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Legitimate decision-making in border areas – Part 2 photo: marechaussee.net

Legitimate decision-making in border areas – Part 2

Deciding which travelers to check when they cross the border seems like a straight-forward task. But is it as simple as it sounds?

In our previous blog on the monitoring of the internal borders of the Netherlands, we discussed some of the legal criticism on the Mobile Security Monitoring (MSM). These critiques were mostly aimed at the breach that MSM and the use of the @migo-BORAS camera system would entail on the Schengen agreement and the freedom of movement for EU citizens. Another branch of criticism potentially affecting the legitimacy of the MSM we haven’t discussed so far, targets the selection of travelers crossing the border to be subjected to an identity check.

Whereas the idea of MSM is to randomly select, critics claim that this selection isn’t random at all. Accusations of discrimination and even references to ethnic profiling are often heard. Oddly enough, these claims aren't supported by research. In fact, in the Netherlands, empirical research in these areas is scarce and, when it comes to MSM, non-existent.

To get some more insight into how MSM works and especially how vehicles are selected, we spent two full days with the KMar (the Dutch Military Police) at both the Belgium and German border.

Modus operandi

So how does MSM work? The process starts with a team of officers on motorcycles who stand on the side of the road near the border. They observe all traffic that passes by. When they see an interesting vehicle, an officer sets out in pursuit. Once he has caught up with the vehicle, he pulls up next to the vehicle to take a quick look at the person driving it. If he still thinks the combination of the vehicle and the driver are interesting, he signals the driver to follow him.

The officer then leads the driver to an area, usually a parking lot next to the highway, where the rest of the MSM team is waiting; ready to start with the identification check. They ask the driver and all passengers for identification papers -passports or ID cards- and check if the documents are valid and genuine. Meanwhile, another officer asks some questions, such as the destination or purpose of the visit. If all checks turn out fine, the vehicle can continue its journey. If not, a more thorough investigation will be conducted, possibly leading to an arrest.

The art of selection

The key in the whole process is the selection made by the officer on the motorcycle. Unless @migo-BORAS gives a hit, this officer alone decides who gets pulled over. So if someone’s appearance, for example skin-color, would be a factor in the selection process, it would have to be visible at the moment the vehicle passes by the officer. To get an idea what can actually be seen at that very moment, take a look at the video below.

As you can see, cars go by in a flash, driving at about 130 km/h. Officers have to make a split-second decision whether or not a vehicle is of any interest. On top of that, it is very difficult to see the individuals inside the vehicle. The picture below was taken while standing next to the officers: It clearly shows the limited visibility.

Legitimacy at stake?

So does that mean that physical appearance is of no importance during MSM? We think it is too early to answer that question and therefore also too premature to state that the legitimacy of MSM is at stake due to biased selection. The above gives good reason to believe there is a lot more to the selection of vehicles during MSM than merely the color of someone’s skin. To gain insight in what other factors are of importance, more research is necessary. Leiden Law School’s Institute for Criminal Law and Criminology started a research project with that exact goal in mind. Although the research is still in its initial phase, we hope to be able to shine further empirical light on the complexity of ‘the art of selection’ in the near future.

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