Last week Matthew wrote how hypocritical Britain appeared when at virtually the same time Prime Minister David Cameron was telling leaders in Southeast Asia to take more vigorous action against corruption, his government was asking U.K. companies if Britain’s anti-bribery law was too harsh.  As Matthew explained, the contradiction was likely more apparent than real, probably the result of poor timing rather than any real difference between the government’s policy towards bribery by British and non-British firms.  Nonetheless, even the possibility of differing standards offered much ammunition to critics of the Cameron government’s aggressive international anticorruption campaign.

Like Prime Minister Cameron, U.S. President Barack Obama has been vocal in urging other governments to tackle corruption, lecturing the African Union during his recent visit on the evils of rampant bribery and telling its members to emulate the American example with its “strong laws” against bribery that “we actually enforce.” And like Britain, sooner or later the United States will face the charge that its international anticorruption rhetoric is hypocritical.  The difference will be that whereas the charges laid against the British government arose from a public relations faux pas, in the American case the charges will stem from a genuine contradiction, that between its human rights policy and its commitment to the U.N. Convention Against Corruption.

How will it happen?

When a country with a poor human rights record addresses a request for extradition on corruption grounds to the U.S.  Extradition is the process by which one country requests a second to return a fugitive.  A country requesting the U.S. extradite an individual must furnish documents describing the charge and outlining the facts supporting it. If a federal court finds the documents do, the Secretary of State then orders the individual be turned over — although the Secretary has the discretion to refuse to surrender the fugitive.

Extradition assumes the requesting state’s judicial system complies with basic human rights standards.  The dilemma arises when this condition is not met – when the requesting government has trumped up charges to nab a political opponent or a critic of the regime, or when the requesting state’s courts cannot be trusted to adjudicate the case accurately, or when the conditions under which a convicted defendant would be imprisoned are inhumane.  When these circumstances are present, should the Secretary of State decline to order the extradition and face the diplomatic consequences? Or approve the request and risk that the individual’s rights to fair and humane treatment will be violated?

Two recent news stories show the U.S. is already close to confronting this dilemma.  An August 3, 2015, New York Times story reports that the People’s Republic of China is pushing the U.S. to return Ling Wancheng, a wealthy Chinese whose brother was, until corruption charges brought him down, a senior government official.  Although the Times story doesn’t say why Mr. Ling’s return is sought, it could be to face corruption charges.  The second story is a report that Zimbabwe is, or shortly will, demand that the American dentist who killed a famous lion be extradited to face illegal hunting charges.  Although not a corruption case, the request starkly illustrates the dilemma Secretary Kerry will face if a request is made.  Conditions in Zimbabwe prisons are notorious, and whatever the hunter’s guilt, were the American government to extradite him, he would face life-threatening conditions were he imprisoned in Zimbabwe.

I predict that when faced with the dilemma of extraditing an individual suspected of corruption to a country with a poor human rights record, the U.S. government will choose human rights over fidelity to its anticorruption policy.  At least I hope it will.  It would surely threaten the present consensus within the United States on the fight against corruption if some American entrepreneur were convicted on a trumped up claim of corruption in a foreign court or, worse, suffered slow death in the appalling conditions present in too many foreign prisons.  On the other hand, I don’t like the idea that opponents of the U.S. anticorruption campaign will be able to make hay out of a refusal, particularly since those making the most hay will likely be those with the most to fear if the campaign succeeds.

Fortunately, there are steps the U.S. can take to avoid an unpalatable choice if a Zimbabwe or China asks that an individual be extradited on corruption charges.   Easiest would be to try the individual under American law for the same or a closely-related offense.  If China were to seek an American businessperson for allegedly bribing a Chinese official, the individual could also be tried for violating the Foreign Corrupt Practices Act.  Were the U.S. to do so, international law would not require it to then extradite the person to China.

With many extradition requests, however, the conduct alleged will not constitute a crime under U.S. law.  If, as the Times story hints, Mr. Ling had something to do with his brother’s corrupt dealings, it is unlikely what he did would be criminal under U.S. law. In such cases, the U.S. could look to an option contemplated by 44(12) of UNCAC.  That article provides that a country can meet its UNCAC obligation to extradite corruption suspects by extraditing the individual on the condition that the individual serve any resulting sentence in its prisons.  Were such a provision in the U.S.-Zimbabwe extradition treaty, the accused hunter would be sent to Zimbabwe for trial but, if found guilty, serve his sentence in the United States.

Another option the U.S. could explore would be to amend its law to allow it to both try and punish an individual accused of corruption in another country, thus doing away with extradition altogether.  Countries where extradition of nationals is barred by the constitution often have such provisions in their domestic law.

All these options would require advance planning by U.S. policymakers, and a good deal of work as well.  Renegotiating each of the 100 plus bilateral extradition treaties now in force to add a conditional extradition article would certainly take a heroic effort by American diplomats, but even the easier path of amending U.S. law to give the President authority to enter into conditional extradition agreements on an ad hoc basis would require a significant amount of legal, political, and diplomatic groundwork.  So too would amending U.S. law to authorize the trial of an individual it refused to extradite.

But with all the attention anticorruption policy now commands in U.S. government circles, and the damage that a refusal to extradite even on well-founded human rights grounds would create, aren’t such measures worth pursing?  Shouldn’t U.S. policymakers start thinking now about how to handle the inevitable conflict between human rights protection and anticorruption enforcement?