Michael Kovrig, a Canadian ex-diplomat, and Michael Spavor, a writer and entrepreneur, have been detained by the Chinese government under the charges of endangering state security. What are China’s motives? Do you think China is trying to use the Kovrig and Spavor detentions to pressure Canada in securing the release of CFO of telecom giant Huawei Meng Wanzhou? Is Beijing going to get its way?

I don’t know whether Beijing is going to get its way, but China has made it clear that the detentions of Kovrig and Spavor are intended to put pressure on Canada over the Meng case. China’s ambassador to Canada, in an op-ed, declared that the detentions were China’s “self-defense” and said that China would not turn the other cheek. There is no way to interpret these remarks other than as tying the detentions to the Meng case. Spokesmen for the Chinese government and Chinese official and semi-official media have talked about the further retaliatory steps that China is going to take if Canada ends up extraditing Meng to the United States, implying of course that China has already taken retaliatory steps. But what are those steps? Remarkably, other than the detentions and the Schellenberg case, which I’ll discuss in a moment, China has done nothing to pressure Canada. If China says it is now putting pressure on Canada, how is it doing so? The only answer is: through these detentions. There is no ambiguity about this.

 

Has China frequently used charges of endangering national security against Westerners? Is there any pattern in how China uses such charges?

My sense is that national security charges are not commonly used against non-Chinese, although I don’t have a good grasp of the numbers. But it’s definitely not the first time. There have been high-profile cases where foreigners have been arrested on national security or similar charges. 

 

Kovrig is currently an employee of the International Crisis Group but is on leave from the Canadian foreign service. What are the implications or effects on the staff of other foreign, especially Canadian, NGOs in China?

Any Canadian—indeed, any citizen of any country that China feels it can bully—needs to be concerned. Without an appropriate pushback from the international community on the Kovrig and Spavor cases, any government should be concerned about its citizens being arbitrarily detained in China in order to put pressure on that government. China has not yet done anything with respect to the United States either as a country or against individual U.S. citizens, even though it is the U.S. that is driving this process through its extradition request. Presumably that’s because the U.S. is harder to push around. China chose to concentrate on Canada, which is the country now holding Meng and preventing her from leaving. As for whether China is singling out at NGO employees in particular, I don’t think so. Probably NGO employees are at somewhat greater risk than other foreigners such as business people because they are more likely to offend some of the strict requirements of China’s Overseas NGO Law, even though that by itself would not justify detention on national security charges. The Chinese government might feel it was losing something if it scared large parts of the business community out of China. But it’s not keen on foreign NGOs in the first place, so scaring them might be considered a low-cost side effect, or perhaps even a benefit.

 

In your article posted on the Lawfare blog, you said that the Chinese court’s decision to retry Robert Lloyd Schellenberg on drug-smuggling charges may also be linked to Meng’s case. What makes the Schellenberg case so unusual? Will the retrial decision be contingent upon Canada’s actions?

The Schellenberg case began in 2014, long before Meng’s case started. Thus, the initiation of that case clearly cannot be tied to any attempt by China to put pressure on Canada. He was put on trial in Dalian in 2016, but the court in China seems to have had doubts about his guilt or the proper sentence. Very unusually, the court sat on the case for 32 months after the trial and tried to figure out how it should decide. In November 2018—again, before Meng’s detention—Schellenberg was sentenced to 15 years in prison. Then Meng got detained, and his appeal went to the Liaoning provincial court. All of a sudden, the entire international press was invited to hear the appeal of an ordinary drug case. That’s unusual.

The appeal took just a day, and the decision of the appeals court was extremely unusual, leading many (including me) to suspect that the case was being used by the Chinese authorities to add pressure on Canada. They could do that by increasing his sentence beyond the original fifteen years. But there was a problem. According to Chinese law, the appeals court had three options in this case: to uphold the original sentence, to change the sentence, or to send the case back to the lower court for retrial. If only the defendant appeals but not the prosecution, the court is not allowed to change the sentence by increasing it; the only permissible change is a decrease. My suspicion is that when the original judgment was pronounced last November, before anything happened with Meng, the prosecution decided not to appeal the 15-year sentence. Maybe that’s what they had asked for. The court, therefore, did not have the option of increasing the sentence, because the prosecution did not appeal. And it didn’t want to keep the original sentence. However, it still had the third option: to send it back for retrial. The decision to send cases back for retrial, according to my unofficial calculation, happens extremely rarely—in about 2% of criminal appeals. This is the second aspect that is highly unusual, and reinforces the theory that the case has become political and is no longer about Schellenberg’s individual guilt.

The retrial went from 8 a.m. to 7 p.m., with breaks for meals. At 7 p.m., the court announced that they would have a decision in an hour. An hour later, they had the decision, which was the death sentence. This is the same case that previously took the court 32 months to decide, and they decided then that a 15-year sentence was appropriate. Now, they spent less than an hour, and moreover they knew in advance that it was only going to take them an hour. A death sentence requires not only the approval of the judges hearing the case, but also the approval of the president of the court and the approval of another body within the court called the Adjudication Committee. Apparently we are supposed to believe that in one hour the judges decided on the sentence on the basis of what they heard that day, and then took the case to the court president, who sent it to the Adjudication Committee, which had the discussion and then made the decision. This was the same court, remember, which was so careful that it took 32 months to decide on the original 15-year sentence.

Schellenberg has now decided to appeal, and the appeal by law should be heard quickly—the whole case should be done within two months of the time the notice of appeal is filed. But the appeals court can delay its decision with special approval from the Supreme People’s Court. Once the appeals court makes the decision, the death sentence gets a special review by the Supreme People’s Court, which faces no time limit. My prediction is that the delay could occur at the appeal level or at the level of the Supreme People’s Court review, and they will not make a decision on whether to execute Schellenberg up until they see what happens with Meng’s case.

 

You called the detentions a “hostage-taking and not a regular criminal investigation,” the Kovrig and Spavor cases a part of China’s “hostage diplomacy,” and the Schellenberg case “death threat diplomacy.” Can international laws and treaties restrict a state’s ability to abuse its laws and engage in such “hostage-taking?” How should the West respond to such acts of hostage-taking, including the cases involving Canadian citizens?

To the best of my knowledge, there is no specific international law against hostage-taking of this kind, but there doesn’t need to be. There are human rights norms, which specify that you cannot detain people without proper reasons. According to the International Convention of Civil and Political Rights, you cannot detain people arbitrarily. In other words, you cannot detain people without a legitimate reason, meaning the people under detention must be suspected of committing crimes. Certainly, there is no way that a government could openly admit that it is taking hostages while claiming that it is consistent with the international law. Even though there are maybe some doubtful cases around the edges, the detention of Kovrig and Spavor is absolutely a core case of people being held for trumped-up reasons. This is not something that Canada or the U.S. could do in response to the actions that China is taking. Regardless of what one thinks of Meng’s detention, she is not a hostage. Canada is not offering to trade her freedom for some desired action by the Chinese government. And unlike Kovrig and Spavor, she is living in her own house, free to come and go, meet friends, and see her lawyers.

In terms of the international community’s response, there is no forcible response that is remotely conceivable. But there are diplomatic responses. One option is to make clear that it is completely unacceptable that China should engage in this kind of hostage diplomacy. The international community should feel threatened by this. Countries that might at any point have some disagreements with China about anything need to know that China considers it legitimate to seize their citizens as a way of pressuring them. Diplomatic tools include withdrawing your  ambassador, expelling the other country’s ambassador, cancelling visits and exchanges, and even trade sanctions. These are steps China could have taken to protest Canada’s actions, and actions that Canada and other countries can take to protest China’s actions. I feel somewhat disappointed at the international community’s response, or rather lack of response, to date. France just recalled its ambassador to Italy over offensive comments by Italian politicians. Surely having your citizens held hostage is more serious.

 

Will China’s hostage diplomacy face any potential fallout? Based on your observations of past Chinese practices and behavior in treating detained or sentenced Westerners, what is likely going to happen to Messrs. Kovrig, Spavor and Schellenberg?

China is already facing negative consequences as a result of its hostage diplomacy. There has been a marked shift in international opinion about China in the last few years. A number of people in influential positions who are willing to give China a pass on various things before are no longer willing to do so. This hostage-taking is just accelerating the downhill slide in China’s international image, and that is not good for China as a whole. Unfortunately, the effects of the downhill slide are diffuse, and not concentrated on the decisionmakers. If the business community gets scared and decides to invest less in China, it will hurt people in China in unspecified ways, but it won’t really hurt the decisionmakers in dispute with Canada, so they have no real incentive to care.

If Meng is released, I don’t think the Schellenberg death sentence will ever be carried out. If Meng is not released, the case could drag on for a long time. I don’t think that Kovrig and Spavor are in danger of getting a death sentence. The length of time they stay in detention, however, will be affected by the Meng case.