IV. Legal Standards

China’s Obligations under International Law

An enforced disappearance is defined in international law as the “arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.” [86]

The practice of enforced disappearance is outlawed in the new International Convention for the Protection of all Persons from Enforced Disappearance. China has not signed the Convention on Enforced Disappearances, which has yet to come into force.[87]

However, China was present when the United Nations General Assembly adopted by consensus the Declaration on the Protection of all Persons from Enforced Disappearance upon which the Convention is based.[88] The Declaration specifically enjoins states to take proactive measures to eradicate the practice and enjoins states from committing or tolerating enforced disappearances.

Although the law on enforced disappearances is relatively new, neither the practice nor the human rights principles that undergird the ban in international law are the least bit novel. The Declaration describes enforced disappearances as “a denial of the purposes of the Charter of the United Nations and as a grave and flagrant violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and reaffirmed and developed in international instruments in this field.”[89]

Enforced disappearances often constitute “a multiple human rights violation.”[90] Among the rights an enforced disappearance violate are the right to liberty and security of the person, the right to recognition as a person before the law, the right to a fair and public trial, the prohibition on torture and cruel, inhuman, and degrading treatment; it also often constitutes a violation of, or a grave threat to the right to life. China recognizes all these rights in its domestic law (see below).

These rights are further set forth in the Universal Declaration of Human Rights, which China, as a member of the United Nations, is deemed to accept and which, as a member of the United Nations Human Rights Council, it applies in assessing the human rights performance of member states.

Furthermore, the Chinese government has signed but not yet ratified the International Covenant on Civil and Political Rights (ICCPR), and ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), which also protect these rights.[91]

The UN Declaration on Enforced Disappearances contains numerous specific injunctions on preventing “disappearances,” including stipulations that detainees must be held in officially recognized places of detention, of which their families must be promptly informed; that they must have access to a lawyer; and that each detention facility must maintain an official up-to-date register of all persons deprived of their liberty.[92]

The practice of enforced disappearances is often directly linked to the practice of arbitrary and unlawful arrests. In this respect, ICCPR requires that a state specify the legal basis on which individuals may be deprived of their liberty and the procedures to be used for arrests and detentions.[93] Only arrests and detentions conducted in accordance with such rules are considered lawful, thus restricting the discretion of individual arresting officers. The prohibition against arbitrary arrest or detention also means that deprivation of liberty, even if provided for by law, must be necessary and reasonable, predictable, and proportional to the reasons for arrest.

The ICCPR also requires an arresting authority to promptly communicate to detainees any charges against them. If a person is detained on suspicion of a crime he or she must be charged within a reasonable time. In addition, international law grants a detainee the right to challenge the lawfulness of his or her detention by petitioning an appropriate judicial authority to review whether the grounds for detention are lawful, reasonable, and necessary.

The responsibility of the competent authorities to inform families of the whereabouts of those detained and provide for communication of the detainee with a counsel is further emphasized by the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment—an authoritative United Nations standard summarizing international human rights principles in relation to detention.[94]

The Convention on the Rights of the Child, to which China is a party, contains further safeguards with respect to the deprivation of liberty of anyone under the age of 18, including the right to prompt access to legal and other appropriate assistance as well as the obligation of the authorities to provide family members with essential information on the child’s whereabouts and well-being.[95]

As a general principle of law, the Chinese government has a duty to investigate serious violations of human rights and to punish the perpetrators. There is little doubt that the many human rights violations that enforced disappearance entail are serious, and demand investigation and prosecution.[96]

The Declaration on Enforced Disappearances emphasizes that it is the state’s obligation to ensure that persons having knowledge of an enforced disappearance have the right “to complain to a competent and independent State authority and to have that complaint promptly, thoroughly and impartially investigated by that authority.” Even in the absence of a formal complaint, the state should promptly refer the matter to the appropriate authority for investigation whenever there are reasonable grounds to believe that an enforced disappearance has been committed. When the facts disclosed by an official investigation so warrant, any person alleged to have perpetrated an act of enforced disappearance is to be brought before competent civil authorities for the purpose of prosecution and trial.[97]

China’s National Law

In addition to obligations under international human rights law, the practice of enforced disappearances directly violates China’s domestic law.

The Chinese Constitution contains a safeguard against arbitrary arrests stipulating that arrests must be conducted “with the approval or by decision of a people’s procuratorate or by decision of a people’s court and arrests must be made by a public security organ.”[98]

The rights of criminal defendants and suspects and the corresponding obligations of the law enforcement agencies are further specified in the Criminal Procedure Law and People’s Police Law.

The Criminal Procedure Law requires approval for arrests from the people’s procuratorate or a public court as well as an arrest warrant which the police must display at the time of arrest.[99] While in certain cases the Criminal Procedure Law permits initial detention without an arrest warrant,[100] a request for an arrest must be submitted to the people’s procuratorate for approval within three days of detention.[101] Police detention cannot exceed a two month investigation period without approval by the people’s procuratorate.[102]

A criminal suspect has the right to retain a lawyer after his first interrogation by the investigative organs or from the day the detention starts.[103]

Failure to notify the detainee’s family of reasons for detention and place of custody constitutes a violation of both the Criminal Procedure Law and the Police Law (in case the detention is carried out by a police officer). The Criminal Procedure Law stipulates that a detainee’s family or work unit must be notified of the reasons for detention and place of custody within 24 hours of detention.[104] The Police Law requires the immediate notification of a detainee’s family members if detention is extended beyond an initial 24 hours from initial incarceration.[105]

Unlawful detention as well as torture and maltreatment of detainees are punishable offenses under China’s criminal law. Unlawful detention or deprivation of personal freedom carries a sentence up to 10 years’ imprisonment (depending on the nature of the harm caused to the victim), and a “heavier punishment” if the crime is perpetrated by “a functionary of a State... by taking advantage of his functions and powers.”[106] The law further criminalizes custodial beatings and maltreatment, as well as extortion of confessions and witness testimonies by torture or violence.[107]

With respect to police officers, the Police Law stipulates the prohibition to “unlawfully deprive other people of, or restrict, their freedom of the person.”[108] Police officers who violate these provisions may be subjected to administrative sanctions and criminal responsibility.[109] The victims have the right “to make exposure of or accusation against a people’s policeman’s violation”[110] and are entitled to a compensation in case a “policeman in performing duties infringes upon” their lawful rights.[111]

The practice of enforced disappearances and illegal arrests is also in direct contravention to Chinese government’s National Human Rights Action Plan (2009-2010), issued on April 13, 2009, which prioritizes ending extrajudicial detention. The Plan also emphasizes a commitment to accountability and providing redress for the victims:

The state prohibits illegal detention by law enforcement personnel. Taking a suspect into custody, changing the place of custody or extending the term of detention must be done in accordance with the law. Wrongful or prolonged detention must be prevented. The state will improve the measures of providing economic compensation, legal remedies and rehabilitation to victims. Those who are responsible for illegal, wrongful or prolonged detention shall be subject to inquiry and punished if found culpable.[112]