The Chinese government makes it really hard to believe that its detention – and now arrest – of Canadians Michael Kovrig and Michael Spavor is anything but politically motivated. It adamantly protests the charge that Kovrig and Spavor’s detention is somehow related to the troubles Huawei Technologies is facing in North America; it denies that this is tit-for-tat diplomacy.
But it’s actions reflect otherwise. The initial detention of Kovrig and Spavor on December 10, 2018, came only days after Meng Wanzhou, Huawei’s Chief Financial Officer and the founder’s daughter, was arrested by Canadian authorities in preparation for extradition to the United States. And now, the formal arrest of the two Canadians – after 5 months in detention without access to a lawyer – came only hours after U.S. President Donald Trump signed an executive order prohibiting U.S. telecom companies from purchasing foreign equipment from companies deemed a national security threat and the United States Commerce Department officially listing Huawei as such a threat. Not only does this lock Huawei out of the U.S. market, by being listed as a security threat, Huawei will also no longer be able to purchase key component parts from U.S. tech companies such as Intel, Qualcom, Broadcom and Google; parts that are integral to the future success of its business.
On Thursday morning, less than 12 hours after the U.S. government issued its announcements, the Chinese government announced that Kovrig and Spavor had been formally arrested on charges of stealing state secrets, Article 111 under China’s Criminal Law (translation courtesy of China Law Translate). Kovrig is suspected of “gathering state secrets for transmission outside of China” and Spavor is suspect of “stealing and providing state secrets for transmission outside China.” Although the prosecutors are required to issue an arrest warrant upon arrest, it is unclear if this was done or to whom it was given (see Article 93 of China’s Criminal Procedure Law (CPL), Art. 93 – translation courtesy of China Law Translate). Professor Maggie Lewis does a great analysis of what the world can expect at this stage of the case.
But here is the rub that makes it increasingly hard to believe that the Chinese government’s actions against Kovrig and Spavor are not retaliation for what is happening to Huawei. The Chinese government decided to arrest Kovrig and Spavor one month earlier than they had to. Because Kovrig and Spavor were being detained under Residential Surveillance at a Designated Location (RSDL), under Chinese Criminal Procedure Law, the public security authorities had up to six months – or until around June 10, 2019 – before they had to request the official arrest of the two (CPL Art. 79). Once the prosecutors formally arrest the suspect, the time frame to investigate becomes much tighter. As a result, it is a rare occurrence for China’s public security bureaus not to take full advantage of these six months. But it appears that announcing the arrest of these two only hours after the U.S. declared Huawei a threat to national security was more important.
This isn’t to say that the U.S. is innocent of gaming the Huawei situation as a way to gain leverage against China in the current trade battle. But what is different here is that Chinese government is dealing with two lives; two people who could end up in a prison for a very long time basically as pawns in this game. Trade disputes can be settled. But the criminal justice system is a body on to itself. And once it is engaged, especially in China, it’s hard to turn back.