ChinaFile. Margaret K. Lewis. Protecting the Rights of the Accused in U.S.-China Relations.

As President Donald Trump visits China, the Chinese government wishes that billionaire fugitive Guo Wengui would follow suit and board a plane to Beijing. For months, he has regaled the world from his luxury apartment in Manhattan with stories of high-level corruption among China’s elite. Untangling the truth of Guo’s claims is complex, but what the Chinese government wants is simple: to have some of its citizens, especially Guo, returned to China to face a long list of criminal and civil charges.

Guo is not the only Chinese fugitive in the United States. The Chinese government reported in October that its multi-year Operation Sky Net has recovered 9.36 billion renminbi in allegedly stolen funds and returned 48 fugitives that China placed on Interpol’s red notice list. Last spring, Chinese state media reported, however, that 946 fugitives were still overseas, highlighting the United States as a favorite destination.

Also in October, Washington presented contrasting visions of how the United States should respond to repatriation requests. The Trump administration concluded the last of a series of bilateral dialogues on October 4. Following the U.S.-China Law Enforcement and Cybersecurity Dialogue, the State Department emphasized a “results-oriented approach” and reports from the China-side touted “pragmatic cooperation.” The Summary of Outcomes released by the Department of Justice listed “Repatriation” of foreign nationals and “Fugitives” as main topics discussed. Yet the U.S. Department of Justice made no mention of the rights of the accused when engaging in law enforcement cooperation, even though Secretary of State Rex Tillerson said in April, when announcing the dialogues with China, that human rights are “really embedded in every discussion.”

On October 5, the day after the last dialogue, the Congressional-Executive Commission on China released its Annual Report on the human rights situation in China. Chairs Senator Marco Rubio (R-FL) and Representative Chris Smith (R-NJ) urged in their letter to President Trump that, “[p]rincipled U.S. leadership is needed to develop a long-term policy approach that challenges China to abide by its international commitments, adhere to universal standards, and embrace the rule of law.” Specifically with respect to law enforcement cooperation, the Report recommended that the United States “should not agree to any additional repatriations” until China demonstrates that it is meeting international standards on the treatment of criminal suspects.

The Trump administration has ignored the Report. Not only have the United States and China continued to repatriate each other’s nationals since President Trump took office, but also the recent dialogue demonstrated an increased willingness to cooperate through “regular meetings and working groups to identify priority cases.”

Should the United States emphasize human rights considerations when cooperating with China on law enforcement? There are sound reasons to do so.

First, an emphasis on human rights when cooperating with China on law enforcement is not American meddling in China’s sovereignty and is consistent with the human rights standards Beijing has accepted voluntarily. The United States and China are both parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which provides that member states not transfer a person to a country “where there are substantial grounds for believing that he would be in danger of being subjected to torture.” A case-by-case analysis is needed to confirm that each repatriation meets at least these minimal standards—an inquiry complicated by the opacity of China’s criminal justice system and its Party disciplinary process.

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