Are policing strategies that focus upon the identification and management of risk consistent with the realisation

of social justice?
Msc. Terrorism, Security and Policing (2010/2011) Global Security and Policing
5-2-2012

JA Willemsen

Are policing strategies that focus upon the identification and management of risk consistent with the realisation of social justice? The right-wing party leader Pim Fortuin and movie director Theo van Gogh, whose movie showed sympathy for strict immigration laws and anti-Islamist ideas, were murdered by a left-wing extremist and a fundamentalist Muslim respectively in 2002 and 2004. These events, among others, have increased demands for more effective policing from the Dutch public (Mair, 2008; Engbersen, Van der Leun and De Boom, 2007).This has resulted in the introduction of risk profiling among other methods (Van der Leun and Van der Woude, 2011) . This essay will discuss methods of risk management in policing. It will seek to answer the question whether risk management is in line with social justice as defined here by John Stuart Mill (2006: 79) Society should treat all equally well who have deserved equally well of it, that is, who have deserved equally well absolutely. This is the highest abstract standard of social and distributive justice. In order to do so, this essay is divided into three main sections and focuses on the use of risk profiling. The first part of this essay will provide background information concerning risk management and risk profiling, examining how it connects to social justice and Dutch law. The second part consists of three case studies involving risk profiling. These will provide relevant information to show that the Dutch legislature supports the use of risk profiling to a great extent and that the judicial branch considers it permissible. Even more central to the main question however, is that these examples will provide proof of the contribution risk profiling makes in the violation of human rights based on race and religion. The third part of the essay will begin by connecting the information from the previous two parts before arguing that risk management is not in line with social justice. This will be relativised by explaining that any policing method which seeks absolute social justice would be practically impossible, and even though there are some issues with regard to risk management, it has the potential to provide a leap toward greater social justice in policing. A word that requires defining at this early stage is risk. The Institute of Risk Management (2002) provides a simple, clear definition: Risk can be defined as the combination of the probability of an event and its consequences (ISO/IEC Guide 73). In all types of undertaking, there is the potential for events and consequences that constitute opportunities for benefit (upside) or threats to success (downside). (Institute of Risk management, 2002) Risk profiling began life in the insurance industry, when companies would assess average costs to insure an individual based on information collected from others who shared their characteristics.

Based on this information they could, for example, estimate how much more a group of smokers would be likely to cost them on average and compare that with figures for a group of non-smokers (Harcourt, 2007; Feeley and Simon, 1994). The same method, if slightly adjusted, can and is being used by policing organisations. A simple example might be in the search for illegal immigrants. If the total number in a group is 100 people, out of which 10 are non-Caucasian and 90 Caucasian, and in both groups there is one illegal immigrant, if police check only one person, they would have a chance of 1 out of 90 if he or she is Caucasian, while the chance would increase to 1 out of 10 if he or she is not. In the Netherlands white Europeans are in the majority and most illegal immigrants tend to be of African ethnicity, meaning that the chances of a random person of African ethnicity being illegal is much greater than that for a white European. The police have limited resources, and the choice to either use these resources on both groups or focus specifically on the group of African appearance, would mean a difference in the number of illegal immigrants found while investing with the same amount of resources. Seeking efficiency seems logical for the police, as their main task is to maintain the law (Politiewet, 1993). Human rights organisations, as well as the European Commission (European Commission against Racism and Intolerance, 2007) and European Parliament (Eijkman, 2010) however, have expressed their concern over the growing use of racial profiling in the Netherlands. In the following paragraphs this essay will explore Dutch national law. This shows the extent to which the principles of risk management fall within legal limits in the Netherlands. The Netherlands has a separation of powers following the trias politica principle, consisting of the judicial, legislative and executive branches of government. The legislative branch creates the laws and consists of elected political parties. The executive branch performs all necessary actions to enforce these laws, and includes both policing organisations as well as Majors, ministers and other government workers (Witteveen, 2001). The final, judicial branch, comes into action whenever a punishment or interpretation of the law is necessary and provides judgement in legal disputes (Asscher, 2003). The first and most important national law forms article one of the Dutch constitution: Everyone who finds himself in the Netherlands, will be treated equally under equal circumstances. Discrimination based on religion, belief, political preferences, race, gender or any other ground is not allowed.(Statuut voor het koninkrijk der Nederlanden, 1840) A further explanation of the word discrimination can be found in the General Law of Equal Treatment (Algemene wet gelijke behandeling), articles 1 and 1.A:

1.For this law and the provisions based on this law the following definition of discrimination is applicable. A. Differentiation: direct and indirect differentiation, as is the assignment of tasks to; B. Direct differentiation: making difference between persons based on religion, beliefs, political preference, race, gender, sexual preferences or civil class; C. Indirect differentiation: making difference based on other acts or features then those mentioned in B. which lead to direct differentiation. 1.A. 1. For this law given ban for differentiation also includes a ban on intimidation. 2. Intimidation as mentioned in 1.A.1 should be defined as: behaviour that with the acts and features mentioned in article 1.B is connected with and is supposed to have as a consequence that the dignity of the person is being violated and creates a threatening, hostile, insulting or humiliating environment. (Algemene wet gelijke behandeling, 1994a) Interestingly, the General Law of Equal Treatment is an explanatory law of Article 1 from the constitution, but also makes exceptions. For example, it allows actions for the protection of women (article 2.2) and also leaves room for affirmative action (article 2.3). An exception which would in certain cases allow for racial profiling to an extent is article 2.4, which states: 4. The in this law given ban on the differentiation based on race does not apply; a. in cases where external features which ligature with the race of a person are of influence, as long as the goals are legitimate and in proportion to what that goal is. (Algemene wet gelijke behandeling, 1994b) Policing tasks are a legitimate goal for the police firmly based in Dutch policing law (Politiewet, 1993). The only assessment to be made is whether or not the differentiation is in proportion to what the goal is. To find out what Dutch courts consider proportional in situations where risk principles are used, this essay will now discuss three cases studies. These cases show that direct and indirect discrimination is permissible according to the judicial branch. At the same time, these cases show that policing based on risk management principles causes unequal treatment in the Netherlands and gives some insight into the standpoints of the Ombudsman, the public and the three branches of government. The first case will show that the use of racial profiling does cause concern and possibly contributes to discrimination. In this case the police received a lead from a local transport company, who found it odd that they were picking up a great many people of African ethnicity travelling to the more affluent neighbourhoods in the area. Based on this lead, police decided to investigate the matter and followed several individuals going into expensive homes. The police requested their identification and work permits (Raad van State, 2011). As it turned out, most of them were cleaners residing in

the Netherlands illegally. Thirty of them were arrested and 11 of them were expelled from the Netherlands. Several others are still awaiting trial. One of the cleaners who was looking at expulsion to Ghana asked the Council of State (Raad van State, 2011) to judge her case. Her lawyer claimed that the information given by the police was not enough to reasonably suspect her client of staying in the Netherlands illegally, and therefore the following procedures were illegitimate. The Council of State decided that in this case the actions of the police were not based on sound enough evidence to reasonably suspect these people were staying in the Netherlands illegally, citing article 50 of the Unknown Persons Law (Vreemdelingenwet, 2000), which states: The civil servants responsible for border control and the civil servants responsible for surveillance on illegal immigrants are allowed on basis of facts and circumstances which could be objectively measured are giving a reasonable suspicion of illegal stay.(Vreemdelingenwet, 2000: Art. 50) An additional note given by the Council of State reported that the police had forgotten to mention a recent internal survey into the illegal employment of African woman in the area, which according to the Council of State, could have formed the basis for reasonable suspicion, even though the cleaner won her case against the police (Raad van State, 2011). The Council of States verdict has shown here that the use of race and other factors mentioned in the equality laws for police profiling is not disproportional. This will also be shown by the following case. The second case has been receiving media attention from the beginning of 2003 and concerns the use of airport scanners at Schiphol Airport on passengers arriving from the former Dutch colonies Suriname and the Dutch Antilles. All passengers, including pilots and other personnel, formerly underwent a 100% check. The 100% check was a systematic way of ruling out drug smuggling. In most cases, passengers would find themselves subjected to a series of tests, including a narcotics dog, questioning, frisk search and luggage check. In addition to these tests, customs would sometimes select people for internal body searches. These internal body searches could include knee bending, body scans and faeces checks (Schets, Van der Kleij, and Van Wijk, 2006). In 2007 the Higher Council (Hoge Raad, 2007) ruled that 100% checks were illegitimate. They explained that article 17 of the customs law (Douanewet, 1995) was not legitimate grounds for some of the intrusive measures included as part of the 100% checks. Article 56 of the criminal procedures law (Wetboek van Strafvordering, 1921) has several protective measures for suspects searches, while article 17 of the customs law does not have protective measures nor does it require someone to be a suspect. This according to the judge could not have been the aim of the law-maker and therefore the

judge decided article 17 of the Customs Law did not have judicial backing for cavity searches or body scans (Hoge Raad, 2007; Douanewet, 1995; Wetboek van Strafvordering, 1921). Even though the Higher Council declared 100% checks to be illegitimate, Customs continued using the same processes but without frisks and cavity searches. People Customs wanted to check were then marked as suspects and handed over to the police service, who acted under Article 56 of the Criminal Procedures Law. Widespread political support for these checks ensured rapid action and a new Customs Law was introduced in 2008 (2e kamer, 2010). This law includes a description of what a body search can entail. The definition includes an entire body search with the exception of lower body cavity searches (General customs law, 2008). Not much has changed since the introduction of 100% checks in 2003, but there have been some improvements following on from six reports written by the National Ombudsman about 100% checks (Veghter and Van der Kleij, 2010; Schets et al., 2006). These improvements have included a more friendly approach and moving the body scan forward in the process, giving people the opportunity to evade thorough frisk searches. Interestingly, they also introduced a so-called swallowers risk profile with factors which provide a reasonable suspicion and reduce the need for random selections. In addition to the illegal workers case, the 100% checks case shows that racial profiling is not seen as discriminatory as it is understood by Dutch law. In this case the taken measure of setting up a swallowers risk profile advised by the National Ombudsman even shows that random selections are discouraged, as they would cause further infringement upon innocent peoples rights. This case also clearly shows the infringement of rights, as the Higher Council ruled that there was an infringement of article 3 European Convention for the Protection of Human Rights and Fundamental Freedoms serious humiliation which is one of the most basic human rights laws applicable to the Netherlands (Hoge Raad, 2007; Council of Europe, 1950). The final case this essay will evaluate considers preventive frisk searches introduced for a predefined risk group: people from the Dutch Antilles and Dominican Republic. Several media channels picked up this information and outrage spread among the Netherlands. This particular local policy was therefore stopped. Preventive frisk searches, however, still exist (RTL, 2010; D66, 2010; Schaap, 2003). The following part of this essay describes their legal basis. Based on article 151b Municipality Law (Gemeentwet, 1992) Majors have the authority to designate a particular area a safety risk zone. The conditions which allow this must be either a high risk for public disturbance caused by weapons, or there already having been a public disturbance caused by weapons. In doing so, the Major gives the Officer of Justice permission to search everyone in the area

without additional evidence. This search may include the vehicles, luggage and clothes people are using at that moment in time (Gemeentewet, 1992). The measure of safety risk zones is active for anyone within a certain criteria, in this case the appointed safety risk zone. This however does not necessarily mean that everyone in this area is searched, as this would require a very large police presence, something which is not always available. Even though the use of safety risk zones is described as an a-selective method, the actual choice of who is searched rests with the police. Police officers on the street, however, are un-aware of the criteria they are allowed to use and often use their own intuition (Bijvoet, Matthijssen, Pronk, Roeloffzen, Van der Bijl, Van Dorst and Veghter, 2011; Van der Leun and Van der Woude, 2011). Interestingly, the National Ombudsman (Bijvoet et al., 2011) reports that the use of intuition by police officers in this case could lead to racism and discrimination, as police officers intuitions are often based on prejudiced ideas. Therefore, the National Ombudsman supports the use of selective criteria in safety risk zones (Van der Leun and Van der Woude, 2011). According to the National Ombudsman, criteria should be based on evidence and directly connected to the final goal of the operation. It should not include factors of religion or race, in order to prevent stigmatisation(Bijvoet et al., 2011). There are two interesting aspects to this statement. Firstly, it acknowledges that the use of profiling could be better than the use of intuition by individuals or random selections, for preventing racism and discrimination. Secondly, even though the judge seemed to have no significant problems with the use of race as a factor in risk profiling, as shown in the illegal cleaners case, the National Ombudsman still advices against it, as this would contribute to stigmatisation against certain groups in society (Bijvoet et al., 2011). Indirect discrimination has not been mentioned by the Ombudsman, though it is however present. The selection of safety risk areas is based on the Majors decision, which is linked to areas which have a public order disturbance or are at risk of a public disturbance caused by weapons. As these areas tend to be those of a lower social class, indirect discrimination is taking place even before the actual selection criteria for individual searches have been discussed (Tubantia, 2011; Schaap, 2003). Interestingly, the three cases considered for this essay all have had a disproportionate effect on people from Suriname and the Dutch Antilles. In the first example, the illegal cleaners people of African appearance who travelled from Amsterdam South East were selected. The 100% checks concerned flights from Suriname and the Dutch Antilles, and finally, Amsterdam South East was one of the first selected safety risk zones. Amsterdam South East is well known in the Netherlands for its majority of residents with backgrounds in Suriname and the Dutch Antilles (Van der Kamp, 2012; Ypeij, 2009). Considering that only 2% of the people living in the Netherlands is of Surinamese

descent, it is clear that this measure again has a larger effect on the Suriname and Dutch Antilles communities in the Netherlands than it has on the white Dutch population (Oudhof, Harmsen, Loozen and Choenn, 2011). From the three examples discussed several conclusions may be drawn. In the case of the illegal cleaners, the judge showed that reasonable evidence needs to be provided before an infringement occurs. This evidence can be collected by means of risk management and profiling, permitting the use of race or religion. The 100% checks showed that indirect discrimination is also allowed as only a flights from a few selected countries were fully screened. The Higher Council (Hoge Raad, 2007) also explicitly stated that during these checks there was a large infringement of the rights of individuals who were selected based on risk management principles. The last case showed the widespread support for methods which consider risk by politicians and government officials. The fact that race is used as a primary factor in investigative measures provokes a great deal of resistance from the general public. It also gives insight into the point of view of the National Ombudsman, who supports risk profiling as long as it does not directly consider factors of race, religion and sexuality. Judging the three cases according to Mills (2006) definition of social justice it soon becomes clear that direct and indirect discrimination does contribute to unequal treatment, even though most of these individuals deserve the same treatment as others, as they have done nothing wrong. A person who flies to Suriname for a holiday deserve treatment equal to someone who flies to Turkey, as they are not smuggling drugs. The individual who flies from Suriname however, has some of his or her most basic human rights violated, whereas the person flying from Turkey does not. Therefore, people who deserve equally well are treated unequally and the conclusion based on Mills definition can only be that risk management is not in line with social justice. This is not surprising as social justice or the highest abstract standard of social and distributive justice' as Mill (2006:79) formulates it, is simply not achievable where it concerns policing. Following Mills (2006) definition, each suspect, no matter how convincing the evidence, is still potentially innocent and equal to everyone else, and thus should not have his or her rights abused in any way. Therefore, the police would have no right to use any investigative powers they are not using on everyone else. This would mean the police could not use any of their investigative powers and would stop functioning almost completely. The conclusion that risk management is not in line with the realisation of social justice is correct, although potentially misleading. The use of risk management supports an unbiased method based on research and statistical methods, which is a potential improvement over the previous method, as previous decisions based on the intuition of individuals were often founded on prejudiced ideas (Van der Leun and Van der Woude, 2011; Bowling and Philips, 2007; Miller, 2010). In the last example, the

National Ombudsman spoke of this possibility and based on the report it is evident that the National Ombudsman prefers risk management over intuition while strongly suggesting that the use of variables such as race and religion be excluded (Bijvoet et al., 2011; Veghter et al., 2010; Schets et al., 2006). In consideration of the above it is evident that the use of intuition and/or risk management is necessary to some extent in order to achieve efficient policing. As discussed before in examining the Ombudsmans point of view, risk management can prove itself to be an unbiased method of dealing with these issues, where intuition creates a large risk of prejudice and even racist ideas finding their way into policing policy. Risk management might be an unbiased method, but it still has potential problems. First of all, as the examples show, the risk factors tend to focus on the same minority groups. If this is noticed by the public it could seem as though Dutch policing organisations are purposefully trying to intimidate specific groups (Van der Leun and Van der Woude, 2011). Needless to say, this could cause a whole range of unanticipated problems, including the stigmatisation and discrimination of groups, as well as potential friction between minority groups, the government and the majority of the population (Bijvoet, et al., 2011; Van der Woude, 2009; Nieuwbeerta, McCall, Elffers, Eising and Wittebrood, 2008). A lack of attention to this problem from the legislative branch has led the executive branch, including the police, finding themselves in the situation where the use of risk profiling is virtually unlimited, as the judicial branch has ruled that racial profiling is allowed for use in policing matters. Policing organisations themselves should therefore carefully decide when to use sensitive factors like race and religion in order not to the harm their own public image. Due to an increased demand for effective policing, risk management has quickly grown as one of the most used methods of policing in the Netherlands. These methods are derived from actuarial methods which originated in the insurance industry. They help to predict in an objective manner which persons are at a higher risk of committing or having committed a crime, based on seemingly random factors. The Dutch legal system has several relevant laws to protect innocent people against being discriminated against and/or harmed by governmental organisations. There is, however, one general exception applicable to the use of risk management. This exception allows discrimination based on race and religion if the goals are legitimate and in proportion to the goal. It is clear that the goals are legitimate as the policing tasks are clearly stated in the law and therefore by definition, legitimate. By not clearly defining their activities in proportion to the goal law makers have given the judicial branch a much wider margin to consider.

In order to see what the judicial branch finds proportional for the use of several factors in risk profiling, this essay discussed two cases. The first concerned illegal cleaners in which the factor of African appearance weighed heavily in the decision to select people. In the second case, a form of indirect discrimination was taking place, as anti-drug smuggling measures were deployed only to flights from the Dutch Antilles and Suriname two popular destinations for minority groups in the Netherlands. Even though the Dutch government lost both cases, the content of the verdicts gave a strong indication that risk profiling including the use of race is considered proportional and therefore permissible in the Netherlands. The third case was added to this essay as it clearly shows that the general public is against the use of race and religion as factors for profiling by the executive branch. It is also a good example of indirect and direct discrimination caused by risk management. Finally, these three cases all focus on the same minority group in the Netherlands and together clearly show that risk management principles can cause intrusive measures to be justified as they do add up and might cause much more harm to minority groups than anticipated by the three governmental branches. The court verdicts from these cases have also shown that innocent people are having their rights violated, which clearly is not in line with social justice as defined by Mill (2006). As these actions were a direct consequence of risk management, this proves that risk management is not in line with social justice. Risk management remains, however, an improvement over previous methods. In the past such decisions were based on intuition, which is more or less the use of previous experiences and feelings (Leun and Woude, 2011). This causes many prejudiced ideas from individuals to find their way into policing decisions. Therefore, a means of risk management as an objective method would help the advance towards higher social justice and more effective policing in the Netherlands (Bijvoet et al., 2011). There are virtually no legal limitations for policing organisations in the Netherlands concerning the use of risk profiling. Therefore, they have to find their own limits in order to maintain their credibility and integrity as professional organisations which are not involved in racism or other policy derived from prejudiced ideas or hatred of minorities. If they fail to uphold an unbiased appearance to the public it could lead to extensive problems in society (Van der Leun and Van der Woude, 2011; Van der Woude, 2009). Therefore the pros and cons of using race and religion in risk profiling should be carefully weighed internal policy and/or regulations on this matter would certainly be recommended.

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Reference list: 2e Kamer (2010) 2e kamer: Vragenuur 100%-controles niet meer toegestaan[ 2nd Chamber: Question hour 100%-checks prohibited], 7 December, http://publitiek.nl/debat/vragenuur_100_controles_niet_meer_toegestaan_07-12-2010 (accessed 20 January 2012). Algemene Douanewet 2008 [ General customs law 2008], The Hague: SDU. Algemene wet gelijke behandeling (1994a) [General Law of Equal Treatment]. (Art.1), The Hague, SDU. Algemene wet gelijke behandeling (1994b) [General Law of Equal Treatment]. (Art.2), The Hague, SDU. Asscher, L. (2003) Reanimeer de Grondwet! [Revive the Constitution] Socialisme & Democratie 3(1): 18-22. Bijvoet, S., Matthijssen, S., Pronk, J., Roeloffzen, M., Van der Bijl, N., van Dorst, P. and Veghter, B. (2011) Rapport waarborgen bij preventief fouilleren: Over de spanning tussen veiligheid, privacy en selectie [Report security during preventive frisk searches: Concerning the tensions between safety, privacy and selection],Ombudsman Report 2011/252, The Hague: Nationale Ombudsman. Bowling, B. and Philips, C. (2007) Disproportionate and discriminatory: reviewing the evidence on police stop and search, Modern Law Review, 70 (6), 936 961. Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ETS 5, http://www.unhcr.org/refworld/docid/3ae6b3b04.html, (accessed 2 February 2012). D66 (2010) D66: Grondwet verbiedt preventief fouilleren Antillianen[D66: Constitution prohibits preventive frisk searches Antilleans], http://d66rotterdam.nl/news/item/d66_grondwet_verbiedt_preventief_fouilleren_antillianen/117, (accessed 7 January 2012). Douanewet 1995 [Customs law 1995]. (Art. 17), The Hague: SDU. Eijkman, Q. (2010) Has the Genie Been Let Out of the Bottle? Ethnic Profiling in the Netherlands, The Journal of Law and Social Justice 5(2): 1-21. Engbersen, G., Van der Leun, J., and De Boom, J. (2007) The fragmentation of migration and crime in the Netherlands. in M. Tonry and C. Bijleveld, (eds) Crime and justice in the Netherlands. Chicago: University of Chicago Press, 389-452. European Commission against Racism and Intolerance (2007) Derde rapport over Nederland [Third report about the Netherlands], http://www.minderregelsmeerservice.nl/Documenten/Extranet/Sez/VI/ECRIrapport.pdf, (accessed 19th January 2012).

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The Institute of Risk Management (2002) A Risk Management Standard, http://www.theirm.org/publications/documents/Risk_Management_Standard_030820.pdf, (accessed 13th January 2011). Tubantia (2011) Groot draagvlak voor preventief fouilleren [Large support preventive frisk searches], 15 September: 3. Van der Kamp, G. (2012) Exclusive: Dutch Bijlmer finds hope in diversity, http://www.euromight.com/bijlmer.php, (accessed 6 January 2012). Van der Woude, M. (2009) Brede benadering terrorismebestrijding [Wide approach counter terrorism] Openbaar Bestuur, 11: 2-5. Veghter, B. and Van der Kleij, M. (2010) Rapport 2010/174 [Report 2010/174], Ombudsman Report 2010/174, The Hague: Ombudsman. Vreemdelingenwet 2000 [Unknown persons Law 2000]. (Art. 50), The Hague: SDU. Wetboek van Strafvordering 1921 [ Criminal procedures law 1921]. (Art. 56), The Hague: SDU. Witteveen, W. (2001) De geordende wereld van het recht [The structured world of law], Amsterdam: Amsterdam University Press. Ypeij, A. (2009) Single motherhood and poverty: The case of the Netherlands, Amsterdam: Aksant.

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