No one would argue that wanted persons and criminals who seek to evade justice should be ferreted out from whatever bolt hole they might have found refuge and brought to justice.
Likewise, no one would argue that a person who knowingly shelters a fugitive from justice deserves condemnation.
However, these simple, self-evident truths turn out to be not so simple nor so very self-evident when it comes to the question of how to deal with fugitives from justice across jurisdictional boundaries.
Countries are sovereign. They decide who may enter and remain and who must leave. If country X says that a fugitive from justice is living in country Y and the authorities in country X seek their return, country Y can refuse the request and commit no breach of international law in denying the request.
However, civilized countries have a common interest in seeing that they do not become refuges for fugitives and that their own citizens are not beyond their reach if they go abroad. This is the basis of extradition treaties between countries which are binding agreements for creating legal processes for returning persons located in one country to another for either a criminal trial or sentencing (if already tried and convicted) or to complete a sentence which has been imposed by a court.
Because catching and returning fugitives from justice is such an obviously good thing, it may come as a surprise that not every country has an extradition treaty with one another or that there is not some UN universal extradition treaty to which every country can subscribe.
Sadly, the world does not work like that. Not all countries co-operate in the endeavour to track down fugitives and return them. Hong Kong, for instance, is able to conclude extradition agreements on its own under the Basic Law and it had entered into nineteen fugitive surrender agreements by October 2017. One agreement was with the U.K. That country has over one hundred extradition agreements in place. The P.R.C. (not including the HKSAR) has only about fifty agreements in place.
There are two reasons why a country may not wish to enter into an extradition agreement with another country. One is the question of political considerations getting in the way of concluding an agreement. The other is the standard of protections that a country requesting a fugitive’s return will provide to the fugitive.
Because extradition arrangements are made country to country and require international co-operation, they therefore require countries establishing and maintaining diplomatic relations.
Political reasons for not having arrangements for the return of fugitives include not recognizing a place as a country capable of maintaining an independent legal personality (Taiwan and Northern Cyprus are two places with problematic international status) or because a country does not have diplomatic relations with another country. The P.R.C. will not have diplomatic relations with countries that maintain diplomatic relations with Taiwan and so it will not enter into extradition arrangements with those countries.
The second reason for not entering into an extradition agreement with another country is that a country has doubts about another country’s criminal justice system and the kinds of treatment a returnee might receive there. No civilized country would return a fugitive to face a sentence that included mandatory amputation of a hand and a foot or was for lifelong solitary confinement with no possibility of release.
It is always open to countries to negotiate the terms of an agreement so as to meet some of the concerns of one party. Where outcomes can be assured by the executive authorities of requesting authority, an agreement can usually be concluded.
For example, many countries have abolished the death penalty and have signed up to the U.N.’s Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty.
Countries that have signed the covenant will not, as a rule, agree to sending their citizens to a country that has the death penalty. The price of doing extradition business with an abolitionist country will usually be a clause in the agreement that extradition can only occur if the requesting country undertakes not to seek the death penalty or not to carry it out if it is imposed. Such a clause appears in the extradition agreement between Hong Kong and the USA.
However, clauses in extradition agreements seeking special treatment of extradited nationals can only go so far. If it is known that a country does not have an independent judiciary and that it has a record of failing to live up to the minimum standards for a fair trial as set out in the U.N. International Covenant on Civil and Political Rights (ICCPR), there is no incentive to conclude an agreement with that country.
Australia and the P.R.C. came very close to concluding an extradition agreement in early 2017. A treaty had been agreed between the two governments in 2007, but ratification of the agreement-the final step in the process- had to be approved by the Australian Senate.
Before the Senate got to vote on the matter, the administration withdrew the agreement because of widespread opposition which indicated that it would not pass. There were many concerns about the fairness of criminal trial procedures in the P.R.C., which has not ratified the ICCPR. The ICCPR fair trial requirements, which are in effect in the HKSAR, require that defendants have legal representation and, normally, a trial in an open court with the opportunity to call witnesses in defence and the right to confront prosecution witnesses.
There were concerns too about enforcing an undertaking that the death penalty would not be imposed if an execution of an extradited fugitive later occurred. The treaty was silent on the consequences if this happened although, presumably, an execution in breach of an undertaking would mean that Australia would cease to return fugitives.
Countries may, however, extradite fugitives without the benefit of formal treaties by making ad hoc arrangements for individual cases. This is what has been proposed very recently by the HKSAR Government to deal with the fact that there are no extradition arrangements with Taiwan, Macao and the rest of the country.
Ad hoc arrangements for extradition between jurisdictions with no formal arrangements for the surrender do occur but, as the website of the English Crown Prosecution Service on its page dealing with extradition, says “such arrangements are only rarely made”.
Ad hoc arrangements are rare because most countries will have already decided which other countries that they can work with over the return of fugitives.
If you have decided that country X is not a place to which you would ever extradite a person because of serious failings in that country’s justice system you would not extradite a person just because a ‘one off’ opportunity to extradite presents itself by country X requesting a fugitive’s return,
Ad hoc arrangements have their place in the scheme of things where, for instance, a long-standing political objection to extradition arrangements disappears, say when a military government with a poor human rights record ceases and is replaced with a democratic government that is committed to putting right past abuses in the justice system. It may take a few years to negotiate an extradition treaty with the new government but, as an interim measure, carefully crafted ad hoc arrangements will serve.
Ad hoc arrangements may be sometimes acceptable to a requested country even if political issues prevent there from being a full-blown extradition treaty.
In 2013 the United Kingdom entered into a memorandum of understanding with Taiwan for the return of a British national who had been convicted of manslaughter by a Taiwan court but had fled to avoid a prison sentence. In 2017 the Supreme Court accepted the legality of the ad hoc arrangements having regard to the special assurances made by the Taiwanese authorities about how the fugitive would be treated in prison there.
I hope that this brief explanation of how extradition works helps with an understanding of the recent proposals from the Security Bureau about ad hoc arrangements foe extradition.
It is not right, as some have done, to categorize the proposed arrangements as closing ‘loopholes’ in the law. If there are no extradition arrangements with another jurisdiction then that will reflect either a political decision or a decision based on perceived inadequacies in that other place’s criminal justice system.
Ad hoc arrangements can be concluded with a jurisdiction without a formal extradition agreement about fugitives, but they are no substitute for a proper agreement which ensures that minimum criminal justice standards will be observed in every case where a fugitive is returned to a party to the agreement.
If it is not possible to be satisfied about those standards, then ad hoc arrangements must not become the means of lowering those standards. The current proposals require anxious scrutiny.
About the author
Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.
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