China’s first comprehensive anti-terrorism bill, passed at the end of 2015, took effect on the first day of 2016. Prior to its passage, the draft law had attracted harsh criticism from human rights groups, technology companies, and the U.S. government. Despite obvious advances compared to the two previous draft versions, the final law has been denounced as “sweeping” and “tough” by Western media.
In their reporting on the final law, the Western media usually associated it with the execution of a Chinese national by the Islamic State, numerous deadly attacks by Uyghur extremists, the Christmas terrorism alert in the shopping neighborhood of Sanlitun in Beijing, and the expulsion of a French journalist from China for her article blaming government policy for terrorist activities. All these incidents make up the backdrop against which the law emerged and will be implemented.
A Comprehensive Law
According to the legislature, the drafting of this law was guided by President Xi Jinping’s “overall national security outlook.” Judging by the multi-faceted and far-reaching measures it has adopted, the law may be called “comprehensive” in the true sense of the word.
The law consists of 97 articles in 10 chapters. While the first and last chapters involve general and supplementary provisions, the other chapters deal with major issues on counter-terrorism such as terrorism designation (chapter 2), prevention (chapter 3), intelligence gathering (chapter 4), investigation (chapter 5), emergency response (chapter 6), international cooperation (chapter 7), safeguards (chapter 8), and legal liabilities (chapter 9).
This article will highlight four specific aspects of the law: (1) China’s definition of terrorism; (2) obligating technology companies to provide technical support for counter-terrorism purposes; (3) placing restrictions on the reporting of terrorist attacks and government responses; and (4) implementing a “people’s war on terrorism.”
Definition of Terrorism
In the final law, the revised definition of terrorism reads as follows: “Any advocacy or activity that, by means of violence, sabotage, or threat, aims to create social panic, undermine public safety, infringe on personal and property rights, or coerce a state organ or an international organization, in order to achieve political, ideological, or other objectives.”
The legislature’s removal of the term “thought” from the initial definition of terrorism (namely, “any thought, speech or activity that …”) is a welcome step, but the term “advocacy” (主张) in the current definition is vague enough to be interpreted either as “thought” or as “speech.” The legislature may have intended to punish the dissemination of terrorist thoughts or speech by including “advocacy”, but it appears to fail to understand that such an act of terrorist propaganda is part and parcel of terrorist “activity.”
Although there is no globally recognized definition of terrorism, the international community has reached a high degree of consensus. Compared with definitions proposed by the UN in its Draft Comprehensive Convention on International Terrorism and used by the EU in its Framework Decision of June 2, 2002 on Combating Terrorism, the current Chinese definition, albeit open to wide interpretation, has been brought quite close to international consensus.
Until today, most of the debate on the law has been focused on the so-called “backdoor provisions.” These portions of the draft law would have required telecommunications operators and Internet service providers to provide the Chinese government with “backdoor” access to their products, to handover encryption codes for review, and to store local user data on servers within China. In an interview with Reuters in March 2015, U.S. President Barack Obama sharply criticized the law, saying that such provisions would subject U.S. technology companies to Chinese snooping and that he had raised his concerns with President Xi Jinping.
To the relief of many, the final law abandons the above-mentioned demands for encryption review and data localization but retains the original text on the requirement for providing the government with technical support, including backdoor access and decryption, for the prevention and investigation of terrorist activities.
In defending the “backdoor provisions,” Chinese officials usually claim that such rules are in line with internationally recognized practices, partly because other countries, including the United States and the United Kingdom, have been demanding the very same from technology companies. It is true that officials in both countries often use the rhetoric of counter-terrorism to call for legal norms that enable law enforcement access to encrypted data. In this sense, the Chinese accusation of the Western double standards on terrorism hits the mark. However, since such attempts have not been successful, it is not correct to say that the Chinese rules in this regard conform to international standards.
China’s new law also places restrictions on the reporting of terrorist attacks and government responses. Pursuant to the new law, no one is allowed to disseminate details of terrorist incidents that may lead to copycat acts, nor may they spread cruel or inhuman images. Moreover, no one is allowed to publish identifying information on response personnel or hostages, nor on anti-terror responses, with the exception that the news media may do so with the permission of the counter-terrorism agencies exclusively responsible for releasing such information.
While China is known for maintaining a powerful censorship apparatus to curtail the flow of information on many sensitive topics, its censorship of terrorism-related information is even more severe. The lawmakers may have wished to avoid political repercussions from terrorist attacks by censoring terrorism-related information, but such a policy has the potential to backfire in the long term. This is because public ignorance of the true state of terrorism affects people’s ability to cooperate with the government in its counter-terrorism efforts. Further, freedom of the press is not only a fundamental human right but also a major foundation of democracy.
The “people’s war” strategy that highlights the participation of civilians has been recognized as a top principle of the counter-terrorism law (Article 5). Specifically, the law says that the authorities should establish joint coordination mechanisms to mobilize grassroots organizations (Article 8), set up formal forces or volunteer groups in the communities (Article 74), and encourage civilians to work as informants to promote intelligence gathering (Article 44).
Meanwhile, the law stipulates that all organizations and individuals have the duty to assist and cooperate with the authorities (Article 9), and promises that honors and rewards should be given to those who have provided outstanding support in the prevention of terrorist activities (Article 10) and those who have been injured or killed for performing their anti-terror civil duties (Article 75).
In fact, China has long implemented a “people’s war” strategy in its fight against terrorism. On August 1, 2014 alone, more than 30,000 local residents in Hotan Prefecture, Xinjiang were mobilized to join hands with the police in a successful manhunt for 10 suspected terrorists. Beijing has also started recruiting local residents to act as security volunteers. “Chaoyang Masses,” a group of such volunteers in the Chaoyang district of Beijing, was jokingly nicknamed one of the top-tier intelligence agencies in the world, on par with the United States’ CIA, the Soviet-era KGB, Israel’s Mossad, and the British MI6.
Terrorists live among the people, terrorist attacks occur before the eyes of the people, and terrorism threatens the lives of the people. So the people have an unparalleled advantage compared with uniformed, specialized security forces.
The law is designed to meet China’s urgent, key needs in its fight against the serious threat of terrorism. Aside from the backdoor provisions (which have sparked considerable controversy out of fear of industrial espionage), most parts of the law involve granting enormous discretionary powers to a government that already has broad, intrusive competences. These new powers will inevitably affect fundamental human rights.
In order to strike a proper balance between security and liberty, the legislature should have considered introducing corresponding appropriate legal protections against potential human rights violations. A general clause on the protection of human rights in counter-terrorism actions such as Article 6 of the law, however, definitely falls short. In the future, China should, as an alternative solution, adopt additional regulations to strengthen the protection of civil liberties in its counter-terrorism activities.
Dr. Zunyou Zhou is head of the China section at the Max Planck Institute for Foreign and International Criminal Law.
By ZUNYOU ZHOU on Jan 23 2016, in The Diplomat
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