China thinks it can arbitrarily detain anyone. It is time for change

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Originally published by The Guardian on January 4, 2019 

Canada’s foreign minister, Chrystia Freeland, has called China’s detention of Canadian citizens Michael Kovrig and Michael Spavor a “worrying precedent” but for many China watchers it is all too familiar.

It reminds us of the detentions of other foreign citizens, such as Canadian Kevin Garratt, Briton Peter Humphrey, Sweden’s Gui Minhai, or Taiwanese Lee Ming-che, and that over the years China has institutionalised arbitrary and secret detention affecting innumerable Chinese citizens, and with little international consequence.

China feels emboldened to place literally anyone under arbitrary and secret detention, regardless of citizenship. It is now long overdue for the world to stand up.

While Kovrig and Spavor have been granted consular access, it is reportedly limited to one visit a month. Consular access, like access to a lawyer, is a procedural safeguard against abuse in custody. In China, where abuse in custody, especially in the first few weeks of detention, is well documented, the importance of consular or legal access cannot be over emphasised. There are reports Kovrig is being denied access to a lawyer.

China routinely denies such fundamental rights through its system for arbitrary and secret detention.

This includes residential surveillance at a designated location (RSDL), an abusive provision within China’s 2012 Criminal Procedure Law, and the system under which China is likely to hold Kovrig and Spavor.

They are being held at undisclosed locations, typical of RSDL, and based on past cases we know these are not ad hoc “black jails” but custom built or repurposed facilities institutionalised under the Criminal Procedure Law and relevant guidelines.

The law gives rise to RSDL for such crimes as endangering national security. Although it holds that family members shall be notified within 24 hours and access to a lawyer should be granted within 48 hours, national security exemptions allow for these rights to be denied. The police may even refuse the prosecutor access to determine the legality of the detention or whether the individual is being ill-treated.

A statutory basis does not make something permissible under international law where it violates fundamental human rights.

With RSDL and similar mechanisms, the intent is clear: a detention system for vaguely worded national security crimes for which all procedural safeguards can be revoked on national security grounds. In China, the denial of rights is not the exception, but the rule. This is why RSDL and similar procedures are so dangerous.

Physical and mental torture is common, as shown in the testimonies in my book, The People’s Republic of the Disappeared, and the database of more than 100 RSDL cases maintained by Safeguard Defenders. Measures include sleep deprivation, forced malnourishment or forced medication, being subjected to stress positions, beatings, and threats to one’s friends and family. Televised forced confessions are increasingly common. Kovrig or Spavor may be pressured to deliver a forced confession as a precondition of their release.

Conditions are less severe for foreigners than for Chinese citizens, but they are never free from abuse. Sadly, reports indicate Kovrig is being interrogated morning, noon, and night, and subjected to sleep deprivation.

Because of such abuse, the United Nations committee against torture, as early as 2016, called on China, as a matter of urgency, to repeal domestic provisions allowing for RSDL and other forms of secret detention.

Earlier this year, human rights groups Safeguard Defenders, the International Service for Human Rights, Network for Chinese Human Rights Defenders , and Rights Practice sent a submission on RSDL to the UN. In their response, experts from the Human Rights Council noted that RSDL exposes its victims to torture and that exceptions in the law make it tantamount to an enforced disappearance, grave crimes under international law.

Despite this – and although China has detained hundreds of Chinese human rights defenders and numerous foreign nationals under this and similar provisions, not to mention the arbitrary imprisonment or disappearance of some one million Uyghurs and Kazakhs across Xinjiang – it has generated shockingly limited international blowback.

In each case where China has not been held accountable, it virtually guarantees the next.

Any country that systematically denies the rights of its own citizens, and flouts international norms, should worry us all because such abuses, as we are increasingly seeing, don’t stop at the colour of one’s passport.

That China has now arbitrarily detained several Canadian citizens in thuggish pursuit of Communist party interests should clearly be denounced, and their immediate release demanded, but it should surprise no one considering China has institutionalised just this type of abusive behaviour with effectively no international repercussions. It is time for change.

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