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Counter-terrorism in China: Public Protection or Minority Oppression?

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About The Author

Alexander Barbour (Former Criminal & Environmental Law Editor)

Alex has recently graduated from the University of Birmingham, achieving a First Class Honours degree in Law. His main interests lie in issues concerning human rights, criminal justice and the environment. Alex recently received the Albion Richardson Award from Gray’s Inn to fund the BPTC, which he is currently undertaking at the University of Law, Birmingham.

Threats from terrorist groups have dominated the media in 2015. It is not just IS attacks in Europe that are feared, however. In China, a rise in the number of clashes with Muslim Uighurs has led to the introduction of a new law, which makes significant changes to the organisation of counter-terrorism efforts in China. While the Chinese government argues that the changes are necessary, there remains a question as to whether the new measures are proportionate, and if they accord sufficient consideration to important human rights standards.

Violence in China

There are two main sources of violence in China that the new law aims to address, namely Muslim Uighur separatists from the Xinjiang territory in northwest China, and Tibetan separatists. It is the former that has been cited extensively by the Chinese government as sufficient motivation for such a comprehensive law to deal with terrorism in China.

The official Chinese media has credited a number of attacks in recent years to Uighur separatists. The Kunming station massacre, for example, was a knife attack at a train station in 2014 that left 29 people dead. The Sogan colliery attack in September 2015 was another, where a group of knife-wielding men attacked off-duty workers at a coalmine, killing 50, including five police officers.

It has, however, been the continuing opinion of many Western countries that these examples of violence in the Xinjiang region are not acts of terrorism. Instead, many in the West are categorising them as ‘human rights conflicts’. This is because there is evidence of oppression of the Uighurs’ religion and culture, which is what has paved the way to extremism for some, as it has in other countries, such as with Muslims in the UK, when religious minorities feel alienated by the general community. Amnesty International expressed a similar view in March, when the law was being drafted, that the law would have no safeguards to prevent religious minorities or dissidents from being ‘persecuted on broad charges related to “terrorism” or “extremism”’.

The line between an action forming part of a human rights conflict and an act of terror is extremely thin in this case. The categorisation is important, as it informs the entire debate, but the definition largely depends upon whose side you are on. It is not my place to take sides, especially given the difficulties relating to accuracy of information when dealing with a state-controlled media. What is clear, however, is that the new law is broad enough to not just affect the Uighurs, but could instead affect anyone else deemed fitting by the Chinese government. It is, therefore, more pertinent to focus on the provisions themselves.

The new law

China’s first ever counter-terrorism law is, on the face of it, a legitimate and comprehensive piece of drafting. Article 3 sets out a definition of terrorism, Articles 4 and 7 set out the need for a comprehensive counter-terrorism strategy, and the creation of a counter-terrorism authority, neither of which China previously had. Article 6 even sets out:

Counter-terrorism work shall be conducted in accordance with law, respect and protect human rights, and preservation of citizens' and organizations' lawful rights and interests.

Citizens' freedom of religious belief and ethnic customs shall be respected in counter-terrorism efforts, and any practices discriminating on the basis of geography, ethnicity or religion is prohibited.

It is when you delve deeper that you find the provisions that are causing concern for governments and human rights organisations over the world, Human Rights Watch calling them a ‘license to commit human rights abuses’. The definition of terrorism in Article 3, for example, is broader than other definitions. The UK definition of terrorism, in s.1 Terrorism Act 2000, sets out:

Section 1.

(1) In this Act "terrorism" means the use or threat of action where-

[…]

(b) the use or threat is designed to influence the government [or an international governmental organisation] or to intimidate the public or a section of the public, and

(c) the use or threat is made for the purpose of advancing a political, religious[, racial] or ideological cause.

The new Chinese definition, in Article 3, sets out:

propositions and actions that create social panic, endanger public safety, violate person and property, or coerce national organs or international organizations, through methods such as violence, destruction, intimidation, so as to achieve their political, ideological, or other objectives’ (emphasis added).

The inclusion of the catchall phrase ‘other objectives’ makes this otherwise legitimate law extremely dangerous. Given that even the relatively closed UK definition has given rise to numerous human rights abuses, a definition of terrorism as broad as that in Article 3 of the new counter-terrorism law leaves open the possibility of arbitrary abuse of the significant power now given to counter-terrorism forces. This will more likely than not result in a decreased lack of respect for the human rights of those seen to be acting in one of the many, many ways covered by the new definition.

It is not simply the openness of the list that is potentially dangerous. The vagueness of some of the contents is equally worrying. ‘Social panic’, for example, could cover any number of actions, from large-scale riots to invoking a sense of uneasiness a small group.

Other Articles, when read in consideration of the open definition of terrorism, appear to only increase the power of Chinese authorities. Article 9 sets out an obligation on all Chinese citizens to “assist and cooperate with relevant government authorities in carrying out counter-terrorism efforts, and where discovering suspected terrorist activities or suspected terrorist individuals, shall promptly report to the public security organs or relevant departments”. Article 10 incentivises reporting activity and assisting in prevention, setting out that “commendation and rewards” are to be given to those who make “outstanding contribution to the reporting of terrorist activities or assisting in prevention of terrorist activities”.

Technology sector involvement

The law also has significant ramifications for the technology industry. Article 18 forces telecommunications operators and Internet service providers to provide authorities with encryption codes. This means the counter-terrorism organisation would have greater access to private communications, leading some to question the assertions of the Chinese government that this will not result in infringement of liberty. There are clear parallels to be drawn between the surveillance powers granted by the new Chinese law, and controversial measures in the UK and US granted powers to GCHQ and the NSA, both discussed at length by Rowan Clapp for Keep Calm Talk Law.

Article 19 further restricts the technology industry, requiring them to put into place systems to prevent the spread of terrorist information. Not only this, but it requires such operators, if it finds such information, to remove the delete the information itself, or the website it is on, and assist the counter-terrorism authorities in their investigations. Such onerous requirements on technology companies is what caused Barack Obama to contact the Chinese government earlier this year to express concern for the detrimental effects the new law could have on foreign information technology companies.

The future

The human rights of the citizens of any country are increasingly at stake when the pervasive threat of terrorism forms the basis of a new law. In the UK, indeterminate detention of suspects in the various Terrorism Acts was the subject of challenges before both the UK courts and Strasbourg, and there is an ongoing debate about the laws regulating counter-terrorism operations, as the debate on the so-called ‘Snooper’s Charter’ and the continued extension of drone strikes to further regions show.

The new law in China, while a welcome consolidation of counter-terrorism policy, does little to protect minority human rights. Chinese dissident Hu Jia has argued that the new law is used ‘not [for] terrorism, but rather in the name of combating terrorism it attacks all kinds of protests’, creating ‘emergency situation where it can monitor and severely restrict citizens and groups’.

The new law sets a dangerous precedent in Chinese law. Though it is necessary to combat violence of the kind seen with the massacres in recent years, in a country with an uncritical legislature it is likely that similarly broad measures could be enacted in the future. Open laws creating extensive powers breed arbitrary abuse of power, which offends the rule of law and catalyses human rights abuses.

It is, then, important that not only dubious UK and US counter-terrorism measures be criticised, but Chinese operations under the new law must also be subjected to increasing scrutiny. This is difficult, given the severe restrictions on dissident Chinese voices, but it is of paramount importance if the law is to be used in line with the assurances of Article 6, and used only to counter ‘legitimate terror threats’ as the government asserts.

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Tagged: Anti-Terror, Human Rights, International Law

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