UN Human Rights Committee Finds Discrimination in Racial Profiling

I received the following message from James A. Goldston, Executive Director of the Open Society Justice Initiative, on a very important finding on racial profiling by the UN Human Rights Committee. I reprint he message in full, as it speaks for itself.

On July 30, 2009, the United Nations Human Rights Committee became the first international tribunal to declare that police identity checks that are motivated by race or ethnicity run counter to the international human right to non-discrimination. The committee issued its views concerning the Rosalind Williams v. Spain communication, originally filed by the Justice Initiative and Women’s Link Worldwide in 2006.

Williams’ case began 17 years ago, when she, a naturalized Spanish citizen, was stopped by a National Police officer in the Valladolid, Spain rail station. Of all the people on the train platform, she was the only one to be stopped and asked for her identity documents. She was also the only black person on the platform. Williams soon launched a legal challenge to the identity check, claiming she was targeted because of her race. In 2001, the Spanish Constitutional Tribunal approved the practice of relying on specific physical or racial characteristics as “reasonable indicators of the non-national origin of the person who possesses them,” arguing that racial criteria are “merely indicative of the greater probability that the interested party not Spanish.” The court’s endorsement lent legitimacy to a pervasive discriminatory policy of ethnic profiling that had for years been widely documented by human rights monitoring bodies.

In finding a violation of the International Covenant on Civil and Political Rights the UN Human Rights Committee concluded that while identity checks might be permitted for protecting public safety, the prevention of crime, or to control illegal immigration, “the physical or ethnic characteristics of the persons targeted should not be considered as indicative of their possibly illegal situation in the country. Nor should identity checks be carried out so that only people with certain physical characteristics or ethnic backgrounds are targeted. This would not only adversely affect the dignity of those affected, but also contribute to the spread of xenophobic attitudes among the general population; it would also be inconsistent with an effective policy to combat racial discrimination.”

The committee found that while there was no written policy to conduct police identity checks on the basis of skin color, “…it does appear that the police officer did act according to such a criterion — something that was justified by the courts that heard the case. The responsibility of the State party is clearly compromised.”

“… the Committee can only conclude that the petitioner was singled out only because of her racial characteristics, and this was the decisive factor for suspecting unlawful conduct. The Committee recalls its jurisprudence that not all differential treatment constitutes discrimination if the criteria for differentiation are reasonable and objective and if the goal is legitimate under the Covenant. In this case, the Committee finds that the criteria of reasonableness and objectivity were not met.”

The implications of the UN Human Rights Committee’s judgment extend far beyond Spain, where ethnicity-based police stops are still a common practice, to wider Europe, where years of monitoring have revealed a persistent and damaging pattern of ethnic profiling of minorities and immigrants in police stops and searches without explanation and without clear or effective purpose. The Justice Initiative has documented the prevalence and harms of this impermissible practice in reports such as “I Can Stop and Search Whoever I Want” — Police Stops of Ethnic Minorities in Bulgaria, Hungary and Spain and Ethnic Profiling in the European Union: Pervasive, Ineffective, and Discriminatory!, and has long advocated for operational, policy, and legal reforms before national and regional actors.

Although previous regional human rights tribunals have touched upon the issue of ethnic profiling — most notably the European Court of Human Rights in its 2005 Timishev v. Russia judgment, which held that the applicant had been unjustifiably subjected to differential treatment in relation to his right to liberty of movement “solely” due to his ethnic origin — Williams v. Spain is the first case to explicitly challenge ethnic profiling as a practice, and the UN Human Rights Committee the first international tribunal to issue a ruling prohibiting race- and ethnicity-based police stops.

Following this landmark judgment, the Justice Initiative will continue to work with government representatives and law enforcement agencies in Spain and other EU Member States, as well as with EU institutions in Brussels, to make sure that the policy and practice changes in line with the principles established by the UN Human Rights Committee are adopted and implemented.

Click here for further information on the Justice Initiative’s work challenging ethnic profiling.

Keep quiet or get labelled a terrorist…

BoingBoing brings this piece from the Daily Kos to my attention. It’s a disturbing story of what has happened on a number of occasions to people who annoy flight attendants and end up being labeled as terrorists. These ridiculous rulings have been severely debilitating – in the most extreme case, one woman lost access to her children, and in a Kafkaesque twist was unable to argue the case because she could not reach the custody hearing (in Hawai’i) because she was banned from flying!

These rulings have all occurred through extreme interpretations of the provisions of the US PATRIOT Act. However both this tendency for laws to extend their reach is not unique to the USA, indeed Britain may be far more culpable in this regard but in its mundane, bureaucratic way. Examples include the way that the Harassment Act, designed to protect people from stalkers, has become a tool of corporations against protestors, and the Regulation of Investigatory Powers Act (RIPA), which has enabled local authorities to employ intensive surveillance of individuals for such heinous acts as recycling wrongly.

The other issue here is once again, one of responsibilization, the enabling of ordinary people in minor positions of responsibility, or none, to use powers that would previously have been reserved to law enforcement officials or the court system. In the USA, it is flight attendants, whose role has increased markedly as post-9/11 provisions have ratcheted up expectations of passenger behaviour, but in Britain, the New Labour administration has enabled hundreds of bureaucrats to issue fines without any court process through the Regulatory Enforcement and Sanction Act, passed last year.

Basically, there are more and more people who, on a whim and with little or no evidence, can make life extremely difficult if you don’t conform to increasingly tight behavioural norms based on pre-established categories – ‘acting like a terrorist‘ being just one. Some of these norms we may even agree with – no-one likes rudeness – but what is happening is a process of desocialization and the replacement of what used to be matters of civility by narrow protocols.