On 14 February, the Court of Appeal in The Hague made a historic ruling: the Royal Netherlands Marechaussee (KMar) is no longer allowed to select people at border controls based on their ethnicity. This ruling overturns an earlier court ruling that ethnic profiling is allowed. The Court's ruling is an essential step in countering discrimination and stigmatisation in the Netherlands. Abdessamad Bouabid, Associate Professor of Criminology at Erasmus School of Law, explains the significance of the ban on ethnic profiling for the KMar and society.
Several years ago, Mpanzu Bamenga filed a case against the state after he was selected out of a queue at Eindhoven Airport based on his black skin colour. Another affected citizen, human rights organisation Amnesty International, Control Alt Delete, RADAR and NJCM-PILP joined Bamenga in asking the court to ban ethnic profiling at the KMar. In 2021, the judge ruled that the KMar could continue to use ethnicity as a reason for control. The Court of Appeal is now reversing this. “This court's ruling is significant and groundbreaking because it has overturned the discriminatory judgement”, Bouabid says.
Not effective, but discriminatory
The case concerns Mobile Security Surveillance checks, which are used to check airline passengers, train passengers, and road users coming to the Netherlands from other EU countries. Within the EU, border controls are only allowed if they are checks to prevent illegal residence in the Netherlands. The state argued that skin colour or race could be relevant factors to consider in controls, for example, if many migrants from a particular country come to the Netherlands. At the time, the judge went along with this, ruling that nationality and ethnic appearance are relevant to the effectiveness of controls.
Bouabid, however, explains that this attitude leads to discrimination: “Dutch nationals who do not meet this profile of the judge and/or the KMar will be subjected to these controls more often than Dutch nationals who do. Moreover, scientific research shows that ethnic profiling is not at all effective but leads to a self-fulfilling prophecy.” The President of the Court of Appeal agrees with this and speaks of “a grave form of discrimination” when people are checked based on race, without objective and reasonable justification.
Norm confirmation is and remains a necessity
According to Bouabid, this ruling is also important as it is norm-affirming: “It confirms that all forms of ethnic profiling are discriminatory and serious human rights violations.” Law enforcement officers other than the KMar - the police, for example - have long been completely prohibited to use ethnic profiling. “At the same time, law enforcement officers who consciously or unconsciously ethnic profile will continue to do so because they think it is effective and cannot or do not want to see the negative consequences for people and society”, Bouabid highlights.
Therefore, to further combat discrimination within media and political discourses in society and the organisational cultures of law enforcement agencies, Bouabid points to two key issues. “First of all, the solution lies in recognising ethnic profiling occurs, that it is a major problem and has serious negative effects. A second step is to not give any space to and act more fiercely against those who target people based on skin colour, origin, or religion as potential criminals. In other words, norm confirmation within the state apparatus and all pillars of society.”
- Assistant professor