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I was surprised to learn (in the background for the recent protests) that a Hong Kong resident can murder someone in Taiwan and go back to Hong Kong with no consequences (by the way, the murderer is actually imprisoned now in Hong Kong for a few years because he used the victim's money in Hong Kong, but I want to consider a hypothetical case for this question where he took no money).

Since USA has no extradition treaty with Taiwan (though USA has many more extradition treaties than Hong Kong has), could a USA resident do the same thing without penalty? In other words, even with proof sent from Taiwan and a confession, would USA really not be allowed to send the murderer to Taiwan or somehow penalize him? This is hard to believe, so I wonder if there's a special law to deal with this in USA similar to the law being considered in Hong Kong. I have reviewed this similar question for a less serious crime which makes me think the USA state might be important, so assume California.

Also, every extradition treaty I have read is retroactive (meaning crimes before the treaty was signed can cause extradition). Is that usually true? Is the new proposed law in Hong Kong retroactive?

  • A non-American citizen could be deported by political decision; it would be possible to deport him to Taiwan to be arrested. – Tim Lymington Jun 13 '19 at 9:40
  • To be clear, the USA resident is also a USA citizen. Sorry for the confusion. – bobuhito Jun 13 '19 at 9:49
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    You seem to assume that "no extradition"= "no punishment". That is not necessarily true - for example, Germany does not extradite its citizens (except into other EU countries), but German citizens can and do get prosecuted in Germany for crimes committed abroad. I suppose other countries have similar rules. – sleske Jun 13 '19 at 11:56
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The default is that countries are not required to repatriate alleged criminals

It is one of the cardinal provisions of sovereignty that one country cannot "reach into" another country's territory for any reason. However, countries can voluntarily repatriate an alleged criminal subject to their own legal systems allowing this. This can be ad-hoc or through a longer-term extradition treaty.

Even where extradition is allowed, there are common things that will prevent it:

  • Dual criminality - generally, the alleged crime must be a crime in both jurisdictions,
  • Political crimes are usually not subject to extradition
  • Possibility of certain types of punishment - nations without the death penalty will generally not extradite for alleged capital crimes. This can be overcome with appropriate guarantees that such a penalty will not be sought.
  • Jurisdictional issues
  • Own citizens - some countries will not extradite their own citizens notably Austria, Brazil, the Czech Republic, France, Germany, Japan, Norway, the People's Republic of China, the Republic of China (Taiwan), Russia, Saudi Arabia, Switzerland and Syria.
  • Fair trial standards - extradition will usually be refused when a fair trial cannot be expected.
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  • My question is only about the "own citizens" special case of your answer. So, are you saying USA would allow a USA citizen to be extradited to Taiwan (for the murder in my question)? – bobuhito Jun 13 '19 at 14:48
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    @bobuhito It depends on the extradition treaty and the political climate. Extradition treaties are almost always totally reciprocal in actual substance, so if one country doesn’t extradite citizens, the treaty will say that neither country has to extradite citizens. – cpast Jun 14 '19 at 1:38
  • USA does not have an extradition treaty with Taiwan so each case would be ad hoc – Dale M Jun 14 '19 at 1:45
  • @DaleM So, let's say USA would "ad hoc extradite" its own citizen to Taiwan in my hypothetical example. Then, why didn't Hong Kong just "ad hoc extradite" its citizen to Taiwan? I'm hoping you might add two paragraphs to your answer explaining what would happen in USA and what did happen in Hong Kong (highlighting why Hong Kong could not do things the same as USA would). – bobuhito Jun 14 '19 at 2:46
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    @bobuhito Hong Kong could - it chose not to – Dale M Jun 14 '19 at 5:39
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That case with Hong Kong and Taiwan is extremely specific to the relationship among China, Hong Kong and Taiwan.

And neither Hong Kong nor Taiwan really is free to act as a full country on the world stage. Hong Kong is a "special region" of China, desperate to hold on to what remains of their independent legal system; Taiwan is a "region" with which other countries (save a few) have "trade relationships" while allowing China to pretend it's part of them. The degree to which either one of them acts like a "country" is an ongoing game of charades, with one eye always on the mood in Beijing.

Nobody in Hong Kong wants to harbour this guy, but neither do they want to expose themselves needlessly to China's court system, which is notorious as an agency of political whim. If they started shipping people to Taiwan on Taipei's request, they'd immediately get a log list of people that Beijing wants to put on trial (or just jail). So they've adopted a policy of very restrictive extradition: they won't ship their people to China, or anywhere else.

And the fact that it's Taiwan involved, instead of like Australia, makes this a complete powderkeg. I presume that Beijing would claim jurisdiction over criminality in Taiwan, so would be pleased to make a big show trial of this guy in China...but getting witnesses and police to testify in court in China would be a political nightmare.

And any kind of dealing directly with Taiwan, firstly in a way that would seem to recognize it as a country, and secondly on terms more favorable than they've been using with China, would be such an offence to the Beijing government that they'd likely be provoked to just rip up Hong Kong's special agreement. Which, of course, may be in progress anyhow.

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