International Criminal law: The US perspective on China and Russia’s legal systems and the ongoing need for co-operation

What is the Rule of Law?

The United Nations Secretary-General has described the rule of law as “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.”

In a recent speech at the Center for Strategic and International Studies Event on Defending Rule of Law Norms, Deputy Attorney General of the United States Department of Justice General Rod J. Rosenstein delivered a speech outlining  key differences in legal systems around the world in the context of the rule of law, as well as the importance of effective international cooperation despite these differences.


Defending Rule of Law Norms – the US perspective on China and Russia

Deputy Attorney General Rosenstein stated that “the goal of the rule of law is for the people who exercise government powers to act in accordance with neutral principles and fair processes, while respecting individual rights.”

It was further explained that many countries do not share the United States’ vision of the importance of the rule of law, and that “as we seek to build bridges with foreign adversaries, it is important for us to understand the different visions that underlay their legal systems.”

A number of examples drawn from his speech are provided to illustrate the different functioning of legal systems around the world as seen by the US.


How does the US define itself against the Chinese and Russian legal system?

While in the United States justice is administered without answering to the Government, the Chinese Communist Party sits above the government, controlling the appointment of judges and even dictating rulings in some instances, to further Communist Party goals.

There are also stark contrasts in court practices. While the U.S. operates under a presumption of innocence, the Chinese system effectively presumes guilt when a defendant is charged with a crime.

“Moreover, the presumption is all but irrebuttable.  Chinese judges receive the government’s evidence before trial, without any opportunity for comment or cross-examination by the defense.  Live testimony is offered only rarely.  There is little to no opportunity to impeach witnesses.  Prosecutors rarely lose a case,” said Deputy Attorney General Rosenstein.

There are also substantial differences in criminal arrest and detention practices between the U.S. and China. For example,  Chinese law includes provisions for extrajudicial pretrial detention, such as a suspect being held at an undisclosed location and denied access to legal counsel and family for as long as six months without charges.

The approach of countries operating in this way is described as “rule through law”, with the law acting as “an instrument of state power for rulers to maintain control”, which can also have significant damaging international implications. An example provided is of China detaining foreign citizens without any valid reason, as a means of retaliating or inflicting political pressure on other countries.

According to Rosenstein,  China, in addition to Russia and other authoritarian nations, “overtly shield their nationals from the fair administration of justice”, for example by refusing to provide mutual legal assistance in response to justified requests by the United States and other countries for evidence for criminal investigations and prosecutions.

Furthermore when Chinese citizens who commit crimes in other countries remain in China, China neither extradites them nor consistently prosecutes them for offenses against foreign victims. This effectively provides safe havens for criminals, and is inconsistent with the rule of law.

“In contrast, the United States extradites citizens, as well as foreign nationals, when the law warrants it … we also cooperate with other countries’ requests for mutual legal assistance and extradition in their investigations and prosecutions,” said Deputy Attorney General Rosenstein.

Some countries also seek to advance their ends by changing global criminal justice norms.  For instance, Russia and China seek to replace the Budapest Convention on Cybercrime, which is approved by the United States and more than 60 other nations. Russia seeks to advance a new convention that would enhance the ability of regimes to control communication, limit information-sharing between nations, and impede efforts to investigate cybercrime.


The need for international co-operation

As transnational crime increases in scope and complexity, we increasingly face cross-border criminal investigations with defendants, evidence, and witnesses that span the globe. Countries depend heavily on expeditious international cooperation to build cases and to locate, arrest, and extradite fugitives to hold them to account for their crimes.  Providing safe havens for criminals is inconsistent with the rule of law.

Deputy Attorney General Rosenstein states that despite major differences in legal systems around the world, international cooperation is still essential.

“I want to emphasize that the people of China, Russia, and other nations that do not share our respect for individual rights are not our enemies.  It is good for us to seek common ground with their leaders,” said Rosenstein.

“We work regularly with law enforcement partners in China, Russia, and other rival nations to advance our interests, but always with a clear-eyed understanding of our responsibility to serve as vigilant custodians of the rule of law.”

Nyman Gibson Miralis provides expert advice and representation in complex international criminal law cases.

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