The Description and Analysisof China's Anti-terrorism CriminalLegislations

Abstract: Fromthe criminalization of terrorist organizations in China’s criminal law of 1997,to the Amendment III to the Criminal Law afterthe September 11th event in the USA,then to theDecision on Strengthening the Related Working Issuesof Anti-terrorism, China’s anti-terrorism criminal legislationsshow the following characteristics: they are in accordance withthe domestic anti-terrorist situation, consisting with the anti-terroriststrategy of United Nations, having the distinguishingfeature of emergency reaction and the tendency to take strictand stern measures, and exhibit fragmentation and imperfection.China’santi-terrorism criminal legislations in future should make themselves on thetrack of drawing up a unified law, paying more attentionto the guarantee of human rights,implementing the criminal policy of combining leniency withseverity and promoting the interaction between criminal lawand other laws.

Keywords: Anti-terrorismLaws, Preventive Criminal Law, Guarantee of Human Rights

1. Introduction

The theoretical study level of certain type of crimes in one countryis closely related to the occurrence time and severity ofthis type of crimes, because this type of crimes cannot be reflected in criminallegislations until it has become one of the most serious social issuesin one country, [1]onthe other hand, there is a relationship of dual interaction between the criminallegislations and criminal theory.[2]Consequently，inthe areas of criminal laws, we can obtain the following formula: The crimeslead to the legislations, the legislations lead to the theoretical studies,the theoretical studies in turn influence the legislations and criminal policy.

When the September 11th event in the USAmade the terrorism a common concern for the whole world, the international communityis increasingly concerned about it. Because terrorism in China appearedrelatively late, so the response in the legislations also appeared late,correspondingly, the theoretical studiesof terrorism in China, comparing with those of Westerncountries, have the characteristic of lag.[3]Before 1997, there were few studies of terrorist crimesin China’s academia about criminal law; the studies of terrorist crimeshad been progressively increased since the 1997 new criminal lawaddedthe crime of organizing,leading and participating in the terrorist organizations;the Amendment III to the Criminal Law after the September 11th event, whose primarypurpose was anti-terrorism, made the study of terrorist crimes in China enterupon a new period of flowering.[4]

The purposes of this article are: firstly,to explain how the anti-terrorist situation at home andabroad influences the legislations by describing the route map of China’scriminal legislations; secondly, to analyze China’s criminallegislations and try to offer some elicitation to its perfectionin the future.

2. THE BRIEF REVIEW OF CHINA’SANTI-TERRORIST CRIMINAL LEGISLATIONS

2.1 1997:Criminalizing the terrorist organizations for the first time

In China, the terrorist organizations havebecome the special regulation objects of criminal law since the 1997 new criminallaw. The legislature in view of the facts that “the organized terrorist crimeshave appeared in some areas” and “the crimes of organizing and leading theterror organizations have great harmfulness to public society”,adds the crime of organizing, leading and participating in the terroristorganizations (article 120) in the 1997 new criminal law in order to“fight against this type of crimes”, and stipulates that whoever commits thiscrime and also commits other crimes such as murder、explosion、orkidnapping, should be punishedaccording to the regulations for punishing multiple crimes.[5]

Although there were some crimes in old criminallaw suitable for punishing the terrorist crimes, such as manslaughter、explosion,skyjacking and so on, it is still significant to add the crime of organizing,leading and participating in the terrorist organizations in the new criminallaw, because it stipulates that the acts of organizing, leading and attendingthe terror organization are in themselves criminal behaviors, regardless ofwhether the criminals commit other crimes. This provision shows that thelawmaker pay close attention to the great harm which the terrorist crimes maybring about, and advances the intervention of criminal law to the moment thatalthough the terrorist organization appears it has not yet committed thecrimes it plans. [6]

2.2 2001: The amendmentof criminal law after the September 11th event

The September 11th event caused morethan 3500 dead and missing. After this event, the international communityquickly strengthened the anti-terrorist criminal legislations (of course, notonly the criminal law). One week after the September 11th event, the EU'sexecutive body, EU Council, passed two acts, which defined the concept ofterrorist activities in Europe and the sentencingguidelines for the relevant crimes and stipulated the European system ofwarrant of arrest for the first time. On September 29th, the UNSecurity Council approved the On International Cooperation to Combat Threats toInternational Peace and Security Caused by Terrorist Acts and set up the SecurityCouncil Anti-Terrorism Commission. And then UK、USA、Australia、Canada、Italy、India,Germany and other countries formulated and revised the anti-terrorist laws oneafter another.[7]Againstthis major background, facing the "East Turkistan"terrorists, Chinadecided to revise the criminal law, so the Amendment III tothe Criminal Law had been approved on December 29th,2001. Highlighting the anti-terrorism, this Amendment’s dominant theme is “topunish and control the terrorist crimes”. The main contents ofthe Amendment III to the Criminal Law include:

1. Strengthening the combat againstthe organizers and leaders of the terrorist organizations. Raisingthe legally-prescribed punishment oforganizing or leading the terrorist organizations from “imprisonmentof over 3 years but less than 10 years” to “imprisonment of over 10 years orlife imprisonment”.[8]

2. Adding thecrime of financing the terrorism in the article 120, criminalizing the actsof financing the terrorist organizations and individuals and setting forth the appropriatelegally-prescribed punishment. This article also stipulates that “if the crimesmentioned in the preceding paragraph are committed by a unit, the unit inquestion shall be fined, and the individual directly in charge of it and otherpeople who are directly responsible should be punished in accordance with theprovisions in the preceding paragraph.” This provision is in accordance withthe Security Council Resolution 1373 adopted unanimouslyon September 28th 2001 and International Convention forthe Suppression of the Financing of Terrorism adopted by theGeneral Assembly of the United Nations in resolution 54/109 of December 9th1999.[9]

3. Revising the crime of spreadingpoison in article 114、115 and reestablishing it as thecrime of throwing dangerous substance; Revising thecrime of illegally trading or transporting nuclear materials in paragraph2 of article 125 and reestablishing it as the crime of illegally manufacturing、trading、transporting、ordepositing dangerous substance; Adding the dangeroussubstance as the object of crime in article 127. According to thecriminal law, the dangerous substance includes the poisonous substance、radioactivesubstance、or pathogens ofcontagious diseases and so on.The reason for these revisions is to highlight the new and striking features ofterrorist activities. Since the 1990s, there has been a new wave of terrorism,the terrorists not only use more and more advanced weapons, but also seek tospread terror with the weapons of mass destruction as well. The terrorists areno longer satisfied with traditional measures such as explosion andassassination. With the spread of nuclear, biological and chemicalweapons technology, terrorists may attack the countries or areasthey hate with nuclear, biological and chemical weapons.[10]

4. Adding the terrorist crimesas the upper crime of money laundering. Originally theupper crimes of money laundering were the crimesof drugs, the crimes of criminal syndicatecharacteristic group and the crimes of smuggling,now are the crimes of drugs、the crimes of criminal syndicatecharacteristic group, terrorist crimes and the crimes of smuggling, so thescope of upper crimes of money laundering has been extended.[11]It’s to prevent from legalizing the illegal benefits of terrorist activitiesand to economically crack down on the terrorism.[12]

5. After the crime of assembling a crowdto disturb order at public places or traffic order in article 291 inserting twocrimes: the crime of throwing fake dangerous substanceand the crime of deliberately fabricating or propagating falseterrorism information. Although these acts are not the realterrorist activities, [13]theyare enough to create a terrorist atmosphere and disturb social order, so thecriminal law criminalizes these acts and sets forth the appropriate penalties.The background of these revisions is that after the September 11thevent there were several cases of anthraxmails happened in the USA and some Western countries. Although some of the anthraxmails were false, they also caused the “white powder panic”.

2.3.2011: Further progress of the anti-terrorist legislations

On October 29th 2011, theStanding Committee of National People's Congress passed the Decision onStrengthening the Related Working Issues of Anti-terrorism. It is an event ofgreat significance in China’sprocess of the anti-terrorist legislations. The Decision has 8 articles, thefirst makes clear China's basic position on anti-terrorism, that is, opposingthe terrorism of all forms; the second defines some core terms, such as terroristactivities, terrorist organizations and terroristforces; the third is the provision of anti-terrorist organizations,anti-terrorist forces and anti-terrorist staffs, for example, “country’santi-terrorist work leading body leads and directs the anti-terroristwork under a unified command”;[14]the fourth is the identification of the terroristorganizations and lists of terrorists; the fifth is the freezing ofthe money and other assets of the terrorism-related organizations and persons;the sixth is about the international cooperation of anti-terrorism; the seventhauthorizes the State Council and relevant departments to lay down the specificmethods guiding the identification of the terrorist organizations and lists ofterrorists; the eighth stipulates that this Decision will go into effect on theday of its promulgation. In fact, since the September 11th event,China’s relevant departments continue to devote themselves to make a systematicAnti-terrorist Law. However, some issues still have not been reached aconsensus, so the legislature decided to promote the anti-terrorist legislationswith the form of Decision, in order to ensure the quality and effect of thelegislations. This reflects that China’s government has adopted acautious approach to the anti-terrorist work. The reason for doing so is that Anti-terroristLaw, being different from other laws, is a law with which a country may use themost powerful power to attack the terrorism. The misuse of this power willeasily violate civil rights or affect the direction of China’s construction oflegal system.[15]

It should be mentioned that after thepass of the Decision above-mentioned, there are also anti-terrorism related revisionsin China’s criminal law and criminal procedure law. For example, in February2011, the Standing Committee of the National People's Congress passed the AmendmentVIII to the Criminal Law, which revised the regulations of specialrecidivist. Originally, the criminal law only took thecriminals of endangering national security as thespecial recidivist. Now, according to the new regulations of special recidivist,“if a criminal of endangering national security、terroristcrimes、crimes by criminal syndicatecharacteristic groups commits thesame crime again at any time after serving his or her sentence or receiving apardon should be dealt with as a recidivist.” Another example is that the AmendmentVIII to the Criminal Law stipulates that the people’s court, accordingto the circumstances of the crime, can decide to limit the commutation of thecriminals who are given suspended death sentences for organized violent crimes;and no parole should be granted to the criminals who are sentenced to more than10 years imprisonment or life imprisonment for organized violentcrimes. Because the terrorist crimes are oftenassociated with the organized violent crimes, so these regulations can also beapplied to the terrorist crimes which meet their conditions. Furthermore, the AmendmentVIII to the Criminal Law adds a regulation which stipulates that suspension ofsentence should not be applied to the ringleaders of the criminal groups, “inorder to stiffen the penalties for the terrorist crimes、crimesby criminal syndicate characteristic groups,for currently most of the crimes committed by the terrorists and criminalsyndicate characteristic groups are in the form of criminal groups”.[16]

The part 2 chapter 2 section 8 of thenew criminal procedure law revised by the National People's Congress in March2011 stipulates the technological investigation measuresfor the terrorist crimes and other crimes, [17]including technological investigation, [18]secret investigation[19]and controlleddelivery.[20]These measures, although having been already used in practice[21]and allowed to be used “according to relevant government regulations” by StateSecurity Law and Police Law, but had never been stipulated in the old criminalprocedure law. So these measures could not be justified and greatly impede theapplication of the regulations. Furthermore, these measures were lack of the legalposition in criminal procedure law, so the evidential materials obtained bythese measures could only be treated as investigation clues, not evidences for convictionand sentencing. The regulations of new criminal procedure law generally correctthese defects.[22]As a further example, the new criminal procedure law in part 5 chapter 3 addsthe process of confiscating the illegal income of major crimes such as terroristcrimes. According to it, if the suspects or defendants of terroristcases are in exile or have been wanted for more than 1 year and are still flyingfrom justice, the judicial organ can confiscate their illegal income inabsentia. Furthermore, the new criminal procedure law inarticle 20 stipulates that the intermediate people's courts should have jurisdiction as courtsof first instance over the terrorist crimes.[23]The new criminal procedure law also in article 37 limits the meeting right ofthe lawyer in the terrorist crimes and other crimes, that is, inthis type of crimes if the lawyer wants to meet the criminal suspect incustody, he or she must get the permission of investigation organ.[24]The new criminal procedure law in article 62 adds the safeguards of thewitnesses、expertwitness、victimsand their near relatives in cases of the terrorist crimes and other crimes, andin article 73 adds the regulation which stipulates that when the suspectsinvolved in terrorist activities and other crimes are under residentialsurveillance, if the execution of residential surveillance is in residence andhinders the investigation, it can be executed in specified dwelling with theapproval of the people's procuratorate or public security organ at the next higherlevel. The regulation in article 83 which stipulates that within 24 hours aftera person has been detained, his or her family should be notified of the reasonsfor detention and the place of custody is not applicable to the terroristcrimes and the crimes of endangering national security. Theregulations above-mentioned are applicable to the terrorist crimes and thecrimes of endangering national security、thecrimes of bribery、the crimes of criminal syndicatecharacteristic group、the crimes of drugs and other crimeswhich seriously endanger public security. It is worth noting that theapplication of these regulations is limited to some extent in almost all thecrimes above-mentioned except the terrorist crimes.[25]This reflects that the new criminal procedure law pays extraordinary attentionto the terrorist crimes.

3.THE ANALYSIS OF THE CHARACTERS OF CHINA’S ANTI-TERRORIST LEGISLATIONS

3.1In accordance with the domestic anti-terrorist situation

Now the most direct and real threat China is facing comes from the"East Turkistan"forces. Their political purpose is secession, their guiding thought is extremism,and their tool is violence.[26]The"EastTurkistan"forces are the forces of nationalsplittism in Xinjiang which take the “Independence of East Turkistan” as theirbanner、programand guide to action and dare to use the violent and terrorist manners. Accordingto statistics, in 1990-2002, the “East Turkistan" terrorist forces launched250 terrorist activities in Chinaor abroad, 20.8 per year on average. In 1996-1998,the number of the terrorist activities entered the peak. In these three years,the number of the terrorist activities launched by the “East Turkistan" terroristsin Chinaor abroad was 171, 57 per year on average.[27]Under such circumstances, the 1997 new criminal law stipulates the crime ofterrorist organizations. Ever since then, the violent terrorist activities arestill advancing in waves and appear to be escalating, so China’santi-terrorist legislations are in the process of continuous completion andimprovement.

3.2consisting with the anti-terrorist strategy of United Nations

Over the years, the United Nations’efforts in anti-terrorism have shown obvious effects, especially thecooperation between countries in the supervision of the flow of personnel and assets、theshare and communication of information have greatly enhanced the effectivenessand efficacy of international anti-terrorism. After the September 11thevent, the United Nations’ position and function become more prominent. Oneimportant reason for China’ssupport for a series of the anti-terrorist resolutions, statements anddeclarations passed by the United Nations and Security Council and activeparticipation in the anti-terrorist conventions is that the anti-terroriststrategy of the United Nations is consisting with China’s national interest. The factthat "East Turkistan" forces are always associated with the foreignterrorist forces and supported by some western countries[28]determines that China’santi-terrorist work must strengthenthe partnership with the UN-led international cooperation.That's why China’santi-terrorist legislations so perfectly link with the related internationalconventions. For example, in order to fulfil the duties specified in InternationalConvention for the Suppression of the Financing of Terrorism and set up asystem with which China can prevent the terrorists from financial aid, not onlyhad China added the regulations for punishing the acts of financing theterrorists in the Amendment III to the Criminal Law, but also established theAnti-money laundering Law in2006; in 2007, the People's Bank of China promulgated“Measures for the Administration of Financial Institutions' Reportof Transactions Suspiciousof Financing for Terrorist Purposes”, itstipulates that the financial institutes have the obligations to report the transactionssuspicious of financing for terrorist purposes; the People's Bank of China alsoplans to set up the financial payment and transaction monitoring center foranti-money laundering. Another example is that When Yang Huanning, ViceMinister of the Ministry of public security, commissioned by the State Councilto explain the Decision on Strengthening the Related Working Issues of Anti-terrorism(draft) to the Standing Committee of the National People's Congress, he pointedthat the related contents of this decision “had chosen the international conventionsChina had participated in and related international documents as reference”.The article 6 of the Decision also states “the People's Republic of China takes an active part ininternational anti-terrorist cooperation according to the internationaltreaties signed or joined by the People's Republic of China or the principleof equality and mutual benefit”.

3.3havingthe distinguishing feature of emergency reaction and thetendency to take strict and stern measures

Affected by the September 11thevent, the legislations of most countries around the world have the distinguishingfeature of emergency reaction;[29]the same is true with China. Although the 1997 new criminal law adds the crimeof organizing, leading and participating in the terrorist organizations, mostof the anti-terrorist legislations are after the September 11thevent. For example, the Amendment III to the Criminal Law passed on December 29th2001 has 9 articles, all of them are dealing with terrorist crimes; and theexplanation of its draft points out that this amendment is “aimingat the new situations of recent terrorist activities” and “in order to take astrong stance against the terrorist crimes”.[30]As we saw earlier, not only does the Amendment III to the Criminal Law raise thelegally-prescribed punishment of organizing, leading and participating in theterrorist organizations on the basis of the regulations of 1997 new criminallaw, but also extends the scope of regulation objects of the crime of poisoning、thecrime of illegally trading or transporting nuclear materials and the crime ofstealing、seizingor robbing the guns, ammunition, explosives (by adding the poisonous substance、radioactivesubstance、orpathogens of contagious diseases and so on as the “the dangerous substance”) aswell. It also adds the crime of financing the terrorism、thecrime of throwing fake dangerous substance、thecrime of deliberately fabricating or propagating false terrorism informationand so on, and adds the terrorist crimes as the upper crime of money laundering.It can be seen from the range and strength of the intervention of the criminallaw that it tends to have the explicit tendency to take strict andstern measures. Furthermore, from the perspective of the newlyrevised criminal procedure law of 2012, the regulations relating the anti-terrorism,such as adding the special investigation measures、addingthe confiscating process of the illegal income of major crimes such asterrorist crimes, limiting the meeting right of the lawyer in the terroristcrimes and other crimes and so on, reflect the tendency to take strict andstern measures.

3.4obvious fragmentation and imperfection

Driven by the temporariness and emergencyreaction, China’santi-terrorist legislations tend to patch up the laws ratherthan establish a unified and integral anti-terrorist law. For example, althoughChina’scriminal law criminalizes the terrorist activities, it doesn’t define the conceptof terrorist activities, terrorist organizations and terrorists. Not only has thisshortcoming a directly negative impact on the crackdown on the terroristactivities and control of terrorism-related assets, but also has adverseeffects on the international cooperation against terrorism as well. Thisproblem has been initially solved by the Decision on Strengthening the RelatedWorking Issues of Anti-terrorism in 2011. However, many contents of thisdecision are just principles; for example, there is only one article (article6) involving the international anti-terrorist cooperation and the content ofthis article has been similarly expressed in article 17 of the criminalprocedure law; furthermore, the academia proclaims that China is lack of thedetailed legislations on international criminal cooperation only because incriminal procedure law there are no articles on this subject but article 17;another example is that there are no regulations stipulating the concretemeasures for identifying the terrorist organizations and the lists of terroristsand freezing the terrorism-related assets, the State Council and the anti-moneylaundering administration department under the State Council have beenauthorized to stipulate these measures jointly with public security departmentand state security department in the State Council. All of these phenomena showthat China’santi-terrorist legislations have obvious characteristics of fragmentation.

4.THE SUGGESTIONS FOR PERFECTING CHINA’SANTI-TERRORIST LEGISLATIONS

4.1Establishing a unified and specific anti-terrorist law

Many countries facing the threats ofterrorism have made comprehensive and all-round reactions in legislations.[31]Chinain recent years also has been preparing to establish a unified and specificanti-terrorist law[32]and promulgated the Decision on Strengthening the Related Working Issues ofAnti-terrorism as its periodical result in 2011.

It is necessary to establish a unifiedand specific anti-terrorist law. First, China’s anti-terrorist regulations are widelyscattered through the criminal law、criminalprocedure law、anti-moneylaundering law、lawon the people’s armed police force、[33]law on control of the entry and exit of aliens and its implementingregulations、[34]national security law and its implementing regulations[35]and other laws and need to link up and coordinate with each other; furthermore,some institutions such as criminal procedure law are aiming at several types ofcrimes, so they should be deepened for anti-terrorism. Second, theanti-terrorist work involves several links such as prevention、emergencyreaction, sanction and restitution, countries in the world have put muchemphasis on such type of anti-terrorist system which is led by intelligence、putsthe prevention first、gives top priority to the emergencyreaction and takes the safety first. For this reason, the specialanti-terrorist organizations need to be established, the terrorist threats needto be analyzed and evaluated, the security levels need to be graded, the threatlevels need to be issued, the economic and social assistance and psychological treatmentneed to be provided for the victims after the terrorist attacks, and so on.[36]These complex social relations need to be regulated by a special law. Third,now in some areas, the bases for the departments concerned to performance theirduties are mainly the relevant documents and preplans of the CPC CentralCommittee, State Council and Central Military Commission. The fact that theseregulations have not been published to the society directly affects the effectsof the anti-terrorist work and is not good for showing the figure ofanti-terrorism according to the laws to the international community.[37]At last, the establishment of a unified and special anti-terrorist law is thesumming-up of anti –terrorist experiencesin several countries. Taking the USA and Russia for example, whose lessons of anti-terroristexperiences are the most remarkable; the formerpassed the Patriot Act and the latter passed the Russian Federal Anti-Terrorism Act.[38]

4.2paying more attention to the guarantee of human rights

The terrorism is a sort of seriouscrime, so preventing and curbing the terrorism is an important task for everygovernment and every government cannot ignore any measures which can ensure thesuccess. However, it must be noted that not all the measures in anti-terroriststruggles are legal. As some scholars have pointed out, if we don’t want to make“a road to despotism” and “replace the rule by laws with the rule by power”, wemust ensure the constitutional model of modern criminal policy: although thephenomenon of terrorism have its particularity and the anti-terrorist measures’departure from traditional legal system can be justified, the citizens' basicrights cannot be injured and the principles of legality and proportionality underjudicial controls should receive full respect. In a word, the things which cannever be sacrificed should not be sacrificed. In fact, the best method for recognizingthe “healthy level” of democracy and nomocracy in one society is analyzing itsanti-terrorist legislations. [39]When the anti-terrorist campaigns have been gathering steam and the domesticanti-terrorist legislations have the distinguishing feature of emergencyreaction, the countries are facing a common problem: In the areas ofanti-terrorism, the guarantee of human rights has been more or less ignored.[40]The people neither want to live in the shadow of terrorism, nor in thesituation that their basic human rights are being threatened and injured. Afterall, the terrorists are in a tiny minority and theterrorist crimes are not common in the society, so it is obviously a Pyrrhicvictory if the anti-terrorism makes everyone feel insecure, especially makes thebasic human rights of most of thepeople who have nothing to do with the terrorism be indanger. Of course, because of the harmfulness of terrorism, the preventativemeasures focusing on prevention (such as monitoring the phone or hacking intocomputer system) seem to be reasonable. Thus the ideal anti-terroristlegislation must try to carefully balance the conflicting aims and gain the appropriatebenefits. For example, when the departments concerned decide to monitor thephone or hack into computer system, they must ensure that in the approvalprocess most of the people who have nothing to do with the terrorism have beenexcluded from the monitor and hack; even if some suspects are being monitoredand hacked, the departments concerned must also ensure that the personalinformations which have no concern with terrorism will not beused for other purposes. Who has no privacy in the world? How terrible! When anycitizen who makes a call or uses computer is worried about beingmonitored by the people who are in charge of public power and exercise theirpowers or worries that their personal informations may be used for otherpurposes.

In China’s anti-terrorist legislations, weshould pay attention to following points: firstly, although the westerncountries revise some institutions overemphasizing the freedom to effectivelyfight against terrorism, the revisions are based on the principlesof free speech、theright of privacy、judicial review of constitution andhuman rights and have never shaken the fundamental principle of the rule of lawto its very foundation; however, China now is in the very middle of promotingthe guarantee of human rights and building a socialist country under the ruleof law, many of its practices are clearly embracing the security rather thanfreedom. Secondly, on one hand, China’s tradition puts more emphasison the cooperation of power sectors in the anti-terrorist campaigns;on the other hand, the western countries put more emphasis on the mutualconstraint between power sectors. For example, the article 3 of the Decision of2011 requires that the public security organ、thestate security organ、people's court、thepeople's procuratorate and judicial administrative organ should “cooperateperfectly” to fight against terrorism. However, the facts have proven that theoveremphasis on cooperation and the neglect of constraint will lead to the departurefrom the rule of law. From a long-term point of view, the costs which thesociety pays will greatly overweigh the transient secure effects. Thirdly, evenwe pay attention to the guarantee of human rights, we prefer thesupervision within the system rather than the supervision outsidethe system. However, there is an undisputable fact that the effect of thesupervision outside the system is much better than that of the supervision withinthe system. For example, the new criminal procedure law stipulates that thetechnological investigation measures should be “approved through strictapproval process”, however, this regulation is a sort of supervision within thesystem (the approval comes from the organ in charge ofhandling cases) and quite the reverse of the regulationof western countries, which stipulates that these measures should be approvedby the courts.[41]

4.3The anti-terrorist legislations should also implement the criminalpolicy of combining leniency with severity

First, on the “severity”, we mustconsider the following points: (1) the “severity” doesn’t meanthat all the terrorists should be sentenced to death. Now most of the countriesin the world have abolished the death penalty.[42]Although Russiais facing incessant terrorist activities, it has abolished the death penalty. Nowthe terrorists in Russiawill not be sentenced to death, but it doesn’t mean that the terrorists will begiven lenient sentences. Instead, the countries and areas which have alreadyabolished the death penalty are still giving severe sentences tothe terrorists by implementing the criminal policy of severity.Although China still lacks of the conditions forabolishing the death penalty, it has been on the way of diminishing the deathpenalty since the publication of Amendment VIII to the Criminal Law. So it isunwise to add death penalty in legislations, however, it is feasible to give severesentences to the terrorists according to the existing kinds and range ofpunishment. (2) The “severity” should find expression in making the arm of thelaw tight, such as adding new accusations and expanding the existing accusationsand descriptions of crime、paying attention to punish the criminalpreparations and criminal attempts of terrorist crimes、[43]limiting the commutation and parole of terrorist criminals、revisingthe regulations of special recidivist and setting up the system of preventativedetention. Once the terrorist activities are carried into action, they willcause serious damages to the public; so the thought of risk criminal law whichadvocates that the criminal law should bring forward the punishability to thestage of preparing for crimes in order to punish the abstract dangerouscriminal is feasible and the preventative criminal law has value for itsexistence. (3) The “severity” also includes the foreign legislative experiencesuch as the preventative detention. For example, Anders Behring Breivik, the Norway'smass killer who killed 77 people, had been sentenced to 21 years imprisonmentby Norway court, meanwhile, the court had decided that if this criminal wasstill considered to be a danger to society after he had beenreleased, he should be kept locked up. The 21 years imprisonment can beconsidered as a fix-term punishment, the detention after release can beconsidered as one of the non-fix-term security measures,that is, the preventative detention. He can be released when he has served hissentence and isn’t considered to be a danger to society; if he is considered tobe a danger to society, he will be kept locked up until his threat to thesociety has been eliminated. In some countries, the preventativedetention is non-fix-term; [44]inother countries, the preventative detention is fix-term, for example, ifsomeone has been sentenced to 5 years imprisonment and 5 years preventativedetention, after 5 years imprisonment, the physiological andpsychological specialists can decide whether the criminal can get an earlyrelease in following 5 years, however, the criminal should be released afterthe 5 years preventative detention in any event.[45]Although the system of preventative detention has been criticized by theorganizations and individuals who pay attention to human rights, it still hasits rationality from the perspective of safeguarding the social security and avoidsthe defect of indiscriminately punishing the persons whohave already committed crimes and the persons whoprepare for committing crimes. That is, if we adopt this thought,the penalty will mainly aim at the persons who have already committed crimesand the preventative detention will mainly aim at the persons who prepare forcommitting crimes.

Second, the antithesis of “severity” is “leniency”.“Leniency” can also be used in the campaigns against terrorism. In this respect,the foreign experiences such as “erecting a gold bridge to stop on theprecipice”[46]for the persons who break away from joint crimes areuseful. Many countries in the world give special awards to the terrorists who breakaway from terrorist organizations. Taking Italy for example, whenthe terrorist organization “Red Brigades” remained rampant, the Italian laws strengthenedthe enforcement measures to combat terrorism on one hand (for example, promotingthe term of preventative detention to 10 years), and tried to split up theterrorists and terrorist organizations and give special awards to the personswho broke away from terrorist organizations or camefrom Deliah's lap to Abraham's bosom for the purpose of making the terroristsbreak from terrorist organizations and provide useful clues to the judicialorgan.[47]France and Germany alsoset up similar institutions in their criminal laws.[48]

In fact, China’s previous legislationspaid considerable attention to the criminal policy of combining leniency withseverity; taking the Amendment III to the Criminal Law for example, it intensifiesthe efforts to fight against terrorism and raises the legally-prescribedpunishment of organizing or leading the terrorist organizations from"imprisonment of over three years but less than ten years" to"imprisonment of over 10 years or life imprisonment" on one hand, andreduces the minimum legally-prescribed punishmentfor other participants from public surveillance to deprivation of politicalrights(The original minimum legally-prescribed punishment was “not more thanthree years of fixed-term imprisonment、criminaldetention、orpublic surveillance”, now is “not more than three years of fixed- termimprisonment、criminal detention、public surveillance、ordeprivation of political rights”.). In the perspective of criminal policy ofcombining leniency with severity, we should not only further improvethe legislations, but also implement the criminal policy of combining leniencywith severity in the judicial field. In the stage of conviction and sentencing,the courts should give different treatments to the persons who participate inthe organizations for the reason of being coaxed or erroneously believe thatthe organizations are not terrorist organizations (for example, erroneously believingthat the organizations they participatein areunderground religiousorganizations); in the stage of executing criminal punishments, the penaltyenforcement organs should separately lock up the terrorist criminals accordingto their types and grades, work out the rehabilitation plans according to theirpersonal characteristics and give humanitarian treatments to them (for example,even the terrorist criminals who commit the worst crimes should be given sufficienttime for exercise ), they also should ensure that all the terrorist criminalsenjoy all the rights prescribed by the laws, for example, if a terrorist sentencedto death with a suspension of execution commits no intentional crime during theperiod of suspension, his or her punishment should be commuted to lifeimprisonment upon the expiration of the two-year period, regardless whether heor she is a terrorist.

4.4promoting the interaction between criminal law and other laws

The criminal law cannot thoroughlyeliminate the terrorist crimes as well as other crimes. Its main function is,in the name of public sentiment and state will, to make response to the crimesin order to satisfy the sense of justice of victims and public、todeter and prevent crimes and establish itself as the authority for safeguardingthe social order.

The anti-terrorist laws involve manylegal areas such as police laws、information laws、militarylaws、financiallaws、immigrationlaws、telecommunicationlaws.[49]Looking at the anti-terrorist legislations around the world, the proportion of criminallaw in anti-terrorist laws is very small. The experience also suggests that comparingwith the police laws and information laws, the usefulness of criminal law isquite limited; for the terrorists who are imbued with hatred, the usefulness ofpenalty is more limited. So the anti-terrorist work cannot depend on the criminalsanctions after the commission of a crime, it should focus on the preventionbefore the commission of a crime.[50]The theory of criminology indicates that there are norelations between reduction of crimes and aggravation of penalty. Inorder to deal with the complex criminal phenomena (including terrorist crimes),we should intervene at several levels such as criminal behaviors、criminals,crime spots and victims,[51]andtake comprehensive measures from several angles such as the social causes、individualcauses, environmental causes and victims’ causes of crimes. All these requireus to perfect the other related laws. By doing so, not only can we improve theability of preventing and detecting the terrorist crimes, but also make theselaws more effective by integrating them with criminal law.

5. Conclusion

The terrorism is the public enemy of theworld. However, for the last decade and more, although the internationalcommunity with all its might to fight against terrorism, it now faces thedilemma that anti-terrorism breeds rampant terrorism. The reason for thisdilemma is thought-provoking.

At the Informal APEC Economic Leaders'Meeting held in Bangkok, Thailand, Hu Jintao, China'sthen-president, pointed out that turmoil and conflict were hotbeds of terrorism,poverty and backwardness were soil of terrorism. The formation and rampancy ofterrorism have profound political、economic、social、cultural、religious,national and historical causes. In order to eliminate the terrorism, we must eliminateits root causes and reasonably solve the clashes and conflicts. The negative anti-terroristexperiencesof the USA in Afghanistan and Middle East show that the terrorism cannot befundamentally eliminated simply by fighting. The same is true of internationalanti-terrorism and domestic anti-terrorism. In this sense, theanti-terrorism is not only an issue of criminal law, but also a complex issueinvolving the politics、economy、society、culture、religion,nation、internationalrelations and so on. It istesting statesmen’s competence, broadmindedness and wisdom for the governanceof “global village”.

note:

* Liu Renwen, PhD inlaw and Law Professor ofLawInstitute, Chinese Academy of Social Sciences (hereinafterreferred to as CASS). This article is one of theperiodical results of the CASS Innovation Project Programme “A Study to theRule of Criminal Law for Maintaining Social Stability”.

** Zhou Weiming, doctorcandidate of CASS Law Institute.

[1] The same is also truein the world. When certain type of crimes is not only a social issueof one country, but also an issue that demands attention of all countries inthe world, the legislations of international community, that is, the internationalconventions, will appear. Taking the terrorism for example, nowthere are 15 anti-terrorism international conventions within the framework ofthe United Nations, the first is the Convention on Offenses and Certain OtherActs Committed on Board Aircraft (1963), then 4 in the 1970s, 4 in the 1980s, 5 inthe 1990s, 2 in thenew century (See Zhao Bingzhi(ed.), TheImplementation of United Nations Conventions in the Areas of Criminal laws,Chinese People's Public Security UniversityPress, 2010, p.6. ).This is consistent with the period of the formation anddevelopment of international terrorism: the realformation of international terrorism is in the 1960s, the rampancy ofinternational terrorism is in the 1970s. (See He Binsong, Terrorism, Cult and Society, Masses Press, 2001, p.14.)

[2] See Liu Renwen: The Structure and Vision of Criminal Law,Beijing University Press, 2010, p.314.

[3] Said He Binsong whenhe wrote his monograph on terrorism in 2001: “I found 220 English monographs inthe National Library, meanwhile, there are few books on terrorism in ourcountry’s book market. Being a scholar on criminal law and criminology, I feelashamed. ” See note2, Preface, p.4.

[4] See Du Miao, The Collected Topics on Terrorist Crimes,Chinese People's Public Security University Press, 2008, p.3-10.

[5] See Wang Hanbin, The Explanations to the Criminal Law of thePRC (Amendment Draft), in 5th Session of the 8th NationalPeople's Congress, March 6th, 1997; and also The Criminal LawDepartment of the Legislative Affairs Work Committee in the StandingCommittee of National People's Congress (ed.), The Explanations to the Clauses, Legislative Reasons and RelevantProvisions of the Criminal Law of the PRC, Beijing University Press, 2009,p.167.

[6] Of course, it canonly be the exception of criminal legislations, so the definition of terroristorganization is very important. The similar crime in criminal law is thecrime of organizing, leading and participating incriminal syndicate characteristic groups. Although the concept ofcriminal syndicate characteristic group has been roughly defined in thecriminal law, but it still lacks of operability and improperly extends thescope of fighting against and eradicating the criminal syndicate in thecriminal practice of several areas. However, the concept of terroristorganization has only been defined in the Decision on Strengthening the RelatedWorking Issues of Anti-terrorism of 2011 issued by the Standing Committee ofNational People's Congress, not in the criminal law of 1997.

[7] See Wu Mengshuan&Luo Qingdong, The GeneralExplanations to the Amendment of Criminal Law, China Procuratorate Press,2002, p.252ff.

[8] What deserves specialmention is that in the context of combined punishment for several offences,although the organizers and leaders of the terroristorganizations have not directly taken part in the serious violentcrimes committed by the terrorist organizations ,such asmurder、explosion、orkidnapping and so on, they should bear criminal responsibility for all thecrimes committed by the terrorist organizations. Themaximum legally-prescribed punishment is death penalty.

[9] The Resolution 1373requires “all states should prevent and suppress the financing of terrorism, aswell as criminalize the willful provision or collection of funds for suchacts.” The International Convention requires each state party shall adoptmeasures as may be necessary “to establish as criminal offences under itsdomestic law” the acts of financing the terrorism and “to make those offencespunishable by appropriate penalties which takeinto account the grave nature of the offences.”

[10] See HeBinsong, The Study of Organized Crimes,Masses Press, 2009, p.311.

[11] In the Amendment VIto the Criminal Law of 2006, the objects of money laundering had been expandedto “the benefits of crimes of embezzlement and bribery, undermining thefinancial order and financial frauds.”

[12] See note10,p.309-311.

[13] So they are in thechapter “crimes against social administration”, not like the crime oforganizing, leading and participating in the terrorist organizations and thecrime of financing the terrorism, which are in the chapter “crimes againstpublic security”.

[14] Now China’santi-terrorist work office is in the ministry of public security.

[15] See Zhao Binzhi &Du Miao, “The Primary Formation of China’s Anti-terrorist Legal System”, Legal Daily(November 16th2011).

[16] Zhou Guangquan(ed.), The Authoritative Interpretations to theAmendments to the Criminal Law, Renmin University of China Press, 2011,p.331.

[17] Strictly speaking, thetitle of this section “technological investigation measures” does not seemquite pertinent, because the word “technological investigation” cannot coversecret investigation and controlled delivery. In fact, the relations betweentechnological investigation, secret investigation and controlled delivery arecoordinate, for all of these three measures are in the category of specialinvestigation measures. See Chen Guangzhong (ed.), The Criminal Procedure Law, Beijing University Press, 2012, p.281.

[18] It includesmonitoring、surveillance、secretacquisition、network supervisory、interceptinge-mail、secret photograph、secretvideo recording、electronic communicationspositioning and so on.

[19] It includesinvestigation through undercover、disguise, temptationand so on.

[20] The controlleddelivery refers to a type of investigation process, that is, when investigationorgan finds the clues or contrabands such as drugs, on the premise of keepingsecret and keeping the contrabands and criminals under strict surveillance,according to the direction、 route, location andway which the criminals plan and promise ahead, delivers the contrabands to thefinal receivers, in order to find and arrest all the criminals related.

[21] Strictly speaking, ina real society governed by law, such measures related to basic civil rightsshould not be used if they are not specially expressed by laws.

[22] Nevertheless, the lawonly stipulates that these special measures should “ beapproved through strict approval process” (for technologicalinvestigation measures)、“ be determined by thehead of a public security organ”(for secret investigation)、“abideby the regulations”(for controlled delivery). In practice, how to prevent theorgans and personnel concerned from abusing these measures is still a seriousissue we must pay attention to. In the case of Wang Lijun, the disclosure of“illegal use of technological investigation measures without permission or withforging permission” informs us that we must strictly monitor and control theuse of these measures. From the perspective of perfecting the legislations, Itis necessary to draw on the experience of advanced countries and areas and givethe approval power of these measures to court. In this sense, China’s newcriminal procedure law is only a periodical result. It will become more andmore perfect with the development of society.

[23] The reason is:“considering the great harmfulness of this type of crimes to public society andthe circumstances of the cases are very complex, and for the sake of crackingdown on these crimes effectively, it is suitable for theintermediate people's courts to have jurisdiction as courts of first instanceover the terrorist crimes.” Lang Sheng(ed.),The Revision and Application of the Criminal Procedure Law of the People'sRepublic of China, Xinhua Press, 2012, p.67. According to this book, theviewpoint that these regulations are for the sake of effectively safeguardingthe rights of parties is far from the law’s legislative purpose.

[24] The problem of thisarticle is: Isn't it possible that in practice the investigation organ will notgrant any permission to lawyers? The author suggests that the laws shouldfurther enact that in what situations the investigation organ can grantno permission to lawyers and how the lawyers seek remedies.

[25] See Fan Chongyi&Zhang Pinze, “On the Proceeding of the Terrorist Crimes-Taking the 2012New Criminal Procedure Law as the Object of Analysis” in CASS Law Institute (ed.), Proceedings of the Symposium on SocialStability and Anti-terrorist Struggles, October 13rd 2012,p.339.

[26] That's not all. Somescholars believe that Chinawill face five terrorist threats in now and future: the first is the "EastTurkistan" terrorism; the second is the “independence of Tibet” terrorism; the third isthe “independence of Mongolia”terrorism; the fourth is the cults and extreme anti-social and anti-governmentterrorism; the fifth is the international terrorism. See Li Zhanjun, “TheTerrorist Threats China Faces and the Prospect of Security situation”,Proceedings of the Third InternationalConference on Crimes and Criminal Law in the Age of Globalization, October29th-31st, pp.105ff.

[27] See the researchtopic group, “The Basic Trend and Strategic Measure of China’s Anti-terroristStruggle”,Proceedings of the ThirdInternational Conference on Crimes and Criminal Law in the Age of Globalization,October 29th-31st, p.18.

[28] After the September11th event, the USA realizes that the China’s help is very importantto the international anti-terrorist cooperation on one hand, on the other hand theUSA also says that it doesn’t mean that China can suppress the humanrights and freedom of religion of Uyghurs. On August 26th 2002, afterChina’s several times of representations and presentations of evidence, the USAreluctantly admitted that the “East Turkestan Islamic Movement” was a terroristorganization, but it turned a deaf ear to the other 13 terroristorganizations and 11 terrorists that China declared as terroristorganizations and terrorists and declared that it would not hand the terroristsdetained in the military prison at Guantanamo over to China. This reflects thedivergence of views on anti-terrorist issues between countries and thedifficulty of international cooperation.

[29] A general feature ofthese legislations having the distinguishing feature of emergency reaction isthat they all extend the police and intelligence’s powers of acquiring theinformation concerning the terrorists and terrorist activities. Although thesepowers have been limited by strict conditions and procedures, the legislatorstill worries about them. So some countries set up the so-called “Sunsetprovisions”, for example, Germany’s Anti-terrorist Law stipulates that itshould be reviewed every five years to determine whether to extend itsapplication deadline. Another example is the USA, after the September 11thevent, both houses of Congress passed the Uniting and Strengthening USA byProviding Appropriate Tools Required to Intercept and Obstruct Terrorism Act(that is, the Patriot Act) on October 24th2001. On December 31st 2005, some provisions became invalid. InMarch 2006, President Bush signed the USA PATRIOT Improvement andReauthorization Act and USA PATRIOT Act reauthorization Act to make someprovisional provisions continue in force. Furthermore, in many countries, thejudicial review of constitution could be initiated to limit theseanti-terrorist laws.

[30] See Zhao Binzhi(ed.), The Newest Understand and Application ofthe Amendment to the Criminal Law, China Legal System Publishing House,2009, p.366.

[31] See Wang Yanfei, The Comparative Study of Anti-terroristLegislations, Chinese People's Public Security University Press, 2007,pp.30ff.

[32] See Wang Doudou, “China’s Anti-terrorist Law Is in the WorksMulti-party Cooperation for Effectively Cracking down the TerroristActivities”, LegalDaily (Beijing,27 August 2006).

[33] The article 7 of theLaw of the People's Republic of China on thePeople's Armed Police Force passed in 2009 defines the Chinese People's ArmedPolice Force's tasks for maintenance of security, one of which is“participating in dealing with disturbances、riots、seriousviolence、terrorist attacks and othersocial security events”.

[34] The Law of thePeople's Republic of China on Control of the Entry and Exit of Aliens passed in1985 stipulates that “aliens who are considered a possible threat to China'sstate security and public order shall not be permitted to enter China”; theRules Governing the Implementation of the Law of the PRC on the Entry and Exitof Aliens further stipulates that an alien considered likely to engage interrorism, violence or subversion upon entering China should not be permittedto enter China.

[35] The article 8 of theRules for Implementation of the State Security Law of the People's Republic ofChina passed in 1994 stipulates that organizing、plotting or committingterrorist acts endangering the State security shall fall into “other sabotageacts endangering the State security” as referred to in article 4 of the StateSecurity Law.

[36] See Du Miao, “TheRetrospect and Prospect of China’s Anti-terrorist Legislations”, in CASS LawInstitute (ed.),Proceedings of theSymposium on Social Stability and Anti-terrorist Struggles, October 13rd2012, p.157.

[37] See note 36, p.156.

[38] Of course, thespecial legislation doesn’t exclude the anti-terrorism-related contents ofother laws and regulations. With the analysis of Russiananti-terrorist legislations, some scholars point out that Russiananti-terrorist legislations, on the basis of constitution, combine the specialanti-terrorist laws with penal code. So that the concrete applications of thecrimes in substantive laws correspond to the criminal procedure law and thesubsidiary laws such as anti-terrorist regulations and rules bring intoconformity with the basic law. By their mutual coordination and complementaryrelationship, they construct a relatively consummate system of anti-terroristlegislations. In this system, the special anti-terrorist laws, as the front-endlaw, focusing on terrorism early warning and development of anti-terroristcampaign, set up the regulations concerning the definitions such as the terrorism、terrorist activitiesand terrorist acts, the principles and legal framework for anti-terrorism、theorganizational foundation for anti-terrorism and the application of armedforces in the campaign against terrorism、the leading of theanti-terrorism and the competence of related departments、thecompensation for damage caused by terrorism and social rehabilitation forvictims、the legal and social guarantee ofthe staffs participating in anti-terrorist campaign. See Xu Guimin, The Review of the Characteristics ofRussian Anti-terrorist Legislations, 1 Global law Review (2013).

[39] See [Spain] José Luisde la Cuesta, “Anti-Terrorist Legislation In Spain”, trans. Du Miao, in ZhaoBinzhi (ed.), The Implementation of theUN Conventions in China, Chinese People's Public Security University Press,p.411-412.

[40] That’s why manyscholars in USA and Europe criticize thephenomena that the domestic anti-terrorist legislations “have weakened” therule of law. Because the scientific public policy is greatly depending on thegame of the views and powers from all sides in the society and one of theintellectuals’ roles in social division of labour is the critic, so the valueof this criticism is self-evident.

[41] In western countries,the laws not only stipulate that the technological investigation measures suchas monitoring the telephone or supervising the network should be approved bythe courts (although in emergency the head of the organ in charge of handling casescan issue warrant, he must immediately report the situation to the appropriatecourt ), but also give explicit requirements to the types, scope and durationof the measures and strictly stipulate that the other personal informationsobtained by these measures should not be used.

[42] By far, more than 150countries in the world have abolished the death penalty and in 2011 only 21countries executed the death penalty. See Agence France-Presse, France,“The Number of Abolitionist Countries Reaches New Highs”, Reference News (December 22nd 2012).

[43] Although all thecriminal preparations can be punished according to China’scriminal law, in practice most of the criminal preparations have never beenpunished. In my opinion, it is unfit for indiscriminately stipulating the criminalpreparations in general part of criminal law; in principle, thecriminal preparations should be decriminalized; in order to protect some legalinterests of paramount importance, the criminal law can bring forward thepunishability to the stage of preparing for crimes and set up individualaccusations for such acts. By doing so, China’s criminal law will be moredefinite and more pertinent. For example, according to the Convention on thePrevention of Terrorism passed by Council of Europe, the acts of acceptingterrorist training should also be punished (even though the trainees have neverparticipated in terrorist organizations); Germany in its Law on Punishing thePreparation of A Serious Violent Offence Endangering the State adds new accusationssuch as “preparation of a serious violent offence endangering the state” and“establishing contacts for the purpose of committing a serious violent offenceendangering the state”, We should learn from this legislative thought and setup individual accusations for the acts of preparing for terrorist crimes.

[44] Although thenon-fix-term preventative detention is goodfor the social security, it should be limited (for example, theapplication of this preventative detention at least requires an periodicalstart-up process for evaluating the personal dangers) and used as little aspossible in view of the guarantee of human rights.

[45] If this criminal isstill a danger to society, we can set up some security measuressuch as “behavior monitor”. See Liu Renwen, TheDirection of the System of Reeducation through Labor Should Be SecurityMeasures, 2 The Jurisprudence (2013).

[46] The term “breakingaway from joint crimes” refers to thesituation that although some persons have participated in joint crime, theyrefuse to continue the criminal activitiesand break away from the relations of joint crime by severing ties with otheraccomplices before the joint crime has been accomplished; however, the remainingaccomplices continue the criminal activities and accomplish the joint crime(see [Japan] Otani Minoru, The GeneralPart of Criminal Law, trans. Li Hong, Law Press, 2003, p.349.). Because theperson who breaks away from joint crimes doesn’t effectively prevent theconsequences of the crime from occurring, so his or her acts cannot beconsidered as discontinuation of crime.

[47] See Lu Jianping, Criminal Policy and Criminal Law,Chinese People's Public Security University Press, 2004, p.54.

[48] See note31, pp.116ff.

[49] These areas involvethe balance between the security and freedom, and the balance should beeventually boiled down to the regulations of citizens’ basic rights inconstitution.

[50] See Zhou Zunyou, “TheDevelopment of Germany’s Anti-terrorist legislations”, in CASS Law Institute (ed.),Proceedings of the Symposium on SocialStability and Anti-terrorist Struggles, October 13rd 2012, p.314.

[51] See note39, p.411.