The Problem of (Racialized) Religious Profiling in Law Enforcement Operations on the Ground and with AI: What Obligations for European States?

Abstract

The paper explores religious profiling in law enforcement in two different contexts: traditional policing activities on the ground, like identity and security checks, and operations involving the use of AI systems. It shows overall that religious profiling as such is still not properly addressed in international (human rights) law. Protection is often limited to broad non-discrimination provisions, whose application and effectiveness may depend on the specific approach of the human rights body at stake towards religion and discrimination based on religious grounds, on the evidentiary standards imposed and on the proportionality test actually applied. Considering also the social context prevailing in European countries, the paper argues that an intersectional approach should be adopted in this field, especially when religion – in law enforcement operations – is associated to other personal characteristics like “race” or ethnic origin, thus triggering the application of more detailed frameworks like the CERD. In the attempt to identify relevant obligations for European States, the paper also analyses some positive developments recently emerged within the ECHR system, with regard to the application and the interpretation of the prohibition of discrimination in case of unlawful profiling in law enforcement operations on the ground, as well as the new European instruments on AI when law enforcement activities involve AI systems, thus shedding light on the gaps and the issues that need to be addressed in the future.