Letter to New Zealand Justice Minister Kris Faafoi

April 21, 2022

21 April 2022

The Right Honourable Jacinda Ardern MP, Prime Minister

The Honourable Nanaia Mahuta MP, Foreign Minister

The Honourable Kris Faafoi, Minister of Justice

We, members of the Inter-Parliamentary Alliance on China, write to raise concern about the planned extradition of Kyung Yup Kim. Without commenting on the nature of the case itself, we believe that this decision has wider implications for the security and wellbeing of diasporic groups suffering persecution by the People’s Republic of China (PRC).

The case seems to turn on the credibility of the PRC’s diplomatic assurances regarding treatment of prisoners in custody.

In the context of the PRC, diplomatic assurances have consistently proven empty. For example, Canadian citizens Michael Kovrig and Michael Spavor were incarcerated by the PRC, subjected to sleep deprivation and prolonged solitary confinement. No Canadian consular official was permitted to visit them for ten consecutive months, in violation of PRC agreements with Canada. Similarly, Australia was given diplomatic assurances that access would be provided to Yang Hengjun, to enable close monitoring after he was extradited. No such monitoring was allowed. Yang Hengjun was held for six months at a secret location where he claims he was tortured.

There is no reliable way to monitor whether or not a person extradited has or has not been subject to torture after diplomatic assurances have been given, and such assurances carry no weight in law. It is noteworthy that diplomatic assurances have repeatedly failed to protect people from torture. The widespread and well-documented practice of torture in custody throughout the PRC system, together with the absence of any reliable way of monitoring treatment ought to preclude extradition to China.

It is on this basis, many countries have suspended their extradition agreements with China. Indeed New Zealand rightly suspended its arrangement with Hong Kong in 2020. As then Foreign Minister Winston Peters argued “New Zealand can no longer trust that Hong Kong’s criminal justice system is sufficiently independent from China,”. The implication here is that the PRC’s criminal justice system itself is unreliable, and its extension to Hong Kong is compromising. We strongly agree. The PRC criminal justice system does not respect the rule of law, and is widely known as a forum for gross human rights violations.

As pointed out explicitly by the UN Committee Against Torture in its General Comment No.4 on the implementation of Article 3, Paragraph. 20, and reiterated repeatedly by UN Human Rights Council Mandate Holders:

“The prohibition of refoulement is absolute and non-derogable under international human rights and refugee law. States are obliged not to remove any individual from their territory when there are substantial grounds for believing that the person could be subjected to serious human rights violations in the State of destination, including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

“Any derogation from the principle of non-refoulement would constitute a severe violation of international human rights and refugee law, regardless of the existence of a bilateral agreement on extradition, or diplomatic assurances.” (Emphasis added)

It is beyond doubt that the PRC commits gross, flagrant or mass human rights abuses as the persecution of Uyghurs, together with the consistent, long-term and ongoing abuse of prisoners in custody demonstrates.

Against this background, allowing extradition to China risks violating non-derogable obligations against refoulement, and would send a chilling signal to diaspora groups living in fear of persecution by the Chinese State.

On these grounds, we urge you not to agree to send anybody to be subjected to the infamies of the PRC’s judicial and penal system. To do otherwise would set a dangerous precedent whereby the guarantees of the Chinese government are taken at face value, putting the wellbeing of our citizens and residents in jeopardy – a precedent that may have far reaching and worrying implications for human rights beyond New Zealand’s borders.

As legislators from democratic countries across the world, we have taken great interest in this case and stand ready to advocate on their behalf.

Yours sincerely,

Cătălin Teniță, Member of the Romanian Chamber of Deputies

Rt Hon Sir Iain Duncan Smith, Member of the UK House of Commons

Žygimantas Pavilionis MP, Member of the Lithuanian Parliament

Pavel Fischer, Member of the Czech Senate

André Gattolin, ⁩Member of the French Senate

Barry Ward, Member of the Irish Seanad

Tom Van der Lee, Member of the Dutch House of Representatives

Reinhard Bütikofer, Member of European Parliament

Samuel Cogolati, Member of the Belgian Chamber of Representatives

Uffe Elbæk, Member of the Danish Folketing

Fabian Molina, Member of the Swiss National Council

Miriam Lexmann, Member of the European Parliament

Simon O’Connor, Member of the New Zealand Parliament

Baroness (Helena) Kennedy, Member of the UK House of Lords

James Paterson, Member of the Australian Senate

Peter Khalil MP, Member of the Australian House of Representatives

Georges Dallemagne, Member of the Belgian House of Representatives

Eric Abetz, Member of the Australian Senate

Alex Antic, Member of the Australian Senate

David Josefsson, Member of Swedish Parliament

Frédérique Dumas, Member of the National Assembly of France


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