MARCH 16, 2017 7:45PM EDT
(New York) – The Chinese authorities’ failure to release details about terrorism convictions heightens concerns that the country’s counterterrorism law is being used to prosecute nonviolent activity, Human Rights Watch said today. The 2017 Supreme People’s Court (SPC) report, presented on March 12, 2017, departs from past practice by excluding details on 2016 terrorism cases, such as the number of individuals convicted. China’s new Counterterrorism Law took effect in January 2016.
Human Rights Watch said that China’s terrorism prosecutions, primarily in the northwestern region of Xinjiang, are subject to politically motivated abuse because of the expansive definition of terrorism, lack of transparency, and violations of fair trial rights.
“The Chinese government claims it’s combating terrorism threats, particularly in Xinjiang, but gives scarce details about these incidents while strictly controlling access of journalists and other independent monitors,” said Sophie Richardson, China director. “By refusing to provide information on terrorism cases, Beijing can easily suppress rights to peaceful criticism and religious identity.”
The 2016 SPC’s annual report to the National People’s Congress stated that in 2015, Chinese courts convicted 1,419 people for threatening state security, inciting “splittism,” and taking part in terrorism – nearly double the numbers of the previous year’s report. But the court’s 2015 and 2016 reports did not disclose a breakdown of these numbers, so it is unclear how many people were convicted for terrorism and precisely for which offense.
Human Rights Watch examined available data from China Court Net, a general news site run by the SPC, and the Peking University Law Database for information on terrorism-related cases in 2016. Only four court verdicts related to terrorism prosecutions from 2016 are publicly available. These two sources may only contain a small percentage of terrorism-related verdicts in 2016. The SPC decision that required court verdicts be posted online provides exemptions for cases that involve state secrets or personal privacy, and cases that are otherwise “not suitable for making public,” which gives the courts wide latitude to withhold information.
The four cases involved seven people – all but one ethnic Uyghurs from Xinjiang. Five received prison sentences from eight months to three years, while one was given a suspended sentence and one was exempted from criminal penalties.
In all four cases, the individuals were convicted of possessing, accessing, and distributing terrorism-related videos or audios. Three of the verdicts gave details about these materials:
- Yu was convicted for clicking on weblinks that contained images of flags of the East Turkestan Islamic Movement (ETIM) and of jihad, masked men with guns, and masked women, as well as essays “that encouraged people to join jihad.” Yu forwarded some of these materials to a relative.
- Duo was convicted for distributing to a WeChat public group of 62 people a short video of a beheading by two masked men.
- Abdusemet Halik (阿卜杜塞麦提•哈力克), one of a group of four convicted, possessed over 100 e-books, 100 audio clips, and 346 videos, most of them produced by ETIM and focusing on waging jihad in China, including on how to make bombs. Memet Rishit (麦麦提•热西提) possessed 11 news videos about Rebiya Kadeer, leader of exiled Uyghurs; 3 videos by ETIM promoting a holy war against “the blood-sucking atheist Communists” who “have occupied the East Turkestan and call it Xinjiang”; and 53 e-books on “religious extremism.” Yunus (玉奴斯) had 16 videos and audio recordings produced by ETIM on “religious extremism.” In addition to possessing and distributing these videos to their classmates, the three – plus the fourth defendant, Rizwangul Halik (热孜宛古丽•哈力克) – were also convicted of organizing others and participating in “physical training in imitation of the violent videos” in a park in Changchun City, Jilin Province, and of attempting to travel via Hong Kong to join Al-Qaeda, according to the verdict. During the trial, three of the four defendants told the court that they were tortured to confess.
In addition to these cases, Human Rights Watch learned about a dozen other individuals who were punished with days of detention and fines under administrative laws for watching, downloading, or storing audio, videos, and pictures related to extremism and terrorism during this period, but which were not severe enough to constitute criminal acts.
State media reports about the implementation of the new Counterterrorism Law, in effect since January 1, 2016, show a similar focus of the authorities to punish, through fines or days of administrative detention, possession or distribution of materials that the authorities consider as “terrorist” or “extremist” in nature, as well as distributing “fake terrorism information.” The Counterterrorism Law gives expansive definitions of “terrorism” and “extremism,” and does not clearly articulate what constitutes “fake terrorism information.”
Governments may prosecute speech that incites criminal acts – speech that directly encourages the commission of a crime, is intended to result in criminal action, or is likely to result in criminal action – whether or not criminal action does, in fact, result. But laws that impose criminal punishment for what has been called “indirect incitement” – for example, justifying or glorifying terrorism – encroach on expression protected under international human rights law.
The implementation of China’s Counterterrorism Law has also focused on punishing hotels and courier services for failure to comply with the government’s “real name registration” requirements, in which individuals staying in hotels or sending courier posts must use their identification cards.
None of the publicly available information about the people who received administrative or criminal punishments on terrorism-related charges in 2016 indicates they perpetrated or were linked to violent acts. The last two state reports about violence in Xinjiang, for example, suggested that those who committed violent acts were killed at the scene by security forces.
China’s terrorism convictions will generate disbelief as long as the criminal process remains opaque and so little information reaches the public.
Xinjiang, home to 10 million Uyghurs and other ethnic minorities, is a site of pervasive discrimination, repression, and restriction on fundamental human rights including freedom of religion. Opposition to central and local policies has been expressed in peaceful protests, but also through bombings and other acts of violence.
A 2015 report by the Uyghur Human Rights Project documented more than 600 casualties in violent incidents in Xinjiang between 2013 and 2014, which included people killed by criminal offenders and state security forces.
The Chinese government has often blamed attacks on “foreign” forces including ETIM, an alleged separatist organization founded by Uyghurs which has been on the United Nations list of terrorist organizations since 2002, though the group’s existence has been debated. The government has not offered invitations to independent monitors to investigate such incidents, including the UN special rapporteur on torture and the special rapporteur on extrajudicial, summary or arbitrary executions.
“China’s terrorism convictions will generate disbelief as long as the criminal process remains opaque and so little information reaches the public,” Richardson said. “The government needs to open up the system to independent monitors from China and abroad, including the UN.”
Abuses of Individuals Suspected of Terrorism, Extremism
China’s laws on terrorism and extremism open the door to abusive treatment of suspects accused of such crimes.
Under the Counterterrorism Law, police are empowered to impose far-reaching restrictions on individuals they merely suspect of being involved in terrorism, even if they have little or no evidence (articles 39, 53). If police “receive a report of suspected terrorist activity, or discover suspected terrorist activity,” they can “order” the suspects to comply with “one or more of these restrictive measures” (article 53).
The restrictions include bans on traveling outside the suspect’s area of residence or the country without police approval, bans on taking public transportation or entering specified venues without police approval, as well as ID and passport confiscation.
The decision to impose these restrictions is an entirely internal procedure within the police system. Because there are no clear criteria in the Counterterrorism Law on imposing or withdrawing any of the restrictions, they can be imposed arbitrarily and, for some of the restrictions, indefinitely. Moreover, these restrictions apply prior to the stage of a police investigation, effectively giving police the power of preventive detention before a decision is made whether to file a case (ch: li’an). This means that the legal guarantee of the right to legal counsel, or any procedural rights stipulated in China’s Criminal Procedure Law, do not apply throughout this process.
Some of the suspects subjected to this preventive detention will proceed to pretrial proceedings under the Criminal Procedure Law, but pretrial proceedings in terrorism cases are opaque: the Criminal Procedure Law denies terrorism suspects basic defense protections, including access to family members and lawyers, and allows suspects to be held for months in undisclosed locations. The Counterterrorism Law states that terrorism suspects and prisoners “may be” subjected to solitary confinement (article 29); the Xinjiang Implementing Measures state those who are “major ringleaders” will always be subjected to solitary confinement because of their crime (article 40). The same applies to those who commit or incite others to commit crimes while in confinement, or refuse to be “re-educated” and show “violent tendencies.” The Implementing Measures do not outline any review mechanisms for imposing solitary confinement, or conditions for lifting it. This is contrary to the UN Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules), which prohibit the use of indefinite solitary confinement as it amounts to torture. China is a party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which it ratified in 1988.
Under the Counterterrorism Law, prior to release, prisons or detention centers are empowered to conduct an assessment of the “danger … posed to society” by these individuals when they complete their sentences (article 30). The assessment is sent to the intermediate people’s court of the region where the sentence was served.
If the court finds that the convict is a “danger to society,” it should “order” the person to receive an “educational placement” (ch: jiaoyu anzhi), a measure undertaken by provincial governments, even after a sentence is completed. Yet there are no clear criteria for such an assessment, or clear explanation whether this “educational placement” involves deprivation of liberty. The Counterterrorism Law also does not provide a time limit for this “educational placement” measure. The Implementing Measures state that it is the “education placement” institutions that can make a recommendation to the local court to remove such measures, but do not explain how the individual being subjected to the measure can apply to have it removed.
These provisions mean that even after someone has served a full sentence they can remain effectively indefinitely detained, with little or no recourse.
Vague, Overbroad Definitions of Terrorism in Chinese Law
Since 2014, the Chinese government has revised or drafted new legislation to combat terrorism. Taken together, these laws criminalize a wide range of activities. They restrict participating, abetting, organizing, or funding terrorism, as well as possessing, publishing, printing, or distributing content that contains terrorism, including digital content. They encourage “the masses” to report on terrorists and terrorism activities, and they set out penalties for those who withhold such information.
Xinjiang is the only region in China that has a set of Implementing Measures on the Counterterrorism Law (Xinjiang Implementing Measures), which have been in effect since August 1, 2016. Two recently revised regional regulations – one on religious affairs and one on prevention of juvenile crimes – also mention prohibitions against terrorism. The National People’s Congress is also drafting a new Xinjiang Uyghur Autonomous Region Anti-Religious Extremism Law, according to state media.
Human Rights Watch has repeatedly raised human rights concerns in China’s approach to terrorism and extremism. Chinese laws define terrorism in an overly broad and vague manner, and do not necessarily require actual action or violence to prompt prosecution, deprivation of liberty, or other restrictions:
- Article 3 of the Counterterrorism Law includes in the definition of “terrorism,” “advocacy” (ch: zhuzhang) or “behavior” (ch: xingwei) that “elicit panic in society, endanger public security, infringe upon personal and property rights, or threaten state agencies or international organizations through violence, destruction, intimidation, or other means to achieve its political aims.” The term “advocacy” could apply to proposed policy changes or criticism of government policy, or conduct that is within the boundaries of freedom of expression as set out under international human rights law. This article also notes that mere possession of “terror publicity materials” is considered a “behavior” that constitutes “terrorism,” yet there is no clear definition of “materials that promote terrorism.” This article also defines “terrorist incident” (ch: kongbu shijian) as an episode that is “in the process of occurring or which has already occurred and which has caused or may cause significant harm to society.” The open-ended nature of the last clause provides authorities with a legal basis to abuse their power on occasions they deem as constituting a “terrorist incident.” The Chinese government has, in the past, labeled the Dalai Lama’s prayers for self-immolations as “terrorism in disguise,” and Tibetans who self-immolate in protests against Chinese government rule as “terrorists.”
- Article 4 of the Counterterrorism Law defines “extremism” as “the ideological basis of terrorism,” and elaborates by saying that “the state opposes all forms of extremism, such as inciting hatred, discrimination, or agitating violence through distorting religious doctrines or other means.” This vague and overly broad definition provides the authorities with a legal basis to violate freedom of religion; allegations of “religious extremism” have been routinely employed to limit and often prosecute religious activities that merely take place outside state-controlled religious institutions.
Under these expansive definitions of terrorism and extremism, a large range of activity relevant to ethnic and religious expression and custom are punishable and are being prohibited, including:
- “Exploiting religious teaching, sermons, exegesis, study, weddings, funerals, gathering and cultural or recreational activities and so forth to advocate terrorism or extremism” (article 50(1), Xinjiang Implementing Measures);
- “Making, downloading, storing, reproducing, reviewing, or copying audio, video, images or print materials or network links with terrorist, extremist or other such contents” (article 50(2), Xinjiang Implementing Measures);
- “Illegally possessing printed or electronic products with terrorist, extremist or other such content” (article 50(3), Xinjiang Implementing Measures);
- “Designing, making, distributing, mailing, selling, or displaying clothing, symbols, flags, badges, utensils, souvenirs and so forth that have terrorist or extremist content (article 50(4), Xinjiang Implementing Measures);
- “Using clothing, symbols, and so forth to advocate terrorism or extremism in a public place or compelling others to wear or don terrorist or extremist clothing or symbols (article 50(5), Xinjiang Implementing Measures);
- “Organizing, forcing, instigating, encouraging or enticing a minor to participate in religious activities” (article 51(2), Xinjiang Implementing Measures);
- “Exploiting religion to obstruct or interfere with others’ activities such as weddings and funerals or inheritances” (article 51(3), Xinjiang Implementing Measures)
- “Distorting the concept of ‘halal,’ or generalizing the concept of ‘halal,’ expanding and mutating it into social life and other areas” (article 51(4), Xinjiang Implementing Measures);
- “Intimidating or inducing others to boycott national policy measures, or destroy state documents prescribed for by law, such as resident identity cards, household registration books, and marriage certificates, or currency” (article 51(5), Xinjiang Implementing Measures);
- “Deliberately sensationalizing, fabricating or distorting socially sensitive cases (incidents), or intentionally starting rumors or spreading false information, undermining the implementation of social management” (article 51(2), Xinjiang Implementing Measures);
- “Using extremism to incite or coerce the masses to undermine the implementation of legally established systems such as for marriage, justice, education or social management” (article 120(4), Chinese Criminal Law); and
- “Where methods such as violence or coercion are used to compel others to wear or adorn themselves with apparel or emblems promoting terrorism or extremism” (article 120(5), Chinese Criminal Law).