Repression by Law

Zhang Xuezhong was released by the police after just one day of questioning on May 11th 2020. Just two days before, he had published an open letter to the delegates of the soon-to-convene National People’s Congress, urging them to adopt a new and, in his words, a “real” constitution. He even included a draft of his own for their perusal, which opened in Article 1 with two sentences that may have been an inspiration from Germany: “人的尊严不可侵犯。尊重和保护人的尊严是一切国家权力的义务。- Die Würde des Menschen ist unantastbar. Sie zu achten und zu schützen ist Verpflichtung aller staatlicher Gewalt“. His appeal disappeared from Chinese social media, but luckily, he did not. Unlike many others in China, who stood up for liberal values and democratic transformation.

China did not need 9/11 to further restrict civil and political rights, but it surely did jump onto the bandwagon in using the legitimizing force of counterterrorism to intensify its repressive policies. The impact of these measures was mostly confined to the Muslim minority in Xinjiang and amounted to horrible suffering that has been the subject of many human rights reports, which increasingly oscillate between the verdict of genocide or crimes against humanity.

Unlike other jurisdictions, China did not add terrorism to its arsenal of national security crimes immediately after 9/11. Terrorism remained a crime of endangering public security, grouped together with hijacking and arson, among others. This artificial definitional demarcation between public and national security had become even more blurry and finally obsolete after China experienced its own terrorist trauma. When a group of assailants from Xinjiang randomly attacked people in the Kunming train station on the evening of March 1st 2014, using long-bladed knives to kill 29 and wound more than 140 before they were stopped in the early morning of the next day. The Chinese public was shocked and thus the regime had its own 9/11 moment.

While terrorism became a matter of national security in the aftermath of the Kunming attack, this still did not significantly alter China’s long-established practice of suppressing civil and political rights. China’s so-called “People’s War on Terror” did, however, have a stifling impact on the ability to practice Islam in China (and especially in Xinjiang) and is, when discussed in the context of counterterrorism and human rights, therefore best be characterized as a significant encroachment of religious freedoms, as protected under international human rights law and brought China’s human rights record to a new low point in the 21th century. China, however, rather bluntly draws a direct line from ‘distorted religious practices’ to extremism and terrorism, which ultimately made religion the main target for China’s counterterrorism measures.

Repression and Terrorism between National and Public Security

China’s criminal and police laws are crowded with repressive instruments that give the regime far-reaching capabilities to suppress civil and political rights. Terrorism only plays a minor role when it comes to core individual liberties such as the freedoms of thought, expression, assembly or association. Core crimes that are employed for this purpose are sedition, as well as the subversion of state power, which fall within the category of national security. Until the understanding of terrorism fundamentally shifted after the Kunming attack of 2014, terrorism was not considered a crime that could actually threaten the state’s integrity. Even the revision of China’s criminal law immediately after 9/11 did not alter this approach, but mainly implemented the the UN SC-Resolution 1373 of September 2001, by criminalizing (financial) support of terrorism (Art. 120 1 Chinese Criminal Law, “CCL”) or money-laundering for terrorist causes (Art. 191 CCL). Terrorist acts were still not a stand-alone crime, whereas the dangerousness of organizing or participating in a terrorist group fell in the category of public security.

The regime regularly charges prominent Chinese dissidents like the late Nobel Peace Prize recipient Liu Xiaobo or the human rights lawyer (维权律师) Xu Zhiyong with the almighty but vaguely worded crime of subversion of state power (Art. 105 CCL), which carries a minimum penalty of 10 years imprisonment for the alleged “ringleaders”. Even the act of “instigating” the subversion of state power can amount to 5 years in prison. The direct link to speech of this crime can, inter alia, be seen in the Supreme People’s Court (“SPC”) interpretation for handling cases of the punishment of crimes and illegal behavior that may obstruct the fight against COVID; anyone who exploits the pandemic for fabricating or spreading rumors can in serious cases be charged with subversion of state power.

The catch-all criminal law provision in the area of suppressing speech is, however, the notorious crime of “picking quarrels and provoking trouble (寻衅滋事, Art. 293 CCL)”. This offence is often used to punish people, who openly express their anger about the regime or complain about injustice and repression. Just recently, China corroborated that it considered many of these cases sensitive, when they suddenly disappeared from the SPC’s database, China Judgment Online, which was meant to establish comprehensive transparency in China’s judicial system.

The only prominent case, in which a political dissident was charged with the crime of leading a terrorist organization was that of Wang Bingzhang, a pro-democracy organizer and activist since the early 1980s. It may not have been a coincidence that he was charged with terrorism in 2002, after his abduction from Vietnam, as China may have been testing the waters for using this crime on political dissidents just shortly after 9/11. International criticism may have quelled this approach, and China henceforth resorted to its well-tested offenses of subversion or picking quarrels.

In the field of suppressing violent and non-violent separatist activism, China also has other powerful legal tools for criminal prosecution. The most prominent being the crime of sedition (分裂国家罪 – “Crime of Splitting the State”), which can also warrant life imprisonment and was, for example, used on the 2019 Sakharov Prize laureate and Uyghur academic Ilham Tothi.

China apparently saw no lacuna in its laws for handling violent acts that caused widespread terror in society, which would have easily been on the terrorist spectrum of offenses in other jurisdictions. A prime example are the long lists of bombings that occurred in China since the early 2000s and targeted residential, commercial, party and government buildings with sometimes a high number of victims. China’s criminal law had no issue in meting out strict punishments, and sometimes the death penalty, without resorting to the concept of terrorism. In China’s view at the time, terrorism should remain a problem of the international arena, even though it had started to rebrand violent separatism in Xinjiang as terrorism in 2002, while explicitly stressing the international character of this terrorism on Chinese soil. Clearly, this step served to legitimize China’s suppression of separatism in Xinjiang with the international momentum singling out Islamic terrorism as the biggest threat to global security.

This approach fundamentally changed after the Kunming attack. While still with an international dimension, as the attackers were allegedly on their way to join the IS in Syria, China now saw itself faced with a serious threat of home-grown terrorism and started to adapt its legal capabilities accordingly. Not only did the vague but powerful National Security Law of 2015 now explicitly mention the fight against terrorism (Art. 28) but, more importantly, China enacted a comprehensive Counterterrorism Law (CTL) in 2016, which now identifies terrorism as an overarching threat to national, public and personal security (Art.1). This law also provided China with its first legal definition of terrorism:

“In this law, terrorism means any advocacy or act that, by means such as violence, destruction or threat, causes panic in the population, endangers public security or infringes upon personal or property rights or compels state organs or international organizations, with the purpose of realizing political, ideological or other goals.” (Art. 3 CTL)

The inclusion on non-violent “advocacy” in this definition was widely criticized in Chinese legal academic circles, but it only echoes the global trend to push the reaches of criminal law farther away from the violence of a terrorist attack with the effect of criminalizing behavior that may be conducive to terrorism but that cannot yet be directly linked to the actual preparation of a terrorist attack. Accordingly, China’s criminal law was amended in 2015, introducing five new terrorism-related crimes. One covers acts of making preparations for terrorist activities (Art. 120 II CCL), whereas the other four crimes look at mostly non-violent behaviour that further precedes a terrorist attack and establish a direct link between extremism and terrorism (Art. 120 III-VI CCL), such as possessing material that propagates extremism. By blurring the demarcations of national, public and personal security in its counterterrorism measures, China elevated the dangerousness of vaguely terrorist-related behaviour and thereby further broadened its already powerful capabilities for the suppression of non-violent activism.

Counterterrorism and the Suppression of Religious Freedoms

Just like in the political realm, China’s legal system and practices provided a wide range of instruments to suppress religious practices even before its counterterrorism laws came into place. Between the constitutional limit of protecting only “normal religious practices” (Art. 36), the mighty administrative supervision by China’s State Administration of Religious Affairs and the criminalizing of “heretic cults“, China already had a tight grip on religious life in its territory. China’s counterterrorism frenzy did, however, bring a new quality of suppression, specifically targeting Muslims and particularly those living in Xinjiang. The regime sees its main task in rooting out “distorted religious teachings”, by firmly pursuing its historic endeavour of sinicizing religion, as the CCP’s Central Committee recently reiterated in one of the many documents commemorating its 100-year anniversary in 2021.

Most repression in China is legalized, though it may be more accurate to categorize a portion of these legal measures as part of the prerogative state in the sense of Ernst Fraenkel. It is therefore possible to corroborate at least some of the horrific first-person accounts from Xinjiang by simply looking at the laws. For being subjected to the now notorious camp system, which China calls and paints as Vocational Education and Training Centers, the law provides four main routes. To name only one, the CTL has established a measure called “assisted education” (Art. 28), which may be applied for those who were “instigated or seduced” to partake in terrorist or extremist activities. According to the law, it is not necessary to actively seek proximity to extremist networks, but it may suffice to be subjected to an environment that can be perceived by the authorities as conducive to extremism, which evidently allows for highly arbitrary decisions by the competent public security organs.

The catalogue of unlawful extremist behaviour is non-exhaustive and very openly reveals its target of long-established religious practices in Xinjiang. Without substantial safeguards to protect this minority against the securitization and criminalization of their everyday life, it is at the discretion of the police to decide whether conduct is, e.g., considered as compelling someone to (financially) support a religious institution, as a “generalization” of the Halāl-principle, as wearing a Niqab, having an “abnormal” beard or giving a child a name that is “glorifying” religion is extremist. The Xinjiang Implementation Measures of the CTL (2018) also give a glimpse into the content of the abovementioned forms of “education”, which shall encompass legal knowledge, vocational skills, ethical thinking, mental health, progressive culture, scientific knowledge, and guidance on correct religious teachings, while Chinese (Mandarin) is to be used throughout the educational measures (Art. 45). This list does certainly not fully reflect the practices described in former inmates’ accounts; a subtext that this Chinese version of de-radicalization treats its cases as backward religious fiends of modern Chinese civilization, who need to be resolutely led away from religious teachings that interfere with “normal production and life”, is evident (Art. 3 Xinjiang De-Radicalization Regulations, 2017).

Final Remarks

The suppression of civil and political rights in China takes many forms. Counterterrorism was never needed as a fig leaf to introduce new policies that would undermine human dignity, and further limit rights and freedoms, particularly not after 9/11. When China however discovered the mighty narrative of a War on Terror after Kunming in 2014, the repression went far beyond the confines of limiting some civil and political rights, but spiralled into spheres of gross human rights violations and landed possibly in the purview of the gravest crimes international law has yet brought forth. In addressing obvious human rights concerns, China however firmly stands by its narrative that it is terrorism, which is the real danger to human rights, and therefore compels the state to use every force necessary to maintain security and protect its citizens. This approach is perfectly in line with China’s consequentialist concept of human rights, which focuses on (economic) development as the basis for the (material) well-being of the (majority of the) Chinese people. According to the many recently published Chinese White Papers on human rights and its political system, the “people’s happiness (人民幸福)” is the ultimate yardstick for a successful protection of human rights and should be measured in terms of overall development and the achievements of China’s economic, social, cultural, environmental and security policies. A constitutional legal transfer from Germany to China may be desirable in the eyes of liberal academics and pro-democracy activists, but respecting and protecting human dignity is far from being a guiding principle for the authorities in the People’s Republic of China.