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The Silence of Injustice: 
Mapping Ethnic Profiling in Stop-and-Search Practices in the Netherlands

June 2013. Labor Party politician, Ahmed Marcouch, ignites an issue that most people have pushed away from political and public debate. After his colleague witnessed two Moroccan-Dutch teenagers suddenly being stopped and searched by the police, Marcouch asks in Parliament: “How is this legitimate? Isn’t this clear discrimination?” His questions go unanswered.

Ethnic profiling in law enforcement, the issue Marcouch questioned, is often ignored or thought of as non-existent. In a country where ethnic registration is not allowed and the first article of the Constitution outlines the prohibition of discrimination, ethnic profiling might not be thought of as a relevant issue. However, after more than a decade of stop-and-search practices, more and more voices are expressing theirconcern on ethnic profiling.

The stop-and-search (preventief fouilleren) practice by the Dutch police has been questioned before, but usually on other grounds. Concerns about the efficiency and effectiveness of the policy, or the breach of privacy and bodily integrity have been raised in Parliamentary debates, through newspaper articles, opinion pieces, and by the National Ombudsman. A case concerning the violation of the right to privacy during a stop-and-search procedure even made it to the European Court of Human Rights (Colon v. Netherlands). However, the relationship between stop-and-search practices and ethnic profiling is not often contested within the Dutch context.

Ethnic profiling, according to the Open Society Institute, is the “use by the police, security, immigration or customs officials of generalizations based on race, ethnicity, religion or national origin—rather than individual behavior or objective evidence- as the basis for suspicion in directing discretionary law enforcement actions.” These assumptions can have a disproportionate impact on certain groups, particularly minorities who are unfairly targeted. Research has found this to be the case in the US, France, and the UK where lawsuits are pending against police/municipalities on the grounds of discrimination. According to Gerbrig Klos, a Senior Policy Advisor at Amnesty International Netherlands, it is safe to assume that ethnic profiling happens everywhere; stereotypes on race and ethnicity are pervasive and law enforcement is not exempt from racism. Though the Dutch Constitution prohibits discrimination and guarantees equal treatment, there is no explicit prohibition of ethnic or racial profiling, nor are there direct regulations to guide officers during stop-and-search procedures.

The ‘stop-and-frisk’ practices by the New York City Police Department, where predominantly black and latino men are subjected to preventive search, have ignited a discussion on ethnic profiling in the United States. French campaigns, such as Stop Le Contrôlle Au Faciès, work to end this “abusive practice” where black people are six times more likely to be stopped than White people; additionally, those of Arab origin are eight times more likely. Lastly, the United Kingdom has exhibited activismon this and other issues of race for years. However, the Netherlands remains remarkably silent. If the possibility of ethnic profiling in stop-and-search is raised, Article 1 of the Dutch Constitution, which prohibits discrimination, often counters it. Since ethnicity is not recorded at stops and discrimination is difficult to prove, the issue of ethnic profiling draws particular challenges to both the legal and social debate.

But why the silence? Several questions arise once one analyzes ethnic profiling in preventive search in the Netherlands. Firstly, how does the law on stop-and-search prevent or facilitate ethnic profiling? Secondly, where in the decision-making process of law enforcement agents could ethnic profiling have influence? Thirdly, how do people experience stop-and-search? And finally, what are productive strategies to contest ethnic profiling?

Stop-and-Search in The Netherlands

Stop-and-search is only allowed in “security risk areas.” Since 2002, city mayors and police have attempted to combat violent crime by designating these areas and conducting preventative searches. The goal of the law is threefold—to prevent the carrying of guns, to confiscate weapons, and to provide the public with a general sense of security.

The 2002 law calls for a specific chain of command. The City Mayor assigns ‘security risk areas’ after consultation with police chiefs and the Public Prosecutor. This designation lasts for 6-12 months and can be renewed indefinitely. The Public Prosecutor evaluates the request, and the local Police Chief briefs police officers on preventive search procedures (for a non-renewable period of 12 hours). During this time frame, police are empowered to search any individual without any grounds for suspicion.

While some see this procedure as a violation of the respect for privacy and freedom of movement, the European Court on Human Rights declared that the “relevant” and “sufficient” reasons for stop-and-search outweigh this claim. Citing such reasons as the “pressing need” to combat violent crime and the democratic process that formulated the law, the Court deems the practice permissible.

But do “relevant” and “sufficient” reasons justify prejudice at the hand of the police? Quirine Eijkman, senior researcher/lecturer at the Centre for Terrorism and Counterrorism (CTC) at Leiden University, believes “it’s possible that an institutional form of ethnic profiling exists, given that preventive searches are conducted more frequently in disadvantaged neighborhoods with high crime figures, whose populations include relatively large proportions of ethnic minorities and migrants.” Though officers may not consciously select on the grounds of race/ethnicity, one officer notes that if frequented with criminals of a particular ethnicity, it’s “natural” to make future generalizations.

As police lack the capacity to stop-and-search every individual, they must make some judgment as to who is—and who is not—subject to the procedure. According to the National Ombudsman, this is where the cracks in the law appear. How do the police decide whom to stop?

Professional Intuition

The role of the police in stop-and-search should not be selective: their checks should be random and not based on any subjective criteria. After all, discrimination - even in the exercise of public office or occupation is a violation of the law. While officers are not allowed to stop individuals based on their appearance, it is emphasized that they should use their common sense (gezond verstand) and professional intuition in carrying out the procedure. “Professional intuition” provides the gap where the most ethnic profiling occurs.

According to police officers that work in the Southeast neighborhood of Amsterdam, ethnic profiling is undoubtedly a part of the stop-and-search practices. One officer states, “the police might tell the public that they cannot check everyone and instead will consistently check every 4th  or 5th  passerby— but this mostly does not happen.” Another officer commented, “Ethnic profiling will always creep in somehow during the stop-and-search sessions.” He adds, “I think one should either stop-and-search everybody, or stop-and-search nobody. This is the only way to prevent the criticism of ethnic profiling.”

The Ombudsman reports that during the 12-hour stop-and-search procedure, police officers will often avoid checking certain individuals that seem innocent: those in hurry, elderly, or disabled persons. This implies that others must seem guilty, and as such, are subject to the procedure. While it seems reasonable and sympathetic to avoid stopping and searching the aforementioned examples, presuming innocence of some and not of others contradicts the stated claim that random checks are discriminatory. Additionally, it should be noted that police officers would often pay more attention to spaces and people that are “known” for more trouble. Perhaps unknowingly, ethnic profiling happens implicitly.

Though justified on claims of program effectiveness, positive perceptions of public safety, and a necessary procedure to tackle gun violence, ethnic profiling through stop-and-search can have serious impact on those disproportionately affected. One victim notes that being profiled and stopped makes them question, “how structures make it possible for people to be racist; it’s not about physical discomfort or the two minutes lost on a day, but rather the confrontation with your inferiority at that moment, that’s something you always carry with you.”

Rev. Koney, pastor and community leader in the Bijlmer states that preventive searches have lead to a lot of confusion. With concerns from both the Ghanaian and Nigerian community, individuals have felt targeted specifically because of their ethnicity and appearance. Questions of subjugation, unfair treatment, and misunderstandings arise.

Where’s the Public Outrage?

In evaluating the goals of the preventive search procedure, it becomes clear that it is a win-win situation for the law enforcement  no matter the outcome. For example, in 2009, 33,196 people were stopped and searched in three areas of Amsterdam. The police confiscated 706 “weapons,” among which included 12 firearms. The remainders of the “weapons” ranged from a pocketknives to a ‘Do It Yourself’ toolkit. Ironically, the number of weapons confiscated doesn’t really matter in the end. If weapons are found, the policy is successful for meeting their goal of weapon seizure. If hardly any weapons are found, the policy is successful as it prevented people from carrying said weapons.

But, as Eijkman points out, this is probably what the Dutch citizens want, a reinforcement of trust in the government. They are glad to see a successful police action. A representative from Buro Jansen & Janssen, a research bureau that critically examines the activities of the police, justice, and intelligence services, claims stop-and-search is just a very expensive PR action for the police force. The police will always find a few firearms, which makes easy headlines in the newspapers. The fact that these actions are very expensive, both monetarily and capacity-wise, is never mentioned. He summarizes the general opinion, “something is being done to increase safety? Great. Case closed.”

The National Ombudsman analyzed the available data and found a high level of public support for this measure. However, the Ombudsman also recognized that groups that do not support stop-and-search might not easily file complaints. A lack of complaints about preventive search cannot be considered as an indication of widespread public support. Rather, this conclusion ignores the opinions of those who actually experience ethnic profiling, or live in “security risk areas.” Perceptions of safety would likely change if one is disproportionately targeted by the police, or presumed guilty rather than innocent based on his or her appearance.

Though investigations by the Ombudsman mention the possibility of discrimination, the lack of data makes it difficult to generate concrete conclusions. Initiatives such as the “discrimination test” by the Doetank, a community-based scientific and artistic think-tank, are trying to tackle the silence around police discrimination. “The discrimination test” will research the differential treatment of various ethnic groups by law enforcement.

Even still, the silence on the possibility of ethnic profiling in research and public discourse is striking. In general, such investigations are far more concerned with the breach of privacy and the inefficacious character of stop-and-search. The only research that takes ethnic profiling into account is done by academics, such as Quirine Eijkman and Maartje van der Woude, or organizations such as the Open Society Institute or Amnesty International.

The silence on ethnic profiling can also be found in other domains. When the law permitting stop-and-search was debated in Parliament in 2002, opposition brought attention to a possible breach of privacy. The possibility of racial or ethnic profiling was not mentioned. It was simply presumed that Article 1 of the Constitution, the prohibition on discrimination, made it a non-issue. However, refusing to acknowledge an issue does not erase its presence.

A possible explanation for a lack of discussion on ethnic profiling could be the presumed race-blindness of Dutch society. There is not a lot of experience, or comfort, in discussing issues of race or racism, which becomes clear in the moments a discussion arises. For example, the public debate on the Zwarte Piet (‘Black Pete’) tradition has been quite awkward and unsettling for many Dutch people. The belief that the Netherlands is a safe space for minorities and tolerant of differences stands at odds with the inability to acknowledge racism. The Dutch concepts of autochtoon and allochtoon signify this. Since “race” is a taboo word, autochtoon and allochtoon are used to demarcate the differences between “real” Dutch people (often white) and the “not-so-real” Dutch people (often people of color). Someone is allochtoon when they are of non-Dutch birth or ancestry. “Western” or “white” allochtonen, however, are usually not referred to as such but rather as expats. This categorization seemingly replaces the racial categories of white and black, renaming racial classifications rather than erasing them.

There can be no public outrage if the public is unaware. A difficulty in generating awareness, however, is that although personal narratives exist,  there is no record to demonstrate the supposed disparate impact of stop-and-search procedures here in the Netherlands. Though proven in the United States, United Kingdom, and France, the Netherlands lacks a mechanism to truly evaluate the extent of this problem coupled with the inherent difficulty in proving a case of discrimination.

What Can Be Done?

Both France and the UK have considered “stop forms,” a receipt or record denoting the exchange between the police and person(s) stopped. This form would record demographic characteristics including ethnicity, in addition to the legal reasoning behind the stop itself. As Gerbrich Klos summarizes, “a stop form would increase the threshold for officers; it would make them think past their own prejudices and wait for ten seconds before stopping someone.” Additionally, it could be used to collect data for comparison and legislative action. While France, the UK, and the US have sound data that demonstrates a disproportionate impact of stop-and-search procedures on minority communities, Eijkman agrees that the Netherlands cannot work to mitigate this issue without out first fully understanding the context of the problem. True, reliable statistics that communicate the full extent of ethnic profiling in stop-and-search procedures is needed.

Some are still critical of the applicability of stop forms. Eijkman notes that recording racial classifications may be difficult for society to accept, though legal exceptions could allow it to occur. A police officer noted that such a task would not be difficult to complete since stops are already counted. Recording additional information could provide a means to address the issue systematically.

In addition to stop forms, measures can be taken between police forces and community organizations. For example, a police-community dialogue existing in the Bijlmer has increased trust, knowledge and understanding between officers and West African community members. A similar dialogue and community involvement in Bos en Lommer seeks to build community within the Moroccan-Dutch population. Within the police force, issue-specific training exists including an updated database of cultural competencies and trainings for incoming officers. Some have suggested placing community leaders alongside officers during stop-and-search procedures. Such positioning could help ensure that people are stopped at random at not randomly with increased accountability. Other initiatives could include investment in community-building activities, which is much cheaper that increased policing.

According to a representative of Amsterdam Police, “we are now, on a national basis, working on ethnic profiling pilot trainings to make officers aware of a certain bias that they might have.” Though some training exists, he contends, “the risk of ethnic profiling is always there when dealing with human beings, but it should be given more attention in the police academy.” While he accepts that many prejudices are intrinsic, he believes individuals should be approached on the basis of behavior, not appearance.

Though some measures exist, a law pending in the Senate could impede their success. Without providing sufficient guarantee against discriminatory practices, the new law allows for more flexibility at the hands of police, circumventing the (now required) authority of the public prosecutor for the allowance of stop-and-search procedures. If passed, the law would remove a necessary safeguard of checks-and- balances, which may increase the propensity of ethnic profiling. The National Ombudsman is hesitant about this development, since there is already a lack of regulation and evaluation. Additionally, Eijkman views this development as an increase in the democratic deficit of this policy as it unbalances the distribution of authority and the system of checks and balances.

The Question of Registration

Certain uneasiness arises with the topic of race/ethnicity registration. Registration of ethnic data is in principle not allowed in the Netherlands, with an exception for identification purposes or for initiatives to battle structural disadvantages that ethnic minorities face. The reason for this is that it might be misused (through ethnic profiling) or it might stigmatize a particular minority group. Despite not being allowed, ethnic registration it is still widely used through different means. The Central Bureau of Statistics (CBS) derives information on ethnic groups through the use of someone’s country of birth/origin or that of his/her ancestry. The ban on ethnic registration has a strong principled underpinning, but what does such a ban mean when institutions such as the CBS will just use different means to use ethnic categorization?

While ethnic registration is not allowed, this ban quite obviously does not prevent stigmatization (it could actually promote it). If the registration of race/ethnicity is not allowed, it is increasingly difficult to document cases of racial/ethnic discrimination. Since there are exceptions, why not oblige the police to document the race/ethnicity of the individuals that are stopped and searched? As Eijkman explains, there seems to be an odd mismatch between the large body of research on the over representation of allochtonen in criminal activity, yet the complete lack of research on ethnic profiling.

From various perspectives, the call for more research on ethnic profiling in stop-and-search is fervent. There remains an under representation of the voices that feel disproportionately impacted by stop-and-search procedures, yet a public debate is only possible if the situation is fully understood. Drawing parallels from practices in France, the UK, and the US, the Netherlands is not exempt from discriminatory treatment of minority groups. However, to fully understand the problem, more information is needed. Registration of stop-and-search through stop forms would provide the information needed for discussion, while police trainings and community dialogue activate the necessary educational component. Racism and ethnic profiling often occurs at the implicit level, but addressing the issue must be an explicit action. Preventative search practices require more scrutiny.

References

Buro Jansen & Janssen. Iedereen blij met fouilleren? November 24, 2010. http://www.burojansen.nl/artikelen_item.php?id=442

Colon v. Netherlands. (2012). European Court of Human Rights. http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-111347#{"itemid":["001- 111347"

Eijkman, Q. (2010). Has the genie been let out of the bottle? Ethnic profiling in the Netherlands. Public Space: The Journal of Law and Social Justice. 5(2), 1-21

Eijkman, Q., Lettinga, D. & Verbossen, D. (2012). Impact of Counter-Terrorism on Communities: Netherlands Background Report. Open Society Foundations & Institute for Strategic Dialogue.

French minorities accuse state of racial profiling. (2012). The Guardian. http://www.guardian.co.uk/world/feedarticle/10190269

Gorris, I. Why police profiling is not just a New York Problem. (2012).

‘Kamervragen over aanhouding jongens Amersfoort’. RTV Utrecht. June 13, 2013. http://www.rtvutrecht.nl/nieuws/1014337/kamervragen-over-aanhouding-jongens- amersfoort.html

Keaton, T. D. (2013). Racial Profiling in France and the U.S, Pt.1. <http://www.racismreview.com/blog/2012/06/11/racial-profiling-france-us-pt-1/>.

Klos, G. (2012). Gestop, gecontroleerd, gefouilleerd vanwege je huidskleur of afkomst: Over het agenderen van ethnisch profileren in Nederland. Proces, 91(6), 482-485

van der Leun, J. P. & van der Woude, M.A.H. (2011). Ethnic profiling in the Netherlands? A reflection on expanding preventive powers, ethnic profiling and a changing social and political context. Policing & Society. 21(4), 444-455

Nationale Ombudsman. Waarborgen bij preventief fouilleren. 15 Sept 2011, 2011/252

Open Society Justice Initiative. http://www.opensocietyfoundations.org/voices/why- police-profiling-not-just-new-york-problem

Open Society Institute (2009). Ethnic Profiling in the European Union: Pervasive, Ineffective, and Discriminatory.

Open Society Institute (2009). Open Society Justice Initiative. Profiling Minorities: A Study of Stop-and-Search Practices in Paris 

http://www.racismreview.com/blog/2012/06/11/racial-profiling-france-us-pt-1/

http://www.burojansen.nl/artikelen_item.php?id=442 

http://www.doetank.org/discriminatietest/ 

Interviews

Quirine Eijkman
Senior Researcher and Lecturer, Center for Terrorism and Counterterrorism (CTC) University of Leiden, the Netherlands

Buro Jansen & Janssen

Gerbrig Klos
Senior Policy Advisor Amnesty International, Amsterdam, the Netherlands

Officers from Police Amsterdam

Reverend Koney
Pastor and community leader, Bijlmer, Amsterdam

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Netherlands Netherlands 2013

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