SAN FRANCISCO (February 11, 2021) – In a strongly worded opinion (PDF), the United Nations Working Group on Arbitrary Detention (WGAD) has determined that American citizen Kai Li has been denied his due process rights and arbitrarily detained in violation of international law. Given the gravity of the violations against Mr. Li, the WGAD has referred the case to the Working Group on Enforced and Involuntary Disappearance, the Special Rapporteur on Torture and Other Cruel, Inhuman, or Degrading Treatment and Punishment, and the Working Group on the Independence of Judges and Lawyers.
In its opinion, the WGAD urged the Chinese government to immediately release Mr. Li and compensate him for the way he has been treated.
Kai Li is an American businessman from New York. On September 9, 2016, he arrived in Shanghai to visit his family on the one year anniversary of his mother’s death. He was immediately taken into custody at Shanghai Pudong International Airport by agents of the Shanghai State Security Bureau (SSSB). He was not presented with an arrest warrant.
Mr. Li spent the initial 10 weeks of his detention under residential surveillance at a designated location (RSDL), a coercive measure that is imposed on a suspect for up to six months during which the suspect is held in communicado without access to legal counsel or family. RSDL has been condemned by United Nations Special Procedures as a form of enforced or involuntary disappearance that has been widely used by Chinese authorities in the detention of journalists and political activists. During RSDL, Mr. Li underwent harsh interrogations each day and night. Under international law, interrogations that take place without the presence of legal counsel are inadmissible as evidence in a trial. Under Chinese law, the procuratorate should supervise RSDL, but no such supervision took place in Mr. Li’s case.
After 10 weeks in RSDL, Mr. Li was formally arrested and transferred to the Shanghai Number One Detention Center, where he spent 27 months awaiting adjudication. His case was not presented to the procuratorate until February 24, 2017, five and a half months after he was taken into custody at the airport. While Mr. Li’s trial was originally scheduled for May 2017, it was postponed twice without explanation. The trial by the Shanghai Number One Intermediate Court finally took place on August 10, 2017. Consular representatives were prohibited from attending it, a violation of the consular agreement between China and the United States.
Nearly another year passed before the judgment was handed down by the court. In July 2018, Kai Li was found guilty of spying for the Federal Bureau of Investigation (FBI), sentenced to 10 years in prison, a fine of RMB 50,000 and deportation. Because he was not given full credit for the time in RSDL, Mr. Li’s sentence is due to expire on October 16, 2026 instead of September 8, 2026.
The FBI is not authorized to conduct espionage overseas. The evidence against Mr. Li – a collection of five “state secrets” he is alleged to have stolen – was freely available online.
Mr. Li immediately appealed the judgement to the Shanghai High People’s Court. The appeal was heard on December 29, 2018. The court upheld the intermediate court’s judgement. Once again, the U.S. Consulate was prohibited from attending the appeal hearing.
Kai Li, now 58 years old, was moved to Qingpu Prison in March 2019. Because of COVID-19 restrictions, he has not received any in-person visits from the consulate since January 2020. He is allowed a seven and a half minute phone call to his family three times a month, but his family maintains that these calls are tightly monitored. Recently, Mr. Li has been diagnosed by prison doctors with chronic atrophic gastritis and high blood pressure, despite previously suffering from chronic low blood pressure. A CT scan also revealed that Mr. Li suffered a stroke while in prison, likely when he collapsed during the summer while in line for food.
Despite the gravity of Mr. Li’s medical condition, the Shanghai Prison Bureau denied medical parole to Mr. Li in January, 2021.
This opinion marks the third time in as many years that the WGAD has found that China has arbitrarily detained an American citizen. Since the working group was established 29 years ago, it has ruled that China has arbitrarily detained suspects on 95 occasions. The opinion notes that “this indicates a systemic problem with arbitrary detention in China, which amounts to a serious violation of international law.”
The UN WGAD opinion on Kai Li can be downloaded at:
https://www.ohchr.org/Documents/Issues/Detention/Opinions/Session89/A_HRC_WGAD_2020_78.pdf
For questions, please contact Dui Hua.