Should Murder Go Unpunished? China and Extradition, Part 2 – The Diplomat


As detailed in Part 1, the New Zealand Supreme Court recently gave conditional approval to the extradition of Kyung Yup Kim, a South Korean national and long-term New Zealand resident who is accused of murdering a young Chinese woman in Shanghai. The Court’s 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.

To what extent should foreign courts and governments credit China’s solemn assurances concerning the prosecution of suspects whose return it seeks?

In 1999, Canada was confronted with a similar challenge when China, in the absence of an extradition treaty, sought the return of Lai Changxing, allegedly the greatest smuggler in Chinese history. I was asked by the Canadian government to testify whether the formal pledges of China’s Ministry of Foreign Affairs that Lai would not receive the death penalty and would not be subjected to torture could be relied upon. I felt confident that China would honor its commitment not to execute Lai, since no country would ever credit such an assurance again if it were violated and since it would be easy to monitor Lai’s continuing existence.

I was more hesitant about the commitment never to torture Lai. Since China had already assembled a mountain of evidence that had been deemed sufficient to convict many of his collaborators, I testified that he was unlikely to be tortured prior to conviction and sentencing. Yet I said that I could not guarantee his fate while serving a life sentence. I was glad that the Canadian authorities did not ask whether Lai was likely to receive a fair trial, since I did not believe that his trial would meet minimum international standards.

In the Lai case, where the Canadian courts finally approved his removal to China after more than a decade of repeated scrutiny, China’s assurance of no death penalty was seriously challenged by distinguished legal experts. In the New Zealand case, such an assurance has not been contested by Kim’s lawyers. The intervening years of experience were apparently thought to vindicate the reliability of that promise.

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Yet those years have also revealed many experiences that have cast substantial doubt about the credibility of Beijing’s assurances dealing with other important issues of criminal justice. In 2010, for example, China refused to honor provisions in its consular agreement with Australia and its own legislation that should have been interpreted to authorize an Australian representative to attend the secret portions of the trial of Australian national Stern Hu. More recently, in violation of that same agreement, China barred Australian consuls from attending even the ostensibly open aspects of the trial of Australian national Yang Hengjun.

Even more blatant have been China’s violations of its consular treaty with Canada while arbitrarily detaining and putting on secret trial two Canadians, Michael Kovrig and Michael Spavor. This was evident retaliation for Canada’s conscientious effort to comply with its obligations under its extradition treaty with the United States, which has been seeking jurisdiction over the Huawei Corporation’s chief financial officer, Meng Wanzhou. China has also shamelessly denied required consular access to two former Chinese nationals, the Canadian Huseyin Celil and the Swede Gui Minhai. And there is the previously-mentioned unlawful refusal to allow two American siblings to exit China until their father surrenders. Confidence in China’s pledged word has also been eroded by its airy announcements that the United Kingdom no longer has any legitimate claim to enforce the 1984 Sino-British Declaration on Hong Kong that was agreed to regulate the legal rights of its residents until 2047.

Each of these instances of China’s abuse of international legal obligations has damaged the government’s reputation for honesty and reliability. Yet these actions have nevertheless been taken in an era of strident nationalism, allegedly in the exercise of China’s supposedly untrammeled “judicial sovereignty.” This inevitably must cast doubt on the reliability of the assurances offered in the current New Zealand case. As Professor Donald Clarke has written: “China indeed wants, and perhaps even desperately needs, international cooperation in criminal matters. But it does not yet seem willing to pay for it in the coin of due process.”

In view of these reasonable doubts about the trustworthiness of any contemporary commitments from China regarding criminal justice, one must wonder about even the unchallenged pledge in the Kim case to forego the death penalty.

Yet the New Zealand Supreme Court relies heavily on the reputational argument to justify its belief that, if appropriate assurances are offered, Kim is likely not only to receive a fair trial but also to be protected against the possibility of torture during pre-trial investigation. The torture issue is the second major preoccupation of the Kim case and, as in Canada’s earlier Lai Changxing dilemma, one that might be deemed easier to resolve in China’s favor than the fair trial issue, assuming that credible assurances can be mustered in the unique circumstances of this case. Whereas the Court’s references to promised monitoring by New Zealand diplomats of China’s compliance with assurances of a fair trial totally lack persuasiveness, the proposed arrangements for monitoring compliance with China’s promise not to torture have at least somewhat greater plausibility. Of greatest interest is the novel promise that during the investigation period New Zealand consuls will have access to the detained suspect every 48 hours and at any other time at his request and that his lawyer may accompany them. To be sure, given China’s recent violations of various consular treaty obligations, the credibility of such a unique promise is questionable.

It should be apparent from the above analysis that Kim’s extradition should be denied, just as courts have recently denied similar requests in several other countries including Sweden, Poland, and Czechia. Does this mean that, despite serious accusations that Kim committed murder, he might go free? A similar dilemma currently confronts Taiwan and Hong Kong in the case of a Hong Kong man who is accused of murdering his Hong Kong fiancée while in Taiwan. He nevertheless, after a period in jail, remains free in Hong Kong because of “one China” political obstacles to an extradition arrangement.

Often, persons facing extradition spend considerable time in criminal detention pending resolution of their case unless granted bail, like Huawei’s Meng, who lives in luxury and has the run of Vancouver while wearing an electronic bracelet. Canada also made only limited restrictions on Lai Changxing’s freedom during the long litigation in his case. In the New Zealand case, Kim was detained for five years before granted bail. Yet such punishment does not compare with that potentially awaiting him in China for murder.

Where does justice lie when extradition or its functional equivalent is properly denied or stalemated indefinitely? China is reportedly preparing to hold criminal trials in absentia in certain circumstances, a practice that is widely regarded with disdain. While that might offer symbolic satisfaction to the Chinese government and the victim’s family in this case, it can hardly substitute for actual punishment.

Should New Zealand and China seek to work out the complex arrangements that would be required for Kim to somehow be tried in New Zealand? But by whom and with what participants and procedures? Would the court consist of both local and Chinese judges? Would that be an enlightened solution or an unwelcome echo of the colonial-style mixed tribunals foisted on a weakened China by 19th century imperialists? Would Chinese representatives take part as prosecutors and defense lawyers? Would new technology facilitate the transmission of evidence and the live appearance of witnesses as well as public broadcast of the proceedings?

Assuming that no such imaginative solution is in the offing, can China take steps to make extradition more attractive? One possibility is to establish a special extradition court that in actual practice plainly operates in conformity with at least minimum international standards. Beijing has long maintained special military, maritime, transportation, and forestry courts and has recently touted new tribunals for handling its proliferating Belt and Road Initiative (BRI) disputes. Presumably, in the eyes of Chinese law reformers as well as foreign countries, the operations of such an extradition court would have the additional virtue of serving as a model for improving the ordinary administration of justice in the country. Yet China’s sensitive nationalist leaders might regard such an innovation as an open admission of their legal system’s failure to adhere to international standards. The first question that a Chinese judge asked when I recently suggested this possibility was whether other countries have similar special extradition courts. If there are such tribunals, that might make the move more palatable. Thus far the results of my research on this question are not encouraging.

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Instead of establishing a special court, China might prefer the less obvious option of opening an extradition division within its regular courts. It has done so, for example, in order to foster and demonstrate expertise and fairness in intellectual property cases, another area of growing international concern.

Yet, whichever alternative might be chosen, many observers outside and inside China would understandably suspect that the trials conducted might be “Potemkin” performances orchestrated in advance like many held in the mid-1950s, when efforts were made to introduce the Soviet version of Western criminal justice to the Chinese masses, or in the late 1970s, when newly-welcomed Western visitors were occasionally given the opportunity to view Chinese trials. Such performances were not new to East Asia’s legal modernization, hearkening back to Meiji Japan’s staged trials in the 1870s, directed behind the screen by a Ministry of Foreign Affairs that had already begun its efforts to persuade the Western countries to terminate their recently imposed extraterritorial judicial systems.

Sadly, the only credible solution to the problem is the one least likely to occur – establishment of a radically revamped, nationwide criminal justice system that features genuine judicial independence and ends China’s many contemporary abuses. Since such a momentous change would significantly weaken the Chinese Communist Party’s control of its population, not even the most progressive CCP leaders would today dare to advocate such a bold initiative. Yet, after the party celebrates its forthcoming 100th anniversary, we can hope that a new generation of post-Xi Jinping leaders will recognize that ending China’s “flagrant denial of justice” would improve its relations with not only the world’s liberal democracies but also the many Chinese who are denied due process and fairness in the administration of justice.



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