Unveiling China: A Weak Legal System That Shapes Foreign Policy

Written by Alejandro Castañeda Zuniga

Edited by Ritvik Mahendra, Saanya Pherwani, and Juliette Draper


On September 25, 2021, Huawei’s Chief Financial Officer, Meng Wanzhou entered into a deferred prosecution agreement with the DOJ in exchange for her return home after being held in Canada on bank fraud charges. At almost the same time, Michael Kovrig and Michael Spavor, who were arrested only days after Wanzhou’s arrest, were released from Chinese prisons and allowed to return to their home in Canada. Despite officials from all nations involved repeatedly rejecting any claim that the two cases were connected, all evidence points to China’s deliberate use of hostage diplomacy to accomplish its goals. Moreover, China’s weak legal system incentivizes the Chinese Communist Party to abuse its own judicial system to protect its citizens from consequences abroad.

China is no stranger to the use of hostage diplomacy. The politically charged arrest of the “two Michaels” is a throughline that can be followed back to the arrest of Canadian citizen Robert Lloyd Schellenberg in 2014, the imprisonment of Reuters correspondent Anthony Grey in 1967, and the practice of maintaining “guest hostages” during the Qin period. In all these instances, China carried out arrests in a tit-for-tat effort to protect Chinese citizens abroad.

The “two Michaels” case seems to be a direct reaction to the arrest of Meng Wanzhou.[1] The daughter of Huawei founder, Ren Zhengfei, was arrested in Canada at the request of U.S. officials for violating sanctions against Iran. Her extradition to the U.S. should have been straightforward as Canada and the U.S. have strong relations and a long history of abiding by their extradition treaties. However, Wanzhou managed to drag out the case for over two years by utilizing every avenue available to her for appeal. This was possible because Huawei is a massive telecommunications company with goals to expand into Western markets. Subsequent distrust from Western countries has convinced the CCP that cases brought against Huawei executives are politically motivated and therefore warrant a similar response. The delayed timeframe gave the Chinese government the ability to abuse weaknesses in the Chinese legal system in order to arrest foreign nationals and place pressure on Canada and the U.S.

Defendants' lack of due process in the Chinese legal system makes it ripe for abuse. The country has a 99% conviction rate, meaning that in only the rarest of cases do courts rule against the state.[2] This presumed guilt makes it difficult for defendants to garner any domestic compassion. Most citizens believe that any charges against “un-convicted criminals” are true regardless of their factual accuracy. Additionally, distrust of foreigners in China, particularly Western ones, makes the likelihood of state hostages receiving favorable treatment even more minuscule.

The extreme timetables defendants face regarding their trial and eventual conviction reflect the unfavorable treatment of foreign nationals arrested in China. Most cases in the Chinese legal system move very quickly, aided in part by the presumed guilt of the defendant. As a result, even high-profile cases are sometimes entirely resolved within two months of the offense.[3] This accelerated time frame gives defendants little time to construct a substantial defense and leaves them vulnerable to the whims of the judicial system. On the other hand, there are instances where the defendant is unaware, for up to two years, of the charges being brought against them, spending the entire time in a jail cell.

Long wait times are made all the more excruciating by the terrible conditions Chinese hostages are afforded in contrast to the relative luxury of high-level Chinese citizens arrested abroad. For example, in the “two Michaels” case, both Kovrig and Spavor were visibly underfed, constrained to 12-foot square large cells, and received little to no communication with the outside world. Their lack of significant contact with the outside world was so extreme that one of the Michaels only gained knowledge of the Covid-19 pandemic in October of 2020.[4] In contrast, Meng Wanzhou was allowed to continue living in her mansion in Vancouver, retained access to much of her wealth, and was even allowed to roam freely throughout the city.[5] The torturous conditions faced by Western citizens arrested abroad place enormous pressure on Western democracies to return hostages home. There is simply no comparison between the conditions faced by Wanzhou and the “two Michaels.” Even if there was widespread discontent with the Communist Party’s handling of the situation, there is no incentive for the party to be receptive to criticism.

The result of all these factors is that the Chinese government can be confident that when they arrest someone, that individual will likely be seeing the inside of a jail cell even without additional state interference. That knowledge places pressure on Western governments that cannot assure that any particular case they bring against an individual will go their way. During the Meng Wanzhou case, there were doubts over whether the DOJ would be successful on purely legal grounds. The potential of losing the case outright seems to have placed some pressure on U.S. and Canadian officials to make a trade to save face instead of risking total embarrassment. The possibility of direct state interference on the part of the Chinese Communist Party all but assures that China will always have a stronger hand in negotiations than the West. Additionally, because conditions for prisoners are so much worse in China than in Western nations, there is increased pressure for Western countries to make a deal and get their citizens home.

Chinese state media has repeatedly alluded to the fact that the abuse of these factors by the CCP was responsible for the return of Wanzhou. Even the “two Michaels” return seems to be a brazen display of China’s confidence. The release of Kovrig and Spavor only a handful of hours after Wanzhou had left Canadian airspace eliminated nearly all ability for the Chinese to argue plausible deniability.[6] Clearly, the Chinese government wishes Western nations to know that any move against individuals the CCP considers relevant will be met with Western nations’ citizens arbitrary and swift imprisonment in retaliation. The consequences of this new age of hostage diplomacy will be challenging to deal with for Western nations.

China has focused most of its retaliatory efforts on U.S. allies instead of targeting the U.S. itself. These “middle powers” such as Australia, Canada, and Japan have fewer tools at their disposal to deal with such hostage negotiations. As the Wenzhou example demonstrates, targeting U.S. allies also has the added benefit of creating tensions between the targeted nation and the U.S. Despite Canadian citizens demanding the exchange of Wenzhou for the safe return of the “two Michaels,” the U.S. Department of Justice insisted on its continued prosecution of Wenzhou. The result might be a weakened system of extradition agreements between the U.S. and its allies, making it more difficult for criminals to be held accountable.

Furthermore, if China continues to flaunt its hostage-taking as a diplomatic strategy, it will undermine trust in Western legal systems. High-ranking Canadian figures, including a former Supreme Court justice and former Senator, petitioned the Canadian government for the release of Wenzhou in exchange for the “two Michaels.”[7] Prime Minister Trudeau refused to interfere and risk politicizing the judicial system. Unfortunately, future leaders might not prove so firm. President Trump might have already crossed this line by publicly suggesting he might be willing to release Wenzhou in exchange for trade concessions. The continued politicization of Western legal systems will not only make them less effective but will also add credibility to the claims of Chinese officials that the arrests of Chinese nationals are political in nature.[8]

Lastly, as China grows more powerful on the global stage, it will feel encouraged to expand its hostage tactics to more substantive areas. President Trump’s willingness to make a trade deal with Wenzhou as leverage might encourage Chinese officials to arrest Western citizens in more significant numbers in order to strengthen their position the next time another policy disagreement comes up. The explicit hostage-taking of the Chinese government will discourage citizens from Western countries from visiting China and will only raise tensions between the two.[9] This all comes at a time when anti-Chinese sentiment in America and other Western nations is already at an all-time high.

Unfortunately, there is not much the U.S. can do to change this state of affairs. Leveling the playing field with China would require weakening key institutions and eroding the belief in the rule of law. As China grows more powerful, it will also grow less vulnerable to alternative methods of creating leverage such as sanctions by Western governments. However, if we hope to prevent this problem from worsening, the West must present a united front and refuse to reward such behavior. The West must punish China's hostage diplomacy in other areas of negotiation. Western legal systems must not be afraid of continuing to prosecute Chinese nationals who have broken the law. The successful prosecution of Su Bin in 2014 demonstrates that China will not always be successful in its efforts. America and its allies must remain committed to maintaining the strength and credibility of their legal systems even as China exploits its own.


 

[1] Nagy, S. (2021, August 13). China's reckless hostage diplomacy increases the chances of war. Nikkei Asia. Retrieved March 23, 2022, from https://asia.nikkei.com/Opinion/China-s-reckless-hostage-diplomacy-increases-the-chances-of-war

[2] Raleigh, H. (2021, April 1). China's 'hostage' diplomacy exposes its false paeans to human rights. The Federalist. Retrieved March 23, 2022, from https://thefederalist.com/2021/03/29/chinas-hostage-diplomacy-exposes-its-false-paeans-to-human-rights/

[3] Clarke , D. (2019, October 31). China's hostage diplomacy. Lawfare. Retrieved March 23, 2022, from https://www.lawfareblog.com/chinas-hostage-diplomacy-0

[4] Ku, J. (2021, October 12). China's successful foray into asymmetric lawfare. Lawfare. Retrieved March 23, 2022, from https://www.lawfareblog.com/chinas-successful-foray-asymmetric-lawfare

[5] Hamlett, T. (2021, October 5). 'hostage diplomacy' in the two Michaels case shows China's legal system is a Sham. Hong Kong Free Press HKFP. Retrieved March 23, 2022, from https://hongkongfp.com/2021/10/05/hostage-diplomacy-in-the-two-michaels-case-shows-chinas-legal-system-is-a-sham/

[6] Palmer, J. (2021, September 28). Another win for China's hostage diplomacy. Foreign Policy. Retrieved March 23, 2022, from https://foreignpolicy.com/2021/09/28/meng-wanzhou-michael-kovrig-spavor-release-china-canada-huawei/

[7] Gilbert, D., & Piché, G. R. (2022, February 8). Caught between Giants: Hostage diplomacy and negotiation strategy for Middle Powers. Texas National Security Review. Retrieved March 23, 2022, from https://tnsr.org/2021/11/caught-between-giants-hostage-diplomacy-and-negotiation-strategy-for-middle-powers/

[8] Chellaney, B. (2021, September 27). Opinion: Biden rewards XI's hostage diplomacy. The Globe and Mail. Retrieved March 23, 2022, from https://www.theglobeandmail.com/opinion/article-biden-rewards-xis-hostage-diplomacy/

[9] Editorial Board. (2021, September 30). Our view: China's 'hostage diplomacy' a sign of weakness. Mankato Free Press. Retrieved March 23, 2022, from https://www.mankatofreepress.com/opinion/editorials/our-view-chinas-hostage-diplomacy-a-sign-of-weakness/article_1b121ab6-2116-11ec-8901-8f7d14155d87.html

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