Journal of Political Risk, Vol. 8, No. 11, November 2020
Chinese Communist Party flag. Source: Wikimedia
Terri Marsh, J.D.
Human Rights Law Foundation
Teng Biao, Ph.D.
University of Chicago
The Chinese Communist Party (the Party) was founded in 1921 to defeat the Nationalist Party, or Kuomintang, through a “violent revolution” and establish a totalitarian communist state. Since its victory in 1949, it has directed a wide range of activities that include the waging of violent suppression campaigns, providing material support to known terrorist organizations and state sponsors of terrorism, abducting foreign diplomats, in addition to the use of forms of “soft” power to export repression through an “increasingly powerful and brutal totalitarianism that is metastasizing globally.” Operating without constitutional support,[1] left to its own devices, it will continue to rewrite international norms and create a new international order in which the rule of law, human dignity, democracy and justice are debased and denied.
The U.S. government has shown an increasing willingness to confront the Party on different policy fronts, including by calling it out for human rights abuses and encroachments of civil liberties around the world. It has publicly sanctioned four Party officials (though more may be subject to visa restrictions) in connection with persecution in Xinjiang, including senior Chinese Communist Party officials Chen Quanguo (Politburo member and Party Secretary of Xinjiang, who perfected his tools of repression in Tibet) and Zhu Hailun (Deputy Party Secretary of Xinjiang). It has also recently issued robust sanctions against the Party-controlled Xinjiang Public Security Bureau (XPSB)[2] also in connection to the severe human rights abuses leveled against ethnic minorities in the Xinjiang Uyghur Autonomous Region (XUAR).[3]
In addition to these and other responses, there is another powerful tool specifically designed to protect the security of the United States and its partners against such threats, that is the designation of an entity, e.g. the Party, as a foreign terrorist organization (FTO) under Section 219 of the Immigration and Nationality Act, as amended (the “INA,” codified at 8 U.S.C. § 1189). Section 219 of the INA authorizes the Secretary of State to make such a designation for a foreign organization that engages, or that retains the capability and intent to engage, in “terrorist activity or terrorism” in such way as to “threate[n] the security of U.S. nationals or the national security of the United States.” Indeed, as discussed below, the United States is uniquely positioned to do so.
I. THE PARTY’S CONDUCT COMPORTS WITH THE DEFINITION OF “TERRORISM” UNDER 22 U.S.C. § 2656f(d)(2)
Purge Campaigns
The Party routinely subjects non-combatant, civilian populations to surveillance, abduction, public humiliation, ideological conversion and other forms of torture in “black jails” (unofficial detention facilities run directly by the Party), “re-education through labor” camps (a system of administrative detention imposed without judicial review), psychiatric hospitals, police jails and prisons.[4] A small sample of earlier Party-run “purge” campaigns includes the Campaign to Suppress Counterrevolutionaries (1950-1953), Land Reform (1947-1952), Three-Anti/Five-Anti Campaigns (1951-1952), Anti-Rightist Movement (1957-1959), Great Leap Forward (1958-1960), Cultural Revolution (1966-1976), Strike Hard Campaigns (1983), Tiananmen Massacre (1989), Persecution of Falun Gong (ongoing, since 1999), and One-Child Policy (1979-2015).
More recently, through “high-tech totalitarianism,” the Party’s clandestine operations, aided and supported by the state apparatus, have subjected Uyghurs, Tibetan Buddhists, Falun Gong believers, Christian sects, independent-minded journalists, human rights attorneys and others to violent suppression campaigns.
Upwards of a million Uyghurs have been rounded up and confined within a network of concentration camps (called “re-education camps”); many have been subjected to torture, enforced disappearance, and forced labor. Those not detained are under near constant surveillance under a program that collects reams of biometric data. Information is now emerging that Xinjiang obstetricians were ordered to commit late term abortions and even infanticide if Uyghur families exceed their “family planning” quotas. (For a more detailed discussion of this history and a legal characterization of the current violence, see the analysis from Stanford Law School’s Human Rights & Conflict Resolution Clinic).
Thousands of Falun Gong believers have been rounded up and detained arbitrarily in “psychiatric” facilities where they are injected with psychotropic drugs, and in “black jails,” and “re-education camps where they are subjected to torture to force so-called “enemies” to renounce their group identity and beliefs.[5] Those who refuse to abandon their religious affiliation are subjected to even harsher sanctions that include public humiliation, enforced disappearance, and extrajudicial killing.[6] Information is further emerging that many believers have been subjected to organ harvesting often without anesthetics and without their consent.[7]
Several reports, including a U.S. State Department 2019 Human Rights Report, document similarly egregious abuses perpetrated against Tibetans, that include arbitrary arrest; maltreatment in custody; torture; and forced abortion and sterilization. Party efforts to suppress the Tibetan religion and undermine the influence of the exiled Dalai Lama have further included the destruction and shuttering of all monasteries, the disrobing of hundreds of thousands of monks and nuns and harsh punishment of any display of religiosity. Campaigns of “patriotic reeducation” in monasteries have been launched by the Party’s United Front since 2008 and have increasingly been extended beyond monasteries to Tibet’s general population, forcing students, civil servants, farmers, and merchants to participate in discussions, singing sessions, and propaganda film screenings.[8] Tibetans have even been reported to have been shot dead when crossing the snow mountains on their way to exile in Nepal. And earlier this year, 500,000 rural Tibetan laborers were pushed into military-style training centers.
These campaigns and other purge campaigns in China follow the same basic steps:
- The decision to target a specific group as an “enemy” is always made by the Party.[9] The Anti-Rightist campaign in 1957, which targeted 550,000 “rightists” (this is the official number, unofficial estimates have placed the number at two million), was initiated by the Party. During the Cultural Revolution and thereafter, all the instructive documents were issued under the name of the Party Central Committee.[10]
- Following a positive decision, the group to be targeted is identified with carefully crafted rhetorical language branding it as an enemy of both the Party and the “People,” and as opposed to Party ideology (cast as the truth).[11]
- The initiation of the crackdown is signaled and implemented through the use of Party language and especially the imperative verb “douzheng” (斗爭), defined in this context as the “unlawful torture and persecution” of said group.[12]
- Flagship media in China and Party ideology journals spread the word to ensure that the designated group is a known Party enemy.[13]
- Special and general security forces are mobilized – including special Party forces (such as the 610 officers used by the Party to torture and violently suppress Falun Gong) and general police forces operating under the aegis of the Party’s all powerful Political-Legal Affairs Committee (PLAC) – to identify, round up, arbitrarily detain, and torture individual members of the “group.” The ideal aim is to force so-called “enemies” to renounce their group identity and beliefs. [14]
- This final step is what is referred to as “zhuanhua” or “forced conversion.” Individuals refusing to be “forcibly converted” are subjected to ever increasing violence and, in many instances, death.[15]
This process has remained the same since (if not before) the founding of the People’s Republic of China: each Party-run douzheng campaign was a targeted, well-coordinated attack following the above-outlined plans and procedures and including physical and mental abuse, detention, and torture of members of the targeted group.[16]
As a former Party agent disclosed, these violent purges are largely clandestine. Secret agents operate behind closed doors to surveil, round up and detain dissidents at the behest of the Party in order to further Party goals and objectives.[17] For this (and perhaps other reasons), the PRC has “categorically denied” that it even engages in such campaigns.[18]
The Party’s Conduct Falls Squarely Within the Definition of “Terrorism” under 22 U.S.C. § 2656f(d)(2)
Section 22 U.S.C. 2656f(d)(2) defines “terrorism” as a (i) premeditated, (ii) politically motivated violence perpetrated against (iii) noncombatant targets (iv) by subnational groups or clandestine agents.[19] The Party’s purge-campaigns fall squarely within these parameters. Firstly, the extensive planning, coordination and decision making involved prior to the mobilization of security forces to torture and forcibly convert target groups underscore the role of “premeditation” which is defined as “thought that occurs beforehand” in U.S. criminal law.[20] Apart from that, the speeches of major Party perpetrators demonstrate the extensive forethought and planning that takes place ahead of time.[21]
In addition, while the term “political” is not defined in 22 U.S.C. 2656f(d)(2), the ordinary meaning of the term describes the activities of a government or the strategies of a political group.[22] As one of nine political parties in China, the Party’s purge campaign strategies are clearly political.
The term “noncombatant,” which is similarly referred to but not defined in 22 USC 2656f(d)(2), has been interpreted to mean, in addition to civilians, military personnel (whether or not armed or on duty) who are not deployed in a war zone or a war-like setting. Country Reports on Terrorism, 2019, at 303, (“Interpretation and Application of Key Terms,”) available here. Insofar as targeted groups, including the Uyghurs, Falun Gong believers, and Tibetan Buddhists have not been targeted during their deployment in the military, much less their active deployment in war-like settings, this element is met as well.
Finally, as noted, the clandestine manner through which purge campaign targets are rounded up, detained, tortured and otherwise persecuted is detailed by a former secret agent[23] and well-illustrated by China’s (discredited) denials as to their occurrence.[24]
The Party’s actions here are also similar to those of the Communist Party of the Philippines (and its armed wing, the New People’s Army), which was designated an FTO in 2002 for its commission of similar acts of violence—killings, kidnappings, extortions, and other forms of violence against Philippine security and government forces and civilians since the beginning of its insurgent guerrilla warfare in 1969. They are also similar to the violent, often brutal, suppression of noncombatant populations by communist, military and other dictators of nations previously or currently designated as state sponsors of terrorism, including North Korea (Kim Jong Un and Kim Jong Il), Cuba (Fidel Castro), and Syria (Bashar al-Assad). As such, they pose no less of a threat to the global order and fall squarely within the definitions of “terrorist activity” and “terrorism” under the INA.
II. THE PARTY’S “TERRORIST ACTIVITIES” UNDER 8 U.S.C. § 1182 (a)(iii)
The Party’s influence is growing daily through what Teng Biao, a prominent Chinese human rights lawyer and professor, has dubbed its “Long Arm,” including its Belt and Road Initiative, its “Confucius Institutes,” trade networks, the creation of islands in the South China sea for military purposes, international cyber-attacks, and espionage in its recent cover-up of the Covid-19 outbreak in Wuhan. The Party and its proxies further engage in “terrorist activity” for the purposes of an FTO designation.
“Terrorist activity” is defined as “any activity which is unlawful under the laws of the place where it is committed (or which, if it had been committed in the United States, would be unlawful under the laws of the United States or any State) and further includes: (I) The high jacking or sabotage of any conveyance (including an aircraft, vessel, or vehicle). (II) The seizing or detaining, and threatening to kill, injure, or continue to detain, another individual in order to compel a third person (including a governmental organization) to do or abstain from doing any act as an explicit or implicit condition for the release of the individual seized or detained. (III) A violent attack upon an internationally protected person (as defined in section 1116(b)(4) of title 18) or upon the liberty of such a person. (IV) An assassination. (V) The use of any— (a) biological agent, chemical agent, or nuclear weapon or device, or (b) explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property. (VI) A threat, attempt, or conspiracy to do any of the foregoing.”[25]
The Abduction of “Internationally Protected Persons”
The recent wave of abductions carried out by the Party and its Political-Legal Affairs Commission[26] are driven by an increasingly expansionist foreign policy that includes the treatment of former and current nationals – no matter where they live, work, or study, as subject to their authority.[27] The Party’s overreach has even included the abduction and abuse of “internationally protected persons,” as illustrated by the Simon Cheng case. Although an employee of the United Kingdom at the time, Simon Cheng was not only kidnapped during a trip to Mainland China, but was also “shackled, blindfolded, and hooded … beaten and forced to sign confessions.”
The Party’s conduct here falls within section 1182 (a)(3)(b)(iii)III, which defines as “terrorist activity” a violent attack upon internationally protected persons (as defined in section 1116(b)(4)(B) of title 18). Section 1116(b)(4)(B) of title 18 designates an “internationally protected person” as “any representative, officer, employee, or agent of … a foreign government who at the time and place concerned is entitled pursuant to international law to special protection against attack upon his person, freedom, or dignity, and any member of his family then forming part of his household.” As an employee of the United Kingdom’s British Consulate in Hong Kong at the time of his abduction, Simon Cheng qualifies as a person who at the time and place was entitled to special protection against kidnapping and alleged torture by Chinese operatives.[28]
The abduction and abuse of Simon Cheng also violates the Convention on the Punishment and Protection of Internationally Protected Persons, Including Diplomats (PPIPP), which the United States and China ratified on December 28, 1973 and August 5, 1987, respectively.[29] Insofar as its prohibitory and jurisdictional language mirrors that of section 1116b(4)(B),[30] it also covers the kidnap, detaining and other abuses carried out against Mr. Cheng. Nonetheless and notwithstanding its ratification of the Convention in August of 1987,[31] China’s communist party has acted in direct violation of its terms based presumably on its expansionist long-arm doctrine that has little if any regard for its obligations under multilateral treaties such as the PPIPP unless they are consistent with China’s increasingly aggressive expansionism and not the other way around.[32]
Apart from all of these considerations, the international consensus against the kidnapping of internationally protected persons as reflected in the widespread ratification of the PPIPP in addition to that of the Organization of American States Convention on Terrorism, October 8, 1976, art. 1, 27 U.S.T. 3949, 3957–58, T.I.A.S. No. 8413, (stating that “[t]he contracting states undertake to … prevent and punish acts of terrorism, especially kidnapping, murder, and other assaults”),[33] further militates in favor of an FTO designation as do analogous federal statutes. See, e.g., 18 U.S.C. § 1201(a)(4).[34]
The Sabotage of Foreign Vessels in the South China Sea
Section 1182(a)(3)(b)(iii)(I) of title 18 prohibits the highjack or sabotage of conveyances, including vessels. In spite of this prohibition, the Party has authorized the sabotage and destruction of foreign civilian vessels, often carried out by the Chinese Maritime Militia (CMM), also known as the People’s Armed Forces Maritime Militia. The CMM resides under the direct command and control of the People’s Liberation Army (PLA), which by law operates “under the absolute leadership”[35]of the Party, and therefore answers to it and follows its directives.” In 2012, the CMM sabotaged a Vietnamese vessel doing seismic oil exploration work in the South China Sea. In the same year, the CMM attacked and sunk a South Korean coast guard speedboat. In 2014 and 2019, the CMM rammed and sank Vietnamese and Filipino fishing vessels. In addition to the CMM, the Party also uses the Central Military Commission’s China Coast Guard to terrorize neighboring waters. For example, in 2020, the Central Military’s Coast Guard sunk a Vietnamese fishing vessel in the vicinity of the Paracel Islands in the South China Sea. As a part of the military police, the Coast Guard similarly answers to and is directed by the Party.[36]
Party-ordered sabotage of foreign vessels is part of a broader set of legal violations by the Party as it continues to attempt to establish control and assert sovereignty over the South China Sea. Its claims over the area were the subject of the 2016 decision of the Permanent Court of Arbitration (PCA) in the matter opposing the Philippines and the People’s Republic of China, In re South China Sea Arbitration, PCA Case No. 2013-19, Award (Perm. Ct. Arb. 2016). One of the Philippines’ grievances before the Court was the aggressive conduct of Chinese law enforcement vessels, in particular dangerous chases and intimidation of Philippine coast guard and surveillance ships in April and May 2012 that resulted in near collisions. The Court held that such dangerous conduct “created serious risk of collision and danger to Philippine vessels and personnel” and that it “point[ed] to a conscious disregard” of international laws requiring the safe operation of vessels and prevention of collision. Id. at 434-35.[37]
The continued ramming and sinking of foreign vessels in the years that followed only confirmed the Party’ conscious disregard for these international law obligations and its terrorist tendencies. And taking note of official pronouncements from Beijing, the conduct of Chinese vessels should only be expected to become increasingly aggressive. The Standing Committee of the National People’s Congress, headed by the third-ranked member of the Party’s Politburo Standing Committee, recently proposed legislation granting formal authority to the Chinese Coast Guard to seize foreign vessels and, in certain circumstances, use weapons upon threats to Chinese territorial claims.[38]
These acts are also similar in kind to those of other entities designated as FTOs under Section 219 of the INA, including Hizballah, which has been known to fire guided missiles at Israeli military vehicles, and Al-Qa’ida in the Islamic Maghbreb, which has attacked United Nations convoys in the past.[39]
III. OTHER CONSIDERATIONS
Computer Fraud, Economic Espionage, and Theft of Trade Secrets
In November 2018, the U.S. Department of Justice (DOJ) launched the “China Initiative” to counter some of China’s most egregious threats to U.S. national security, including the theft of trade secrets, hacking and economic espionage. As part of this endeavor, DOJ attorneys have indicted Chinese military personnel with computer fraud, economic espionage, and wire fraud for hacking into credit reporting agency Equifax, as well as Huawei Technologies Co. Ltd. for conspiracy to steal trade secrets in violation of the Racketeering and Corrupt Organizations Act. The seriousness of such hostile attacks on U.S. national interests is well illustrated by the number of persons and companies the DOJ has indicted and prosecuted since 2018.[40] Based on these and other cases, FBI Director Christopher Wray aptly characterized China’s counterintelligence and economic espionage as “[t]he greatest long-term threat[s] to our nation’s information and intellectual property, and to our economic vitality.”[41]
Additional Threats
China’s long arm additionally poses threats to other regions such as Hong Kong and Taiwan.
The National Security Law (“NSL”) recently imposed on Hong Kong stripped away a wide range of freedoms and legal protections that form the foundation of democracy including space for critical dissent, and commitment to the rule of law. The NSL’s most draconian provision is Article 38, which imposes criminal penalties for vaguely defined offenses to anyone anywhere in the world, regardless of whether they are in any way tied to Hong Kong.[42] The extraterritorial expansiveness of this provision is far more intrusive than even Mainland China’s own national security laws. Yet Article 38 is only one of several measures the Party and its proxies have taken to erode freedoms in Hong Kong. As another example, the Hong Kong police engaged in Party tactics to secure the Party’s takeover of Hong Kong.[43] The city witnessed violent and terror-instilling tactics deployed by Hong Kong security against Hong Kong adolescents and young adults. The recounting by student activist Joshua Wong of his own fears illustrates well the terror the Party deliberately instills in anyone who does not submit to its rules and pronouncements. As he explained, “[t]he fear of being extradited to Chinese court and held in a ‘black jail’ is yet another level of terror.”
And, of course, there are other causes for concern, including newly developed capabilities to attack Taiwan, the banning of U.S. citizens from leaving China, the arrests of pastors and foreign journalists, and the murder of at least a dozen C.I.A. sources.
IV. IMPLICATIONS OF THE FTO DESIGNATION
The imposition of sanctions by the United States against terrorists, terrorist organizations, and their support structures is a powerful tool.[44] The key consequences of FTO designations are threefold, each discussed below. These consequences would not only repudiate the Party’s acts of terror, but also help the U.S. and other democratic nations maintain their shared values and security.
- Whoever knowingly provides “material support or resources” to FTOs is punishable by fines and imprisonment of up to 20 years, or life imprisonment if such support results in death.[45],[46] This consequence may be significant in ensuring that U.S. persons exercise utmost care to avoid supporting the Party. Given the omnipresence of the Party throughout Chinese society, this may effectively stifle the Party’s ability to sustain itself operationally and economically. At the very least, this would provide additional tools for the U.S. government to prosecute Party spies stealing high-tech, military and other secrets that are vital to U.S. national security.
- Members or representatives of FTOs may not be admitted into the United States if they are not a U.S. citizen.[47] They are also subject to deportation at the time of entry or adjustment of status into the United States.[48] This could have drastic consequences for the Party by deterring membership and eroding its ranks. This designation would also facilitate the prosecution of Party-backed spy networks, such as those operated by the Party’s United Front in New York.[49]
- Financial institutions must freeze funds held by FTOs, report their existence to the U.S. government, and block all financial transactions involving FTO assets.[50] Such financial consequences can be severe for the Party by depriving it of financial assistance and the ability to participate in global economic markets.[51] Notably, such a designation may prevent any attempt by the Party to engage in mass sales of its approximately $1.1 trillion of U.S. Treasury securities.
V. CONCLUSION
A Chinese Communist Party FTO designation would highlight that the Party uses terrorism as a key tool of its management and that through its various subdivisions and proxies has engaged in terrorist activity or terrorism since its inception. It has directed purge campaigns against noncombatant nationals. It has impermissibly extended its long arm to kidnap and abuse internationally protected persons and sabotage foreign vessels in violation of 8 U.S.C. 1182(a)(3)(b)(iii). It has made a clear choice to fuel terrorism elsewhere in flagrant disregard of other international rules and norms. In addition to its support of terrorists abroad, it poses a threat to the global rule of law order through, inter alia, its passage of the NSL in Hong Kong and recent related practices.
We appreciate that an FTO designation might constitute a watershed moment in U.S. policy vis-à-vis the Chinese Communist Party. But, if we seriously intend to counter the Party’s remaking of the world in its own image as against our own rule-of-law vision, an FTO designation would facilitate, promote and defend that vision along with the rule-of-law and rights-based order it encompasses from its most significant threat.[52]
Dr. Terri Marsh, J.D., was an Assistant Professor of Classics at the University of Texas at Austin, when she was drawn to a career in international human rights law based largely on the televised reports of the crackdown at Tiananmen Square in 1989. She now works as the Executive Director of the Human Rights Law Foundation, where she advocates on behalf of persecuted religious minorities in China. In this position, she litigates human rights cases filed under the Alien Tort Statute and the Torture Victim Protection Act, as well as civil rights cases pertaining to federal law. She was recruited as a fellow and editor of the Law Review for the University of the District of Columbia’s David A. Clarke School of Law. Dr. Marsh was active as a consultant for the Center for Law and Social Policy and the NOW Legal Defense and Education Fund in 1993. Dr. Teng Biao is Grove Human Rights Scholar at Hunter College, and Pozen Visiting Professor at the University of Chicago. He has been a lecturer at the China University of Politics and Law (Beijing), a visiting scholar at Yale, Harvard, NYU, and the Institute for Advanced Study. Teng’s research focuses on criminal justice, human rights, social movements, and political transition in China. He co-founded two human rights NGOs in Beijing – the Open Constitution Initiative, and China Against the Death Penalty, in 2003 and 2010, respectively. As a human rights lawyer, he is one of the earliest promoters of the Rights Defense Movement in China and has received various international human rights awards including the Human Rights Prize of the French Republic.
[1] As China expert Professor Li Ling has observed, “the legitimacy of the Party’s rule is not derived from the state’s constitutional authorization. The Constitution makes references to the Party mostly in the narratives of the preface. In such references, the Party appears only in its collectivity and in the most abstract form, for instance, ‘… shall adhere to the Party’s leadership’, which would be generally considered empty and unenforceable slogans in normal circumstances.” See Li, Ling. (2020). The “Organisational Weapon” of the Chinese Communist Party China’s – disciplinary regime from Mao to Xi Jinping. Law and the Party in China: Ideology and Organisation. ed. by R. Creemers and S. Trevaskes, Cambridge University Press, at p. 4. Apart from 1975 and 1978, when a provision was introduced in the Constitution that conferred power to the Chairman of the Party Central Committee as the commander-in-chief of the military force (the relevant provision was removed since 1982), “the Constitution has otherwise never rendered any power of substance, let alone prerogatives, to any particular office of the Party. To the contrary, the Party had long pledged in the Constitution to operate under the confines of the constitution and statutes of the state.” Id. A Party leader is never given state authority without holding a state office and only state institutions are entitled to exercise enforcement power, especially coercive powers. Id. That said, the Party’s influence is realized (albeit) through organizational arrangements rather than through a formal system of law. Id., at 6. For example, the Ministry of Public Security (MPS), the Ministry of State Security (MSS), the Supreme People’s Courts (SPC) and Supreme People’s Prosecutorial Office (SPP) report to the Party through party-groups installed in their institutions. Id. at 7. See also “The Working Regulations of the CCP’s Political and Legal Affairs Commission,” here (noting that Party exercises administrative control over the MPS, MSS, SPC, SPP and MOJ through the Party’s Political and Legal Affairs Commission).
[2] The Ministry of Public Security and its security apparatus report directly to the Central Party Committee through the Political-Legal Affairs Committee (PLAC). Supra n. 1.
[3] The press release from the U.S. Department of the Treasury concerning these designations is available here. Recognizing that our former China policy has failed in this (and other respects), many have argued that the United States should hold to account the people and companies complicit in these activities.
[4] The Party’s all-powerful PLAC manages the Ministry of Justice which manages the re-education through labor camps and other centers of detention. Supra, n. 1.
[5] See, e.g. Congressional-Executive Commission on China, 2008 Annual Report (“The term “transformation through reeducation” (jiaoyu zhuanhua) describes a process of ideological re-programming whereby practitioners are subjected to various methods of physical and psychological coercion until they recant their belief in Falun Gong.”).
[6] See “Policing the Chinese Spirit,” available here.
[7] See, e.g., Australian Academic Matthew Robertson’s report that charts the growth of the Chinese transplantation system since 2000, the characteristics of its organ supply, and evidence concerning the harvesting of organs from followers of the Falun Gong religious movement. The full-length report is available here.
[9] Resolution on Certain Questions in the History of Our Party. (This resolution clearly states that all suppressive political campaigns, including the Anti-Rightist campaign and Cultural Revolution, were initiated and carried out by the Party, not the state.) Available here.
[10] For example, the 2001 speech by Party’s Politburo head Luo Gan, as quoted and described in The Tiananmen Papers, Andrew J. Nathan, Perry Link, Orville Schell, The Tiananmen Papers, Public Affairs, 2008 sets the stage for the violent purge of Falun Gong.
[11] See, e.g. “Consolidating and Expanding Results of the Struggle to Expose and Criticize ‘Falun Gong,’” Consulate-General of the People’s Republic of China in New York, October 20th, 2003, available here (calling for “strengthening and improving ideological political work” to “obtain complete victory in this struggle [with Falun Gong].”).
[12] The term douzheng, as used by the Chinese Communist Party and its representatives as well as its supporters or affiliates in China and abroad, within the context of the Party’s purge campaigns, is a specialized political term of art. See Perry Link, An Anatomy of Chinese: Rhythm, Metaphor, Politics, 312 (Harvard University Press, 2013) (“The word douzheng originally means struggle … [but] the intensity and variety of the cruelty involved went well beyond ordinary ‘struggle.’ It included ransacking homes, burning books, public humiliation, beatings, torture, eye-gougings, killings, demands that families pay for the bullets that killed their loved ones [etc.]”).
[13] See, e.g., collected list of articles devoted to “Deeply Exposing and Criticizing Falun Gong” [Shenru Jiepi Falun Gong) published and promulgated on the website of the People’s Daily, December 29, 2000, available here.
[14] See, e.g., Liu Yong, “The Situation and Countermeasures Fighting against ‘Fa Lun Gong’ [Tong ‘Falun Gong’ Douzheng de Xingshi ji Duice”], 14 Journal of Shandong Public Security College [Shandong Gongan Zhuanke Xuexiao Xuebao] 3, (2002). (“At present the anti-‘Falun Gong’ struggle [douzheng] faces grave difficulty.” “The difficulties of transforming [zhuanhua] ‘Falun Gong’ elements … must be countered with targeted countermeasures… we must establish a special organization and special troops to intensify the struggle [douzheng] against ‘Falun Gong.’”).
[15] In particular, “zhuanhua” designates the process that forces the targeted people to give up their religious belief, with methods including imprisonment and torture. See, e.g. Congressional-Executive Commission on China, 2008 Annual Report (“The term “transformation through reeducation” (jiaoyu zhuanhua) describes a process of ideological re-programming whereby practitioners are subjected to various methods of physical and psychological coercion until they recant their belief in Falun Gong.”).
[16] See, e.g., Perry Link, An Anatomy of Chinese: Rhythm, Metaphor, Politics, 312 (Harvard University Press, 2013) (“The word douzheng originally means struggle … [but] the intensity and variety of the cruelty involved went well beyond ordinary ‘struggle.’ It included ransacking homes, burning books, public humiliation, beatings, torture, eye-gougings, killings, demands that families pay for the bullets that killed their loved ones [etc.]”).
[17] Hao Fengjun, “The 610 Office that I Witnessed,” on file with the Human Rights Law Foundation.
[18] For example, in its letter submitted to the United States District Court for the Northern District of California, the PRC stated that “any such violations would be contrary to Chinese law.” Doe v. Qi, 349 F. Supp. 2d 1258, 1306 (N.D. Cal. 2004).
[19] 22 U.S.C. § 2656f(d)(2).
[20] See, e.g., Joshua Dressler, Understanding Criminal L 550 (4th ed. 2006), at 551 (providing that “to ‘premeditate’ means ‘to think about beforehand”’).
[21] See, e.g., “Comrade Jiang Zemin’s speech at the meeting of the Political Bureau of the Central Committee of the CCP regarding plans and preparation needed to deal with and settle the problem of ‘Falun Gong’,” June 7, 1999, available here.
[22] Absent a statutory definition, as here, courts turn to the dictionary. Kan Pacific Saipan, Ltd., 566 U.S. 560, 569 (2012) (relying on dictionaries from the time of the statute’s enactment to find ordinary meaning).
See OED, (1), (2), available here.
[23] Supra p. 2.
[24] Supra, n. 18.
[25] 8 U.S.C. 1182(a)(3)(b)(iii).
[26] As Simon Cheng reported, while kidnapping of overseas Han may be handled by Public or State Security forces, both of which answer to PLAC, he was abducted by public security. See also, Kate O’Keeffe, “China’s Pursuit of Fugitive Businessman Guo Wengui Kicks Off Manhattan Caper Worthy of Spy Thriller,” The Wall Street Journal (October 22, 2017) (indicating that the Party sent high ranking officials from the MPS and the MSS to the United States to try to kidnap Guo Wengui and return him to China).
[27] See, e.g., “The Disappeared,” available here. The recently enacted National Security Law goes even further by claiming jurisdiction over the whole world. See, in particular, Article 38 that allows Hong Kong authorities to target anyone in violation of the law, including non-Chinese nationals outside of China.
[28] His status as a citizen of Hong Kong does not affect the protections afforded to him under these statutory provisions. Section 1116(b)(4) of Title 18 offers protection to a “foreign official,” an “official guest” or an “internationally protected person” (emphasis added).
[29] See Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, Dec. 28, 1973, 28 U.S.T. 1975, T.I.A.S. No. 8532.
[30] See here (prohibiting the kidnapping of any official of a state who “at the time when and in the place where the crime against him…is committed, is entitled pursuant to international law special protection from any attack on his person,”),
[31] As Judge R. Higgins of the International Court of Justice recently observed, treaties do create obligations in the States that have ratified them. See Higgins, Problems and Process: International Law and How We Use It 64 (1994).
[32] Nor is the kidnapping of Simon Cheng an outlier. Similar abductions of former or current Chinese citizens include the 2002 abduction of Wang Bingzhang, a prominent pro-democracy advocate, who was seized in Vietnam and brought back to China by Party operatives. He is still serving a life sentence in prison. In 2004, another dissident, Peng Ming, was kidnapped in Myanmar and jailed in China. Further analysis is provided here. Since then, Party operatives kidnapped many other foreign nationals including the kidnap of Gui Minhai, a Hong Kong book publisher and bookstore-owner. Like others, Gui, a Swedish citizen, resurfaced in China where he was not only forced to confess on State Television, but forced to give up his Swedish citizenship and re-apply for a Chinese passport.
[34] The kidnapping of an employee of the United Kingdom’s British Consulate in Hong Kong is also similar to kidnappings of “protected persons” by other FTO-designated organizations, including the Kurdistan Workers’ Party that is known to plan attacks on Turkish diplomats including a recent attack in July 2019); and the Islamic Revolutionary Guard Corps (“IRGC”) that plotted an attack on the U.S. ambassador to Saudi Arabia in 2011.
[35] See Article 4 of the Regulations on Political Work of the Chinese People’s Liberation Army, available here.
[36] The coast guard was incorporated into the military police under the command of the Central Military Commission in July 2018, see here, which operates as the highest military body of the Party. See, e.g., “Organizations of the Central Military Commission,” available here.
[37] See further, DOD, “Military and Security Developments involving the People’s Republic of China,” 2020, at 10, available here. (“By the terms of the Convention, the [Tribunal] ruling is final and binding on China and the Philippines.”).
[38] The South China Sea has been the principal but, as evidenced thus far by the escalation of tension along the Sino-Indian border, not the sole arena where this scenario is unfolding. See, e.g., Jonah Blank, What Were China’s Objectives in the Doklam Dispute?, The Rand Blog (Sep. 8, 2017).
[39] The Party has not only engaged in terrorist acts itself. The Party has supported the activities of terrorist leaders and organizations. Yasser Arafat, who founded the Palestinian National Liberation Movement, or Fatah, in 1959, and who for decades played a key role in the PLO, even in the years when the Fatah and PLO were known to perpetrate terrorist acts, received strategic advice in person from senior Party officials, including Zhou Enlai, a leading Party figure who also occupied the post of Premier of the People’s Republic of China from 1954 to 1976. Mr. Arafat’s organizations were also given weapons and financial support, in addition to military training in China. See “Files Reveal How China Armed and Trained the Palestinians,” available here. The Party has also provided significant support to a wide range of organizations instilling terror worldwide, including to Hamas, which has been an FTO since 1997, and which continues to sell tanks to Iran, fully aware that Iran sells them to another foreign organization designated an FTO by the U.S. government, Hizballah.
[40] See, e.g., “Information About The Department of Justice’s China Initiative,” last updated on August 4, 2020 (compiling cases), available here.
[41] See, e.g.,” The China Threat,” available here.
[42] Article 38 of the NSL states “[t]his Law shall apply to offences under this Law committed against the Hong Kong Special Administrative Region from outside the Region by a person who is not a permanent resident of the Region.” As journalist Massimo Introvigne observes, one needs to read it twice before concluding that yes, the law really says that China, or rather the CCP, is asserting jurisdiction against every human being on this planet…” Massimo Introvigne, “Hong Kong Security Law, Article 38: We Will All Be Arrested,” Bitter Winter, Sept. 15, 2020.
[43] The Party’s role in the unraveling of a free Hong Kong has been highlighted by Secretary Pompeo, among others. See, e.g., The “CCP’s Orwellian Censorship of Hong Kong,” available here.
[44] Office of Foreign Assets Control, U.S. Department of the Treasury, Calendar Year 2018, Twenty-seventh Annual Report to the Congress on Assets in the United States Relating to Terrorist Countries and Organizations Engaged in International Terrorism, at 7-8, available here.
[45] 18 U.S.C. § 2339B(a)(1).
[46] Id.
[47] 8 U.S.C. § 1182 (a)(3)(B)(i)(IV)-(V).
[48] 8 U.S.C. § 1227 (a)(1)(A)).
[49] The United Front, is a Party-controlled bureaucracy modeled on Marxist-Leninist political warfare tactics and which acts as a proxy for the Party. It has been linked to the Party’s spy campaign against Tibetans in New York by federal prosecutors. See “NYPD Officer Accused of Spying for China Puzzled City’s Tibetan Groups,” WSJ, available here.
[50] 8 U.S.C. § 1189(a)(2)(C).
[51] Id.
[52] The co-authors appreciate the substantial assistance provided by volunteers at the Human Rights Law Foundation.