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Racial Profiling and Lethal Force in the “War on Terror”

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Racial Profiling and Lethal Force in the “War on Terror” IRREVERSIBLE CONSEQUENCES: RACIAL PROFILING AND LETHAL FORCE IN THE “WAR ON TERROR” Briefing Paper The Center for Human Rights and Global Justice New York University School of Law May 2006 © 2006 CHRGJ, NYU School of Law New York, NY About the Center for Human Rights and Global Justice The Center for Human Rights and Global Justice (CHRGJ) at NYU School of Law (http://www.chrgj.org) focuses on issues related to “global justice,” and aims to advance human rights and respect for the rule of law through cutting-edge advocacy and scholarship. The CHRGJ promotes human rights research, education and training, and encourages interdisciplinary research on emerging issues in international human rights and humanitarian law. Philip Alston is the Center’s Faculty Chair; Smita Narula and Meg Satterthwaite are Faculty Co-Directors; and Jayne Huckerby is Research Director. This report should be cited as: Center for Human Rights and Global Justice, Irreversible Consequences: Racial Profiling and Lethal Force in the “War on Terror” (New York: NYU School of Law, 2006). About this Briefing Paper This Briefing Paper is the most recent in a series of Briefing Papers that addresses human rights violations in the “War on Terror.” This Briefing Paper is available at: www.chrgj.org. ACKNOWLEDGEMENTS The Center for Human Rights and Global Justice at NYU School of Law is enormously grateful to the following individuals for their work and/or assistance in the preparation of this Report: Project Directors: Smita Narula, Assistant Professor of Clinical Law, NYU School of Law; Faculty Director, Center for Human Rights and Global Justice, NYU School of Law. Jayne Huckerby, Research Director, Center for Human Rights and Global Justice, NYU School of Law. Principal authors and researchers: This report was researched by Adrian Friedman and Vrinda Grover as part of the International Human Rights Clinic at NYU School of Law. The report was co-authored by Adrian Friedman, Vrinda Grover, Jayne Huckerby, and Smita Narula. Substantive review and comment on the Report was provided by: William Abresch Stephen Holmes Julie Ringelheim Tony Thompson Research and writing assistance was provided by: Ritu Gambhir Annie Lai Susan Pappy Amanda Rawls Keren Wheeler Tatiana Pataraia Additional assistance was provided by: Samantha Baras Sarah Bowlin Dana Dasch Sarah Davidson Fauzia Dawood Vilas Dhar Elizabeth Fasolino Sumit Galhotra April Gu Anurag Gupta Dr. R. Jaipal John Sifton 2 TABLE OF CONTENTS I. Executive Summary…………………………………….…………………………………...5 A. Overview………………………………...…………………………………… ...........5 B. The “Suicide Bomber Profile”....................................................................................7 C. The Use of Lethal Force……………………………………………………………..8 D. Profiling and National Security..................................................................................9 E. Moving Forward………………...………………………………………………….10 II. Introduction…………………………………………………………………………………12 III. The IACP, Training Keys 581 and 582 and “Shoot-to-Kill” Policies……………………...12 A. What is the IACP?.....................................................................................................12 1. The IACP: Role and Organizational Structure……………...……………….12 2. The IACP and Training Keys 581 and 582…………………………...………13 B. What are Training Keys 581 and 582?....................................................................13 1. Relationship and Content…………………...…………………………………13 2. Significance of the Training Keys: Representative and Formative…….........14 IV. Training Keys 581 and 582 and International, Regional and U.S. Domestic Law………...17 A. How does human rights law apply to “shoot-to-kill” policies?.............................17 B. What does a State’s duty to protect entail?............................................................17 C. How does international, regional and domestic law prohibit discrimination?...18 1. General………………………………………….…………………………….18 2. Discrimination and International Law………………………………………19 a) Grounds of Discrimination………………………………………..….19 b) Activities to Which Prohibition on Discrimination Applies………..20 c) Direct and Indirect Discrimination…………………….…………….21 d) When does differentiated treatment amount to discrimination?......21 3. Discrimination and Regional Law………………...…………………………21 a) Europe……...…………………………………………………………..21 i. Grounds of Discrimination……...……………………………….21 ii. Activities to Which Prohibition on Discrimination Applies……...22 iii. Direct and Indirect Discrimination…………………………..….22 iv. When does differentiated treatment amount to discrimination…..23 b) Inter-American System……………………………………………….23 i. Grounds of Discrimination…..………………………..…………23 ii. Activities to Which Prohibition on Discrimination Applies…...…23 iii. Direct and Indirect Discrimination………………….......………24 iv. When does differentiated treatment amount to discrimination?....24 4. Discrimination and U.S. Domestic law………………………………………24 a) General…………………………………………………………………24 b) Constitutional Standard……………………………………………....25 i. Grounds of Discrimination………………………………………25 ii. Activities to Which Prohibition on Discrimination Applies……...25 iii. Direct and Indirect Discrimination……………………………...26 iv. When does differentiated treatment amount to discrimination?....26 3 c) Policies and Guidelines on Profiling and Law Enforcement……….26 5. Would Implementation of Training Key 581 constitute a form of prohibited discrimination under international, regional and U.S. domestic law...........26 a) Does Training Key 581 Have the Purpose or Effect of Disproportionately Burdening a Particular Racial, Ethnic, Religious or National Group?...............................................................................27 i. Behavioral indicators have the inherent potential to become proxies for racial, ethnic, and religious profiling………………..28 1. Increased use of behavioral indicators in law enforcement.28 2. Behavioral indicators have the potential to be used as a proxy for profiling on the basis of race, ethnicity or religion ……………………………………………………………..28 ii. Behavioral indicators in Training Key 581 will lead to targeting of Muslims, South Asians and Arabs or those perceived to fit these categories………………………………………………………...29 1. Explicit and implicit references to Muslims………………29 2. Evasive movements, including avoidance of eye contact…30 3. Displays of fear and nervousness………………………….30 b) Is this Disproportionate Burden Justified?.........................................31 i. Profiling of Muslims, Arabs, and South Asians in counter- terrorism measures has not identified terrorism suspects………32 ii. Profiling compromises the ability of police to work with communities to identify terrorism threats………………………..33 iii. Profiling diverts limited law enforcement resources away from identifying real threats to national security……………………...33 iv. Profiling institutionalizes prejudice and legitimizes the prejudicial behavior of the general public…………………………………...34 D. How does international, regional and domestic law regulate uses of force by law enforcement officials?...............................................................................................35 1. The Right to Life – Non-derogable but not absolute………………………...35 2. Use of Force Safeguards and International Law……………………………35 3. Use of Force Safeguards and Regional Law………………………………...36 a) Europe………………………………………………………………….36 b) Inter-American System……………………………………………….37 4. Use of Force Safeguards and U.S. Domestic Law…………………………..37 a) The U.S. Supreme Court and the Use of Force……………………...37 b) Standards applied by law enforcement entities……………………..38 5. Do Training Keys 581 and 582 comply with rules on use of force under international, regional and U.S. domestic law?..............................................38 V. Conclusion…………………………………………………………………………………...…41 4 IRREVERSIBLE CONSEQUENCES RACIAL PROFILING AND LETHAL FORCE IN THE “WAR ON TERROR” I. Executive Summary A. Overview Since the September 11, 2001 attacks in the United States (U.S.) a number of countries have either adopted or reinforced counter-terrorism measures that stand in direct contradiction to established human rights norms. Under the pretext of protecting national security in the global “war on terror” States have, for example, violated the right to due process of law, the right to be free from torture and other cruel, inhuman and degrading treatment, the right to be free from discrimination, and even the right to life. Under international law, States have both a right and a duty to protect individuals within their borders; this includes protecting individuals from acts of terrorism. Measures taken in fulfillment of this duty, however, must also respect the rule of law, human rights, and fundamental freedoms. To date, few States have been able to effectively reconcile this dual obligation to protect national security while respecting human rights. A recent example of this failure is the adoption of “shoot-to-kill” policies to deal with suspected terrorists. In 2005 a number of “shoot-to-kill” policies authorizing the use of lethal force against suspected suicide bombers came to light. Following the July 22, 2005 killing of Jean Charles de Menezes, a Brazilian electrician who London police mistook for a suicide bomber, the United Kingdom (U.K.) revealed the existence of a national “shoot-to-kill” policy named Operation Kratos. Also in 2005, reports surfaced that the U.S. Capitol Police had become the first police department in the U.S. to adopt a “shoot-to-kill” policy for dealing with
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