Counter-Terrorism: Outdated International Law and Racial Profiling

Dante and Virgil traversing Cocytus by Gustave Doré
"Terrorism (...) aims at the destruction of human rights"  
(in "Legal and Policy Issues When Countering Terrorism" by Conte & Ganor)


Are international laws and conventions outdated when it comes to Counter-Terrorism (CT)? Most international binding norms and declarations were written after the WWII (to prevent a repetition of events; and were/are ratified as a way to make signatory nations commit themselves to applying those norms in national law); however, because terrorism - as we know it today - didn't exist at that time, it is natural that those norms, declarations and laws, do not anticipate certain phenomenons such as Global Jihad and Urban Warfare; thus limiting the action against such occurrences. Unlike international laws, the masterminds of terrorist activities adapt rather quickly to change and, take advantage of the static international legal dispositions. 

The European Court of Human Rights (ECHR) developed a very interesting doctrine: Margin of Appreciation. This principle of law states that national authorities are entitled to certain latitude in solving the "inherent conflicts between individual rights and national interests, or among different moral convictions" (idem). Each society is to be given space of manoeuvre in fulfilling its obligations under the European Convention on Human Rights. 
In my opinion, the International Law Commission (a body responsible for the development of international law and its codification) should follow the example of the ECHR and agree to include, in international treaties, a Margin of Appreciation clause. That way, the commission would be more respected by governments (that tend to avoid accepting its recommendations) and it would prove that it does not refrain "from formulating principles on new issues". There should be no reason (i.e political or otherwise) for international laws to tie the hands of governments when countering terrorism. 

In the previous post, I addressed torture vs harsher interrogation techniques. In this one, as per the title, I will address a controversial investigative technique: racial profiling.  
When addressing this technique, one can either cite:
  • The 2004 General Recommendation, issued by the UN Committee on the Elimination of Racial Discrimination (CERD) that states: "that any measures taken in the fight against terrorism do not discriminate, in purpose or effect, on the grounds of race, colour, descent, or national or ethnic origin and that non-citizens are not subjected to racial or ethnic profiling or stereotyping".
  • The Inter-American Commission on Human Rights that says it "considers that any use of profiling or similar devices by a state must comply strictly with international principles governing necessity proportionality and non-discrimination and must be subject to close judicial scrutiny."
  • The Council of Europe Guidelines (for Human Rights and the Fight Against Terrorism) does not specifically refer to any kind of profiling; although Article 2 (Prohibition of arbitrariness) states that "All measures taken by States to fight terrorism must respect human rights and the principle of the rule of law, while excluding any form of arbitrariness, as well as any discriminatory or racist treatment, and must be subject to appropriate supervision."  
Is racial profiling, as a CT measure, unlawful? It is lawful if the Human Rights restrictive measure is "defined as precisely as possible and be necessary and proportionate to the aim pursued" (idem). When dealing with the Global Jihad, for example, law enforcement agencies will look for individuals from a specific race and religion; but I would add nationality profiling to the investigative method, because as the term "Global Jihad" indicates anyone, professing Islam, from any country (around the world) can be used as a terrorist jihadist; and, thus, race or the colour of one's skin is not enough to present a proper profile. 
For instance, a Chechen jihadist will most likely have fair skin and may have blue eyes, the Irish White Widow is caucasian, and many jihadists from the Maghreb are light-skinned with bright eyes (who often will die their hair as blond, to fool westerners); religious profiling alone is ineffective as well, since many jihadists will pretend to be Christians (or even Jews) under the guise of Taqiyya - a form of religious dissimulation, in which the submitter will be allowed to deny his/her faith if persecuted or under threat. 
Having said this; a combined racial, religious and national origin profiling is "necessary and proportionate to the aim pursued", and therefore deemed legal when fighting terrorism. 

"Since counter-terrorism defends the ultimate rights of many people to live, counter-terrorism measures should be regarded as ones that are taken to fulfil human rights." (Prof Boaz Ganor)

Comments

  1. Would it be right to presume that the Chechen bombers were sent because they looked like the usual white American? So that they will not arouse any suspicion?

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    1. Hi Rummy :D!

      In certain circles, yes, it would be right to presume exactly that.
      It was interesting to hear one Bostonian witness, who knew Dzhokhar Tsarnaev, saying that she never suspected that he was a Muslim, or a Chechen, because he wore his cap backwards "for heaven's sake!" (she said; meaning that she was fooled by his Americanised aspect) - see how easy it is to fool people?
      And the same happens everywhere around the world...

      Rummy, thank you so much for your comment :D.

      Cheers

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  2. Racial profiling or any kind of profiling is discrimination against the targets and it is forbidden by any kind of international law!! Besides it hasn't been proven that it is absolutely effective in the war against terrorism, so in the absence of that proof it should be completely ruled out!
    Just cause those two guys in Boston were Chechen it doesn't have to mean that all Chechen are terrorists!!!!

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    1. She is back! Celia, I for once can tell you that racial and religious profiling works effectively. What do you for a living: do you work for an NGO? That would explain a lot; it's a pity you aren't in Gaza right now though to see what violation of human rights really is!
      You should have the balls to come back and face the criticism made to your stupid comments!

      Delete
    2. What does my job have to do with it and what's it to you anyway? What is going on in Gaza is the result of what zionists (Max's brothers) are doing to those poor people!! So don't play the Gaza card on me, Fed! Do I have balls enough for you now?

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    3. Celia, I grant you that all Chechens are not terrorists. Just those few who have been brain washed by fellows like Abu Qatada who exploit the rest of the world's principled approach to justice. I come from India, as you know by now. How come that all the terror activities that have taken place in my country, bar one, which has not been proven yet, have been by muslims? The point is, I strongly believe that the ordinary muslim always comes out against terrorism and terrorists after the event, when he knows that the worms are inside working out plans and he is either scared to report to the authorities or is happy that someone is willing to have, to use your language, the balls, to commit acts of terrorism.

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    4. Hi Celia :D!

      Racial profiling is not forbidden by "any kind of international law"; the UN after the 9/11 produced a recommendation regarding racial (and other types of) profiling for political reasons - it's different. I would agree that the investigative method must not be used arbitrarily but it is a fact that when countering Global Jihad we need to look for individuals fitting into a specific box, wouldn't you agree?

      You said that racial profiling hasn't been proved to be effective: could you name some reports so that we learn more about it?
      You are right, not all Chechen are terrorists but the fact that they are Chechen is important for the investigation, given Chechnya's background.

      Celia, thank you so much for your comment :D.

      Cheers

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    5. Rummy,

      You pointed out a vital question:

      "the ordinary muslim always comes out against terrorism and terrorists after the event, when he knows that the worms are inside working out plans and he is either scared to report to the authorities or is happy that someone is willing to have, to use your language, the balls, to commit acts of terrorism."

      That is the main problem about the ordinary Muslim: silence before atrocities.

      Yet, the Canadian Muslim community denounced the two Al-Qaeda plotters to the authorities: is it a sign of change?

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    6. Celia, whatever you think is going on in Gaza it's Hamas' fault not the Zionists'. Ooooh, Max is a Zionist? I didn't know it: God bless you, Max!!! I hope you are not one of those anti-Semitic individuals pretending to be pro-palis just cause Palestinians are anti-Jews? If you are one of those then no you do not have enough balls for me, try again!

      Rummuser, you know you are on the right here!

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    7. Max, I would have accepted that it was a sign of change in Canada had the two mulims been Canadian citizens.

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    8. Fed up reader,

      Thanks for the blessing. Celia loves me, most definitely ;).

      Cheers

      Delete
    9. Rummy,

      Aaah, I see what you mean. But aren't all Muslims members of the Ummah? Their main allegiance is towards Islam; so if one of them (or a local community) denounces a brother (and rightfully so) shouldn't it be considered a change in their behaviour?

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  3. The intn'l law is definitely outdated. The example of urban warfare is a good example of it and look at how manipulated it is by groups like Hamas and the Hezbollah even though they break the intn'l law every chance they get without suffering any consequence whatsoever! I agree that a combo of racial, religious, national origin and other characteristics are more effective than treating them separately; but I stress the need to employ such methods and if the intn'l agreements do not want to keep up with the evolution of conflicts than countries should create their own laws covering the state's back. I didn't know about margin of appreciation!

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    1. Hi Fed up reader :D!

      You have a point about Hamas and Hezbollah.
      I hear you; governments must have sufficient latitude to counter terrorism. Look at what happened with Russia and the FBI: US laws seem to have prevented the FBI from pursuing a deeper investigation on Tamerlan Tsarnaev...although I also wonder whether the US understood the Russian way of communication.

      Fed up, thank you so much for your comment :D. A true pleasure.

      Cheers

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  4. "counter-terrorism measures should be regarded as ones that are taken to fulfil human rights." this sentence sums it all up to me! So go ahead an do whatever to keep me and mine safe!

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    1. Hi Anonymous :D!

      I understand where you are coming from.

      Thank you so much for your input :D.

      Cheers

      Delete
  5. Max, taqiyya is a serious weapon in the hands of radical Islamists if indeed they use to pass as Christians, Jews and who knows Hindus and Buddhists - the situation in Burma and Thailand is chaotic! They even managed to drive Buddhists crazy!! Who does that?
    On a more serious note, I was shocked at the American news media when the FBI release the Tsarnaev boys' photos: they were immediately called white, when obviously they are not. Now, it doesn't take an anthropology degree to recognise Middle Eastern folks, does it? So yeah, I believe racial profiling alone is nothing nowadays. We have to add more factors into the equation.
    And I agree with Fed up reader: the laws are outdated, they need to keep up!

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    1. Hi Ana :D!

      Taqiyya is a serious issue that should not be overlooked. Of course, it makes it more difficult to investigate possible suspects or accomplices...but there is always a way.
      I am still studying the racial classification system in the US; so I cannot comment on it for now.

      I hear you.

      Ana, thank you ever so much for your comment, girl :D.

      Cheers

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  6. Looks like discrimination based on religion is fair game, unless that is deemed to be part of "ethnic origin". I especially like the wording, "in purpose or effect". That would imply that if there was a clear criteria that correlated with terrorism, then the terrorists should only send out people of a certain race, ethnicity or nationality. It would be impossible to discriminate against the terrorists without incurring a correlation "in ... effect" with persecution based on race, ethnicity, or nationality. Checkmate!

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    1. Looney, in what way is calling a terrorist a muslim - terrorist when he is a muslim, discrimination? Members of what other religions have been "sending" terrorists to carry out acts of terrorism with the promise that their after life will reward them with you know what!

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    2. Hi Looney :D!

      That was the cheese in the rat trap of this post. Yes, the CERD general recommendation left religion out - I don't think it can be deemed as "ethnic origin". Perhaps the UN is considering to form a committee on the elimination of religion discrimination and then deal with this loophole.

      Yes, your assessment is correct and isn't it what they are doing? Look at these Boston Boys and the Al-Qaeda guys in Spain (who share the same profile)...
      That is why states do not always follow the UN recommendations (done for political and financial purposes); because if they did it would be impossible to counter terrorism. Thank God for national laws and the margin of appreciation.

      Looney, thank you so much for your fab contribution to the debate :D.

      Cheers

      Delete
    3. Rummy,

      For example, the Basque Country's terrorists are Catholics (ETA attacks in both Spain and France; they hide in Portugal) and the Lehi terrorist members were Jewish; but none of these used the globe as their battlefield.

      Now in the Global Jihad context, it should not be considered discriminatory to label those terrorists as Muslims; because that's what they are no matter how politically correct one may want to be.

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    4. Max, according to your choice of definition of terrorism the Lehi was not a terrorism group because they did not target civilians, they targeted the British army.

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    5. Rummuser, I am certainly in agreement with you. But we must also keep in mind that the Western Intellectual isn't rational. They have spent billions of dollars teaching American children over the last half century that Islam is a religion of peace, love, science, learning and wisdom. They are also desperate to get as many Muslims as possible moved into the US, into the welfare system, and on a path to citizenship. The intellectual classes of Europe seem to be on the same path. If these Ph.d's are bombed and terrorized into changing their world view, it will only be to embrace one that is worse.

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    6. Max, we also have the infamous Guy Fawkes whose image showed up in the movie "V". He tried to blow up the British Parliament to restore a Catholic monarchy, which is a point that the "V" enthusiasts seem to have missed. But I am also in agreement with Ana ... targeting politicians does not qualify as terrorism.

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    7. Ana, you are absolutely right, of course; but I only added the Lehi because the group called itself a terrorist group saying that "Neither Jewish ethics nor Jewish tradition can disqualify terrorism as a means of combat. We are very far from having any moral qualms as far as our national war goes." - but indeed, by definition, they are not a terrorist group (although many would beg to differ).

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    8. Looney, I haven't watched that movie yet. You raise an interesting point: is the British Parliament a civil object or a military objective? If it is a civil object, attacking it would be considered terrorism; but if a military objective then attacking it would not be viewed as terrorism...

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    9. This is an interesting side discussion that has developed. We recently hanged a terrorist who had plotted to bomb our parliament. The attempt failed. The hanging was a highly politicised event as he was muslim and from Kashmir and the ruling dispensation is very sensitive to the muslim vote bank. http://en.wikipedia.org/wiki/Afzal_Guru

      Along with many Indians, I too wondered what would have happened if the terrorists had succeeded in destroying our parliament and killing our politicians. More or less unanimous opinion was that the terrorists would have been treated as heroes and given medals by the public.

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    10. Rummy,

      Afzal Guru's story is incredible. From where I am standing, India did well.
      But the question remains: can it be considered terrorism when government buildings are targeted?

      Generally speaking, it is true that when Islamic terrorists attack/murder "the infidels" (the kuffar) they are celebrated as national heroes and bank holidays will be created with their names: in summa, their crime is extolled and their families go up the social ladder at the expense of other people's blood.

      It's shameful...

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  7. Olá Max,

    I know I was divided last week, but after reading about the two Al-Qaeda guys caught in Spain and in Canada, I thought to myself: Holy cr*p, these guys have changed their MO! And if they did then we need all the weapons we can get our hands on to get them.
    It is a good thing that the UN recommendation is non-binding then, otherwise counter-terrorist agents would find it hard to do their job. You spoke of Urban Warfare: it is another field that is often undermined by international conventions. An update is definitely in order.

    Great job, my dear! Starting to see this issue with a different set of eyes...

    Tchau

    P.S: I am for all types of profiling. Besides what you said about it, it is legal if done in a way that causes nothing more than a small inconvenience.

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    1. Olá Celeste :D!


      You have noticed, huh? That is the most interesting aspect about the masterminds of these terror acts: they change rapidly, they adapt to the circumstances rather quickly.

      Thanks, love *bowing*.

      You have raised an interesting question: indeed, if the profiling is done in a way that doesn't reveal racism or any sort of discrimination it is utterly legal. Prof Boaz and Alex Conte addressed that in their book: profiling must be done in such a fashion as to be viewed as a small inconvenience in exchange for the protection of a human right - life and security.

      Celeste, thank you ever so much for your fab contribution to the debate :D.

      Cheers

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  8. Couldn't agree more with your thoughts, but somehow terrorism, I feel has become a political hot potato than anything else which impedes countries coming together at a common ground or a consensus to evolve a mechanism which can help the larger cause. Today almost all countries in the world are directly or indirectly affected by the terrorism curse but somehow every country almost has a kind of its own doctrine of fighting it, who try to justify it against its own compulsions rather than evolving a concrete mechanism to root terrorism out. Yes, its easier said than done but I guess, some kind of a common convention is required else some stereotypes will defeat the larger cause.

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    1. Hi Kalyan :D!

      That too: terrorism has become a political "hot potato" as you put it.
      Each country has its own convenient interests, true; however they must find a way to come to a consensus, otherwise we will be fighting this plague for a long long time.

      K, thank you ever so much for your outstanding comment :D.

      Cheers

      Delete

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