11 Feb 2021

A panel of independent human rights experts at the United Nations Working Group on Arbitrary Detention (WGAD) has declared the imprisonment of US citizen Kai Li in China to be arbitrary. In its decision, the WGAD ruled that “the deprivation of liberty of Mr. Li lacks a legal basis” and that “the violations of the right to a trial and due process are of such gravity as to give Mr. Li’s deprivation of liberty and arbitrary character”. It recommends that the Chinese government release Mr. Li immediately, in addition to providing him a right to “compensation and other reparations.” Elevated risks of COVID-19 transmission in detention centers are cited as an additional reason for the government to take “urgent action to ensure [Mr. Li’s] immediate release”.

The WGAD was founded in 1991 by resolution of the former UN Commission on Human Rights. One of its principal objectives is to conduct an impartial investigation into whether individual cases of detention violate international human rights laws. The ruling on Mr. Li’s case marks only the third time in the organization’s history that the detention of a US citizen in China was ruled to be arbitrary.

Mr. Li was first detained in September 2016 by agents of China’s Ministry of State Security. In 2018, Mr. Li was sentenced to 10 years in prison following a secret trial, in which he was convicted of endangering state security by stealing ”state secrets” on behalf of the US Federal Bureau of Investigation. His defense attorney has maintained that the alleged secrets are simply facts that are freely available online, although Chinese state secrets laws are broad in the freedom they give the authorities to retroactively declare information to be a state secret, including facts from the public domain.

In recent years, a growing number of foreign nationals have been arrested by the Chinese government for endangering state security in cases that many observers believe are for political leverage and have called “diplomatic hostage taking”, giving China bargaining chips against foreign governments. It is believed that Mr. Li is the only US citizen currently held in China on state security charges.

An unnamed “source” that provided information for the WGAD decision highlights that Mr. Li was placed under “residential surveillance at a designated location” (RSDL), during which he was denied access to legal counsel and harshly interrogated day and night by state security agents at an unknown location. The WGAD found this source to have provided a credible argument that Mr. Li was tortured, and consequently will refer the case to the UN’s Special Rappoteur on torture and other cruel, inhuman or degrading treatment or punishment.

Mr. Li is currently serving his sentence at Qingpu Prison in Shanghai. Family and consular visits to Mr. Li have been suspended indefinitely since January 2020 due to the COVID-19 pandemic. During that time, Mr. Li has suffered a stroke which his family states is a result of stress-induced hypertension and poor prison nutrition. In lieu of consular visits, Mr. Li is allowed three 7.5-minute phone calls each month to his family, although these calls are monitored and his family says that he has experienced threats of punishment for urging his family to advocate upon his behalf in these calls. He has also been threatened for writing letters to elected US officials.