China’s Anti-Corruption Move: Human Rights and Extraterritorial Enforcement

By Travis Horlacher for

China’s corruption crackdown has been grabbing international news headlines since Chinese President Xi Jinping directed the Central Commission for Discipline Inspection (CCDI) to begin its anti-corruption campaign as he took executive authority in December 2012. In response to domestic and international pressure, combined with solid economic reasons, to reign in the rampant corruption, China has had many successes in its anticorruption push. China, however, faces difficulties punishing former corrupt officials who have fled to other countries because of legal and human rights concerns about China’s penal code, political motives, and judiciary. These conditions provide the context for opening an international dialogue about reform of China’s institutions to address human rights issues while helping control China’s corruption problems.

Western investors and their governments have been pressuring China to address its corruption problem because they point out it has become the primary barrier to successful investments in Chinese industries. The hidden costs of Chinese corruption have been difficult to manage and often illegal for Western investors to deal with. This has meant that investments are increasingly limited to only the highest return projects. China’s leadership is hoping anti-corruption policies will change the calculation by foreign investors to lessen potential investment decline.

This initiative comes as China faces the new reality of lower economic growth expectations than the country has experienced in several decades. Questions are rising about whether China’s economy will stagnate as other investment driven growth economies have. China faces a severe domestic consumption shortage which can be addressed partly by limiting graft of public officials, thus allowing more dollars of investment be used to raise domestic wages. With wage growth, domestic consumption will expand. As China continues to work toward its transition to being a fully developed economy its economic interests are driving its strong anti-corruption policies. Understanding these economic reasons for China’s recent policies is important for assessing the sincerity of the effort and helping make legal judgment calls.

The legal framework used to prosecute corruption by officials in China is deeply tied to the Communist Party, as are most operations of the government. When the CCDI identifies potential violations by a Communist Party member, it hands the investigation over to the Party. This is similar to congressional ethics committees’ taking over investigations of legislative members or employees in the United States, but with major differences in how the investigations are carried out.

The investigation tactics used by the Communist Party are widely criticized by legal and human rights observers in the West. For example, some suspects have been detained for months without legal counsel. At the conclusion of a Party investigation, suspects typically either get a warning, are fired from their senior positions to remove much of their power to continue being corrupt or, most seriously, can be expelled from the Party and recommended by the CCDI for prosecution in the civil judiciary. This system largely mirrors the process by the legislative ethics committees in the U.S. government but is typically more severe.

When an investigation by the Party leads to expulsion and trial, additional concerns are raised by the notorious lack of independence of the Chinese judiciary and its inability to conduct a fair trial under these conditions. Trial is often closed and conviction rates run at 99 per cent for prosecutions recommended by the Party. Chinese law allows for punishment as serious as the death penalty for a conviction of corruption, raising further concerns by the international community.

As high-profile cases of corruption receive death sentences for corruption, the practice attracts widespread condemnation from human rights advocates. The international norm outlined in the United Nations Economic and Social Council resolution 1984/50 of 25 May 1984 specifies death sentences should only be issued for the “most serious crimes,” identified as intentional crimes with lethal or extremely grave consequences. Notably, the choice of the words “lethal” and “grave” characterize causing death. China’s penal code allowing death sentences for white collar crimes has been used as the primary deterrent against corruption throughout China’s history.

Today, the use of death sentences limits China’s ability to work with other governments to prosecute corruption and prevents other countries from extraditing China’s corrupt officials who have fled to their borders. China’s extradition limitations, preventing the government from successfully punishing corrupt former officials is a major obstacle for the Chinese in their effort to reign in the corruption. This reality has prompted the Chinese government’s recent “Fox Hunt” campaign which works with foreign governments to seize assets obtained by corrupt former officials in other countries and, when possible, to repatriate the corrupt former officials and/or the seized assets.

Despite the problems for repatriation of corrupt officials, the Chinese government has had some success in the past few months working with New Zealand and Australian officials on “Fox Hunt” operations to confiscate assets in those countries which were acquired with wealth from official corruption in China. These successes in two of the most accessible and desirable countries for flight by corrupt Chinese officials will help China reign in some of the corruption plaguing its development goals. Without cooperation from Canada, the U.S., and other Western governments, however, the capacity for corrupt officials to successfully flee and avoid punishment will continue to limit the Chinese government’s success in eliminating its corruption problem.

Western governments have been pressuring the Chinese administration to address its corruption problem and China returns with calls for other countries to work with them in their investigations. Hesitations persist for Western governments because the Chinese government has been known to use corruption trials and executions for political reasons, triggering outcries by international legal and human rights watchers.

Today, however, the Chinese government’s push to address the country’s corruption problem serves the government as much as it does the potential international investors. So far as corruption investigations are legitimate, the government should be able to produce evidence of due diligence that can ease the concerns of Western officials. Under these conditions, it is reasonable to expect news of additional cooperation between Western and Chinese authorities.

As China has continued success at building institutions to address the structural corruption in its government, the need for the use of capital punishment as a deterrent will diminish while the need for international support will increase. In this climate, legal and human rights advocates should pursue a dialogue to bring China’s penal code and civil justice system in line with international norms. By tying Chinese reforms to greater international cooperation in Chinese legal proceedings, the reward could be enough to persuade China’s leadership to pursue desired reforms.

Travis Horlacher is a is a JD Candidate, Class of 2016. Horlacher’s entry to the GlobalJusticeBlog is part of an assignment for the course International Criminal Law, taught by Professor Wayne McCormack.