By Chimène Keitner
On December 1, Canadian police, acting at the request of U.S. authorities, arrested Huawei Chief Financial Officer Meng Wanzhou during a layover in Vancouver. A judge in New York had issued a warrant for Meng’s arrest on August 22, alleging that between 2010 and 2014, Meng had conspired to commit bank fraud by concealing links between Huawei and two shell companies that it used to conduct business in Iran, enabling Huawei to access the dollar-based financial system in violation of U.S. secondary sanctions. Washington is now seeking Meng’s extradition to the United States.
The arrest was a bombshell. Huawei is the world’s largest manufacturer of telecoms equipment, and Meng is the daughter of the company’s founder and chief executive, Ren Zhengfei, a former military engineer believed to be well connected within the Chinese Communist Party. Beijing was outraged. In an op-ed for a Canadian newspaper, the Chinese ambassador accused Ottawa of “western egotism and white supremacy” and of “mocking and trampling the rule of law.” The Chinese government arrested two Canadian citizens in China on national security charges, apparently in an attempt to put pressure on Canada. It may be working—just yesterday, the Canadian Ambassador to China told Chinese-language media that Meng has a “strong case” and that her extradition to the United States “would not be a happy outcome.”
Extradition requests can walk a fine line between law enforcement and politics, as illustrated by the furor over Meng’s arrest. American authorities claim to be simply enforcing U.S. law. China, however, believes that her arrest was politically motivated—part of a larger U.S. campaign to thwart China’s technological ascendance.
Western countries including France, Germany, the Netherlands, and the United Kingdom have expressed confidence that Canada is following proper legal procedures in Meng’s case. Yet U.S. President Donald Trump exacerbated Chinese suspicions when he indicated, in an interview given a few days after the arrest, that he would “certainly intervene” in the Meng case if he thought it would be good for securing a trade deal with China—comments that her lawyers are sure to use to fight her extradition.
Trump’s comments about the Meng case jeopardize the presumption of good faith and regular process that make cross-border law enforcement cooperation possible. They also risk making it harder to draw a credible line between lawful arrests and “hostage diplomacy,” with potentially dangerous consequences for individuals caught in the crossfire.Trump’s comments about the Meng case jeopardize the presumption of good faith and regular process that make cross-border law enforcement cooperation possible.
THE LAW OF EXTRADITION
The textbook scenario for extradition arises when an individual commits a crime in Country A and flees to Country B. Since Country A lacks law enforcement authority in Country B, Country A will ask Country B to arrest the individual and send (extradite) him or her back to Country A. International treaties specify the appropriate procedures, including the acceptable grounds for refusing an extradition request. The United States has entered into extradition treaties with more than 100 countries. These include Canada and Turkey, but not China or Russia.
Most extradition treaties follow a standard template. An extradition request for a suspect must be accompanied by an arrest warrant issued by the requesting state (which, in the United States, must be based on a finding of probable cause). The request must also contain sufficient evidence to support the warrant. In certain circumstances, the requesting state can ask for the provisional arrest of a suspect and then produce supporting evidence within a specified time period, which is what the United States has done with Meng. A judge in the state that receives the request then conducts a hearing. If the suspect is found legally eligible for extradition, the decision whether to extradite is generally made by a political official—in Canada, the minister of justice; in the United Kingdom, the home secretary; and in the United States, the secretary of state.
Extradition treaties usually state that people cannot be extradited if they are charged with “political offenses,” that is, if the extradition request is intended to punish someone for their political activities. The political offense exception originated as a carve-out for crimes committed in connection with a fugitive’s participation in (or defense against) a political rebellion or uprising; it was designed to preserve the neutrality of the requested state. During the period of political violence in Northern Ireland from 1968 to 1998, a number of U.S. judges preventedthe extradition of alleged members of the Irish Republican Army from the United States to the United Kingdom, ruling that their crimes—including the killing of British soldiers—qualified as political acts. Ultimately, the United States and the United Kingdom modified their extradition agreement to specify that acts such as murder, hostage-taking, and possession of explosive devices would not be considered political offenses, unless the executive branch determined that the extradition request was “politically motivated.”
The requirement that requesting countries submit evidence to support their requests can also prevent countries from using extradition on spurious charges to silence dissidents. Since 2014, Turkey has been demanding that the United States extradite Fethullah Gulen, a Muslim cleric living in Pennsylvania, whom it now also accuses of masterminding a failed coup in 2016. Turkey has also requested that the United States extradite more than 80 alleged followers of Gulen, including a professional basketball player for the New York Knicks, Enes Kanter. To date, the U.S. Department of Justice has spent hundreds of hours reviewing evidence submitted by Turkey, but it has not moved forward with Turkey’s request, claimingthat Turkey has provided insufficient evidence to justify Gulen’s extradition under the terms of the treaty and U.S. law. Turkey, meanwhile, has announced that it will not extradite any terrorism suspects to the United States until Washington surrenders Gulen.
DAVID RYDER / REUTERS
A Meng supporter stands outside the British Columbia Supreme Court in Vancouver, December 2018.
HOSTAGE DIPLOMACY
Extradition, which is governed by international treaties, differs from what is commonly referred to as “hostage diplomacy,” or arbitrarily detaining a foreign country’s citizens in order to gain leverage over their government. North Korea has a long history of locking up Americans and South Koreans to use as bargaining chips, as do Iran and Turkey. A 2018 report from the Foundation for Defense of Democracies documents Turkish President Recep Tayyip Erdogan’s prolific use of hostage diplomacy: more than 30 Western nationals have been jailed in Turkey since the 2016 coup attempt, and Ankara has been eager to use them to gain political concessions. In October, Turkey released the American pastor Andrew Brunson in exchange for U.S. sanctions relief.
Countries with more transparent judicial processes do not, as a rule, take foreign citizens hostage in this manner, even though other countries might impute political motivations to charging decisions—as the Chinese have done in the case of Meng. Yet the role of top government officials in approving extraditions means that the line between political and law enforcement decisions can blur. In 2000, for instance, British Home Secretary Jack Straw blocked the extradition of former Chilean dictator Augusto Pinochet to Spain to face charges of torture. Straw claimed that he had rejected the request on “humanitarian” grounds, pointing to Pinochet’s supposed ill health. But this was a pretext: the Chilean government had allegedly negotiated a secret deal with the British to allow Pinochet to return to Chile.
Although the British decision in the Pinochet case was swayed by normal diplomacy rather than hostage-taking or overt threats, it illustrated that states can interfere with attempts to extradite or prosecute their citizens. Because extradition ultimately requires a political green light, diplomatic considerations cannot help but play some role. That said, government officials risk making the process seem purely political when they openly indicate their willingness to interfere in extradition cases, even when those cases are based on solid evidence and seek to further legitimate law enforcement goals. The more they do this, the less they will be able to defend their own requests and decisions as governed by the rule of law—the very distinction relied upon by those countries that expressed confidence in Canada’s judicial procedures while questioning the motivations for China’s recent arrests.
This is precisely what Trump has jeopardized, and not just with regard to Meng. In December, Turkish Foreign Minister Mevlut Cavusoglu claimed that Trump had told Erdogan at the G-20 summit that his administration was “working on” Turkey’s extradition request for Gulen, suggesting that the cleric’s fate could form part of a quid pro quo. Such statements can give treaty-based extradition requests the flavor of political negotiations, and undermine claims by democratic countries that they are simply upholding the rule of law.
CANADA, STUCK IN THE MIDDLE
Meng is not a hostage, but her lawyers are sure to argue that the U.S. extradition request falls under the political offense exception. Assuming that the allegations and evidence supplied by the United States satisfy the treaty requirements, a Canadian judge would likely leave the question of the United States’s potential political motivation to the minister of justice. A Canadian judge has granted her release on $10 million bail pending resolution of the extradition proceedings, which could last for years.
Even though Meng’s arrest was undeniably politically charged, there are reasons to think it was not politically motivated in the first instance. Shortly before her arrest, U.S. deputy attorney general Rod Rosenstein announced that DOJ plans to prioritize prosecuting individual executives for corporate wrongdoing. That supports the United States’ claim that Meng’s arrest is a matter of law enforcement priorities that are separate from the Trump administration’s trade war with China.
Trump’s comments, however, have thrown a wrench in the works. Meng’s arrest took place on the same day that Trump and Chinese President Xi Jinping agreed to a “truce” over dinner at the G-20 summit. As noted above, when asked about the extradition, Trump responded: “If I think it’s good for what will be certainly the largest trade deal ever made ... I would certainly intervene if I thought it was necessary.” Those who perceived the arrest as politically motivated to begin with—as the Chinese undoubtedly did—understandably felt vindicated by Trump’s remark.
If China hoped to secure the moral high ground in this dispute, it has failed miserably. Since Meng’s arrest, China has detained Canadian citizens and imposedthe death penalty on a Canadian who was convicted of drug smuggling. Faced with these apparently retaliatory measures, the United States and Canada have issued travel advisories warning their citizens about the risk of China’s “arbitrary enforcement of local laws.” This is not the only recent example of retaliatory arrests by China. When the United States sought to extradite Chinese businessman Su Bin in 2014 for conspiring with Chinese military officers to hack into U.S. defense contractor computer networks, China arrested a Canadian couple and accused them of spying. One of them spent six months in detention, and the other was detained for 775 days before being allowed to return to Canada. (Su ultimately pled guilty and was sentenced to 46 months in prison, with credit for time served.)
Individuals have long been used as pawns in disputes between states. Nevertheless, countries should resist talking about extraditions in transactional terms. Doing so risks obscuring the line between legitimate law enforcement efforts and political hostage-taking—a distinction that should not be solely in the eye of the beholder. Trump’s transactional approach to problems at home and abroad conflates the two and emboldens other countries to do the same.
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