Counter-terrorism Legislation in China

On Friday,  I attended a seminar in Rotterdam.  Professor Zhao Bingzhi, a prominent scholar in Beijing Normal University, gave a lecture regarding the Draft of Ninth Amendment to the Criminal Law of the People’s Republic of China (entered into force on 1 October 1997 and latest amendment on 25 February 2011 ). His presentation focused on the issues of anti-corruption, counter-terrorism and the abolition of death penalty. 

With regard to counter-terrorism measures, except the Decision regarding the Strengthening of Counter-Terrorism  Measures, adopted on 29 October 2011 by the Standing Committee of the National People’s Congress(NPCSC), acting as China’s de facto legislative body,  there is no law regarding the definition of terrorist activities and terrorist organisation in China until now. Some violent behaviours relating to terror have been regulated in the Criminal Law.

Professor Zhao holds that it is better to regulate the counter-terrorism measures as a whole by law  while leaving the implementation of that law to be directly or indirectly regulated by administrative law and criminal law.  Indeed, in order to counter terrorism, limitations will be set up for certain individual rights confirmed by the Constitutional law. Therefore, based on Article 8(5) of the Legislative Law of the PRC, the form of legislation in “law” is valuable and necessary to avoid violating human rights. In additional to that, behaviour violating of the potential “law” does not directly lead to the criminalisation of that behaviour. I agree with his idea for the special and synoptical legislation for counter-terrorism measures.  Moreover, the punishment of terrorism behaviours is a kind of remedy after the tragedy happened. Other methods to prevent that from happening are also important, such as the surveillance in airports, long-period body-check before boarding. Observations show that there is a slight possibility to profile a terrorist based on the ethical or regional areas.

According to Article 2 of the Decision regarding the Strengthening of Counter-Terrorism, the terrorist activities refer to the use or threatened use of violence to create social panic,  to harm public safety or to coerce State organs and international organisations.

[      恐怖活动是指以制造社会恐慌、危害公共安全或者胁迫国家机关、国际组织为目的,采取暴力、破坏、恐吓等手段,造成或者意图造成人员伤亡、重大财产损失、公共设施损坏、社会秩序混乱等严重社会危害的行为,以及煽动、资助或者以其他方式协助实施上述活动的行为。

      恐怖活动组织是指为实施恐怖活动而组成的犯罪集团。

      恐怖活动人员是指组织、策划、实施恐怖活动的人和恐怖活动组织的成员。]

It seems that the first reading of the Draft of the Ninth Amendment included the advocacy of terrorism and extremism and the incitement to commit violent and terror activities as crimes. In addition, the behaviours of forcing others to wear clothing logy advocating terrorism and extremism in public through violence, intimidation or other means will also be regarded as a crime.

[草案增加了制作资料、散发资料、发布信息、当面讲授等方式或通过音视频、信息网络等宣扬恐怖主义、极端主义,或者煽动实施暴力恐怖活动的犯罪,以暴力、胁迫等方式强制他人在公共场所穿着、佩戴宣扬恐怖主义、极端主义服饰标志的犯罪等规定].

It should be noted that counter-terrorism measures sometimes will attract the attention of international law scholars. On the one hand, some suspects left out the States at which they committed crimes. Therefore, the issue regarding international cooperation and extradition of suspects arise up.  On the other hand, the measure or policy of intentionally target killing  or raid against suspected terrorists in another States, though with the permission of the later, legality and legitimacy of targeted killing is still highly debatable in the aspects of international human rights law, international humanitarian law, self-defence and international criminal law.

Though  terrorism was intentionally omitted by the Rome Statute as its compromising characteristic, obviously, it is regarded as an international crime. In 2011,  the Appeals Chamber of the Special Tribunal for Lebanon clearly clarified that there is an emerging definition of terrorism as an international crime under customary international law. However, it stated that the definition of terrorism in the Lebanese Criminal Code is distinct from that under customary international law. It finally decided that Lebanese national law, rather than international law, is the primary applicable law.

In fact, with regard to the definition of terrorism, there is no agreement among States . Although international law defines the behaviour of terrorism, UN Resolutions show that the debated regarding the definition of terrorism will last for a long time in the future.  [UN. (2005-08-12). Draft Comprehensive Convention, A/59/894, annex II 7]

To sum up, the inclusion of some criminal behaviours into the Criminal Law is a big step for China. However, legislators should be cautious about the definition of terrorism, terrorism activities, and the relationship between the customary international law and domestic legislation regarding a crime of terror.

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