LEGAL REGULATION ON COUNTER-TERRORISM
Creators: name: Shan, Jia
Publisher: name: Universit� degli studi di Trento
Year: 2021

description: Nowadays, terrorist crimes are still threatening global security. Since the 21st century, with the rapid development of modern science and technology, such as "Internet +", "big data" and "artificial intelligence", along with the changing political situation of international society, the global distribution of economic benefits, and the global flow of civilization and culture, it has brought about information sharing and a better life in human society. At the same time, it has spawned the form innovation of terrorist crimes. Terrorism is increasingly threatening non-traditional security areas. The non-traditional security theory transcends the concept of national boundaries and the limitations of national sovereignty, and examines the security construction of various countries from the perspective of global security. It focuses on a wider range of fields, a wider vision and a deeper depth, and is a kind of "shared security". Terrorist crimes challenge international authority, national sovereignty and tolerance for crimes, and affect the development of many fields in the world, which belongs to the non-traditional security field. Because of its inherent destructive, violent, dual-purpose, international and decentralized characteristics, for many years, the global defense against terrorist crimes has formed three paths: "war path", "criminal justice path" and "global governance path". From the reality, the path of war is a last resort in the current global counter-terrorism, but it is not worth vigorously promoting. Criminal justice path can effectively reduce the operation cost of counter-terrorism measures, is conducive to the realization of human rights protection, and is the main counter-terrorism means, but it is still insufficient to deal with terrorist crimes, and must be further improved and strengthened. The global governance path is put forward on the basis of effectively eliminating the threats and security problems brought by terrorism on a global scale. It relies on the global countries to form a community of common destiny for all mankind to effectively fight terrorism. Although this goal is far away, it is the fundamental way to completely eliminate terrorism. In the value choice of counter-terrorism, the theory of priority protection of national security and global security has become the main theory from the perspective of non-traditional security. Under the non-traditional security concept, counter-terrorism must first ensure national security, and then pursue individual freedom. Without national security, there is no individual freedom. But at the same time, we should give full consideration to the theory of safeguarding human rights and bottom line justice. The protection of human rights against terrorism from the perspective of non-traditional security must start from three levels: terrorist crimes and human rights protection; the protection of state power and human rights, as well as the protection of terrorists' rights. In a civilized society, even if terrorists are as evil as enemies, they cannot be treated like enemies, but must adhere to the rule of law and guarantee their basic rights. When dealing with terrorist crimes at the international level, we should see that international counter-terrorism faces practical problems such as inadequate legal system, imperfect cooperation mechanism and practical difficulties. By adhering to the main position of the United Nations in counter-terrorism, we should formulate the United Nations Comprehensive Counter-Terrorism Convention and improve the international unified counter-terrorism criminal policy, and finally achieve effective governance of terrorism. At the domestic level, it mainly focuses on the establishment of a comprehensive and effective counter-terrorism mechanism, starting from the counter-terrorism institution building, counter-terrorism platform building and counter-terrorism legal system. The most important thing is to build and perfect the counter-terrorism legal system. By combing our counter-terrorism legal system, we should further polish it from the aspects of defining the basic concepts of terrorism, improving the counter-terrorism substantive law and perfecting the counter-terrorism procedural law. In this process, we must carry out the criminal policy of combining punishment with leniency, and finally realize the balance between security and human rights protection. This thesis is divided into five chapters to study the terrorist crime in the field of non-traditional security, hoping to make a theoretical response to the causes of terrorism, extremism, terrorist crime, terrorist activity crime and the preventive countermeasures in China through such a theoretical review, combing and exploration, especially to provide a useful theoretical reference for the prevention, strike and elimination of such crimes. At the same time, it is also a theoretical clarification of the terrorist crimes, terrorist activities crimes and extremist crimes in the non-traditional security field. Chapter one: this chapter mainly clarifies the relevant concepts, and understands the traditional security theory, non-traditional security theory, terrorism, extremism and separatism from the most basic level; distinguishes terrorist activity crime, terrorist crime and extremist crime, including the discrimination of their concepts, characteristics, types and purposes. More importantly, terrorism, which has been debated over its concepts for a long time, is serious crimes not only endangering the international security, but also endangering the overall national security of China, such as political security, homeland security, military security, economic security, cultural security, social security, network security, science and technology security, information security, ecological security, resource security, nuclear security and so on. The safety of people's lives and property can be ensured only when such crimes are eliminated. The second chapter discusses the causes and harms of terrorist crimes. From the international political level, national religious belief, interest distribution and other perspectives, this chapter analyzes the causes and harms of terrorism. This kind of harm is analyzed from the aspects of international society and domestic society. As far as the harm of international society is concerned, it causes the internal disintegration of the country, causes the internal management of the country out of control, intensifies regional conflicts and wars, people living nowhere, the number of refugees increases sharply, all kinds of serious crimes rise, global economic development slows down, and the number of global crimes increases. As far as the harm of the domestic society is concerned, it intensifies the escalation of national conflicts and the rise of extreme forces, which leads to the instability of social management order, the destruction of social dynamic balance, the general lack of security and trust of the public, the reduction of trust of the whole people, the destruction of social integrity system, and the loss of moral concepts of social groups, which will form the vicious circle of everyone is in danger, or some scholars call it the so-called "mutual harm mode" of modern society. Finally, the terrorist crimes basically spread all over the world, endangering the international political environment and extending to China, resulting in the slow development of domestic economy, the destruction of the inheritance of local cultural system, endangering everyone's own development and individual survival, etc., causing unprecedented disasters in the whole human society, such as environmental degradation, food shortage, water pollution, and trust crisis. Chapter three: expound the value orientation and the path of counter terrorism. The biggest harm of terrorist crime lies in the destruction of global security. Therefore, the value of counter-terrorism in theory is mainly embodied in: the theory of human existence, the theory of international relations, the value theory of priority of global security interests, the theory of dynamic balance between the protection of basic human rights and the strengthening of state power, the theory of principles, rules and systems of international human rights law. Today's "counter-terrorism model" mainly adopts "war model" (military strike), "criminal justice model" (judicial governance) and "global governance model" (social governance) to control, eliminate and combat the spread and frequency of terrorist crimes. However, looking at these models, we can find that the war model basically failed because the United States withdrew its troops from Iraq and other countries, the judicial governance was in the stage of continuous attempt and improvement because of the poor connection of domestic laws of various countries, and the global governance was impressed by various factors among countries, and also became a theoretical system of continuous attempt to break through and improve. At present, the international community has not created a theoretical model that can completely eliminate terrorist crime and terrorist activity crime. Most countries adopt intelligence early warning, rapid elimination, post elimination and other ways to the occurrence of terrorist attacks, in order to effectively control the spread of terrorist extreme ideas, reduce the overall probability of terrorist attacks, and thus continuously weaken the viability of terrorist organizations around the world. Chapter four: the current situation and improvement of international response to terrorist crime. Due to the differences of political ideology and the restriction of interest pattern, the counter-terrorism legal system is not perfect, and it is difficult to form a systematic and effective "international unified criminal code system" or "international unified criminal policy" to regulate international terrorist crimes. In this regard, the international level of the regulation of terrorist crimes should mainly adopt international criminal cooperation, criminal judicial assistance, regional alliances, and other ways (such as the Shanghai Cooperation Organization).Therefore, the conclusion of international conventions is particularly important. Only with legal basis can we realize effective cooperation across national sovereignty. It can not only ensure respect for the sovereignty of all countries, but also help to carry out practical cooperation to deal with terrorist crimes of all countries. Chapter five: expound the path and system construction of dealing with terrorist crime in China. From the perspective of China?s society, it is generally in a period of stable development, but still unable to cope with sudden terrorist attacks. Terrorist attacks happen under the planning of terrorists, so it is urgent to improve the criminal law of China. Over the years, China has preliminarily constructed the main frame of counter-terrorism, and formed a three-dimensional prevention system in the aspects of counter-terrorism stance, counter-terrorism organization setting, counter-terrorism fund control and counter-terrorism Internet supervision. In terms of specific disposal, China has established counter-terrorism organization and platforms, such as information exchange platform, early warning and prevention platform and public division platform. But fighting terrorism according to law is always one of the goals pursued by the rule of law. Although China has established a relatively complete counter-terrorism legal system, the counter-terrorism legislation has certain defects and deficiencies in three aspects: basic concepts, anti-terrorism substantive law and anti-terrorism procedural law. It is found that there are some specific problems in China?s counter-terrorism legislation, such as unclear definition of basic concepts, poor convergence of laws in the field of counter-terrorism substantive law, confusion of identification subject and procedure in the field of counter-terrorism procedural law, confusion of administrative power and criminal investigation power, and poor procedural independence. The definition of the basic concept should strictly abide by the behavior theory of objectivism criminal law, and should be expanded in combination with international practice to cover specific cases from the literal and theoretical extension of the articles. In the field of counter-terrorism substantive law, the power boundary between administrative law and criminal substantive law should be clarified, and legislative conflict of jurisdiction should be solved, strictly implement the concept of modesty of criminal law, and correctly define the specific boundaries between administrative illegal activities and criminal activities, as well as between incriminating and discharging crimes. The choice of procedural legislation of mixed model in the field of counter-terrorism procedural law should conform to the trend of the world, clarify the compartmentalization of subjects, ensure the smooth internal connection of the whole procedure, and establish a special prosecution procedure. At the same time, we insist on using criminal policy of combining punishment with leniency to guide our counter-terrorism practice, and finally realize the balance between counter-terrorism and human rights protection. In a word, based on the complexity of criminal phenomena, the diversity of criminal patterns and the differences of social development patterns, considering the rigor and diversity of the theoretical research of criminal law, we should take a dynamic and open concept to study the criminal law of terrorist crime and terrorist activity crime, and adopt a multi-dimensional research approach.