SECURITY & COOPERATION IN EUROPE:
U.S. HELSINKI COMMISSION
ETHNIC AND RACIAL PROFILING IN THE OSCE REGION
PLAINTIFF, WILLIAMS V. SPAIN
OPEN SOCIETY JUSTICE INITIATIVE
DIRECTOR, HUMAN RIGHTS PROGRAM
AMERICAN CIVIL LIBERTIES UNION
THE HEARING WAS HELD FROM 2:00 TO 3:30 P.M. TIME IN SVC 201/200, WASHINGTON,
D.C., [MISCHA THOMPSON, POLICY ADVISOR, CSCE], MODERATING
MONDAY, MARCH 22, 2010
MISCHA THOMPSON: Good afternoon. I’m Dr. Mischa Thompson with the U.S.
Helsinki Commission. I think as many of you may know, Sunday marked the
international day for the elimination of racial discrimination. I’m happy that
you’re able to join us today to discuss racial and ethnic profiling, an issue
that is critical to efforts to eliminate racial discrimination, which is also
unfortunately a prevalent issue in the 56 North American and European countries
that make up the OSCE region.
Helsinki Commission chairman Sen. Ben Cardin, co-chairman Alcee Hastings and
other commissioners began efforts some years ago to combat intolerance and
discrimination in the OSCE region. Now, five years later, the OSCE has an
established tolerance unit that publishes an annual hate crimes report, has
three personal representatives to address these issues and has developed
numerous initiatives to address prejudice and discrimination.
The issue of racial or ethnic profiling within the OSCE region is one that is
common to many OSCE countries and has been raised repeatedly. In particular,
the commission, U.S. government and organizations such as the American-Arab
Anti-Discrimination Committee and Human Rights First have called for a response
to the profiling of Roma, Muslims, persons of African descent or blacks, and
other groups in Europe and in the U.S., and it’s often been raised in the
context of combating hate crimes.
The OSCE’s high commissioner on national minorities has convened experts to
discuss the issue of multiethnic policing, which resulted in numerous
recommendations, specially, and I quote, “the experts recommended that measures
should be taken to ensure that police enforce the law in an impartial and
nondiscriminatory manner, which does not single out any particular group, for
example, by engaging in racial profiling.” Additionally, the report called for
diversity in law enforcement.
Despite these efforts, the issue of profiling is not going away, and one could
argue, has become more challenging to address amidst government efforts to
fight terrorism. Today, our panelists will discuss the situation in the U.S.
and Europe, and international approaches for addressing the problem.
I am especially pleased that our guest from Spain, Rosalind Williams, was able
to adjust her schedule at the last minute to be here to speak with us about her
historic case. And I would also like to welcome Rachel Nield, an expert from
OSI, who has worked across Europe on this issue; and Jamil Dakwar, who has
raised the U.S. case at the United Nations and within the OSCE. Ms. Williams?
ROSALIND WILLIAMS: Thank you, Mischa, and I – Dr. Thompson, I welcome this
opportunity to share my experience with all that would like to be aware of it.
As was pointed out just now, the idea, or the concept of racial profiling
rather than being decreasing is increasing.
I am a citizen of Spain. I also am a citizen of the United States. Citizen of
the United States by birth; I was born in New Orleans. And as of a
year-and-a-half age, my parents took me to San Francisco. So I was educated in
San Francisco, resided there, went to college there. And through my college in
San Francisco, I first went to Spain on a junior year aboard program, and met
during that year I was there, a person who was born in Spain, is a Spanish
national and white: my husband, whom I married in 1968.
In 1968, prior to going to Spain, I was working in New York at the U.N. for two
years and decided to return to Spain and established it after we were married
at Christmastime as my permanent residence – and at that time, upon marrying a
Spanish national, acquired by married Spanish nationality. I mention this
because this is important as background for how what I did and am doing was
actually carried out.
All right, what exactly happened? What happened was on December 6, 1992, I was
traveling with my family – with my husband and my son – to a regional capital,
regional city, close to Madrid, two hours north of Madrid – Valladolid – by
train. As I stepped off the train, I was approached by a gentleman who turned
out to be a plainclothes policeman who asked me for my ID.
Now, as a Spanish citizen, as all Spanish citizens, you are required to carry
with you at all times your national identification card, which I always have
done since 1968. Since I had never, ever been asked for my ID and I noticed
that no one else was being asked for their identification, I asked him just
very spontaneously, why? At which point, both my husband and I asked him, why?
He said, because we’re looking for people like her. And we asked him, what do
you mean, “Like her?” And my husband said, because of the color of her skin?
He said, yes, because there are lots of illegal immigrants like her. At which
point – as was asked at our meeting just recently in New York, what was my
reaction – my reaction was, I was totally dumbfounded. I was without words.
To make a very long story short, the next day – oh, I must say parenthetically
that December 6th is a national holiday in Spain and is called the national day
of the constitution. So I filed a complaint the next day with the local police
station. And once we were back in Madrid because it was a four-day weekend, I
sought legal assistance because I knew I would have to go to this town perhaps
to be in court, et cetera. And what we were looking for was a specialist in
constitutional law because what I was questioning was the constitutionality of
what had happened to me as a Spanish citizen.
And at the same time, since at that time in 1992, Spain had supposedly the most
modern constitution in Europe, I, again, was dumbfounded. I said to myself,
how on earth can a country that has such a modern constitution actually employ
To make a very long story short, the lawyer was not pro bono, as is the case.
Such a system does not exist in Spain nor is there a Spanish version at that
time of the American Civil Liberties Union – (chuckles) – therefore this was an
effort which we had to support with personal funds.
All right, so from 1992 to 2001, the case was taken through the Spanish court
system. And each time it was rejected, we appealed. So this happened a total
of between four and five times, all right.
After it was thrown out, it finally reached a dead end which was called the
constitutional court. It was rejected saying, yes, in essence, citizens of
Spain could be stopped for their ID based on the color of their skin after nine
years. So I was found – I didn’t look for it but found by two organizations in
Spain. One was Women's Link Worldwide, which was working directly with the
Open Society Justice Initiative. And through these organizations, the case was
taken to the United Nations Human Rights Committee, which ruled after
deliberating – it was presented in 2006; the actual case was considered and
deliberated 2008, 2009; and a decision was arrived at in July of 2009.
All right, the suggestion was that I be offered a public apology on the part of
the government in Spain, that reparation be provided and that measures be taken
on the part of the Spanish government to put in place laws, et cetera, that
will prohibit such an incident as I experienced.
I after that received invitations on the part of several very high-level
authorities to meet with me on a one-on-one basis, expressing their apologies
on the part of the government, expressing an interest in seeing how some
reparation could be made and also expressing the fact that there were certain
measures in the form of laws being considered on the drawing board on the part
of the government. Yet, the actual, I would say, suggestions that the
committee had made, put forth, have not fully been met.
I think that’s about it in a nutshell. I stayed under the time limit.
RACHEL NEILD: Thank you very much, Mischa. My name is Rachel Neild. I am a
senior advisor with the equality and citizenship program of the Open Society
When we use the term “ethnic profiling,” what we describe is when law
enforcement target people because of who they are rather than because of what
they have done. This is a form of discrimination that is illegal under
international and under European law. It is humiliating and hurtful to the
people and to the communities who are thus targeted, but it is also ineffective
and even counterproductive law enforcement. It’s sparked major riots in a
number of European cities. It’s clearly eroding trust in law enforcement and
alienating communities whose help is much needed both in addressing current
terror threats to national security and in generally addressing public safety
issues in communities everywhere.
Yet while we are quite familiar with this issue in the United States and in my
original home country, the U.K., in most of continental Europe, the question of
law enforcement discrimination or ethnic profiling has gone unrecognized until
The Open Society Justice Initiative launched our project in this area in 2005
to try to address this gap. And it was indeed Rosalind’s case precisely that
drew our attention to it, and made us realize that when looked, there was a lot
of evidence but not quantitative data and very little research being done to
understand the full dimensions and the dynamics of ethnic profiling.
So our project works on three broad strategies. We advocate for new legal
standards in policing policies, we conduct research to try to find out what is
happening and draw greater public and political awareness to it. And we are
also working with police in communities to identify and promote good practices
in policing diverse communities where there is interest and the will to
Our research has produced some of the first quantitative on police practices in
a number of EU states, and I left some of our reports on the table outside.
They’re also available on our Web site.
The results where we’ve been able to generate quantitative data have been the
same. Visible ethnic minorities are far more likely to be stopped and
questioned by the police. We found rates that range from three times more
likely – this is what’s called an odds ratio; if you are Roman, black, Arab,
whatever, you were three times more likely to be stopped than any white person
– to rates up to 14 times more likely to be stopped. In fact, we did some
research in Moscow where the peak disproportionality was 21 more times likely
to be stopped if you were, in that case, non-Slav than if you were a Slavic
Russian. These are extremely high disproportionalizing rates; much higher than
we see in the U.S. or the U.K., where the top rate is about 8-to-1.
Yet, where we’ve been able to get data on the outcome of these police actions,
we’ve only one very, very specific exception: the ethnic minorities who have
been no more likely to be detected offending than the majority group. In fact,
in a number of cases, the ethnic minority groups are far less likely to be
offending than the majority group.
In addition to the pejorative and inaccurate stereotypes about minorities and
offending, which underlie the use of this profiling by law enforcement, two
further factors today are driving ethnic profiling in the European Union. The
first is a reliance on stereotypes about religion and the propensity to violent
extremism that underlies many European counterterror practices.
In May last year, we published this report, “Ethnic Profiling in the European
Union,” which presents evidence of the use of ethnic and religious profiles in
a range of counterterror practices by police and intelligence services. We did
field research in five countries for this report and used data that was already
available in the U.K.
We’ve identified a range of counterterror powers and tactics where law
enforcement is relying on religious stereotypes and stereotypes about national
origin more than they are on intelligence. From counterterrorist stops and
searches, mass ID checks, raids on Muslim places of business and places of
worship to data mining using profiles focused on religious and ethnic criteria
to efforts to detect people who may be in the process of radicalization, or
that is, becoming the so-called homegrown terrorist.
We found evidence in all of these practices that they relied heavily on
stereotypes about religion, about national origin and ethnicity, yet we found
no evidence that these practices had helped to detect terrorists.
Indeed, what is worrying and analytically I think kind of speaks for itself is
the evidence that profiles because they are predictable are open to evasion and
substitution. When we look today at this country and others, Jose Padilla,
Richard Reid and now Jihad Jane are the manifestations of this possibility of
evasion or substitution. People of different origin and appearance can simply
be substituted for those who fit the profile. To be effective, both ordinary
policing and counterterrorism must be based on solid intelligence and not in
The second factor driving ethnic profiling in Europe that has increased in
recent years is the aggressive enforcement of immigration controls. In some
cases, politicians have actually set numeric targets for police to stop and
search people, detain them and deport them. Unsurprisingly, the police
response to this is to go out and stop and search visible minorities. Indeed,
it’s hard to imagine what else they would do in response to such targets.
In a Europe that is rapidly becoming increasingly diverse with second and
third-generation native-born peoples of immigrant origin, these policies are
driven by outdated assumptions about ethnicity and nationality, and they impose
a deeply unfair burden on those second and third generations, and indeed, on
all legal immigrants into the EU.
I will end – as we’ve been asked to be very brief and allow time for questions
– (chuckles) – by noting that although this is a disturbing picture, there has
been increasing recognition of the issue amongst European nondiscrimination
bodies and also to some degree, I don’t want to overstate, but within police
In our project, we focus not just on the research and litigation, but as I now
said, have been working to identify and promote stronger norms and good
practice in law enforcement. We’ve had partnerships with a number of law
enforcement agencies and undertaken local pilot projects, and we were very
We had particular success in one area, which clearly demonstrated that you can
in fact address ethnic profiling in a manner that reduces disproportionate
thoughts of ethnic minorities, but at the same time, increases the efficiency
with which police use their powers. Basically, in this area, the hit rate on
police stop-and-search – that is, the number of times they detected an offense
– went up three times because they were thinking about who they were stopping
and why, and not using stereotypes.
So I will just wrap up by saying I think that much remains to be done. We need
to still gain far greater recognition of the issue, we need to strengthen legal
norms prohibiting discrimination in law enforcement and we need to broaden the
knowledge and adoption of good practices. But where continuing to work in this
area, we’re finding more and more partners and resonance on the ground in
different European countries. And I look forward to answering any questions
that you have on any of these topics. Thank you.
JAMIL DAKWAR: Let me first thank Mischa and the commission. The Helsinki
Commission has been instrumental in putting a spotlight on human rights
violations in the United States, as well as aboard, and more importantly,
connecting the dots between the different global trends in the OSCE region,
including the U.S. and Canada as the two members outside the European
continent. So I really would like to say thank you for the efforts,
particularly around the role that the Helsinki Commission played around the
U.S. review before the CERD committee – the Committee on the Elimination of
The Helsinki Commission has issued a statement at a time when the committee
made the recommendations, and also later on, sponsored a resolution that was
very important to provide support for the International Covenant (sic) on the
Elimination of All Forms of Racial Discrimination.
It’s also important that the timing coincides with the international day
against racial discrimination. And 50 years ago, with the Sharpeville
Massacre, which basically is the reason why the world every year on the 21st
commemorates or remembers this day as the international day against racial
discrimination. But 66 people were killed and hundreds were injured when the
South African apartheid regime cracked down on peaceful protest at the time.
So I think it does have this important context in how this massacre and gross
violations of human rights in that context leads us to think about how do we
continue to improve the situation while we know that much has happened since
then, both in South Africa and in the United States, but we have to think of
how much we have to go further in promoting human rights and ending racial
The historic fight against racial discrimination and racial bias in the United
States continues and has perhaps become more challenging in the 21st century.
Although fewer de jure forms of discrimination remain in existence, de facto
racial disparities continue to plague the United States and curtail the
enjoyment of fundamental human rights by millions of people who belong to
racial and ethnic minorities.
Policies and practices that appear race neutral but disproportionately restrict
the rights of freedom of people of color are difficult to challenge, and
establishing their discriminatory nature in the public consciousness and among
policymakers in an uphill battle. Racial profiling by law enforcement and the
correlating criminalizing of people of color provide one such example. Despite
overwhelming evidence of its existence, often supported by official data,
racial profiling continues to be prevalent and an egregious form of
discrimination in the United States.
Both the Democratic and Republican administrations have acknowledged that
racial profiling is unconstitutional, social corrupting and counterproductive.
Yet this unjustifiable practice remains a stain on American democracy and an
affront to the promise of racial equality.
Since September 11, 2001, new forms of racial profiling have affected a growing
number of people of color in the U.S., including members of Muslim, Arab, South
Asian communities. The Obama administration has inherited a shameful legacy of
racial profiling, codified in official FBI guideline in a notorious
registration program that treats Arabs and Muslims as suspects and denies them
the equal protection of the law, and even the presumption of innocence in the
As noted by Rep. John Conyers, “Since September 11th, our nation has engaged in
a policy of institutionalized racial and ethnic profiling. If Dr. Martin
Luther King were alive today, he would tell us we must not allow the horrific
acts of terror our nation has endured to slowly and subversively destroy the
foundation of our democracy.”
Equally troubling has been the federal government’s encouragement of
unprecedented raids of immigrants, particularly Latino communities and
workplaces, by local law enforcement in cooperation with federal agencies.
These policies have unjustly expanded the purview of an undermined basic trust
in local enforcement, alienated immigrant communities and created an atmosphere
According to recent reports by the Leadership Conference on Civil and Human
Rights and the Southern Poverty Law Center, inflammatory anti-immigrant
rhetoric has led to a dramatic increase in hate crimes against and racial
profiling of Latinos.
The report that the ACLU and Rights Working Group released last summer analyzed
the prevalence of racial and ethnic profiling on the federal, state and local
levels. The report found that racial profiling constitutes one of today’s most
significant challenges to equality.
While the U.S. Constitution prohibits racial profiling and the international
community has defined racial profiling as a violation of human rights,
profiling continues to impact millions of people in the African-American,
Asian, Latino, South Asian, Arab and Muslim communities.
All over the country, racial and ethnic minorities very often are investigated,
stopped, frisked or searched based exclusively upon who they are and what they
look like or what faith they practice without any identifiable evidence of
illegal activity. The disproportionate rates at which racial minorities are
stopped and searched, in addition to the often high concentrations of law
enforcement in minority communities continues to have a tremendous impact on
overrepresentation of minorities in the American criminal justice system.
The report was submitted to the U.N. Committee on the Elimination of Racial
Discrimination as part of the follow-up process to the committee review of the
U.S. progress – or, U.S. implementation and compliance with the international
covenant on the elimination of all forms of racial discrimination.
Unfortunately, the report represents only the tip of the iceberg, and a variety
of additional examples of the widespread nature of racial profiling no doubt
Last fold, in response to the report that we submitted and in response to the
follow-up report that was submitted by the Bush administration literally in the
last days of the Bush administration, the U.N. Racial Discrimination Committee
sent a letter to the Obama administration expressing concern about the U.S.
government’s lack of progress in addressing racial discrimination. The
committee urged the U.S. to pass legislation prohibiting racial profiling and
to end immigration programs that foster profiling. The committee’s
observations are still being studied by the Obama administration and no
response was submitted to the committee.
As an Illinois state senator, President Obama broadly championed state
legislation to end racial profiling. And as a U.S. senator, he cosponsored the
End Racial Profiling Act, which was first introduced in 1998. He appointed
Attorney General Eric Holder to head the Justice Department, and Attorney
General Holder has stated that racial profiling is not good law enforcement –
and he said that his Justice Department is committed to combating the practice
of racial profiling.
While the Obama administration has taken some steps to address racial
profiling, such as an opening investigation into the anti-immigrant practices
of Arizona’s Sherriff Arpaio, harmful policies from the previous administration
For example, the Obama administration is continuing the Bush policy of allowing
the federal government to aggressively transfer substantial responsibility of
civil immigration laws to state and local enforcement, resulting in the
increased profiling of people of color suspected of being undocumented
Most notorious among these initiatives is the 287(g) program, which has been
criticized for encouraging the harassment of both immigrants and U.S. citizens,
particularly in Latino communities, furthering the marginalization of
Moreover, in the wake of recent events, such as the Fort Hood shootings and
attacks and the failed Christmas Day bombing attempt, some have placed fear and
bigotry over due process and basic human rights.
Earlier this year, the Obama administration announced that citizens from 14
nations, almost all predominantly Muslim countries with the exception of Cuba,
will be subject to increased scrutiny and security measures. These measures
will not make us safer and will only serve to further stigmatize broad groups
The report, which includes very detailed recommendations, calls for national
legislation to end racial profiling, particularly with an emphasis on covering
all kinds of profiling, and without no exception that would allow the
government to use them in order to profile people based on stereotyping.
The report also comes up with a recommendation to review all policies and
programs, and to replace them with more effective and fair policies that
prohibit the use of race, or national origin or religious affiliation in the
practice of racial profiling. And it also calls for the suspension and end of
the anti-immigrant enforcement programs such as 287(g).
The report also includes an important recommendation that deals with
transforming the civil rights commission into a civil and human rights
commission that will be able to monitor effectively human rights violations,
particularly a practice like racial profiling.
It also includes recommendations about anti-profiling trainings that are
lacking in the law enforcement agencies, to bolster oversight and transparent
complaint procedures, and more importantly, to end some of the – or to revisit
some of the guidelines that have been issued by the former administration,
including the Justice Department guidelines on the use of race in law
enforcement agencies. Thank you.
MS. THOMPSON: Thank you. And actually, we’re going to begin, in a sense, the
Q&A and discussion part of this briefing. And as the moderator, I think I’ll
take the privilege of asking some of the first questions.
I actually wanted to start with Mrs. Williams in really asking, I think, first,
during this time – I think, during this close to a decade, or actually over a
decade, in which you’ve, I think, been waiting for this situation to be
addressed, what has been the response of the Spanish public? And I think,
also, how have things either changed or not changed in specific regards to
profiling in Spain?
And I’ll preface that by saying that I visited Spain a couple of years ago now
and actually spoke with a few NGOs that were charged with responding to persons
who really had experienced racism, or hate crimes, et cetera. And the one
thing that I was actually told during that time is, often times, people didn’t
actually report incidents of discrimination – so whether it was housing, some
type of violent hate crime that was committed against them, et cetera – and
part of the reason was, is they were afraid to actually go to the police to say
anything, and it was in a direct relation to being racially profiled. And in
some cases because people were illegal, they actually thought that they might
then be arrested, or something of that nature.
MS. WILLIAMS: I think the first thing we should actually point out is that,
number one, to answer the second part of your question first, there has been an
increase. In the last 17 years, or 18, almost, since I began this case until
now, there has been an increase in racial profiling throughout the country.
Not only in Madrid, not only in Valladolid where this happened to me, but in
other areas of the country.
Now, there has been an increase also in the multicultural aspect, the
multiethnic aspect of the Spanish population. So in essence, there has been an
increase in illegal aliens and illegal immigration. Nonetheless, as Rachel has
pointed out, racial profiling does not solve the problem. You cannot find
certain, say, segments of society through racial profiling.
In my case, most people in Spain, more or less, as I mentioned earlier, I was
received and requested to meet one-on-one with high-level officials. And
high-level meant the minister of foreign affairs and cooperation; the second in
charge of the ministry of the interior, which is equivalent here to Homeland
Security; and I received a letter from the minister of interior.
In all three cases, there was an expression of an apology on the part of the
government, in the name of the government. In all cases, I think all of them –
well, I didn’t meet with the minister of the interior – but with the minister
of foreign affairs and cooperation, and the person in charge of U.N. affairs,
director-general of U.N. affairs for the ministry of foreign affairs, was more
or less – they were all surprised at my perseverance; more or less surprised
that we would proceed to do this for as long as it happened.
I think the most important thing, as you mentioned, in Spain, people do not
really understand their privilege as a citizen of a democratic society, nor
their responsibility. Now, at one point, one attorney who helped me find the
specialist in – the attorney who’s a special in constitutional law – pointed
out to me – he said, this happened to you in Spain as a Spanish citizen, but
you’re proceeding to fight it as an American.
Now, I think most people either give up because it is laborious, it’s
unpleasant, the actual incident was humiliating. Number two, you really don’t
know what to do. So in my case, I was actually able to ask a friend of mine
who was a journalist, American bureau chief for Associated Press. When I told
her what had happened, she suggested I go to a journalist in the area where the
incident happened who was a colleague of hers.
This particular gentleman suggested that I go to the police station and file a
complaint. When we went to the police station, the policeman who was in charge
of taking complaints would not take it – would not take it. And at one point
in time – as I mentioned to you earlier, my husband is Spanish, from Spain, and
I never call him darling, even though he is – I turned to him, and I said the
Spanish equivalent, well, darling, I guess we have to go and have lunch, and
come back with a notary public to file a lawsuit. Because I knew according to
Spanish law you can file a complaint, and as long as it’s notarized, it’s a
So to answer your question – I’m doing it in a roundabout way – most people
give up, most people don’t know what they can do and most people are afraid.
Now, this is another – your might have seen in our bios – in my case I’m an
artist – a practicing artist – and curator of photography. Therefore I work
for myself. I don’t have to worry about maybe being fired from my job, or not
being hired, or people in, say, a coffee shop at work not wanting to sit next
to me and eat with me. So in reality, I’m more or less a free spirit, right?
I’ve lived in Spain for 40 years. I’ve lived there under Franco. Spain is a
very new – it’s only been a democracy a little bit more than 30 years – in this
recent epoch of democracy for only 30 years. Therefore I felt that it was my
duty and my privilege to be able to at least try to see if what had happened to
me could more or less be at least fought. Does that answer your question?
MS. THOMPSON: You actually make me want to hear more. (Chuckles.) But
actually, I think we’ll go on to Ms. Neild for just a second and actually raise
the question of what, I guess, similarities and differences have you found
between looking at Spain and other countries within Europe, and I think in
several regards. I think, first, this idea of if this happens to someone, how
it is they even report the issue – you know, first at the local level, and
then, if you need to use the courts, how that actually works and so forth. And
I think later we can get a little bit more into, you know, specifically what
you’ve done in terms of training and some other things.
MS. NEILD: Sure. I think one of the things to think about looking at these
issues in Europe is the nature of migration. So you have some countries like
France, England to a degree, the Netherlands and Germany that have had fairly
large-scale migration for quite some time. There are some important
differences between them in terms of how they nationalize people. And then you
have other countries, and Spain and Italy really stand out at the moment, who
have been historically net-sending countries, not receiving, but in the last 10
years, being on the Mediterranean coast and part of the EU, have really faced a
massive influx, as Rosalind mentioned.
And the numbers are quite staggering, actually. Frankly, I don’t actually
recall them at the moment. It’s like 5 million people who’ve gone to Spain in
the last decade. Some are going home now, but Spain has become from being a
very homogenous country a very multiethnic country, at least in the large urban
And the response to this, unfortunately, and not entirely surprisingly, has
been to some degree of racism and xenophobia, and really deeply ingrained
prejudice in law enforcement. You hear a lot – oh, all of the crime is
committed by immigrants. Well, there was actually crime in Spain before
immigrants arrived, surprisingly enough. (Chuckles.) And it was in Spain
where our data found much lower offending rates, actually, amongst migrants
than the Spanish national population.
The current situation has, as Rosalind notes, has gotten considerably worse
because of the economic crisis. Spain’s doing quite badly. But it’s really –
but also because Zapatero, the president of Spain, had a fairly positive
immigration policy, and actually opened nationalization to many people, faced a
very strong political backlash against that and has now clamped down. So in
Spain they’re actually calling on the police to round people up.
However, they’re also doing this in France, where you don’t have a massive wave
of recent migration, where you’ve got a very longstanding multiethnic society
and a very deeply held notion about Frenchness that includes the overseas
territories, as they call it. And they’re also, with the right-wing government
this time, there are numeric targets to round up immigrants.
So while there are sorts of national distinctions, there’s a broader dynamic of
law enforcement discrimination driven by the three factors I mentioned: the
stereotypes about who commits crime, anti-immigration and now counterterrorism.
And you see the responses to this. We were probably most aware of the riots in
France in November 2005. But these have actually – we don’t see it in our
press because they’re not necessarily quite as big – but there are public
disturbances in cities, in inner-city areas, going on all across Europe.
In Denmark, in a neighborhood in Copenhagen, just over a year ago there were
riots with cars set on fire provoked by the police stopping and handcuffing an
elderly Pakistani gentleman. I was just in Belgium, and the Belgian police
were describing areas of Brussels – no, don’t laugh – as no-go areas for the
police. And you hear this a great deal in countries all over the EU.
MS. THOMPSON: Okay. Actually, I’ll just let you comment because I really had
this feeling, as she was talking, that you were also visualizing some of your
cases in cities, and so I’ll let you respond. And then I think we’ll go ahead
and open it up to the audience.
MR. DAKWAR: Sure, and I also want to acknowledge my colleague, Jumana Musa,
who’s sitting here from the Rights Working Group that we worked together on,
putting together a report. And obviously, what we are seeing – and it’s also a
lot of information that was gathered by local organizations working on the
state level – that this phenomenon of targeting and profiling immigrants,
migrants, because they appear different – brown people, black people, of course
– that is something that is prevalent and is actually something that’s
happening across the board.
And what we have been raising concerns about are those kinds of programs where
you have the national, federal government providing and deputizing local
enforcement to engage in those sorts of policies of enforcing civil immigration
laws; that historically has not been the traditional role of local law
So instead of maintaining the trust between communities at the local and state
level, which is imperative and important for any successful law enforcement in
the challenges of all kinds of crimes, and so on, you’re having diverted
resources to actually breaching this kind of trust. And you’re seeing that
there are people who are being set in a moment of siege. And I think a lot of
people – thousands who demonstrated yesterday – have also sent that kind of
It is also a matter of what’s the national – what is the federal government
doing about that? And I think, as I said in my opening remarks, we have heard
that this administration, the Obama administration, is very committed to
fighting racial discrimination, and racial profiling in particular. We have
seen two investigations launched in particular, looking at racial profiling –
the Sheriff Arpaio in Arizona, and the East Haven, another investigation that
was opened in December of last year.
But yet, we have not seen the kinds of comprehensive review and revisiting the
previous administration’s policies, and particularly, allowing law enforcement
to use race and national origin in conducting their work. For example, the FBI
guidelines from 2003 – sorry, the Justice Department guidelines from 2003 that
specifically addressed the issue of the use of race by law-enforcement agencies
have many loopholes. And that actually carved out some sort of an exception
for the use of racial profiling.
For example, national origin, religious appearance or religious background
would not be part of the prohibited basis for conducting law-enforcement work.
It does not apply to local law enforcement. It doesn’t have an enforcement
mechanism. It doesn’t have the enforceability in terms of knowing that the
agencies or the officers who would be violating that will actually be punished
for engaging in racial profiling.
And then you have the more recent policies, particularly the FBI guidelines
that were issued by former Attorney General Mukasey, which clearly gave the FBI
kind of an authority to use race as long as it is not the only factor. Of
course, race will not be the only factor in most of them, if not 99 percent of
the times. So as long as race and national origin is not the only factor, that
was given as a matter of an authority. So we are still hoping that the Obama
administration and the attorney general will revisit those guidelines, and we
know that there is a task force that is reviewing the DOJ, Department of
Justice guidelines from 2003.
Unfortunately, this process hasn’t been as meaningful and transparent as we
would like it to be, to allow input from civil society, from NGOs, from all
sorts of groups, based on the experience that we have over the last seven to
eight years. But clearly we are seeing some movement; it’s not the movement
that we would like to see in putting behind those kinds of policies that really
were counterproductive to what the administration wanted to achieve.
And certainly the failed attack on Christmas Day had all those kinds of
examples of showing that this is a case where it was not about profiling and
stereotyping the entire community, whether people coming from Nigeria, or
Muslims, or Arabs, but rather, looking at the individual behavior, and really
engaging in old-fashioned policing work: Look at the criminal behavior.; let’s
see whether there are any suspicions there of any wrongdoing. But rather than
sticking a profile to the entire community, whether people coming from a
particular country – and then you have those situations where, now,
organizations are evading those kinds of profiling.
And you heard the Jihad Jane, or Jane Jihad example – even women who are white,
not appearing in any way suspicious to law enforcement, have been involved in
all sorts of things. So I think we have to look at those things in context,
and I truly was thinking about all those examples when I read and when I heard
the summary of the report – the OSI report.
MS. THOMPSON: I’ll say, if anyone wants to ask questions, you can use this
microphone here. I’m actually going to bend it around and you can come to the
front. And just to allow people to have time to come to the front, I’ll also
ask Ms. Neild. You, I think, also mentioned in your recommendations in the
report to focus on behavior, actually, as a mechanism also for trying to find
persons who may be a potential terrorist or committing crimes. And I was
hoping you could talk a little bit about that and actually how or if that
recommendation is being used in the countries that you’re worked in.
MS. NEILD: We specifically call for a reliance on intelligence – both
counterterrorism and policing, and in immigration, that good intelligence is
the basis to identify behaviors that give grounds for reasonable suspicion that
someone’s actually done something.
I think I mentioned very briefly in my opening remarks that we did have one
exception where we found a minority group that was offending at a greater rate.
It was in the city of Girona in Catalonia, where we were working with the
police to introduce stop forms.
And the one group we found with a higher offending rate of the minority groups
we were monitoring was Roma women – Romanian, actually. What was happening was
there was a lot of shoplifting going on in a certain downtown area, the
downtown area with lots of shops. And they had a pattern where in the
afternoon women would go in these shops with large shopping bags lined with
aluminum foil to evade the metal directors.
And so the police were going in, and they would stop in and search – and women
they found with long shopping bags, which looked like they met this criterion.
Sadly, this appeared to have some ethnic degree of socialization, and they
stopped a lot of Romanian women doing it. But what was interesting to me about
that one was if you interrogated why the stop was happening and what was going
on, it wasn’t per se because they were Romanian, it was because they were in a
time, a place, based on a crime pattern in that time and place. And I think
when we look at effective policing, that is what you’re going to see.
The problem is a lot of policing isn’t actually necessarily done to catch
people doing wrong things. It’s done to impose control on populations. It’s
done to maintain a certain form of social order and it’s done to exert power.
And in (swap ?) countries, I think that’s what we see happening a lot.
In France at the moment, there is a huge problem around Paris in the outlying
areas with youth. Their unemployment rates are far, far higher. They’re stuck
in these, sort of, basically ghettos. And there is just an appalling level of
confrontation right now going on with the police. And it really needs
addressing because using aggressive stop and search to say we’re in control is
simply, sort of, throwing matches into a tinderbox, frankly. Really they need
– they need decent jobs and they need education, but they also need the police
to back off and to stop socializing more broadly this attitude that they’re all
potential criminals and about to do something.
On the behavior – so I’m a little bit cautious with the idea of behavioral
profiling because I think it’s something where most of us are not clear as to
what we’re talking about. There is a lot of interest in behavioral profiling
and there’s a lot of marketing of behavioral profiling, a great deal of it
coming out of Israel.
Some of it is quite interesting. I actually was invited to observe a training
in Schiphol airport – not in the airport where Abdulmutallab went through
because he was in transit but in the area that surrounds Schiphol airport,
there’s a train station. You can go right from the train station into the
planes and that area is patrolled by the Dutch military police.
And an Israeli private company was training them in behavioral profiling and we
watched them for half a day and it was actually – it was fascinating. They
asked me not to talk publicly in a lot of detail about what they were doing,
but it really was very interesting and was very behaviorally focused. It was
about looking for people who weren’t following normal patterns.
That said, there’s other people who are out there talking about behavioral
profiling and then they put these indicators and they’re things like wearing a
heavy overcoat when it’s too hot, mumbling, wearing rosewater. For what you
see is a lot of what these supposed behaviors are, are in fact proxies for
religion. And it’s not about behavior at all. It’s another religious
So I think that before one sort of endorses behavioral profiling as somehow
being better than ethnic or religious profiling, you need to what the actual
practice is and what the outcomes that it’s producing are and be clear on that.
MS. THOMPSON: Okay. And we have a question coming from the audience.
Q: First, I apologize; I came in late and so I didn’t hear Ms. Rosalind’s
presentation. I just wanted to follow up on Dr. Thompson’s first question.
How has the government of Spain implemented the decision of the Human Rights
Committee that they made – that the committee made in 2009? What are they
doing? What’s their reaction?
MS. WILLIAMS: Well, the reaction, I – the reaction has been that, as I
mentioned, there were one-on-one meetings. In other words, to use my words, I
– not publicly but in these private meetings, expressed my gratitude for
solidarity. But I made a point of pointing out that in essence, the Human
Rights Committee of the United Nations suggested that I be advanced – I be
given a public apology.
Why? A public apology is an expression on the part of the government that they
are not in favor of this. This has not happened. I have not received a public
apology. There has been expression on the part of the minister of foreign
affairs in cooperation to see – to investigate reparations. Nothing has
And from the point of view of law, there are two laws now that will be – that
are on the drawing board, that have been presented – two new laws that have
been presented to the council of ministers. This was told me to by – in a,
again, a one-on-one private meeting with the second in charge of the ministry
of the interior, homeland security.
And those laws in reality are – they could be effective, but it might take four
or five years – if they manage because they have to go through a certain
bureaucratic process and be presented to the equivalent of Congress – in other
words, the parliament. And they have to pass. So it’s a nice gesture. There
have been some very significant gestures, but in my opinion, nothing has really
been concrete. In other words, we haven’t arrived at closure according to what
the committee has suggested. Rachel, you can help me or you think you agree
with what I’m more or less saying?
So I think perhaps it was a very heady experience on my part. But at the same
time, I was told that – by the person in charge in the – of U.N. affairs within
the ministry of foreign affairs that he had gone as far as he could go and that
I did receive the letter, which in essence was a two-page, very – very, very
cordial, very polite letter from the minister of the interior with very
explicit explanations of what the Spanish government is doing.
And I was told I could do whatever I would like with that letter. In other
words, I could have a press conference that mentioned that. But as far as I’m
concerned, I’m not in Spain to do the homework. This is the government of
Spain. I’m the citizen. Defending – asking the government to defend my rights
as a citizen. And as far as I’m concerned, right now, that has not been done.
Q: I guess mine is a half comment/half question for comment. I mean, I think
one of the things as you talk about the Obama administration’s policy, and our
issue is that the Obama administration’s actions actually allow for so many of
these programs that – these federal programs that are encouraging racial
profiling because the guidance, as you mentioned, does not include profiling
based on religion, based on national origin and then has large exemptions for
borders and national security.
So that in many ways, those exceptions sort of swallow up the rule and allow
programs that use state and local enforcement in immigration. They allow
things like the TSA policy that targeted everyone with a turban, which has now
turned into a bulky clothing policy which targets everyone with a turban and
other religious clothing and things like that.
And so I think – you know, and then you have the FBI guidelines which don’t
even meet the very low bar of the DOJ guidance in terms of protections. And
those are all things that are currently in place and not – at least the FBI
guidelines – actively being looked at for change.
And so we find that extremely problematic, but what I would like to get some
discussion on is some of the discourse we’ve seen recently by the government
when you get to things like behavioral profiling and things like that is who it
applies to. And I say that because in terms of where many of these things come
in, when you start to criminalize immigrants and you start to talk terrorism –
and we saw recently the man who flew the plane into the IRS building copied
that and you know, saying that violence is the only answer and was politically
motivated. We saw the man who went to the Pentagon and shot a couple of the
guards and they were both treated as not terrorism; that this was somebody who
was an isolated actor, they were – I don’t know, mentally ill; all the list of
things that were not terrorism.
And so what that appears on its face is that the definition of terrorism then
is no longer about the act, but it’s about the actor. And so I would love it
if you could sort of encounter that and how the, sort of, criminal and
terrorism narratives plays into who the actor is when acts get described and
how that then sort of affects the larger question.
MR. DAKWAR: I think in this debate and this discussion about what is
permissible law enforcement action and what is not, I mean, there is also the
politics of this issue that influences everything that happens. And when you
start to see people taking it into the realm of fear-mongering, this is when it
becomes really much more difficult to conduct constructive and open debate and
discussion about what is permissible and what is not permissible.
Just to give an example of how that is really kind of the – when you have a
certain enemy – concrete enemy that you are fighting, it becomes – that’s the
argument, well, it becomes a little easier to tackle or to deal with. When you
don’t have a specified enemy, then it becomes a lot more difficult. It will be
isolated, individual cases.
And that is why we see it in a lot of – it’s easier for – you know, in many
ways, it’s not only a U.S. space; it’s something that happens in many other
countries – is to stereotype and to categorize and stigmatize and victimize one
large group of people rather than doing the more difficult but more effective
way of looking at – and when I say individual behavior, not looking at
behavioral profiling, but I was more alluding to looking at individualized
kinds of suspicions, rather than group-based suspicions, based on cultural
appearances, cultural traditions or behaviors and so on.
So I think that that’s what it’s really getting us to, which is that you have
the easiest way to react to those kinds of actions, saying, look, it’s all the
people who would practice religion would likely to commit an act of terror or
act of violence. And so instead of really focusing on those small group of
individuals that may have the potential of doing that, let’s just go and
against the entire group of people who practice religion or practice Islam and,
for that matter, they are the ones who are the enemy and potentially the ones
who are going to do that.
And so they have – you have really entered into a realm which is very dangerous
in labeling people and putting borders around them, alienating them, making
them feel that they are not trusted, no matter what. Whether you are a citizen
or not citizen, you are white or black, your religious affiliation would make –
will speak on your behalf and you don’t have even the presumption of innocence
at any state of the law. So that’s one of the things that – it’s in the act.
The other thing is that the vagueness of the policies when you have, you know,
what’s the definition of terrorism. I’m sure many of you have looked at that
in different directions. You have – you know, when you create a certain broad
definition of what is terrorism, what is not terrorism and how does that fit
into people’s action. It creates another layer, so it’s easier to paint in a
broad brush the entire population rather than specifically addressing the –
again, on individual level those kinds of suspicions.
The FBI guidelines that – (inaudible) – mentioned briefly have a problem as
they do create a space for FBI agents to take into account things that are
really based on stereotype and stereotypes. And that is including some of the
cultural things, looking at the domain – you need to know your domain – and
those kinds of things.
This is something that does not necessarily make an effective law enforcement
and intelligence gathering because in a lot of the situations, you will end up
getting bad intelligence if you are going after the group, you are not getting
any kind of cooperation between the communities that are vulnerable and they
will see – they will feel that they are under siege. So it is
counterproductive in many ways.
And it also works – ends up playing in the hands of those who are aiming to
inflict fear and terrorism among societies and communities when they see that
there is already a disconnection and there’s no trust between the communities
and the government that is supposed to be able to treat them equally and
MS. NEILD: I think this is one thing where – one level and sort of some of the
political rhetoric some EU countries are a little bad at and it’s actually
because they’ve had a lot longer experience of domestic terrorism. So you’ve
had red terrorism in Italy and Germany. You’ve had Basque ETA ongoing issues.
You’ve got the Corsicans, there’s the Irish, there are violent right-wing
neo-Nazi groups. There are some strange and quite violent animal activists.
And there’s a certain amount of rhetoric and I’ll use the term rhetoric
advisedly, I think, but sort of, saying, no, no, we talk about violent
extremists; we don’t talk about Muslim terrorists. That said, however, when
one goes in and looks at the thrust of policies and looks at a lot of the new
initiatives that are being undertaken, they are very clearly and strongly
If you look at the actual number of acts of terrorism – and Europol does an
annual report which details attempts and acts – there are hundreds every year.
And almost none of them are Muslim, are jihad – shouldn’t the use word jihad –
are al-Qaida-inspired, I would say. But there is – and again, of course,
because Europe has got a large Muslim community – Muslim communities, many.
It’s the fastest growing religion in Europe. There is a great deal of concern
about this idea of the homegrown terrorists.
And the Dutch because of Theo van Gogh being killed by Mohammed Bouyeri started
very early on with this idea that you could somehow identify people in this
process of radicalization. And we describe some of their policies in this
book. They came up with these criteria, which include things very similar to
the quote, unquote, “behavioral profiling,” but –
People suddenly growing beards or refusing to shake hands with women and so on
and calling on all sorts of social services to report people where they saw
these behaviors going on to the authorities to then intervene. They weren’t
necessarily immediately arrested; they were sometimes offered counseling and
other things. But it’s just so obviously targeting certain visible
manifestations of religious practice.
And just for starters, this is wrong. They haven’t caught anyone through any
of these things and if you look at what’s going on in Europe, you see a large
number of white converts involved in those very few acts that have taken place.
But there’s an interesting study also in a Dutch institute which said, well,
you know, we’ve looked at – identified terrorists – I think they had something
like 260 different individuals who’d been under suspicion or arrested – I’m not
sure what the threshold criteria was to include them –
And he said, yes, there’s a profile. It’s so big it includes half the Muslim
men in Europe. This is completely useless for law enforcement. You are going
to waste a vast amount of time and resources that you ought to be using to try
to really identify the genuine threats against us. One critical way – probably
the most critical way you identify those genuine threats – is by working with
communities. But that does not mean instrumentalizing those communities and
simply seeing them as informants to the police.
And this is another one of the problems I think with the initiatives that are
going now. A lot of Muslim communities, like the South Asian community that
has traditionally had lower offending rates. They’ve been very, you know,
hard-working, good citizens, da-di-da. Now, suddenly the police are fascinated
by South Asian, especially Pakistani-origin citizens in the U.K. And they’re
running in and there’s a huge program called “Prevent.” It’s offering money
for different kinds of programs. These communities know exactly why that’s all
there and going on. And it’s a very one-sided dialogue.
And although not all of it is necessarily intentionally – (inaudible) – money
for after-school programs for kids – that’s fine. But it’s not being done on
the basis of a conversation about who gets it, what gets done and why suddenly
are Muslims – and just we Muslims in this community – getting it. And that can
be deeply divisive within local communities in different places. So I really
think that in the United States there’s a growing concern going on here now in
the wake of Fort Hood and Jihad Jane.
So it’s an important time to look at some of these dynamics and some of these
discussions coming out of Europe and try to learn some of the lessons and not
make the same mistakes. I’m not, frankly, enormously optimistic about that.
The NYPD has already put out a big report on radicalization, which is not good.
I believe the LAPD proposed to map potential radicalization, which basically
meant mapping every mosque and where the Muslims lived. That’s not the right
There needs to be some frankness and some honesty and law enforcement. I
think, in these dialogues, if they’re going to be good dialogues and they’re
going to really build trust, have to be willing to hear criticism. You can’t
just go in and expect people to inform on you when that community feels
victimized or feels that they’re being pointed at as the threat to society when
they actually have been living, suffering the impact of a lot of this
targeting. So I think there needs to be some room for a little cathartic
outlet in order to get working.
But it does work. I mean, we’ve talked to communities and we’ve talked to
police in areas where they’ve really engaged with this, and information is
given. You won’t know about it publicly, because it’s still really difficult,
within a community, to inform on other community members. It’s difficult in
any community. It’s nothing to do with your religion. So on the whole, that’s
not going to go public unless it has to in a court trial, but information is
given, and it’s invaluable and we need it. And we need to create the
environment that facilitates it.
MS. THOMPSON: I was hoping that each of you could briefly, I think, just speak
to the issue of – the role that you feel that international courts and
organizations actually play in this process. I find it quite interesting, Ms.
Williams, that you, in a sense, didn’t give up what you received repeated
innocence feedback, that your claim was – that innocence was justified within
And I also find it interesting that, I think, Rachel, and Jamil as well, that
you all have attempted to, I think access different international
organizations, whether it’s the EU, whether it’s the United Nations, whether
it’s the OSCE, et cetera, and, in a sense, what it is you feel that you’re able
to gain within these international spaces and how you feel that translates back
to the specific countries that you’re working in. And if we start with Ms.
Williams, that will –
MS. WILLIAMS: I think the most important thing is communication, on one level
– communication among the different organizations that are dealing with this
type of situation. And in our case, in Spain, we did receive ample coverage in
the media. In other words, there were front-page articles in the Spain’s most
important newspaper on more than one occasion, television coverage with
interviews, et cetera, on a national level, et cetera – television and radio.
That’s one thing I think should be done. Another – and we haven’t been able to
do it yet – is to advance more to opinion – in other words, in more or less
mass-distributed forums, magazines, et cetera, that there could be actual
in-depth articles that do explain what is happening in different areas of the
world, as well as on both sides of the Atlantic, for example.
Another thing that I mentioned the other day, when we had a similar meeting in
New York at Open Society was the importance of education, from my point of view
as a citizen. I’m not an expert, as my two colleagues are here, but as a
citizen, I do believe that it’s very important for students, and starting with
children through teenagers through university, to actually know, learn – in
this case, in Spain for example, because that’s my only experience, to
understand the constitution, what it means, what their privileges are and what
their rights are, and what their responsibilities are. I think that is very,
very important at all levels and constantly.
MR. DAKWAR: As a major civil liberties and legal organization in the United
States, the ACLU has always looked at international forums as complementary
forums or places to raise some of these things that we deeply believe in and
concerned about policies. Of course, we would, first and foremost, pursue the
domestic, national forums, whether the judicial, whether – most of the time,
litigate – but we also realize that there are certain areas where you don’t
have much success in getting a remedy or recourse for – to change policy.
So we do, of course, engage in the other traditional ways of advocacy –
legislative advocacy and otherwise. But it’s also – we thought that there’s
also a benefit in using international forums, and in using international human
rights framework, in particular, to engage the government – U.S. government on
a lot of the issues where we were not successful on a domestic level.
So we have been using the inter-American Commission on Human Rights to bring
petitions, based on behalf of individuals, where we exhausted domestic remedies
– where the Supreme Court either rejected our lawsuit or our appeal. Or, for
example, on behalf of Khalid El-Masri – a German national who was victim of
rendition program – he filed a lawsuit against the CIA.
That lawsuit was dismissed by the lower courts and the Supreme Court did not
grant an appeal. And therefore, the only place for him to get his day in
court, to get himself heard by some sort of a forum was the Inter-American
Commission of Human Rights. Where the U.S. engages, you know, you’d be able to
bring that same similar arguments that you made, but with sometimes a more
advantageous forum, because international forums have developed based on the
national domestic experiences of different democracies, different legal
So we do use that as an effective was to inform U.S. government policies on a
number of areas where U.S. law is out of step with the world, or behind in
terms of providing access to justice, providing legal remedy or protecting
rights and, both social/economic, as well as civil/political rights. And so we
have used international bodies like the United Nations human rights mechanisms
when the use was reviewed by those committees to assess progress that was made
under the international human rights treaties that were ratified by the U.S.
So there is a level of commitment – not necessarily always legal commitment,
legal obligation – but a sense of political, moral obligation to heed or to
hear the recommendations and to take them into consideration. And racial
profiling certainly is one of those issues that we felt strongly that, bringing
them to international forum would only benefit – we would only benefit and the
U.S. government would only engage and use that as a way to see what’s happening
in other countries in Europe, in the OSCE region, what’s happening in the Latin
American and the Inter-American system.
And that, in itself, I think, was helpful, both on the – (inaudible, background
noise) – for individual victims of human rights violations, but also on the
broader level of policymaking and changing things towards better and more
effective solutions, and workable solutions. And my colleague mentioned what
we often use in the human rights community – best practices. This is really,
what are the good, positive policies that worked in other countries?
There’s no reason we should not look at them. Actually, the U.S. government
engages in all sorts of best practices on national security issues, diplomatic
issues and so on, so similarly, we, as human rights movement, human rights
community, would look at good policies, where they work to minimize damage,
minimize human rights violations, and at the same time, allow the government to
take on an issue and to deal with a problem like terrorism, for example. So
it’s really been a very important – I must say, on the individual level, last
year, I maybe traveled the least.
And there is a feeling that my trips – instead of going to Geneva and to Warsaw
and to Brussels, I was more making the trip from New York to D.C., which is a
very good sign. And I hope that, that will continue. We’ll put the
international when we really don’t have any other option for us here in the
MS. NEILD: You’ve covered it. I mean, governments are really sensitive to
international criticism. It is a marvelous opportunity to get attention. I do
think that international treaties and standards like this sort of express our
common values, and point to this as, not a problem of a particular country, but
a shared problem. And hopefully, we can look for shared solutions.
One difference in Europe is that we do have the European Court of Human Rights,
and its rule is binding. And member states are meant to bring their own
legislation practice into accord with that. And they have three rulings that
are relevant to ethnic profiling. We need to bring them a direct case that
will really, kind of, get even tighter on some of these practices. But there’s
a body of case law that’s interested and growing.
And I would also just close by saying that I think that, as the OSCE National
Commission for Minorities and others already are doing, there’s a lot of work
that can be done at the international level to bring both law enforcement and
civil society together – (coughs) – sorry – around positive measures to have a
conversation, not to just feel shamed and defensive and kind of kick back, but
to move forward.
MS. THOMPSON: Ms. Williams, if you had any closing remarks. (Inaudible.) And
I apologize – (inaudible, background noise) – also recording this.
Q: Thanks very much. I did have a few questions picking up on your last
point. I wondered, had you given any consideration to pursuing your case
through the European Court of Human Rights, given the fact that it does have
this binding nature, which Rachel had mentioned?
And then I wondered – a question for the two of you, in a certain sense. One
is, with the European Union and freer travel, sort of, you know, internal
borders – (inaudible) – I’m wondering, can you – if your experience has been –
if you’ve traveled elsewhere in the European Union, and have you encountered
any difficulties elsewhere in the European Union?
And then, I wondered, have you followed trends as the expansion of the European
Union, especially with workers coming from Eastern and Central Europe to – I
know there’s a large population of construction workers in Portugal, and
perhaps elsewhere in Spain and so forth – in terms of those kinds of
discriminations, and how the EU, to the extent that it is trying to grapple
with the fact of discrimination against other individuals from within the
And then I wondered, if I could raise a question, did you talk about – some of
your points lead to the question of data. And of course, as the commission has
been instrumental in trying to promote combating anti-Semitism, one of the
difficulties that we’ve encountered is the great difficulty in terms of getting
anything that comes to accuracy, in terms of the data.
And it strikes me as a little odd, too, then because you’re in a certain sense,
relying, in part, except for courageous individuals, like Ms. Williams, who
come forward and say, I’m not going to go along with this – you’re dependent,
to some extent, upon the law enforcement agencies themselves to keep accurate
statistics, and statistics that do incorporate the types of ethnic background
or racial background that you’re trying to build the case against.
I guess, just drawing from one personal experience, trying to assist a victim
of a pickpocketing in Central Europe – this was before the expansion of the
European Union – and when I accompanied this young woman to the police station,
the very first question out of the police authority – and I wonder if you could
address this – in terms of, sort of, leading and sort of, already prejudicing
what the result might be, the very first question was, “was the person who
picked this woman’s purse of this background?”
So before we had got into any of the specifics, they had already concluded
that, in all likelihood, a Roma was responsible for, in this particular
instance. So I wondered if – those are a few issues that had come to mind
during the course of your presentation.
MS. NEILD: Sorry, I have to leave for the airport, so the issue with Schengen
is quite problematic, and particularly with some of the newer ascension
countries – (inaudible) – not necessarily enjoy all of the – (inaudible) –
protections. And we’re particularly preoccupied, at this time, with the
treatment of Roma and deportations of Roma back to Romania from Italy. And
even Frontex, the European border agency, has been involved in deportations
that they have publicly recognized now had not been conducted as they should.
Schengen includes, in article six, a specific nondiscrimination clause. And
the question of what that means in practice, and what kind of training they
get, is an important one. The European Fundamental Rights Agency is meant to
be doing joint training with Schengen this year – I’m sorry, with Frontex – but
I’m not quite sure what the status of that, or indeed, what the approach to the
training is, because training can be a whole realm of things that have very
different effects on the actual practice.
Just on the law enforcement data, I mean, our problem with profiling is, we
don’t have ethnic data, because in the wake of the Second World War, almost no
European countries outside of the U.K. would gather any ethnic data. And we
don’t have law enforcement data, because very few countries, outside the U.K.,
give any law enforcement statistics. They give crime statistics, which include
how many immigrants are in prison. So we’ve – I think that’s one of the things
our research has sort of helped to do, is start to generate this.
And we have introduced stop forms, and we’ve gotten law enforcement data
through that. There are issues about how that can be manipulated, and so on,
but I think that our stop forms have been reasonably reliable, because you do
see a lot of disproportionality coming out of them. So if they are
manipulating them, they’re not doing it as well as they should be. But that
said, you can obviously do surveys, and there’s some survey data. And the
Fundamental Rights Agency is doing a little of that.
And then, if you are really dedicated and get the resources, you can do direct
observational studies. And we did one of those in Paris, where we benchmarked
the population in certain places to have a direct comparison of who was there,
available to be stopped – what does that population look like in the Paris
metro? And then we had observers who followed the police around for about four
months with cell phones.
If you have a piece of paper and you’re writing, they stop you. If you have a
cell phone and you text, you’re completely invisible. (Laughter.) They would
text in variables. So we put together the ethnic data on that, and that’s
where we got a range of disproportional that went up to 14 times more likely to
be stopped, in some cases. So you can get the data, but it’s really
resource-intensive at the moment.
We need better systematic data gathering of ethnic statistics – not
personalized data, which allows individuals to be tracked; just the statistics
to see what’s going on. And how that happens, I think, is something that law
enforcement agencies and the civil rights community in Europe needs to, kind
of, belly up to the table and deal with that one, because there’s a lot of
anxiety and reluctance about it still.
MR. DAKWAR: The only thing I would add – I think it very much answered the
question, and I agree of all of what was said – I would just add that even
under – there are some states, as you know, have data collection requirement
under state racial profiling acts, or ending racial profiling acts on the state
level. And this has been instrumental in trying to get information out about
the police practices.
I know in New York City, the NYPD – every year, the NYCLU receives this data
and analyzes it and sees the patterns. And they’re still – based on that, they
engage with the local – with the NYPD in this particular case. And even when,
as you said, you can’t completely rely on law enforcement for this, you can
start with something. There are some places where Freedom of Information Act
requests have also produced a lot of information about police practices,
particularly around the local enforcement of immigration laws, for example.
I know in Texas, that’s been particularly instrumental in avoiding – or, when
there was a loophole in the racial profiling act in Texas where, for example,
Latino would not be considered as a race – a separate race. So El Paso, which
is 80 percent Latino community – and the sheriff there was stopping people – it
was not considered racial profiling because they were not even considered a
different race, for that matter, which is absurd, to look at it this way. So
there are ways to go around the manipulation of this.
And lastly, I would just add the complaint mechanism oversight – when you have
independent complaint mechanism on police conduct, law enforcement, you
encourage those kinds of complaints to come forward, and ensure that they are
going to be receiving the right attention, and with independent process of
reviewing those complaints, rather than depending on the same police to police
MS. THOMPSON: And I think there was a question about the European courts.
MS. WILLIAMS: Yeah, actually, after the case was thrown out of the last court
– the tribunal court – constitutional court – in Spain, there were two options.
One could have been, at that particular time, in 2001, the European court –
you know, human rights court. That, you have a deadline of six months to
present the case to that court. Therefore, that option is no – wasn’t open to
me when Open Society took it over in 2004. Between 2004 and 2006, they
prepared the case. And it’s not an option now. And I don’t remember your
question for me.
Q: My second question was if you’ve encountered difficulties elsewhere in the
MS. WILLIAMS: No, no, I haven’t. I travel frequently to France and, from time
to time, Italy, and I haven’t. Now, I have in Spain. In other words, in Spain
– I haven’t been stopped, as I was before, but I have been stopped while
driving, but not necessarily questioned for a traffic, say, violation or
infraction. And at one point, we actually did ask the policeman if I were
being stopped – (chuckles) – because of the color of my skin. He said oh, no,
no, no. Oh no, not at all.
Q: Did he give another reason?
MS. WILLIAMS: No, no, no. So I have been stopped two other times, but this –
in this case, it was not on foot; it was while driving a car.
MS. THOMPSON: Now, on that note, I will thank everyone for coming and joining
us today. I think you hear from the panel that this is an issue that, I think,
we’re going to have to continue to look at and discuss, and look at, I think,
actually some common solutions and best practices that might actually work in
North America, as well as abroad. So we actually look forward to continuing
that discussion with you, and hopefully, we’ll be able to welcome Ms. Williams
back for the next conversation. So thank you all for participating today.
MS. WILLIAMS: Thank you.
MR. DAKWAR: Thank you.
MS. NEILD: Thank you. (Applause.)