A series of reports and media articles over the past few weeks has brought renewed attention to the international dimension of China’s law enforcement activities. Given the Chinese government’s track record of transnational repression and promotion of “rule by law” (as opposed to the “rule of law”), many countries, particularly the U.S. and those in Europe, have become increasingly alarmed by the overseas reach of Chinese policing. While attempting to insulate themselves from foreign interference or domestic complicity in China’s human rights abuses, these nations have also struggled to avoid overreach or overreaction. Two recent developments demonstrate attempts to strike this balance.
The first occurred last month, when the European Court of Human Rights (ECHR) issued a landmark ruling against the extradition of a Taiwanese national to China, declaring unanimously that the man would be at a significant risk of torture should he be forcibly extradited to China. The citizen, Liu Hongtao, was arrested in Poland over five years ago by Interpol on charges of white-collar crimes, and he does not belong to a religious or ethnic minority, nor is he a political dissident. Safeguard Defenders explained the impact that this ruling will have on all European countries’ future court decisions regarding extradition to China:
This momentous decision will most likely mean European countries will find it near impossible to extradite suspects to China again.
It is hard to overstate how influential this decision could be, and how it, in one swoop, has done more to protect basic rights from being undermined by China, as enshrined in the European Convention on Human Rights (ECHR), than most or all European government actions so far.
The ECHR is a legally binding international judicial instrument and goes further than similar international treatises. It ties 46 European countries to one legally-binding convention, and, notably, does [not] only apply to EU states. The only European countries not bound by it are Belarus and Russia (the latter which was expelled in 2022 after refusing to follow a decision by the court). [Source]
Wise decision: https://t.co/1Sf7TvPSQm
— Michael Kovrig (@MichaelKovrig) November 4, 2022
This is the first instance of the ECHR reviewing an extradition case involving China. The court deemed China’s informal promises of proper legal treatment to be unconvincing, based on evidence of China’s past refusals to allow representatives of international organizations to inspect its detention facilities. As George Washington University Law Professor Donald Clarke noted, “The ECHR laid a lot of stress on the fact that the inadequacy of the information before it was largely due to China’s failure to cooperate with UN investigatory bodies. Thus, it seems that China’s failure to cooperate was not as cost-free as it might have thought at the time.”
Describing Europe’s reckoning with its ties to China’s security operations, The Washington Post’s Christian Shepherd and Emily Rauhala shared reactions to the ECHR ruling:
The court’s decision reflects “a shifting view in Europe in terms of rule of law and rights protection in China’s legal and criminal justice system,” said Katja Drinhausen, an analyst with the Mercator Institute for China Studies in Berlin.
[…] “This ruling is actually very simple,” said Marcin Gorski, a legal scholar at the University of Lodz in Poland who represented Liu. “If you are suspected of applying torture and if you close your country to international scrutiny, this is the outcome, because we do not extradite people from Europe unless we are pretty much sure that they wouldn’t be killed or tortured.”
[…] There’s also concern whether China will respond to official channels being blocked by doubling down on off-books methods, said [Eva Pils, a King’s College London expert on Chinese law,] “where agents of the Chinese state carry out what they see as a kind of law enforcement activity, but without permission.” [Source]
Given the extrajudicial nature of China’s detention system, extraditions to China are a serious human rights concern, particularly for Uyghurs living outside of China. In her August 2022 report on Xinjiang, the U.N. High Commissioner for Human Rights Michelle Bachelet found credible evidence that Uyghurs are being “forcibly returned, or being placed at risk of forcible return to China, in breach of the prohibition under international law of refoulement,” and called on countries to refrain from extraditing them. Last year, the Oxus Society’s China’s Transnational Repression of Uyghurs Database documented at least 395 instances of Uyghur deportations to China since 1997. In April, Saudi Arabia began preparing to extradite a 13-year-old Uyghur girl to China.
Another development was the publication of “110 Overseas – Chinese Transnational Policing Gone Wild,” a report by Madrid-based Safeguard Defenders. The report investigates China’s use of “Overseas Police Service Stations” that “eschew official bilateral police and judicial cooperation and violate the international rule of law, and may violate the territorial integrity of third countries.” Alongside the establishment of these service stations, which number at least 38 across five continents, the report notes that between April 2021 to July 2022, Chinese authorities managed to “persuade” 230,000 individuals suspected of fraud and telecom fraud to return to China.
Having framed these stations as engaging in “covert and illegal policing operations,” the Safeguard Defenders report received a great deal of media attention in Europe and beyond. France’s Le Monde reported that the “Chinese security apparatus is weaving its web abroad with informal police offices in Paris.” Seven journalists from Germany’s Der Spiegel wrote about “China’s Secret Police Stations in Europe,” highlighting how a Chinese dissident expat in the Netherlands was harassed by Chinese officials, including a man whose phone number matched that of a Chinese police service station in Rotterdam. The Irish Times described how a wave of scrutiny led the Irish government to force one such Chinese police service station in Dublin to close. RFA reported on other instances of international concern and government action following the report:
So far the Dutch and Irish governments have ordered China to shut down its overseas police service stations in their countries.
Some other European governments including the Czech Republic, Germany, Portugal, Spain, Sweden and the United Kingdom, are probing the allegations made by Safeguard Defenders.
[…] In Chile, Interior Minister Carolina Tohá said an investigation is being carried out in the city of Viña del Mar, following a cabinet meeting during which the issue was raised.
[…] “In Nigeria, some journalists told us they have tried to cover the story but have been warned against it, even threatened,” [Jing-jie Chen, a co-author of the Safeguard Defenders report,] told RFA. [Source]
However, some experts took a more critical stance towards the Safeguard Defenders report. Jeremy Daum, senior fellow at Yale Law School’s Paul Tsai China Center, pointed out several factual and contextual errors in the report that painted the overseas police stations as more nefarious than they might otherwise be. While acknowledging the threats that China’s informal transnational law enforcement efforts pose to citizens of other countries and Chinese expats, Daum argued in China Law Translate that we must use appropriate channels to deal with these threats, and not lose sight of the underlying issue—the lack of due process in China’s domestic legal system:
[T]he ultimate concern is less about Chinese law-enforcement actions overseas – which domestic law is well-poised to address – than about the underlying (and not unfounded) sense that there is no chance of due process or fair trial for those who do return to China.
These problems, however, are best addressed through diplomacy, criticism, and our own use of international legal mechanisms, rather than by fear-mongering about secret bases with “sinister goals” to create an environment where every Chinese person is viewed as a potential agent of the state. That is a path backwards that we must not follow.
In our efforts to address China’s domestic situation, it is essential to have an accurate understanding, not only of the actions by China’s various levels of government, but also of what makes them unique and problematic as compared to our own practice. If we are not clear ourselves, appropriate vigilance can quickly give way to paranoia and we too can jump at shadows, viewing the world through our own ‘national security perspective’. I fear this is already happening now with the focus on “overseas police stations” rather than the larger concerns. The media, public, and officials need to be accurately informed about the problem, if they are to address it correctly. [Source]
On a similar theme, Yale Law School Paul Tsai China Center fellow Moritz Rudolf wrote a Twitter thread detailing China’s efforts to apply its laws extraterritorially. He noted that such efforts mimic U.S. extraterritorial legal mechanisms, but use a radically different definition of rule of law, which reinforces Daum’s argument that the domestic application of Chinese law is a more fundamental concern when it comes to China’s international policing efforts.
When it comes to extraterritorial application of its domestic law, 🇨🇳 seems to try to mimic the 🇺🇸. The academic debate in #China about the extraterritorial application of domestic (Chinese) law – which has mushroomed in recent years – is primarily analyzing 🇺🇸 practice.
— Moritz Rudolf (@MoritzRudolf) November 7, 2022
We are at the very beginning of 🇨🇳 promoting "XJP Thought on the Rule of Law" 习近平法治思想 at the international level. How it interrelates in practice with the legal systems other states (e.g.,those of the global South or Western democracies) is a key & urgent questions.
— Moritz Rudolf (@MoritzRudolf) November 7, 2022
According to the XJP Thought on the Rule of Law, party leadership is a "essential feature and inherent requirement of the socialist rule of law with Chinese characteristics"
It rejects the values of "constitutionalism”, “separation of powers’, and ‘judicial independence’.— Moritz Rudolf (@MoritzRudolf) November 7, 2022
