Canada, China, the US and the Rule of Law – A Postscript

Feb 14, 2019

It will be recalled that on 1 December, Meng Wanzhou, chief financial officer of Huwaei Technologies, was arrested at Vancouver airport by Canadian authorities at the request of US prosecutors seeking her extradition to face charges of breaching sanctions imposed by President Donald Trump on Iran.I argued earlier that the mantra of ‘the rule of law must prevail’ had been instrumentalised as part of US lawfare against China and Ottawa had ignored the need for a carefully considered policy that located the best settling point for Canada between legal processes, geopolitical interests and bilateral relations with the US and China.

This postscript reinforces the basic argument of the earlier article with additional examples of how both Canada and the US are less than scrupulous in their adherence to the rule of law. PM Justin Trudeau is currently embroiled in a scandal involving SNC-Lavalin, a Quebec-based giant engineering and construction firm. He appears caught between appalling judgment at best and criminal obstruction of justice at worst.

The company has form, having previously been caught up in bribery scandals over deals in Bangladesh (the Padma Bridge project) and India (hydroelectric power stations in Kerala).

In 2011 SNC-Lavalin was alleged to have paid C$22.5mn in consulting fees to the CEO of McGill University’s Health Centre before being awarded a $1.3bn contract related to the hospital’s construction. Both CEOs resigned. On 1 February former SNC-Lavalin CEO, Pierre Duhaime, pleaded guilty to one charge of bribery in and was sentenced to 20 months house arrest.

In 2016 SNC-Lavalin signed a compliance agreement with Elections Canada, admitting to funnelling tens of thousands of dollars over several years, mainly to the Liberal Party, through its employees.

In 2015 the RCMP brought charges against SNC-Lavalin over C$48mn bribery of officials in Muammar Gaddafi’s Libya and defrauding the people of Libya of C$130mn. If convicted, the company could be blocked from federal government and international contracts for a decade.

Last year the government quietly inserted something called ‘deferred prosecution agreement’ (DPA), that resembles a plea bargain, into the omnibus budget bill. In return for admission of wrongdoing, promises not do it again, and fines, a company and its executives can avoid criminal prosecution. SNC-Lavalin held 14 meetings in the PMO as part of its lobbying campaign seeking a DPA bill. But the final decision on whether to pursue a DPA with a company under investigation rests with prosecutors, not the executive.

Last week Canadian media reported that officials in the Prime Minister’s Office (PMO) had pressured Attorney General Jody Wilson-Raybould to strike a mediation deal instead of pursuing criminal charges against SNC-Lavalin. When she stood firm, Wilson-Raybould was shunted Veterans’ Affairs. This week Federal Ethics Commissioner Mario Dion opened a probe into the affair. Wilson-Raybould herself has refused comment on the affair, citing solicitor-client privilege. It is a safe bet that such privilege would not debar her from issuing a firm denial.

The scandal could prove politically devastating in election year, especially as Trudeau’s responses so far give the strong impression that he plenty to hide in the affair. Meanwhile, as an editorial in The National Post put it: ‘You can almost hear the laughter in Beijing’.

Still, Canadian departures from legal propriety are less frequent and egregious than its neighbour’s. When its own interests are involved, the US is disdainful rather than respectful of international law. Absent adverse findings of Iranian noncompliance, reimposed US direct sanctions on Iran and secondary extraterritorial sanctions on other countries are in breach of UN Security Council Resolution 2231 that endorsed the multilaterally negotiated nuclear deal with Iran, called on all countries to support it, and prohibited measures to undermine it. On 3 October, the International Court of Justice rebuked the US for the reimposition of sanctions on Iran and ordered Washington to lift sanctions linked to humanitarian trade, food, medicine and civil aviation.

As the ads say: But wait, there’s more! Established by an international treaty signed in Rome in 1998 and in operation since 2002, the International Criminal Court (ICC) has been joined by 123 countries. A preliminary investigation by the ICC in 2016 concluded that US forces may have committed torture at CIA-operated secret detention sites in Afghanistan and sought permission from the ICC judges to launch formal investigations. On 11 September 2018, US National Security Adviser John Bolton declared that the ‘illegitimate’ ICC ‘is dead to us’. He added that if it decided to prosecute US military service personnel, the US would impose sanctions on the ICC and its personnel. Bolton was equally scornful of moves to bring Israel before the ICC for alleged human rights abuses in the Gaza and occupied West Bank. ICC judges and prosecutors would be barred from entering the US, prosecuted in the US criminal justice system, their funds in the US would be targeted, and the same fate would await any country or company that assists an ICC investigation of Americans.

On 28 January, Christoph Flügge, a German judge on the ICC, resigned in protest at US interference with the Court’s operations, citing Bolton’s threats. ‘The American threats against international judges clearly show the new political climate. It is shocking. I had never heard such a threat’, he said. ICC judges had been ‘stunned’ at the US ‘heavy artillery’: ‘It is consistent with the new American line: “We are No 1 and we stand above the law’”. Flügge was a senior judge, having served as a permanent judge on the International Criminal Tribunal for the Former Yugoslavia since 2008.

Canada’s ambassador to China John McCallum, a former politician, blurted out the truth that Meng’s extradition case was infused with politics from the start, and for this ‘gaffe’ he was fired. Meanwhile Australia’s own Kafkasque trial in the East Timor bugging case continues in secrecy in Canberra.

While on the subject of double standards, the Italian deputy PM met French ‘yellow-vest’ protesters near Paris on 5 February. An angry France recalled its ambassador. But the Europeans had no compunction about Western leaders and officials meeting and cheering opposition protesters in Kiev in 2014…

And we Westerners presume to lecture China on the rule of law and wonder why its is outraged.

Emeritus Professor Ramesh Thakur, Crawford School of Public Policy, 
The Australian National University 

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