Tijdschrift voor de politie

In the Netherlands, the murder of Theo Van Gogh, the alert caused by Samir A., the arrests of members of the Hofstad Group, and also recently the March 2009 alert concerning the IKEA attack, have led the Government to undertake a programme aimed at trying to understand the process by which individuals become ‘radicalized’ to the point that they commit an act of terrorism; again, religion and religious practice was a central focus of such inquiries. Dutch anti-radicalisation efforts are one of the forms of ethnic profiling examined in ‘Ethnic Profiling in the European Union: Pervasive, Ineffective, and Discriminatory,’ a report published by the Open Society Justice Initiative in May 2009. Examining counter-terror and policing practices in the Netherlands alongside discussions of France, Germany, Italy and the UK, the report finds that ethnic profiling is pervasive across the EU.

Terrorism must be prevented, and it may seem logical to try and target limited law enforcement resources more efficiently using ethnic and religious stereotypes, given that the role of Islam in current terror threats. But this assumption is not only false, but deeply problematic on several grounds. In fact, when police and intelligence agencies rely on pejorative ethnic and religious stereotypes, targeting people because of who they are or where they pray, rather than because of what they have done, they not only betray fundamental rights to equal treatment under law, but they also reduce undermine rather than enhance safety. Ethnic profiling is a form of illegal discrimination; furthermore, there is increasing evidence that ethnic profiling is ineffective and counter-productive as it alienates the very communities whose support is key in fighting crime and terrorism.

What is ethnic profiling?
‘Ethnic profiling’ is defined as the use by the police, security, immigration or customs officials of generalisations based on race, ethnicity, religion or national origin – rather than individual behaviour or objective evidence – as the basis for suspicion in directing discretionary law enforcement actions. It is most often manifest in police officers’ decisions about who to stop for identity checks, questioning, searches and sometimes arrests. Ethnic profiling can also be used to ‘mine’ or undertake computerized searches of databases for potential terrorist suspects or in targeting surveillance and anti- radicalisation policies.

Ethnic profiling is not to be confused with ‘criminal profiling’ or the use of suspect descriptions of those involved in a specific crime. Criminal profiling, which is an explicit investigatory technique which seeks to use a defined set of characteristics to predict who might be involved in criminal behaviour. The ‘serial killer profile,’ ‘hijacker profile’ or ‘drug courier profile’ are classic examples. As long as the profiles used by police are based on factors that are objective and statistically proven to be significant indicators of criminal activity, criminal profiling is legal.

Nor should ethnic profiling be confused with ‘suspect profiles’ or ‘suspect descriptions’ which use victim or witness reports to describe a particular person or persons being sought in connection with a particular crime at a particular time and place. Personal appearance, which almost invariably includes racial or ethnic characteristics, is a core component of a suspect description. That said, when suspect descriptions are too general or vague, there is a danger that they may be used to over-target individuals who are perceived to share the same ethnicity as the suspect/s being sought by law enforcement agencies.

Ethnic profiling may result from the racist behaviour of individual officers or the cumulative effects of unconscious use of racial stereotypes, but it may also result from institutional factors such as the use of certain police tactics or a focus on specific areas or neighbourhoods that impact different ethnic groups unequally.

Ethnic Profiling in practice
Ethnic profiling did not emerge as a response to terrorism post 9/11. Evidence indicates that police across Europe have long used generalisations about ethnic minority and immigrant communities to target their actions. However, since 9/11, the interest in ethnic profiling has grown sharply with proponents arguing that it is simply ‘good policing.’

Despite a dearth of quantitative information on policing and ethnicity in most of Europe, the data that does exist indicates ethnic profiling is widespread. In the United Kingdom (the only EU member state to systematically gather ethnic data on police practices), data show dramatic increases in stops and searches of British Asians following terrorist attacks: stops of persons perceived to be of Asian descent conducted under counterterrorism powers increased three-fold following the 9/11 attacks, and five-fold after the July 2005 London Underground bomb attacks.1 In Germany, police have used preventive powers to conduct mass identity checks outside major mosques. In France and Italy, raids on homes, businesses, and mosques – often lacking a basis in specific evidence – have targeted Muslims, particularly those considered religiously observant. Numerous studies since 2001 have documented ‘a growing perception among Muslim leaders and communities across Europe that they are being stopped, questioned, and searched not on the basis of evidence and reasonable suspicion but on the basis of ‘looking Muslim’.’2

In the Netherlands, where Dutch nationals have been involved in attacks and plots – sometimes called the ‘home-grown terrorist’ the Government has taken the lead in trying to understand the ‘radicalization process’ in order to identify persons at risk of radicalisation in early phases and get them off their dangerous pathway. A number of cities attempted to operationalise these principles into specific indicators of radicalization so as to identify and offer services to persons in danger of radicalizing. To a large degree, the indicators focused on manifestations of conservative Muslim practice, conflating pious religious practice by members of Muslim communities with a tendency to resort to violence.

A 2005 evaluation report of Rotterdam’s ‘Join in or be left behind’ programme’s radicalization indicators found that seventeen cases of ‘radicalization’ had been identified and referred to social services. Although the numbers of ‘radicalizing’ Muslims so far appear to be relatively small and the consequences of being identified relatively benign, the radicalization indicators clearly target a broad swathe of law-abiding Muslims. No Muslim would be wrong feeling threatened by such a system. And feeling threatened by the authorities makes people feel more isolated and less likely to assist the government’s anti-terrorism efforts. Across the Netherlands, there appears to be a shift away from an approach that stigmatizes individuals and groups, and towards policies that address the root causes of radicalisation, such as discrimination exclusion and social polarization.3

Is ethnic profiling effective?
Despite the increasing reliance on ethnic profiling, there is no evidence that ethnic profiling stops crime or prevents terrorism. Separate studies in the United Kingdom, the United States, Sweden, and the Netherlands have all concluded that ethnic profiling is ineffective.4 Stops and searches conducted under counterterrorism powers in Europe have produced few charges on terrorism offenses and no terrorism convictions to date.

In fact, profiling reduces security by misdirecting police resources and alienating some of the very people whose cooperation is necessary for effective crime detection. When law enforcement officers engage in ethnic profiling, they are, wittingly or not, contributing to a growing sense of marginalization in minority and immigrant communities. Ethnic profiling stigmatizes entire racial, ethnic, or religious groups as more likely to commit crimes and thereby signals to the broader society that all members of that group constitute a threat.

Since 2001, the frequency of more visible forms of ethnic profiling in Europe has alternately increased and decreased in response to terrorist attacks. ‘Ethnic Profiling in the European Union’ documents the manner in which high profile targeting of Muslims such as mass ID checks outside German mosques, counter-terror stop and search in the UK, and raids on Muslim businesses and places of worship have tended to decline in the absence of further terror attacks in recent years. The move away from more overt forms of profiling is welcome, but cannot be grounds for complacency. Profiling remains prevalent in much policing and many counter-terror strategies. Furthermore, this reduction is not the result of a recognition that profiling is unlawful and ineffective, nor because of the introduction of accountability and oversight measures. Rather, it reflects the fact that all too frequently, the practice is more of a public relations tool – an effort to be seen to be doing something about terrorism – rather than a reasoned response to crime and terrorism.

Many law enforcement professionals understand these dangers. A senior U.K. police officer recently warned that ‘there is a very real risk of criminalizing minority communities’ through ‘the counter-terrorism label… The impact of this will be that just at the time when we need the confidence and trust of these communities, they may retreat inside themselves.’5

Numerous studies of policing show that when police operate on the basis of their personal judgments – that is, with a high level of discretion – they rely more on stereotypes and focus disproportionate attention on minorities, which reduces their effectiveness. Equally important, when police treat an entire group of people as presumptively suspicious, they are more likely to miss dangerous persons who do not fit the profile. Ethnic profiling can create a reverse incentive – with terrorist organisations attempting to recruit people who do not fit the profile.

Alternatives to ethnic profiling?
The solution is not to fall back on ethnic profiling but to police more intelligently. The reform of the United States Customs Service in the late 1990s demonstrates that profiling based on individual behaviour is more effective than profiling based on race or ethnicity. In 1998, the U.S. Custom Service responded to allegations of racial and gender discrimination. At that time, 43% of searches that Customs performed were on African-Americans and Latino/as. US Customs changed its stop and search procedures removing race and ethnicity from the factors considered when stops were made and introduced observational techniques focusing on behaviours such as nervousness and inconsistencies in passenger explanations; and improved the supervision of stop and search decisions. By 2000, the racial disparities in Customs searches had nearly disappeared. Customs conducted 75% fewer searches and their hit rate improved from under 5% to over 13%, the hit rate for all ethnic groups had become almost even. Using intelligence-based, race-neutral criteria allowed Customs to improve its effectiveness while stopping fewer innocent people, the vast majority of whom were people of colour.6

In 2007-2008, a pilot project undertaken by the Justice Initiative in collaboration with police forces in Bulgaria, Hungary and Spain reduced the disproportionate rate at which minorities were stopped, while increasing police efficiency. In Fuenlabrada, Spain, police achieved dramatic results by moving away from ethnic profiling and adopting new methods that emphasised the use of data and greater communication and cooperation with minority communities. In a four-month period, the number of stops declined from 958 per month to 396 per month, but the percentage of successful stops (i.e. stops that uncovered a crime or other infraction) rose from 6 percent to 28 percent.7 A key component of the Fuenlabrada success was the collaboration between police and minority communities – a factor central to effective law enforcement, but often overlooked by proponents of ethnic profiling. As leading counterterrorism experts have noted, one of the main elements of an effective counterterrorism policy is to ‘develop strong confidence-building ties with the communities from which terrorists are most likely to come or hide in.’8 This is possible, but only if those communities are not being alienated by race-based policing.

The threat of terrorism, like the everyday reality of ordinary crime is genuine and must be addressed. The challenge faced by law enforcement and governments is to do so in ways that enhance rather than undermine security and individual rights. Ethnic profiling wastes police resources, discriminates against whole groups of people and leaves us all less safe. Ending the use of ethnic profiling means changing police practices to make them more effective. The best expression of a society’s rejection of ethnic profiling is a clear law prohibiting it. Governments should incorporate an express prohibition against ethnic profiling in relevant national law, and develop operational guidelines that explain to officers the limited circumstances under which sensitive personal factors such as ethnicity and religion may be used in policing. Governments can also establish systems, with strict safeguards to remove all personal data, for gathering anonymous statistics on law enforcement activities according to the ethnicity of the persons investigated, stopped, and arrested that will provide clear evidence showing whether, where, and why ethnic profiling is occurring and support measures to address it.9 It is important that all efforts to address ethnic profiling involve those communities that are affected by these practices in both the design and implementation of all initiatives. Abandoning accepted practices and implementing new ones is not easy but it is essential that those entrusted to enforce the law do so with maximum effectiveness and full respect for basic principles of equal justice.

Ethnic Profiling in the European Union: Pervasive, Ineffective, and Discriminatory[/cursief] is available at: http://www.soros.org/initiatives/justice/focus/equality_citizenship/articles_publications/publications/profiling_20090526

De term ‘Ethnic Profiling’ (EP) is binnen Nederland nog redelijk onbekend. Eenvoudig gesteld wordt hieronder verstaan het, al of niet bewust, vooringenomen controleren door handhavings- en opsporingsambtenaren van personen slechts op grond van uiterlijke kenmerken (ras, etniciteit, maar ook seksuele geaardheid, soort kleding en dergelijke). Onderzoek in Europa door de organisatie Justice Initiative heeft aangetoond dat deze houding en werkwijze van professionals ten opzichte van leden van minderheidsgroeperingen discriminerend, ineffectief en inefficiënt is. Discriminerend, omdat bij controles onderscheid gemaakt wordt naar afkomst, ras en dergelijke waarbij kennelijk een echte concrete verdenking ontbreekt. Ineffectief, omdat dit soort controles slechts in beperkte mate ‘iets’ op blijken te leveren en het daarnaast de relatie met minderheidsgroeperingen ernstig schaadt. Inefficiënt, omdat schaarse politiecapaciteit beter ingezet kan worden op activiteiten, die er echt toe doen.

De SMVP is gevraagd ‘awareness’ rond dit begrip onder de Nederlandse handhavings- en opsporingsinstanties te bewerkstelligen. Daartoe organiseert zij in oktober 2009 in samenwerking met de regiopolitie Amsterdam en het LECD een zogenaamde ‘closed doors’ conferentie. Hiervoor worden functionarissen uit de top van de Nederlandse politie, de KMar, het OM, de BOD-en, alsmede van de ministeries van Justitie en BZK op naam en functie uitgenodigd.

Op de conferentie worden de deelnemers bekendgemaakt met het begrip EP en met onderzoek naar het verschijnsel in Europa. Vanuit wetenschap, mensenrechten- en migrantenorganisaties, maar ook door allochtone politiemensen, zal aangereikt worden wat de effecten zijn van dergelijk handelen op de relatie met minderheidsgroeperingen, de legitimiteit van de politie, de informatieorganisatie en zelfs op de terreurbestrijding. In workshops zal gevraagd worden of EP herkend wordt in de eigen praktijk, en zo ja of dit dan past in het multicultureel vakmanschap dat voorgestaan wordt.

Het idee is om aan het eind van dit symposium een soort van resolutie aan te nemen, waarin een gezamenlijk standpunt ingenomen wordt tegen toepassing van EP en waarbij uitgesproken wordt dat nader onderzoek in de Nederlandse politiepraktijk gewenst is.

Piet Deelman/SMVP