Rising Risk of Arbitrary Detention for Foreign Nationals in China

In May 2022, after Shanghai lifted its lockdown, foreign nationals began moving out of the city. (Video screenshot)

[People News] – “In China, you could be arrested simply for chatting with someone, copying a map, or unintentionally taking a photo of a sensitive location,” said Dinah Gardner, research director at the human rights organization Safeguard Defenders, in an interview with Voice of America (VOA).

According to VOA, on February 25, Safeguard Defenders released a report titled "Missing in China," which exposes how the Chinese government uses "Residential Surveillance at a Designated Location" (RSDL) to secretly detain foreign nationals under an opaque legal system, depriving them of their basic rights. The report highlights how China employs such detentions as a political tool in "hostage diplomacy" and provides guidance to foreign citizens and their families on how to navigate arbitrary detention in China.

Among numerous cases, the detention of Australian journalist Cheng Lei is particularly significant. She was arrested by the Chinese government in 2020 on charges of "leaking state secrets" and was not released until 2023. Her partner, Nick Coyle, former CEO of the Australian Chamber of Commerce in China (AustCham China), spoke with VOA about his views on China’s judicial system and the challenges of diplomatic negotiations.

An Invisible Prison

Coyle told VOA, "She spent her first six months under Residential Surveillance at a Designated Location, which was absolutely terrifying. You need to understand that."

"Residential Surveillance at a Designated Location" (RSDL) is a special form of detention that allows Chinese authorities to hold suspects for up to six months without notifying their families or allowing access to legal counsel. During this period, detainees are held in solitary confinement, deprived of sleep, subjected to prolonged interrogations, and may even experience physical and psychological torture.

The Safeguard Defenders report also highlights that women detainees in China often face even harsher conditions than men. They may suffer from lack of access to hygiene products and medication, sexual harassment risks, and the emotional distress of being unable to see their children for months or even years.

Peter Humphrey, a former British journalist and private investigator who was previously detained in China, also experienced RSDL. He told VOA, "China's judicial and prison systems are completely opaque and utterly devoid of fairness. Talking about 'judicial justice' in China is meaningless."

Arbitrary Detention as a Political Tool

The report highlights that the Chinese Communist Party (CCP) government is increasingly employing 'arbitrary detention' as a diplomatic leverage, particularly targeting citizens from Western nations. In recent years, numerous similar cases have surfaced, including the 'Two Michaels' incident in Canada (Michael Kovrig and Michael Spavor), the case of British citizen Han Feilong, and the case involving Australian writer Yang Hengjun.

Cheng Lei's partner, Koyle, discovered in August 2020 that Cheng Lei had suddenly gone missing; her phone was unreachable, and her social media accounts showed no updates.

'Honestly, I wasn't sure at first. I was the first to notice she was missing, and I contacted the embassy to inform them of her disappearance. I quickly realized she had been detained because her computer was missing, along with other signs,' Koyle told Voice of America.

After realizing that Cheng Lei might have been detained, Koyle's initial response was to identify the agency responsible for her detention. He mentioned that if it were the CCP's Public Security Bureau (PSB), there might still be some official avenues to pursue action. However, upon discovering it was the CCP's Ministry of State Security (MSS), he understood that the situation had become much more complex.

He conveyed to Voice of America: 'When I found out it was the (CCP) Ministry of State Security, the situation changed completely. From that moment on, basically no one could do anything.'

Ke Yier believes that the primary reason for Cheng Lei's detention is not a legal matter, but rather the strained relationship between China and Australia. 'If you examine other similar cases of arbitrary detention, you'll find that the circumstances are alike. When the Chinese Communist Party (CCP) realizes that the troubles caused by such cases outweigh any benefits they derive, they will address the issue. The case of the 'Two Michaels' in Canada serves as a prime example,' Ke stated.

Gardner, the research director at 'Protectors of the Shield,' also noted that the CCP's strategy of 'hostage diplomacy' has been validated multiple times. 'A clear example is the Huawei case—just hours after Meng Wanzhou was released, the 'Two Michaels' in Canada were also freed.'

Delaying Trials

The report further highlighted that in many instances, the CCP government employs legal procedures to continuously postpone trials, avoiding formal convictions and instead extending detention until diplomatic conditions are favorable, at which point they release the detainees 'conditionally.' For instance, Cheng Lei's trial was delayed for three years, and she was ultimately released under the pretext of 'having served her sentence.'

Ke recalled that during the initial months of Cheng Lei's detention, he was constantly contemplating the most effective response strategy, hoping to discover a way to facilitate her release. He quickly realized that this was not an issue that could be resolved through legal avenues, but rather a purely political matter.

He told Voice of America: "After Cheng Lei was detained, I mentioned to my friends that there were two possible scenarios: one is that she would be released soon because the Chinese Communist government wanted something, and she was merely a temporary bargaining chip; the other is that we might need to prepare for a long-term struggle, which would involve waiting for years rather than just a few months."

Koyle acknowledged that the only way to facilitate Cheng Lei's release was for the Australian government to make her case a diplomatic priority and to apply sufficient political pressure on the Chinese Communist government.

He stated: "If she had truly committed any wrongdoing, the Chinese Communist government would have tried and sentenced her long ago. In reality, they are simply delaying the trial repeatedly and will ultimately release her with a verdict of 'time served.' This pattern aligns with many similar cases— the longer the delay, the more it indicates that this is entirely a political issue rather than a legal one."

Utilizing Media Coverage to Advocate for Family Release

The report from 'Protectors of the Guard' suggested that family members could use media coverage of the case to exert public pressure on their own government, prompting it to take a more active role in advocating for their loved ones.

Koyle concurred, noting that when the Chinese Communist government realizes that the cost of continuing to detain a foreign citizen exceeds the benefits, they will seek a way to "save face."

Ke Yier revealed that during Cheng Lei's detention, he repeatedly stressed to Australian government officials, including the then Foreign Minister and his team, that if Cheng Lei was not released before the Australian Prime Minister's visit to China, this issue would overshadow the entire itinerary and become the focal point of international media attention.

Ke Yier noted that the Australian government did not want the Prime Minister to face daily media inquiries about Cheng Lei's case during the visit to China. Meanwhile, the Australian public largely believes that the accusations against Cheng Lei by the Chinese authorities are baseless, and public sentiment has deemed this case 'completely unacceptable.'

'When the Albanese government took office, China-Australia relations began to improve, and the Chinese Communist government also sought to enhance its relationship with Australia. Cheng Lei's case became a bargaining chip for improving diplomatic ties. Therefore, shortly before the Australian Prime Minister's planned visit to China, the Chinese Communist government ultimately decided to release her,' Ke Yier told Voice of America.

The Risk of Arbitrary Detention is Increasing

The report warns that in recent years, the risk of arbitrary detention of foreign citizens in China has been escalating.

The report highlights that since Xi Jinping assumed power in 2012, China has not only gradually closed its doors to foreigners but has also increasingly 'brazenly detained foreigners for political reasons,' 'pressuring or punishing foreign governments.' Such detentions have been integrated into the national security framework that China is increasingly emphasizing, particularly following the 2023 revision of the Anti-Espionage Law enacted in 2014, along with the revision of the National Secrets Law in May 2024, leading to a sharp rise in the number of foreigners detained on espionage charges in China.