Sunday, June 23, 2013

I guessed wrong (kind of)

In a recent post, I argued that Edward Snowden's extradition from Hong Kong was likely. Now this happens:
US whistle-blower Edward Snowden has left Hong Kong and is on a commercial flight to Russia, but Moscow will not be his final destination. 
The fugitive whistle-blower boarded the Moscow-bound flight earlier on Sunday and would continue on to another country, possibly Cuba then Venezuela, according to media reports. 
The Hong Kong government said in a statement that Snowden had departed "on his own accord for a third country through a lawful and normal channel".
 The Hong Kong government played the politics of this case very well. From their press release
The US Government earlier on made a request to the HKSAR Government for the issue of a provisional warrant of arrest against Mr Snowden. Since the documents provided by the US Government did not fully comply with the legal requirements under Hong Kong law, the HKSAR Government has requested the US Government to provide additional information so that the Department of Justice could consider whether the US Government's request can meet the relevant legal conditions. As the HKSAR Government has yet to have sufficient information to process the request for provisional warrant of arrest, there is no legal basis to restrict Mr Snowden from leaving Hong Kong.
Provisions that allow for requests of "additional information" are common in many extradition treaties. Certainly its not known what was in the documents provided by the United States government and precisely how they did not comply with Hong Kong law, but it is very clear that this was the easiest way to deny extradition without explicitly refusing it. Snowden's case is a particularly challenging one, given that the U.S. chose to indict Snowden under the Espionage act. The Hong Kong government may have a strong argument that the initial documents were insufficient, even if it's unlikely that the United States will believe it. The novelty of this case makes a request for additional information perfectly legitimate, even if  convenient given Snowden's subsequent departure. While the H.K.-U.S. legal cooperation may have been somewhat slighted, the HK government's decision is unlikely to affect its relationships with other states since they held to the letter and intent of the treaty and, more importantly, China did not appear to overtly intervene.

So, I was wrong...somewhat. In the original post, I included the caveat that my prediction assumed Snowden would not choose to flee Hong Kong, since a long and drawn-out extradition process would also give him ample time to escape. I thought that for Snowden, transit to a non-extraditable third country was undesirable, otherwise he would have simply gone there in the first place. However, it appears that self-preservation ultimately won out and Venezuela is Snowden's new destination. lthough the United States does have an extradition treaty with Venezuela, it dates back to 1923. Moreover, the U.S. and Venezuela historically have had an extremely rocky relationship over legal cooperation particularly after the high profile refusal of the U.S. to extradite accused airline bomber Luis Posada Carriles .The current Venezuelan government certainly would oppose Snowden's transfer, but even if it chose to dust off the old agreement and comply with its exact provisions, the United States would have an extremely weak case. Unlike the U.S.-HK agreement, it does not have a mutual criminality clause, meaning that the only offenses that are extraditable are the ones explicitly listed in the agreement. The list is very short and extremely dated ("willfull and unlawful destruction or obstruction of railroads" is the 6th offense on the list). Espionage would certainly be treated as a political offense, and under Article 3, even offenses connected to a political offense (in Snowden's case, "theft of government property") are non-extraditable. Despite the treaty, Snowden seems to be untouchable while in Venezuela. [EDIT: Apparently Snowden is instead seeking asylum in Ecuador]

While it is impossible to know what would have happened had Snowden stayed in HK, his flight does suggest that he did not believe that his defense against extradition would have been successful. The HKSAR's hands are more tied than are Venezuela's. All things being equal, Snowden would certainly have preferred to stay in HK rather than Venezuela. However, the Hong Kong government seemed to have made it clear that it could not hold out against extradition for much longer without putting its legal arrangements into much more serious jeopardy. That China chose not to explicitly intervene at the outset does illustrate that international law does operate as a constraint, even if states can strategically use it to their advantage. Delaying extradition while offloading Snowden to a less constrained third party was an inexpensive way of satisfying the Chinese government's preference against extradition while minimizing damage to Hong Kong's international legal standing.

The closing paragraph of the press release is also absolutely perfect from a political standpoint
Meanwhile, the HKSAR Government has formally written to the US Government requesting clarification on earlier reports about the hacking of computer systems in Hong Kong by US government agencies. The HKSAR Government will continue to follow up on the matter so as to protect the legal rights of the people of Hong Kong.
Translation: "I am altering the deal, pray I don't alter it any further"

No comments:

Post a Comment