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Protecting the Rights of the Accused in U.S.-China Relations

As President Donald Trump visits China, the Chinese government wishes that billionaire fugitive Guo Wengui would follow suit and board a plane to Beijing. For months, he has regaled the world from his luxury apartment in Manhattan with stories of high-level corruption among China’s elite. Untangling the truth of Guo’s claims is complex, but what the Chinese government wants is simple: to have some of its citizens, especially Guo, returned to China to face a long list of criminal and civil charges.

Guo is not the only Chinese fugitive in the United States. The Chinese government reported in October that its multi-year Operation Sky Net has recovered 9.36 billion renminbi in allegedly stolen funds and returned 48 fugitives that China placed on Interpol’s red notice list. Last spring, Chinese state media reported, however, that 946 fugitives were still overseas, highlighting the United States as a favorite destination.

Also in October, Washington presented contrasting visions of how the United States should respond to repatriation requests. The Trump administration concluded the last of a series of bilateral dialogues on October 4. Following the U.S.-China Law Enforcement and Cybersecurity Dialogue, the State Department emphasized a “results-oriented approach” and reports from the China-side touted “pragmatic cooperation.” The Summary of Outcomes released by the Department of Justice listed “Repatriation” of foreign nationals and “Fugitives” as main topics discussed. Yet the U.S. Department of Justice made no mention of the rights of the accused when engaging in law enforcement cooperation, even though Secretary of State Rex Tillerson said in April, when announcing the dialogues with China, that human rights are “really embedded in every discussion.”

Conversation

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On October 5, the day after the last dialogue, the Congressional-Executive Commission on China released its Annual Report on the human rights situation in China. Chairs Senator Marco Rubio (R-FL) and Representative Chris Smith (R-NJ) urged in their letter to President Trump that, “[p]rincipled U.S. leadership is needed to develop a long-term policy approach that challenges China to abide by its international commitments, adhere to universal standards, and embrace the rule of law.” Specifically with respect to law enforcement cooperation, the Report recommended that the United States “should not agree to any additional repatriations” until China demonstrates that it is meeting international standards on the treatment of criminal suspects.

The Trump administration has ignored the Report. Not only have the United States and China continued to repatriate each other’s nationals since President Trump took office, but also the recent dialogue demonstrated an increased willingness to cooperate through “regular meetings and working groups to identify priority cases.”

Should the United States emphasize human rights considerations when cooperating with China on law enforcement? There are sound reasons to do so.

First, an emphasis on human rights when cooperating with China on law enforcement is not American meddling in China’s sovereignty and is consistent with the human rights standards Beijing has accepted voluntarily. The United States and China are both parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which provides that member states not transfer a person to a country “where there are substantial grounds for believing that he would be in danger of being subjected to torture.” A case-by-case analysis is needed to confirm that each repatriation meets at least these minimal standards—an inquiry complicated by the opacity of China’s criminal justice system and its Party disciplinary process.

The United States also has ratified the International Covenant on Civil and Political Rights, which provides that defendants in criminal cases “shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” The United States should not limit this requirement to within its own borders. Indeed, during the Obama administration, the State Department stated as a prerequisite to negotiating an extradition treaty with China that the U.S. “must be satisfied that an individual extradited from the United States to another country would receive a fair trial . . . ” There is still no U.S.-China extradition treaty despite China’s requests, thus necessitating use of other legal channels for repatriation.

Sinica Podcast

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Although China has not ratified the Covenant, it is a signatory and, as such, is obligated to refrain, in good faith, from acts that would defeat the Covenant’s purpose. An inquiry into the trial and punishment that criminal suspects might face upon return is fair game. Likewise, just as European countries do, China can inquire regarding the conditions awaiting fugitives sent back to the United States.

Second, there are pragmatic as well as principled reasons for the United States to raise the profile of human rights in its law enforcement cooperation with China. A renewed emphasis on human rights can help mend America’s tattered moral authority in the world. The Obama administration took steps to address some of the egregious acts committed as part of the “War on Terror” and, more generally, to engage actively in the United Nations human-rights reporting process. The Trump administration has obliterated these gains. A renewed emphasis on human rights should include both protecting norms when coordinating with foreign countries and—as some members of Congress are trying to do—also improve the many deplorable aspects of the United States’ own criminal justice system.

There also are pragmatic concerns about China’s activities abroad that undermine human rights in the United States, including the use of secret agents on American soil. In May 2017, the U.S. government prepared, but ultimately did not serve, criminal charges against Chinese officials who violated their visas by visiting Guo and pressuring him to return to China. As Professor Andrew Nathan of Columbia University wrote in October, “[T]he US must defend international standards of human rights and freedoms more strongly than it has in recent years; it makes no sense to defer to the loudly voiced sensitivities of the Chinese regime even as China interferes more and more often in our freedoms.”

Third, and most important of all, the United States should champion human rights because it is the right thing to do. It is easy to undermine the universality of human rights when focusing on how bilateral cooperation can apprehend criminal suspects more efficiently. What too often gets overlooked is the essential point that human rights protect the fundamental dignity of all human beings, even if sometimes those human beings are accused of committing criminal acts. Law enforcement can be both effective and humane.

In May 2017, Secretary Tillerson indicated a separation of policies from “our values around freedom, human dignity, the way people are treated.” Protecting the rights of the accused in the U.S.-China relationship would be a step towards rejecting a false dichotomy between values and policies, as well as reaffirming basic beliefs in the way that all people should be treated.