Court rules Dutch border force not guilty of ethnic profiling

The Koninklijke Marechaussee is not guilty of ethnic profiling when checking people who want to enter the Netherlands, a court in The Hague ruled on Wednesday. Marechaussee officers are allowed to take skin color into account when deciding to pull someone from out of a line and check them at the border. This is not in conflict with the prohibition on discrimination, and therefore the service does not have to change its checks, the court ruled.

The Marechaussee carries out checks at airports, in trains and elsewhere to determine whether people have the right to be in the Netherlands. A person's ethnicity can be an indication of a person's nationality or residence status, according to the judges. "It doesn't have to, but it can. It is also important that ethnicity is never the only reason for a check," they added. The court acknowledged that it can happen "in individual cases" that people are checked purely on the basis of their skin color, but then there is no "structural practice implemented", and therefore no reason for a ban.

Multiple citizens and civil society organisations, including Amnesty International and RADAR, had filed a case against the Marechaussee. The complainants said that the Marechaussee uses ethnic profiling arguing that people with dark skin are more likely to be picked from the queue than others. The complainants called this discrimination and demanded that it stop.

The Marechaussee, defended by state lawyer Cecile Bitter, denied that it was evidence of discrimination based on ethnicity.

"This ruling is an enormous missed opportunity for the Netherlands. The door to discrimination is wide open. That is harmful for everyone in the Netherlands, but also for the Marechaussee. Very unpleasant", said Jelle Klaas, the lawyer for the complainants. He will appeal. "These people are treated differently. The Marechaussee emphasizes, 'You are different.' It hurts when you are repeatedly pulled out of line for something which you cannot change."

One of the complainants is Mpanzu Bamenga, a D66 city council member in Eindhoven. He was pulled from a crowd in 2018 in the arrival hall of Eindhoven Airport. "I turned around, saw the other passengers, and everyone could walk through. Only another black man was stopped, and a black woman with children. Very remarkable," he told the ANP last year. Bamenga found it demeaning.

In response to the ruling, he said, "That the Marechaussee is allowed to stop people partly on the basis of their skin color is so extraordinary. If you aren't white, you can thus be regarded as potentially not a Dutch citizen. In this day and age. It disqualifies people. It creates a stigma. It makes others think that criminals usually have dark skin. It is so unjust and humiliating.