Since the September 11, 2001 attacks in the United States (U.S.) a number of countries have either adopted or reinforced counter-terrorism measures that stand in direct contradiction to established human rights norms. Under the pretext of protecting national security in the global “war on terror” States have, for example, violated the right to due process of law, the right to be free from torture and other cruel, inhuman and degrading treatment, the right to be free from discrimination, and even the right to life.
Under international law, States have both a right and a duty to protect individuals within their borders; this includes protecting individuals from acts of terrorism. Measures taken in fulfillment of this duty, however, must also respect the rule of law, human rights, and fundamental freedoms. To date, few States have been able to effectively reconcile this dual obligation to protect national security while respecting human rights. A recent example of this failure is the adoption of “shoot-to-kill” policies to deal with suspected terrorists.
In 2005 a number of “shoot-to-kill” policies authorizing the use of lethal force against suspected suicide bombers came to light. Following the July 22, 2005 killing of Jean Charles de Menezes, a Brazilian electrician who London police mistook for a suicide bomber, the United Kingdom (U.K.) revealed the existence of a national “shoot-to-kill” policy named Operation Kratos. Also in 2005, reports surfaced that the U.S. Capitol Police had become the first police department in the U.S. to adopt a “shoot-to-kill” policy for dealing with suspected suicide bombers. Other U.S. law enforcement agencies are considering following suit. In late 2005 the U.S. National Bomb Squad Commanders Advisory Board issued and distributed the first national protocol on suicide bomber response.
The use of “behavior pattern recognition” has similarly emerged as a trend in counter-terrorism training. Senior U.S. intelligence specialists, for example, have argued that it would be more useful to attempt to identify and isolate the type of behavior that might precede an attack rather than focusing on “the type of person who fits a profile of a terrorist.” Behavior pattern recognition is already being introduced in airport and transportation security in the U.S., and in law enforcement in the U.K. Both “shoot-to-kill” policies and behavior pattern recognition techniques have long been used in Israel, whose counter-terrorism experts are actively recruited to train law enforcement and security personnel worldwide on the implementation of these policies and techniques.
On July 8, 2005, a day after the London bombings, the International Association of Chiefs of Police (IACP), an organization of global membership that facilitates the training and cooperation of police officers in the U.S. and worldwide, released its guidelines on the detection and prevention of suicide bombings. These guidelines are articulated in IACP’s Training Keys 581 and 582 (entitled Suicide (Homicide) Bombers I & II, respectively) (hereinafter “Training Keys”). To detect potential suicide bombers, Training Key 581 instructs police officers to look for certain behavioral and physical characteristics, similar to those identified in behavior pattern recognition guidelines. To prevent potential suicide bombers, Training Key 582 promotes the use of lethal force, encouraging officers to aim for the suspect’s head and shoot-to-kill.
Both “shoot-to-kill” policies as well as the indicators associated with behavior pattern recognition are often marked by a lack of transparency in terms of their content, adoption, and implementation. This secrecy is frequently attributed to the imperative of maintaining national security. While protecting national security is of paramount importance, policies that empower law enforcement officials to disregard established standards on the use of lethal force and to substitute reliable intelligence with confusing and often stereotyped profiles of threatening individuals, must be made subject to public scrutiny.
Unlike official “shoot-to-kill” policies, the Training Keys are publicly available documents. Though not official government policy, they are the subject of this Briefing Paper because: a) they are emblematic of both existing official policies and policies under consideration; and b) they have the potential to influence police departments—particularly in the U.S. where the IACP is headquartered—to train police officers to use behavioral profiling techniques, and to adopt and implement “shoot-to-kill” policies in response to terrorism-related threats.
While a shift away from focusing on “the type of person” who fits a terrorist profile toward the type of behavior that might precede an attack is laudable, this Briefing Paper argues that the indicators contained in Training Key 581 will not be implemented in a neutral manner. Specifically, it concludes that these indicators are proxies for racial, ethnic and religious profiling, and that implementation of the Training Key will disproportionately target Muslims, Arabs and South Asians, or those perceived to be Muslim, Arab, or South Asian.
Additionally, while the use of lethal force may, under certain circumstances, be both necessary and justified, especially when responding to the imminent detonation of a bomb, Training Key 582 promotes the use of lethal force even when the threat of harm is not imminent and where the very existence of a bomb has not been confirmed. Instead, officers are encouraged to infer the existence of the “capability to detonate” a bomb or the threat of such use on the basis of overly-broad physical and behavioral characteristics, that will in the overwhelming number of cases end up targeting Muslims, Arabs and South Asians, or those perceived to be Muslim, Arab, or South Asian.
This Briefing Paper analyzes the Training Keys in light of relevant international and regional human rights law, and U.S. domestic law, and concludes that the implementation of the Keys by police departments would result in violations of standards prohibiting unjustified discrimination and the arbitrary use of force.
In so doing, it challenges a major precept of the “war on terror” campaign generally, and “shoot-to-kill” and profiling policies specifically: that the attacks of September 11, 2001 have heralded a new era that warrants new approaches to law enforcement, and justifies a departure from established human rights norms. Such an approach ignores the intricacies and breadth of the human rights regime, which recognizes the duty of States to protect persons against terrorist attacks, while also setting out appropriate and necessary prohibitions on discriminatory treatment and the arbitrary deprivation of human life. These prohibitions seek to ensure that all persons are truly secure and protected. By contrast, profiling on the basis of race, religion, ethnicity and nationality sends the problematic message that the security of some is worth more than the security of others; or worse, that human rights abuses against those who fit into this ill-defined category of “terrorist” are a necessary pre-condition to ensuring the security of the nation.
