“Racial and religious profiling must not be used in the combat against
[29/05/07] Profiling has been increasingly used in the fight against terrorism
since nine eleven: from the German data-mining initiatives to identify so-called
terrorist “sleepers”, to the United Kingdom’s stop and searches under the
Terrorism Act 2000, and beyond to EU policy. The fear of further terrorist
attacks is creating a new form of “terrorist” profiling, where Muslims
or people who appear to be of Middle-Eastern descent are being discriminated
against in the name of national security. This approach is not acceptable.
Before going any further, a distinction must be made between various kinds of
profiling. In criminal investigation it is necessary to define physical,
psychological or behavioural indicators which might help linking a particular
type of person to a particular crime. Their use in law enforcement decisions is
undeniable, as they can narrow the focus of an investigation. In principle,
profiling must therefore be seen as a permissible means of law enforcement
However, this technique has been applied in a deeply problematic manner in the
struggle against terrorism. The indicators used have included general and broad
characteristics such as a person’s race, ethnicity, national origin or religion.
The risk of discrimination in carrying out such profiling exercises is certainly
high. Taking law enforcement decisions based on grounds such as race or colour
may violate the principle of non-discrimination as enshrined in Article 14 of
the European Convention on Human Rights.
The European Commission against Racism and Intolerance (ECRI) has in a
Recommendation expressed its concern about the consequences of the methods used
in the combat against terrorism. Certain groups of persons, including visible
minorities, have become particularly vulnerable to racism and/or to racial
discrimination across many fields of public, including when subjected to checks
carried out by law enforcement officials.
This tendency was confirmed by the Open Society Justice Initiative, who has been
monitoring ethnic profiling in Europe for the last three years and concluded in
a recent publication that such profiling is now widespread. It may consist of
stop-and-searches by the police, data mining exercises, or mass identity checks
at places of work, businesses or homes.
This issue will be addressed in the next Recommendation (No. 11) from ECRI,
which focuses on the theme of combating racism and racial discrimination in
policing. In particular, it recommends that racial profiling be banned.
The underlying assumption of the current terrorist profiling is dangerous,
namely that young men of Muslim faith or Middle-Eastern appearance are
particularly likely to be involved in terrorist activity. The result of this
approach has been that a large number of totally innocent persons have been
harassed and treated as suspects for no good reason.
The complexity of the terrorism situation worldwide and the constant development
of terrorist aims and methods make it difficult to develop accurate profiles.
Terrorist groups themselves are no doubt aware of such profiles and are
targeting recruits who do not fit into the preconceived stereotypes.
Moreover, there is no good evidence to say that profiling so far has been
effective in the fight against terrorism. Overly broad profiles have the effect
of casting the net too wide, and therefore wasting valuable police time and
Terrorist profiling may also be counter-productive. It tends to alienate and
humiliate large sections of society. At the same time it “legitimizes”
discrimination in the eyes of the general public in a most unfortunate manner.
The result is that it divides society and pits the stigmatized group against the
law enforcement agencies.
This in itself is dangerous since the police need the trust of the community for
effective intelligence gathering. The OSCE’s High Commissioner on National
Minorities underlined the importance of community policing in his 2006
Recommendations on Policing in Multi-Ethnic Societies.
How should the law enforcement agents act in order to be effective without at
the same time harming those innocent?
Surveillance, searches or other similar law enforcement activities should be
strictly based on individual behaviour and/or accumulated intelligence, rather
than sweeping generalizations. By way of example, stop-and-searches may be
legitimate when the profile used is based on a specific and time-bound
description of a particular suspect.
It would be naïve to underestimate the level of the terrorist threat which we
face as citizens of Europe today. It is clear that Council of Europe Member
States must take appropriate measures to counter terrorist threats and safeguard
the lives of those within their jurisdiction. Effective police methods,
including in the area of intelligence gathering, should be developed to replace
the current profiling.
The struggle against terrorism implies also long-term measures with a view to
preventing the causes of terrorism, and not just short-term responses. This
requires, for example, further efforts to promote cohesion in our societies and
a multicultural and inter-religious dialogue.
- The Special Rapporteur on the promotion and protection of human rights and
fundamental freedoms while countering terrorism, Martin Scheinin, addressed the
issue of terrorist profiling in his report of 29 January 2007.
- The Open Society Justice Initiative released a new book on 27 April 2007
examining ethnic profiling by police in Europe. "I Can Stop and Search Whoever I
Want"—Police Stops of Ethnic Minorities in Bulgaria, Hungary and Spain.
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