1. Overview of U.N. Anti-terrorism Statutes
U.N. Anti-terrorism Statutes are composed of U.N. made conventions, resolutions, motions, declarations and other documents relating to anti-terrorism. Other international organizations and regional organizations have also enacted a series of anti-terrorism statutes. Generally, international anti-terrorism statutes can be divided into regular ones and special ones. Special anti-terrorism statutes mainly deal with areas such as hijacking aircraft and endangering safety at sea and they are usually made during the period from 60s to 90s in the 20th century by the U.N. or related international organizations while regular ones mainly deal with the uprising need of counter fighting the terrorism crimes and they are usually initiated by the U.N. after the 90s of the 20th century. China government has been paying intensive attention on preventing and punishing terrorism and has carried out extensive cooperation with related international organizations and countries. After the event of 9·11, China has joined 9 of the 12 international conventions relating to terrorism. On October 27th, 2001 the Standing Committee of NPC granted the State Council’s bill of joining the International Convention for the Suppression of Terrorist Bombings. Up to present China has joined most of the international anti-terrorism conventions.
2. Basic situation of anti-terrorism legislation of China
On the scope of anti-terrorism legislation views of China’s Scholars differ from each other. Some think that there is no domestic legislation on anti-terrorism. Some think that domestic legislation is composed of penal code, money laundering laws and regulations and laws and regulations that protect the safety of aviation. Some think that anti-terrorism legislation can be defined in broad and narrow senses. The author of this essay thinks that it is of first importance to make clear what terrorism is. According to definitions given by international conventions, international organizations and academia, China’s current situation of international conventions signing up and related stipulation of criminal law, the following factors must be considered in defining terrorism. Namely the stipulations of international organizations or international conventions, the distinction between terrorism and gangsterdom, no confine on the measures of committing terrorism crimes, the subject could not be single person or nation and so forth. Henceforth terrorism shall be kind of severe crimes that are politically motivated by race, religion, cultural belief and so on and are carried out in the form of kidnapping, assassinating, bombing, poisoning and other violent and terrific means or in the form of threatening, blackmailing or other intimidating means. All there crimes severely sabotage public security, economic order or social stability. Not all stipulations that compound “horrible” shall be treated as anti-terrorism legislature. To define anti-terrorism legislation, random related laws shall not be taken in. the author refuses the theory of anti-terrorism legislation in broad sense which overly estimates the scope of anti-terrorism legislation and is not appropriate for academic research. Anti-terrorism legislation shall only be defined as laws that directly orientated on preventing and punishing terrorism crimes.
China’s anti-terrorism legislation can be divided into substantial laws and procedural laws. Article 9 of the penal code stipulates that “This law shall be applicable to crimes which are stipulated in international treaties concluded or acceded to by the People’s Republic of China and over which the People’s Republic of China exercises criminal jurisdiction within the scope of obligations, prescribed in these treaties, it agrees to perform.” This is the principle of universal jurisdiction. According to the conventions China has joined, all member nations shall criminalize hijacking aircraft, injuring internationally protected personnel domestically. The principle of universal jurisdiction provides legal base for punishing international terrorism crimes. In the specific part of the penal code, there are stipulations that counteracting on terrorism crimes and in other laws and regulations stipulations on anti-terrorism crimes exist too. The promulgation of anti-money laundering law on October 31st, 2006 is worthy to mention. Terrorism crimes are its main targets. The anti-money laundering law provides protection against terrorism crimes in the financial systems.
China’s legislation body has always been attentive on coordination of domestic procedural laws and international cooperation. Article 17 of criminal procedural code prescribes that “In accordance with the international treaties which the People’s Republic of China has concluded or acceded to or on the principle of reciprocity, the judicial organs of China and that of other countries may request judicial assistance from each other in criminal affairs.” This is the guideline on signing judicial cooperation treaties or extraditing treaties with other countries. As the fight against international terrorism goes deeper and the need of fighting terrorism, domestic legislations shall focus more on criminal judicial cooperation and bilateral treaties with other countries shall be made. Moreover it is of great importance to accede to international treaties that specialized in criminal judicial cooperation. The extraditing law that passed on December 28th 2000 is the first time in history to establish legal systems of extraditing. It standardizes the extraditing actions and enforces judicial cooperation with other countries.
3. Suggestions on Fully Implementation of U.N. Anti-terrorism Statutes
Compared with U.N. Anti-terrorism Statutes, China’s anti-terrorism legislation shows following limitations. First, domestic legislation on carrying out international documents such as conventions and treaties lag behind and show negative features. Various anti-terrorism laws and regulations are basically continuing the United Nation’s or other international organizations’ result of anti-terrorism statutes, often China's accession to the Statute before the introduction of the Statute of the International legal content. Based in the future, from a long-term mechanism of anti terrorism, the enactment anti-terrorism laws shall be in advance of real events. Second, neglecting roles played by other laws and regulations. All along, we attach great importance to China's criminal law. However crime is a complex phenomenon and it is not enough to rely only on criminal law. Other means such as social, economic and cultural means must be taken to fight against terrorism crimes. Third, neglecting the roles played by criminal procedural law. Compared with the statutes China accedes to, the substantial law is adherent to such statutes timely. However although criminal procedural law plays great importance on anti-terrorism, such as extraditing law, is not that quick. On penalty systems China lays too much emphasis on freedom penalty while neglecting property penalty. This certainly does no good to suppress terrorism crimes.
On the suggestions the author thinks that we can improve our legislation in the following ways. First, it is not appropriate to use recapitulatory definition on terrorism crimes. Enumerating definition is better. A lot of scholars think that recapitulatory definition is in accordance with the principle of legality. Such theory has its flaws such confusing terrorism crimes with political crimes which would cause problems in extraditing. The enumerating definition can non-politicize terrorism crimes and is helpful to international cooperation. Second, special anti-terrorism laws shall be made to prevent terrorism crimes. To counter terrorism, the U.N. founds anti-terrorism committee composed of 15 countries. And many countries around the world have established anti-terrorism agencies and enact anti-terrorism laws. Specialization is a global trend fighting terrorism. Therefore a specialized law shall be made and shall cover as many as possible. Third, emphasis shall be laid on the legislation of anti-terrorism procedural laws and their implementation. The unique features demand special procedural request. An information gathering system shall be set up and anti-terrorism procedure shall be established. Forth, criminal law shall be improved and terrorism crimes shall be punished severely. More terrorism crimes shall be stipulated and related penalty shall be more severe. Moreover, the function of property penalty shall be exerted to its maximum extent. Fifth, comprehensive measures such as economic, administrative, and financial measures shall be taken and form a comprehensive anti-terrorism mechanism. Practice shows that due to its intelligence, multi-means, hi-tech and internationalization, it is not enough to rely only on criminal legislation and enforcement. Therefore a comprehensive mechanism must be established which comprised of economic, administrative and financial means.
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