Court: District Court of The Hague, The Netherlands

‍Type of decision: Interlocutory judgment

Date judgment: 23 January 2019

Case no.: C-09-523880-HA ZA 17-8

Area of jurisdiction: Civil Law

Claim: The Dutch State is liable for the claimant’s past and future damages.

Principle legal argument(s): The Dutch State has acted unlawfully against the claimant by summarily executing his father and by desecrating his father’s corpse. The liability claim is not time-barred.

Type of reparation sought: Compensation for material and immaterial damages; and Payment of costs of the legal proceeding.

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This case arose of the summary execution of the leader of an anti-Dutch resistance group, by the Dutch Military, during a purge on South Celebes in March 1947. The purges on South Celebes, formerly part of the Dutch East Indies colony, had been ongoing since December 1946 and were aimed at supressing nationalist insurgents. Practically from the start, the Dutch-Indies authorities were informed of the Dutch soldiers’ misconduct during the purges.

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On 5 October 2015 the claimant summoned the Dutch State for committing a tort against him by summarily executing his father, beheading his father and by desecrating his father’s corpse. He holds the Dutch State liable for his material and immaterial damages and claims compensation plus reimbursement of the costs of the legal proceedings. As procedural defense, the Dutch state claims that the liability claim is time-barred. Additionally, as substantive defense, the Dutch State denies that the alleged wrongful incidents took place.

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Liability claim not time-barred

The court finds the liability claim not time-barred (paras. 4.5, 4.51). It explains that both current and former (applicable) civil law leave room for setting aside the legal time limitation for filing compensation claims against the Dutch state, when its application would be unfair – i.e. in legal terms – contravene the principle of good faith, (para. 4.15). To that end, and parallel with its findings in the comparable cases of the widows of Rawagade and South Sulawesi (paras. 2.10, 2.12), the court proceeds to consider the claimants concrete and specific circumstances, including:

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• his young age, in the period when the possibility for filing a liability claim was not yet formally time-barred, presumably barred him from access to a court in Indonesia under Dutch colonial rule, or in The Netherlands (para. 4.18)
• his social and cultural position (para. 4.11)
• the gravity of the Dutch Military misconduct during the purges and the fact that the authorities had knowledge thereof at an early stage (para. 4.28). On account of this, the Dutch State should have anticipated that it would be held liable at a point in time and would have to pay damages (para. 4.29).
• the fact that his claim stems from a dark chapter in Dutch history that cannot be considered closed yet (para. 4.32).
• the fact that he filed his liability claim within a reasonable period of time after he became aware of the possibility to hold the Dutch State liable (paras. 4.44, 4.46. 4.49, 4.50).

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Assessment of the merits: further evidence needed

Whereas in similar cases the Dutch State acknowledged its responsibility for the wrongdoings of its soldiers in the former Dutch East Indies, here, it denies the summary execution of the father. Instead, the Dutch State claims that the father was lawfully killed in a firefight (para. 4.59). Because the proof presented by the claimant is insufficient for the court to establish with certainty that the alleged unlawful acts indeed occurred, the court allows the claimant to provide further evidence by tele-hearing of witnesses and seizes the case (paras. 4.67, 4.72, 5.3).

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More Dutch colonial crimes jurisprudence can be found here under ‘Cases before National Courts (Europe)’. The Nuhanovic Foundation commissioned a study on the impacts of litigation, including this case, in relation to systematic and large scale atrocities committed by the Dutch military in the Dutch Indies/Indonesia between 1945-1949. The report can be accessed here.