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Legitimising intolerance?

By: Farah Khalid Khan

Many international and domestic laws have struggled through times to uphold human rights, but discrimination on the basis of race, religion, creed and ethnicity occurs frequently enough to be qualified as the most unfortunate predicament of mankind in contemporary times.

Although the UN has made a concerted effort to outlaw racial discrimination and protect human rights through various conventions, yet the implementation of these instruments of international law remains questionable.

Racial discrimination in general, and racial profiling in particular, is gradually precipitating into a non-temporary phenomenon for Muslims and every step in that direction leads to a violation of human rights. Ethnic or racial profiling, as defined by the European Commission, is “encompassing any behaviour or discriminatory practices by law enforcement officials and other public actors, against individuals on the basis of their race, ethnicity, religion or national origin, as opposed to individual behaviour or whether they match a particular ‘suspect’ description.”

It differs from criminal profiling in that the latter is based on objective evidence of criminal activity, whereas the former is based on stereotypical assumptions. The international law could not, therefore, be implemented properly by Europe’s national legislatures and even when it has taken some semblance of implementation, for example, in the form of ECHR (European Convention on Human Rights), the mechanism by the institutions is contrary to the convention.

Muslims are the largest religious minority in Europe and they have been the victims of racial profiling at various occasions, whether it is at the airports, security check posts, surveillances or public places. According to the European Union, 32 percent of British Muslims have been subjected to discrimination at airports and are stopped 128 times more than any other race.

Then the Open Justice Society’s report revealed that a data mining practice searched the personal data of almost 8.3 million targeted, specifically Muslims, and not even a single terrorist was identified. The International Helsinki Federation for Human Rights report illustrates that in Sweden and other countries, up to every fifth job is closed for people with Arabic-sounding names.

The European Union Agency for Fundamental Rights says that one in three Muslims are discriminated against and 25 percent Muslims surveyed were discriminated against by law enforcement agencies – almost 40 percent of these believe that it was because of “ethnic profiling”.

Besides this, the French law prohibiting burqa in public places is another reflection of state intolerance. The discrimination of races is not only limited to Muslims in Europe, but also to Jews and people of Roma origin. This strengthens the premise that there is an inherent failure to adhere to the notions of human equality, as propagated in international and national laws of the European states.

The International Convention on Elimination of all forms of Racial Discrimination (ICERD) and International Convention on Civil and Political Rights (ICCPR) have been ratified by most European countries. The ICCPR (Article 9) clearly states that every person has a right to security and life. Most European states have ratified the ICCPR and ICERD and are signatories to declarations prohibiting discrimination on the basis of religion and race; this signifies the willingness of these states to uphold human rights in the international arena.

The European Convention on Human Rights (ECHR) (Article 14) states that it is against all forms of discrimination, yet this phenomenon plagues most of Europe. Protocol No 12 of ECHR prohibits “discrimination on any grounds in respect of any right set forth in national law by a public authority.” The explanatory report clarifies that it applies to discrimination by public authorities in exercise of discretionary powers.

France, Germany, UK, Poland, Switzerland, Lithuania, Denmark, Sweden, Bulgaria and others have not ratified the protocol. The UK claims that the “scope is too wide” and that the Protocol has “unacceptable uncertainties”. It was intended to go beyond the limited guarantee given by Article 14, which did not specify discrimination by “public authority”. Unfortunately, only seven of the European Union members are state parties to it. The European Court of Human Rights (ECtHR) handed down 795 judgments in 2010 proving that most EU states are not in compliance with all ECHR obligations.

Post-9/11 and 7/7, police powers were increased to allow stop and search of vehicles, spontaneous on raids houses, electronic data mining and closely monitored electronic transactions. According to a study by the Institute of Race Relations, numerous times anti-terrorism statutes have been used wrongly against Muslim defendants. The ECtHR dismissed a complaint by French Muslim girls that the ban on hijab violated their basic right to religion and right to freedom, along with right to education.

Recently, the ECtHR rejected two cases against the constitutional ban on the construction of minarets. A case, titled Mrs Dahlab vs. Switzerland, was ruled in favour of the state saying that the hijab “seemed to be imposed on women” and that a teacher was supposed to be a symbol of equality and democratic values for her pupils. Hence, Dahlab was refused the right to wear hijab during classes.

Institutionalised racial profiling is equivalent to legitimising intolerance. The paranoia that gives birth to racial profiling floats on the premise that terrorists are Muslims. Hence, all Muslims are likely to become terrorists. Racial profiling is a failed tactic used by law enforcement agencies to control crime or terrorism because there is no statistically proven correlation between the race, ethnicity or religion of an individual and their propensity to commit crime.

It is an outright breach of the ICERD, ICCPR and ECHR (Article 14), whereby discrimination on the basis of race and religion is prohibited. Certainly, international agreements are supposed to be respected: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith” (Vienna Convention on Law of Treaties 1969). So, the implementation of international law is a responsibility equally crucial as the law itself.

It is now established that it was naïve of us to think that racial profiling was a temporary post-9/11 or 7/7 phenomenon. The reluctance to ratify Protocol.12 of the ECHR is just another evidence of the extent of institutionalised racial discrimination and an inability to adhere to the normative standards that these countries have set for themselves. A reactionary phenomenon, therefore, is on its way to become a behavioural issue, which might precipitate into the alienation of Muslims in Europe if left unaddressed.
Source: The Nation