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The growing threat of China's lawfare

The growing threat of China's lawfare
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In March, Qi Shi, the official journal of the Central Committee of the Chinese Communist Party (CCP), published Chinese leader Xi Jinping’s article, in which he explains how to construct the Chinese socialist legal system. This is an important development. Compared with his predecessors, Xi’s ideas of law are more deceitful because they use familiar terms such as “rule of law,” “law-based” and “justice.” In practice, Xi increasingly uses law as a weapon to crack down on dissent to ensure regime security, while simultaneously employing it as a weapon in the CCP’s quest for world hegemony. 

China’s legal theory and practice are copied from the Soviet Union. Like the Soviets, the CCP’s dictators are never shy of saying that law is the party’s instrument to destroy enemies. The party’s absolute control over China’s judicial system is the principal component of Xi’s lawfare strategy. He reiterates that “if the party is above the law, or the law above the party, it is a political trap and a false proposition.” The leadership of the party is the soul of China’s rule of law and only the party can effectively advance it. In short, the Communist Party always remains above the law. 

Since Xi came to power, not only have the party organizations in all units of China’s law-and-order apparatus greatly strengthened, but a political campaign has been launched to purge disloyalty and demand personal loyalties to him. Meanwhile, Xi trumpets “rule of law” rhetoric to hide his lawfare. In his speech to China’s 19th Congress, he uttered the term “rule of law” 19 times. But he distorts the true meaning of the phrase because he vehemently opposes an independent judicial system that limits and controls the power of politics.

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China clearly has learned how to weaponize law to play its games against the West. It aggressively applies legal weapons to go after dissent abroad. An example is the case of Henley Lee, a Belize citizen who had business in China. In 2019, the Chinese security force secretly arrested him in Guangzhou and accused him of funding hostile forces in the U.S. and of supporting Hong Kong protesters to endanger Chinese national security. About that time, Lee Meng-Chu, a Taiwanese citizen, was also arrested by Chinese police for allegedly stealing state secrets after making a trip to Hong Kong to support the protesters. 

The significance of these cases is that China used its long-arm national security law and criminal law to prosecute a foreign national for alleged crimes committed outside of the country. The precedent will enable China to target employees of human rights organizations such as Human Rights Watch and Freedom House.  

The cases of Michael Kovrig and Michael Spavor further demonstrate China’s use of lawfare to achieve political objectives. Kovrig, a Canadian diplomat on leave, and Spavor, an entrepreneur, were arrested under a charge of spying in China days after Meng Wanzhou, CFO of Huawei, was detained in Vancouver in 2018 for violating U.S. law. This lawfare of “legal hostage” was designed to force the U.S. to give up its extradition request for Meng and let her walk free. In March, China put Kovrig and Spavor on trial separately, without issuing verdicts — typical lawfare to degrade the enemy’s will to fight.

Infamously, Operation Fox Hunt was another example of China’s lawfare. When Xi came to power, Chinese authorities launched this operation purportedly to target corrupt officials who escaped from China and lived overseas. But the covert operation was aimed at purging dissent. China sent hundreds of law enforcement officers across the world, including the U.S., tracking, harassing, threatening and arresting its targets abroad. It used Interpol to label its targets criminals and even secretly kidnapped some and returned them to China. According to the FBI, hundreds of Operation Fox Hunt victims were American citizens or green card holders. 

As part of its strategy, China has passed many laws and regulations to achieve its political goals. For example, the National Security Law for Hong Kong criminalizes advocacy for independence and communicating with foreign organizations. These national security cases are handled by Beijing law enforcement personnel and sent to the mainland to be investigated and tried. If convicted, Hong Kong residents could be punished by life in prison. Worse, this law has a long-arm provision, especially seeking punishment of foreign nationals who commit “crimes” under the law outside of Hong Kong. This means China theoretically could prosecute people such as House Speaker Nancy PelosiNancy PelosiDefense lawyers for alleged Capitol rioters to get tours of U.S. Capitol Gaetz, Greene tout push to oust Cheney: 'Maybe we're the leaders' Free Speech Inc.: The Democratic Party finds a new but shaky faith in corporate free speech MORE (D-Calif.) and Sen. Marco RubioMarco Antonio RubioDemocrats cool on Crist's latest bid for Florida governor Tim Scott sparks buzz in crowded field of White House hopefuls The unflappable Liz Cheney: Why Trump Republicans have struggled to crush her  MORE (R-Fla.) who have supported Hong Kong protesters. 

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There are signs that China is using or threatening to use its financial resources to file lawsuits in the West to challenge their decisions or policies on China. They even target individual Westerners such Adrian Zenz, a German anthropologist China calls a “swindler” because of his research on the Xinjiang internment camps and Uyghur genocide. China can hire powerful law firms in the West to do its bidding, dragging governments, companies and individuals into protracted legal battles to eliminate perceived enemies or to demoralize and bankrupt them. In this way, Xi seeks to control a group of world-class arbitration institutions and law firms to protect Chinese interests. 

Additionally, laws have been passed regarding Xinjiang, Tibet, Taiwan and the South China Sea to suppress protests and advance China’s illegal territorial claims. In Xinjiang, the Uyghur region under China’s control, many laws and regulations were put in place under the guise of combating terrorism, separatism and religious extremism, but in reality they are meant to terrorize the Uyghur and other Muslim peoples to buttress the CCP’s dictatorial rule. 

The world must remember that Beijing’s dictators are making these laws. The party dictatorship is above the law because it is the law. All courts in China report directly to the Communist Party, not to the state. Accordingly, the U.S. and its allies must see China’s strategic intent and practice of lawfare and formulate a strategy to counter its weaponization of law. Overlooking or underestimating China’s lawfare could blind us to one of its most effective tools to destroy the liberal international order and potentially cause irreversible damage to liberal democracies. 

Bradley A. Thayer is the co-author of “How China Sees the World: Han-Centrism and the Balance of Power in International Politics.”

Lianchao Han is vice president of Citizen Power Initiatives for China. After the Tiananmen Square Massacre in 1989, he was one of the founders of the Independent Federation of Chinese Students and Scholars. He worked in the U.S. Senate for 12 years, as legislative counsel and policy director for three senators.