The Dutch State will not appeal in cassation against the Hague Court of Appeal’s ruling on ethnic profiling by the Royal Military Police (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 PILP-NJCM. The coalition is now calling on the government to take swift steps to ensure that other government organisations also stop allowing ethnicity to factor into citizen checks.
The lawsuit, filed in 2020, revolved around the question of whether the KMar is allowed to select people for a check in border controls partly because of their ethnicity. On 14 February 2023, the appeals court ruled that the KMar’s current method was a form of racial discrimination and banned it. According to the court, ethnicity should in no way, not even slightly, play a role in decisions to check people. According to the court, the State has not demonstrated or made it plausible that skin colour or ethnic appearance can say anything about a person’s origin or nationality. The court thereby overturned the court’s earlier ruling that allowed ethnic profiling.
The court considered that ethnic profiling leads to Dutch citizens of colour “not feeling accepted and feeling like second-class citizens” and that this working method of the KMar has “a negative effect on society as a whole”. Reacting to the ruling, Mpanzu Bamenga, one of the citizens who filed the lawsuit, expressed 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 working methods with immediate effect
The court ruled that the KMar had to change 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 14 February 2023. According to the coalition, it is important for the KMar to be transparent and publicly accountable about this.
Dionne Abdoelhafiezkhan of Controle Alt Delete stressed:
‘To be sure that the KMar is no longer discriminating, it is necessary to record and evaluate all border checks. It is not enough if the KMar only pledges to stop using ethnicity in risk profiles and selection decisions. Dutch nationals of colour must be assured that they are protected from ethnic profiling.’
Call: Cabinet, take effective action against ethnic profiling
Immediately after the court’s ruling, Justice and Security Secretary Eric van der Burg informed the House of Representatives that the ruling does not only apply to the KMar but also to other parts within the government where similar selection decisions and risk profiling would be involved. 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. While apologising 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 hollow words. It is now up to the government to take effective measures to eliminate ethnic profiling.
Dagmar Oudshoorn, director of Amnesty International Netherlands, said:
‘All government agencies fighting 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 bodies. Government-wide, much more can be done to prevent ethnic profiling. This calls for a broad, firm, structural and widely supported approach.’
