Religious Profiling, Statistical Discrimination and the Fight Against Terrorism in Public International Law

Abstract

This article qualifies the phenomenon of religious profiling, e.g. law enforcement measures based on probabilistic generalisations about religious affiliation, not in terms of the binary concept of racial criminal profiling, but rather as an example of the more general phenomenon of statistical discrimination. Assessed in the light of international non-discrimination guarantees, notably Article 26 ICCPR and Article 14 ECHR, every form of unequal treatment on grounds of religion must be justified, even if religion constitutes only one factor among a multitude of factors making up the profile of a suspected terrorist. The fight against terrorism, which is recognised as a legitimate aim in international law, may, in principle, justify profiling measures if they are proportionate. The corresponding considerations of proportionality are structured by the properties of statistical discrimination. As a result, “religious profiling” can be justified in narrow circumstances – circumstances that might typically also qualify as “suspect description reliance.” However, the proportionality approach is more comprehensive and hence more adequate.

Keywords: religious profiling, racial profiling, statistical discrimination, non-discrimination, terrorism, travel ban, Islam, public international law

JEL Classification: K10, K33