New Zealand and Saudi Arabia Prepare Extraditions to China

Posted by | Apr 15, 2022

On Wednesday, the Supreme Court of New Zealand ruled in a 3-2 decision to allow the extradition of a murder suspect to China at the request of Chinese authorities. The ruling sets what critics have described as a dangerous precedent for future Chinese extradition requests for non-Chinese citizens. It also comes at a time when hundreds of Uyghurs are being detained abroad and extradited to China at Beijing’s request. In the most recent case, Saudi Arabia prepared to extradite a 13-year-old Uyghur girl to China on Wednesday evening. 

There is no extradition treaty between China and New Zealand, and in 2020 New Zealand even suspended its extradition treaty with Hong Kong over the National Security Law. However, China made the request for the suspect, Kyung Yup Kim (known as Jīn Jīngyè 金京叶 in China), on an ad-hoc basis. Nick Perry from the Associated Press described the background to the case:

Kim was arrested in 2011 after China asked to extradite him on one count of intentional homicide.

He was incarcerated in New Zealand jails for more than five years, and spent another three years on electronic monitoring, making him the longest-serving prisoner not to face a trial in modern New Zealand.

According to court documents, Kim is a South Korean citizen who moved to New Zealand more than 30 years ago with his family when he was 14.

He is accused of killing a 20-year-old waitress and sex worker, Peiyun Chen, in Shanghai after traveling to the city to visit a different woman who was his girlfriend at the time.

[…] Kim says he is innocent. [His lawyer Tony] Ellis said his defense case would be that his former girlfriend, who has Communist Party connections, is responsible for the crime. [Source]

After New Zealand courts ruled in 2013 that Kim could be extradited, Kim successfully challenged the decision twice, most recently at the Court of Appeal in 2019, before his case was brought to the Supreme Court in 2020. Jessie Yeung from CNN described the judges’ satisfaction with assurances given by Chinese authorities:

In its decision, New Zealand’s Supreme Court ruled by three judges to two that Kim’s extradition should proceed. The three judges in favor said they had received sufficient assurances from China and were “satisfied that there was no real risk Mr. Kim would face an unfair trial.”

Chinese authorities had assured the court that if extradited, Kim would have access to New Zealand consular staff, and be tried and detained in Shanghai rather than sent elsewhere in the country, according to the ruling.

The court added it felt confident China would stick to its word, citing “the strength of (China’s) motivation to honor the assurances” and “the strength of the bilateral relationship between the two countries.”

Kim’s lawyers had argued the high-profile nature of this case and its sensitivity to Chinese authorities put him at high risk. In the Wednesday ruling, the court disagreed, saying he was “an ordinary criminal suspect” because he “does not belong to a minority group and is not a political prisoner.” [Source]

Civil society groups strongly criticized the ruling. Michael Shoebridge, a director at the Australian Strategic Policy Institute, said that the judgment “reads like a work of fantasy. It places enormous weight on various wording provided by Chinese authorities, without understanding what any of it might mean in practice.” Michael Caster, co-founder of human rights group Safeguard Defenders, said, “The court has not done their homework, they have not been swayed by the reality of China’s consistent trend of violating diplomatic assurances and consular agreements. In case after case, the requirement that China grants consular access has been ignored or flatly rejected.” Only two weeks ago in Beijing, the Australian ambassador to China was denied entry to the national security trial of an Australian citizen, Cheng Lei, despite a Chinese-Australian consular agreement granting the ambassador access. As Tess McClure reported for The Guardian, other lawyers did not buy China’s diplomatic and legal assurances:

“I am deeply troubled by the decision,” said Dr Anna High, co-director of the Otago University’s centre for law and society.

“There are grave and well-documented problems with China’s criminal justice system – the idea that a diplomatic promise is a sufficient basis for surrendering someone into that system seems, at best, incredibly naive.”

[…] “The assumption that diplomatic assurances from the PRC can be a sound basis for extradition is deeply concerning,” High said. “This is the same PRC which is assuring the world that the allegations of human rights abuses in Xinjiang are fabrications, despite an abundance of evidence to the contrary.”

“There is systemic … torture in the Chinese justice system,” Kim’s lead lawyer, Dr Tony Ellis, told the Guardian, adding that assurances about torture from the Chinese government were “not worth the paper they’re written on”. He said New Zealand could not rely on assurances from China about a fair trial, and pointed to trials of foreign citizens in China, where diplomats for detainees’ home countries were excluded from the courtrooms. [Source]

Donald Clarke, a George Washington University law professor focusing on Chinese law, wrote in Lawfare about the dangerous precedent that would be established by New Zealand’s extradition ruling:

While liberal democratic countries such as Canada and the United States have on occasion delivered wanted suspects to China, whether under the rubric of extradition or some other proceeding such as deportation, the cases have involved suspects who were, at least originally, Chinese citizens and not citizens of the countries where they had sought refuge. This case is relatively rare in involving a suspect who has never been a Chinese national. (In 2019, however, Spain extradited to China 94 Taiwanese nationals wanted on telecom fraud charges despite Taiwanese government protests. And in previous years, Taiwanese nationals have been extradited to China by Armenia, Cambodia, Kenya, Malaysia, and the Philippines.)

It could set a troubling precedent not just in New Zealand but also in other liberal democratic countries whose judiciaries may be impressed by their sister court’s unquestionably thorough examination of the Chinese judicial system and the issues at stake. Unfortunately, the decision rests heavily on a plausible but demonstrably flawed premise: that China’s concern for reputational damage will ensure that it keeps its promises. The record shows that China is willing to violate its international commitments in criminal justice matters when it finds it convenient, and granting extradition in this case risks opening the door to further extraditions on the basis of unreliable guarantees.

[…] This is an important test case for China. It is apparently the first time China has requested extradition from New Zealand, and it chose a suspect against whom the evidence, at least as it appears in the court’s judgment, is pretty strong. (In its discussion on torture, the court discounted its likelihood precisely because it believed that a confession would not be necessary to establish guilt, the other evidence being sufficient.) And the suspect’s apparent guilt may have led the court to convince itself that a fair trial could take place, or that China’s assurances could be believed. But once this case becomes a precedent, nobody is going to do the work of looking up all the details—at least, nobody except the defense lawyers, but by then the Overton window on extradition will have shifted and a defense case that might have been easy before this case will have become more difficult. [Source]

Some extraditions to China occur much faster and in greater secrecy. On Wednesday night, human rights groups sent out an urgent global appeal to halt the imminent deportation of four Uyghurs, including a 13-year-old girl and her mother, from Saudi Arabia to China. The pair were last reported at a deportation center in Riyadh where the mother, Buheliqiemu Abula, had been informed they would be deported later that night. Amnesty told media outlet The New Arab on Thursday that the deportation “didn’t go through,” for reasons unknown, but stressed that the four Uyghurs remain “at high risk.” An Amnesty newsflash on Wednesday shared the organization’s grave concern and indignation: 

“Saudi authorities must immediately halt all plans to deport the four Uyghurs – including a 13-year-old girl and her mother – who are at grave risk of being taken to repressive internment camps if sent back to China,” said Lynn Maalouf, Amnesty International’s Deputy Regional Director for the Middle East and North Africa.

“Forcibly returning these four Uyghur people would be an unconscionable violation of Saudi Arabia’s obligations under international law. The Saudi authorities must not even think about sending them to China, where they will be subjected to arbitrary detention, persecution and possibly to torture.” 

“The world has to react immediately now and stop this deportation in a matter of hours to save the four Uyghurs from this catastrophic deportation. It is crucial that all governments with diplomatic ties to Saudi Arabia step in now to urge the Riyadh authorities to uphold their obligations and stop the deportations.”

Under the customary international law principle of non-refoulement and as a State Party to the UN Convention against Torture, Saudi Arabia is obliged not to return anyone to a country where they would face a real risk of torture or other cruel, inhuman or degrading treatment or punishment, persecution or other serious human rights violations. [Source]

Buheliqiemu Abula is the former wife of Nurmemet Rozi, who has been detained without charge in Saudi Arabia since November 2020, along with Hemdullah Abduweli. Residing in Turkey, the two traveled to Saudi Arabia for a religious pilgrimage to Mecca and were arrested after the Chinese embassy in Saudi Arabia requested their extradition. Nurmemet Rozi told Saudi authorities that he and Hemdullah Abduweli “would rather die here than be sent back to China.” A recent press release by the UN Office of the High Commissioner for Human Rights shared two UN Special Rapporteurs’ demands that the Saudi government prevent the extradition of these Uyghurs to China:

The prohibition of refoulement is absolute and non-derogable under international human rights and refugee law. States are obliged not to remove any individual from their territory when there are substantial grounds for believing that the person could be subjected to serious human rights violations in the State of destination, including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

“In view of the credible risk of grave violations, both for their membership of an ethnic and religious minority, Saudi Arabia is required to undertake an individual, impartial and independent assessment of risks, and provide prompt and transparent access to safeguards, including the ability to challenge the deportation decision,” the experts said.

They said that any derogation from the principle of non-refoulement would constitute a severe violation of international human rights and refugee law, regardless of the existence of a bilateral agreement on extradition, or diplomatic assurances. [Source]

China’s transnational repression has targeted thousands of Uyghurs living abroad, and Beijing has used its economic ties to pressure other countries into deporting hundreds of Uyghurs to China. In Foreign Policy, Rayhan Asat, a visiting human rights fellow at Yale Law School, argued that the U.S. and EU need to take swift measures to protect vulnerable exile communities, particularly Uyghurs:

States need to immediately provide legal protection to vulnerable exile communities. Whether through expedited asylum, legislation to provide permanent residency, or some other measure, action must be taken now to protect those whose countries of origin are committed to harming them. Again, this crisis is most pressing for the Uyghurs, who from Turkey to the United States live in an agonizing stateless limbo. To fix this, the U.S. Congress must revive and pass the Uyghur Human Rights Protection Act, establishing a fast track to asylum and offering a safe, permanent home to Uyghurs living in constant fear of deportation and surveillance across the diaspora.

To protect vulnerable exile communities across the spectrum, Congress must also pass the Transnational Repression Accountability and Prevention Act, which would put a stop to Interpol abuse. This should be the beginning of a wave of similar legislation across the world. The EU countries’ refugee espionage laws must be reexamined and amended to encompass multifaceted aspects of transnational repression and offer much-needed protection to the exile community. We cannot allow ourselves to be helpless when we are called to protect the weak. As a 13-year-old girl and her mother await deportation by a U.S. ally to hellish torment, we must ask ourselves why we are unable—or unwilling—to help. We must not be asking ourselves the same thing the next time a similar crisis inevitably emerges. [Source]

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