Counter-Terrorism: Outdated International Law and Racial Profiling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)

Part I - Counter-Terrorism: Limitation of Rights, Torture & Interrogation Techniques

Are international laws and conventions outdated when it comes to Counter-Terrorism (CT)?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)