Thursday, January 7, 2016

In a commentary in the Ottawa Citizen, Prof. Kent Roach compares China's new anti-terrorism law to existing laws in democratic nations, finding that it is "is not radically different from those enacted by many democracies" ("China's anti-terror law takes its cues from democracies," December 31, 2015).

Read the full article on the Ottawa Citizen website, or below.


China's anti-terror law takes its cues from democracies

By Kent Roach

December 31, 2015

China’s new anti-terrorism law has attracted global attention, much of it critical.

China has responded that Western criticism is hypocritical given the increasingly strong measures that democracies have taken to combat terrorism. Both the critics and China have valid points.

Much of China’s new terrorism law is not radically different from those enacted by many democracies.

The new law has a broad definition of terrorism that includes incitement, covers acts for political and ideological objectives and even applies to those who wear clothing thought to promote terrorism.

This sounds bad, but the UN Security Council has been encouraging laws against incitement since the 2005 London bombings, and British laws have similar provisions.

Democracies need to be aware that non-democratic countries are eager to borrow from their terror laws.

The Chinese definition of terrorism is more restrictive than a draft law released in November 2014 that included the creation of ethnic hatred and subversion or splitting of the state and even included “thought” as terrorism. Nevertheless it could have been more restrictive and the definition retains vague concepts of creating “social panic” and “endangering public safety.”

The Chinese law picks up on a 2014 UN resolution to combat “violent extremism,” a term that the UN does not define. The Chinese law also does not define extremism, but it drops the preface “violent” and adds a coercive twist by creating offences of extremism.

The Chinese law includes references to combating incitement to hatred and discrimination that would not be out of place in many democracies. That said, context and history matters. The Chinese government has long equated separatism with terrorism and has recently used hate laws against those who complain about discrimination against the Muslim Uighurs.

Similarly, new offences for spreading false news about terrorism are, on their face, not radically different from Western offences about terrorist hoaxes, but are applied in a regime without a free press. New offences against “defaming or distorting national policies and laws” could also be used against critics of China’s new law.

The Chinese law also follows recent trends in recognizing the need for prison de-radicalization measures and the role of “grass-roots organizations” in providing it. Nevertheless, China’s unfortunate history of coercive re-education cannot be ignored.

China also joins the list of many countries using less restrained alternatives to criminal law. The Chinese version of peace bonds allows the executive, not judges, to order terrorist suspects to observe various house arrests conditions, albeit only for 90 days and not a year as in Canada.

The Chinese law also reflects the militarization of counter-terrorism, led by the United States since 9/11. There is a provision contemplating military anti-terrorism missions abroad with an ambiguous reference to obtaining the consent of the affected nation, a requirement that the U.S. has not always observed.

The new law requires a broad range of preventive measures including increased use of security background checks, transport and border security and use of CCTV surveillance. China, like many democracies, will now have an intelligence fusion center called the National Counter-Terrorism Information Centre. The new law contemplates increased use of surveillance subject only to undefined “strict approval procedures.”

The law follows broad trends in requiring Internet companies to assist with surveillance and deletion, while dropping a previous draft mandating electronic backdoors in response to U.S. criticism. Unlike in Canada, the executive and not judges decide what should be deleted.

Nevertheless China, like democracies, will play the “whack a mole game” that attempts to delete from the Internet speech associated with terrorism. It will also mandate media and religious institutions to engage in “counter-terrorism publicity and education.”

The Chinese law does not adopt all new counter-terrorism trends. There are no citizenship stripping provisions found in recent laws in Australia and France, but soon subject to repeal in Canada.

China’s new law has many alarming features that deserve criticism and scrutiny. So too do features of anti-terrorism laws enacted by many democracies.