Forcing Our Hand: Evaluating the Use of Force in Responses to Wrongful Detentions Abroad

Wrongful detentions are on the rise. Over the past ten years, U.S. nationals have increasingly found themselves detained abroad upon spurious allegations, facing trumped-up charges, and deprived of basic due process protections. Most of these detentions occur in countries hostile to the United States: Russia, Iran, North Korea, China, and Venezuela. The U.S. has opted to release rightfully detained foreigners to those nations in exchange for its wrongfully detained nationals. All of this perpetuates a “prisoner bazaar” that encourages unscrupulous nations to continue their bad-faith detentions of U.S. nationals. This Note investigates this emerging issue through a use of military force perspective. It analogizes wrongful detentions to hostage-takings, discussing a controversial theory that supports the legality of rescue missions under international law to extract hostages from imminent harm. It distinguishes most wrongful detentions from hostage situations. It notes that, although many wrongfully detained foreign nationals do not face an imminent threat of harm, some might meet this standard. But even if the U.S. were to consider forceful rescue missions to extract its wrongfully detained nationals abroad, it must carefully mind the consequences of a forceful rescue mission on national security, state-to-state relations, and the global order. A cost-benefit analysis weighs heavily against uses of force in most situations.