Austria: Let Ashcroft Do It

LET ASHCROFT DO IT: Proposal to Give Department of Justice Responsibility for US Children Abducted Abroad

By Kate O'Beirne

"Austria?" President Bush asked when Tom Sylvester requested his help for "our American stolen children" -- including his only child, Carina, who was abducted to Austria by her mother in 1995 when she was a year old. After expressing his surprise at the complicity of a friendly European country in international abduction, Bush encouraged Sylvester to tell his story because "a lot of people are watching."

The heartbroken father has been tirelessly telling his story for seven years. Sylvester's brief encounter with the president in early October, at a White House conference on missing children, followed a private meeting he had had in June with secretary of state Colin Powell, and a personal appeal on his behalf in July by the U.S. ambassador in Austria to the Austrian justice minister. Sylvester had also previously met with former secretary of state Madeleine Albright. But despite all the top-level sympathetic attention, after these seven years, Tom Sylvester concludes that "as a practical reality, Carina's not coming back."

As a practical reality, Carina and hundreds of other American children will remain separated from their parents as long as the primary responsibility for these international criminal cases remains with the State Department. The reason for this is simple: The unavoidable competing demands of international relations make it impossible for the State Department to elevate the rights of American parents and their children above its most pressing concern -- good relations with foreign governments. To better guarantee the rights of individual citizens, responsibility for international abduction cases should be transferred to the Justice Department.

One of the proponents for such a transfer is Michael Horowitz, who heads the Project for Civil Justice Reform and the Project for International Religious Liberty at the Hudson Institute. Horowitz points out that, while the State Department's institutional culture seeks to reduce irritants that might interfere with good international relationships, the Justice Department could be expected to have a "client-centered" approach. Justice, he says, could represent American parents whose children have been taken abroad in violation of international treaties as vigorously as foreign governments currently defend their citizen-abductors. Horowitz, who has successfully put together coalitions to force State Department action on religious persecution and international sex trafficking, vows that a similar coalition of interest groups committed to the rights of American parents "will be ready for this battle in the next Congress."

Even a transfer to the Department of Justice wouldn't automatically guarantee better results for American parents, who currently win the return of their children in fewer than 20 percent of the thousand cases a year reported to the State Department. While the National Center for Missing and Exploited Children has helped to see that over 90 percent of children abducted to the United States are returned, the State Department has failed to act effectively on behalf of children abducted from it. Tom Sylvester would hope to see an improvement if the Justice Department worked with the National Center on "outgoing" cases and issued transparent, regular reports on the status of cases to Congress.

Sylvester notes that it took him four years and a federal lawsuit to get needed documents on his daughter's case from the State Department, and he would welcome a Justice Department review of foreign laws that frustrate the clear aims of the Hague Convention on international abduction. Sylvester had won an initial order for Carina's return from Austria's highest court; but owing to the inability of Austrian courts to enforce civil court orders, Carina remained in Austria, and an Austrian court eventually awarded custody to Sylvester's former wife. Her father is now permitted only a couple of supervised visits a year.

Left-behind parents point out that the State Department has refused to publicize the inability of many foreign governments to enforce domestic-relations court orders. Sylvester and others believe that the Justice Department, by contrast, could be expected to inform state courts that if a foreign parent wins custody, in all likelihood the American parent would be unable to enforce visitation rights. They anticipate that the courts would then hesitate to allow foreign custody or overseas trips that pose an abduction risk.

Carina's case represents a clear violation of Austria's obligations under the Hague Convention, but the State Department misleadingly lists the case as "resolved" in its mandated annual report to Congress. The report is only reluctantly published at all because it typically lists allies like Austria, Sweden, and Germany as out of compliance with their convention obligations. Any reluctance about calling attention to international scofflaws seems unwarranted; Tom Sylvester's situation suggests that our foreign allies aren't easily embarrassed.

On July 1, in a hand-delivered letter to Dieter Boehmdorfer, the Austrian justice minister, U.S. ambassador W. L. Lyons Brown called the case "a bilateral irritant to our countries' otherwise outstanding relations," and expressed dismay that the Austrians had shrugged off Sylvester's legitimate complaints to the European Court of Human Rights. Boehmdorfer contacted the attorney for Sylvester's former wife and explained that Sylvester had offered, if permitted an unsupervised visit with Carina, to withdraw the U.S. arrest warrant for the mother and vacate the court order awarding him custody. Moreover, the U.S. government would guarantee the return of the child to her mother.

The mother's attorney responded that it was irresponsible even to make such a request, and objected to the intervention of the American and Austrian governments. Boehmdorfer then expressed his regret to the American ambassador -- and washed his hands of the case: "I will not be in a position to undertake any further steps in this matter."

For over two years, the Austrian government had cited the U.S. arrest warrant and custody order as obstacles that prevented Sylvester's unsupervised visits with Carina. When those alleged obstacles were removed, Austrian authorities simply absolved themselves from any responsibility by reporting that the child's mother had been asked about permitting visits and had said no.

Meanwhile, even as foreign governments breach international agreements to vigorously support their citizens -- Sweden even picks up the legal costs of its citizen-abductors -- the U.S. government is bending over backward to accommodate non-compliant foreign governments... Though the child was returned to Sweden last December, in May deputy secretary of state Richard Armitage authorized the extradition of Jagne herself, a naturalized American citizen, to face criminal charges in Sweden. Sweden refuses to extradite its own citizens.

Despite this lack of reciprocity, and despite Sweden's ongoing violations of current treaties, the United States has submitted a new mutual legal-assistance treaty with Sweden to the Senate for ratification. The push for this controversial treaty, which has been pending for seven years, is the latest example of larger issues in the international arena trumping the abduction of children from American parents.

Under the change proposed by Horowitz, American parents would be spared these tradeoffs, and the State Department would be spared the irritant of abducted children who might threaten friendly relationships with foreign governments. Should governments complain about overly aggressive efforts seeking the return of American children, attorney general John Ashcroft would be the undiplomatic bad guy. Left-behind parents hope, and expect, that he wouldn't care.

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