Following the 9/11 attacks, the media frequently reported that China was planning to adopt a comprehensive anti-terrorism law. It was not until last November, however, that the National People’s Congress (NPC), China’s top legislature, finally published the much-anticipated draft law on counter-terrorism, consisting of 106 articles, for public discussion.
Despite overwhelming domestic acclaim, the draft law is sparking sharp international criticism. Human Rights Watch (HRW) recently accused China of attempting to use the law to legitimize ongoing human rights violations and to facilitate future abuses. Among the concerns raised by the HRW, the definition of terrorism ranks number one. In the words of the HRW, the definition of terrorism is “dangerously vague and open-ended.”
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Actually, this law is not the first Chinese legal instrument to define terrorism. In December 2003, the Ministry of Public Security published China’s first terror list, enumerating four terrorist organizations and 11 terrorists. The national police authority also announced concrete criteria for designating “a terrorist organization” and “a terrorist.” These criteria remained in the form of an administrative regulation rather than a parliamentary law. Later, in October 2011, the NPC’s Standing Committee passed a “Decision on Issues Related to Strengthening Anti-Terrorism Work.” Although it falls short of a full-blown anti-terrorism law, the short Decision, consisting of eight articles, sets up another significant legal foundation for Chinese anti-terrorism efforts. In particular, the legislation provides definitions for “terrorism,” “a terrorist organization,” and “a terrorist.”
Obviously owing to the worrisome escalation of terrorist acts since the Tiananmen Square attack in October 2013, Chinese authorities decided to enact a comprehensive anti-terrorism law to address the new situation. Such a law requires, first and foremost, a well-reasoned definition of terrorism. Surprisingly, the draft law did not take up the terrorism definition that had been offered by the anti-terrorism Decision in 2011. According to Article 104 of the draft law, “terrorism” means “any thought, speech, or activity that, by means of violence, sabotage, or threat, aims to generate social panic, influence national policy-making, create ethnic hatred, subvert state power, or split the state.”
Article 104 goes on to flesh out the keyword “terrorist activity” as referred to in the “terrorism” definition. Accordingly, “terrorist activities” include (a) propagating, inciting, or instigating terrorism; or (b) forming, leading or participating in an terrorist organization; or (c) organizing, plotting, or implementing a terrorist action; or (d) supporting, assisting, or facilitating a terrorist organization or individual through the provision of information, funds, material, equipment, technologies or venues; or (e) other terrorist activities.
Further, Article 104 also defines “a terrorist organization” and “a terrorist.” Hence, a terrorist organization refers to a relatively stable criminal group, of at least three members, established for the purpose of carrying out terrorist activities; a terrorist is either a member of a terrorist organization or a person who carries out terrorist activities.
For a better understanding of the definition of terrorism in the draft law, one needs to look at how this term is defined globally. To date, the international community has failed to agree on a single definition for terrorism, partly as a result of the common statement that “one person’s terrorist is another person’s freedom fighter.” Nonetheless, a high degree of consensus does exist, as illustrated by numerous terrorism definitions in international and national law.
Given the large number of definitions, we’ll choose three that are particularly influential as comparative examples. These definitions were proposed or used by the UN in its Draft Comprehensive Convention on International Terrorism, by the EU in its Framework Decision of June 2, 2002 on Combating Terrorism, and by the U.S. State Department in its annual country reports on terrorism to the U.S. Congress.
Terrorism is generally defined by four key elements: violence, target, motivation and organization.
First, terrorism requires violence as its objective element. Violence is usually a criminal offence of a certain gravity. Of the four elements, violence is the least controversial. The UN definition confines the element to intentional violence that causes (a) death or serious bodily injury to any person; (b) serious damage to public or private property; or (c) damage to property resulting or likely to result in major economic loss. The EU definition provides a long list of the most serious offences against persons or property. The U.S. definition requires the premeditated use of violence. By contrast, the Chinese definition describes this element merely as “violence, sabotage, or threat” without itemizing specific offences. As regards the violence element, the Chinese definition is comparable to that of the U.S., but broader than those of the UN and the EU.
The second element of terrorism is the immediate target for the violence. Traditionally, immediate targets are limited to persons. More recently, however, the term has tended to be stretched to include objects. In the UN and EU definitions, immediate targets may also be public or even private property. The U.S. definition uses the term “non-combatant targets,” officially interpreted to include both civilians and military personnel not deployed in a war zone or a war-like setting. By comparison, the Chinese definition does not specify any immediate targets.
Third, terrorism is traditionally defined as politically motivated violence and thus traditional definitions typically require a political motivation as their subjective element. The trend today seems to be to view political motivation as a sufficient but not an absolutely necessary element of terrorist violence. In the UN definition, the motivation may be “to intimidate a population” or “to compel a Government or an international organization to do or abstain from doing any act.” The EU definition requires the aim of “seriously intimidating a population” or “unduly compelling a Government or international organization to perform or abstain from performing any act” or “seriously destabilising or destroying the fundamental political, constitutional, economic or social structures of a country or an international organisation.” The U.S. definition describes terrorism merely as “politically motivated violence,” without expounding on the “motivation.” By contrast, the Chinese definition requires a motivation that “generates social panic” or “influences national policy-making […].” Except for the U.S. definition, the other three definitions that separate the motivation of intimidating the population from the motivation of coercing the government may also include violence without any political motivation.
Lastly, in the past, terrorism had to be committed by individuals at the behest of an organizational entity. More recently, so-called “lone wolves” without affiliation to any organization have also launched destructive attacks and may even pose a greater threat than that represented by organized groups. The definitions of the UN, the EU, the U.S., and China do not require the organization element.
For those first two elements, the Chinese definition is wide open to interpretation by not specifying offenses or immediate targets. In terms of the motivation element, the Chinese definition lacks more restrictive words such as “compel,” “seriously,” and “unduly” to set terrorism apart from other serious crimes. Of all the definitions, the Chinese one is clearly the broadest.
Oddly enough, the Chinese definition of “terrorism” includes not only “activity” but also “thought” and “speech.” How can thought or speech be labelled terrorism? How should a person who does not implement any “activity” be punished simply for his or her “thought” or “speech”? One reason for this misleading definition may be that the drafters of this law meant to capture the dissemination of terrorist thoughts or speech but were injudicious in their choice of terms. In fact, spreading terrorist thoughts or speech is “propagating, inciting, or instigating terrorism” as already provided in the definition of “terrorist activities.”
Balancing Security and Liberty
Absent a comprehensive and universal definition of terrorism, individual countries, including China, are left with the authority to interpret the term for themselves. Compared with Western liberal countries, China has greater discretion to combat terrorism in an effective – albeit repressive – manner. However, whenever China resolves to address the scourge of terrorism, it must also face the challenge of how to strike a proper balance between security and liberty.
Before passing the anti-terrorism law, Chinese law-makers need to overhaul the definition of terrorism to guarantee that terrorism is described as a serious crime with an additional quality that calls both for international concern and harsh treatment. In addition, proper procedural safeguards regarding terror lists should be introduced to ensure that the definition of terrorism does not capture an unreasonably wide range of persons, or, if this happens, that the affected persons will not be subject to unreasonable consequences.
Dr. Zunyou Zhou, head of the China section at Germany’s Max Planck Institute for Foreign and International Criminal Law, is the author of Balancing Security and Liberty: Counter-Terrorism Legislation in Germany and China (2014).