European States’ Obligations to Repatriate the Children Detained in Camps in Northeast Syria Discrimination is the act of treating persons who are in similar situations differently,163 or a failure to treat differently persons who are in relevantly different situations, based on their identifiable characteristics or status. 164 In particular circumstances, a difference in treatment does not constitute discrimination only if it has an objective and reasonable justification, i.e. if it pursues a legitimate aim and if there is a reasonable relationship of proportionality between the means employed and the desired aim. 165 The prohibition on discrimination applies to laws, policies, and practices by States to combat terrorism and uphold national security. 166 While European and international law allows States to derogate from some of their human rights obligations in particular emergencies—which can include emergencies arising from acts of terrorism—this is permitted only in certain narrowly defined circumstances as set out by law. 167 According to the HRComm, there are elements or dimensions of the right to nondiscrimination that cannot be derogated from in any circumstances. 168 163 The ECtHR interprets direct discrimination as a “difference in the treatment of persons in analogous, or relevantly similar, situations,” which is “based on an identifiable characteristic,” see: ECtHR, “Carson and Others v. UK,” Application No. 42184/05, 16 March 2010, para. 61; ECtHR, “D.H. and Others v. the Czech Republic,” Application No. 57325/00, 13 November 2007, para. 175; ECtHR, “Burden v. UK,” Application No. 13378/05, 29 April 2008, para. 60. Note that direct discrimination is defined similarly under the EU law: EU Racial Equality Directive Article 2(2) states that “direct discrimination is taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin,” see: “EU Racial Equality Directive,” 27 November 2000, Official Journal L 180, 19/07/2000 P. 0022 – 0026. Similarly, see: “EU Employment Equality Directive,” Article 2(2)(a), 27 November 2000, Official Journal L 303, 02/12/2000 P. 0016 – 0022. 164 ECtHR case law recognizes indirect discrimination, stating that “a difference in treatment may take the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a group,” see: ECtHR, “D.H. and Others v. the Czech Republic,” Application No. 57325/00, 13 November 2007, para. 184; ECtHR, “Biao v. Denmark”, Application No. 38590/10, 24 May 2016, para. 103. Similarly, Article 2(2)(b) of the EU Racial Equality Directive states that “indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons”; See, also: EU Employment Equality Directive, Article 2(2)(b). 165 See: CoE/ECtHR, “Guide on Article 14 of the Convention (Prohibition of Discrimination) and on Article 1 of Protocol No. 12 (General Prohibition of Discrimination),” 31 August 2020, para. 49. See also: ECtHR, “Molla Sali v. Greece [GC],” Application No. 20452/14, 19 December 2018, para. 135; ECtHR, “Fábián v. Hungary [GC],” Application No. 78117/13, 5 September 2017, para. 113. However, note that while the approach of the ECtHR is to operate a generally phrased defence, in the context of both direct and indirect discrimination, “EU law provides only for specific limited defences to direct discrimination, and a general defence only in the context of indirect discrimination. In other words, under the nondiscrimination directives, direct discrimination will only be capable of being justified where it is in pursuit of particular aims expressly set out in those directives,” see: CoE and European Union Agency for Fundamental Rights, “Handbook on European Non-Discrimination Law,” July 2010, p. 43. 166 OSF and AI, “A Human Rights Guide for Researching Racial and Religious Discrimination in Counterterrorism in Europe,” 2021, pp. 27-28. 167 See: ICCPR, Article 4; ECHR, Article 15. 168 HRComm, “CCPR General Comment No. 29: Article 4: Derogations during a State of Emergency,” 2001, CCPR/C/21/Rev.1/Add.11, para. 8. 31