Is it time for a European Convention against Racial Profiling?

Abstract

Four years after the murder of George Floyd and the global Black Lives Matter protests, racial profiling not only remains prevalent in law enforcement practices in- and outside Europe, but takes on new forms in the wake of technological developments enabling large scale data analysis and the use of algorithmic risk profiles. A few years ago, the European Court of Human Rights (ECtHR) first dealt explicitly with the issue of racial profiling in the twin cases of Basu v. Germany and Muhammad v. Switzerland. More recently, the ECtHR held in Wa Baile c. Suisse that Switzerland had violated the prohibition of discrimination by subjecting the applicant to racial profiling at Zürich train station, as part of a police action to apprehend persons without a valid residence permit. ¹ While these judgments, especially in Wa Baile, go some way towards securing international State accountability for racial profiling, they also illustrate the difficulties of fighting such profiling as a form of structural discrimination under the ECHR. Meanwhile other human rights bodies, at the European and international levels, have both acknowledged the structural nature of racial profiling and published numerous policy guidelines and recommendations for positive State action to ensure non-discriminatory law enforcement. Yet, to date all of these instruments remain at the level of soft law. Despite the ECtHR's recent efforts, European human rights law thus does not impose legal obligations on States to actively prevent and combat racial profiling. This column signals this gap, and considers some of the pros and cons of adopting a European Convention against Racial Profiling.

1. RACIAL PROFILING – PAST AND PRESENT MANIFESTATIONS

The term ‘racial profiling’ came to be used in the United States in the 1990s to designate the police practice of stopping predominantly black male drivers for (minor) traffic offenses, as a means to enable extensive searches and detect other forms of unlawful behaviour. ² Whereas racial profiling emerged in the US in close connection with the ‘war on drugs’, the practice gained new momentum following the attacks of 11 September 2001 in the context of counterterrorism. ³ This effect was not limited to the United States: in 2004 the United Nations Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance (hereafter: UN Special Rapporteur on racism) described racial profiling, including religious profiling, as ‘a widespread practice in all continents’, connected to counterterrorism but also to enforcement of drug trafficking, pickpocketing and shoplifting, and illegal immigration. ⁴ In 2009 the Open Society Justice Initiative presented evidence from a variety of sources, including surveys, to show that racial profiling occurred throughout Europe, including but not limited to France, Hungary, Bulgaria and the United Kingdom. ⁵ The study also found that racial profiling in Europe had increased as a result of counterterrorism policies introduced after 9/11 and the bombings in Madrid in 2004 and London in 2005. ⁶ Racial profiling affects different groups, including people of colour but also migrants and people belonging to national minorities, including Roma. ⁷

Despite widespread recognition that racial profiling is discriminatory, as well as ineffective, there are no signs that the practice is decreasing. In 2015 the UN Special Rapporteur on racism again qualified racial profiling as ‘persistent and pervasive’ and noted that, since 2001, ‘new patterns and contexts of racial and ethnic profiling’ had affected a growing number of individuals and minority groups. ⁸ Racial profiling today occurs in relation to a variety of law enforcement practices, including identity checks, stop and search, counterterrorism policies and immigration controls. Following the development of new technologies, racial profiling also increasingly takes the form of algorithmic profiling and extends into other domains, notably access to welfare services and detection of welfare fraud. In the Netherlands, for example, the Dutch Tax Agency used nationality and criteria relating to religion and ethnic origin to search for irregularities in childcare benefits payments in what would become known as the ‘childcare benefits scandal’. ⁹ Not much later it was revealed that nationality is among the criteria used by fraud detection algorithms of the Danish Public Benefits Administration. ¹⁰ In its latest General recommendation, the UN Committee on the Elimination of Racial Discrimination (hereafter CERD Committee) warned about the potential of technological tools to deepen racial discrimination and other forms of exclusion. ¹¹

2. THE RECOGNITION OF RACIAL PROFILING AS A HUMAN RIGHTS PROBLEM

Racial profiling has been recognised as a threat to racial equality by European and international human rights bodies since the start of the new millennium. Probably the first international document to recognise the harm inflicted by racial profiling is the Durban Declaration, adopted by the UN Member States during the World Conference against Racism in 2001. The Declaration urges States to take effective measures against racial profiling, which it defines as ‘the practice of police and other law enforcement officers relying, to any degree, on race, colour, descent or national or ethnic origin as the basis for subjecting persons to investigatory activities or for determining whether an individual is engaged in criminal activity’. ¹²

Since then there has been no lack of confirmation that racial profiling is a human rights problem deserving of State action. A few years after the Durban Declaration, the UN Special Rapporteur on racism counted racial profiling among ‘the most significant manifestations of racism’ and again called upon States to recognise the practice and to adopt legislative, judicial and administrative measures ‘to ban and punish it’. ¹³ In 2005, the CERD Committee issued a General recommendation in which it similarly required States parties to take steps to prevent persons being subjected to law enforcement practices or exposed to greater suspicion based on their physical appearance or membership of a racial or ethnic group. ¹⁴ The issue of racial profiling was subsequently discussed in the UN Working Group of Experts on People of African Descent ¹⁵ and became the topic of a thematic report by the Special Rapporteur on racism in 2015. ¹⁶ At that time the UN Human Rights Committee had already issued a landmark view on racial profiling in the case of Rosalind Williams Lecraft v. Spain, which confirmed that racial profiling qualifies as a form of prohibited racial discrimination. ¹⁷

Attention for racial discrimination in law enforcement, including racial profiling, surged in 2020 after the death of George Floyd and the ensuing Black Lives Matter protests. One year after the killing of Floyd, the UN High Commissioner on Human Rights, on request of the Human Rights Council, presented a comprehensive report with a four-point agenda to end systemic racism and human rights violations by law enforcement against Africans and people of African descent. ¹⁸ Further reports have been prepared by the newly established International Independent Expert Mechanism to Advance Racial Justice and Equality in Law Enforcement. ¹⁹ Simultaneously, the CERD Committee published a new General recommendation specifically dedicated to the issue of racial profiling, including measures to prevent and combat it. ²⁰

Similar developments occurred at the European level. In 2006 the European Union Network of Independent Experts on Fundamental Rights issued an opinion with various recommendations for the EU Member States to address and prevent racial profiling. ²¹ One year later the European Commission against Racism and Intolerance of the Council of Europe (ECRI) included the issue in a General Policy Recommendation on racial discrimination in policing. ²² The European Parliament addressed racial profiling more specifically, in a recommendation to the Council ‘on the problem of profiling, notably on the basis of ethnicity and race, in counter-terrorism, law enforcement, immigration, customs and border control’. ²³ Several handbooks have been published by the EU Fundamental Rights Agency with guidelines and best practices to combat racial profiling. ²⁴ Following the death of George Floyd, calls for enhanced efforts against racially discriminatory police action, including racial profiling, have been made by the European Parliament, ECRI and the Parliamentary Assembly of the Council of Europe (PACE). ²⁵

3. ADDRESSING RACIAL PROFILING AS A FORM OF STRUCTURAL DISCRIMINATION

The above overview shows that there is no lack of agreement, either at the European or international level, on the unlawful character of racial profiling or the need to end it. Moreover, racial profiling is recognised by the abovementioned human rights bodies as a form of structural discrimination. The International Independent Expert Mechanism, in a recent report, expressly opposes the ‘”bad apple” theory’ that sees racial discrimination in policing as the result of individual police officers acting outside the law. Instead, the expert mechanism considers discriminatory actions by individual police officers as part of a ‘broader and insidious pattern, interwoven into larger, social, historical, cultural and structural contexts within which policing is undertaken’. ²⁶ This understanding of racially discriminatory law enforcement, including racial profiling, as a structural problem is also reflected in many of the measures that have been advanced to prevent and combat racial profiling. From the available standards and guidelines, in particular the general (policy) recommendations of the CERD Committee and ECRI, it emerges that a comprehensive strategy against racial profiling would need to include the following actions:

to collect data, including statistical data disaggregated by race and ethnicity, on law enforcement practices including identity checks, traffic stops and border controls, to monitor the occurrence of racial profiling; ²⁷

to provide training to police and other law enforcement officials to ensure their awareness of relevant human rights standards, including the prohibition of racial discrimination, and of the impact of biases on their work; ²⁸

to ensure the availability of clear and practical guidance for law enforcement officials on how to carry out their duties in compliance with non-discrimination, through internal guidelines, operational protocols and codes of conduct; ²⁹

to ensure that law enforcement authorities are representative of the populations they serve, through the development of adequate recruitment and promotion policies; ³⁰

to create independent oversight bodies, both internal and external, with powers to monitor practices of law enforcement agencies, address allegations of racial profiling and take disciplinary action if needed. ³¹ In its latest General recommendation, the CERD Committee further advised to enable collective enforcement of claims of racial profiling, given the effect of the practice on particular groups; ³²

to encourage dialogue and collaboration between law enforcement authorities and minority communities affected by racial profiling and to ensure transparency regarding outcomes of data collection and monitoring processes; ³³ and

to warrant that media, politicians and (heads of) law enforcement agencies do not disseminate information that perpetuates stereotypes and stigmatizes members of minority groups by linking them to criminal behaviour, irregular migration or terrorism. ³⁴

This overview shows that many of the proposed measures go well beyond ensuring accountability of individual law enforcement officers for discriminatory actions, to tackle the structural mechanisms that enable the occurrence of racial profiling. Another recurring recommendation is to ensure that measures to end racial profiling are designed and implemented with the involvement of the affected communities. The latest General recommendation from the CERD Committee further emphasizes the need to take account of intersecting identities, as racial profiling often results from stereotypes that combine multiple discrimination grounds. Also new in that recommendation is the extensive guidance offered by the Committee on the prevention of racial profiling through the use of artificial intelligence, including technology for facial recognition. ³⁵ Recommended measures include transparency on the use of algorithmic profiling systems, prior human rights impact assessments, including for algorithmic systems developed by private businesses for law enforcement purposes, and the establishment of independent oversight bodies with a mandate to monitor the use of artificial intelligence tools by the public sector.

4. FROM SOFT TO HARD LAW: POSITIVE OBLIGATIONS TO COMBAT RACIAL PROFILING IN THE CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS

While there is thus no dearth of ideas and solutions to combat racial profiling, existing standards largely remain at the level of soft law and policy recommendations. Quite recently, the ECtHR has begun to carve out States’ legal obligations with regard to racial profiling from the general prohibition of discrimination in Article 14 ECHR. It has done so in the three judgments mentioned in the introduction: Basu v. Germany, Muhammad v. Spain and Wa Baile c. Suisse. ³⁶ As an important first step, the ECtHR accepted in these judgments that racial profiling comes within the scope of Article 14, read together with Article 8 ECHR (the right to private life) regardless of whether such profiling results in further interference with the freedom or physical integrity of the person concerned (for example, a search or an arrest). Instead, the fact that someone is subjected to a control on the basis of ‘specific physical or ethnic characteristics’, together with the feelings of humiliation that such controls can instill, suffices to bring racial profiling within the scope of the ECHR. ³⁷

However, the judgments also illustrate the difficulty of tackling racial profiling as a systemic problem in the context of the individual complaints procedure before the ECtHR. ³⁸ First of all, it is generally difficult for individual applicants to prove that they have been profiled on racial grounds. In the absence of explicitly discriminatory policies or declarations by law enforcement officials, racial profiling only becomes visible through (statistical) evidence showing that law enforcement particularly affects racialised groups. Although, in Wa Baile c. Suisse, the ECtHR attached some weight to the evidence of patterns of discrimination provided by the applicant and third party interveners, the focus of the Court's inquiry in each of the three cases was on establishing if the individual applicants had been sought out because of racial characteristics rather than determining the occurrence of racial profiling in the respondent States more broadly. In the case of Muhammad v. Spain this led to the conclusion that there had been no violation of Article 14 ECHR, despite evidence that racial profiling is widespread in Spain.

Furthermore, in terms of positive obligations to take action against racial profiling, the ECtHR did recognize a procedural duty for the States Parties to the ECHR to investigate the possibility of an individual having been subjected to racial profiling, once an arguable claim has been made to that effect. ³⁹ In Wa Baile the Court moreover accepted that the absence of a sufficient legal and administrative framework to prevent racial profiling, including through adequate police training, is likely to give rise to discriminatory controls. ⁴⁰ However, while this was taken into account as part of the reasons for establishing a presumption that the applicant had been discriminated against, the Court did not state that the failure to adequately train police officers amounted to a violation in and of itself. Again, it seems that such a finding would have reached too far beyond the confines of the individual complaint the ECtHR was asked to assess.

The foregoing shows that the ECtHR has gone some way towards addressing the problem of racial profiling. Still, and understandably given its judicial role, the Court has thus far refrained from imposing extensive positive obligations. Notwithstanding the procedural obligation to investigate individual claims of racial profiling, positive duties on the basis of Article 14 ECHR remain very limited compared to the comprehensive body of soft law and policy standards described above.

5. A EUROPEAN CONVENTION AGAINST RACIAL PROFILING?

There is no doubt that racial profiling remains a pressing human rights issue, especially in light of ongoing technological developments. Yet, in the absence of legally binding standards it remains difficult for individuals and groups affected by racial profiling to hold States accountable, at the European level, for failing to actively combat this practice. This at least legitimates the question: should a European Convention against Racial Profiling be considered?

Of course, as with any treaty, the expediency of pushing for international agreement on action against racial profiling depends on the availability of political will. On the one hand, the grown awareness of institutional racism following the Black Lives Matter protests may still translate into an increased willingness on the part of Council of Europe Member States to take a firm stance against racial profiling. At the same time, the rising influence in several Member States of political parties of the far right, with strong nativist agendas in combination with law and order rhetoric, is not likely to help efforts against racial discrimination in law enforcement. While a lack of political will may thwart initiatives towards a treaty altogether, there is also the risk of standards being adopted that fall short of what is needed to effectively combat racial profiling. Finally, it can be doubted whether the effects of new technological developments on racial profiling are already sufficiently clear to allow for the formulation of adequate legal norms.

On the upside, the adoption of a Convention against Racial Profiling would create a basis for positive obligations for European States to detect, prevent and combat racial profiling beyond the scope of individual complaints. By adopting such obligations, States would recognise racial profiling as a form of structural injustice. ⁴¹ Moreover, in specifying the measures to be taken against racial profiling the Council of Europe Member States can build on the work done over the previous two decades by international and European human rights bodies and NGOs. Thus, possible treaty obligations could include a duty to collect data to monitor the prevalence of racial profiling; to provide training to law enforcement officials; to ensure that law enforcement decisions are always based on reasonable suspicion and to make human rights impact assessments mandatory for algorithmic profiling in both the public and private sectors. Such measures would go well beyond the procedural positive obligations that exist on the basis of current ECtHR case law. Provisions could furthermore be included to give a right to affected communities to be involved in the development of anti-racial profiling strategies and to ensure collaboration of relevant state authorities with civil society organisations and international and regional human rights bodies.

In sum, the adoption of a European Convention against Racial Profiling could fill a gap in European human rights law and potentially represent a significant step to eliminate the structural inequality that results from racial profiling. What is needed is the political will to move beyond existing soft law standards and step up efforts to ensure that law enforcement applies equally to all.