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Huawei extradition: Legal Realities v Political Niceties

On Behalf of | Dec 10, 2018 | International Criminal Law |

The recent detention of Meng Wanzhou – CFO of China’s Huawei Technologies‎ – has unleashed a political storm centred around the issue of extradition.

Superficially, the arrest was mundane‎ and ordinary.

Understandably, due to the proximity of Canada and the US, and the strong intertwining and easy access of its citizens, these two nations also have a very active extradition relationship. Thus, when requests for extradition are made, they are usually agreed-to without much questioning. Therefore, on the surface, despite the notoriety and stature of Ms. Meng, the request was one that Canada was almost certain to accede to.

But therein lies the problem.

Extradition is – and always has been – a mix of law and politics. Accordingly, many requests that may have solid legal underpinnings ‎are rejected because of the Minister of Justice’s (political) view of the trustworthiness of the requesting State’s judicial system and/or the uncertain fate that awaits the accused in that country. There are numerous examples of rejected extradition requests because of “politics”.

While torture and a kangaroo court system will not be what Ms. Meng faces – there are very real legal reasons why she should not be surrendered to the Americans – assuming the media reports are accurate.

It appears that the “crime” for which she is wanted is that her company “violated US sanctions in relation to Iran.” If so, then, simply put, there is no comparable crime in Canada, and therefore the required concept of “commonality” for a valid extradition, is breached.

To put it clearly: it may be illegal under US law to trade with Iran, but since Canada – like most of the world, refuses to disavow the Iran agreement, and since the UN Security Council has not endorsed the American pull-out‎ from the deal – Canada therefore does not have a similar law to punish similar conduct. Thus, there is no commonality.

And, to be more blunt, the decision to impose unilateral Iran sanctions is an American political decision. Which, of course, is their right – but that doesn’t make it a Canadian law.

Additionally, the unprecedented giving of advance notice to the Prime Minister is highly unusual and adds another layer of political aura to the case.

All of which may be contrary to the Extradition Act, which specifically prohibits political grounds for extradition.

Which is why, at the very least, Ms. Meng’s continued detention is unworthy.

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