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In Basu v. Germany (215/19; Judgment 18.10.2022 [Section III Information Note published; Text of 3rd Section here and here], the European Court of Human Rights (ECHR) considered the applicability of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for private and family life) to the following set of facts:
In July 2012 two police officers carried out an identity check on the applicant, a German national of Indian origin, and his daughter, on a train which had just passed the border from the Czech Republic to Germany. The applicant asked the police officers why he was checked, and they said it was a random check. One of them later added that cigarettes were frequently smuggled on that train, but confirmed that there had not been any specific suspicion in respect of the applicant in this regard. The administrative courts declined to examine the merits of the applicant’s complaint about having been treated in a discriminatory manner by the identity check. (Basu v. Germany)
The ECHR concluded that (A) "the identity check by the police under these special circumstances had had sufficiently serious consequences for his right to respect for his private life. The identity check in question therefore felt within the ambit of Article 8;" and (B) "the State authorities had failed to comply with their duty to take all reasonable measures to ascertain through an independent body whether or not a discriminatory attitude had played a role in the identity check, and thus had failed to carry out an effective investigation in this regard." (Ibid.).
The folks at the Völkerrechtsblog have now confronted this issue in a very interesting online symposium: Racial Profiling in Germany. "In this symposium, scholars reflect on the European Court of Human
Rights’ recent Basu v. Germany decision. They situate the decision
within recent conversations surrounding race and racism in Germany and
in international human rights discourse more broadly." (Racial Profiling in Germany Symposium). The Symposium Introduction provides a nice description:
In Basu v. Germany, an international body reminded Germany once again of its less-than-perfect human rights record regarding racial discrimination. In this case, the European Court of Human Rights (ECtHR) ruled that Germany had violated the right to privacy according to Article 8 of the European of Human Rights (ECHR) in conjunction with the right to non-discrimination (Article 14 ECHR) by failing to provide a proper and independent investigation into allegations of racial profiling. This symposium takes the decision as a starting point to reflect on the practice of racial profiling in Germany and, more generally, on the place of race and racism in Germany and in international human rights discourse. (Racial Profiling in Germany )
The excellent symposium essays seek to translate the practices at issue in Basu v. Germany into the language of race and racism (and this appears to be an easy case in that respect given the sensibilities of the times). At the same time, the essays provide a doorway through which it might also be worth looking at the larger issues lurking in the background.
I will be posting the Symposium contributions here and will also contribute some brief reflections and engagement with each of the excellent and thought provoking contributions. For this Part 4 we consider Anna Hankings-Evans, "excellent essay, "Race and Empire in International Law." Using the Basu decision "as an entry-point and example," and drawing from the insights of Critical Race Theory, Hankings-Evans argues that "both the structuring power of ‘race’ and its marginalization are a product of the history of international law and its construction of the 'other'.” (Hankings-Evans essay). Basu, then, while a strep in a preferred direction for conception and application of anti-discrimination principles, requires further development. Hankings-Evans then astutely criticizes the jurisprudential conception of neutrality in the context of an objective and reasonable test. The rationale is well known--objective subjectivity is both deeply historically embedded and ideologically constructed. Because, it is argued, international law cannot be detached from its history, and that history structurally embeds the animating notion of racial and ethnic categories as a useful means of ordering the hierarchy of political communities as a basis for constructing pre-21st century imperial orders, the failure to interrogate of whiteness (the whiteness of international law), and individuated administrative subjectivity (intent) in the German context reduces the relevance and value of the jurisprudence. The implications for data based analytics can be profound.Other Essays and Reflections produced for this online symposium may be accessed here:
Part I Introduction
Part 2 Observations on the Case Information Note
Part 3: Observations on Elisabeth Kaneza, "Human Rights Standards for Accountability and Effective Remedies.
Part 4: Observations on Anna Hankings-Evans, "Race and Empire in International Law"
Part 5: Observations on Lisa Washington, "Racist Police Practices"
Observations on Anna Hankings-Evans, "Race and Empire in International Law"
1. Hankings-Evans suggest that Basu "requires practical and feasible implementation" but asks "who is entitled, and more importantly equipped, to assess whether the right level of practicability and feasibility has been reached?" (Hankings-Evans essay). To answer that question, Haskings-Evans focuses on the character of the violation as procedural or substantive. Echoing the Partial Dissent of Judge Pavli (Basu, supra, Partial Dissent ¶¶ 13-18), Hankings-Evans critically interrogates the ECHR conclusion (Basu ¶ 38) that it was "unable to make a finding as to whether the applicant was subjected to the identity check on account of his ethnic origin." True enough, and well interrogated. The answer fits well within the structural argument that is then elaborated. Indeed, reading the Basu opinion's ¶ 38 it becomes clear that the reason for this inability was substantially a function of the standard applied to the definition of prohibited profiling, the embrace of a principle that inclusion of race or ethnicity data in descriptive or predictive policing analytics is not per se prohibited, and the role of intent in an application of the procedural standard to the determination in a specific case. The critical passage in ¶ 38, then, might be centered on the deficiency determined by the court: "whether or not a discriminatory attitude had played a role in the identity check." In effect, the standard adopted in Basu (rather than the "to any degree" standard) made the conclusion reached inevitable. And it is with that standard that the trouble lies. And it is to the interrogation of the foundations of that choice that Hankings-Evans turns.
2. Hankings-Evans then astutely criticizes the jurisprudential conception of neutrality in the context of an objective and reasonable test. The rationale is well known--objective subjectivity is both deeply historically embedded and ideologically constructed. Fair enough. The difficulty, though, is to develop a theory that both rejects objectivity in the context of race in policing but embraces it in the context of social justice and in accountability for the misuse of race and ethnicity in policing. Subjectivity cannot be compartmentalized and then either enhanced or suppressed--or rather it can, but only by foregrounding historical context to the point that it overwhelms both present and future. "Contrary to the histography of race and empire, the ECtHR noticeably focuses on the individual and subjective attitude of the civil servant in its remarks, thereby failing to consider statutory and internal regulations in their entirety and systematic form." (Hankings-Evans essay) This is not to suggest that contemporary social justice is not without powerful enough normative argument. History, however becomes problematic, when the constructions of the past used to develop systems of exploitation, marginalization, colonialism, etc., is then projected onto the future through modulated application to suppress or foreground variations in its social construction to suit strategic and historically grounded policy projects. The rationalization requires more work. And its relation to the imperatives, going forward, of a positive obligation to enhance social solidarity, remains to be explored.
3. Because, it is argued, international law cannot be detached from its history, and that history structurally embeds the animating notion of racial and ethnic categories as a useful means of ordering the hierarchy of political communities as a basis for constructing pre-21st century imperial orders, the failure to interrogate of whiteness (the whiteness of international law), and individuated administrative subjectivity (intent) in the German context reduces the relevance and value of the jurisprudence. The argument suggests that in the face of systemic and culturally embedded imaginaries, the individual falls away, or ought to fall away, from the analytics of discrimination but also the individuality of the individuated objects of discriminatory behaviors giving rise to remedy. Law, in this sense, becomes effective only when it can disaggregate individuals into clusters of collective expression (reductionism) which are then expressed as a n ordering set of historically foregrounded characteristics (essentialism). Individuals are merely, at its limit, the corporeal incarnations of the thrust of historical relationships among collectives performed by and through the managed behaviors of persons. The theory has some power; but it is as yet difficult to reconcile with another great historical construct of European constitutionalism--the apotheosis of the individual and individual agency as the basic ordering concept of collective institutions. This effectively, is the fundamental irreconcilable tension between a characteristics-based historically modulated approach (in which persons merely express the intersections of historical trajectories organized as clusters of outlook and privilege) and the individuated personal agency privileging construction of European constitutional orders. Hankings-Evans effectively suggests that the disjunction militates in favor of a radical transformation of European constitutionalism, at least in the context of discrimination principles and practice.
4. The implications for data based analytics can be profound. On the one hand, a reductionist and essentialized deconstruction of the individual, and their reconstruction as the incarnation of embedded systemic imaginaries, suggests a critical role for data--and especially for data related to key data indicators of such characteristics: race, ethnicity, gender, religion etc. But those factors are then evaluated or given emphasis (negative or positive) as a function of their intersectionality and historical relation. Race and ethnicity, then, in cases like Basu become critical factors. But the criticality is inverted--one does not focus on these markers as elements of intent, but rather as accumulated and interrelated impacts of stigmatization and marginalization, without regard to proof of intent. The proof is one of historical contingency and the interdiction of performances (in the form of police interventions) that mimic the reductionist performance of empire back at the time that empire was viable. Empire becomes the ideal state from out of which metric touching on discrimination (stigmatization and alienation/marginalization) may be developed and applied. One is only at the very beginnings of the consequences of this quite interesting approach. In effect, the issue of data bias is turned on its head.
* * * * * *
Race and Empire in International Law
Basu v. Germany and the Marginalization of Racial Discrimination in Human Rights Discourse and Jurisprudence
14.12.2022The prohibition of racial discrimination has played a marginal role within the global human rights agenda. This corresponds to the subordination and neglect of ‘race’ in how international legal scholars understand global power distributions (see e.g. here, here or here). Using the Basu v. Germany decision as an entry-point and example, I will argue that both the structuring power of ‘race’ and its marginalization are a product of the history of international law and its construction of the “other”. I use the term race in the meaning of said historical and social construction that intersects with the term utilized in the legal scholarship of Critical Race Theory.On 18 October 2022, the European Court of Human Rights (ECtHR) ruled in Basu v. Germany on ‘racial profiling’, i.e. the practice of police checks based on racial attributions, as a sub-category of racial discrimination, that Germany had violated the prohibition of racial discrimination under international law, as enshrined in Article 14 of the European Convention on Human Rights (ECHR) in conjunction with its Article 8(1), the right to privacy. While the ruling represents a positive development in the quest for racial equality, it also leaves room for refinement (see also here or here).
The ECtHR’s Decision in Basu v. Germany
The plaintiff in Basu v. Germany was Biblap Basu, a German citizen who, together with his daughter, had been subjected to an unprovoked identity check by two police officers in 2012 on their way home shortly after crossing the Czech-German border. The police checks were carried out on the basis of Section 23(1)(3) of the German Federal Police Act (Bundespolizeigesetz) and, as Basu believed, because of his dark skin color. They were the only ones who were asked for their IDs by the police when crossing the border. All other passengers in the compartment were white.
In its decision, the ECtHR, referring to racial discrimination as a particularly serious form of discrimination with devastating consequences (see, para. 24 and 34), held that Germany had violated Basu’s right to privacy in a discriminatory manner. It based its decision on the lack of hierarchically or institutionally independent (see, para. 33) investigative bodies (see, para. 36) and on the administrative court’s failure to collect the necessary evidence and to hear witnesses who were present during the identity check (see, para. 37). Thus, it could not be determined overall whether the identity check was motivated by racism or not.
The ECtHR cautions that protection against racial discrimination must not become “theoretical and illusory” (see, para. 35). In other words, it requires practical and feasible implementation. But who is entitled, and more importantly equipped, to assess whether the right level of practicability and feasibility has been reached?
A Procedural or Substantive Violation of Racial Discrimination?
In Basu v. Germany, the ECtHR begins its assessment by emphasizing that racial discrimination constitutes a “particularly egregious kind of discrimination” that requires “special vigilance and a vigorous reaction” (see, para 24). Yet, in its reasoning it confines itself to an analysis of mere procedural failures. The ECtHR eventually concludes that it finds itself “unable” to determine whether the plaintiff had actually been subjected to an identity check on the basis of his ethnic origin (see, para. 38).
It was, however, the German Administrative Court that had denied Basu admissibility of the judicial proceedings he had initiated under German administrative law, arguing that neither a profound infringement of fundamental rights nor an interest in rehabilitation could be established. The Administrative Court did not even address substantive issues. One might think that the possible violation of constitutional rights, as found in similar cases by German administrative jurisprudence, would justify such an interest in legal protection, at least in the context of admissibility. Explanations by the ECtHR would have been desirable as to why the denial of subsequent legal protection should not already be considered as racist manifestation.
The Objective and Reasonable Standard and the Myth of Neutrality
The ECtHR defines ‘racial profiling’ as the police consideration of characteristics such as race or skin color without “objective and reasonable” justification (see, para. 12). Further, it insists that State authorities must make every effort to reach an “objective” decision yet leaving open what such objectivity entails. The application of an unspecified standard of objectivity and reasonableness risks facilitating the creation of enclaves of alleged neutrality, into which States may take refuge.
It was the ECtHR that had deemed preferential treatment of certain nationalities as “objective and reasonable”, thus permissible, which leads to a not inconsiderable restriction of the principle of equality. In a similar manner, the United Kingdom, upon ratifying the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) in 1966, excluded its application to Rhodesia and clarified that the Commonwealth Immigrants Acts, 1962 and 1968, were not racial discrimination within the meaning of the ICERD, thereby seemingly contributing to a hierarchical regime of citizenship. In a similar manner, Germany refuses to ratify the 12th additional protocol to the ECHR, fearing that the legal embeddedness of “nationality” as a qualifying marker might trigger increasing scrutiny.
This illustrates the vulnerability of notions of equality and justice. For it is not by chance that in the present case the simple presence of the German citizen Basu challenged the conception of (white) European border regimes. The category of race has noticeably undergone a process of decontextualization and dehistoricization (see, p. 1658). But racial regimes do possess history, “that is, discernible origins and mechanisms of assembly”, even if these “racial regimes are unrelentingly hostile to their exhibition” (see, p. xii). It was in fact European scholars in the emergence of the international order that contributed significantly to the social construction of race and to its emergence into an analytical concept, a ‘biological fact’, and the basis of legal thought, analysis, and separation.
Individualizing a Systemic Problem – Race as a Structuring Category in the Evolution of International Law
Contrary to the histography of race and empire, the ECtHR noticeably focuses on the individual and subjective attitude of the civil servant in its remarks, thereby failing to consider statutory and internal regulations in their entirety and systematic form. While feminist legal theory may readily center patriarchy as a social system (and not sexist acts of individuals), the prohibition of racial discrimination continues to linger in the clutches of personal failure and individual perpetration.
As against this, a look at the genesis of international law reveals that European expansionism – in the form of territorial conquests, slave trade, and colonialism – was essential to the construction of a (racialized) system of domination that made the “other” a social reality. By the late 19th century race became the explicit marker of a supposedly scientifically informed positivism (see, p. 937), designating international law as “rules recognized between white men” (see, p. 143)
Both transatlantic slave trade and European colonialization revealed an unprecedented numerical and specifically anti-Black dimension and brutality, justified by assertions of racial inferiority (see, p. 13), and masked as a Christian or moral duty to help those characterized as ‘beast in human form’ (see e.g. here or here). Such hierarchical categorization persisted through time, awarding a society sovereignty in proportion to its proximity to whiteness.
A Need for the Inclusion of whiteness as an Analytical Category
A systemic analysis in Basu v. Germany would have been helpful in uncovering postcolonial continuities of social concepts and their mystification. It is with an understanding of the construction of whiteness as expression of domination and neutrality, that will allow for the deconstruction of racializing perspectives on the “other”. A more nuanced analysis of seemingly neutral enclaves – such as sovereignty, jurisdiction, and nationality – is needed; without which substantive equality is unlikely to be achieved, and the whiteness of the international – both in past and present – will continue to be rendered “conceptually invisible”.
By Way of Conclusion: Uncovering Tendencies of Marginalization
The marginalization of the prohibition of racial discrimination has thereby been noticeable in academic anti-discrimination and human rights discourses. Notwithstanding the norm’s prominent status in the international legal order, few publications are devoted to specifically racial discrimination in comparison to other categories of discrimination, such as gender. In addition, people affected by racial oppression are largely excluded from decision-making processes and knowledge production. The racialized history of international law remains for the most part concealed. The question of distribution of power in global knowledge production is, thus, central to the assessment of practicability and feasibility.
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