Missing in China: what can be done when Australians ‘disappear’?

According to The China Story, created by the Australian Centre on China in the World (CIW) at the College of Asia and the Pacific, Australian National University (ANU). there are more Australians missing in China than any other country.

Since 2009, there have been a number of high-profile cases of contentious arrests and imprisonments of Australian citizens in China. Australian journalist Cheng Lei was arrested and detained for three years before her release in 2023. She was charged with illegally supplying state secrets to foreign organisations after months of imprisonment, seemingly the result of her access to an embargoed government report.

Rio Tinto executive Stern Hu, travel entrepreneur Matthew Ng, technology educator Charlotte Chou (released in December 2014) and medical inventor Du Zuying (released in July 2014) have been imprisoned on charges of bribery, embezzlement and fraud allegedly targeting their China-based employers or partners. (Du was released in July 2014 and Chou in December 2014).

In January 2019, the Associated Press reported that novelist Yang Hengjun had disappeared on a trip to China, the second time that he had been reported missing. Born in China, Yang became an Australian citizen in 2002, before moving to the US in 2017. He was travelling to Guangzhou to renew his family’s visas.  While at an airport in China in 2011, he called a friend to share concerns he was being tailed by three men. He was later released, claiming a “misunderstanding”. His 2019 trip resulted in his arrest on one charge of espionage, a guilty verdict, and a sentence of death with two-year reprieve in February 2024. If he is deemed to be of good behaviour in prison, his death sentence could be commuted to life imprisonment.

The Vienna Convention is routinely ignored

Sophie Richardson is the Washington-based co-executive director of Chinese Human Rights Defenders (CHRD), a coalition of Chinese and international human rights non-governmental organizations. From 2006 to 2023, she served as the China Director at Human Rights Watch.

She reflects that “many people assume that because the Chinese government have written things down on paper and called them laws, they’ll abide by them, but that’s often not the case.”

“For foreign lawyers who set up offices in Beijing or Shanghai, it’s often not until things go dreadfully wrong that people come to realise the law is an instrument of Xi Jinping’s political power, used when and how he and his allies see fit.”

Richardson says, “I’m not sure anyone could definitively answer about the numbers of people detained. In some cases, families don’t want to publicise that their family member has been detained. The number of foreigners detained pales in comparison to Chinese citizens. The scope and scale has been identified by the Working Group on Arbitrary Detention, which is one of the UN expert bodies, as possibly a crime against humanity.”

Richardson explains that under Article 36 of the Vienna Convention on Consular Relations (VCCR) requires governments that have detained foreign citizens to notify the governments of those citizens, along with notifying the foreign national that they have a right to contact their consulate, and enabling this.

“That’s routinely ignored,” says Richardson, “Some countries also require that their government be informed. That means people have to know to request [contact with their consulate], and that the people detaining you will convey that information.”

Overriding international law

China’s Criminal Procedure Law (2018) provides for the death penalty to either be applied with immediate effect (non-suspended death sentence) or with a two-year probationary period (suspended death sentence). The Supreme People’s Court must approve a non-suspended sentence before it can be carried out, while a suspended death sentence may be commuted to life imprisonment or 25 years at the end of the probationary period.

According to a DFAT report profiling China in general, released on in December 2024, the laws in China enable a broad definition of ‘national security’ and ‘protected information’. The consequence is that authorities can interpret these priorities to justify arbitrary detention, lifelong imprisonment, and capital punishment, especially if there is a transgression according to the Anti-Espionage Law (2023) and 2024 amendments to the State Secrets Law (1988).

As DFAT’s report also detailed, the Law on Foreign Relations (2023) “codifies China’s ‘right’ to take corresponding countermeasures and restrictive measures against acts that violate ‘international law and norms’ and endanger the country’s sovereignty, security and development interests.” Articles 30 and 31 determine that international treaties shall not contravene the constitution.

Detainees under arbitrary detention are typically denied access to lawyers, justified by authorities as a means of protecting the release of ‘state secrets’. As a result of representing clients in sensitive cases, DFAT reports that lawyers have been held in detention, had their registration revoked when taking on sensitive clients, or been refused official permission to be present in criminal trials.

Arbitrary detention and RDSL contravene human rights law

DFAT’s China report defines enforced disappearances as occurring “when individuals are deprived of liberty against their will with the involvement of government officials (at least by acquiescence), which includes a refusal to acknowledge the deprivation of liberty or concealment of the fate or whereabouts of the disappeared person.”

The 2023 US Department of State China Human Rights Report found that disappearances were standard practice by Chinese authorities at a nationwide, systemic scale. The typical method is Residential Surveillance at a Designated Location (RSDL), which the UN has consistently stated is ‘not compatible with international human rights law’. RDSL enables authorities to detain individuals in an undisclosed location for up to six months, without trial or access to a lawyer.

There is a lack of official data on how prevalent RDSL is, or the conditions that victims are subjected to, but INGO Safeguard Defenders estimated that between 55,977 and 113,407 people were placed into RSDL, prior to trial and verdict, from 2015 to 2021. Those numbers do not account for cases where no trial proceeded.

Disappearing in China

Human rights NGO Safeguard Defenders, founded in 2016, has released a handbook Missing In China, designed to guide people through the steps when a family member, colleague, or friend has been arbitrarily detained by the PRC. It will also be made available in Chinese and Japanese.

Swedish-born, Beijing-based Peter Dahlin is the director of Safeguard Defenders, which had its foundations in the NGO, China Action, that he co-founded in 2009. Together with Michael Caster from the US and a small group of Chinese rights lawyers and other human rights defenders, China Action focused on training programs for China’s fledgling lawyers, provided direct support for legal interventions and other assistance to HRDs at risk, and set up pro bono legal aid centres in China. A government crackdown on China Action workers in 2016 forced it to close. Safeguard Defenders works with partners on the ground in China, but does not identify these partners for safety and security reasons.

On December 12 2024, Safeguard Defenders provided a submission to the UN Special Procedures on China’s National Supervision Commission, referring to a systematic, commonly used means of detention named liuzhi, a formal institution under the PRC’s National Supervision Law of 2018.

The submission referred to the official data from the PRC’s enacting body, the Party-body Central Commission for Discipline Inspection (CCDI) and its state front the National Commission of Supervision (NCS), which reported that it had placed 26,000 individuals inside the system of solitary confinement in 2023. According to official CCDI statistics, at least 12,000 individuals were forcefully returned to the country between 2014 and 2023, equating to state-sanctioned kidnappings. The vast majority of those were returned to China, as the Safeguard Defenders submissions says, “through illicit means.”

There is no appeal structure beyond the CCDI itself, despite the UN Basic Principles and Guidelines on the Right to a Remedy requiring victims of human rights violations to have an “equal and effective access to justice and effective remedies, including reparation.” If people are kept inside liuzhi longer than the maximum allowed time of 6 months, the victim or their close relatives may appeal to the CCDI, but if that is rejected, there is no other system of appeal.

Richardson says, “There may be some obscure provision that I’m not aware, but this is a political matter and not a legal one. It becomes especially complicated for dual nationals who enter the PRC using their Chinese passport, because then China can say ‘this is none of your business, this is a Chinese citizen’.”

Now, Richardson says, “a number of governments have taken public positions of concern about human rights in China, and have issued advisories to their own citizens that say, ‘if you have, for example, both an Australian and a Chinese passport, please understand that if you travel on your Australian passport, there are some channels that are afforded to you. If you travel on your PRC passport, there aren’t’.”

High profile cases have not deterred

Richardson says that having a foreign passport “does not necessarily protect them from [various forms of detention]”. Detention may include exit bans, arbitrary detention, house arrest, or RSDL (Residential Surveillance at a Designated Location). The Chinese government retains a number of forms of arbitrary detention along with the formal legal system.”

She adds, “One of the first cases I worked on was that of a British citizen of Pakistani decent, Akmal Shaikh in December 2009. He had already been diagnosed with schizophrenia in the UK, and he was horrifically set up to fly into the Uyghur region carrying drugs. He was caught on arrival, prosecuted, and sentenced to death, then executed.”

The British government tried to intercede and attempted to gain permission for a doctor from the British Embassy in Beijing to have access to Shaikh to prove he was unfit for trial.

“That’s how little a foreign passport can help someone if they run into trouble, even if they have, at least superficially, committed a crime. You just can’t expect that any of the rights to a fair trial, or to defence, or the presumption of innocence, exist in China. The conviction rate in China is usually above 99 percent, and it’s not because they’re that good.”

Tit-for-tat prisoners

Canadians Michael Spavor and Michael Kovrig were taken into custody in China in 2018 and released in September 2021. Their detention on December 10 in 2018, and subsequent indictment under the state secrets law, was seemingly a tit-for-tat response by the Chinese government to the December 1 arrest of Huawei’s chief financial officer, Meng Wanzhou in Canada. Kovrig and Spavor were released on the same day the US Justice Department dropped its extradition request for Meng, so she could return to China.

Kovrig has since revealed that during the more than 1000 days he was detained on charges of espionage, he spent months in solitary confinement, often being interrogated for up to nine hours a day. He told media he had been exposed to bright lights 24 hours a day and his food was rationed to three bowls of rice a day during some periods.

International complacency

Richardson laments that there is very little that can be done to prevent or change the current circumstances. Even foreign law firms and lawyers are targets. In late 2024, international media reported that major foreign law firms were leaving China and Hong Kong in droves. As ChinaFile explained, while firms may use VPNs, “they must be from government-approved VPN providers, raising the very security concerns that VPNs are supposed to mitigate”.

Chinese law does not recognize any attorney-client privilege, and State Security can attend law offices to access data by demand. Lawyers also face increased risk of exit bans or arbitrary detention, particularly when their clients are engaged in human rights activism, or critical of the CCP.

Richardson says, “Stopping [the various forms of unlawful detention] requires having a government in Beijing that actually respects the rule of law and allows people fair trial rights and access to counsel. That’s unlikely without a regime change. One tactic that democratic governments need to pursue much more vigorously is the possibility of opening investigations in their own countries into abuses by Chinese government officials. There are some jurisdictions in which it’s possible, at least on paper, to do this, I think that at least creates a symbolic deterrent or a consequence.”