Fighting the "three Evils": a Structural Analysis of Counter-terrorism Legal Architecture in China

• Citation: Vol. 33 No. 3
• Publication year: 2019
• topic: Criminal Law

Fighting the "Three Evils": A Structural Analysis of Counter-Terrorism Legal Architecture in China

Enshen Li

FIGHTING THE "THREE EVILS": A STRUCTURAL ANALYSIS OF COUNTER-TERRORISM LEGAL ARCHITECTURE IN CHINA

Enshen Li^*

Abstract

In the aftermath of September 11 attacks, China has not been immune to the global trend of destructive terrorism. However, China's perceptions of terrorism and legal responses to it greatly diverge from those of other countries. This Article first seeks to understand the cause, source, and impact of terrorist threats in China, known as "Three Evils"—terrorism, extremism, and separatism, through a critical inquiry of the country's ethnic and religious policies. It then proceeds to delineate China's legal framework for combating the "Three Evils" to explore the cultural characteristics of the government's approach against these rising threats. Tracing the evolution of the country's counter-terrorism laws and policies, this Article argues that China has developed an operational infrastructure composed of four strands to fight terrorism: crackdown, criminalization, control, and cooperation. This framework of "four Cs" operates within a vertically coordinated system by deploying diverse strategies and measures to regulate terrorism-related acts according to their level of severity and risk. While crackdown and criminalization serve mainly as reactive responses to terrorist violence through repression and retribution, control and cooperation are largely used as pre-emptive instruments to prevent substantial terrorist acts through incapacitation and community policing.¹

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Introduction

In the past two decades, terrorism has emerged as an increasing threat to international peace and security. The September 11 attacks in the United States and the string of large-scale attacks that have occurred worldwide in their wake represent an escalating trend in the breadth and severity of global terrorism.² Like the United States, the U.K., Canada, and other Western countries, China is increasingly exposed to this unprecedented threat that poses a range of challenges to the country's domestic stability. Conceptually diverging from its Western counterparts, China perceives terrorism as, in Beijing's parlance, one of the "Three Evils/Three Evil Forces" together with religious extremism and separatism, which are all interconnected threats to the country's national security and regional stability.³ Since the late 1980s, the cultural and religious differences between the Uyghurs and the Han Chinese have caused a significant upsurge in the frequency and scale of ethno-religious violence in China. Insurgencies have severely and regularly affected Xinjiang—the region in Northwestern China where most Uyghurs live.⁴ More recently, violence has spread beyond the border of Xinjiang and has extended to major cities in the eastern and southern regions of China.⁵ In Beijing, Kunming, and Guangzhou, attackers generate terror by launching targeted assaults on civilians and public property, resulting in mass fatalities and heightened destruction.⁶ Although some of these violent acts are arguably terrorist attacks,⁷ they are characterized by the Chinese government as

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terrorism-driven incidents involving either individuals connected to terrorist organizations or lone attackers. Following Xi Jinping's transition to power in late 2012, terrorism has grown to be a high-priority concern of China's new leadership among the issues surrounding the country's national security agendas.⁸

Several studies examine China's response to terrorism.⁹ Despite scholarly disagreement regarding the causes and manifestations of terrorism in China, most scholars, operating principally from a socio-political point of view, agree that the Chinese Communist Party (CCP) relies on hard and soft power to curb terrorism. For example, Martin Wayne explains that China adopts "an overwhelmingly bottom-up approach" to counter insurgencies in Xinjiang.¹⁰ While harsh measures, such as (para)military action and "Strike Hard" campaigns,¹¹ to manage incidents of unrest have been deployed, other oppressive tactics—such as surveillance, monitoring, and restrictions on movement —have increased under the auspices of the preventive rationale for counter-terrorism after the first decade of the twenty-first century.¹² In parallel with these hard power approaches, the CCP has implemented a spate of domestic policies to address the economic and social roots of terrorism.¹³

Other scholars express a similar view from a slightly different perspective. Liselotte Odgaard and Thomas Nielson, for example, argue that though the CCP implements development strategies aimed at improving the economic standards and social status of ethnic minorities in Xinjiang, China's political structure engages in repression and imposition because of the country's unitary national identity and institutional settings, which "encourages assimilation or exclusion

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by using force."¹⁴ Researchers also focus on China's foreign policy, extraterritorial activity, and social programs for countering terrorism, which indicate the State's ongoing efforts to develop various moderate and severe measures for achieving social stability in the Xinjiang region, which is rife with ethnic conflict.¹⁵

While current research focuses mostly on China's social policy and political strategies for countering terrorism, there is a relative dearth of literature that addresses China's legal response to the so-called "Three Evils." Starting in 2001, China's legislative efforts to regulate terrorism have been robust and extensive. Following the 9/11 incidents in the United States, the Chinese government has made several piecemeal amendments to its Criminal Law (CL), Criminal Procedure Law (CPL), and relevant administrative laws regarding the regulation of terrorism.¹⁶ In 2015, the National Security Law (NSL) and the Counter-Terrorism Law (CTL) were enacted to systematize the country's counter-terrorism legal architecture and bureaucracy, as well as to address a set of key procedural issues that arose from the extraordinary increase in lawmaking. According to Clarke, the introduction of hardened counter-terrorism reflects the country's declaration of a "war on terror," as these laws permit Chinese authorities to "deploy significant repressive force, in political, legal, and police/military terms, to confront the perceived threat to Xinjiang's security posed by Uyghur terrorism."¹⁷

Drawing on the legislative reform of China's counter-terrorism policies, this Article will comprehensively delineate the legal architecture adopted by the CCP to tackle terrorism. In doing so, it is imperative to examine how the "Three Evils" have shaped in Chinese political and social contexts and explore why and how China has developed its current discourse regarding terrorism. This social and cultural inquiry serves as a background against which the country's counter-terrorism laws and policies can be better understood and perceived. This Article focuses on the way in which these counter-terrorism legal instruments have been employed by the state/legal apparatus to the extent that they have evolved,

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changed, and developed since the formalization of the counter-terrorism legal system in 2001. The central finding of this analysis contradicts a common conclusion in the existing literature that China's legal strategy for countering terrorism has been harsh and repressive.¹⁸ Specifically, the Article argues that over the last fifteen years or so, the Chinese government has established a culturally distinctive law enforcement model for responding to terrorism, namely a "four Cs" operational infrastructure comprising of crackdown, criminalization, control, and cooperation. This vertically coordinated system encompasses a diverse range of legal measures for managing terrorism-related acts according to their level of severity and threat. The system does not draw clear institutional boundaries between each model. Rather, the four work streams are intertwined and consolidated to generate an omni-directional and wide-ranging attack on terrorism. The following are descriptions of each "C":

(1) Crackdown: the use of suppressive force to respond to large-scale and serious ethno-religious insurgencies.

(2) Criminalization: the enforcement of ordinary criminal statutes (including the new CTL) against attackers involved in ad hoc and individual incidents.

(3) Control: the application of pre-crime measures and administrative detention to prevent potential risks arising from misdemeanors linked to terror.

(4) Cooperation: the adoption of the "mass line" policy to mobilize citizens and engage them in the grassroots policing of terrorist threats.¹⁹

Although these four strands aim to pursue a common goal of reducing terrorism, they serve different forms of justice by deploying divergent approaches. In this hierarchical framework, crackdown and criminalization function as reactive instruments to punish and deter terrorist violence through harsh measures. While crackdown delivers repressive justice in the form of suppression and coercion, criminalization operates as a regularized means of retributive justice by processing terrorist offenders in a standard criminal justice

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system through prosecution and sentencing. Concurrently, control and cooperation function as pre-emptive responses to potential threats associated with terrorism. While control pursues managerial justice to curtail terrorist threats by incapacitating individuals who represent potential risks to society, cooperation uses "mass line" justice to mitigate the risks of terrorism in the embryonic stage through several community policing initiatives.

This Article is divided into three parts. The first section traces the nature, formation, and extent of terrorist challenges facing China with reference to the State's ethnic and religious policies in...