and I knew from a previous visit that Russia is a fascinating place whose history, politics and culture would have been rewarding to consider more deeply. When I told my colleagues that I wasn’t sure it was the best idea to go, they thought I was too cautious.
The trip was coming as the UK, US and EU were ratcheting up sanctions on Russia for the poisoning on British soil of a former Russian spy and the associated death of a UK citizen, which came on top of tensions from Russia’s annexation of Crimea. Diplomatic volleys were getting tenser and I worried that a group of UK business leaders could be a soft target. I was also anxious because I had written about politics for many years and while I didn’t cover Russia, I worked alongside some candid analysts who were never afraid to be critical.
I stayed home. The trip went off without a hitch. For a moment, I looked paranoid.
Fast forward, and these types of concerns are increasingly relevant for business leaders. Reflecting on the 16 year sentence for WSJ reporter Evan Gershkovich on dubious espionage charges in Russia last week, I realized the situation is getting materially worse. That’s because of the “rule of law recession” central to the thesis of GeoLegal Notes: Governments no longer fear that violations of international law and norms will trigger direct consequences and therefore they continue to blur the line between what might be plausible under laws of war or humanitarian obligations and what would otherwise be viewed as dangerous precedents. This changes the shape of conflict and creates personnel risk for any company with staff operating or traveling globally.
Democratization of Conflict
The world has always been a perilous place. News stories of Americans getting arrested for accidentally wandering into Iran cropped up from time to time but often raised quizzical thoughts of “why were they messing around there anyway?” Most people abroad did not have to worry about being wrongfully detained. Unless they were former military, a dissident, or maybe an oil company worker, the odds of being arrested on trumped up charges were quite low. In the rare cases when it happened, it was in unsurprising places: mostly Iran, but also in places where militant groups held sway like in Lebanon, Iraq, Yemen, Afghanistan, the Niger Delta, North Korea, and parts of Colombia and Mexico. Most places gave foreign visitors the benefit of the doubt. Even in places that had zero tolerance for any misbehaving, like Saudi Arabia, expulsion was vastly more likely than detention.
But that’s changing now, in a move you might call the “democratization of conflict.” The global order is shifting and conflicts between countries are now multidimensional. Diplomatic spats, cyber fights, and armed conflict traditionally had an escalation pattern to them. It was usually only terrorists who looked for “soft targets.” That’s no longer the case.
What we have now are citizens on vacation, working abroad or living in exile that are being targeted by states to gain leverage or extract vengeance. In many cases, these are “normal” people who have done something nominally wrong, suddenly embroiled in ghastly affairs. In other cases, they are journalists or past government officials getting the book thrown at them - or worse.
I cover this topic because it is a key shift in the geolegal environment. Citizens know they are subject to foreign law when they travel overseas but what they don’t often consider is that places with a weak tradition of rule of law may decide to turn their sights on a foreign national for other reasons. Increasingly normal citizens and business executives are getting tied up in geopolitical spats.
A few categories emerge:
Citizens as leverage
There are cases where regular people find themselves embroiled in international spats, with sentences that are intricately tied to international relations. Some examples:
In 2016 UK-Iranian national Nazanin Zaghari-Ratcliffe, who had worked with the BBC and Thomson Reuters, was arrested by Iran on seemingly trumped-up charges. She spent nearly 8 years in and out of detention until the UK paid off a historic debt of approximately GBP400mn contemporaneously with her release.
In 2016, American college student Otto Warmbier was arrested in North Korea for allegedly stealing a propaganda sign. He contracted an illness that was ultimately terminal while in North Korean custody.
In 2022, as Russia was hours away from invading Ukraine, it arrested American Brittney Griner, an American basketball player carrying a small amount of cannabis oil. As relations between the US and Russia moved to the worst place in post-Cold War history, she was sentenced to 9 years of hard labor. She was only released when the US traded a global weapons dealer to free her.
Last week Even Gershkovich, a journalist being held in Russia on dubious espionage charges, was sentenced to 16 years in jail. It seems likely he will be traded for something, but it’s not clear when or what the price will be.
Transnational Repression
The Guardian describes transnational repression as “The state-led targeting of refugees, dissidents and ordinary citizens living in exile. It involves the use of electronic surveillance, physical assault, intimidation and threats against family members to silence criticism.” In the past, those in exile were largely protected by the fact that their former governments were afraid of the downside of operating on foreign territory. Sovereignty matters; remember it was even controversial for America to target Osama Bin Laden in Pakistan. But in a world of murkier international law and cross-cutting geopolitics, penalties are never straightforward, often not forthcoming and sometimes simply worth the price.
Jamal Khashoggi, a Saudi dissident, who was dismembered in a foreign embassy is perhaps the most notorious example.
There are numerous Russian examples like Sergei Skripal above.
The use and abuse of Interpol Red Notices is a well-known subcategory here, whereby law enforcement requests from countries seeking to quiet dissidents or political enemies can result in their isolation or arrest abroad. Bill Browder stands out as the most well known example of such targeting but there are many more you can read here.
Chinese operatives have been charged in the US with stalking, harassing and threatening dissidents in order to achieve their repatriation.
Hardeep Singh Nijjar, a Sikh activist was killed in Canada allegedly with some involvement of the Indian state.
Belurssian opposition figure Roman Protasevich’s flight from Greece to Lithuania was diverted to Belarus under the pretext of a bomb threat. He was hauled off the plane and subsequently sentenced to an 8 year jail term (though later pardoned).
Business Leader Embroilment
Business leaders deserve to be arrested when they have committed crimes; there’s no argument about that. What we are seeing increasingly, however, is the arrest and refusal to repatriate foreign business leaders - often without compelling evidence of the crimes they have committed. This is jeopardizing the ability of companies to staff their foreign outposts, which is an early warning sign about a potential decline in trade and economic cooperation.
Meng Wanzhou, CFO of Huawei and daughter of its founder, was arrested in Canada as part of an extradition request by the US for sanctions violations. No doubt this was tied up with broader US concerns about Huawei. After more than 1000 days under house arrest, she reached a deal with the US Department of Justice that ultimately freed her.
Related to the case of Meng, China arrested “two Michaels” who were charged with espionage - Canadians Michael Kovrig and Michael Spavor. They were held for nearly the same amount of time as Meng and released when she was.
A whole host of business leaders have been detained in China in recent years including 17 Japanese nationals, as well as members of US due diligence and marketing companies amongst others.
While I’m primarily concerned here about foreigners being targeted, there are political crackdowns regularly on business leaders who don’t fall in line in many countries. These could be your partners or companies in which you have investments. Recent examples from China included here.
Migrants
The case of migrants may be different from governments targeting individuals but in reality it is a similar example of disregarding individual rights for political gain. Countries should have borders and should be able to enforce laws around their borders. What’s different is that humans are literally being trafficked around countries and around the world with little regard to them as individuals - pawns in a greater political game.
Texas Governor Greg Abbott has bused nearly 120,000 migrants from the international border of his state to Democrat-controlled cities across the country. Those cities have spent billions of dollars housing migrants - some of whom were glad for the ride and others who felt tricked or have wound up in unsustainable circumstances.
European countries like Finland, Poland, Lithuania and Latvia have passed controversial bills to push asylum seekers back over the borders from which they’ve come, purportedly because Russia and Belarus are orchestrating their entry into Europe to create political pressure.
Turkey, which had allowed millions of migrants from the Middle East to settle in its territory over the last decade, threatened to open the gates to Europe in part to get leverage over other policy issues. This triggered actions by Greece and others to stem the tide in ways that disregarded treaty obligations.
Countries like the United Kingdom and Australia have sought to process or detain asylum seekers in third countries, using novel interpretations of their treaty obligations to justify this.
So what does this all amount to? As business leaders, we have to build defense and resilience to these types of risks because the systemic protections we have relied on are no longer available.
Here are some key questions that can guide you:
Who are you sending where? When you dispatch employees to other parts of the world, have you considered the geopolitical dynamics around their passport, religion or sexual orientation with respect to the host country? Asking Americans to travel somewhere where the US has tensions when you could ask a colleague on a different passport elevates risk unnecessarily. Similarly, for dual nationals, making sure you have a clear understanding of the passport that they will enter the country on so that you can rely on consular support is also important. Risks are markedly higher if the dual national is entering their home country as many countries will disregard the second passport of their own nationals. There are related risks around asking LGBTQ colleagues to travel to countries that have strong anti-LGBTQ policies or asking colleagues of a certain religion to travel to unfriendly countries.
Who is saying what about whom? Develop a clearer understanding of what your employees are saying on social media about places they may be temporarily based or travel to regularly. While your average employee might think posting photos of collapsing infrastructure is worth the LOLs, this could both raise ire and raise suspicions. The situation gets more serious if employees are directly critical of governments or their policies.
Who is doing what with whom? Make sure you have clear compliance policies that reduce your chance an employee makes a mistake overseas because the rules you make them follow at home are a higher bar. Taking a zero-tolerance policy to corruption anywhere will reduce the chance that your employees get embroiled in a situation where governments have leverage over them. Similarly, employees can find themselves in murky situations if you ask them to enter countries on tourist visas because you are too lazy to secure the right visas that allow for conduct of business (in many countries tourism and business meetings are the same class but not everywhere). The list goes on.
Who can help you where? Do you have a trusted network of diplomatic and legal contacts in places where your employees regularly travel? Investing early in getting to know the embassies that you would need to call if something goes wrong will pay off in the long run. The same goes for counsel who can be rung in the middle of the night. If you have a fixed location in the country, the depth of investment needed is much deeper.
What is tracking your presence where? Do you have the ability to track the devices of your staff when they are overseas so you have awareness of whether they are entering situations that may present risks? Moreover, do you even know if your employees are overseas? Remote work policies have opened up employees to working from anywhere and they may be creating risks without you know it.
Who will pay whom when? Strong insurance policies - especially around kidnap and ransom - will provide some level of protection in non-state cases. Of course, it’s usually good practice for your employees not to know you have the coverage so lest that embolden them to take more risk or change the dynamic in any potential kidnap situation. From a broader business perspective, should you have a situation like the arrest of a key executive, you may wish to draw upon insurance that doesn’t just provide for legal costs but can mitigate some damage if you choose to exit business in the country as a result.
Who is monitoring what? You can’t protect your staff if you don’t keep tabs of what’s going on in the world. While Hence’s GeoLegal product will equip you to do that once it hits the market in a couple months (join the waitlist here), you can achieve similar goals by setting up robust newsfeeds and embassy alerts particularly when travel is imminent.
That’s it for this week. In case you missed my coverage on the US election you can find my most recent notes here and here. Thanks to David Bender and Varun Oberai for helping conceptualize and flesh out this piece.
-SW