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China: Draft Counterterrorism Law a Recipe for Abuses

Major Overhaul Needed for Law to Conform with International Legal Obligations

(New York) – The Chinese government should radically revise its proposed legislation on counterterrorism to make it consistent with international law and the protection of human rights. The draft law was made public for consultation in November 2014 and is expected to be adopted in 2015 after minimal revisions.

As currently drafted, the law would legitimate ongoing human rights violations and facilitate future abuses, especially in an environment lacking basic legal protections for criminal suspects and a history of gross human rights abuses committed in the name of counterterrorism. Such violations are evident across the country and particularly in the Xinjiang Uyghur Autonomous Region, the region that has been most affected by acts of terrorism and political violence in recent years.

“China has seen appalling attacks on people, and the government has a duty to respond and protect the population,” said Sophie Richardson, China director at Human Rights Watch. “But in its present form this law is little more than a license to commit human rights abuses. The draft needs to be completely overhauled and brought in line with international legal standards.”

The Chinese government claims that its proposed counterterrorism legislation responds to and conforms with United Nations Security Council resolutions urging countries to take measures to combat and strengthen their cooperation against terrorism. Yet such resolutions have also stressed that countries need to “ensure that any measure taken to combat terrorism comply with all their obligations under international law ... in particular international human rights, refugee, and humanitarian law” (Security Council Resolution 1456 (2003))—something that China’s proposed legislation clearly does not do.

The draft counterterrorism law states that “counterterrorism work shall be conducted in accordance with the law” and that “human rights shall be respected and guaranteed” (art. 6). But the 106-article draft makes clear the government’s intent to establish a counterterrorism structure with enormous discretionary powers, define terrorism and terrorist activities so broadly as to easily include peaceful dissent or criticism of the government or the Communist Party’s ethnic and religious policies, and set up a total digital surveillance architecture subject to no legal or legislative control. (See below: China’s Draft Counterterrorism Law: Key Areas of Concern)

In recent years China has experienced a number of deadly and apparently politically motivated attacks directed against the general population. Since 2009 several hundred people have died in Xinjiang in attacks on police stations, train stations, and public markets. Some attacks have also taken place outside of Xinjiang. On March 1, 2014, in one of the most serious incident to date, 8 knife-wielding men and women attacked a crowd at Kunming train station, in Yunnan province, killing 29 and injuring 143, according to official accounts.

At the same time, the Chinese government has long manipulated the threat of terrorism to justify its crackdown on the 10 million ethnic Uyghurs in Xinjiang. Human rights violations documented by Human Rights Watch in recent years include broad denial of political, cultural and religious rights, torture and enforced disappearances, extensive censorship, and pervasive socio-economic discrimination.

“While terrorism poses grave threats to society, overbroad and abusive counterterrorism measures can also inflict grave harm and exacerbate conflict,” Richardson said.  “Harsh measures that conflate political or religious dissent with crime discourage ordinary people from trusting or cooperating with law enforcement agencies.”

Over the past three years hundreds of people have been killed by law enforcement personnel in what the authorities claimed were counterterrorism operations, raising serious concerns about regular disproportionate use of force, especially since China systematically prevents independent monitoring of the region. This situation makes it impossible to assess the veracity of general and specific claims by the Chinese government of terrorist incidents or threats.

To reduce the risk of militancy and politically motivated violence, Human Rights Watch said, the Chinese government should immediately remove curbs on the rights to freedom of expression, religion and association, strengthen the independence of the judiciary, end torture and ill-treatment of criminal suspects, and strengthen effective human rights protections.

“Targeting people for attack is never justified, but committing human rights violations is no way to stop such horrific violence,” said Richardson. “The Chinese government needs to respect rights, not build a new architecture of surveillance.”

China’s Draft Counterterrorism Law: Key Areas of Concern
Many aspects of the current draft counterterrorism law are incompatible with international human rights law and could facilitate future human rights violations. Given the lack of an independent judiciary, the pervasive character of human rights violations in China, and the criminalization of peaceful political challenges to one-party rule by the Communist Party, the draft law raises serious concerns regarding privacy, police powers, counterterrorism interventions abroad, and freedom of association and expression.

Serious Concerns Include:
1. The Definition of what Constitutes “Terrorism” is Dangerously Vague and Open-Ended
The draft law’s definition of terrorism includes “thought, speech, or behavior” that attempt to “influence national policy-making,” “subvert state power,” or “split the state” (art. 104). The first criterion is overly broad and could potentially apply to anyone advocating for policy changes. The two other criteria have been regularly used to prosecute peaceful dissenters and critics of government or Party policies, including the Nobel Peace Prize Laureate Liu Xiaobo and the Uyghur economist Ilham Tohti (sentenced respectively to 11 years and life imprisonment). The definition of what constitutes “terrorism” also tautologically refers to “other terrorist activities,” potentially allowing any activity to be deemed a terrorist offense. The offenses of “advocating, inciting, or instigating” terrorism and “supporting, assisting, or facilitating” a terrorist organization or terrorists includes these same overly broad definitions.

2. Terrorism is Conflated with Religious “Extremism”
Under China’s already restrictive religion policies, the term “religious extremism” is routinely employed to characterize and often prosecute religious activities that take place outside state-controlled religious institutions, even if that activity is well within the boundaries of freedom of religion as defined under international law. Among the broad conduct identified as “extremist” by the draft law feature: “distorting or attacking state policies, laws, and administrative regulations,” “using ethnicity or religion to … interfere in production or management,” and “forcing minors to take part in religious activities,” as well as open-ended clauses such as “other conducts that disrupt the implementation of state policy, laws, administrative rules and regulations” (art. 24).

In Xinjiang, minors have long been prohibited by law from participating in any religious activity. Under the draft law, defying these restrictions could now be characterized as “terrorist or extremist tendencies”. Behavior deemed “extremist” is to be subject to reeducation, censorship, and punishment (art. 26).

3. The Designation of Terrorist Organizations by the State is Devoid of Due Process Protections
The draft law would establish a new counterterrorism body, the “leading organ on counterterrorism work” (fankongbuzhuyi gongzuo lingdao jigou) It will have the power to designate organizations and members as terrorists (arts. 68-72). Membership in a designated terrorist group is criminalized regardless of the actions or the intent of the individual members (art. 71). The draft law states that this determination can be appealed, but not in court, only to the “leading organ on counterterrorism work”—the body that will have made the initial determination (art. 72).

In the past, the Chinese government has labeled as “terrorist” organizations that openly rejected violence but were critical of government policies, such as exile groups including the World Uyghur Congress and the Tibetan Youth Congress.

4. Enforcing a System of Complete, Permanent Digital Surveillance
All telecommunication and Internet service providers would be required to provide the government with “backdoors” and a copy of the encryption systems they use, and assist with decryption (arts. 15-16, 94). Requiring companies to do so could actually undermine security because these services would be more vulnerable to hacking. All telecommunication and online service providers would be required to store user data within China’s borders (arts. 15, 93). Providers that do not comply will not be allowed to operate in China (art. 15). This information will be networked with the new national counterterrorism intelligence center (arts. 41-52).

Major transport hubs, streets, and public spaces will be outfitted with facial recognition equipment that will cross-check the information collected against a database of wanted suspects (arts. 23, 46). Such a system could easily be abused for personal or political ends, or used to track political dissenters and others for peaceful activities protected under international human rights law. The draft law does not establish a time limit for keeping the data, nor does it define which agencies and under what procedures they will be able to access it.

In the absence of any meaningful protections, and given the near complete absence of privacy statutes in China, Human Rights Watch is concerned that this architecture of surveillance will be used to suppress peaceful political dissent, target human rights and other civil society activists, and suppress particular religious or ethnic groups deemed suspect by the law enforcement agencies.   

5. The Authority and Powers of the New Body in Charge of Coordinating Counterterrorism Work are Vague
The new “leading organ on counterterrorism work” is vested with considerable powers to carry out “all work on counterterrorism nationwide.”  However, the draft law gives no details about the source of its legal authority and the authority to which it will report, its operations, and its staffing. The draft law merely states that this structure will have an “office” in charge of “day to day work,” corresponding bodies at the local (provincial, municipal and prefectural) level (art. 10), and that a “national counterterrorism intelligence center” will be established to centralize information between the “relevant departments” (art. 41).

6. The Draft Law Would Expand Coercive and Surveillance Powers of Law Enforcement Agencies
Law enforcement agencies would be allowed to impose a wide range of restrictive measures on terrorism suspects, such as prohibitions against leaving particular locations, communicating with specific people, or engaging in “large-scale social activities” or “business activities” (art. 52). These measures are not subjected to court authorization or a time limitation, and could easily be abused or applied arbitrarily, without legal recourse.

7. The Draft Law Would Allow Counterterrorism Missions Beyond China’s Borders
The People’s Liberation Army, the People’s Armed Police, the Public Security and the State security would be able to carry out “counterterrorism missions” abroad with the approval of the country concerned (art. 76.) The open-ended definition of “terrorism” used in the draft law would facilitate abusive acts in violation of China’s extra-territorial obligations to respect international human rights law.

8. The Draft Law Targets Nongovernmental Organizations
The draft law includes a specific section on nongovernmental organizations (NGOs) receiving foreign funding, reflecting the suspicion with which the Chinese government regards civil society groups. The law would require banks and related government departments to monitor the funding flow of foreign NGOs that operate in China, as well as that of foundations and other non-profit agencies. It also would require these organizations to report their financial situations and funding sources to the government agencies that sponsor them.

Such requirements are already part of the regulatory framework for NGOs and so are unnecessarily included in the counterterrorism law. The Chinese authorities have often used alleged tax or financial infractions to justify politically motivated arrests and prosecutions of civil society figures, such as the legal activist Xu Zhiyong in 2009 and the filmmaker Shen Yongping in 2014. The inclusion of such measures in a counterterrorism law means that NGOs would now be subject to investigation for much more serious offenses and face potentially much harsher penalties.







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