Saturday

28th May 2022

Opinion

The Dutch politician suing the Dutch state for ethnic-profiling

  • Dutch academic and politician Mpanzu Bamenga was stopped by border police in his home town of Eindhoven for matching the risk profile of a so-called 'Nigerian money smuggler' (Photo: Merlin Daleman)

Mpanzu Bamenga, a Dutch (black) academic and local politician, arrived in 2018 at the airport of his hometown Eindhoven after having lectured on human rights in Italy.

He was selected at the airport by the Dutch border police for a passport check, because his appearance matched the risk profile of a so-called "Nigerian money smuggler", a profile which had been defined by the border police.

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This risk profile contained ethnicity or perceived nationality as an element for the selection of travellers. The three elements were: walking fast, dressed in a suit, and a non-Dutch appearance.

Although black citizens have been a part of Dutch society for the past 300 years, even the chair of the committee to which Bamenga submitted a complaint admitted that Bamenga "did not have a Dutch appearance."

Ethnic-profiling is dangerous for the kind of society we want to live in, where people are treated fairly and equally. It needs to stop.

Court case

Bamenga, together with another individual and several NGOs, sued the Dutch state for ethnic profiling. The Dutch state, however, has argued that it is only ethnic profiling if a person is selected "solely or predominantly" based on ethnicity.

The court hearing will take place on 15 June, and it will have implications for the EU.

The hearing will likely focus on the interpretation of Dutch and EU case law. The Dutch Supreme Court, for example, has previously ruled that ethnicity may play a role in risk profiles, unless it becomes a decisive element. Other EU countries also apply ethnic profiling in their policing and the subject is similarly controversial.

Our argument is that the use of ethnicity or a proxy such as "perceived nationality" (e.g. Nigerian) in a risk-profile results in discrimination, because it will always be a decisive element for the selection of a person.

This can be best explained by an example that was put forward by the Dutch state in its statement of defence.

'Blue Ford Escort' analogy

Suppose that it follows from police intelligence that persons who drive cars with a blue colour of the Ford brand, type Escort, manufactured between 2005-2015, are more regularly involved in criminal activities. The police will then use this intelligence for its risk profile to select certain cars for traffic controls.

Only those cars will be selected that match the risk-profile. All cars that are not Ford, or not Escort, or have a different year of manufacture may continue their journey. Following the Dutch state this example would explain that the colour of the car is not a decisive element here.

However, the Dutch state in this example acknowledges that all Ford Escorts manufactured between 2005-2015 with a different colour will not be selected. Only the blue cars will be selected.

This example proves our point that skin colour/race/ethnicity will always be a decisive element if it is used in a risk profile.

Bamenga, based on the colour of his skin, will get picked out when he arrives at the airport, while a white person like myself (also wearing a suit and walking fast) may continue without being stopped by the border police.

Relevance EU-wide

Since our case is primarily based on European (human rights) law, this case carries implications for the rest of the EU. The use of ethnicity in a risk profiles violates several provisions, for example, in the European Convention on Human Rights (ECHR).

The ECHR prohibits discrimination on any ground and in any case on the basis of race and colour. In addition, border controls involving selection on the basis of ethnicity violate the prohibition of discrimination and the right to freedom of movement and residence.

Moreover, these border controls are inconsistent with the EU's fundamental values of equality and the prohibition of discrimination on the basis of ethnicity.

We believe this case can inspire and support strategic litigation on ethnic profiling in other EU member states too, since authorities in other EU member states also make use or intend to make use of ethnicity/race as an element in risk profiles.

Ethnic-profiling is unfair. It needs to stop.

Author bio

Jelle Klaas is a human rights lawyer at Public Interest Litigation Project (PILP), a member of the Civil Liberties for Europe (Liberties) network representing Mpanzu Bamenga.

Disclaimer

The views expressed in this opinion piece are the author's, not those of EUobserver.

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