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Thoughts on Ilham Tohti and Terror

What does it mean when between trial and sentencing in a controversial, politically and ethnically-charged criminal case, the nation’s highest court, highest prosecutors’ office and highest police authority jointly release an opinion that essentially says the case is being handled incorrectly?

It has now been announced that economics professor Ilham Tohti, a moderate Uyghur commentator, has been found guilty of ‘separatism’ (secession), and given a  sentence of life imprisonment, lifetime deprivation of political rights, and confiscation of all personal assets.  While the death penalty is technically authorized for most crimes endangering national security (CL art. 113), this is the maximum penalty specifically authorized for this offense.

What was the nature of his criminal activity? The indictment, verdict and transcript for the case are not yet publicly available, as is often true even in less sensitive cases in China despite recent moves towards transparency by Chinese courts.  Only official media reports, public comments by authorities and cautious statements by Ilham Tohti’s lawyer give any insight into the actual nature of his criminal acts. The Urumqi public security bureau, for example, noted in January that Ilham Tohti had called participants in terror attacks ‘heroes’, and ‘incited students to hate the nation and government, and to topple the government’.

State media reports published following the verdict say that Ilham Tohti used his “Uyghur Online” website  and teaching position as platforms to transmit ethnic separatist ideology, and lured or bullied students into becoming a separatist force. They say that “he acted in an organized and orchestrated fashion to write, edit, translate and spread numerous articles with separatist content, wantonly spreading separatist ideology and maliciously attacking state policies or measures on ethnic groups, religion, economics and family planning .” He is said to have “incited ethnic hatred and created ethnic adversity” so as to “provide an excuse for Xinjiang terror cases and encourage violent acts.” He is even said to have fabricated survey results to exaggerate the strength of support for Xinjiang independence.

Is that separatism?

Ilham Tohti was charged with and convicted of separatism, which is codified in article 103 of the PRC Criminal Law:

For those organizing, plotting or acting for separatism or to undermine national unity, the ringleader, or those who have committed major criminal acts, will be given life imprisonment or a fixed term of 10 years or more imprisonment; active participants shall be given between 3 and 10 years fixed-term imprisonment; and other participants will be given a fixed term of less than 3 years imprisonment.

A second clause of the same article provides for a distinct, lesser offense of “inciting separatism”:

Those inciting separatism or the undermining of national unity, will be given a fixed term of up to 5 years imprisonment, short-term detention, supervised release or deprivation of political rights; where they were the ringleader or committed major criminal acts, they will be given a fixed term of 5 years or more imprisonment.

This second offense, with its much lighter punishments, even for principal offenders, intuitively seems a much better fit for what has been revealed of the charged conduct. This second clause was added as an independent offense in 1997 revisions to the Criminal Law and is distinguished from separatism in explanations in that ‘incitement refers to using  language, text, images and other such means to encourage or publicize to others to make them believe its provocative content, or attempting to make others go carry out the conduct which is being incited.”

By contrast, the offense of Separatism requires organizing or plotting to divide the nation or undermine national unity, which seems to be beyond what has been alleged here. The distinction, seems to be one about the degree of action directed towards the goal of separatism, ‘Incitement’ is just words in the hopes of inflaming others to act towards separatism, while the ‘organizing and plotting’ element in separatism is essentially a type of criminal preparation working concretely or conspiring to carry out a separatist action.

The New Document

The purpose of this post, however, is not actually to discuss whether the charges were chosen incorrectly and unjustly. The activities alleged could have been distorted to support any of several other crime names, such as forming a terrorist organization (CL 120), inciting ethnic hatred or ethnic discrimination (CL 249), insult and defamation (CL 146) or even provocation and causing disturbances [picking quarrels] which has recently  taken a prominent role in curbing internet speech; and the prosecution would likely have had a similarly predictable and disproportionate result, subject only to the statutory sentencing ranges for those crimes. Most importantly, those familiar with Ilham Tohti are clear that he is neither a separatist nor an inciter of separatism, and there has been no clear evidence published that shows otherwise.

Instead, the goal here is to draw attention to the curious timing of the release of a document by China’s top criminal justice institutions. Adopted on September 9, 2014, just before Ilham Tohti’s trial on the 17th and 18th, and released publicly on the 21st, days before the sentence was announced,  the Supreme People’s Court, Supreme People’s Procuratorate, and Ministry of Public Security’s Opinion on Several Issues Regarding the Applicable Law in Criminal Cases of Violent Terrorism and Religious Extremism,  addresses many of the charges mentioned above.

It is not unusual for these three core criminal justice authorities to jointly release  normative interpretations like this one to unify legal standards or coordinate division of labor. In fact, other relevant departments sometimes also contribute, and given the importance of terrorism, religious extremism and ethnic tension and separatism to national stability and security, it’s actually interesting that the Ministry of State Security and Ministry of Justice did not join in as well.

At any rate, the timing of the release of this Opinion, which clearly focuses on Xinjiang and Uyghur unrest, just as the Ilham Tohti case went through the motions of trial– and seemingly disagreeing with the way that case was handled– does urge a more careful reading.

The Content of the Opinion

The structure of the opinion suggests that it aims not just to resolve legal questions as many similar interpretations do, but to actually express dissatisfaction with current case handling.  Consider the following overview:

  1. The first section, “Correctly Grasping the Basic Principles of Case Handling” contains three main admonishments for handling terrorist cases and can be summarized as follows:  Obey the law; give individualized and appropriate sentences, and uphold the national and Party policies on ethnicity and religion. The thrust of the the first two is basically to continue following the criminal procedure in handling this type of important and sensitive cases.  The third point is more interesting– it is a call to “Strictly distinguish between religious extremist violations and crimes and normal religious activities;” demanding that criminal suspects dignity, customs and faith be respected.
    • This entire section seems worried that terrorism and extremism offenses will lead to persecution of minorities or is at least a preemptive response to criticism that it might.
  2. The second section of the Opinion “Accurately Identifying the nature of the case” attempts to clarify what conduct comprises what crimes, including incitement of separatism, establishing a terrorist organization and inciting ethnic hatred or discrimination.
  3. The third section seeks to clarify certain legal standards. The first standard  is for when content of materials being spread by a suspect contain unlawful ideological content or terrorist ideology. This determination is left within the hands of the public security and procuratorates, not requiring an official forensic appraisal, unless helpful.
    1. The second standard tries to define when a suspect should be held to have acted with ‘clear knowledge’ (knowingly), and requires a comprehensive evaluation of the specific defendant’s circumstances.
  4. Finally, the fourth section addresses jurisdictional issues.

In terms of Ilham Tohti, while the Opinion does not mention the specific crime of Separatism in the section specifying charges, it does identify certain conduct relating to terrorism or religious and ethnic tension as constituting the crime of ‘Inciting Separatism’, much of which reads almost as if it were copied and pasted from the articles discussing his offenses:

1. organizing or gathering others to advocate, spread, or transmit religious extremist or violent terrorist ideology;

2. Publishing, printing, reproducing, or issuing books, periodicals, audio and video recordings, or electronic publications which advocate religious extremism or violent terrorism, or creating, printing, or reproducing leaflets, images, posters, or newspapers which propagate religious extremism or violent terrorism;

3. Propagating, disseminating, or spreading religious extremism or violent terrorist ideology by establishing , opening, operating, or administering a website, webpage, forum, email list, blog, microblog, instant messaging tool, [chat] group, chat room, web storage, web phone, cellphone application or other online services, or publishing, posting, duplicating, issuing, broadcasting, or displaying books, articles, images, audio feeds, video feeds, audio and video recordings, and related websites which propagate religious extremism or violent terrorist ideology using cell phones, mobile storage media, electronic readers, etc.

4. Creating, translating, compiling, editing, collecting, or directly obtaining from non-domestic organizations, entities, individuals, or websites books, articles, images, audio-video recordings, etc. which propagate religious extremism or violent terrorism, and providing them for others to read, view, hear, publish, print, duplicate, issue, or disseminate;

5. Designing, manufacturing, distributing, mailing, selling or displaying of markers, flags, insignia, clothing, utensils or souvenirs containing indicators of religious extremism or violent terrorist ideological content.

6. Advocating religious extremist or violent terrorist ideology through other means.

This should sound fairly familiar from the above descriptions of Ilham Tohti’s charged conduct, including organizing a group of separatist students through a webpage. But  the placement here seems to expressly indicate that this conduct should be charged and punished as “Incitement of Separatism”, not Separatism.

And make no mistake, this document’s  emphasis on terrorist and religious extremist content does not put Ilham Tohti’s situation outside of its reach. If anything, this Opinion just broadens the umbrella of terror crimes to include fostering ethnic hostility and separatism.

While there are a handful crimes specifically involving terrorism in China’s criminal law (establishing a terrorist organization, supporting a terrorist organization, fabricating terrorist threats) the concept is largely one of motive and procedural law rather  specific offenses. Cases involving terrorism,  and those involving organized crime or endangering national security (such as separatism), offer less protections to defendants  under China’s Criminal Procedure Law .

At any rate, in Xinhua News Agency’s most comprehensive report on the Ilham Tohti trial , one can see that even if invoking terror or ethnic hatred etc, is a necessary element for falling within the opinion’s six classes of ‘inciting separatism’ , Ilham Tohti has likely already been said to have done so :

The prosecution alleged that for a long time, the defendant, Illham Tohti, exploited his status as an instructor at the Minzu University of China to use classroom activities to promote Xinjiang independence and to transmit ethnic separatist and violent terrorist ideology, impugning our nation’s policies on Xinjiang and inciting resistance to the government by violent means.

Of course, if he really incited or called for violent opposition to the government as suggested at this quote’s end, there are other crime names more directly applying to such an offense, but which were not invoked.

So why release the document now?

Returning to the question posed at the top of this page, what does it mean that these drafting organizations have jointly released this document now? There is no easy answer, but a few early possibilities come to mind:

1. The left hand doesn’t know what the other left hand is doing: Central government and local authorities are all addressing the increasingly prominent problem of domestic terrorism and ethnic adversity independently and simply failed to coordinate well enough to make the authority align.

2. The criminal justice organs are intentionally showing how they would handle cases if they had a free hand:  Certain sensitive case are not only given special handling, but are initiated at the request of actors outside the normal criminal process. Extra-legal pressures may have determined what offense was ultimately charged.

While it seems unlikely, this Opinion could be the courts, prosecutors and police way of showing a commitment to law and procedure by spelling out , at a salient time, what they see as the proper charge and the proper legal standards for such cases. This is not to say that Ilham Tohti should be guilty of any crime, but having legal bases and explanations would be a move towards rule of law.

3. What contradiction? The most likely explanation, and one I have already heard from Chinese colleagues, is that any contradiction is illusory- the Opinion doesn’t address Separatism and thus is not binding on cases of Separatism. If the conduct alleged is clearly defined as another crime name in the Opinion, that only means that it ALSO constitutes that crime, not that the crime of Separatism is improper. This of course essentially requires ignoring the distinction of ‘inciting’ and ‘separatism’in the Criminal Law.

4. The Opinion has no bearing on this “Sensitive Case”: The old standby response: law and procedure are improving in normal cases, just not in special politically sensitive cases. To understand rule of law in China, these big cases should be overlooked as exceptions. The Opinion will be followed in the vast majority of cases from now on. This also explains why defense counsel was not allowed to call witnesses.

Which, if any , of these explanations is correct is, of course, impossible to know in a system and case that remain so opaque that even an effective judgment cannot be released to the public ; leaving observers to grasp and guess at the meaning of any data points they have, like the timing of the release of a new Opinion.

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Jeremy Daum is a Senior Fellow of the Yale Law School Paul Tsai China Center, based in Beijing, with over a decade of experience working in China on collaborative legal reform projects. His principal research focus is criminal procedure law, with a particular emphasis on protections of vulnerable populations such as juveniles and the mentally ill in the criminal justice system, and is also an authority on China’s ‘Social Credit System’. Jeremy has spoken about these issues at universities throughout China and in the U.S.; and has co-authored a book on U.S. Capital Punishment Jurisprudence for Chinese readers. He is also the founder and contributing editor of the collaborative translation and commentary site, dedicated to improving mutual understanding between legal professionals in China and abroad.
He translates, writes, edits, does web-design, graphic design, billing, tech support, and social media outreach for China Law Translate.

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