China

The Definition of Terrorism at Domestic Level

Terrorism is defined in the 2016 Counterterrorism Law (as amended in 2018) as 

any ideology or act that, by means of violence, sabotage, or danger, generates social panic, undermines public security, infringes upon personal and property rights, or menaces State authorities or international organizations, with the aim of realising political, ideological and other purposes.Art. 3, 2016 Counterterrorism Law of the People's Republic of China.

In turn "terrorist activity" is defined as:

(1) Organizing, planning, preparing for, or conducting the activities which cause or attempt to cause casualties, grave property loss, damage to public facilities, disruption of social order and other serious social harm. 
(2) Advocating terrorism, instigating terrorist activities, or illegally holding articles advocating terrorism, or forcing other persons to wear costume or symbols advocating terrorism in public places. 
(3) Organizing, leading or participating in terrorist organizations. 
(4) Providing information, funds, materials, labour services, technologies, places and other support, assistance and convenience to terrorist organizations, terrorists, the implementation of terrorist activities or training on terrorist activities. 
(5) Other terrorist activities.Art. 3, 2016 Counterterrorism Law of the People's Republic of China. 

Under the law, "terrorist organisations" means criminal organisations formed by three or more persons for the purpose of conducting terrorist activities.Art. 3, 2016 Counterterrorism Law of the People's Republic of China.   

Membership of a terrorist organisation

Membership of a terrorist organization is not criminalised per se, but leading or organizing such an organization or actively participating in one (on multiple occasions) are both serious offences. In addition, anyone who otherwise participates in a terrorist organisation is breaching the "other circumstances of participating" as set out in Article 120 of the Criminal Law. The detailed requirements for each category of membership are set forth in Article 1 of the 2018 Opinions on Certain Issues concerning the Application of Law in Handling Criminal Cases Involving Terrorism and Extremism, issued by the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Justice.

The Hong Kong Administrative Region

Articles 24-28 of the National Security Law define "Terrorist Activities" and criminalise various offences which fall under the definition of terrorism. Article 24 of the Law defines terrorism and its associated offences as follows:

A person who organises, plans, commits, participates in or threatens to commit any of the following terrorist activities causing or intended to cause grave harm to the society with a view to coercing the Central People’s Government, the Government of the Hong Kong Special Administrative Region or an international organisation or intimidating the public in order to pursue political agenda shall be guilty of an offence: 

(1) serious violence against a person or persons; 
(2) explosion, arson, or dissemination of poisonous or radioactive substances, pathogens of infectious diseases or other substances; 
(3) sabotage of means of transport, transport facilities, electric power or gas facilities, or other combustible or explosible facilities; 
(4) serious interruption or sabotage of electronic control systems for providing and managing public services such as water, electric power, gas, transport, telecommunications and the internet; or 
(5) other dangerous activities which seriously jeopardise public health, safety or security. 

The definition of “terrorism” thus includes a vague and potentially very broad notion of “other dangerous methods endangering public health and safety”, which can be used to prohibit public gathering. 

Adherence to Global and Regional Terrorism Treaties

China is a State Party to all the major United Nations terrorism treaties.

China has explicitly applied the five treaties to the Macao and Hong Kong administrative regions.

There are no regional terrorism treaties to which China can adhere. 

Laws and Penalties for Terrorist Offences

The Criminal Law laws down seven modes of liability for terrorism offences.

Anyone organizing or leading a terrorist organization is liable to imprisonment of not less than ten years or life imprisonment and a forfeiture of property. Any person who actively participates in a terrorist organization is subject to imprisonment of not less than three years but not more than ten years in addition to a fine. Other participants is to be sentenced to imprisonment of not more than three years.Art. 120, Criminal Law.

Assisting terrorist activities, by providing financial support to a terrorist organization or providing training on terrorist activities is to be sentenced to imprisonment of not more than five years. The same penalty is applicable to anyone knowingly recruiting, training, or transporting any member for any terrorist organization or for the conduct of any terrorist activities.Art. 120(1), Criminal Law.

The crime of preparing terrorist acts is subject to imprisonment of not more than five years. This includes the preparation of lethal weapons or other tools for conducting terrorist activities, organizing training on terrorism, planning for terrorism, or contacting any overseas terrorist organisation or person for the purpose of conducting terrorist activities.Art. 120(2), Criminal Law.

Advocating terrorism or extremism, or instigating terrorist activities is subject to a term of imprisonment of not less than five years.Art. 120(3), Criminal Law.

Any illegally holding any book, audio, or video materials or any other article while knowing that it advocates terrorism or extremism shall, if the circumstances are serious, be sentenced to imprisonment of not more than three years.Art. 120(6), Criminal Law.

Also proscribed is anyone, who by using extremist methods, instigates or coerces the public to sabotage the implementation of the marriage, judicial, education, social management or any other system determined in national laws. The maximum penalty is three years' imprisonment.Art. 120(4), Criminal Law.In addition, anyone who forces another person to wear a costume or symbol that advocates terrorism or extremism in a public place by means of violence or coercion shall be sentenced to imprisonment of up to three years.Art. 120(5), Criminal Law.

Anyone who secretly crosses China's frontier (border) for the purpose of joining a terrorist organisation, receiving training on terrorist activities, or conducting terrorist activities shall be sentenced to imprisonment of not less than one year but not more than three years in addition to a fine.Art. 323, Criminal Law.

There is no explicit exception in the law for the right of expression or peaceful assembly.

The Hong Kong Administrative Region

The National Security Law stipulates that a person who commits the offence of terrorism causing serious bodily injury, death or significant loss of public or private property shall be sentenced to life imprisonment or fixed-term imprisonment of not less than ten years. This includes as a predicate offence “other dangerous activities which seriously jeopardise public health, safety or security”.Art. 24(5), National Security Law. 

Article 25 criminalizes the leadership of a terrorist organisation, which is subject to a minimum of ten years' imprisonment and a maximum of life imprisonment while a person who "actively participates in a terrorist organisation" will be imprisoned for between three and ten years. For the purpose of the National Security Law, a terrorist organisation means an organisation which commits or intends to commit a terrorist offence instituted under the Law or which participates or assists in the commission of such as offence.

Article 26 criminalizes the facilitation and assistance of terrorism:

A person who provides support, assistance or facility such as training, weapons, information, funds, supplies, labour, transport, technologies or venues to a terrorist organisation or a terrorist, or for the commission of a terrorist activity; or manufactures or illegally possesses substances such as explosive, poisonous or radioactive substances and pathogens of infectious diseases or uses other means to prepare for the commission of a terrorist activity, shall be guilty of an offence. 

If the circumstances of the offence committed by a person are of a serious nature, the person shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and shall be imposed with a criminal fine or subject to confiscation of property; in other circumstances, a person shall be sentenced to fixed-term imprisonment of not more than five years, short-term detention or restriction, and shall be imposed with a criminal fine. 

Article 27 criminalizes the advocacy and incitement of terrorism, which is subject to a minimum of five years' imprisonment (and a maximum of ten) if the "circumstances of the offence committed by a person are of a serious nature".

Execeptions for the Exercise of Fundamental Human Rights 

Article 4 of the National Security Law provides a safeguard in the form of enunciating the importance of respecting and adhering to human rights in safeguarding national security:

Human rights shall be respected and protected in safeguarding national security in the Hong Kong Special Administrative Region. The rights and freedoms, including the freedoms of speech, of the press, of publication, of association, of assembly, of procession and of demonstration, which the residents of the Region enjoy under the Basic Law of the Hong Kong Special Administrative Region and the provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong, shall be protected in accordance with the law.

Nonetheless, the case of Tong Ying-Kit v. Secretary of Justice has been criticised for ignoring the human rights protections in the National Security Law. Mr Tong, 24, who carried a protest flag and drove his vehicle into police officers during the riots in 2020 was convicted of terrorism and secession. The High Court held that his flag contained a slogan which was “capable of inciting others to commit secession,” and therefore a violation of Article 21 of the National Security Law. 

Tong’s charge of secession has been controversial. The prosecutors argued that the crime had been committed purely by the political banner he had pinned to his backpack which contained the words “Liberate Hong Kong, Revolution of Our Time”, referring to the Hong Kong protests in 2019. The judge found that Tong had “incited other persons to organise, plan, commit or participate in acts, whether or not by force or threat of force, with a view to committing secession or undermining national unification” by promoting the independence of Hong Kong from China. 

Reacting to the judgment and sentence imposed on Mr Tong, Amnesty International’s Asia-Pacific Regional Director Yamini Mishra said: “The sentencing of Tong Ying-kit to nine years confirms fears that the national security law is not merely a tool to instil terror into government critics in Hong Kong; it is a weapon that will be used to incarcerate them.”

Counterterrorism Capacities and Policies at Domestic Level

Article 8 of the 2016 Counterterrorism Law provides that:

The Chinese People's Liberation Army, the Chinese people’s armed police force and militia organizations shall prevent and punish terrorist activities in accordance with this Law and other relevant laws, administrative regulations, military regulations and orders of the State Council and the Central Military Commission, and according to the arrangements of counterterrorism leading bodies.

Article 6 of the 2016 Counterterrorism Law stipulates that counterterrorism operations shall be conducted in accordance with the law by respecting and safeguarding human rights and protecting the lawful rights and interests of citizens and organisations. In counterterrorism work, citizens' freedom in religious belief and ethnic customs must be respected, and any discriminatory deeds based on regions, ethnic groups, religions, and other causes is prohibited. Nonetheless, Amnesty International has affirmed that, since 2017, under the guise of a campaign against “terrorism”, the government has carried out massive and systematic abuses against Muslims living in Xinjiang. The campaign has evinced a clear intent to target parts of Xinjiang’s population collectively on the basis of religion and ethnicity and to use severe violence, intimidation and arbitrary mass detention to root out Islamic religious beliefs.Amnesty International, Global Report 2021-2022, p. 126. 

Counterterrorism in the Hong Kong Administrative Region

Under Articles 12-15 of the National Security Law, the Hong Kong government has established the Committee for Safeguarding National Security, which is primarily responsible for safeguarding national security in the region.