This risk profile contained ethnicity or nationality perceived as an element of traveler selection. The three elements were: walking fast, wearing a costume and a non-Dutch appearance.

Although black citizens have been part of Dutch society for 300 years, even the chairman of the committee to which Bamenga lodged a complaint admitted that Bamenga “does 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 equitably. It has to stop.

Trial

Bamenga, along with another person and several NGOs, sued the Dutch state for ethnic profiling. The Dutch state has however argued that this is only ethnic profiling if a person is selected “only or mainly” on the basis of their ethnic origin.

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

The hearing will likely focus on the interpretation of Dutch and European case law. The Dutch Supreme Court, for example, has already ruled that ethnicity can play a role in risk profiles, unless it becomes a decisive factor. Other EU countries also apply ethnic profiling in their policing and the subject is equally 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, as this will always be a decisive factor in the selection of a person.

This can best be explained by an example put forward by the Dutch State in its defense.

“Ford Escort blue” analogy

Suppose it appears from police information that people who drive blue cars of the Ford brand, type Escort, manufactured between 2005-2015, are more regularly involved in criminal activities. Police will then use this information for their risk profile to select certain cars for roadside checks.

Only cars that match the risk profile will be selected. All cars which are not Ford, or Escort, or which have a different year of manufacture can continue their journey. Depending on the Dutch state, this example would explain that the color of the car is not a decisive element here.

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

This example proves that skin color / race / ethnicity will always be a deciding factor if used in a risk profile.

Bamenga, depending on his skin color, will be spotted when he arrives at the airport, while a white person like me (also wearing a suit and walking fast) will be able to continue without being stopped by the border police. .

EU-wide relevance

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

The ECHR prohibits discrimination on any ground whatsoever and in any case on the basis of race and color. 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 incompatible with the EU’s core values ​​of equality and the prohibition of discrimination on the basis of ethnicity.

We believe that this case may also inspire and support a strategic litigation on ethnic profiling in other EU Member States, as authorities in other EU Member States are also using or intend to use ethnicity / race as part of risk profiles.

Ethnic profiling is unfair. It has to stop.