In 2012, China passed revisions to its Criminal Procedure Law. Among the changes was an article dealing with “residential surveillance in a designated location” (RSDL) for those suspected of “crimes of endangering state security, terrorist activities, or especially serious bribery cases.” The dry legal language masked the brutal reality experienced by those who would later suffer through RSDL — it is a legalized form of enforced disappearance, marked by physical and psychological torture. The People’s Republic of the Disappeared, edited by Michael Caster, collects the stories of activists and lawyers who suffered through RSDL. As Caster explains, “These stories recount the experience of RSDL from the perspective and in the words of its victims.”
Below, Caster talks with The Diplomat about the book, China’s human rights situation, and the potential for an international response.
The People’s Republic of the Disappeared documents the experiences of Chinese activists (and one Swede) placed into “residential surveillance at a designated location” (RSDL). Several of those who wrote about their experiences for the book say their time in RSDL was worse than any previous treatment they had experienced, whether in legal detention centers or illegal “black jails.” What about RSDL makes it the most feared type of detention in China?
Under Xi Jinping, China’s assault on the human rights community has escalated to extremes not seen since the 1989 Pro-Democracy crackdown, while technological advancements, not to mention certain complicit foreign companies, have allowed for unprecedented increases in police capacity and state control. Add to that an effort by the Party to weaponize the law through legislation whose only purpose is to mask its authoritarian objectives behind false talk of rule of law. The revised Criminal Procedure Law, in which RSDL is codified in Article 73, is case in point, as it grants agents of the state effectively unfettered power, often in violation of fundamental international law, to act in the preservation of national security, which is synonymous with the preservation of Party supremacy.
RSDL is so feared, arguably, because it is so quintessentially totalitarian, right down to the ubiquity of black hoods and midnight raids, evoking scenes from V for Vendetta. Little is known, but that is slowly changing, about what it means to disappear in China. Even a few years after it came into effect, in 2016 many people were still misled by the euphemistic title, the residential in RSDL. Torture is common. RSDL is a tool of repression, designed to terrorize and demonstrate power. It is so feared because it was designed to be feared.
One thing that can be done to address this fear is just to spread knowledge about RSDL. Indeed, many frontline human rights defenders have spoken about the protective quality of reading or hearing stories about others’ experiences in detention, such as the pamphlet a Guide to Drinking Tea by Wu Gan, who was recently sentenced to eight years in prison for his rights defense, or Hua Ze’s book In the Shadow of the Rising Dragon, which was a big inspiration for The People’s Republic of the Disappeared. Indeed, one of the goals of this book was to provide some protection for at risk human rights defenders, to mitigate their fears with the stories of others so they would at least be a little better prepared for what to expect.
Is the use of RSDL, as compared to other forms of detention (legal and not), reserved for a particular type of person? Those who contributed their stories for the book are lawyers and rights defenders; who else might find themselves “disappeared” into RSDL in China?
According to Article 73 of the Criminal Procedure Law, residential surveillance may be enforced at a designated location — in other words in secret and outside the protection of the law — in cases involving endangering national security, terrorism, or serious bribery, and when enforcement in the individual’s actual residence may “impede the investigation.” Of course, the police are also able to deny access to the state prosecutor if it “impedes the investigation” so this notion rings hollow. Based on this, we see at least three vaguely defined categories of people who may find themselves disappeared into RSDL. The connotations of these categories generally refer to human rights defenders who are common targets of RSDL, ethnic minorities and predominantly Uyghurs for whom another system for disappearances is widespread, and elites or political opponents, for whom yet another system for enforced disappearances, shuang gui, exists. If you look closely, China maintains several distinct systems for disappearance, each one generally targeting one demographic or another.
Why do you think the Chinese government made the effort to legally define RSDL, granting it a legitimate status, only to disregard any and all legal safeguards while actually holding detainees?
China cares about image. The Party wouldn’t harass and detain its critics if it didn’t care. It recognizes the international community places importance on the rule of law, at least rhetorically; indeed there are plenty of other offenders. But China, and as we are seeing with more countries in the region, has perfected the weaponization of the law. Legislation is passed to fit a particular template for good governance and the rule of law, trials are convened, and judgments are passed, “in the spirit of the law” or “based on relevant domestic regulations” or within its “judicial sovereignty.” Absurdly politicized, and yet successful. Some recent examples of China’s success with this strategy are Apple cravenly withdrawing VPN access for Chinese iTunes Store users and Springer Nature agreeing to censor political journals, both out of supposed deference to domestic regulations. Passing legislation such as the Criminal Procedure Law and additional regulations on RSDL, for example, allows the government to hide its normalization of enforced disappearances, and other serious rights violations including torture, behind the veneer of the rule of law.
But China fails. Firstly, international law is clear that enforced disappearances are a grave human rights violation and crime, without any exception or circumstance, including state of war or emergency or national security. This is customary international law, binding upon all countries regardless of treaty ratification. Secondly, China’s rhetoric of the rule of law falls apart against international standards that the law be accessible, predictable, equitable, and accountable. None of these features are effectively present, especially with RSDL. China may try to convince the world that it is a country based on the rule of law but this is actually the rule by law, or legalist authoritarianism.
Obviously numbers are impossible to come by, thanks to the secretive nature of the practice. But do you have an estimate for the number of people held in RSDL, or the number of “disappeared” overall in China?
As I point out in the chapter on RSDL and international law, because enforced disappearances are so heinous they may rise to the level of a crime against humanity if, put simply, they are part of a widespread or systematic attack on a civilian population, and in the last chapter I go into more detail about what this means.
I would like to add that while the book focuses mainly on human rights defenders, by far the largest demographic of disappeared in China are Uyghurs, who starting after the 2009 Urumqi riots and accelerating under Xinjiang Party Secretary Chen Quanguo since 2016 have disappeared in waves, with many never heard from again. Like RSDL, the atate has many euphemisms for its systems to disappear Uyghurs, the most widespread being “political education.”
In terms of the book, human rights defenders are a major targeted demographic for disappearances under RSDL. By most estimates the number of victims of RSDL range from the hundreds to the thousands. These are those who are placed under RSDL for a few days to those who are kept for the full six months, to those who are subjected to even lengthier and wholly illegal disappearances following RSDL such as with lawyer Wang Quanzhang. An old friend, the book is in fact dedicated to Wang Quanzhang, who remains missing now after nearly two and a half years.
When conceiving the numbers of victims, we should bear in mind that international law also recognizes the family members of the disappeared as victims of enforced disappearance, and as such Li Wenzu, Wang’s wife, and the many other spouses, parents, and children of the disappeared must also be counted among the victims of disappearance in China.
Part of the reason why it is so difficult to know the precise numbers of disappeared under RSDL or other mechanisms for disappearance in China is that they are by definition secretive. Furthermore, the same condition that calls RSDL into existence, a claim of national security, allows for the refusal to acknowledge details. For example, while the Supreme People’s Court maintains a database on all cases and includes cases that involve RSDL, many known cases are left out of the database due to national security exceptions on listing case information. Confronting this lack of quantifiable information is precisely why it is so important to engage in monitoring and analyzing China’s use of enforced disappearances, such as the undertaking of the recently launched RSDLmonitor.
At the same time, while it is important to develop a fuller picture of how widespread disappearances are under RSDL, arguably what matters more is how systematic the state has been in its legislation and implementation of disappearances. There is already enough evidence to see that RSDL is systematized and organized enforced disappearances as a Party policy.
The narratives in the book paint the picture of human rights defenders under siege — many of the chapters describe actively preparing to be taken away by the state, after having watched friends and allies suffer the same fate. Over a year after the “709 crackdown,” what is the state of the Chinese activist community? To phrase the question another way, has the authorities’ brutal suppression campaign worked?
The Chinese rights defenders who I have been honored to meet or work in support of are the most resilient and courageous group imaginable. Here is a community struggling for the rights and interests of their fellow citizens, intimidated, brutalized, disappeared, imprisoned by their government and yet they continue. Wang Quanzhang, the last remaining disappeared human rights lawyer of the 709 Crackdown, is case in point. His bravery is an inspiration. For all his attempts to terrorize, Xi Jinping cannot sap the human rights community of its vitality. This campaign, despite its severity and sophistication, like its predecessors, will just lead to new voices, new leaders, new tactics, and new pillars of support. As long as the Chinese Communist Party tramples on the rights of its citizens, there will be a human rights community, and that is because, if I may quote Foucault, “Where there is power, there is resistance.”
How can the international community effectively respond to Chinese human rights violations like RSDL and the torture of detainees?
As I write in the conclusion, it is not easy to confront China, which wields what scholars describe as sharp power and economic statecraft to intimidate and influence, while at the same time either manipulating international law and organizations to its own design, such as with Interpol, or hollowing them of their legitimacy, such as with China’s seat on the United Nations Human Rights Council. But, just as the global race to the bottom for trade and production that rushed to exploit China’s low-paid labor surplus decades ago contributed to its economic transformation, giving rise to its present day economic statecraft used to influence the global order, so too has the international community’s acquiescence to China’s rhetoric of rule of law and judicial sovereignty allowed its war on human rights to continue without consequence. Enough is enough.
The international community needs to stop pretending it is held hostage by China as an excuse for its inaction. One good example is the recent decision by the United States to sanction former Beijing police chief Gao Yan, who through command responsibility was culpable for the death in custody of human rights defender Cao Shunli in 2014. We need more strategic, targeted, follow through.