Court looks into ethnic profiling by the KMar

Today, on 8 December 2022, the appeal in the lawsuit against ethnic profiling by the Royal Netherlands Marechaussee (KMar) was heard. The coalition against ethnic profiling demands that the KMar stops using ethnicity in risk profiles and selection decisions at border controls. The Hague Court of Appeal is due to rule on the matter. There were three notable moments during the hearing today.

KMar wants to continue using ethnicity

Shortly after the earlier first instance court ruling, in 2021, the Royal Netherlands Marechaussee told the House of Representatives, “The guiding principle is that the KMar does not want to use ethnicity as an indicator within profiles or selection decisions.” During the hearing today, the KMar reiterated this position, stressed that they do not want to use ethnic profiling and confirmed that discrimination has serious consequences.

Nevertheless, the KMar stated during the hearing today that it wants to continue to use ethnicity, including skin colour, in checks. The lawyer representing the Royal Netherlands Marechaussee told the Court, “The KMar disputes and continues to dispute that there would be unlawful conduct in that under MTV [Mobile Security Surveillance] checks, ethnicity can be used under conditions as one of the indicators of selection decisions.”

Dagmar Oudshoorn, director of Amnesty International Netherlands: “This means that the KMar still wants to be able to carry out checks partly based on someone’s ethnicity. The position of the KMar during the appeal is incompatible with its commitment in the House of Representatives.”

Control of nationality leads to control of ethnicity

The Kmar stressed that they include nationality, not ethnicity, in risk profiles. The coalition against ethnic profiling shows that in practice this leads to ethnic profiling. After all, until you have seen someone’s passport, Kmar employees do not know which country someone is a citizen of, which nationality someone actually has. When the Kmar is looking for Nigerians smuggling money or, say, Vietnamese climbing into trucks, in practice the Kmar will select people they think look Nigerian or Vietnamese. There is no such thing as a “Nigerian” or “Vietnamese” appearance. If you select people partly because of their presumed nationality, you are in practice discriminating on ethnicity. That is ethnic profiling and therefore prohibited.

Dionne Abdoelhafiezkhan of Controle Alt Delete: “External features, including skin colour cannot and should not be an indication of someone’s nationality. That is discrimination.”

Powerful statements from concerned citizens

The court ruled in 2021 that a person’s skin colour “can be an objective indication of a person’s alleged nationality” and thus be relevant to whether a person has a valid residence permit in the Netherlands. Mpanzu Bamenga, one of the two citizens who is a co-plaintiff in the lawsuit, told the Court of Appeal today that this judgment “caused him and millions of Dutch people grief, pain and indignation.” He called on the court to comply with the Constitution. The other citizen plaintiff in this lawsuit, Robby Gobardhan, told the court, “I am standing here today because I do not want to be discriminated against again. I am also standing here today for all other non-white citizens who keep being ethnically profiled.”

The Hague Court of Appeal will deliver its verdict on 14 February 2023.

Read more about this case here.