- Terrorism — Armed conflict, international — Right to non-discrimination — Equality before the law
As the chapters throughout this book demonstrate, an impressive body of international norms, institutions, and procedures specifically designed to deal with terrorism has developed in recent years. Based on the premise that contemporary international terrorism is an exceptional phenomenon that cannot be adequately addressed with general legal principles and rules, the emergence of this ‘special regime’ of anti-terrorism law may be understood to be part of a wider trend towards the fragmentation of international law.1 The impetus for the creation of this ‘special regime’ is primarily the political pressure by certain powerful states to establish, at the international level, a separate legal system for terrorism that mirrors their own domestic special regimes, in order to give expression to the international community’s sense of outrage at terrorist acts, stigmatize the perpetrators, and reassure the public.
However, these objectives can only be achieved if those who fall under the anti-terrorism regime are singled out for particularly harsh treatment. The special treatment model therefore risks undermining not only the coherence of international law, but also the fundamental principle that all human beings deserve equal protection of the law. This is particularly troublesome in view of the fact that there is a tendency to direct the stigmatizing effect of the special anti-terrorism regime against those who, because of their nationality, ethnicity, national origin, religion, or other personal characteristics, are seen as potentially sympathetic to the political or ideological cause that is allegedly the root of international terrorism. (p. 597) This raises the question of whether it is compatible with the right to equality and non-discrimination to impose the greatest share of the burden of the ‘war on terror’ on certain minority groups.
The notion that all human beings are equal and therefore deserve to be treated equally is one of the central ideals of the Enlightenment and lies at the heart of liberal theories of the state. Virtually every liberal democratic state guarantees equality in its constitution. The principle of equality and non-discrimination has gained a similarly important status in international law. It is included in the key human rights instruments, and the Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in 1993, describes it as ‘a fundamental rule of international human rights law’.2
The right to equality and non-discrimination gives concrete expression to the basic idea on which the whole international human rights system is founded: that all human beings, regardless of their status or membership of a particular group, are entitled to a set of rights. Since it underlies all other human rights, equality is often described not only as a ‘right’, but also as a ‘principle’. The foundational significance of equality is reflected in the fact that it is proclaimed in the very first article of the Universal Declaration of Human Rights (UDHR): ‘All human beings are born free and equal in dignity and rights.’3
Article 1(3) United Nations (UN) Charter makes it clear that one of the basic purposes of the UN is the promotion of the equal guarantee of human rights for all without any distinction. Numerous instruments aimed at the realization of this notion have been adopted under the auspices of the UN. The general human rights instruments guarantee the right to equality and non-discrimination in several of their provisions:
• UDHR: Articles 1, 2(1), and 7.
• International Covenant on Civil and Political Rights 1966 (ICCPR): Articles 2, 3, and 26.
• International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR): Articles 2(2) and 3.
References(p. 598) As far as the specialized human rights treaties are concerned, at least three of them are specifically devoted to addressing certain forms of discrimination:
• International Convention on the Elimination of All Forms of Racial Discrimination 1965 (ICERD).
• Convention on the Elimination of All Forms of Discrimination against Women 1979 (CEDAW).
• Convention on the Rights of Persons with Disabilities 2006 (ICRPD).
The right to equality and non-discrimination is also guaranteed by all major regional human rights instruments:
• African Charter on Human and Peoples’ Rights 1981 (African Charter): Articles 2, 3, 18(3)–(4), and 28.
• American Convention on Human Rights 1969 (ACHR): Articles 1 and 24.
• American Declaration of the Rights and Duties of Man: Article II.
• Arab Charter on Human Rights 2004: Articles 2, 9, and 35.
• European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR): Article 14 and Protocol No 12.
Finally, it is now widely acknowledged that, at the very least, the right to non-discrimination on the grounds of race, sex, and religion binds all states, irrespective of their ratification of human rights treaties, because it has become part of customary international law.4 The Inter-American Court of Human Rights has gone further than this and held also that the guarantee against discrimination on other grounds—including language, political or other opinion, national, ethnic or social origin, nationality, age, economic situation, property, civil status, birth, or any other status—forms part of general international law and, indeed, is a norm of jus cogens that cannot be set aside by treaty or acquiescence.5
Some of the non-discrimination norms listed above—including Article 2(1) UDHR, Article 2(1) ICCPR, Article 2(2) ICESCR, Article 2(1) Convention on the Rights of the Child (CRC), Article 7 International Convention on the Rights of All Migrant Workers and Members of their Families, Article 1 ACHR, References(p. 599) Article 2 African Charter, and Article 14 ECHR—are so-called subordinate norms. This category of norms prohibits discrimination only in the enjoyment of the rights and freedoms otherwise set forth in the respective instrument. Article 2(1) ICCPR, for example, states: ‘Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
There are different approaches to defining the prohibited grounds of distinction. A first type of norm provides for a general guarantee of equality, without specifying any particular prohibited grounds. Article 24 ACHR, for instance, simply states: ‘All persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law.’ Such norms leave it to the relevant body to decide which distinctions are acceptable and which are not.
A second category of norms uses a diametrically opposed approach: they contain an exhaustive list of prohibited grounds. The ICERD, for instance, prohibits only distinctions based on ‘race, colour, descent, or national or ethnic origin’ (Article 1(1)). Article 2(2) ICESCR, Article 2(1) CRC, and Article 1 ACHR contain lists that are much longer, but still fixed.
A third category of norms contains a list of prohibited grounds, but one that is open-ended. For instance, Article 14 ECHR prohibits ‘discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’. Similarly, Article 2(1) UDHR and Article 2 African Charter provide for non-discrimination ‘without distinction of any kind, such as …’. As a consequence, even distinctions made on grounds that are not explicitly listed may engage these provisions. The text of Article 26 ICCPR (‘discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’) suggests that this provision also is open-ended. Nevertheless, the UN Human Rights Committee has often been at pains to fit a References(p. 600) particular distinction within one of the listed grounds, be it the specific ones, or the broad rubric of ‘other status’. Thus, it has found that ‘other status’ covers grounds such as nationality6 and age.7
It is clear that international human rights law requires likes to be treated alike, that is, that it prohibits direct discrimination. Direct discrimination occurs when a person, on account of one or more of the prohibited grounds, is treated less favourably than someone else in comparable circumstances. Thus, the complainant must show, first, that others have been treated better because they do not share the relevant characteristic or status; and, second, that these others are in a comparable, or, in the terminology of the European Court of Human Rights (ECtHR), ‘analogous’8 or ‘relevantly similar’9 situation.
However, human right bodies and courts have acknowledged that the requirement of consistent treatment is not sufficient to achieve true equality: not only discriminatory treatment, but also a discriminatory outcome (indirect discrimination) is prohibited. Indirect discrimination occurs when a practice, rule, or requirement that is outwardly ‘neutral ’, that is, not based on one of the prohibited grounds of distinction, has a disproportionate impact on particular groups defined by reference to one of these grounds.10
Finally, it is important to note that, unlike some national legal systems, international human rights law prohibits both intended and unintended discrimination: the reason why someone has been treated less favourably is irrelevant.11
Whether there has been a difference in treatment or outcome is the first question that a court needs to assess when considering a discrimination claim under international human rights law. Once a prima facie case of direct or indirect discrimination has been made out, the court must decide whether there is a justification for the difference in treatment or outcome.
References(p. 601) 2.5. Justified and Unjustified Distinctions
[T]he Court, following the principles which may be extracted from the legal practice of a large number of democratic states, holds that the principle of equality of treatment is violated if the distinction has no objective and reasonable justification. The existence of such a justification must be assessed in relation to the aim and effects of the measure under consideration, regard being had to the principles which normally prevail in democratic societies. A difference of treatment in the exercise of a right laid down in the Convention must not only pursue a legitimate aim: Article 14 is likewise violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised.13
This two-limb test, requiring that any difference in treatment must: (1) pursue a legitimate aim; and (2), be proportionate, has been adopted, explicitly or implicitly, by most other human rights bodies.14
In terms of what exactly this test involves, its first limb will not usually be very difficult for states to meet: most distinctions can be justified on the grounds of pursuing some aim that qualifies as legitimate, for example that of national security. More difficult to satisfy is the second element of the test, the proportionality requirement. This requirement reflects the basic notion that a fair balance ought to be struck between the interests of the community and respect for individual rights. A wide range of factors may need to be considered to assess proportionality, including the suitability of a distinction to achieve the aim pursued; the availability of alterna References(p. 602) tive means; and the question of whether the disadvantage suffered by the affected individuals or groups is excessive in relation to the aim.
The stringency with which human rights courts or bodies review the existence of a justification will vary according to a number of factors. Most importantly, certain grounds of distinction are generally regarded as inherently suspect and therefore require particularly strict scrutiny. The grounds attracting the greatest degree of attention, and which are the most likely to be declared unjustified, are gender and, particularly important for the present context, race, ethnicity, and religion. That race is amongst these ‘suspect classifications’ is indicated by the general acceptance of the prohibition of racial discrimination as forming part of customary international law; the widespread ratification of the ICERD; and the finding of the European Commission of Human Rights, later endorsed by the Court, that ‘a special importance should be attached to discrimination based on race’.15 The Inter-American Commission on Human Rights also applies a strict standard of scrutiny to distinctions based on race.16 With regard to the related notion of ethnicity, the ECtHR has stressed that ‘no difference in treatment which is based exclusively or to a decisive extent on a person’s ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures’.17 Finally, the suspect nature of distinctions based on religion can be concluded from the unanimous adoption by the UN General Assembly of the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief,18 and the ECtHR’s finding that ‘[n]otwithstanding any possible arguments to the contrary, a distinction based essentially on a difference in religion alone is not acceptable’.19
Apart from the ground of distinction, the intensity of review may also depend on a number of other factors. For example, most courts and human rights bodies tend to apply a lenient standard as far as matters of social or economic policy are concerned,20 whereas classifications affecting fundamental individual interests entail particularly strict scrutiny.21
Furthermore, it will generally be more difficult for states to justify direct rather than indirect discrimination. The Declaration of Principles on Equality, an important References(p. 603) but non-binding document signed by numerous human rights and equality experts, states that ‘direct discrimination may be permitted only very exceptionally’.22
Human rights treaties generally allow states to derogate from some of their guarantees when there is a public emergency threatening the life of the nation.23 All of the relevant treaties identify a number of human rights as non-derogable, meaning that they can never be restricted or suspended, not even in times of emergency. Although none of the treaties explicitly lists the right to non-discrimination as one of these non-derogable rights, it is indirectly included in the ICCPR as a basic condition regarding the suspension of Covenant rights: Article 4(1) provides that derogating measures must ‘not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin’. A very similar formulation can be found in Article 27(1) ACHR. Accordingly, the UN Human Rights Committee has stated that ‘there are elements or dimensions of the right to non-discrimination that cannot be derogated from in any circumstances’.24
In any event, the ‘strictly required by the exigencies of the situation’ test, contained in all derogation clauses, makes the lawfulness of derogating measures involving discrimination highly unlikely. Given that under international human rights law differences in treatment are permissible as long as they are supported by objective and reasonable grounds, it is difficult to see how restrictions of the right to non-discrimination that go beyond these permissible reasonable limitations could ever be ‘strictly required’.25 To put it the other way round, a derogating measure that violates the right to non-discrimination under one of the human rights treaties, either because it has no legitimate aim (that is, no relation to the emergency) or because it is disproportionate to the threat, is very unlikely to satisfy the ‘strictly required’ test under the respective derogation clause. The two tests under the right to non-discrimination on the one hand, and the derogation clauses on the other, are essentially the same with the consequence that a difference in treatment that fails to meet one test will normally fail to meet the other as well.
References(p. 604) 2.7. The Right to Non-Discrimination in Situations of Armed Conflict
It is now well established in international jurisprudence that, while the existence of an armed conflict triggers the applicability of the special body of international humanitarian law (IHL), the protection of human rights law does not necessarily cease.26 Therefore, human rights norms guaranteeing non-discrimination remain in force even when states engage in armed conflict. However, as was pointed out by the International Court of Justice, in wartime it may be necessary to refer to the law of armed conflict as the lex specialis to define precisely the meaning of human rights norms.27
It is therefore all the more important to stress that IHL explicitly states that the right to non-discrimination applies equally to people captured during armed conflict. In fact, non-discrimination is one of the fundamental principles underlying IHL,28 running like a thread through the four 1949 Geneva Conventions29 and their two Additional Protocols of 1977.30
The most important guarantees against discrimination include Common Article 3 Geneva Conventions and Article 75 Additional Protocol I (AP I). These provisions are recognized as reflecting customary international law31 and thus also bind states References(p. 605) that have not ratified the respective treaties.32 They set out a range of minimum standards requiring persons in the hands of a party to the conflict to be treated humanely and ‘without any adverse distinction based upon race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria’.33 The reference to ‘other similar criteria’ includes nationality: the negotiating history of the Geneva Conventions reveals that it was not the intention of the drafters to allow such distinctions.34 Further IHL norms specifically prohibit discriminatory treatment of prisoners of war (POWs),35 protected persons,36 victims of non-international armed conflicts,37 as well as the wounded, sick, and shipwrecked.38 Hence, even in the direst of circumstances, during an international or internal armed conflict, states are bound to respect the right to non-discrimination.
Since the attacks of 11 September 2001 (9/11), terrorism has increasingly come to be seen as being rooted in a fundamental civilizational challenge to the Western world, that primarily emanates from abroad. Therefore, and because often that may be the politically most feasible solution, some states have adopted legal powers to counter terrorism that apply to foreign nationals, but not to their own citizens. The most important examples of anti-terrorism laws involving a distinction according to citizenship status are those that authorize the preventive detention of foreign terrorist suspects, and those that authorize trial by special tribunal of foreign nationals accused of being involved in terrorism.
In response to the 9/11 terrorist attacks, many states adopted laws that authorized the preventive (or executive) detention of terrorist suspects.39 In some cases, these References(p. 606) laws were made applicable only to foreign nationals,40 raising the question of whether such differential treatment based on citizenship status is compatible with the right to equality and non-discrimination.
As opposed to imprisonment for criminal offences, in the case of preventive detention detainees are not held because they have done anything wrong, rather because it is thought that there is a risk that they might do something wrong in the future. Furthermore, the classification of someone as a threat is the result of an administrative process, rather than of a public trial before a court. Both the fact that the assessment as to propensity to terrorist activities is inherently discretionary, and that there is a lack of judicial involvement in the decision-making process, make executive detention a particularly serious deprivation of liberty. Nevertheless, the guarantees of the right to liberty contained in international human rights law do not generally prohibit executive detention, rather they impose limits on the use of this far-reaching power by restricting the permissible grounds for detention or providing for certain procedural safeguards.41
The right to liberty protects both citizens and foreign nationals. Therefore, differential treatment based on citizenship status is only compatible with the right to non-discrimination if it meets the criteria set out in the previous section. It could be argued that executive detention is used as an instrument of immigration control, to enforce deportation, and so foreign nationals and citizens are not comparable groups because only the former can be deported. However, the purpose of the detention of foreign terrorist suspects is not enforcement of deportation, but protection of national security.42 Typically, the respective powers of preventive detention apply to precisely those foreign nationals who, for practical or legal reasons, cannot be removed. Thus, in the anti-terrorism context, the difference between the two groups in terms of deportability becomes merely theoretical and, therefore, irrelevant.
If it is true that the aim of executive detention powers is prevention of terrorism, then differential treatment of foreign nationals can only be justified if it is a proportionate (that is, suitable and effective) means of addressing the terrorist threat. References(p. 607) This will only be the case if there is a difference in terms of dangerousness between citizens and non-citizens: that is, if the terrorist threat stems exclusively, or at least almost exclusively, from the foreign section of the population. However, even in the case of so-called ‘Islamist terrorism’ the terrorist threat does not stem predominantly from foreign nationals. The available evidence suggests that in most states, including Western states, a large part—or even the majority—of those allegedly involved in terrorism are citizens of the respective state.43 Thus, in the current fight against international terrorism the battle lines are not drawn along the borders of states and so citizenship cannot be relevant for the definition of the scope of detention powers. Accordingly, in a case concerning the preventive detention powers introduced in the UK under the Anti-Terrorism, Crime and Security Act (ATCSA) 2001, the House of Lords held that there were no objective and reasonable grounds for limiting those powers to foreign nationals and, therefore, that there was a violation of the prohibition of discrimination in Article 14 ECHR.44
In fact, preventive detention powers that are limited to foreign terrorist suspects not only rely upon a difference in treatment that is unsuitable and ineffective, but they may even be counterproductive. The experience of such powers demonstrates that they tend to contribute to the stigmatization and alienation of the affected immigrant communities.45
One of the most important aspects of the concept of equality and non-discrimination is the right to equality before the courts. Even though this right is already implied in the general guarantee of the right to non-discrimination, some human rights instruments highlight its importance by including a specific provision. Article 14(1) ICCPR, for instance, expressly states that ‘[a]ll persons shall be equal before the courts and tribunals’.46 Similar provisions explicitly guaranteeing equality before the courts or equal due process rights can be found in the ICERD47 and the ACHR,48 as well as in the Statute of the International Criminal Court.49 With regard to the ICCPR, the UN Human Rights Committee has made it clear that all the rights of the Covenant, including its fair trial rights, must be guaranteed without any References(p. 608) distinction based on nationality,50 and it has explicitly stated that foreign nationals ‘shall be equal before the courts and tribunals’.51 Similarly, the UN Committee on the Elimination of Racial Discrimination has reminded States Parties that the ICERD requires them to ensure that, in the administration of justice, ‘non-citizens enjoy equal protection and recognition before the law’.52
The principle of equality before the courts is not relaxed in times of armed conflict, rather it is reinforced by the lex specialis provisions of IHL. In particular, the minimum standard of Article 75 AP I, reflecting customary international law,53 requires that persons in the power of a party to the conflict must be accorded a range of fundamental due process guarantees without any adverse distinction based upon, inter alia, race, national origin, or other status or any other similar criteria.54 For prisoners of war (POWs), the more specific guarantees of the Third Geneva Convention (GC III) apply, including the requirement of Article 16 that all POWs must be treated alike ‘without any adverse distinction based on race, nationality, religious belief or political opinions, or any other distinction founded on similar criteria’. With regard to trial, GC III more specifically provides that POWs can only be sentenced ‘by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power’,55 and that they must be granted the same rights of appeal.56
Despite the general maxim that the criminal justice system must be the same for everyone, trial before tribunals other than the ordinary courts is not always per se impermissible under international law. Rather, differential treatment of certain accused may be compatible with the right to non-discrimination if it is based on reasonable and objective grounds.57 Most importantly, it is widely recognized that states may establish separate military courts to try those who are subject to military law. The ECtHR has expressly acknowledged the special need of upholding an efficient disciplinary system within the armed forces and has held that it is therefore compatible with the right to non-discrimination to subject members of the armed forces to special military disciplinary proceedings.58
References(p. 609) However, what cannot be a sufficient justification for differential treatment before the courts is the nature of the alleged offence alone. The fact that someone is charged with a political offence or an offence against national security does not justify their trial before a different type of court—such as a military tribunal—applying different procedural rules.59 This also holds true for terrorism: the mere difference in terms of (alleged) motive that may separate a terrorist suspect from, say, someone charged with murder, does not constitute an objective and reasonable ground for subjecting the former to a different trial system.60 This was also the conclusion reached by the UN Human Rights Committee in Kavanagh v Ireland, a case concerning the Irish Special Criminal Court, established to deal with terrorism-related cases. The Committee held that to try a whole class of offenders by another procedure, without showing that the ordinary court procedures are inadequate in the particular circumstances, violates the non-discrimination guarantee of Article 26 ICCPR.61
The establishment of special tribunals to try terrorist suspects is particularly problematic if only non-citizens can be brought to trial before them. This is the case, for example, with the military commissions set up by the United States (US).62 Since the level of due process protection is considerably inferior in trials before these commissions,63 they inevitably involve differential treatment of foreign terrorist suspects. As explained above, GC III requires that POWs be tried by the same courts and according to the same procedures as apply to the detaining power’s own armed forces. Trial by military commission of a defendant who is entitled to POW treatment would therefore automatically be in violation of that requirement. With regard to defendants who do not qualify as POWs, the question arises as to whether trial by military commission is compatible with the more general non-discrimination standards of human rights law and Article 75 API. This would only be the case if subjecting foreign, but not domestic, terrorist suspects to a special trial system was a suitable, and thus proportionate, means of addressing the threat of international terrorism.
It is impossible to discern any objective and reasonable grounds for such difference in treatment. Not only is the citizen/foreigner distinction conceptually unsuitable in the context of the contemporary fight against international terrorism, but there are also no practical reasons for treating the two groups differently before References(p. 610) the courts. It is not clear why the courts could follow certain procedures for the trial of citizens accused of terrorist acts, but would have to apply different procedures when trying foreign nationals accused of exactly the same crimes.
The measures described in the previous section involve differences in treatment that are made at the legislative level: they are part of the design of anti-terrorism laws. The perhaps even bigger problem, however, is discrimination at the level of law enforcement. Since personnel and resources are limited, law enforcement agencies inevitably have to be selective in the use of their anti-terrorism powers. This selection works on the basis of profiles. The European Union (EU), for example, has explicitly asked its Member States to cooperate with one another and with Europol (the European police office) to develop ‘terrorist profiles’, defined as ‘a set of physical, psychological or behavioural variables, which have been identified as typical of persons involved in terrorist activities and which may have some predictive value in that respect’.64 Terrorist profiling also occurs in less explicit forms. For example, law enforcement agents often rely on sets of physical or behavioural characteristics when deciding whom to stop and search for counter-terrorism purposes.
‘Profiling’ is generally defined as the systematic association of sets of physical, behavioural, or psychological characteristics with particular offences and their use as a basis for making law enforcement decisions. Profiles can be either descriptive, that is, designed to identify those likely to have committed a particular criminal act and thus reflecting the evidence the investigators have gathered concerning this act; or they may be predictive, that is, designed to identify those who may be involved in some future, or as-yet-undiscovered, crime. Profiling is, in principle, a permissible means of law enforcement activity. Detailed profiles based on factors that are statistically proven to correlate with certain criminal conduct may be effective tools to better target limited law enforcement resources.65
However, when law enforcement agents use broad profiles that reflect unexamined generalizations, rather than specific intelligence or careful analysis of hard data, the relevant practices may constitute disproportionate interferences with human rights. In particular, profiling based on stereotypical assumptions that persons of a certain ‘race’, national or ethnic origin or religion are particularly likely to commit crime (or a certain type of crime) may lead to practices that are incompatible with the (p. 611) principle of non-discrimination. It is therefore very troublesome that, since 9/11, the law enforcement authorities of different states have adopted counter-terrorism practices that are based on terrorist profiles that include such characteristics.
Terrorist profiling based on characteristics such as national or ethnic origin and religion has been employed, for example, in the context of data mining initiatives, that is, searches of large sets of personal data according to presumed characteristics of suspects. The most important case is the so-called Rasterfahndung programme, initiated by the German authorities in the wake of 9/11 to identify terrorist ‘sleepers’. In this systematic search effort, the German police forces collected personal records from public and private databases pertaining to several million persons.66 The profile used for the search included the following criteria: male; age 18–40; current or former student; Muslim denomination; born in, or national of, one of several specified countries with a predominantly Muslim population.67 Approximately 32,000 persons were identified as potential terrorist ‘sleepers’ and more closely examined; that is, they were interrogated or put under surveillance or inquiries were made with their employers.68 In none of these cases did the Rasterfahndung lead to the bringing of criminal charges for terrorism-related offences.69
In some cases, police forces have relied on profiles that are based on a person’s ethnic and/or religious appearance when deciding whom to subject to stops, document checks, or searches for counter-terrorism purposes. In the UK, government officials have openly acknowledged that law enforcement efforts in the counter-terrorism context focus on particular ethnic or religious groups.70 Accordingly, stops and searches under section 44 Terrorism Act 2000,71 which authorizes the police in References(p. 612) designated areas to stop and search people without having to show reasonable suspicion, have disproportionately affected ethnic minorities.72 Similarly, Russian police forces have disproportionately targeted ethnic minorities for stops and document checks, which are often carried out in response to terrorist threats. A study of police practices on the Moscow Metro system in 2005 found that persons of non-Slavic appearance were, on average, 21.8 times more likely to be stopped than Slavs.73 As a final example, terrorist profiling based on characteristics such as national or ethnic origin and religion has been used in the context of the enforcement of immigration laws. In the US, the immigration authorities adopted a series of policies and practices designed to counter terrorism that single out certain groups of immigrants based on their country of origin or nationality and, at least indirectly (through the choice of the targeted countries), their ethnicity and religion. These policies and practices include the so-called Voluntary Interview Program, the National Security Entry-Exit Registration System, and the Absconder Apprehension Initiative.74
The non-discrimination norms set out in Section 2.1 above are reinforced by a range of non-binding international and regional standards which specifically regulate law enforcement practices. The UN Code of Conduct for Law Enforcement Officials, for example, provides that such officials must ‘maintain and uphold the human rights of all persons’, including the right to non-discrimination.75 Similarly, the European Code of Police Ethics of the Council of Europe recommends that ‘[t]he police shall carry out their tasks in a fair manner, guided, in particular, by the References(p. 613) principles of impartiality and non-discrimination’.76 A provision specifically directed against the use of profiles that are based on ‘racial’ characteristics is to be found in the Programme of Action adopted at the UN World Conference against Racism in 2000, urging states ‘to design, implement and enforce effective measures to eliminate the phenomenon popularly known as “racial profiling”’.77
The risk of discrimination presented by law enforcement efforts to counter terrorism has been highlighted by several international and regional human rights bodies. The UN Committee on the Elimination of Racial Discrimination has called on states to ‘ensure that any measures taken in the fight against terrorism do not discriminate, in purpose or effect, on the grounds of race, colour, descent, or national or ethnic origin and that non-citizens are not subjected to racial or ethnic profiling or stereotyping’.78 At the regional level, the Inter-American Commission on Human Rights, in its Report on Terrorism and Human Rights, has cautioned that ‘any use of profiling or similar devices by a state must comply strictly with international principles governing necessity, proportionality, and non-discrimination and must be subject to close judicial scrutiny’.79 The European Commission against Racism and Intolerance (ECRI), in its Policy Recommendation No 8 on Combating Racism While Fighting Terrorism, has asked governments to ensure that no discrimination ensues from legislation and regulations, or their implementation, in the field of law enforcement checks.80 Finally, the EU Network of Independent Experts in Fundamental Rights has expressed serious concerns about the development of terrorist profiles; profiling on the basis of characteristics such as nationality, age, or birthplace, the experts have cautioned, ‘presents a major risk of discrimination’.81
These statements reflect the established jurisprudence of international human rights bodies set out in Section 2.5 above, according to which a difference in treatment on the basis of a criterion such as ‘race’, ethnicity, national origin, or religion will only be compatible with the principle of non-discrimination if it is supported by objective and reasonable grounds. The UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering (p. 614) terrorism has taken the view that terrorist profiling practices that involve distinctions according to a person’s presumed ‘race’ can never be said to be supported by objective and reasonable grounds. He argues that these are based on the wrong assumption that there are different human ‘races’ and, therefore, inevitably involve unfounded stereotyping.82 This pronouncement is consistent with the case law outlined above that treats classifications according to ‘race’ as particularly suspect.
As far as profiling involving distinctions according to national or ethnic origin and religion is concerned, its conformity with the right to non-discrimination depends upon whether it can be deemed a proportionate means of preventing terrorism.
In order to serve as a suitable and effective tool to counter terrorism, a profile would need to be narrow enough to exclude those persons who do not present a terrorist threat and, at the same time, broad enough to include those who do. However, terrorist profiles that are based on characteristics such as ethnicity, national origin, and religion are regularly inaccurate and over-inclusive because the initial premise on which they are based, namely that Muslims and persons of Middle Eastern and South Asian appearance or origin are particularly likely to be involved in terrorist activities, is highly doubtful. Furthermore, most terrorist profiles use ethnic appearance and national origin as proxies for religion, as religious affiliation is normally not readily identifiable (and in any case easy to conceal)—despite the fact that ethnicity and national origin are very poor proxies for religion. Such over-inclusive terrorist profiles may result in an overwhelming of the law enforcement system, which will have to deal with great numbers of ‘false positives’. As a consequence, important law enforcement resources may be diverted away from more effective counter-terrorism work. At the same time, profiles based on ethnicity, national origin, and religion are also under-inclusive in that they will lead law enforcement agents to miss a range of potential terrorists who do not fit the respective profile. Accordingly, profiling practices based on ethnicity, national origin, or religion have so far proved to be a very ineffective means of countering terrorism. In fact, the available evidence suggests that terrorist profiling practices are counter-productive in that they may lead to the victimization and alienation of certain ethnic and religious groups, which, in turn, may have significant negative implications in terms of their willingness to cooperate with law enforcement authorities.83
The concerns outlined above relate to the use of predictive terrorist profiles. In contrast, if, in the context of an investigation into a terrorist crime that has already been committed, there are reasonable grounds to assume that the suspect fits a certain descriptive profile, then reliance on characteristics such as ethnic appearance, (p. 615) national origin, or religion may be justified. Similarly, these factors can be employed to target search efforts where there is specific intelligence suggesting that someone fulfilling these characteristics is preparing a terrorist act.
For the purpose of preventive counter-terrorism efforts, however, profiling should only be based on behavioural patterns. This is, in any event, a significantly more efficient approach than reliance on ethnicity, national origin, or religion. For example, when agents of the US Customs Service stopped using a profile that was based, among other factors, on race and gender in deciding whom to search for drugs and instead started to rely on observational techniques, behavioural analysis, and intelligence,84 this resulted in a rise in the proportion of searches leading to the discovery of drugs of more than 300 per cent.85 At the same time, it is important that behavioural indicators are implemented in a neutral manner and are not used as mere proxies for ethnicity, national origin, or religion. Where it is not possible to rely on specific intelligence or useful behavioural indicators for preventive counter-terrorism efforts, controls must be universal, affecting everyone equally. Where the costs for blanket searches are deemed to be too high, the targets must not be selected on an ethnic or religious basis, but randomly. Accordingly, the UN Special Rapporteur has recommended the use of universal or random checks as these are not only non-discriminatory, but also impossible for terrorists to evade and hence more effective than measures based on profiling.86
Various international human rights bodies have made a number of further important recommendations with regard to terrorist profiling. First, the UN Special Rapporteur, the EU Network of Independent Experts on Fundamental Rights, and ECRI have all called on states to establish clear and strict standards as to what factors law enforcement agents may or may not employ for their search efforts in the counter-terrorism context.87 These guidelines should make clear that criteria such as ethnicity, national origin, and religion may only be used in the very limited circumstances explained above.88 Second, the UN Special Rapporteur, UN Committee on the Elimination of Racial Discrimination, and ECRI have recommended that the use of terrorist-profiling practices by law enforcement agencies is clearly documented and monitored. Thus, law enforcement officers should be required to record the stops and searches they carry out for counter-terrorism purposes, (p. 616) including the outcomes of the stops.89 Third, the Special Rapporteur and ECRI have urged states to establish systems of transparent and independent oversight of law enforcement agencies to ensure compliance of counter-terrorism practices with human rights standards, as well as to provide effective means of holding law enforcement agents accountable for any violations of human rights.90
A particularly important point, that is also reflected in the recommendations of various human rights bodies, is the issue of training. In order to prevent discriminatory counter-terrorism practices, it is crucial that appropriate systems of training of law enforcement officials are developed and implemented. Such training should include a substantial component on human rights and non-discrimination, as well as clear instructions to law enforcement agents as to what factors they may legitimately employ for terrorist profiles. As part of such training, it should be made clear that profiling based on stereotypical generalizations that certain ethnic or religious groups pose a greater terrorist risk than others is not only impermissible but also ineffective and even counterproductive.91
Finally, it is important that national parliaments review anti-terrorism laws at regular intervals to assess whether they have discriminatory effects and, if necessary, amend the relevant pieces of legislation.
The principle of equality and non-discrimination is an essential aspect of any conception of the rule of law. Equality before the law was already at the heart of Dicey’s classic formulation of the rule of law.92 Even if one adopts a minimal, purely formal conception of the rule of law,93 equality before the law forms one of its most important elements. By requiring that the law must be general, that is, that rules must be ‘issued in advance to apply to all cases and all persons in the abstract’,94 the rule of law with its equality requirement functions as a crucial inhibition on state power. It forces those in power to articulate their claims in terms of rules that are equally (p. 617) applicable to everyone, both the powerful and the powerless, and, as EP Thompson understood, thus renders them ‘prisoners of their own rhetoric’.95
It is this power-restraining effect of the rule of law that makes insistence on it so important in the ‘war on terror’ and may help pave the way for a more honest debate about the appropriate response to terrorism. The point can be illustrated with the example of the preventive detention powers previously in force in the UK, referred to in Section 3.1 above. The original Act providing for preventive detention of foreign terrorist suspects, the ATCSA 2001, had been passed with a comfortable majority and without attracting great public attention.96 However, once the House of Lords had found that the ATCSA was incompatible with the right to non-discrimination, the Government had to come up with legislation that was applicable to both foreign and British citizens. As a consequence, the proposed Prevention of Terrorism Act 2005 led to a major public debate and to ‘parliament’s longest and sometimes rowdiest sitting for 99 years’.97 The Act was only passed after the Government had made substantial concessions, in particular by providing for greater involvement of the judiciary in the suggested control order process98 and by making the Act’s key provisions subject to annual renewal by Parliament.99 The extension of the scope of anti-terrorism powers to British citizens due to the House of Lords decision thus reshaped the debate in crucial ways. The discussers were forced to consider the possibility of the law being applied against themselves (or at least their constituents) and, as a consequence, the discussion now had to be articulated in terms of generally applicable rules and principles. This shift towards general rules resulted in a curtailment of the executive’s powers: preventive detention was replaced with lesser forms of restrictions on liberty which, in addition, are subject to greater judicial control. The import of insisting on equality should not be overestimated: generally applicable rules are not necessarily good rules. The control order system introduced by the Prevention of Terrorism Act 2005 still raises a number of important human rights issues.100 But the requirement of equality can protect those in the political minority from being subject to the unrestrained power of the state.
4 For race see, for example, South-West Africa Cases (Liberia/Ethiopia v South Africa) (Second Phase)  ICJ Rep 6, 293 and 299–300 (Tanaka J dissenting); Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (Second Phase)  ICJ Rep 3, 32. For the other grounds, see M Shaw, International Law (6th edn CUP, Cambridge 2008) 287 and references cited there.
10 For the UN Human Rights Committee, see Singh Bhinder v Canada (9 November 1989) UN Doc CCPR/C/37/D/208/1986; Althammer v Austria (8 August 2003) UN Doc CCPR/C/78/D/998/2001 para 10.2. For the ECtHR, see DH and others v Czech Republic (App no 57325/00) (2006) 43 EHHR 41 para 184.
11 See, for example, International Convention on the Elimination of All Forms of Racial Discrimination (21 December 1965) (ICERD) art 1(1); UN Human Rights Committee (HRC) ‘CCPR General Comment 18: Non-Discrimination’ (1989) UN Doc HRI/GEN/1/Rev.9 (Vol I) 195 para 7; Simunek et al v The Czech Republic (19 July 1995) UN Doc CCPR/C/54/D/516/1992 para 11.7.
13 Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium v Belgium (No 2) (App nos 1474/62, 1677/62, 1691/62, 1769/63, 1994/62, and 2126/64)(1968) 1 EHRR 252 para 10.
14 See, for example, Gillot and others v France (15 July 2002) UN Doc CCPR/C/75/D/932/2000 para 13.2; UN Committee on the Elimination of Racial Discrimination, ‘Concluding observations: Australia’ (14 April 2005) UN Doc CERD/C/AUS/CO/14 para 24; UN Committee on Economic, Social, and Cultural Rights, ‘CESCR General Comment 20: Non-Discrimination in Economic, Social and Cultural Rights (art 2, para 2)’ (2009) UN Doc E/C.12/GC/20 para 13; Proposed Amendments to the Naturalization Provisions of the Political Constitution of Costa Rica, Advisory Opinion OC-4/84 (19 January 1984) IACtHR Series A No 4 paras 56–7.
20 See, for example, Oulajin and Kaiss v Netherlands (23 October 1992) UN Doc CCPR/C/46/D/406/1990, and 426/1990, individual opinion submitted by Committee members Herndl, Müllerson, N’Diaye, and Sadi; James v United Kingdom (App no 8795/79) (1986) 8 EHRR 123 para 46 (stating that ‘the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one’).
22 Equal Rights Trust, Declaration of Principles on Equality Principle 5 〈http://www.equalrightstrust.org/endorse/index.htm〉 accessed 21 December 2010.
23 See further on these issues C Landa Arroyo, ‘Executive Power and the Use of the State of Emergency’, Chapter 8 of this volume.
25 For the ICCPR, see S Joseph, J Schultz, and M Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (2nd edn OUP, Oxford 2004) 826; for the ECHR, see J Oraá, Human Rights in States of Emergency in International Law (Clarendon, Oxford 1992) 177–82.
26 See further J Pejic, ‘Armed Conflict and Terrorism: There is a (Big) Difference’, Chapter 7 of this volume.
29 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (adopted 12 August 1949, entered into force 21 October 1950) (GC I); Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted 12 August 1949, entered into force 21 October 1950) (GC II); Geneva Convention (III) Relative to the Treatment of Prisoners of War 1949 (adopted 12 August 1949, entered into force 21 October 1950) (GC III); Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War 1949 (adopted 12 August 1949, entered into force 21 October 1950) (GC IV).
30 Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June 1977, entered into force 7 December 1978) (AP I); Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-international Armed Conflicts (Protocol II) (adopted 8 June 1977, entered into force 7 December 1978) (AP II).
31 See Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) (1986) ICJ Rep 14 para 218 (holding that common art 3 constitutes the minimum yardstick in both non-international and international conflicts); Prosecutor v Mucic and others (Appeals Chamber Judgment) IT-96-21 (20 February 2001) para 143 (stating that ‘[i]t is indisputable that common Article 3, which sets forth a minimum core of mandatory rules, reflects the fundamental humanitarian principles which underlie international humanitarian law as a whole, and upon which the Geneva Conventions in their entirety are based’). On the customary international law nature of art 75 AP I, see T Meron, Human Rights and Humanitarian Norms as Customary Law (Clarendon, Oxford 1989) 62–70; JM Henckaerts and L Doswald-Beck (eds), Customary International Humanitarian Law (CUP, Cambridge 2005) Vol I, Rules 87–92, 99–103, and Vol II, Chapter 32.
32 See United States Army, Operational Law Handbook, JA 422 (1997) 18–2 〈http://www.cdmha.org/toolkit/cdmha-rltk/PUBLICATIONS/oplaw-ja97.pdf〉 accessed 22 December 2010 (demonstrating the acceptance of art 75 AP I as customary by the US); C Greenwood, ‘Customary Law Status of the 1977 Additional Protocols’ in AJM Delissen and GJ Tanja (eds), Humanitarian Law of Armed Conflict: Challenges Ahead: Essays in Honour of Frits Kalshoven (Martinus Nijhoff, London 1991) 103.
39 For example, Australia: Australian Security Intelligence Organisation Act 1979, Part III, Division 3 (amended 2003); Anti-Terrorism Act (No 2) 2005 (amending Criminal Code Act 1995, section 105); Canada: Anti-Terrorism Act, 2001, section 83.3; India: Prevention of Terrorism Act, No 15 of 2002, section 49(2) in connection with Code of Criminal Procedure, section 167; Indonesia: Government Regulation in Lieu of Legislation of the Republic of Indonesia No 1/2002 on Combating Criminal Acts of Terrorism, 2002, sections 25(2), 26(1), 28; Pakistan: Anti-Terrorism (Amendment) Ordinance, 2002, section 11EE.
40 US: Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA Patriot Act), Public Law No 107–56, section 412; Disposition of Cases of Aliens Arrested Without Warrant, 8 CFR, section 287.3(d) (2001); UK: Anti-Terrorism, Crime and Security Act (ATCSA) 2001 (UK), Part IV (now repealed).
41 See further NS Rodley, ‘Detention as a Response to Terrorism’, Chapter 18 of this volume.
42 See further K Wouters, ‘Reconciling National Security and Non-Refoulement: Exceptions, Exclusion, and Diplomatic Assurances’, Chapter 22 of this volume.
53 See Section 2.7 above.
57 For the ICCPR, see HRC, ‘CCPR General Comment No. 32: The Right to Equality Before Courts and Tribunals and to a Fair Trial’ (23 August 2007) UN Doc CCPR/C/GC/32 para 14; HRC, Kavanagh v Ireland (Communication No. 819/1998) (26 April 2001) UN Doc CCPR/C/71/D/819/1998 para 10.2.
60 UN Human Rights Council, ‘Report of the UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism’ (6 August 2008) UN Doc A/63/223 para 24.
63 See 10 USC §§ 948b, 949a(b). See further on these themes C Kannady, P Masciola, and M Paradis, ‘The “Push-Pull” of the Law of War: the Rule of Law and Military Commissions’, Chapter 25 of this volume.
65 See UN Human Rights Council, ‘Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism’ (29 January 2007) UN Doc A/HRC/4/26 para 44 (Report of the UN Special Rapporteur).
66 See the resulting decision of the Bundesverfassungsgericht (the Federal Constitutional Court) in BVerfG, 1 BvR 518/02 (4 April 2006) para 28 〈http://www.bverfg.de/entscheidungen/rs20060404_1bvr051802.html〉 accessed 22 December 2010 (explaining that in the Bundesland (federal state) of Nordrhein-Westfalen alone, 5.2 million personal data sets were collected).
70 Home Affairs Select Committee, ‘Minutes of Evidence’ (1 March 2005) HC 156-v, Question 474 (Hazel Blears MP); V Dodd, ‘Asian Men Targeted in Stop and Search’ Guardian, (London, 17 August 2005) (quoting the Chief Constable of the British Transport Police as follows: ‘We should not waste time searching old white ladies. It is going to be disproportionate. It is going to be young men, not exclusively, but it may be disproportionate when it comes to ethnic groups.’); M Woolf, ‘Anti-Terror Police Told to Target Asians’ The Independent (London, 13 September 2005) (quoting the following statement by a spokesman of the British Transport Police: ‘We are saying to our officers, not all Asian people are terrorists but given we are looking at Islamic terrorists—if we were looking for Irish republican terrorists we would not be stopping Asian or black people.’)
71 On 8 July 2010 the Home Secretary announced the suspension of the stop and search powers under section 44. A Travis, ‘Anti-terror stop and search powers to be scrapped’ Guardian (London, 8 July 2010).
73 Open Society Justice Initiative and JURIX, ‘Ethnic Profiling in the Moscow Metro’ (2006) 〈http://www.lamberthconsulting.com/about-racial-profiling/documents/Ethnic_Profiling.pdf〉 accessed 22 December 2010.
74 See D Moeckli, ‘Immigration Law Enforcement after 9/11 and Human Rights’ in A Edwards and C Ferstman (eds), Human Security and Non-Citizens: Law, Policy and International Affairs (CUP, Cambridge 2010) 459. Under the Voluntary Interview Program, male immigrants, who were not suspected of any criminal activity, were selected for questioning solely because they were of a certain age, had entered the US after January 2000, and originated from countries ‘in which intelligence indicated that there was an Al-Qaida terrorist presence or activity’. Although the authorities did not identify these countries, almost all the 8,000 men eventually interviewed were Arab and/or Muslim. The National Security Entry-Exit Registration System imposed fingerprinting, photographing and registration requirements for all males who are citizens of, or were born in, certain designated countries; all of these countries—except for the Democratic People’s Republic of Korea—have predominantly Arab and/or Muslim populations. Finally, the Absconder Apprehension Initiative prioritized the enforcement of deportation orders against those 2 per cent of deportable persons who originate from Arab and/or Muslim countries.
81 EU Network of Independent Experts in Fundamental Rights, The Balance Between Freedom and Security in the Response by the European Union and its Member States to the Terrorist Threats (Office for Official Publications of the European Communities, Luxembourg 2003) 21.
85 Lamberth Consulting, ‘Racial Profiling Doesn’t Work’ 〈http://www.lamberthconsulting.com/about-racial-profiling/racial-profiling-doesnt-work.asp〉 accessed 22 December 2010.
87 Report of the UN Special Rapporteur (n 65) para 86; EU Network of Independent Experts on Fundamental Rights, ‘Opinion No. 4: Ethnic Profiling’ (December 2006) 26; ECRI, ‘General Policy Recommendation No 11: Combating Racism and Racial Discrimination in Policing’ (29 June 2007) CRI 39 para 3.
89 Report of the UN Special Rapporteur (n 65) para 87; UNCERD, ‘ICERD General Recommendation No. 31: Prevention of Racial Discrimination in the Administration and Functioning of the Criminal Justice System’ (2005) UN Doc CERD/C/GC/31/Rev.4 paras 1–2; ECRI (n 87) paras 2, 42.
98 Section 4 Prevention of Terrorism Act 2005.