INTERVIEW: The ‘Risky Business’ of China’s Extradition Demands on the West

China’s long-running campaign to secure extradition treaties with Western democracies gained traction last month when Canada agreed to include the issue in bilateral talks.

Beijing says it wants to use the treaties to bring economic criminals who have fled offshore back to China to face their charges.

Since 2014, under President Xi Jinping’s (習近平) “Operation Fox Hunt,” some 2,020 so-called “economic fugitives,” including 342 former officials, have been returned to China from more than 70 countries and regions, Chinese state media reported last month.

Human rights advocates around the world firmly oppose the signing of extradition treaties with Beijing because China’s opaque judicial system means there is no guarantee of a fair trial, in addition to its use of the death penalty and torture.

But as countries like Australia, Canada and New Zealand have become increasingly dependent on trade with China, Beijing appears to hold more and more leverage. Canadian Prime Minister Justin Trudeau’s decision to leave the issue on the table is just the latest example. Australia has a draft treaty, though it remains unratified. Last month in New Zealand, which does not have a treaty, the government reaffirmed its decision to send Kyung Yup Kim, a Korean-born New Zealand resident, to China to stand trial for murder.

Extradition to China, under almost any circumstance, is problematic for many international law and human rights experts.

“It is a risky business that Canada is getting into,” says Dr Amy Maguire, a Senior Law Lecturer at University of Newcastle in Australia.

“We know that Chinese authorities will use, at times at least, torture or other inhumane techniques to get confessions, regardless of the quality of the resulting confession,” Maguire says, adding that while China does not publicize its death penalty statistics, “it executes thousands of people every year.”

Asked whether mechanisms in treaties like monitoring clauses or guarantees that people will not be executed could be workable, Maguire, told The News Lens International that given China’s secrecy and determination to protect its own political autonomy, “it is highly unlikely” that China would allow any effective monitoring.

“The short answer is that Canada can’t ensure protection of people that it extradites to China, and nor can any other country,” she says.

Case-by-case

As in the case of Kim, current protocol sees individual extradition requests handled by foreign countries without extradition agreements on a case-by-case basis. While all extraditions to China inherently raise human rights questions, Maguire suggests this system remains the “safest” approach for countries like New Zealand.

“Anything beyond that and you are exposing yourself to the sorts of issues that Canada and Australia are facing,” she says.

If, for example, Australia’s treaty were ratified, extraditions would be expected to be handled via an administrative process, allowing for fewer judicial checks, and the orientation of decision-makers is more likely to be in favor of extradition, she says. Whereas under the current process, there is interplay between the courts and the attorney general, which provides more checks and balances.

“I just don’t see any value in setting up a formal arrangement,” Maguire says.

The quality of existing extradition treaties with China is also questionable. As the Australian Law Council pointed out in its submission to a parliament committee earlier this year, the Australia-China Extradition Treaty “omits a common safeguard in Australia’s extradition treaties to ensure protection of an extradited person’s right to a fair trial, namely the ability to refuse a request where extradition would be ‘unjust or oppressive.”

In making her decision to allow Kim’s extradition, New Zealand Justice Minister Amy Adams said she “sought and received undertakings from the Chinese government waiving the death penalty should Kim be convicted and providing for his monitoring, fair treatment and trial,” the New Zealand Herald reported.

Kim’s lawyer, a well-known human rights advocate, has signaled the case will likely be appealed to New Zealand’s Supreme Court.

Given the inability to monitor what happens once a person is back in China, his legal team will likely argue that any extradition would be in breach of international law – according to the United Nations Convention Against Torture it is unlawful to extradite a person where there are substantial grounds for believing they will be subjected to torture if extradited to the requesting country, Maguire notes

Realpolitik: little domestic consequence

While foreign courts could never guarantee that someone accused of murder who has fled China would not face torture or execution if sent back, Maguire says that extradition in such a case may be seen to be “in everyone’s best interest.”

“Our interest for that person to go back outweighs, probably, ethically and legally, that the person may be subject to ill-treatment in China,” she says.

Moreover, governments like Australia’s have a record of acting in breach of international human rights law with very little domestic political consequence. Maguire points to Australia’s holding of asylum seekers in offshore detention centers, contravening “dozens” of international human rights standards, and to Canberra’s response to Indonesia’s execution last year of two Australians found guilty of importing drugs.

“[After the executions] we ‘jumped up and down,’ withdrew our ambassador for five weeks, and then we sent him back,” she says. “Of course, that was all for show, because what we stand to gain from that relationship is regarded as far more valuable, than what we would lose by making much more of a fuss.”

Interestingly, the Australian Federal Police has been working to revise guidelines to prevent co-operation with other countries’ police forces when there is no guarantee a suspect will not be executed if they are convicted. While the lack of transparency in China’s judicial system may limit the effectiveness of this move, it could work better in relation to countries like Indonesia, which carries out its executions in a very public manner, Maguire says.

Another important consideration for countries with extradition requests from China, is Beijing’s targeting of people for political reasons. Many international commentators have observed that President Xi has systematically been using the courts to remove potential threats to his power. Maguire says that in many international extradition treaties a customary rule has emerged to prevent the extradition of persons accused of political crimes.

Of course, this will always be difficult for countries to determine given ongoing accusations that China uses fictional charges to silence its critics. Take, for example, the recent imprisonment of well-known Beijing human rights lawyer Xia Lin (夏霖), 46, who has been in detention since late 2014. Xia, who was last month sentence to 12 years behind bars, was accused of stealing CNY10 million (US$1.5 million) from several individuals to pay off gambling debts. He denied the charges and told his lawyers that most of the police questioning he faced had focused on his high-profile legal work, the Hong Kong Umbrella Movement, and his relationship with other activists, including artist Ai Weiwei (艾未未).

Editor: J. Michael Cole