Call on China to free defenders and #RepealRSDL

In 2012, China amended its Criminal Procedure Law, including a new provision in Article 73 that allowed for a practice called ‘Residential surveillance at a designated location’ (known in short as RSDL) – now corresponding to Article 75 under the Law’s 2018 revision, and whose implementation is further detailed in Articles 74 to 79 alongside regular ‘residential surveillance’ (or house arrest). 

This provision authorises the police and the Ministry State of Security to hold someone in custody – prior to arrest – for up to 6 months in any location or building they choose, without a need to disclose such location, and with very limited due process and possibilities for judicial review. 

Despite its name, RSDL is NOT a form of house arrest. The latter exists in Chinese Law under the name of ‘residential surveillance’, but not ‘at a designated location’. Persons under RSDL are held incommunicado outside official detention facilities exclusively (typically the back of a restaurant or the basement of a hotel).

The vast majority of defenders placed in RSDL are investigated for national security crimes, such as ‘subversion of State power’: articles 85 and 39 of China’s Criminal Procedure Law provide for explicit exemptions and restrictions to the right to access a lawyer and have your family informed, as reported by UN experts. Altogether, this means that those placed in RSDL are cut from the outside world.

RSDL explicitly prohibits holding individuals in official detention facilities. For many lawyers, this provision only legalised an existing practice of police interrogation in ‘illegal’ locations (hotels, restaurants, disaffected buildings, etc): by giving it a semblance of legality, any information obtained in such locations could now be used in court. However, putting it into Chinese national law doesn’t mean it is lawful under international law!

According to international human rights standards, as repeatedly stated by UN independent experts, including the UN’s own Working Group on Enforced or Involuntary Disappearances (WGEID): placing individuals under incommunicado detention + for investigation + for prolonged periods + without disclosing their whereabouts = secret detention  = a form of enforced disappearance. 

In a nutshell: RSDL is a form of enforced disappearance. And according to all sources of international law, enforced disappearance is a human rights violation prohibited under all circumstances.

According to data analysed by Safeguard Defenders and included in a joint submission with ISHR to UN experts:

• An analysis of scarcely available official statistics provides for estimates from 53,000 to up to 90,000 individuals placed in RSDL between 2013 and 2022. 
• Official data on the use of RSDL is scarce as the China Judgement Online (CJO) database of verdicts only includes cases leading to a verdict at trial. Many cases never reach this stage. The real number might therefore be significantly higher. The CJO has also increasingly removed cases from their platform, including 692 cases of RSDL that took place between 2013 and 2020, which have been removed since May 2022.   
• There’s been a strong increase in the use of RSDL since 2016, peaking in 2020 with a 136% increase compared to 2019. In 2013, less than 500 people were held in RSDL, by 2019 that number had risen to over 6,000. Using conservative estimates, 20 people a day were being placed in RSDL in China in 2020. 
• While not all these individuals are human rights defenders, this is commonly recognised as a tactic used to intimidate and coerce individuals detained for their human rights-related work. 
• The system, has most famously been imposed on Chinese human rights defenders such as dissident artist Ai Weiwei, human rights lawyers Wang Yu and Wang Quanzhang, as well as on foreigners, especially those caught up in hostage diplomacy cases, like Canadians Michael Kovrig and Michael Spavor, Swedish bookseller Gui Minhai, Swedish rights activist Peter Dahlin, Taiwanese NGO worker Lee Ming-che or US businessman Li Kai. 
• Since RSDL is carried out in secret, there are few images of RSDL facilities and most victims are scared to speak out for fear of being punished again.

In August 2018, a group of 10 UN appointed human rights experts wrote a long letter to the Chinese government inquiring about the legal provisions allowing for RSDL. They had received information that China’s legislative body, the National People’s Congress, would be revising again the Criminal Procedure Law, and that civil society groups and Chinese lawyers had great concerns with Article 73 allowing for RSDL. The experts studied the law as a whole – in particular Article 73 – and explained the ways in which it did not meet international standards, including the human rights treaties that China had itself ratified.

Based on the information they had received, their knowledge of the situation in China, and their expertise in international human rights standards, the UN experts made a series of clear conclusions about RSDL, both in its legal definition, and actual use. They assert that RSDL: 

• Denies [those held in RSDL] the fundamental right to fair trial, potentially undermines the right to physical and mental integrity, and denies persons held under these conditions of their rights to counsel and family visits
• Gives the police and public security too much power, that is abused in order to allow arbitrary arrest
• Is being used to muzzle peaceful and legitimate rights to freedom of expression, assembly, association and the right to defend rights

In a nutshell: by enacting and making use of RSDL, China is failing to meet its binding international law obligations.

In a March 2020 public statement, a group of experts including the UN’s Working Group on Enforced or Involuntary Disappearances  (WGEID) expressed their ‘alarm at the ongoing use of RSDL in China, despite having for many years reiterated the position that RSDL is not compatible with international human rights law’. They asserted that ‘as a form of enforced disappearance, RSDL allows authorities to circumvent ordinary processes provided for by the criminal law, and detain individuals in an undisclosed location for up to six months, without trial or access to a lawyer. This puts individuals at heightened risk of torture, inhuman or degrading treatment or punishment.‘

In a September 2021 legal opinion on the cases of Zhang Zhan, Chen Mei, and Cai Wei, the UN’s Working Group on Arbitrary Detention (WGAD) ‘calls upon the Government to repeal the provisions governing RSDL’. It underscores the joint position adopted with other UN experts, that RSDL:

• ‘amounts to secret detention and is a form of enforced disappearance’
• ‘contravenes the right[s] of every person not to be arbitrarily deprived of his or her liberty, [to] challenge the lawfulness of detention before a court without delay, as well as the right of accused persons to defend themselves through legal counsel of their choosing’
• ‘may per se amount to cruel, inhuman or degrading treatment or punishment, or even torture, and additionally may expose [those held under RSDL] to an increased risk of further abuse, including acts of torture’
• is ‘used to restrict the exercise of the right[s] to freedom of expression, [of] peaceful assembly and of association by human rights defenders and their lawyers’ 

The WGAD recalled this position in its legal opinions on the cases of Yu Wensheng; Li Kai; Xu Zhiyong; Ding Jiaxi, Zhang Zhongshun and Dai Zhenya; and Wang Jianbing. 

UN human rights experts have further reiterated their concerns over RSDL in letters to the Chinese government on the cases of Guo Feixiong and Tang Jitian (February 2022), Chang Weiping (September 2022), Huang Xueqin, Wang Jianbing and He Fangmei (December 2022), and Xu Zhiyong (May 2023).  

In its 2022 annual report, the WGEID noted that the Chinese government has still – after more than nine years – failed to positively respond to their request to visit the country; at the same time, the number of outstanding cases of enforced disappearances taken on by the Working Group in the past five years increased by 124%, from 68 to 152.

Following her official visit to China in April 2022, the then UN High Commissioner for Human Rights Michelle Bachelet reiterated that UN human rights bodies have categorised RSDL as a form of arbitrary detention and called for its repeal.

RSDL is strongly interlinked with torture and ill-treatment. According to research by Safeguard Defenders, victims of RSDL report repeated acts of both physical and psychological tortures including sleep deprivation, food deprivation, extended time in combined shackles and cuffs (sometimes for weeks), beatings, forced medication, denial of medical treatment, sexual abuse, stress positions held for extended periods (such as being hung by the wrists) and threats of physical harm to them and their loved ones.

In their joint position, UN experts including the WGAD, clearly state that RSDL ‘may in and of itself, amount to cruel, inhuman or degrading treatment or punishment, or even torture’ and that ‘additionally may expose such persons to an increased risk of further abuse, including acts of torture.’

During China’s 2015 review by the Committee Against Torture (CAT), the Committee had expressed ‘grave concern’ over RSDL. It recommended that China:

• ‘repeal, as a matter of urgency, the provisions of the Criminal Procedure Law that allow [RSDL]’, and ‘in the meantime’
• ‘ensure that procuratorates promptly review all the decisions on [RSDL],’ ‘ensure that detainees who are designated for potential prosecution are charged and tried as soon as possible and those who are not to be charged or tried are immediately released’
• make sure that ‘if detention is justified, detainees [are] formally accounted for and held in officially recognised places of detention’
• ensure that ‘officials responsible for abuses of detainees should be held criminally accountable’

The CAT is the independent expert committee tasked with reviewing countries’ implementation of the Convention Against Torture. It is still awaiting the Chinese government’s periodic report, due since 9 December 2019, in order to resume China’s periodic review process.

We’ve asked Chinese lawyers what they think of RSDL. Check out our series on Chinese human rights lawyers’ essays below:

• Several questions about ‘Residential Surveillance at a Designated Location’ (RSDL)
• On the violations to international human rights conventions through the system of ‘Residential Surveillance at a Designated Location’
• Why do public security organs use Residential Surveillance at a Designated Location’?

No! There is another system that functions similarly called ‘liuzhi‘ (literally: ‘retention in custody’). This system is applied to Chinese Communist Party members and public employees. They can be detained incommunicado for up to six months due to violations of discipline or alleged neglect of their duties. It is overseen by the National Supervision Commission (NSC), a body separate from the judiciary and law enforcement, and it happens before formal arrest or detention. Former Chinese Foreign Minister Qin Gang, who disappeared in June 2023, is believed to have been subjected to this ‘liuzhi‘ system.

There are also instances when the application of RSDL evolves, and authorities disappear people in a similar way without labelling it as such. This happened for example with human rights defenders Huang Xueqin and Wang Jianbing.

Looking beyond just RSDL, enforced disappearance has been extensively employed to silence a wide range of individuals. This includes human rights defenders Gao Zhisheng, Yu Wensheng and his wife Xu Yan, Jia Pin, Peng Lifa, Tao Hong, journalist Yang Zewei, and Falun Gong practitioners Chen Yang and Cao Zhimin.

Enforced disappearances also impact Uyghurs and Tibetans. In Xinjiang, arbitrary detention and disappearances are systematically used against hundreds of thousands of Uyghurs. Similarly, in Tibet, Tibetan language and cultural advocates have been victims of enforced disappearances.

All these cases highlight that enforced disappearances in China aren’t a single, uniform phenomenon. They involve different methods, targets, and intentions.

Our campaign has appeared in several international media: 

• Deutsche Welle, 27 October 2021: (Chinese) 维权律师传遭超期羁押 人权团体吁北京废除监视居住, and (English) ‘Human rights organizations urge China to repeal illegal detention, as human rights lawyer faces prolonged detention‘
• Libération, 4 November 2021: (French) ‘En Chine, l’appel désespéré de l’épouse d’un avocat torturé‘ and (French) ‘Chine : la «résidence surveillée dans un lieu désigné», arme totale contre les défenseurs des droits humains‘
• Le Soir, 26 November 2021: (French) ‘Les disparitions, un procédé habituel chinois‘
• El País, 28 November 2021: (Spanish) ‘El agujero negro de las detenciones secretas de China‘ and (Portuguese) ‘O enigma das prisões secretas da China‘
• France Culture (radio), 1 December 2021: (French) ‘Chang Weiping : symbole de la croisade de Pékin contre les avocats‘