Prologue – Extradition as perceived by the great powers
US fury after France releases Iranian prisoner wanted on US sanctions-busting charges https://t.co/gwf8gP7Y6V
— U.S. Citizen Abroad (@USCitizenAbroad) March 25, 2020
The public may not understand the technicalities, but it does understand the risk
China – Proposed changes in a Hong Kong law
Q. What's the turmoil in Hong Kong? A. "Tensions with Beijing came to the fore again in the summer of 2019, when hundreds of thousands of people protested against a legislative proposal that would have allowed extraditions to mainland China." https://t.co/FfvHzH8T2L via @CFR_org
— U.S. Citizen Abroad (@USCitizenAbroad) March 26, 2020
The freedom fighters in Hong Kong were spurred into action by the threat of a Hong Kong law that would allow extradition to China. This is the world’s most visible symbol of the importance of extradition.
The United States – The Julian Assange extradition hearing
Two ships passing in the night: Assange's lawyers will try to make their case later this week that the charges are politically motivated and that their client simply acted as a journalist and publisher.
"Julian Assange Extradition Hearing Begins In London" https://t.co/wHyJVHST1J
— U.S. Citizen Abroad (@USCitizenAbroad) March 26, 2020
In a lengthy and well organized comment, Embee (of Isaac Brock Society fame) opines that the Assange extradition hearing was “a matter of inhumane treatment at the direction of the UK judicial system and a blatant overreach by the US in order to punish and make an example of a journalist who revealed that which they did not want to be public knowledge”. Embee further notes that:
The UK judge, Vanessa Baraitser, not only denied Julian Assange the dignity of sitting with his lawyers during that portion of the trial (he was in a glass cage, could barely hear what was being said in court and could not communicate confidentially with his lawyers), she has denied him bail knowing full well he is already in poor health and could be very vulnerable to an outbreak of COVID-19 in Belmarsh Prison.
Extradition is becoming a very important political (and possible immigration) issue
There are many things in life that are invisible until you become aware of them. I have never given much thought to extradition. My basic understanding of extradition (to the extent that I understood it at all) was that it was a process to return criminals to the country that had jurisdiction over the crime. For example, Britain is attempting to extradite Anne Sacoolas back to Britain, to stand trial for the death (homicide?) of Harry Dunn. In this instance, it’s agreed that Ms. Sacoolas, while driving on the wrong side of the road, hit Harry Dunn and that resulted in his death. It’s clear that this occurred in Britain. It’s also clear that Ms. Sacoolas returned to America and has refused to return to Britain to stand trial. In a statement which is indicative of the height of American hypocrisy, her lawyer, Amy Jeffress, is reported by the Guardian to have said:
A statement from the lawyer for Anne Sacoolas came after the Crown Prosecution Service announced it was bringing charges over Dunn’s death in August. Amy Jeffress said the potential 14-year sentence was “not proportionate” for what was “a terrible but unintentional accident”.
The statement said: “Anne is devastated by this tragic accident and continues to extend her deepest condolences to the family. Anne would do whatever she could to bring Harry back. She is a mother herself and cannot imagine the pain of the loss of a child. She has cooperated fully with the investigation and accepted responsibility … This was an accident, and a criminal prosecution with a potential penalty of 14 years’ imprisonment is simply not a proportionate response.”
Right. This coming from a lawyer in a country that claims the right to levy FBAR penalties which amount to 50% of the highest balance in a foreign bank account …
The outrageousness of Ms. Jeffress’s claim aside, the simple fact is that the United States has refused to return Anne Sacoolas to the U.K., when there is an extradition agreement that arguably (at least in spirit) seems to require it. (For a possible explanation of the U.S. refusal, see the comment by Andy05 below.) Extradition in general and the Sacoolas situation in particular has given extradition a notoriety that is relatively new. The issue of the U.S. U.K. extradition treaty has recently been raised in the House of Commons.
At the same time the United States is refusing to extradite Anne Sacoolas to the U.K., to stand trial for an event that clearly took place in the U.K.:
The United States is using extradition treaties with other countries, to require those other countries to arrest and extradite individuals for crimes which did NOT occur in those countries or in the United States. To put it another way, the United States apparently sees extradition treaties as way to facilitate it’s role as the world’s “Lone Ranger” – scouring the world for people it doesn’t like – with every treaty parter playing the role of “Tonto”. (Apparently, “Jay Silverheels, who played The Lone Ranger’s sidekick Tonto in the TV series and movies, was born to a Mohawk chief on the Six Nations Reservation in Brantford, Ontario …”. This would make Canada a natural “Tonto” in the use of extradition treaties to police the world.)
When the U.S. France extradition treaty was sent to the U.S. Senate for approval, President Clinton noted that:
The United States recognizes the extraterritorial application of many of its criminal statutes and frequently makes requests for fugitives whose criminal activity occurred in foreign countries with the intent, actual or implied, of affecting the United States.
Canada – In relation to sanctions against Iran: The Meng Wanzhou extradition case. Ms Wanzhou – a citizen of China – landed at Vancouver airport. At the request of the United States, Canada arrested Meng Wanzhou for the purpose of extradition to the United States. Ms. Wanzhou is alleged to have violated U.S. laws which in some way relate to U.S. sanctions on Iran. What is clear is that the facts giving rise to the U.S. criminal charges, did NOT take place in either the United States (she is not fleeing from the United States in the same way that Anne Sacoolas fled from Britain) or Canada. In other words, Canada is being asked to assist the United States for something that has nothing to do with Canada. Of course, China has responded by seizing two Canadian citizens in China. Those Canadians have been incarcerated in China for more than a year.
It appears (at least so far) that Canada has preferred to do the bidding of the United States rather than protect Canadian citizens.
France – In relation to sanctions against Iran as described in the following tweet:
Compare Canada to France: "Ruhollah Nejad was arrested last year when he arrived at Nice airport as he got off a plane coming from Tehran on charges of circumventing US illegal sanctions against Iran." But, "France declines to extradite an Iranian to US" https://t.co/DclVdb4R4i
— U.S. Citizen Abroad (@USCitizenAbroad) March 21, 2020
At least initially the facts seems to be similar. We have France, at the request of the United States, arresting Rouhollahnejad an Iranian citizen – when he landed in France. Mr. Rouhollahnejad was charged by the United States for attempting to illegally import U.S. technology for military purposes on behalf of an Iranian company. A Reuters article of May 23, 2019 reported that a French court had approved Mr. Rouhollahnejad’s extradition to the United States.
Iran arrested two French citizens. Ultimately, the Government of France decided to release Rouhollahnejad to Iran in exchange for one of the two French citizens. As reported by Reuters on March 20, 2020:
DUBAI (Reuters) – Iran and France have agreed to swap a French academic held on security charges and an Iranian detained by Paris over alleged violations of U.S. sanctions against Tehran, Iranian state media reported on Friday. …
France has released Jalal Ruhollahnejad, an Iranian engineer wanted by U.S. authorities over sanctions charges, state broadcaster IRIB said on its website.
France refused to extradite Mr. Rouhollahnejad to the United States (possibly without regard to the terms of the U.S. France extradition treaty).
France appears to put the interests of its citizens over the demands of the United States.
The UK – in relation to circumstances that took place in the U.k., did not constitute a crime in the U.K., but were a violation of U.S. law
As reported from the American perspective – yahoo news:
As reported from the U.S. perspective by Reuters:
LONDON (Reuters) – Mike Lynch, the British tech billionaire who sold his data company Autonomy to Hewlett Packard, submitted himself for arrest on Wednesday as part of a bid by the United States to extradite him to face criminal charges.
Lynch’s lawyers said he “vigorously rejects all the allegations against him and is determined to continue to fight these charges”.
Hewlett Packard is suing Lynch in Britain’s High Court for billions of pounds in damages over the deal. It has alleged he fraudulently inflated the value of Autonomy before he sold it.
Lynch has denied the allegations.
“The US Department of Justice should not have commenced extradition proceedings prior to the judgment of the English High Court,” Lynch’s lawyers Chris Morvillo and Reid Weingarten said.
As reported from the U.K. perspective by MP David Davis:
But the UK business world should be alarmed. The DoJ looks to be deploying strongarm tactics and Lynch’s lawyers are right to shout about the wider business implications. Here’s one central question: should the fallout from the takeover of a UK company, conducted under UK takeover rules, really end up in a US court?
Lynch was the founder of a UK company quoted on the London Stock Exchange. Allegations of improper accounting in the $11bn sale of Autonomy to Hewlett-Packard in 2011 were investigated by the UK Serious Fraud Office, which decided there was insufficient evidence to bring charges, and Lynch has always denied any wrongdoing. Yet the DoJ wants to bring charges of fraud and conspiracy against Lynch relating to the deal.
and generally the U.K. sentiment includes:
The U.S. claims concern alleged conduct in the UK. Dr Lynch is a British citizen who ran a British company listed on the London Stock Exchange, governed by English law and UK accounting standards. This extradition request reflects yet another example of the DOJ’s attempts to exert extraterritorial jurisdiction over non-US conduct.
Clearly, this one more example of how extradition agreements can come at the cost of harming a country’s own citizens. This is why when negotiating extradition treaties some countries reserve the right to NOT extradite their own citizens. Canada WILL extradite its own citizens. The U.K. WILL extradite its own citizens. France WILL NOT necessarily extradite its own citizens.
The relationship between extradition treaties and FATCA IGAs
Both extradition treaties and FATCA IGAs are instances where:
1. The United States is requiring the transfer (in one case people and the other information);
2. Under circumstances where it harms the citizens of the treaty partner country.
This is the end of Part 1 of the Extradition series. Part 2 will explore extradition more generally.