Hong Kong's recent decision in a court case on state immunity has drawn little discussion of its implications for human rights protection. The implications were not obvious, as the case involved an American vulture fund suing the Democratic Republic of Congo to collect a sovereign debt. Legally, however, the case governs all claims of immunity made in Hong Kong courts, including those made by a serving or former head of state.
Holding that our immunity law must align with mainland China's, the decision sends a message to the world that deposed dictators and their assets can find sanctuary in Hong Kong, free from the accountability mechanisms of international justice. It is no coincidence that the word 'immunity' is but a letter shy of the word 'impunity'.
The idea of Hong Kong harbouring past and present leaders wanted for international crimes is by no means fanciful. Less than a month after the Congo judgment, President Hu Jintao welcomed Sudan's president, Omar al-Bashir, in Beijing, notwithstanding the warrants for the latter's arrest issued by the International Criminal Court (ICC) and international criticism of the visit.
Bashir is wanted by the ICC for alleged war crimes relating to atrocities in Darfur. China, however, is not a signatory to the Rome Statute that established the international court.
Zimbabwe's president, Robert Mugabe, and his family are regular visitors to Hong Kong, partly because his daughter was a student in a local university. The widely reported alleged assaults on journalists by Mugabe's wife and security guards in 2009, and the subsequent controversy over the non-prosecution of these individuals owing to diplomatic immunity and other reasons, did not deter the Mugabes from returning. If regime change were to occur in Zimbabwe some day, international attention would certainly turn to Hong Kong.
There has been increased public attention to politically exposed people and their financial dealings, especially with the coming into force of the United Nations Convention Against Corruption. Parties to the convention are bound not only to take steps to prevent corruption but also to provide assistance and co-operation in the recovery of stolen assets.
When corrupt regimes and leaders fall, the trend is to see the incoming authority take legal action to recover the ill-gotten gains of the old regime. Most recently, the fall of the Tunisian and Egyptian leaders was followed almost immediately by asset freezes of property owned by them and their families.
