International law vs Islamophobia in 'Prevent'

Introduction

First established in 2003 following the 9/11 terrorist attacks and ‘race riots’ across England in 2001,¹ the Prevent programme was implemented as part of the UK government’s counter-terrorism strategy, CONTEST.² Introduced by New Labour, the programme initially focused on ‘community cohesion’ to avert terrorism. In 2011, the coalition government reviewed and re-launched the programme, “to stop people becoming terrorists or supporting terrorism”,³ by focusing on “extremist ideologies” and pre-empting radicalisation. Its remit was broadened to deal with all forms of terrorism and with non-violent extremism.⁴ In practice, this meant a stronger separation between policies that promote integration and those that prevent terrorism. In 2015, these changes were expanded and introduced into legislation, as part of the Counter-Terrorism and Security Act 2015, which states certain bodies such as schools, universities and the NHS have “due regard to the need to prevent people from being drawn into terrorism”.⁵

This shift in strategy has been described as “neo-liberal governmentality” where “front-line practitioners are ‘responsibilised’ for spotting radicalisation.”⁶ And perhaps inherent to the programme, Prevent has been viewed as a highly controversial policy, routinely criticised by a wide range of voices. Most notably, it's seen as a front for both state and societal focus on British Muslims as an existential threat.⁷ Indeed, a strong body of quantitative and qualitative evidence points to the government’s strategy systematically facilitating an environment of discrimination against Muslims – or Islamophobia.

Although a definition for ‘Islamophobia’ is yet to be widely established – especially in the UK⁸ and international law – as the Special Rapporteur on ‘Freedom of religion or belief’ states, Islamophobia can essentially be understood as being synonymous with anti-Muslim hatred.⁹ It’s key to understand, though, that the experiences of many Muslims extend beyond their religious beliefs, particularly intersecting with ethnicity or gender. Direct and indirect anti-Muslim actions are therefore not solely about the contravention of religious freedoms.

Prevent’s impact on Muslim communities

Multiple reports have pointed to Prevent’s effect on Muslim communities, stemming from the strategy’s emphasis on reporting of ‘suspicious’ persons. The design of the policy has resulted in seemingly absurd referrals such as that of a four-year-old child, or of adults who have adopted religious dress.¹⁰ Multiple NGOs have shared the lived experiences of families unfairly targeted by Prevent and have evidenced that Muslims are more likely than any other group to be referred to the programme.¹¹ This has been corroborated by other research, which has found Muslims are eight times more likely than non-Muslims to be referred, using qualitative data to conclude that this is at least partly because of racial and religious discrimination.¹²

Research has also shown that discrimination experienced by Muslims can be a result of not just their beliefs but of their outward appearance, like skin colour,¹³ strongly suggesting the role that intersectionality has to play in Islamophobia. Although the Home Office no longer releases Prevent data on ethnicity or religion, case studies and analysis of previous statistics also show the disproportionality of referrals for both Muslims and Asians.¹⁴

Furthermore, of 596 cases submitted to Prevent Watch, over 100 of these indicated ‘increased religiosity’ as a major factor in the referral,¹⁵ which is once again disproportionate to general population demographics. This data, in addition to an in-depth analysis of the government’s strategy, has led the authors of ‘The People’s Review of Prevent’ to conclude that “Prevent is an abuse of fundamental human rights and protected equalities, especially those preventing discrimination on the grounds of race and ethnicity, and religion.”¹⁶ Likewise, a report from the Equality and Human Rights Commission (EHRC) reached a similar conclusion, that “Prevent is discriminatory and risks undermining freedom of speech, the right to private life and the right to manifest a religion”.¹⁷ In 2016, two parliamentary committees called for a review of Prevent because of concerns it was discriminatory against Muslims.¹⁸

The role of domestic law

Despite calls from human rights and civil liberty advocates to radically rethink Prevent,¹⁹ action from the government has been insufficient. Throughout its different manifestations, the policy has persistently targeted Muslims, undermining the UK’s commitments to its own (as well as international) laws, namely the Equality Act 2010 and the Human Rights Act 1998. The former protects individuals from indirect and direct discrimination on grounds of protected characteristics, such as race and religion or belief. The 1998 Act meanwhile contains within it the articles of the European Convention on Human Rights (ECHR), protecting freedom of thought, religion and belief.

The aforementioned EHRC was established by the government to uphold the rights established in both the 1998 and 2010 Acts. And whereas its obligation to report to the UN²⁰ has meant that it has voiced concerns about Prevent publicly, this hasn’t translated into it taking any substantial action, raising questions about the effectiveness of domestic legal systems.

However, it was significant when in 2019 the government announced it would undertake an independent review of Prevent.²¹ Unfortunately, there is little optimism that this will lead to better outcomes for Muslims. Firstly, the initial reviewer was stood down following a legal challenge from Rights Watch UK due to concerns about his previous involvement with the programme.²² Lord Carlile was then succeeded by Sir William Shawcross, whose leaked draft of the review has remarkably suggested that Prevent has been too focused on rightwing extremism and a renewed focus on Islamist extremism is needed.²³ Unsurprisingly, more than 15 civil society society organisations²⁴ and 450 Islamic organisations²⁵ issued statements objecting to the appointment of Shawcross who has also incidentally expressed Islamophobic views in the past.²⁶

Beyond these involvements, the scale of domestic law instruments has been limited, or non-existent in the case of jurisprudence specifically on counter-terrorism’s impact on Muslims. With this bleak picture in sight, it’s pertinent then to look at the role of international law.

Has international law’s response been sufficient?

In 1951, the UK ratified the ECHR, subsequently ratifying the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). In general terms, both treaties protect the rights of individuals against discrimination based on grounds of race or religion, while protecting a right to freedom of thought, conscience and religion. Additionally, the UK has agreed to the adoption of the UN Global Counter-Terrorism Strategy, which contains within it a pillar promoting respect for human rights for all.²⁷

The Prevent strategy and its Islamophobic overtones, demonstrated above, clearly contravene these treaties; and the policy’s continued discriminatory practice prima facie points to international law’s inadequacy in addressing these issues. A closer inspection, however, suggests that international law has not been entirely ineffective, though is nonetheless falling short of protecting the rights of Muslims.

As part of the UN’s role in monitoring human rights violations, Special Rapporteurs’ mandate to conduct official state visits and investigate concerns places them in a position of relative influence. In 2018, the Special Rapporteur on ‘Contemporary forms of racism, racial discrimination, xenophobia and related intolerance’ visited the UK with a wide remit. The ‘End of Mission Statement’ identified her predecessor’s 1996 report highlighting Islamophobia in the UK and recent counter-terrorism law exacerbating these problems.²⁸ The Special Rapporteur also viewed the government’s unwillingness to review the impact of Prevent on minority ethnic and Muslim communities as “untenable”,²⁹ recommending that the government suspends Prevent. In the same year, the Special Rapporteur on ‘The promotion and protection of human rights and fundamental freedoms while countering terrorism’ echoed recommendations for an independent review of Prevent.³⁰

These calls from the Special Rapporteurs were sequentially followed by the government’s announcement in 2019 that it would review Prevent, suggesting perhaps that the experts had played a part in enacting change. Nonetheless, the concerns mentioned above with the forthcoming review and its foreseeable outcome can lead one to question international law’s true effectiveness in this regard.

Following the UK’s ratification of ICERD in 1969, the Convention and its monitoring body – the Committee on the Elimination of Racial Discrimination (CERD) – have both played key roles in shining a light on Prevent’s impact on Muslims. Moreover, Article 5 of the Convention holds nation states accountable to prohibit and eliminate racial discrimination in all its forms and to guarantee the right of everyone to equality before the law, notably in the enjoyment of civil rights including the right to freedom of religion.³¹

The UK’s last periodic report to CERD in 2016 was met with Concluding Observations that the Prevent duty had “created an atmosphere of suspicion towards members of Muslim communities”,³² urging a review of Prevent. As with the recommendations of the Special Rapporteurs above, it’s difficult to measure how influential the Committee was in the government’s decision to review Prevent. This is especially significant when considering the fact that CERD’s recommendations can often be viewed as lacking in authority and struggling to generate state compliance.³³ Indeed, the UK government has failed to address many of CERD’s 2016 recommendations.³⁴

Nonetheless, it seems like CERD possesses the potential to address Islamophobia in the UK through its recognition of the intersection between racial and religious discrimination, a reality that’s fundamental to the experiences of many Muslims. International human rights monitoring mechanisms have traditionally relied upon a “single-axis”³⁵ approach to enforce legal provisions prohibiting discrimination, focusing on mutually exclusive grounds of discrimination. Where other treaties have failed to recognise the significance of intersectionality, CERD jurisprudence acknowledges that “the ‘grounds’ of discrimination are extended in practice by the notion of ‘intersectionality’”.³⁶ Elsewhere, CERD has recognised the importance of intersectionality and views it possible to consider a claim of ‘double’ discrimination on the basis of religion and another ground specifically provided for in Article 1 of the Convention.³⁷ Significantly, this recognition of intersectionality could be crucial to progress the rights of Muslims in international law.

However, CERD’s relatively low number of complaints (62 complaints concerning 15 states between 1984 and May 2018)³⁸ suggests that the complaints procedure is underused³⁹ or perhaps underscores CERD’s limited scale. This is especially concerning when considering how important case law is in forming the jurisprudence of international supervisory mechanisms and in offering clarification on the obligations of states⁴⁰ – calling into doubt the actual potential of ICERD in challenging Islamophobia.

We might then turn to the ECHR and its European Court of Human Rights (ECtHR) for stronger jurisprudence. The ECHR in theory could redress Prevent’s Islamophobic nature through both Article 9, which states “everyone has the right to freedom of thought, conscience and religion”,⁴¹ and Article 14, which prohibits discrimination “on any ground such as sex, race, colour, language, religion”.⁴²

The Court, which interprets the ECHR, is unique in being an international court in a “narrow sense”, with the power to pronounce legally binding judgments⁴³ as well as employing an individual complaints mechanism. In fact, the ECtHR has previously played a role in altering the UK’s counter-terrorism laws. In Gillan and Quinton v UK,⁴⁴ the Court ruled that a section of the Terrorism Act 2000 had violated Article 8 of ECHR (the right to respect for private and family life), which led the Home Secretary to suspend the use of Section 44 in relation to individuals, restricting police officers’ stop and search powers.

Conversely, in a case that seems to be more pertinent here, the ECtHR ruled in 1978 that if a terrorist threat emanates from a particular minority, the fact that counter-terrorist initiatives disproportionately impact the minority group does not, for this reason alone, mean that its members have suffered discrimination.⁴⁵ In Ireland v UK, the applicant government claimed the UK followed a policy of discrimination and violated Article 14 by employing extrajudicial powers against the IRA alone. Ultimately, however, the Court found no violation of Article 14.

Admittedly, this case is unlikely to be used as precedent for future case law on Islamophobia in Prevent, since the British government has not at any point employed extrajudicial powers in the given context, nor does the government overtly apply a set of rules solely to a certain group in the same way it did for the IRA. Nonetheless, it is feasible that the Court’s decision in the 1978 case might influence interpretation of Article 14 for future hypothetical cases relating to Prevent, given the broad similarities between the actions of the governments.

Indeed, the ECtHR’s role will likely remain hypothetical given the current dearth of case law on anti-Muslim discrimination in the Court, particularly those with an Islamophobic undertone.⁴⁶ A 2022 HUDOC database search for ‘Islamophobia’ returns no more than five results, most of which revolve around hate speech. The ECtHR’s weak jurisprudence on Islamophobia ultimately leaves much in doubt as towards its potential function in addressing the government’s failures regarding Prevent and the unique experiences of Muslims in terms of the intersectionality of the discriminations they face.

To conclude, as multiple analyses have shown, the UK government’s Prevent strategy has disproportionately targeted Muslims, discriminating against its citizens on religious and racial grounds. Where domestic legal instruments have failed to enact change beyond the calling of an independent review – notably, one that is tainted with controversy – international law has likewise been largely ineffective in redressing the government’s violations despite some signs of promise, for example in CERD’s recognition of intersectionality. However, it seems that both ICERD and ECHR – and their respective Committee and Court – are yet to develop strong jurisprudence on Islamophobia, leaving in doubt international law’s potential in addressing this special kind of discrimination ingrained within Prevent.

Note: This blog was originally written in December 2022.

---

¹ Home Office, 'Building cohesive communities, report of the ministerial group on public order and community cohesion (The Denham Report)' (European Commission, 31 December 2001) <https://ec.europa.eu/migrant-integration/library-document/building-cohesive-communities-report-ministerial-group-public-order-and-community_en> accessed 30 November 2022

² Home Office, 'Prevent Strategy 2011' (Gov.uk, 7 June 2011) <https://www.gov.uk/government/publications/prevent-strategy-2011> accessed 30 November 2022

³ ibid.

⁴ Home Office, 'Prevent duty guidance' (Gov.uk, 12 March 2015) <https://www.gov.uk/government/publications/prevent-duty-guidance> accessed 30 November 2022

⁵ Counter-Terrorism and Security Act 2005 cl 26

⁶ Paul Thomas, ‘Deepening divides? Implementing Britain’s Prevent counterterrorism programme’ in Derya Iner and John Esposito (eds), Islamophobia and Radicalisation: Breeding intolerance and violence (Palgrave Macmillan UK 2019) 173

⁷ ibid.

⁸ HL Deb 17 October 2017 vol 785, col 486

⁹ UNGA ‘Countering Islamophobia/anti-Muslim hatred to eliminate discrimination and intolerance based on religion or belief’ (13 April 2021) 46th Session (2021) (A/HRC/46/30)

¹⁰ Prevent Watch, ‘The Cucumber Case’ (2016) <http://www.preventwatch.org/the-cucumber-case/> accessed 4 December 2022

¹¹ Faith Matters, 'In numbers: counter-terrorism powers disproportionately affect ethnic and religious minorities in Britain' (18 May 2016) <https://www.faith-matters.org/numbers-counter-terrorism-powers-disproportionately-affect-ethnic-religious-minorities-britain/> accessed 30 November 2022

¹² Medact, 'False Positives: the Prevent counter-extremism policy in healthcare' (2 July 2020) <https://medact.org/2020/resources/reports/false-positives-the-prevent-counter-extremism-policy-in-healthcare/> accessed 30 November 2022

¹³ European Union Agency for Fundamental Rights, 'Second European Union Minorities and Discrimination Survey Muslims – Selected findings' (21 September 2017) <https://fra.europa.eu/en/publication/2017/second-european-union-minorities-and-discrimination-survey-muslims-selected> accessed 30 November 2022

¹⁴ J Holmwood and L Aitlhadj, 'The People’s Review of Prevent' (Prevent Watch 2022) <https://peoplesreviewofprevent.org/prop-report/> accessed 30 November 2022

¹⁵ ibid.

¹⁶ ibid.

¹⁷ Equality and Human Rights Commission, 'Civil and political rights in Great Britain: submission to the UN' (12 March 2020) <https://www.equalityhumanrights.com/en/publication-download/civil-and-political-rights-great-britain-submission-un> accessed 4 December 2022

¹⁸ J Holmwood and L Aitlhadj, 'The People’s Review of Prevent' (Prevent Watch 2022) <https://peoplesreviewofprevent.org/prop-report/> accessed 30 November 2022

¹⁹ Cohen, B and Tufail, W ‘Prevent and the Normalization of Islamophobia’ in Runnymede Trust, Islamophobia: Still a Challenge For Us All (London 2017)

²⁰ Equality and Human Rights Commission, 'Our human rights work' (11 June 2021) <https://www.equalityhumanrights.com/en/human-rights/our-human-rights-work> accessed 30 November 2022

²¹ Home Office, 'Lord Carlile to lead independent review of Prevent' (Gov.uk, 12 August 2019) <https://www.gov.uk/government/news/lord-carlile-to-lead-independent-review-of-prevent> accessed 30 November 2022

²² The Guardian, 'Lord Carlile removed from Prevent review after legal challenge' (20 December 2019) <https://www.theguardian.com/uk-news/2019/dec/19/lord-carlile-prevent-review-legal-challenge> accessed 30 November 2022

²³ The Guardian, 'Leaked Prevent review attacks ‘double standards’ on far right and Islamists' (16 May 2022) <https://www.theguardian.com/uk-news/2022/may/16/leaked-prevent-review-attacks-double-standards-on-rightwingers-and-islamists> accessed 30 November 2022

²⁴ Liberty, 'Rights groups boycott Prevent Review' (16 February 2021) <https://www.libertyhumanrights.org.uk/issue/rights-groups-boycott-prevent-review/> accessed 30 November 2022

²⁵ The Guardian, 'Hundreds of Islamic groups boycott Prevent review over choice of chair' (17 March 2021) <https://www.theguardian.com/uk-news/2021/mar/17/hundreds-islamic-groups-boycott-prevent-review-william-shawcross-protest> accessed 30 November 2022

²⁶ The Guardian, 'Quarter of Charity Commission inquiries target Muslim groups' (16 November 2014) <https://www.theguardian.com/society/2014/nov/16/charity-commission-inquiries-muslim-groups> accessed 30 November 2022

²⁷ A/HRC/60/288

²⁸ OHCHR, 'End of Mission Statement of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance at the Conclusion of Her Mission to the United Kingdom of Great Britain and Northern Ireland' (OHCHR, May 2018) <https://www.ohchr.org/en/statements/2018/05/end-mission-statement-special-rapporteur-contemporary-forms-racism-racial?LangID=E&NewsID=23073> accessed 7 November 2022

²⁹ ibid.

³⁰ OL GBR 7/2018

³¹ International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entered into force 4 January 1969) (ICERD) art 5

³² CERD/C/GBR/CO/21-23

³³ Ilias Bantekas and Lutz Oette, International Human Rights Law and Practice (3rd edn, Cambridge University Press 2020) 419

³⁴ Runnymede Trust, 'England Civil Society Submission to the United Nations Committee on the Elimination of Racial Discrimination' (Civil Society Report to United Nations CERD, July 2021) <https://www.runnymedetrust.org/publications/civil-society-report-to-united-nations-cerd> accessed 7 November 2022

³⁵ Ivona Truscan and Joanna Bourke-Martignoni, 'International Human Rights Law and Intersectional Discrimination' [2016] 16(1) Equal Rights Review 103

³⁶ CERD, General Recommendation No 32: The meaning and scope of special measures in the International Convention on the Elimination of Racial Discrimination, 6 October 2009, CERD/C/GC/32; 17 IHRR 306 (2010) at para 7.

³⁷ P.S.N. v Denmark (CERD/C/71/D/36/2006), para. 6.3.

³⁸ Report of the Committee on the Elimination of Racial Discrimination, UN doc. A/73/18 (2018) para. 44.

³⁹ Ilias Bantekas and Lutz Oette, International Human Rights Law and Practice (3rd edn, Cambridge University Press 2020) 444

⁴⁰ Kristin Henrard, 'State Obligations to Counter Islamophobia: Comparing Fault Lines in the International Supervisory Practice of the HRC/ICCPR, the ECtHR and the AC/FCNM' [2020] 13(3) Erasmus Law Review 85

⁴¹ Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 9

⁴² ibid. art 14

⁴³ Kristin Henrard, 'State Obligations to Counter Islamophobia: Comparing Fault Lines in the International Supervisory Practice of the HRC/ICCPR, the ECtHR and the AC/FCNM' [2020] 13(3) Erasmus Law Review 85

⁴⁴ Gillan and Quinton v the United Kingdom (2010) 2 EHRR 126

⁴⁵ Ireland v UK (1978) 2 EHRR 25, paras 225–32

⁴⁶ Kristin Henrard, 'State Obligations to Counter Islamophobia: Comparing Fault Lines in the International Supervisory Practice of the HRC/ICCPR, the ECtHR and the AC/FCNM' [2020] 13(3) Erasmus Law Review 97