Germany not only avoids using the term ‘race’, but its institutions, such as the police, refrain from collecting statistics according to race, gender, ethnicity and so on, which makes it hard to prove that police actions, and particularly violence, differentially affect non-white Germans. Examining a series of controversial cases in which non-white Germans have been killed in encounters with the police, the author argues for an understanding of how race and other identities intersect, and shows how the police mount a dubious ‘cultural defence’ – based on their perceived fears – to justify their disproportionate use of force. Deaths in custody provide a lens through which to view the need in Germany to identify and accept the presence of patterns of institutional racism.
EssedPhilomena, Understanding Everyday Racism: an interdisciplinary theory (Newbury Park, CA, Sage, 1991), p. 3.
2.
The term ‘people of colour’ has been used in Germany, primarily by scholars and activists, to describe individuals not racially categorised as white.
3.
‘German and foreigner.’ The word Ausländer is used to describe people who are foreign nationals, but it is also colloquially used to regard those who do not ‘look’ German, or those who have a so-called ‘migration background’ (Migrationshintergrund).
4.
‘Chronik rassistisch motivierter Polizeivorfälle für Berlin in den Jahren von 2000 bis 2014’, (‘Chronic racially motivated police encounters for Berlin in the years from 2000 to 2014’), available online at KOP’s website: https://www.kop-berlin.de/files/documents/chronik.pdf
5.
It would also be useful to collect and disaggregate statistics along various other indicators as well, including religion, nationality, sexuality, gender identity and social class.
6.
Intersectionality is an approach, coined by CrenshawKimberlé, to describe the position of Black women who have been made to occupy the social and legal terrain of being left out of the Black (male) position and the (white) woman position with regard to remedies against exclusion. See CrenshawKimberlé, ‘Mapping the margins: intersectionality, identity politics and violence against women of color’, Stanford Law Review (Vol. 43, no. 6, 1991), pp. 1241−99.
7.
For a critical analysis of relatively recent efforts to remove the term Rasse from the German Constitution, please see BarskanmazCengiz, ‘Rasse - Unwort des Antidiskriminierungsrechts?’ Kritische Justiz (2011), pp. 382−89.
8.
Allgemeines Gleichbehandlungsgesetz [AGG] (German General Equal Treatment Law), Art. 3(3).
9.
In other contexts, indirect discrimination is defined as the disadvantaging of a protected group as a result of the application of a racially neutral provision or policy. For an example from British Law, see EA 2012. For a European example, see Framework Directive, Art 2(2)(b), which defines indirect discrimination as occurring ‘where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons’.
Oberverwaltungsgericht (OVG) Rheinland-Pfalz, Beschluss v. 29.10.2012 - 7 A 10532/ 12.OVG. See also Grundgesetz [GG] (German Basic Law) (23 May 1949 [BGBl. S. 1]). Art 3(3).
Bruce-JonesEddie, ‘Germany’s Stephen Lawrence’, Race & Class (Vol. 54, no. 2, 2012), pp. 82–87.
16.
Ibid, p. 86. See also Bruce-JonesEddie, ‘Germany: time to deal with institutional racism’, op. cit.
17.
Quote from the officer who fired at and killed Christy Schwundeck, as reported in the German magazine Der Spiegel: ‘Tod im Jobcenter: Bevor ich etwas sagen konnte, hat sie geschossen’, by JüttnerJulia (22March2012), available at: http://www.spiegel.de/panorama/justiz/verfahren-gegen-polizistin-eingestellt-die-frau-in-jobcenter-erschoss-a-823155.html The original text states: ‘Ich muss sagen, dass sie in diesem Moment einen total irren Blick hatte, voller Aggression, Hass und Wut, ein für mich beängstigender Ausdruck … Beim Aufrufen der dritten Warnung machte Frau Schwundeck eine Körperbewegung und dazu einen kleinen Schritt nach vorne auf mich zu. In diesem Moment habe ich dann den Schuss abgegeben.’
18.
NeufeldDialika, ‘Geld oder Leben’ (Money or Life), Der Spiegel (February2011), pp. 44–46. Of course, it is worth noting that the main defence of the police is that Jalloh burned himself alive, which also relies on understanding Jalloh as capable of suicide due to depression, frustration or other disturbance; however, because he did not seem to have a history of mental illness, this did not become an issue in the case. His personality has been, however, construed as volatile and aggressive by the defence lawyers.
19.
Conversely, however, there was a discussion about the police insisting on touching her bag, which seemed an invasion of space and caused a relatively foreseeable reaction by Schwundeck.
To make matters worse, the mainstream media sources highlighted the killing of the dog and failed to mention Emrah’s mental condition. See Bruce-JonesEddie, ‘The production of an attacker: Emrah Kara and the shooting of the mentally ill’, IRR News (30January2014).
26.
This very general statement can be supported by any number of indicators, including policies of racial profiling on the basis of immigration or narcotics offences.
27.
See JüttnerJulia, ‘Tod im jobcenter’, op. cit. This news piece, while sympathetic to Schwundeck, introduces her as a Nigerian woman from Benin, rather than a German citizen of Nigerian origin. The piece later refers to her as ‘the Nigerian’, firmly establishing her foreignness, even if it is to evoke the readers’ sympathy.
28.
Witness testimony is also considered, though such testimony is weighted in light of the testimony of the officers.
29.
By ‘cultural defence’ I am referring to a legal phenomenon by which defendants of crimes are given reduced punishments premised on their culturally specific understandings of the appropriateness or morality of their actions. My suggestion here is that racism, for example, can be understood as a cultural phenomenon.
30.
This is an idea shared by French Republican thinking on the subject of race.
See, for example, Council of Europe, Commission against Racism and Intolerance, ECRI General Policy Recommendation No. 11, on Combating Racism and Racial Discrimination in Policing (29June2007), COE Doc. CRI(2007)39. This recommendation calls for Council of Europe member states to legislatively outlaw racial profiling, to study the phenomenon and to train the police.
33.
See ICCPR Human Rights Committee Communication No. 1493/2006, Williams v. Spain (2009). This ruling is non-binding.
34.
Nachova and Others v. Bulgaria [ECHR]2005. The case was brought against the Bulgarian police by the relatives of two men who were shot in the back by police officers, who alleged that the role of racial discrimination in the shootings had not been investigated. The European Court of Human Rights ruled that there was a failure to investigate the role of racism based on the victims’ ‘minority’ Roma status. Witnesses stated that the police made racist remarks to the men before they were killed. The court found that there had been a violation of the ECHR equality provision obligations, with respect to the Article 2 Right To Life. The applicable language of the judgement follows: ‘The Court thus finds that the authorities failed in their duty under Article 14 of the Convention taken in conjunction with Article 2 to take all possible steps to investigate whether or not discrimination may have played a role in the events. It follows that there has been a violation of Article 14 of the Convention taken in conjunction with Article 2 in its procedural aspect.’ The case also cites Article 4 of the International Convention on the Elimination of all forms of Racial Discrimination for international law guidance on states’ responsibility to prevent racially motivated violence: ‘The Parties undertake to take appropriate measures to protect persons who may be subject to threats or acts of discrimination, hostility or violence as a result of their ethnic, cultural, linguistic or religious identity.’
35.
The collection of such data would broadly be justified under the ECRI General Policy Recommendation No. 11, Section 1(2). See note 32.
36.
Article 2 Inquests are investigative processes administered by the coroner’s office for the purpose of determining the cause of a person’s death. The process is mandatory in cases where the person is in the custody of the state, and it precedes any legal trial concerning the culpability of the state in the death. See Leslie Thomas, Adam Straw and Danny Friedman, Inquests: a practitioner’s guide, Legal Action Group (2008). This process has been heavily criticised in the UK, as the verdicts on the role of the state in an individual’s cause of death do not determine the outcome of a subsequent legal trial and, indeed, there have been very few cases in which police have been held criminally liable for the death of a civilian following such an inquest. The Independent Police Complaints Commission is a body that hears complaints regarding police behaviour, including, for example, instances of disproportionate use of force and cases of mishandling of investigations. This institution has similarly been criticised for lack of effectiveness. Nonetheless, these structures enable a more reasoned public debate than would otherwise be possible.
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