As the People’s Republic of China has expanded its international power, so too has it expanded its efforts to coerce unwilling Chinese nationals to return to the motherland for anticipated punishment, whether formally or informally imposed. Moreover, China has increasingly tried to force certain foreigners, by a variety of means, to reenter Chinese territory for criminal prosecution or even lawless and indefinite incommunicado confinement. Some of these foreigners are former Chinese nationals, while others are not. Recently, under its 2020 national security law for Hong Kong, China, like other nations, has reasserted claims to exercise criminal jurisdiction over foreigners who have never set foot on its soil.
Some of Beijing’s targets abroad are allegedly wanted for common crimes, such as murder, rape, and robbery. A large number are suspected of corruption and related economic crimes. Chinese dissidents, human rights defenders, and others considered to be politically dangerous to the regime have also been sought under a variety of pretexts, as have some foreigners.
Chinese authorities have resorted to a range of illegal and questionable measures to gain control over these individuals. In jurisdictions where it is politically feasible, China’s agents or their thugs have brazenly engaged in kidnapping, sometimes with the secret acquiescence of local police. We do not know of all such cases but occasionally they come to light, as in Thailand and Vietnam. Ironically, the most notorious instances of kidnapping have occurred in China’s special administrative region of Hong Kong, where the high degree of autonomy conferred by “one country, two systems” was supposed to protect its residents against official violations of their person by the central government.
Of course, China prefers subtler methods and, in order to induce surrender, usually takes quiet steps including face-to-face “persuasion” and threats against one’s person and family by Chinese visitors masquerading abroad as tourists or businessmen. Sanctions against relatives in China are a favored form of intimidation. Even foreigners in China have been victimized in the hope of successfully pressing a targeted relative to return from abroad. Two young Americans, Victor and Cynthia Liu, for example, have long been denied exit permits because of their father’s refusal to return to face corruption charges.
China invokes legal measures where possible. Often, in negotiation with foreign governments, it arranges deportation or removal of a targeted individual. Yet it frequently relies on formal international extradition procedures to reach its goal. China has concluded bilateral extradition treaties with almost 60 countries, including many liberal democracies from continental Western Europe, but not Germany or Austria. These treaties have often been implemented, especially by less developed countries, which have even transferred thousands of alleged criminals from Taiwan for prosecution in China on the dubious supposition that they are PRC nationals rather than nationals of the unrecognized Republic of China on Taiwan.
Interestingly, not a single common law country has ratified an extradition treaty with China, although the Australian Parliament came close, before popular concerns about the independent administration of justice in China swamped the proposal. For similar reasons, even Hong Kong, the best-informed jurisdiction about China’s justice system, more than 20 years after its return to the motherland, still failed to conclude a “rendition” agreement with the central government that would have been the functional equivalent of international extradition. In 2019, more than 2 million Hong Kongers went into the streets to protest the local government’s attempt to provide for extradition/rendition to the mainland. In turn, China as part of its new national security law, imposed such renditions on the hapless special administrative region in security-related cases as very broadly defined.
Yet extradition can take place in the absence of a treaty if two governments agree ad hoc, and they sometimes do. Thus, in 2011, despite the absence of a treaty with New Zealand, China requested extradition of a long-term New Zealand resident named Kyung Yup Kim, a South Korean national, on the grounds that he was accused of murdering a young Chinese woman in Shanghai. That request wound its way through the New Zealand courts for a decade as the accused and his lawyers challenged the decisions of successive New Zealand ministers of justice approving extradition. Their approvals were essentially conditioned upon receipt of appropriate assurances from China that the accused would not be subjected to torture and would be granted a fair trial. After the intermediate Court of Appeal quashed the most recent minister’s decision, the country’s Supreme Court undertook an extended review of the case and on June 4, 2021 delivered its judgment.
By a three to two vote, the Supreme Court held that it would be prepared to permit extradition of Kim, provided that certain further assurances and information could be obtained from China and reported to the Court, together with the defendant’s views, by July 30, 2021. The two minority judges, while claiming to accept the reasons given by their colleagues in analyzing the issues, nevertheless would have sent the case back for a comprehensive review of the existing massive file by a new, recently installed minister of justice on the basis of the Supreme Court’s opinion. The minority objected to allowing the government an opportunity to seek further assurances and information in a case that has dragged on for a decade.
The opinion of the New Zealand Supreme Court runs to a remarkable 150 pages. It is probably the most extended foreign judicial discussion of the Chinese legal system ever conducted. It is meticulous and useful in articulating the relevant issues and applicable international human rights standards. Yet the opinion is painfully naïve about the realities of criminal justice in China and far too limited in its examination of China’s judicial system.
The key question raised by the case is whether, if returned to China, Kim is likely to receive a “fair trial.” The answer turns upon whether the anticipated criminal trial is likely to constitute “a flagrant denial of justice,” understood by the Court to mean a failure to meet the minimum requirements of Article 14 of the International Covenant on Civil and Political Rights (ICCPR), a treaty that China signed long ago but has never ratified. Article 14(1) provides that the accused “shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” This means, the Court rightly concluded, that judges must be “free from influence by their judicial colleagues, the executive, legislature and other external bodies.” Being informed that in China important, difficult, or sensitive criminal cases are not decided by the panel of judges that hears the case but by the court’s “judicial committee,” composed of court administrators who review the trial panel’s recommendations, the Supreme Court launched into a lengthy consideration of the details of the judicial committee’s decision-making procedures and the issue whether this unusual arrangement could be consistent with the requirement of “judicial independence.”
The Court delicately acknowledges that the judicial committee, which is usually composed of only Chinese Communist Party (CCP) members and conducts its deliberations with the collaboration of a non-voting prosecutor but in the absence of any representative of the accused, might be subject to political influence. It nevertheless discounts that possibility in the context of this specific case. After all, it maintains, the case is likely to be prosecuted in Shanghai, which is said to have higher legal standards than many other places in China. Moreover, this is a murder case, a common crime, and therefore supposedly not a matter that has political implications. Further, the Court relies on the assumption that China is likely to honor its assurances in order to avoid the damage that non-compliance would inflict on its reputation and the consequent reluctance of other states to grant future extradition requests.
Unfortunately, all these assumptions demonstrate an inadequate understanding of Chinese reality.
Amazingly, the Court makes no reference to governmental and party arrangements that are specifically designed to eliminate the possibility of internationally-required “judicial independence,” a principle that CCP and government leaders, including judges of China’s Supreme People’s Court, have repeatedly and publicly condemned as unacceptable. Its opinion says nothing about the practice of higher courts sometimes instructing the judicial committee how to decide a case in accordance with CCP needs. Nor does it mention the instructions of the relatively new government “supervisory commissions,” which front for the CCP’s notorious discipline and inspection commissions and are more powerful than the courts, the prosecutors, and even the police. Nor is there any mention of the local CCP “political-legal committees” and a newer organization that comprehensively controls judicial affairs, which both can issue direct orders to courts in concrete cases.
Mere trial court judicial committees tremble before such organizations. Moreover, direct and indirect institutional party controls over court decisions are surely not the only examples of the distorting influence of “external bodies.” Local legislators and executive branch officials, usually CCP members, frequently intervene for their own reasons, as powerful individual Politburo members occasionally do from Beijing. Inexplicably, the New Zealand Supreme Court dismisses the possibility that the father of Kim’s former Shanghai girlfriend, herself a possible suspect in the death of the young bargirl, might use his status as a CCP official to influence the case. And the endless party campaigns against official misconduct have revealed a Chinese judicial system that is plagued by corruption, not to mention the pernicious impact of the networks of personal relations – guanxi – that often affect court decisions more than evidence and legal rules.
The complete lack of judicial independence should alone provide sufficient ground for the Court to reject extradition to China. Yet there are other grounds for recognizing China’s failure to meet the minimum standards for a fair trial set forth by ICCPR’s Article 14. Most obvious is Beijing’s prevention of defense counsel from providing effective representation, both during the investigation period and at trial. Chinese criminal lawyers cannot freely gather evidence, question potential witnesses, or otherwise conduct investigations. They are often prevented from even meeting their clients in custody and, when they do so, are constricted in what can be discussed. They are severely limited in what they can say and do at trial and often suffer a range of sanctions if they attempt to take an active part as defense lawyers are allowed to do in democratic countries. Although the Court discounts the likelihood that in the circumstances of this internationally prominent case Kim’s lawyer might be prosecuted, as many others have been, for presenting exonerating evidence, it does not discuss the many other punishments to which active defense lawyers are exposed. Disbarment, closure of their law firm, prosecution for offenses allegedly unrelated to their trial conduct, harassment of their families, even kidnapping or indefinite “disappearance” have all frequently become known despite the regime’s measures to restrict transparency.
Also worthy of note is the little weight that the Court attaches to the absence of cross-examination in China’s trial process. Prosecution witnesses seldom appear at trial. Their pre-trial testimony is simply read to the court. Although in principle the defense can seek to counter their statements, one cannot cross-examine a piece of paper, and cross-examination is generally regarded as the best vehicle for the confirmation of truth yet discovered. China has commendably enacted legal provisions requiring police to appear in court to answer claims that they extracted a confession via torture or other forbidden means, but these are seldom effectively implemented. Moreover, the defense is often barred from presenting its own witnesses in court.
Some years ago, when a Chinese staffer in the New York Times Beijing office was prosecuted for leaking state secrets and engaging in fraud, one of China’s leading defense counsels, whom I was assisting, sought to cross-examine government witnesses. The court deemed it unnecessary for the witnesses to appear. We then asked the Beijing court at least to allow us to present our witnesses in court. This the court also rejected on the ground that to comply with our request would be unfair. Since government witnesses had not been allowed to appear, the court held, how could the judges permit opposition witnesses to appear?
The New Zealand Supreme Court decision rests upon the belief that official assurances from China can alleviate the risks and doubts that a fair trial will be granted to Kim. For example, if by July 30 the New Zealand government can obtain assurances that the prosecution will not have greater opportunity than the defendant to influence the judicial committee and that there will be no political interference with the judicial committee’s decision, then the trial could be deemed to meet minimum international standards for judicial independence and impartiality. The Court places similar faith in assurances that the accused will not be subjected to torture. This raises the most interesting issue of all: To what extent should foreign courts and governments credit China’s solemn assurances concerning the prosecution of suspects whose return it seeks?
We’ll examine that question, and alternatives to extradition, in Part 2.