Extradition: the China choice

Should Australia extradite to China given the risk of human rights violations in its legal system? Stephen Tully weighs up the evidence.

Anticipating defeat in the Senate, the Australian Government recently opted to repeal the instrument of ratification to the Treaty on Extradition concluded in 2007 between Australia and the People’s Republic of China. Under the Vienna Convention on the Law of Treaties, ratification is the international act whereby Australia would establish its consent to be bound. So why did this treaty prove so controversial?

The treaty was tabled in Parliament in March 2016. In December 2016, the Joint Standing Committee on Treaties (JSCOT) recommended that Australia ratify it. JSCOT inquires into and reports on matters arising from treaties including proposed treaty action.

The committee also recommended that decision-makers assess the degree to which China’s criminal justice system complies with human rights standards and the rule of law; that undertakings be utilised to ensure a fair and open trial; and that Australia be informed of trial details, consular attendance, prosecution outcomes and the location and health of detainees.

A dissenting report by JSCOT’s Labor Party parliamentarians recommended delaying ratification until the Extradition Act 1988 (Cth) was reviewed to ensure consistency with community expectations and international legal obligations.

That Act specifies several safeguards and protections, including refusing extradition where there are substantial grounds for believing a person has been or will be subjected to torture or other cruel, inhumane or humiliating treatment or punishment; where a person may be discriminated against on specific grounds; and where a political or military offence is involved.

However, under Australian law, undertakings by other countries not to impose the death penalty do not have to be legally enforceable.

Should Australia extradite individuals to China given the possibility of human rights violations within its criminal justice system?

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It is unclear whether China can guarantee the right to a fair trial, and it is not a party to the International Covenant on Civil and Political Rights. If the death penalty was imposed, there may be no consequences for non-compliance with any undertaking. It is also unclear how Australia determines whether it ‘has substantial grounds for believing the person sought has been or will be subjected to torture or other cruel, inhuman or humiliating treatment or punishment’. The omission of the words ‘unjust or oppressive’ from the treaty mean that general injustice or oppression, as well as humanitarian considerations (such as a person’s age, health or personal circumstances), cannot be considered.

Finally, the treaty employs the ‘no evidence’ model, so that the guilt or innocence of individuals is a matter for Chinese courts. Such risks cannot be mitigated on a case-by-case basis when negotiating each extradition decision.

Western countries like Australia face particular challenges when seeking to extradite individuals to China. Many countries are party to the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty. Under this treaty, it is unnecessary to prove that individuals “will” be sentenced to death; it is sufficient that there is “real risk” that an individual would face the death penalty. The United Nations (UN) Human Rights Committee requested Australia to protect individuals from removal to China without adequate assurances that they would not be executed. To enforce an individual’s return would constitute violations by Australia of that individual’s human rights.

In 2009, Australia was asked to adopt legislative and other steps to ensure that no person was extradited to a State where he or she may face the death penalty. In 2011, Australia accepted this recommendation.

In 2015, Australia indicated that the Commonwealth Attorney-General must refuse extradition where the offence is punishable by the death penalty, unless an undertaking is provided that the death penalty will not be imposed, or if imposed, not carried out.

But the value of diplomatic assurances or undertakings between States is questionable. The UN Human Rights Committee, for example, will assess their content, as well as the existence and effective implementation of any mechanism for monitoring their enforcement, to determine whether any real risk of proscribed ill-treatment exists. Diplomatic visits must insist on private access to detainees, with medical and forensic expertise available where ill-treatment is alleged.

On the other hand, Australia does not wish to become a safe haven for Chinese fugitives. In 2016, some 47,650 corrupt officials were investigated, including 21 ministers. China does not have extradition arrangements with the United States of America, the United Kingdom, Canada, the European Union or New Zealand. But China has informal options available to it, including persuading fugitives to return by pressuring family members, illegal immigration, other forms of judicial cooperation, and prompting national authorities to investigate visa status or tax payments.

Australia and China have also concluded other treaties addressing mutual legal assistance in criminal matters, and the transfer of sentenced persons. These arrangements will be used while China remedies the human rights concerns, and only then should Australia finally get its treaty ratified.