The Dutch State will not appeal the decision of the Court of Appeal of The Hague on ethnic profiling by the Royal Netherlands Marechaussee (KMar). The State is resigning itself to the court’s ruling, making it final. This is an important step in the fight against racism and discrimination. The lawsuit was filed by a coalition of two “non-white” citizens, Amnesty International, Control Alt Delete, RADAR and NJCM and conducted by PILP and Houthoff. The coalition now calls on the cabinet to take swift steps to ensure that other government organizations also stop allowing ethnicity to factor into citizen checks.
The lawsuit, filed in 2020, revolved around the question of whether the KMar may select people for a check in border controls partly because of their ethnicity. On Feb. 14, 2023, the appeals court ruled that the KMar’s current method is a form of racial discrimination and banned it. According to the court, ethnicity should in no way, not even a little bit, play a role in decisions to check people. According to the court, the State has not demonstrated or made it plausible that skin color or ethnic appearance can say anything about a person’s origin or nationality. In doing so, the court overturned the court’s earlier ruling that allowed ethnic profiling.
The court considered that ethnic profiling leads to Dutch citizens of color “not feeling accepted and second-class citizens” and that this working method of the KMar has “a negative effect on society as a whole.” Commenting on the ruling, Mpanzu Bamenga, one of the citizens who filed the lawsuit, said he feels strengthened in his conviction that racism has no place in our society. “The ruling is a historic victory for human dignity,” he said.
Marechaussee must change its methods immediately
The court ruled that the KMar had to adjust its working methods immediately, regardless of whether the State would appeal the ruling in cassation. It is currently unclear how the KMar has done this since Feb. 14, 2023. According to the coalition, it is important for the KMar to be transparent and publicly accountable about this.
Dionne Abdoelhafiezkhan of Control Alt Delete emphasizes:
‘To be sure that the KMar is no longer discriminating, it is necessary to record and evaluate all checks at the border. It is not enough if the KMar only pledges to stop using ethnicity in risk profiles and selection decisions. Dutch people of color must be assured that they are protected from ethnic profiling.’
Call: cabinet, take effective measures against ethnic profiling.
Immediately after the court’s ruling, State Secretary Eric van der Burg of Justice and Security informed the House of Representatives that the ruling applies not only to the KMar but also to other parts of the government where similar selection decisions and risk profiling are allegedly occurring. The coalition can only endorse this.
Ethnic profiling is a real problem in the Netherlands that calls for firm action. Amnesty published reports in 2020 and 2021 on the use of discriminatory risk profiling by the police and the tax authorities. Recently, there were several revelations about discriminatory risk models, including at municipalities and the Ministry of Foreign Affairs. Even the police have not yet officially distanced themselves from the use of ethnicity and nationality in selection decisions for ID and traffic checks, for example.
The cabinet has said that institutional racism has no place in the Netherlands. During the apology for the slavery past, the prime minister acknowledged that the knock-on effect of the slavery past in the present must be broken. These must not remain empty words. It is now up to the Cabinet to take effective measures to eliminate ethnic profiling.
Dagmar Oudshoorn, director of Amnesty International Netherlands:
“All government agencies that fight crime and fraud must take measures so that their methods also no longer (unintentionally) lead to discrimination. Such a package of measures includes: strict instructions for checks, a human rights test for algorithms, transparency, serious monitoring of implementation and external supervision.’
Sjaak van der Linde, director-director of RADAR also welcomes this decision:
‘RADAR and other anti-discrimination services still too often receive reports of people who are victims of ethnic profiling, not only by the KMar, but also by other government agencies. Government-wide, much more can be done to prevent ethnic profiling. This requires a broad, firm, structural and widely supported approach.’
