The controversy in Hong Kong over an extradition treaty with mainland China is not really about the murder suspect in the present case but about the possibility that opposition protestors may be more easily whisked away by the government in Beijing, chilling their demands and actions. These is good reason to fear that it would be used to quell political protest as international practices have slowly eroded the “political offense exception” that protects individuals from the oppression they are fighting. The erosion of the exception in the wake of the international search for war criminals is at first understandable and the relative success of prosecutions in the international war crimes courts are an important part of post-war justice. But when the search for justice against illiberal rebels ensnares those fighting for democracy against authoritarianism, it is not only justice that is undermined but the very premise of liberty in the international system. As Chinese authoritarianism slowly encloses the space for Hong Kong’s democracy protesters, the more basic question must be asked, what is extradition good for?
In these extradition arrangements, there is a clear problem with the type of justice meted out in the requesting country. There was once an assumption that extradition arrangements arose between countries that recognized not only an equivalent law (murder, for example) but shared some deeper agreement on how justice operated.
Extradition to non-democracies raises troubling questions for the international practices of criminal prosecution, as well as the standards for substantive rather than merely procedural justice. The idea that all requesting countries will rule fairly and punish proportional to the harboring state can no longer be assumed.
Extradition of suspected murderers to the United States have been stopped, for example, because the the harboring state does not accept the US death penalty as an acceptable outcome of the judicial process. Yet extraditions from the global North to autocratic states with weak and openly biased judiciaries endangers the rights of the accused, undermines due process, and risks wholly undermining the political exception that protects individuals fighting tyranny.
These extraditions are being executed so that migration-weary countries, like the United States, may “purge” and “cleanse” their immigration rolls of undesirables. In an age of public panic over enemy aliens, foreigners are always suspect and suspect foreigners are always guilty. This purge of immigration rolls is the complementary action to the indefinite detention of enemy combatants who may not seek trial in the United States because the government lacks the confidence that its judicial system can deliver fair judgement. In this thread, I consider how extradition and other forms of “state migration” represent an enclosure of the political that attempt to curtail dissent and rebellion in favor of the status quo through increasingly automatic processes of sovereign power. I suspect this tension is not new but instead has roots in the anti-Jacobin policies of seventeenth and eighteenth century England and in the formation of modern policing as a response to the “phantom terror” of post-revolutionary Europe in the nineteenth century.