The impossibility of terrorist profiling, Daniel Moeckli

Daniel Moeckli — Fri, 12 Sep 2008 14:00:17 +0000

A new report by MI5, the British domestic security service, challenges existing stereotypes about those involved in terrorism in the UK. The main findings of the classified "operational briefing note" have already been disclosed in the press (see Alan Travis, "MI5 report challenges views on terrorism in Britain", The Guardian, 21 August 2008). The report, which apparently is based on several hundred case studies, reveals that British-based terrorists fit "no single demographic profile". Most of them are male, but women also play an important role. The majority are British nationals, not illegal immigrants. There is a high proportion of converts. Importantly, MI5 concludes that "assumptions cannot be made about suspects based on skin colour, ethnic heritage or nationality."

Yet exactly such assumptions have informed British anti-terrorism policing in recent years. Government officials and high-level police officers have made it clear that law enforcement efforts should focus on certain ethnic groups. The then Home Office Minister, Hazel Blears, implied that stop and searches under the Terrorism Act 2000 will "inevitably be disproportionately experienced by people in the Muslim community". Similarly, the Chief Constable of the British Transport Police has stated: "We should not waste time searching old white ladies. ... It is going to be young men, not exclusively, but it may be disproportionate when it comes to ethnic groups."

Guilt by pigmentation

Accordingly, the overall rise in anti-terrorism stop and searches (from 8,550 in 2001/02 to 37,197 in 2006/07) has mainly affected ethnic minorities. In the first two months after the London bombings of July 2005, for instance, the number of Asian and black people stopped in the London metropolitan area increased twelvefold; for white people the increase was fivefold. The latest UK-wide figures show that Asian people are now 4.1 times more likely, and black people 4.5 times more likely, to be stopped and searched under the Terrorism Act 2000 than white people. Daniel Moeckli is lecturer in law at the University of Nottingham and head of the Counter-Terrorism and Human Rights Unit at the University of Nottingham Human Rights Law Centre. He is the author of Human Rights and Non-discrimination in the ‘War on Terror' (Oxford University Press, 2008).

Not only in the UK is "ethnic profiling" one of the central tools of law enforcement agencies in their fight against terrorism. A study of police stops and document checks on the Moscow metro system, which are often carried out in response to terrorist threats, found that persons of non-Slavic appearance are 21.8 times more likely to be stopped than Slavs. In the United States, the immigration authorities adopted a series of policies and practices designed to counter terrorism that single out immigrants who are citizens of, or were born in, countries that have predominantly Arab and/or Muslim populations. In Germany, the police forces tried to identify terrorist "sleepers" by searching several million personal data sets for people matching the following profile: male; age 18-40; current or former student; Muslim denomination or link through birth or nationality to one of several specified countries with a predominantly Muslim population (in a decision which is available here, the German Federal Constitutional Court declared this data mining operation unconstitutional).

As the MI5 report highlights, these kinds of terrorist profiles are useless and, indeed, misleading. Profiles that are based on such characteristics as ethnic appearance or national origin are inaccurate and highly over-inclusive, covering countless persons who are in no way linked to terrorism. At the same time, the stereotypical image of the male "Arab", "Middle Eastern" or "Asian" terrorist is also under-inclusive: it does not cover women or converts.

It is therefore not surprising that ethnic profiling practices have proved largely unsuccessful. In 2003/04, for example, 8,120 pedestrians were stopped in the UK under the Terrorism Act. Yet these stops led to only five arrests in connection with terrorism - a ‘success rate' of 0.06 percent. Incidentally, all of those arrested were white. In the United States, the strategy of mainly targeting immigrants of Middle Eastern descent has not produced any significant results in the form of arrests or investigative leads. And the German data mining programme did not result in a single criminal charge for terrorism-related offences.

An ineffective tool

Even worse, ethnic profiling may be counter-productive. Profiles based on ethnicity can shift the attention of police officers away from more pertinent indicators such as behavioural patterns or psychological characteristics. In addition, ethnic profiling contributes to the stigmatisation and alienation of the targeted minority groups. This stigmatisation, in turn, may increase the distrust of the police and thus have significant negative implications for law-enforcement efforts.

Apart from these serious doubts about its suitability as a counter-terrorism tool, ethnic profiling also raises concerns with regard to its conformity with human rights standards, in particular the prohibition of discrimination. In a case before the House of Lords concerning the stop and search powers under the Terrorism Act 2000, some of their Lordships found that it is permissible for the police to rely on a person's Asian appearance as long as ethnicity is used in combination with further factors. Yet this test is not only unclear (Would it be enough for the police to simply add one additional factor, for example gender, to the profile? Or does it depend on the importance attached to the different factors?), but also runs counter to pronouncements of international human rights bodies.

The UN Committee on the Elimination of Racial Discrimination, the UN Special Rapporteur on terrorism and human rights, the European Commission against Racism and Intolerance and the EU Network of Independent Experts in Fundamental Rights have all warned against the use of ethnicity as part of terrorist profiles. As the UN Special Rapporteur has pointed out, the differential treatment that ethnic profiling involves could only be compatible with the prohibition of discrimination if it was supported by objective and reasonable grounds. But, he concluded, given its ineffectiveness and its adverse effects, ethnic profiling regularly fails to meet this requirement and is therefore discriminatory.

These human rights bodies have called for a number of concrete steps to prevent counter-terrorism practices based on ethnic profiling. For example, they have urged states to use random security checks as an alternative to profiling, establish systems of transparent and independent oversight of law enforcement agencies and implement training programmes for law enforcement agents. Perhaps the most effective training for law enforcement agents, but also for politicians, would be to require them to read the MI5 report.

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The impossibility of terrorist profiling, Daniel Moeckli