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A Human Rights Guide for Researching Racial and Religious Discrimination in Counter Terrorism in Europe

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A Human Rights Guide for Researching Racial and Religious Discrimination in Counter Terrorism in Europe A HUMAN RIGHTS GUIDE FOR RESEARCHING RACIAL AND RELIGIOUS DISCRIMINATION IN COUNTERTERRORISM IN EUROPE © 2021 Amnesty International and the Open Society Foundations This publication is available as a PDF on the Amnesty International and Open Society Foundations websites under a Creative Commons license that allows copying and distributing the publication, only in its entirety, as long as it is attributed to Amnesty International and the Open Society Foundations and used for noncommercial educational or public policy purposes. Photographs may not be used separately from the publication. A Human Rights Guide for Researching Racial and Religious Discrimination in Counter-Terrorism in Europe Table of Contents Glossary of frequently used acronyms 7 Foreword Tendayi Achiume and Fionnuala Ní Aoláin 8 Foreword Momodou Malcolm Jallow 10 Acknowledgements 11 1. Introduction 12 1.1. Background 12 1.2. The guide 15 1.2.1. Why is there a need for this guide? 15 1.2.2. How was the guide developed? 16 1.2.3. Organisation of this guide 16 1.2.4. Who should use this guide? 17 2. Discrimination: legal standards and key definitions 22 2.1. Legal standards 22 2.1.1. The principle of equality and non-discrimination 22 2.1.2. International and regional legal instruments 23 2.1.3. The prohibition on discrimination in the counter-terrorism context 27 2.2. Defining discrimination 29 2.2.1. Elements of discrimination 29 2.2.1.1. ‘Any distinction, exclusion, restriction or preference’ or ‘less favourable treatment’ 29 2.2.1.2. Based on prohibited grounds 30 2.2.1.3. Without objective and reasonable justification 31 2.2.1.4. Relevance of intent 32 2.2.2. Forms of discrimination 32 2.2.2.1. Direct discrimination 32 2.2.2.2. Indirect discrimination 33 2.2.2.3. Multiple, intersectional, and systemic discrimination 33 2.2.2.4. Harassment 35 2.2.3. Ethnic profiling 37 4 3. Demonstrating discrimination in the counter-terrorism context 39 3.1. Introduction 39 3.2. What needs to be demonstrated? 39 3.2.1. Less favourable treatment 39 3.2.2. Based on prohibited grounds 40 3.2.2.1. Race and religion–counter-terrorism and Muslims in Europe 40 3.2.2.2. Other grounds of discrimination in the counter-terrorism context 44 3.2.2.3. A causal link 47 3.2.3. Without objective and reasonable justification 47 3.2.3.1. Level of scrutiny 48 3.2.3.2. Legitimate aim 48 3.2.3.3. Appropriateness 49 3.2.3.4. Necessity 51 3.2.3.5. Proportionality 52 3.2.4. Burden of proof 53 3.3. How to demonstrate discrimination 54 3.3.1. Introduction 54 3.3.2. Laws and policies that explicitly target certain groups 55 3.3.2.1. Application in the counter-terrorism context 56 3.3.3. Comparators 56 3.3.3.1. Application to the counter-terrorism context 58 3.3.4. Use of stereotypes 62 3.3.4.1. Application in the counter-terrorism context 65 3.3.5. General context 66 3.3.5.1. Application in the counter-terrorism context 67 3.3.6. Sources 68 3.3.6.1. Interviews 68 3.3.6.2. Documentary evidence 70 3.3.6.3. Statements by authorities 72 3.3.6.4. Quantitative data 78 3.3.6.5. Testing and observation 85 5 4. Challenges 88 4.1. The ‘common sense’ defence 88 4.2. Lack of available evidence 90 4.3. Non-disclosure of evidence on national security grounds 92 4.4. Limited oversight and accountability in the counter-terrorism context 98 4.5. Structural nature of discrimination 100 5. Conclusion and key recommendations 102 5.1. Human rights organisations, researchers, and advocates 102 5.2. Oversight and accountability mechanisms 104 Annex 1: Non-discrimination provisions in international and regional legal instruments 105 Annex 2: Relevant handbooks and research guides on discrimination law 107 6 Glossary of frequently used acronyms CEDAW UN Convention on the Elimination of Discrimination Against Women CERD UN Committee on the Elimination of All Forms of Racial Discrimination CESCR UN Committee on Economic, Social, and Cultural Rights CJEU Court of Justice of the European Union ECHR European Convention for the Protection of Human Rights and Fundamental Freedoms ECtHR European Court of Human Rights ECRI European Commission Against Racism and Intolerance EU European Union FRA EU Agency for Fundamental Rights HRC UN Human Rights Committee IACtHR Inter-American Court of Human Rights ICCPR International Covenant on Civil and Political Rights ICERD International Convention on the Elimination of All Forms of Racial Discrimination IGO Intergovernmental Organisation NGO Non-Governmental Organisation NHRI National Human Rights Institution ODIHR OSCE Office for Democratic Institutions and Human Rights OHCHR Office of the United Nations High Commissioner for Human Rights OSCE Organization for Security and Co-operation in Europe UN United Nations 7 Foreword harms they experienced as a result of these state measures. Furthermore, racialized national We consider it an honour and privilege to write security and counter-terrorism frameworks have the foreword to this timely and necessary human all but neglected threats from extreme right-wing, rights research guide. Human rights protections white supremacist groups and individuals. remain precarious and fragile across the globe, but never more so than in geographies that many have We are both profoundly aware that crisis enables considered guardians for rights and safe places for states to take measures whose effects fall ideas, norms, and practices of rights particularly heaviest on those who are marginal and perceived for the most vulnerable. Producing this guide to as ‘other’ in society. Racial, ethnic, and religious address the perniciousness of discrimination minorities are particularly vulnerable to direct on racial, ethnic, religious ,and national origin and indirect targeting from security and counter- bases in the European counter-terrorism context terrorism measures. Notably, these are often underscores the extent to which assumptions the same communities that have well-founded about where rights are ‘safe’ and where they are histories of mistrust, abuse, and maltreatment not are often regrettably unfounded. from those agents of the state whose powers are augmented and enabled by counter-terrorism law We recognise that many European states have and practice. As this guide amply demonstrates, experienced profound security challenges legacies of harm and mistrust provide the in recent decades and that the violence and bedrock upon which new patterns of injustice and harm caused by terrorism have been painful discrimination are layered. for individuals, families, and communities. Yet, the response to these security challenges has The guide meticulously documents that countering been fraught and, in many contexts, harmful terrorism, which remains undefined, has been not only to individuals and communities but on a growth trajectory in Europe with no end in to the rule of law and to democracy itself. In sight. It compromises ever-expanding criminal particular, both our mandates have observed law, increasingly regulates the pre-criminal that the harms of security responses and arenas, engages administrative systems, and counter-terrorism measures are not felt equally finds its way into the capillaries of everyday life by all who call Europe their home. Rather, the from health access, to classrooms, to houses of costs of securitization and counter-terrorism worship. The breadth of places where counter- have had identifiable and disparate impact on terrorism regulation is applied reaches from certain historically and socially marginalized air to shore and sea. In these multiplicities of groups perceived as ‘threats’ to national places not all people are treated equally, and security. The resurgence of ethnonationalist discriminatory practice flourishes, enabled by populist movements across Europe, among political discourses of ‘othering’ and of ‘suspect’ other trends, has further unjustly cemented the communities where suspicion is reserved for treatment of certain racial, ethnic, and religious minority racial, ethnic, and religious communities. minority groups as dangerous ‘outsiders.’ As a The guide rightly identifies and catalogues the result, too often a counter-terrorism apparatus discriminatory impacts on Muslim communities that is facially neutral has resulted in human and those perceived to be Muslim, and most rights violations on a racially and religiously saliently provides a concrete roadmap of the discriminatory basis. Counter-terrorism measures patterns, prevalence, and systematic nature of have been at the forefront of marginalizing, discrimination. In doing so, the guide fills an stigmatizing, and rendering further inequalities evident gap given the willingness or inability of upon individuals, groups, and communities states to name and specify these experiences who are generally ill-equipped to challenge the as racism and xenophobia, or more concretely 8 to acknowledge their systemic, embedded, and The protection of human rights is essential to often intersectional nature. Particularly, the guide keep societies safe and secure. The vibrancy, provides the tools to apply antidiscrimination inclusion, and protection of racial, ethnic, and law to the counter-terrorism field, offering a religious minorities is a litmus test on the health missing link that will be invaluable for those at of a democracy. Counter-terrorism shortcuts the frontlines of pushing back against counter- and nullification of rights cast long shadows terrorism using a human rights frame. on the rule of law. This guide offers practical solutions to expose and call to account the We hope that the guide will be taken up on the discriminatory harms of excessive and misdirected ground by civil society actors including human counter-terrorism. We commend the work and rights organisations and defenders, faith groups, affirm its value. humanitarians, and researchers to expand their existing toolkits so as to challenge systemic Tendayi Achiume discrimination that racial, ethnic, and religious Special Rapporteur on contemporary forms of minorities experience because of a normalized racism, racial discrimination, xenophobia and (and accelerating) counter-terrorism architecture related intolerance across Europe.
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