Switzerland answers some and dodges other questions on its secret China deal
Following Safeguard Defenders investigation of a secret agreement signed by Swiss authorities with the Chinese Ministry of Public Security (MPS), and our publishing of that agreement, Switzerland’s State Secretariat for Migration (SEM) have responded with more verbal acrobatics and misleading statements.
Do Chinese agents have access to the Schengen area?
Yes. In an email to Safeguard Defenders (16 December) SEM said that indeed the Chinese MPS agents are given Schengen visas. Spokesperson Emmanuelle Jaquet von Sury said that Switzerland does not control or supervise the visiting Chinese ‘delegation’ when they are not conducting interviews.
Further, the agreement stipulates that they are there in an unofficial capacity, and that their identities shall be kept secret by the Swiss government. SEM told Safeguard Defenders that “delegations are treated under the same rules as other foreigners who enter Switzerland legally and their movements are not restricted in their free time”.
From this, we can see that MPS agents are free to travel anywhere in the Schengen area, and the need to keep the agents secret would ensure that fellow Schengen and EU states are unaware of their presence in the Schengen area. In a further email to Safeguard Defenders (17 December) SEM added that this clause, that they be classified as unofficial, was made by the Chinese side, readily agreed to by Switzerland. In their answer, they said “This was specified on request of the Chinese side in order to differentiate the experts from Chinese diplomats who officially represent China at the political level.”
Jaquet von Sury added that visits are timed to allow interviews with selected targets and thus the agents are “busy”. This, seemingly, is the only safeguard considered by the Swiss government when inviting agents of an organ known to be part of China’s intelligence apparatus. She added that the Swiss authorities plan these visits, but the agreement’s appendix actually specifies that China and Switzerland together decide on the details and not the Swiss side alone.
The MPS has been complicit in gross human rights abuses that, according to the Rome Statute, amounts to crimes against humanity. It is also part of China’s intelligence apparatus, with work duties not limited to policing, but maintaining national security and carrying out counter espionage.
Are the interviews supervised?
Yes, sort of. SEM said that MPS interviews with suspected Chinese nationals in Switzerland were conducted under supervision, based on their official statement and in their emailed response to Safeguard Defenders. When pressed on this specific issue, SEM spokesperson told Safeguard Defenders that supervision was limited to having the interviews organized by SEM and carried out in the presence of SEM officials. SEM does not require the presence of their own interpreters during these interviews. Hence, MPS agents’ interview the targets while, according to SEM, SEM officials are physically present at the facility but without understanding what is being discussed. The agreement itself does not include any clause relating to such supervision, nor any limitations as to where such interviews can be carried out.
If it’s a technical agreement, why hasn’t it been published?
In their follow up communication with Safeguard Defenders, SEM added, when asked why other agreements are made public, but the one with China’s police, is not: “We understand that you are unfamiliar with the Swiss legislation in this field and therefore seem to be confused by a nomenclature of agreements which in essence is only relevant in legal terms. The technical arrangement with China is listed on our internet site under “Readmission Agreements”. This is because we do not have a specific category for “Technical Arrangements””.
The fact that it is a technical arrangement--entered into under the Foreign Nationals and Integration Act and the Asylum Act (article 100a)--has so far been the official reasoning behind why the agreement was not published.
This, of course, does not answer the question, why is the technical agreement with India public, but the technical agreement with China is not? SEM, in their follow up, said the reason for this was that “The agreement with India is also a technical arrangement but it was approved by the Federal Council for legal reasons and is subject to publication, unlike the technical arrangement concluded with China. The latter was approved by the Head of the Federal Department of Justice and Police.” It did not explain why two entirely procedures for approval had been used.
An earlier statement by SEM, in September, perhaps summed it up best when it said it wasn’t made public “because it didn’t need to be”.
In an emailed answer to Safeguard Defenders, and in response to questions from Agence France-Presse (AFP), SEM has claimed that the agreement is not secret, only that it has not been presented or made available publicly. This is disingenuous. If the agreement is not made public, no one can know the actual content of the agreement, and if so, how can they be expected to ask for it? Since it is listed (but not published) under readmission agreements, which are rather innocuous in nature, why would anyone suspect that this agreement be so vastly different, and pose such significant and serious questions?
Why have this agreement in the first place?
SEM has yet to explain why the agreement was sought in the first place. Ministry spokesperson Reto Kormann told AFP “that ‘readmission agreements’ were needed because “most states are only willing to take back their own citizens if they can verify their identity”.
However, it claims in its public statement that there is no rush to renew the agreement, because the current Foreign Nationals and Integration Act allows the SEM to invite such assistance to ascertain people’s identities without having any ‘readmission agreement’ or ‘technical agreement’. If that is so, why was the deal, which is singular in nature because it is not reciprocal unlike most other agreements, needed in the first place?
Also, the law referred to actually does not say that experts can be invited to perform interviews, but rather that they may send “documentation advisors”, and these shall “provide support in checking documents”.
Readmission agreements are generally simple and straight forward mechanisms for two comparable government bodies to seek and exchange information about a suspected national of the other country, and most of it takes place through interdepartmental communication online, and has nothing to do with inviting delegations to Switzerland to perform ‘interviews’ and spend time in Switzerland.
The agreement with China does not do any of this. It is simply a mechanism to allow MPS agents to come to Switzerland, unofficially. If such visits are made under the Foreign Nationals and Integration Act they would, we would assume, be official in nature? If yes, that would answer very clearly as to the real reason for the agreement – the need to maintain the visiting agents’ identities secret. The fact that the Chinese side requested this particular clause when negotiating the agreement would strengthen this. This would also help understand why a different process was used to approve this agreement, compared to others, as a way to ensure it remained out of public view.
Within days of the official statement from SEM, Anja Klug, head of the UNHCR office in Switzerland, in an interview, appeared to came to SEM’s defence, saying: “These reports appear to be based on a misunderstanding. This is about clarifying the identity of alleged Chinese citizens who have to leave Switzerland after a negative asylum decision.”
Safeguard Defenders has never alleged that the purpose of the agreement was to allow the MPS to “hunt for asylum seekers”, but rather that since the MPS are involved in worldwide ‘involuntary returns’ through coercion, there is a risk, since they’re not supervised, that they may perform such actions while in Switzerland, unbeknownst to the Swiss government.
And why are there no human rights references?
SEM has also failed to answer why the agreement with China does not include any references to relevant international law, existing legal obligations, protections for refugees or human rights protections. Such references are common in these types of agreements. Their exclusion does not lessen their validity, but the fact that they are not mentioned are curious nonetheless. Can we assume, as with the need to keep the visits unofficial, that this was also at the request of the Chinese side? We assume it was not from the Swiss side, as such references are included in all other similar agreements reviewed by Safeguard Defenders.
SEM has demonstrated a lack of knowledge about the roles of the MPS, Operation FoxHunt (China's programme to return fugitives abroad) or China’s campaign to expand intelligence operations across Europe. Was it incompetence or ignorance that led to it being tricked into signing an agreement – entirely on China’s terms - without realizing the potential implications? The fact that any western government would sign such an agreement is shocking enough, but to do so without protections against significant risks – even if they may at this point be theoretical – is astounding.