Published in July 2018.
This module is a resource for lecturers
Principle of non-discrimination
The concept of non-discrimination is important in many aspects of counter-terrorism operations. For example, the exercise of a State's powers in response to terrorist threats and acts - e.g., search and seizure, surveillance or arrest, restrictions on fundamental freedoms examined in this Module - must be exercised in a non-discriminatory manner. Not every distinction in treatment will inevitably be discriminatory. Without objective justification, however, any differential treatment between people groups (e.g., ethnic, racial or gender) by States in their counter-terrorism efforts is likely to be incompatible with the principle of non-discrimination.
International legal framework
Under article 2 International Covenant on Civil and Political Rights (ICCPR), "[e]ach State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." I.e. this prohibition against discrimination applies to all Convention rights. In addition, there is a separate non-discrimination principle provided for by article 26 ICCPR, which provides that "all persons are equal before the law and are entitled without any discrimination to the equal protection of the law". The prohibition of discrimination is also enshrined in all regional human rights treaties.
There are two forms of discrimination, direct and indirect. With respect to the first, Moeckli has observed that "[d]irect discrimination occurs when a person, on account of one or more of the prohibited grounds, is treated less favourably than someone else in comparable circumstances." (Moeckli, 2012, p. 600; see further Lithgow and others v. UK, 1986, para. 177 and Fredin v. Sweden, 1991, para. 60). In contrast, a person is indirectly discriminated against "when a practice, rule, or requirement that is outwardly 'neutral' , that is, not based on one of the prohibited grounds of distinction, has a disproportionate impact on particular groups defined by reference to one of these grounds" (Moeckli, 2012, p. 600; see further Human Rights Committee views CCPR/C/37/D/208/1986; Human Rights Committee views CCPR/C/78/D/998/2001, para. 10.2; D.H. and others v. Czech Republic, 2006, para. 184).
The principle of non-discrimination is inherently linked with the principle of equality, which was described in the Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in 1993, as "a fundamental rule of international human rights law" (A/CONF.157/23, para. 15). This reflects too the 1948 Universal Declaration of Human Rights which states that: "All human beings are born free and equal in dignity and rights" (article 1); and that "[a]ll are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination" (article 7) (General Assembly resolution 3/217 A). The principle of equality is further embedded within the text of the ICCPR (articles 2 and 3) as one of its overarching principles. Furthermore, both the principles of equality and non-discrimination are reflected in other international human rights law conventions, including the International Covenant on Economic, Social and Cultural Rights (articles 2(2) and 3); International Convention on the Elimination of All Forms of Racial Discrimination 1966; Convention on the Elimination of All Forms of Discrimination against Women 1979; Convention on the Rights of Persons with Disabilities 2006; Convention on the Rights of the Child (article 2(1)); and International Convention on the Rights of All Migrant Workers and Members of their Families.
The prohibition of discrimination is so fundamental to human rights that, even in "time of public emergency which threatens the life of the nation", measures taken to derogate from human rights may not be discriminatory (article 4(1) ICCPR). Indeed, in its Statement on Racial Discrimination and Measures to Combat Terrorism , the United Nations Committee on the Elimination of All Forms of Racial Discrimination were of the view that "the prohibition of racial discrimination is a peremptory norm of international law from which no derogation is permitted". (General Assembly report 57/18, para. 4).
In determining whether or not differential treatment in counter-terrorism measures constitutes discrimination, a court or other authority will generally consider the following issues:
- Does the measure give rise to differential treatment on a prohibited ground (such as those listed in article 2(2) ICCPR)?
- If so, does the measure pursue a legitimate aim, such as the prevention of disorder and crime?
- Is there a reasonable and objective justification for the difference in treatment?
- Is the relationship between the aim and effects of the measure in question proportionate?
- Is the differential treatment necessary to achieve the aim pursued?
- Is the differential treatment proportionate?
Proportionality: In determining whether or not differential treatment is proportionate, it is often helpful to consider whether the aim achieved through the difference in treatment could be achieved by means other than a measure which gives rise to a difference in treatment on a prohibited ground. In other words, to ask whether the means employed are the least restrictive or whether the purpose could be achieved with a less significant (or no) difference in treatment. It is also useful to consider whether adequate legal safeguards are in place, such as independent scrutiny or review by courts, to protect the interests of those who may be differentially treated and to consider independently whether the justification is indeed reasonable and objective and proportionate.
Burden of proof: If there is a difference in treatment, the burden of proof shifts onto the State to demonstrate that a reasonable and objective justification exists for it. Where the aim of differential treatment is vaguely identified by a public authority, it will be much harder for it to show that the differential treatment is reasonable and objectively justified and/or proportionate since there are likely to be any number of alternative means by which a vaguely identified aim could be pursued.
Notably, several of the universal anti-terrorism conventions contain non-discrimination clauses: the Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation 2010 (article 14), 1997 Convention for the Suppression of Terrorist Bombings, and 1999 Convention for the Suppression of the Financing of Terrorism.
A particularly sensitive and controversial issue can be that of 'profiling' by law enforcement and intelligence officials, such as in the context of seeking to prevent violent extremism and terrorist acts. Profiling has been defined as "the systematic association of sets of physical, behavioural or psychological characteristics with particular offences and their use as a basis for making law-enforcement decisions" (General Assembly report 4/26, para. 33).
Any use of law enforcement powers in counter-terrorism efforts, e.g., where persons are considered 'suspect' for the sole reason of belonging to certain ethnic or religious communities, is likely to violate human rights on grounds of discrimination. In addition, it risks having a significant negative impact on the prevention and investigation of terrorist offences. In a report on 'profiling' practices, the Special Rapporteur on the protection of human rights while countering terrorism described how terrorist profiling practices which single out persons for 'enhanced' law enforcement attention simply because of their belonging to a certain group can risk causing an emotional toll upon them as well as stigmatizing an entire group as a suspect community. As he observed:
This stigmatization may, in turn, result in a feeling of alienation among the targeted groups. The Special Rapporteur takes the view that the victimization and alienation of certain ethnic and religious groups may have significant negative implications for law enforcement efforts, as it involves a deep mistrust of the police ... The lack of trust between the police and communities may be especially disastrous in the counter-terrorism context. The gathering of intelligence is the key to success in largely preventive law enforcement operations ... To be successful, counter-terrorism law enforcement policies would have to strengthen the trust between the police and communities. (General Assembly report 4/26, para. 58).
Similarly, reflecting on the experience of several decades of counter-terrorism operations in Northern Ireland, the Northern Ireland Human Rights Commission were of the view that the discriminatory use of counter-terrorism powers by law enforcement agencies has had a long-term negative impact on the effectiveness of crime prevention:
The perception that the police force, which throughout the conflict had a significant under-representation of the Catholic community, and the armed forces, operated their emergency powers more frequently and aggressively in Catholic areas led to a persistent feeling of resentment towards law enforcement agencies. Overcoming this resentment and ensuring broader acceptance of the police service will take many years, and the impaired effectiveness of policing due to inadequate community support leaves those very communities vulnerable to crime and anti-social behaviour. (Northern Ireland Human Rights Commission, 2006, para. 22).
On 4 May 2016, in a Joint Declaration on Freedom of Expression and Countering Violent Extremism, United Nations and regional special rapporteurs recommended that "States should never base surveillance on ethnic or religious profiling or target whole communities, as opposed to specific individuals, and they should put in place appropriate legal, procedural and oversight systems to prevent abuse of surveillance powers" (UN Special Rapporteur on Freedom of Opinion and Expression, OSCE Representative on Freedom of the Media, OAS Special Rapporteur on Freedom of Expression and ACHPR Special Rapporteur on Freedom of Expression and Access to Information, para. 2(g)).
The issues that can arise from the use of different surveillance practices are highlighted by Case Study 1 in this Module, from Germany, which relates to what are sometimes termed as 'dragnet' investigations.