Dutch Council of State rejects proposal to explicitly ban ethnic profiling in law
The Dutch Council of State on Monday advised against a proposal to explicitly outlaw ethnic profiling in law, even as one of its authors previously won a landmark court case after being singled out for an airport check because of his skin color.
The advisory body said the initiative bill, submitted by Tweede Kamer member and human rights lawyer Mpanzu Bamenga from D66 and former Tweede Kamer member and criminal defense attorney Willem Koops from NSC, lacks sufficient “added value” because ethnic profiling is already prohibited under existing anti-discrimination rules. The proposal, the council said, would “not clarify, but complicate” the current legal framework.
The bill sought to explicitly ban ethnic profiling in the General Administrative Law Act and the Police Act. It defines ethnic profiling as the use, without objective justification, of characteristics such as race, origin or skin color in government enforcement actions.
In its formal advice, the Council of State said it is “not plausible that the proposal can actually contribute to a more effective approach to ethnic profiling.” The council added that the bill does not clarify existing bans and could create confusion, including about how a new explicit prohibition would relate to the existing ban on bias in administrative decision-making.
The initiative was partly inspired by Bamenga’s personal experience. In April 2018, he was pulled out of line for an additional check by the Royal Netherlands Marechaussee at Eindhoven Airport. Besides Bamenga, only one other Black man and a Black woman traveling with two children were selected, while other travelers were allowed to proceed.
It later emerged that the Marechaussee was looking for a Nigerian money smuggler. Bamenga argued that his skin color was decisive in the selection and sued the Dutch state. In a higher court ruling, he prevailed. The court of appeal held that the Marechaussee may not make distinctions based on race when making selection decisions, because doing so violates Article 1 of the Dutch Constitution, which enshrines the principle of equal treatment.
Citing that ruling, Bamenga said he wanted to go further by ensuring the ban on ethnic profiling would apply not only to the Marechaussee but to all government authorities.
