Opinion piece - We must make sure politics is kept away from extradition

Friday 21 December 2018

Dr Paul Arnell
Writing for The National, The Law School's Dr Paul Arnell discusses the recent trend that has seen politics begin to influence extradition processes.

Extradition has in recent times been transformed from an obscure legal process to the centre of a number of high political dramas.

Charges of rebellion in Catalonia and sanction-busting in Iran are among the allegations that have given rise to proceedings where accused persons are transferred from one country to another.

There are an increasing number of cases where extradition requests are influenced by politics. Scotland and the UK are not immune from receiving these requests.

At first thought it may seem reasonable that extradition and politics are closely related – that the law exists for exactly the purpose of giving effect to political policies and protecting countries from dissent and threats.

Indeed, this was the original goal of extradition. Its roots are found in processes designed to transfer political enemies and agitators.

Over the years, however, democracy, the rule of law, political freedom and the rights to expression, assembly and liberty have come to limit extradition to non-political acts and from political influence.

This limitation is the political offence exception. It is found in both UK extradition law and in international treaties. The exception provides that persons accused of political acts or wanted on account of their political or religious beliefs are immune from the process.

Extradition has been limited to orthodox criminality such as murder, rape and theft and where there is no ulterior motive for the request.

The influences spurring this evolution of extradition transcend that law. Indeed, they form the basic tenets of western liberal democracies and have come to underpin representative government and due process as well as the laws granting political asylum and protecting refugees.

Recent cases where politics has impacted upon extradition are not hard to find.

They come from countries from all corners of the globe, including China, the US, Australia, Bahrain, Spain and Scotland. Distressingly, the offending countries among this list are not all what might be considered the usual suspects.

On December 1 the chief financial officer of Huawei Technologies, Meng Wanzhou, was arrested in Vancouver. The US had requested her extradition from Canada.

Huawei Technologies is a large Chinese telecommunications conglomerate, considered a danger by several Western countries on account of its communication infrastructure technology.

Meng has been charged with fraud over alleged violations of US-imposed economic sanctions on Iran.

Her extradition hearing in Vancouver is pending. In a particularly pernicious development, Donald Trump has offered to intervene in Meng’s case if a trade deal – to his liking of course – can be concluded between the US and China.

A lesser known case is that of Australian refugee and footballer Hakeem al-Araibi.

He was arrested in Thailand on December 3 and is subject to possible extradition to Bahrain.

He argues that he is wanted in Bahrain on account of his political views and those of his brother.

The former member of the Bahrain national football team is said to have been a critic of the Asian Football Federation run by a cousin of the Bahraini king. The case is ongoing.

A third instance is that of Clara Ponsati. Spain had sought her from Scotland on charges including rebellion. This followed her involvement in the Catalonian independence referendum on October 1, 2017.

Notably, Spain withdrew its request before the extradition proceedings went to a full hearing.

The reasons for this include the fact that the argument that she was being sought on account of her political opinions would have been made in open court.

There was the possibility that a Sheriff would have stopped her extradition on that basis. This would have been embarrassing for Spain and perhaps a fillip for the independence movement.

Extradition is an important process that addresses transnational crime and stops countries from becoming safe-havens for suspected criminals. Its politicisation needs to stop. Its usefulness will suffer if it does not.

The rule of law and human rights must reinvigorate the separation of politics from extradition.

Decisions must be taken on the basis of the law and without bias and influence.

Dissent and criticism are vital in modern liberal democracies and must be protected.