A court just confirmed: To be Dutch is to be white

Hague District Court recently ruled that ethnicity can be used to single out passengers for checks at Dutch airports.

Mpanzu Bamenga, centre, stands with his legal team and rights activists outside a courtroom at The Hague District court, Netherlands, Wednesday September 22, 2021, after losing a case. A Dutch court ruled that border police can use ethnicity as one of the criteria for selecting people for checks at the border, a legal defeat equal rights activists immediately vowed to appeal [AP Photo/Mike Corder]

“Please come with me, sir.”

That is what Mpanzu Bamenga, a city councillor and academic from Eindhoven, Netherlands, heard soon after arriving at the airport of his hometown following a short work visit to Italy in 2018.

He quickly realised that he had been selected for an extra security check because he is a Black man. After all, he was a Dutch national arriving at a Dutch airport, holding a Dutch passport. It was clear that there was no obvious reason for him to be singled out like this – other than the colour of his skin.

This was not Bamenga’s first experience of racial profiling in the Netherlands – this is, after all, not a rare experience for Dutch nationals from minority backgrounds. I myself have been pulled out of the passport control cue at the Schiphol Airport for a “routine” security check in the past. I was on my way to a conference in the United Kingdom, where I would give a lecture on, I am not making this up, racial profiling.

When faced with such discrimination, we all want to scream: “Is this because of the colour of my skin, is this because you think I do not look Dutch enough?” but we don’t usually say anything out loud, because we do not want to agitate the customs officer and be held longer than necessary. We go along with it and swallow the pain.

But after his experience in 2018, Bamenga decided to do something about it. He first lodged an official complaint. And later, with the backing of rights groups like Amnesty International, RADAR, Controle Alt Delete and PIPL-NJCM, he brought a case against the Dutch government to end racial profiling.

Marechaussee police force (Kmar), which is in charge of border security in the Netherlands, tried to legitimise its officer’s decision to single out Bamenga for special questioning by claiming that he had “matched a risk profile” because he walked quickly, was travelling on his own, was well dressed, and he looked “not Dutch”.

On that day, Bamenga was a lone traveller in a tailored suit walking rapidly at the Eindhoven airport – in many ways, he was no different to thousands of other Joe Travellers passing through that airport every single day. But unlike them, Bamenga was selected for special questioning. The deciding factor, and there is no other way around it, was his so-called “non-Dutch appearance”. In Bamenga, the Dutch police saw not a Dutch professional coming home from a work trip, but a potential Nigerian trafficker.

On September 22, The Hague District Court finally reached a verdict on Bamenga’s case. “Ethnicity does not have to be an objective indication of nationality, but it could be,” the judge ruled. Ethnicity cannot be the only criteria for singling out passengers for extra checks, the court said, but it could certainly be one criterion among others.

With this ruling, the court has lumped together skin colour and nationality – it cemented the idea that to be Dutch is to be white. Of course, this was something racialised Dutch people already knew, but the court ruling made it official. The ruling is the legal, and seemingly sophisticated, stand-in for its uncritical and banal version: “Well, ‘we’ are white, and ‘they’ are Black, is it not so?”

As a result of migration and colonialism, thousands of people from different corners of the world – some voluntarily, some not – ended up in the Netherlands. And their presence in the country cracked the notion of “Dutchness as whiteness”. The post-colonial migration from the Dutch East Indies and the Moluccas, and later Suriname and the Dutch Antilles, the labour migration from Turkey and Morocco, and the more recent arrival of refugees from Bosnia, Somalia, Iraq, Iran, Congo and so on, shook up the whole idea that being Dutch equals being white. Or so you would think.

But, being “white” or “Black” are not objective indicators of anything. These racial classifications are political, not biological. What we are dealing with here is a colonial legacy.

How Black does one have to be to be regularly pulled out of queues in Dutch airports? How white is white enough to not be routinely selected for “random” questioning? These questions are indeed uncomfortable and hard to answer. But what then, for goodness sake, does “Dutch-looking” mean?

The court’s assumption that racism or discrimination can only occur if the security forces choose an individual for additional questioning solely or predominantly based on their racial or ethnic characteristics is also problematic for multiple reasons. The ruling gives the impression that there is no problem with racial profiling as long as ethnicity is used “in combination with” other criteria.

Moreover, the practices of security forces are often messy and complex. When selecting someone for questioning, they likely rely on an amalgam of different criteria, including but not limited to ethnicity and race. In this context, it is almost impossible to determine what the “predominant” factor is behind an officer’s decision to single an individual out for additional security checks at an airport, bus station or on the street. Therefore, the court’s decision does nothing to stop security forces from using ethnicity as the sole, or predominant, criteria when deciding who to question.

The Kmar, for its part, claims that ethnicity does not play a role in its generalised risk profiles in the first place. These profiles are composed based on complex statistical calculations, it says, and correspond to a wide range of developments, for example, in the field of migration. It argues that its profiles are composed based not on race, but neutral and quantifiable risk indicators, such as the individual in question’s airport of departure, their airport of arrival, the nature of their plane ticket (one-way or return), the age or gender of those travelling with them, and so on.

Considered independently from each other, these indicators indeed seem neutral, but in combination, they clearly can become a proxy for ethnicity or race. And the court’s ruling on Bamenga’s case gives a carte blanche to security forces to continue using such seemingly neutral criteria to legitimise racial profiling.

In the Bamenga case, the judge seemingly gave precedence to the alleged effectiveness of the stops above principles of non-discrimination. This was a major failure, as it is the responsibility of the courts to keep the excesses of security forces in check, overturn their problematic decisions and put an end to discriminatory practices.

As far as I am concerned, we should rid the world of all forms of racialised thinking – including the uncritical embrace of it among progressives. But let’s first focus on the ingrained racialised thinking in our institutions. We cannot build a post-racial world while our security forces, leading institutions, and courts continue to casually lump together race, ethnicity and nationality.

Bamenga was in Italy to give a lecture on the meaning of liberty. Perhaps Dutch courts and other institutions should spare a few hours to listen to what he has to say, to make sure that meaning is not lost in his own country.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.