United Nations

International Convention on
the Elimination of All Formsof Racial Discrimination

CERD/C/GC/36
Distr.: General
17 December 2020
Original: English

Committee on the Elimination of Racial Discrimination

General recommendation No. 36 (2020) on preventing andcombating racial profiling by law enforcement officials*
I. Introduction
1.
At its ninety-second session, the Committee on the Elimination of Racial
Discrimination decided to hold a discussion on the theme “Racial discrimination in today’s
world: racial profiling, ethnic cleansing and current global issues and challenges”. The
thematic discussion took place in Geneva on 29 November 2017 and was focused on
analysing the experiences, challenges and lessons learned in working to combat racial
profiling and ethnic cleansing to date and on how the Committee could strengthen its work
against racial profiling and ethnic cleansing, for greater impact on the ground.
2.
Following the discussion, the Committee expressed its intention to work on draftinga general recommendation to provide guidance on preventing and combating racial profilingin order to assist States parties in discharging their obligations, including reporting
obligations. The present general recommendation is of relevance to all stakeholders in thefight against racial discrimination, and through its publication the Committee seeks tocontribute to the strengthening of democracy, the rule of law, and peace and security amongcommunities, peoples and States.
3.
At its ninety-eighth session, the Committee began deliberations with a view to draftinga general recommendation on preventing and combating racial profiling, in consultation withall interested parties.1 The Committee also held debates with academics from various fields,with an emphasis on the implications of artificial intelligence on racial profiling.

II. Established principles and practice4.
In drafting the present general recommendation, the Committee has taken account of
its extensive practice in addressing racial profiling by law enforcement officials, primarily inthe context of the review of State party reports and in key general recommendations. The
Committee explicitly addressed the issue of racial profiling in its general recommendation
No. 30 (2004) on discrimination against non-citizens, in which it recommended that States
ensure that any measures taken in the fight against terrorism did not discriminate, in purpose
or effect, on the grounds of race, colour, descent, or national or ethnic origin and that noncitizens were not subjected to racial or ethnic profiling or stereotyping (para. 10); in its
general recommendation No. 31 (2005) on the prevention of racial discrimination in theadministration and functioning of the criminal justice system, in which the Committee
recommended that States parties take the necessary steps to prevent questioning, arrests andsearches which are in reality based solely on the physical appearance of a person, that
* Adopted by the Committee at its 102nd session (16–24 November 2020).
1

The contributions for the draft general recommendation are available at:www.ohchr.org/EN/HRBodies/CERD/Pages/GC36.aspx.

GE.20-17272(E)CERD/C/GC/36

person’s colour or features or membership of a racial or ethnic group, or any profiling which
exposes him or her to greater suspicion (para. 20); and in general recommendation No. 34(2011) on racial discrimination against people of African descent, in which the Committee
recommended that States take resolute action to counter any tendency to target, stigmatize,
stereotype or profile people of African descent on the basis of race, by law enforcement
officials, politicians and educators (para. 31). Other recommendations are also relevant toracial profiling, such as general recommendation No. 13 (1993) on the training of law
enforcement officials in the protection of human rights, in which the Committee stressed that
law enforcement officials should receive training to ensure they uphold the human rights ofall persons without distinction as to race, colour or national or ethnic origin (para. 2); generalrecommendation No. 23 (1997) on the rights of indigenous peoples, in which the Committee
stressed that indigenous peoples should be free from any discrimination, in particular thatbased on indigenous origin or identity (para. 4 (b)); general recommendation No. 27 (2000)
on discrimination against Roma, in which the Committee recommended that States, taking
into account their specific situations, take measures to prevent illegal use of force by police
against Roma, particularly in connection with arrest and detention (para. 13), and to build
trust between Roma communities and the police; general recommendation No. 32 (2009) on
the meaning and scope of special measures in the Convention, in which the Committee
mentioned the concept of “intersectionality”, whereby the Committee addressed situations ofdouble or multiple discrimination – such as discrimination on grounds of gender or religion– when discrimination on such a ground appeared to exist in combination with a ground or
grounds listed in article 1 of the Convention (para. 7); and general recommendation No. 35(2013) on combating racist hate speech.
5.
The Committee, in its concluding observations, has repeatedly expressed concern
about the use of racial profiling by law enforcement officials and has recommended that
States parties take measures to put an end to the practice.2
6.
In addition, several other international human rights mechanisms have explicitly
highlighted racial profiling as a violation of international human rights law. In 2009, throughits decision in the case Williams Lecraft v. Spain,3 the Human Rights Committee became thefirst treaty body to directly acknowledge racial profiling as unlawful discrimination. In more
recent concluding observations, the Human Rights Committee has regularly expressed
concern at the continuous practice of racial profiling by law enforcement officials, targetingin particular specific groups such as migrants, asylum seekers, people of African descent,indigenous peoples, and members of religious and ethnic minorities, including Roma; 4 theconcern has been echoed by the Committee against Torture.5
7.
In the Durban Programme of Action, adopted by Member States at the World
Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance,
held in Durban, South Africa, in 2001, States were urged to design, implement and enforce
effective measures to eliminate racial profiling, comprising the practice of police and otherlaw enforcement officials relying, to any degree, on race, colour, descent or national or ethnic
origin as the basis for subjecting persons to investigatory activities or for determining
whether an individual was engaged in criminal activity (para. 72).
8.
In a report submitted to the Human Rights Council in 2007, the Special Rapporteuron the promotion and protection of human rights and fundamental freedoms while countering
terrorism noted that, since 11 September 2001, law enforcement authorities in various States
had adopted measures on the basis of terrorist profiles, which included characteristics suchas a person’s presumed race, ethnicity, national origin or religion. The Special Rapporteur2

CERD/C/RUS/CO/23-24, paras. 15–16; CERD/C/CAN/CO/21-23, paras. 15–16;
CERD/C/ITA/CO/19-20, paras. 27–28; CERD/C/ESP/CO/21-23, para. 27; CERD/C/SVN/CO/8-11,
para. 8 (d); CERD/C/POL/CO/20-21, para. 11; CERD/C/NLD/CO/19-21, paras. 13–15;
CERD/C/CHE/CO/7-9, para. 14; and CERD/C/USA/CO/7-9, paras. 8 and 18.
3 CCPR/C/96/D/1493/2006.
4 CCPR/C/NZL/CO/6, paras. 23–24; CCPR/C/AUT/CO/5, paras. 19–20; CCPR/C/FRA/CO/5, para. 15;
CCPR/C/ESP/CO/6, para. 8; CCPR/C/RUS/CO/7, para. 9; and CCPR/C/USA/CO/4, para. 7.
5 CAT/C/USA/CO/3-5, para. 26; CAT/C/CPV/CO/1, para. 20; CAT/C/ARG/CO/5-6, para. 35; andCAT/C/NLD/CO/7, paras. 44–45.
2

CERD/C/GC/36

stressed that terrorist-profiling practices based on “race” were incompatible with humanrights principles, were unsuitable and ineffective means of identifying potential terrorists,and entailed considerable negative consequences that might render such measurescounterproductive in the fight against terrorism.6
9.
The present general recommendation is also drafted within the framework of, and asa contribution to, the implementation of the 2030 Agenda for Sustainable Development, with
its overarching commitments to leave no one behind and reach the furthest behind first, which
provide critical entry points to and opportunities for the Committee’s work, particularly withregard to Sustainable Development Goal 10, on reducing inequality within and among
countries, and Goal 16, on promoting peaceful and inclusive societies for sustainable
development, providing access to justice for all and building effective, accountable andinclusive institutions at all levels.

III. Scope
10.
The Committee has often expressed its concern about the use of racial profiling by
law enforcement officials targeting various minority groups based on specific characteristics,
such as a person’s presumed race, skin colour, descent or national or ethnic origin. The
Committee has expressed concern at reports of law enforcement officials, such as police
officers and border control officials, while carrying out their duties, engaging in arbitrary
police stops, arbitrary identity checks, random inspections of objects in the possession of any
person in railway stations, trains and airports, and arbitrary arrests. 7 The Committee has notedwith concern that racial profiling has increased owing to contemporary concerns about
terrorism and migration that exacerbate prejudice and intolerance towards members of certain
ethnic groups.
11.
The Committee has recognized that specific groups, such as migrants, refugees andasylum seekers, people of African descent, indigenous peoples, and national and ethnic
minorities, including Roma, are the most vulnerable to racial profiling. 8
12.
In addition, the Committee observes that the increasing use of new technological tools,
including artificial intelligence, in areas such as security, border control and access to social
services, has the potential to deepen racism, racial discrimination, xenophobia and otherforms of exclusion. However, in the present general recommendation, the Committee focuseson algorithmic decision-making and artificial intelligence in relation to racial profiling by
law enforcement officials; therefore, many other topics related to potentially harmful
artificial intelligence are outside of its scope. While aware that, in some areas, artificial
intelligence can contribute to greater effectiveness in a number of decision-making processes,
the Committee also realizes that there is a real risk of algorithmic bias when artificial
intelligence is used in decision-making in the context of law enforcement. Algorithmic
profiling raises serious concerns, and the consequences with regard to the rights of the victims
could be very serious.

IV. Defining and understanding racial profiling
13.
There is no universal definition of racial profiling in international human rights law.
However, as a persistent phenomenon in all regions of the world, various international andregional human rights bodies and institutions have adopted definitions of racial profiling,which have a number of common elements. Racial profiling is: (a) committed by law
enforcement authorities; (b) is not motivated by objective criteria or reasonable justification;(c) is based on grounds of race, colour, descent, national or ethnic origin or their intersection
with other relevant grounds, such as religion, sex or gender, sexual orientation and gender

6

A/HRC/4/26, paras. 34 and 83.
CERD/C/MUS/CO/20-23 and Corr.1, paras. 20–21; CERD/C/BLR/CO/20-23, paras. 23–24;
CERD/C/ESP/CO/21-23, para. 27; and CERD/C/DEU/CO/19-22, para. 11.
8 CERD/C/MUS/CO/20-23 and Corr.1, para. 20; and CERD/C/RUS/CO/23-24, paras. 15 (b) and 16(c); CERD/C/CAN/CO/21-23, paras. 15 and 16 (a)–(d); and CERD/C/ITA/CO/19-20, paras. 27–28.
73

CERD/C/GC/36

identity, disability and age, migration status, or work or other status; (d) is used in specificcontexts, such as controlling immigration and combating criminal activity, terrorism or otheractivities that allegedly violate or may result in the violation of the law.
14.
Racial profiling is committed through behaviour or through acts such as arbitrary
stops, searches, identity checks, investigations and arrests.
15.
The Inter-American Commission on Human Rights has defined racial profiling as atactic adopted for supposed reasons of public safety and protection motivated by stereotypes
based on race, colour, ethnicity, language, descent, religion, nationality or place of birth, ora combination of these factors, rather than on objective suspicions, which tends to single out
individuals or groups in a discriminatory way based on the erroneous assumption that people
with such characteristics are prone to engage in specific types of crimes. 9 The Arab Human
Rights Committee has submitted that racial profiling can be defined as the use by law
enforcement agents of generalizations or stereotypes related to presumed race, colour,
descent, nationality, place of birth, or national or ethnic origin – rather than objective
evidence or individual behaviour – as a basis for identifying a particular individual as being,or having been, engaged in a criminal activity, resulting in discriminatory decision-making.10
In its general policy recommendation No. 11 on combating racism and racial discriminationin policing, adopted in 2007, the European Commission against Racism and Intolerance
defined racial profiling as the use by the police, with no objective and reasonable justification,of grounds such as race, colour, language, religion, nationality or national or ethnic origin incontrol, surveillance or investigative activities.
16.
In a report submitted to the Human Rights Council in 2015, the Special Rapporteuron contemporary forms of racism, racial discrimination, xenophobia and related intolerance
indicated that racial and ethnic profiling by law enforcement officials was commonly
understood to mean a reliance by law enforcement, security and border control personnel on
race, colour, descent or national or ethnic origin as a basis for subjecting persons to detailed
searches, identity checks and investigations, or for determining whether an individual was
engaged in criminal activity.11
17.
The United Nations High Commissioner for Human Rights has stated that racial
profiling refers to the process by which law enforcement relies on generalizations based on
race, colour, descent or national or ethnic origin, rather than objective evidence or individual
behaviour, to subject people to stops, detailed searches, identity checks and investigations,or for deciding that an individual was engaged in criminal activity. Racial profiling, then,results in discriminatory decision-making. The High Commissioner has further pointed out
that, whether arising from the attitudes and practices of individual officers or thediscriminatory culture or policies of law enforcement agencies, racial profiling is a longstanding practice in many agencies.12
18.
For the purposes of the present general recommendation, racial profiling is understoodas it is described in paragraph 72 of the Durban Programme of Action, that is, the practice ofpolice and other law enforcement relying, to any degree, on race, colour, descent or nationalor ethnic origin as the basis for subjecting persons to investigatory activities or for
determining whether an individual is engaged in criminal activity. In this context, racial
discrimination often intersects with other grounds, such as religion, sex and gender, sexual
orientation and gender identity, disability, age, migration status, and work or other status.
19.
Racial profiling by law enforcement officials may also include raids, border andcustom checks, home searches, targeting for surveillance, operations to maintain or reestablish law and order or immigration decisions. These actions may variously take place inthe context of street policing and antiterrorism operations.13

Inter-American Commission on Human Rights, “The situation of people of African descent in theAmericas” (2011), para. 143.
10 See the contribution of the Arab Human Rights Committee.
11 A/HRC/29/46, para. 2.
12 United Nations, Preventing and Countering Racial Profiling of People of African Descent: Good
Practices and Challenges (2019), p. v.
13 See A/73/354.
94

CERD/C/GC/36

20.
Racial profiling is linked to stereotypes and biases, which can be conscious or
unconscious, and individual or institutional and structural. Stereotyping becomes a violationof international human rights law when stereotypical assumptions are put into practice toundermine the enjoyment of human rights.14

V. Principles and general obligations under the Convention
21.
The identification, prevention and combating of the practice of racial profiling by law
enforcement officials is integral to the achievement of the objectives of the International
Convention on the Elimination of All Forms of Racial Discrimination. The practice of racial
profiling by law enforcement officials violates fundamental principles of human rights,
which rest on: (a) non-discrimination based on grounds of race, colour, descent, or nationalor ethnic origin, or other intersecting grounds; and (b) equality before the law. It may also
violate due process and fair trial rights. These principles and rights are the anchors of the
Universal Declaration of Human Rights (arts. 2 and 7) and the Convention (arts. 2 and 5 (a)).
22.
In the preamble to the Convention it is emphasized that all human beings are equal
before the law and are entitled to equal protection of the law against any discrimination andagainst any incitement to discrimination. While the term racial profiling is not explicitly
referred to in the Convention, this has not impeded the Committee from identifying racial
profiling practices and exploring the relationship between racial profiling and the standards
set out in the Convention.
23.
Under article 2 of the Convention, each State undertakes to engage in no act or practiceof racial discrimination against persons, groups of persons or institutions and to ensure thatall public authorities and institutions, national and local, act in conformity with this obligation.
As racial profiling is a practice that has the potential to promote and perpetuate racist
incidents and racial prejudice and stereotypes, 15 it runs counter to the very idea of theConvention. Accordingly, States parties are obliged to review their policies, laws andregulations with a view to ensuring that racial profiling does not take place and is notfacilitated. States parties are obliged to actively take steps to eliminate discrimination throughlaws, policies and institutions. The prohibition on engaging in acts of racial profiling and theobligation to ensure that public authorities and institutions do not apply practices of racial
profiling are furthermore derived from article 5 of the Convention. The practice of racial
profiling is incompatible with the right of everyone, without distinction as to race, colour, or
national or ethnic origin, to equality before the law and to equal treatment. It is, furthermore,incompatible with the non-discriminatory guarantee of other civil rights, such as the right tofreedom of movement.
24.
Under article 6 of the Convention, States parties have an obligation to assure to
everyone within their jurisdiction effective protection against any acts of racial
discrimination. Accordingly, States parties must take preventive measures in order to ensurethat public authorities and public institutions do not engage in practices of racial profiling.
Article 6 also requires States parties to ensure to everyone within their jurisdiction effective
remedies against any act of racial discrimination. States parties are obliged to ensure that
their domestic legal order contains adequate and effective mechanisms through which toassert that racial profiling has taken place and to bring such a practice to an end. States parties
must furthermore guarantee the right to seek just and adequate reparation or satisfaction fordamage suffered as a result of racial discrimination in the form of racial profiling. They mustensure that this right can be enforced in an effective manner. In light of the fact that thepractice of racial profiling regularly affects members of a particular group or groups, States
parties are encouraged to consider establishing mechanisms for the collective enforcement ofrights in the context of racial profiling.
25.
Article 7 of the Convention highlights the role of teaching, education, culture andinformation in combating racial discrimination. With regard to racial profiling, the fulfilment

See, for example, Simone Cusack, “Gender stereotyping as a human rights violation”, research reportcommissioned by the Office of the United Nations High Commissioner for Human Rights (2013).
15 See, for example, CERD/C/IRL/CO/3-4, para. 18.
14

5

CERD/C/GC/36

of the obligation of States parties not to engage in acts of racial discrimination depends upon
the conduct of public authorities and public institutions. It is therefore of paramountimportance that national law enforcement officials in particular are properly informed of their
obligations.16 Since racial profiling is often the result of well-established and unchallenged
practices of public authorities and public institutions, States parties must ensure that nationallaw enforcement officials are sufficiently aware of how to avoid engaging in practices ofracial profiling. Raising such awareness can help to prevent the implementation of racial
profiling practices and to overcome them where they are entrenched. Accordingly, States
parties should ensure that the personnel of public authorities and institutions who engage inlaw enforcement are properly trained to ensure that they do not engage in practices of racial
profiling.

VI. Consequences of racial profiling
26.
Racial profiling has negative and cumulative effects on the attitudes and well-beingof individuals and communities,17 given that a person may be regularly subjected to racial
profiling in his or her daily life. Victims of racial profiling often understate and interiorize its
impact in the face of a lack of effective remedies and restorative tools. In addition to being
unlawful, racial profiling may also be ineffective and counterproductive as a general law
enforcement tool. People who perceive that they have been subjected to discriminatory law
enforcement actions tend to have less trust in law enforcement and, as a result, tend to be lesswilling to cooperate, thereby potentially limiting the effectiveness of law enforcement. Racial
profiling practices influence daily routines of law enforcement and undermine, whether
through conscious or unconscious actions, the capacity to support victims of crimes
belonging to the affected communities. A sense of injustice and humiliation, the loss of trustin law enforcement, secondary victimization, fear of reprisals and limited access to
information about legal rights or assistance may result in reduced reporting of crimes andreduced information for intelligence purposes.
27.
Racial profiling and hate speech are closely interrelated, and the Committee has often
addressed those two forms of discrimination simultaneously. 18 The dissemination of ideas
based on racial or ethnic hatred, the persistent use of hate speech in the media and the use of
racist political discourse by public officials exacerbate discrimination and stereotyping by
law enforcement officers. Ethnic groups that are subjected to hate speech will also becometargets of racial profiling. Moreover, racial profiling by law enforcement portrays groups thatface racial discrimination as more prone to commit crimes, which will influence the public
discourse and increase the dissemination of racist hatred.
28.
Racial profiling may also have a negative impact on people’s enjoyment of civil andpolitical rights, including the rights to life (article 6 of the International Covenant on Civil
and Political Rights), liberty and security of person (art. 9), privacy (art. 17) and liberty of
movement (art. 12), freedom of association (art. 22) and to an effective remedy (art. 2 (3)).
29.
The full enjoyment of people’s economic, social and cultural rights, such as the rightto adequate housing (article 11 of the International Covenant on Economic, Social andCultural Rights), health (art. 12), education (arts. 13–14) and work (art. 6), could also beaffected by racial profiling.19
30.
Racial profiling by law enforcement officials has far-reaching consequences at alllevels of administration of the justice system, particularly in the criminal justice system.
Racial profiling can lead to, among other things: (a) the overcriminalization of certain
categories of persons protected under the Convention; (b) the reinforcement of misleading
stereotypical associations between crime and ethnicity and the cultivation of abusive

16

See general recommendation No. 13 (1993).
See, for example, A/HRC/24/52/Add.2, para. 57.
18 CERD/C/RUS/CO/23-24, paras. 15–16; CERD/C/SVN/CO/8-11, paras. 8–9; and
CERD/C/AUS/CO/18-20, para. 14.
19 See also article 5 of the International Convention on the Elimination of All Forms of Racial
Discrimination.
17

6

CERD/C/GC/36

operational practices; (c) disproportionate incarceration rates for groups protected under theConvention; (d) the higher vulnerability of persons belonging to groups protected under theConvention to abuse of force or authority by law enforcement officials; (e) the underreportingof acts of racial discrimination and hate crimes; and (f) the handing down by courts of harsher
sentences against members of targeted communities.

VII. Algorithmic profiling and racial bias and discrimination
31.
Owing to rapid advances in technological development, the actions of law
enforcement officials are increasingly determined or informed by algorithmic profiling, 20
which may include big data, automated decision-making and artificial intelligence tools andmethods.21 While such advances have the potential to increase the accuracy, effectivenessand efficiency of the decisions and actions of law enforcement officials, there is a great riskthat they may also reproduce and reinforce biases and aggravate or lead to discriminatory
practices. 22 Given the opacity of algorithmic analytics and decision-making, in particularwhen artificial intelligence methods are employed, discriminatory outcomes of algorithmic
profiling can often be less obvious and more difficult to detect than those of human decisions
and thus more difficult to contest.23 In addition, human rights defenders generally are notadequately equipped technologically to identify such discriminatory methods.
32.
There are various entry points through which bias could be ingrained into algorithmic
profiling systems, including the way in which the systems are designed, decisions as to theorigin and scope of the datasets on which the systems are trained, societal and cultural biases
that developers may build into those datasets, the artificial intelligence models themselves
and the way in which the outputs of the artificial intelligence model are implemented inpractice. 24 In particular, the following data-related factors may contribute to negative
outcomes: (a) the data used include information concerning protected characteristics; (b) socalled proxy information is included in the data, for example, postal codes linked tosegregated areas in cities often indirectly indicate race or ethnic origin; (c) the data used are
biased against a group;25 and (d) the data used are of poor quality, including because they arepoorly selected, incomplete, incorrect or outdated.26
33.
Particular risks emerge when algorithmic profiling is used for determining the
likelihood of criminal activity either in certain localities, or by certain groups or evenindividuals. Predictive policing that relies on historical data for predicting possible future
events can easily produce discriminatory outcomes, in particular when the datasets usedsuffer from one or more of the flaws described above. 27 For example, historical arrest data
20

Algorithmic profiling includes any step-by-step computerized technique used for analysing data toidentify trends, patterns or correlations. European Union Agency for Fundamental Rights, Preventing
Unlawful Profiling Today and in the Future: A Guide (2018), p. 97.
21 Although widely used, the term “artificial intelligence” is not clearly defined. The Special Rapporteuron the promotion and protection of the right to freedom of opinion and expression has noted that
artificial intelligence is often used as shorthand for the increasing independence, speed and scaleconnected to automated, computational decision-making. It is not one thing only, but rather refers to a“constellation” of processes and technologies enabling computers to complement or replace specifictasks otherwise performed by humans, such as making decisions and solving problems (A/73/348,
para. 2).
22 See A/HRC/44/57.
23 AI Now, “The AI Now report: the social and economic implications of artificial intelligence
technologies in the near-term”, summary of the AI Now public symposium hosted by the WhiteHouse and the Information Law Institute of New York University on 7 July 2016, p. 7.
24 A/73/348, para. 38.
25 For example, when past discriminatory practices, such as arrests disproportionately affecting
members of one group, are reflected in the data used for profiling, it will affect the outcomes ofalgorithmic profiling.
26 European Union Agency for Fundamental Rights, “#BigData: discrimination in data-supported
decision making”, FRA Focus paper (2018), pp. 4–5.
27 See Rashida Richardson, Jason M. Schultz and Kate Crawford, “Dirty data, bad predictions: how civilrights violations impact police data, predictive policing systems, and justice”, New York University
Law Review, vol. 94 (May 2019).
7

CERD/C/GC/36

about a neighbourhood may reflect racially biased policing practices. If fed into a predictive
policing model, use of these data poses a risk of steering future predictions in the same, biased
direction, leading to overpolicing of the same neighbourhood, which in turn may lead to morearrests in that neighbourhood, creating a dangerous feedback loop.
34.
Similar mechanisms have been reported to be present in judicial systems. 28 When
applying a sanction, or deciding whether someone should be sent to prison, be released onbail or receive another punishment, States are increasingly resorting to the use of algorithmic
profiling, in order to foresee the possibilities that an individual may commit one or several
crimes in the future. Authorities gather information regarding the criminal history of theindividual, their family and their friends and their social conditions, including their work andacademic history, in order to assess the degree of “danger” posed by the person from a scoreprovided by the algorithm, which usually remains secret. This use of algorithmic profilingraises concerns similar to those described in paragraph 33 above.
35.
The increasing use of facial recognition and surveillance technologies to track andcontrol specific demographic groups raises concerns with respect to many human rights,
including the right to privacy, freedom of peaceful assembly and association, freedom of
expression and freedom of movement. It is designed to automatically identify individuals
based on their facial geometry, 29 potentially profiling people based on grounds of
discrimination such as race, colour, national or ethnic origin or gender. 30 Cameras equippedwith real-time facial recognition technology are widely applied for the purpose of flagging
and tracking of individuals,31 which may enable Governments and others to keep records ofthe movements of large numbers of individuals, possibly based on protected characteristics. 32
Moreover, it has been demonstrated that the accuracy of facial recognition technology may
differ depending on the colour, ethnicity or gender of the persons assessed, which may leadto discrimination.33
36.
In some instances, algorithms are being employed in DNA testing to determine theethnicity or nationality of individuals. The results of such DNA testing can lead to profiling.
The Committee notes, in line with consensus among the scientific community, that there are
no direct linkages between an individual’s DNA composition and their ethnicity or
nationality. Therefore, the Committee condemns the use of DNA profiling by States and law
enforcement authorities, especially border security. Additionally, results of DNA profilinghave been used by law enforcement authorities to make false claims that certain ethnic
minorities are more prone to violence and, in turn, those groups have been subjected todiscriminatory police practices.34

VIII. Recommendations
37.
A variety of strategies have been adopted by Governments, law enforcement agencies
and civil society organizations to counter the problem of racial profiling. The Committee isof the view that those strategies provide the basis for its recommendations to States and otheractors.

See, for example, Julia Angwin and others, “Machine bias”, ProPublica, 23 May 2016.
A/HRC/44/57, para. 14.
30 A/HRC/41/35, para. 12.
31 A/HRC/39/29, para. 14.
32 A/HRC/41/35, para. 12.
33 See Joy Buolamwini and Timnit Gebru, “Gender shades: intersectional accuracy disparities incommercial gender classification”, Proceedings of Machine Learning Research, vol. 81 (2018) on theproceedings of the Conference on Fairness, Accountability, and Transparency; and Inioluwa Deborah
Raji and Joy Buolamwini, “Actionable auditing: investigating the impact of publicly naming biased
performance results of commercial AI products” (2019), Conference on Artificial Intelligence, Ethics,
and Society.
34 Ruha Benjamin, Race After Technology: Abolitionist Tools for the New Jim Code (Polity, 2019).
28
29

8

CERD/C/GC/36

A.

Legislative and policy-related measures
38.
As a prerequisite, and without prejudice to further measures, comprehensive
legislation against racial discrimination, including civil and administrative law as well as
criminal law, is indispensable to combating racial profiling effectively. States should develop
and effectively implement laws and policies that define and prohibit racial profiling by law
enforcement officials. Such measures should be accompanied by clear guidance for law
enforcement agencies, ensuring that internal policies, including standard operatingprocedures and codes of conduct, are in line with human rights standards and principles.
States should also be aware of laws and regulations that potentially enable or facilitate racial
profiling. They should conduct studies to identify such laws and amend or repeal themaccordingly.
39.
States should ensure that law enforcement agencies develop, in consultation with
relevant groups, detailed guidelines for stop-and-search practices with precise standards, inorder to prevent racial profiling. They should establish effective, independent monitoringmechanisms, both internal and external, and envisage disciplinary measures for applicationin cases of misconduct. They should also carry out periodic audits, with the help of
independent experts, to identify gaps in internal policies and practices. Transparency aroundthe outcomes of such procedures is strongly recommended, as it may strengthen law
enforcement accountability and trust among targeted individuals and communities.
40.
In accordance with article 6 of the Convention, States must assure to everyone within
their jurisdiction effective protection and remedies against any acts of racial discrimination
which violate his or her human rights and fundamental freedoms contrary to the Convention,
as well as the right to seek just and adequate reparation or satisfaction for any damage
suffered as a result of such discrimination.
41.
States are encouraged to adopt victim-centred approaches and to coordinate theirsupport services effectively by promoting models of cooperation among the authorities,
communities, civil society organizations, including those representing groups experiencing
intersecting forms of discrimination, and national human rights institutions. The Committee
stresses the interconnection between articles 5 (a) and 6 of the Convention and notes that
judicial authorities and other organs administering justice should be effectively consulted andinvolved in such processes to prevent the perpetuation of a racial profiling effect in criminal
proceedings.

B.

Human rights education and training
42.
States should develop specialized, mandatory training programmes for law
enforcement agencies that raise awareness among law enforcement officials about the impactof biases on their work and that demonstrate how to ensure non-discriminatory conduct.
Stigmatized groups, including those whose members experience intersecting forms of
discrimination, should be engaged in the development and delivery of such training, where
possible. Law enforcement agencies should ensure that in-service training to counter
discrimination and bias-based policing is complemented by institutional interventions aimed
at limiting discretion and increased oversight in areas vulnerable to stereotyping and biases.
In addition, given concerns about the limitations of training on changing attitudes andbehaviour, non-discrimination and bias training should be regularly evaluated and updated toensure that it has the desired impact.
43.
Both artificial intelligence experts and officials who interpret data must have a clear
understanding of fundamental rights in order to avoid the entry of data that may contain or
result in racial bias. States should provide training on racism and racial discrimination forexperts and officials who interpret data, judicial officers and law enforcement officers, among
others. States should develop procurement policies based on mandatory terms prohibiting
racial discrimination.
44.
States, in cooperation with national human rights institutions and specialized entities,
should promote the training of civil society organizations on algorithmic bias and emerging
technologies.
9

CERD/C/GC/36

45.
Human rights education and training are vital to ensuring that police officers do notdiscriminate. National human rights institutions, in cooperation with civil society
organizations, can play a central role in training law enforcement officials, in auditing newtechnological tools that could lead to discrimination and in identifying other risks inpractice.35

C.

Recruitment measures
46.
States should ensure that law enforcement agencies develop recruitment, retention andadvancement strategies that promote a diverse workforce that reflects the composition of the
populations they serve. Such strategies could include setting internal quotas and developinga recruitment programme for ethnic minorities. This has the potential to influence the cultureof agencies and the attitudes of staff with a view to producing less biased decision-making.
47.
States should ensure that law enforcement agencies regularly evaluate recruitment andpromotion policies and, if necessary, undertake temporary special measures to effectively
address the underrepresentation of various national or ethnic minority groups and of groups
experiencing intersecting forms of discrimination based on, inter alia, religion, sex andgender, sexual orientation, disability and age.

D.

Community policing
48.
States should ensure that law enforcement agencies develop strategies for effective
engagement with individuals and groups facing racial discrimination that take into accountthe unique context, dynamics and needs of different communities. This should help toimprove communication and reduce levels of distrust and of racial profiling. Policecommunity dialogue should be expanded beyond community leaders, as many groups,
including women, are underrepresented at the community leadership level and may need
dedicated and sensitive outreach efforts. Young people who are most commonly targeted bypolice would be a key example.
49.
States should adopt measures to ensure that public information from the police andother law enforcement agencies is based on reliable and objective statistics and does not
perpetuate stereotypes and bias against ethnic groups that are subjected to discrimination. In
addition, States should refrain from releasing personal data about alleged perpetrators thatare linked to presumed race, colour, descent or national or ethnic origin, unless suchdisclosure is strictly necessary and serves a legitimate purpose, such as in the case of a wanted
notice.

E.

Disaggregated data
50.
States should regularly collect and monitor disaggregated quantitative and qualitative
data on relevant law enforcement practices, such as identity checks, traffic stops and bordersearches, which include information on the prohibited grounds for racial discrimination,
including its intersecting forms, as well as the reason for the law enforcement action and theoutcome of the encounter. The anonymized statistics generated by such practices should bemade available to the public and discussed with local communities. The data should becollected in accordance with human rights standards and principles, data protection
regulations and privacy guarantees. This information must not be misused.
51.
States should also guard against forms of automated processing of personal dataconsisting of the use of personal data to evaluate certain personal aspects relating to a natural
person, in particular to analyse or predict aspects concerning that person’s performance at

35

10Contribution from Nicaragua.

CERD/C/GC/36

work, economic situation, health, personal preferences, interests, reliability, behaviour,
location or movements.36

F.

Accountability
52.
States should create a reporting mechanism, independent of law enforcement andother related agencies, for receiving complaints of racial discrimination, racism and racialand ethnic profiling from citizens.37 Such a mechanism must have the power to promptly andeffectively investigate allegations and work in concert with civil society and human rights
monitoring bodies. It must also report publicly on its findings in accordance with dataprotection regulations and human rights standards. Such mechanisms should take into
account the special needs of persons with disabilities in cases of intersectional discrimination.
53.
States should establish oversight mechanisms, both within and external to law
enforcement bodies, in order to prevent discriminatory behaviour; such mechanisms should
develop internal guidelines, policies and regulations to combat and prevent racial profilingand ensure internal accountability by taking disciplinary action against officials who violate
them.
54.
Incidents of racial profiling by law enforcement agencies should be investigatedeffectively, in accordance with international human rights standards. Those responsible
should be prosecuted and, if convicted, they should be sanctioned with appropriate penalties
and compensation should be granted to victims.
55.
States should ensure that senior officials within law enforcement agencies promote
non-discriminatory policies and practices within their agencies, rigorously monitor the
conduct of staff and hold staff accountable for misconduct through the internal, independent
oversight mechanism.38 These actions can be supported through the availability of data on
and analysis of the decision-making and practices of staff. Senior officials should also review
the impact of the application of legislation and operations, including those for countering
terrorism, which may have a disproportionate impact on marginalized groups andcommunities.
56.
National human rights institutions and civil society organizations are encouraged tomonitor incidents of racial profiling and assist victims of such profiling. They should increase
public awareness, publicize findings, lobby for reforms and engage constructively with law
enforcement agencies and other national and local institutions.
57.
International and regional human rights mechanisms, national human rights
institutions and equality bodies, civil society groups and members of the public should havethe possibility to make complaints regarding discriminatory practices of law enforcement
agencies. Members of the public should be able to file complaints through independent
mechanisms.

G.

Artificial intelligence58.
States should ensure that algorithmic profiling systems used for the purposes of law
enforcement are in full compliance with international human rights law. To that effect, before
procuring or deploying such systems States should adopt appropriate legislative,administrative and other measures to determine the purpose of their use and to regulate asaccurately as possible the parameters and guarantees that prevent breaches of human rights.
Such measures should, in particular, be aimed at ensuring that the deployment of algorithmic
36

Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on theprotection of natural persons with regard to the processing of personal data by competent authorities
for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the
execution of criminal penalties, and on the free movement of such data, and repealing Council
Framework Decision 2008/977/JHA, art. 3 (4).
37 European Commission against Racism and Intolerance, general policy recommendation No. 11, para.
10 and explanations.
38 See paragraph 53 above.
11

CERD/C/GC/36

profiling systems does not undermine the right not to be discriminated against, the right toequality before the law, the right to liberty and security of person, the right to the presumptionof innocence, the right to life, the right to privacy, freedom of movement, freedom of peacefulassembly and association, protections against arbitrary arrest and other interventions, and theright to an effective remedy.
59.
States should carefully assess the potential human rights impact prior to employing
facial recognition technology, which can lead to misidentification owing to a lack ofrepresentation in data collection. Before national deployment, States should consider a pilot
period under the supervision of an independent oversight body that is inclusive of individuals
who reflect the diverse composition of the population, to mitigate against any potential
instances of misidentification and profiling based on skin colour.
60.
States should ensure that algorithmic profiling systems deployed for law enforcement
purposes are designed for transparency, and should allow researchers and civil society toaccess the code and subject it to scrutiny. There should be continual assessment andmonitoring of the human rights impact of those systems throughout their life cycle, and Statesshould take appropriate mitigation measures if risks or harms to human rights are identified.
Those processes should examine potential and actual discriminatory effects of algorithmic
profiling based on grounds of race, colour, descent, or national or ethnic origin and theirintersection with other grounds, including religion, sex and gender, sexual orientation andgender identity, disability, age, migration status and work or other status. They should be
conducted prior to the development or acquisition of such systems, wherever possible, and at
the very least prior to and during the full period of the use of the systems. Such processes
should include community impact assessments. Groups that are potentially or actuallyaffected and relevant experts should be included in the assessment and mitigation processes.
61.
States should take all appropriate measures to ensure transparency in the use ofalgorithmic profiling systems. This includes public disclosure of the use of such systems andmeaningful explanations of the ways in which the systems work, the data sets that are being
used, and the measures in place to prevent or mitigate human rights harms.
62.
States should adopt measures to ensure that independent oversight bodies have amandate to monitor the use of artificial intelligence tools by the public sector, and to assessthem against criteria developed in conformity with the Convention to ensure they are notentrenching inequalities or producing discriminatory results. States should also ensure thatthe functioning of such systems is regularly monitored and evaluated in order to assess
deficiencies and to take the necessary corrective measures. When the results of an assessmentof a technology indicate a high risk of discrimination or other human rights violations, Statesshould take measures to avoid the use of such a technology.
63.
States should adopt measures to ensure that private sector design, deployment andimplementation of artificial intelligence systems in the area of law enforcement comply withhuman rights standards. States should also ensure the adoption and periodic revision ofguidelines and codes of conduct that companies must observe in the programming, use andcommercialization of algorithms that may lead to racial discrimination or, in general, anyother form of discrimination likely to be in violation of the Convention.
64.
States should adopt regulations ensuring that public sector bodies, private businessenterprises and other relevant organizations, in the process of developing, learning,marketing and using algorithms: (a) comply with the principle of equality and nondiscrimination, and respect human rights in general, in line with the Guiding Principles on
Business and Human Rights (in particular guiding principles 1–3, 11 and 24); (b) respect the
precautionary principle and any administrative or legislative measure enacted to ensuretransparency; (c) disclose publicly whether law enforcement has access to private data on
individuals; and (d) avoid causing disparate or disproportionate impact on the social groups
protected by the Convention.
65.
States should ensure that all instances of algorithmic bias are duly investigated andthat sanctions are imposed.
66.
States should ensure that companies that are developing, selling or operating
algorithmic profiling systems for law enforcement purposes have a responsibility to involve

12

CERD/C/GC/36

individuals from multiple disciplines, such as sociology, political science, computer scienceand law, to define the risks to, and ensure respect for, human rights. To that end, States should
encourage companies to carry out human rights due diligence processes, which entail: (a)conducting assessments to identify and assess any actual or potentially adverse human rights
impacts; (b) integrating those assessments and taking appropriate action to prevent andmitigate adverse human rights impacts that have been identified; (c) tracking theeffectiveness of their efforts; and (d) reporting formally on how they have addressed their
human rights impacts.39
67.
In the process of identifying, assessing, preventing and mitigating adverse humanrights impacts, companies should pay particular attention to the data-related factors outlined
in paragraph 27 above. Training data should be selected, and models designed, so as toprevent discriminatory outcomes and other adverse impacts on human rights. Moreover,companies should pursue diversity, equity and other means of inclusion in the teams
developing algorithmic profiling systems. Companies should also be open to independent
third-party audits of their algorithmic profiling systems.40 Where the risk of discriminationor other human rights violations has been assessed to be too high or impossible to mitigate,including because of the nature of a planned or foreseeable use by a State, private sector
actors should not sell or deploy an algorithmic profiling system.
68.
States should document cases of racial discrimination associated with artificial
intelligence, as well as prevention measures, sanctions and remedies, and include suchinformation in their reports to the Committee.
69.
Human rights bodies, States, national human rights institutions and civil society
organizations should carry out, and disseminate the results of, studies, identify good practices
on effective measures addressing racial biases derived from artificial intelligence, including
those related to human rights compliance and ethical aspects of machine learning, andidentify relevant criteria in terms of interpretation or transparency in the processes of the
programming and training of algorithms, and should do so through the lens of theInternational Convention on the Elimination of All Forms of Racial Discrimination.

39

A/HRC/39/29, para. 45; and Guiding Principles on Business and Human Rights, guiding principles
17–21. See also Amnesty International and Access Now, Toronto Declaration: Protecting the Right toEquality and Non-Discrimination in Machine Learning Systems.
40 See the Toronto Declaration: Protecting the Right to Equality and Non-Discrimination in Machine
Learning Systems.
13