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2016 | THE NETHERLANDS District Court of The Hague, South-Sulawesi widows, children & Foundation Komite Utang Kehormatan Belanda v. The Netherlands, Case nos. HA ZA 12-1165, HA ZA 14-96, HA ZA 14-653

Court

District Court of The Hague, The Netherlands

Type of decision

2nd Interlocutory judgment

Date judgment

27 January 2016

Case nos.

C/09/428182 / HA ZA 12-1165, C/09/458254 / HA ZA   14-96, C/09/467029 / HA ZA 14-653

Area of   jurisdiction

Civil Law

Claim

Plaintiffs seek a declaratory judgment that the Dutch State   committed a wrongful act towards them and seek to hold the Dutch State liable for monetary and non-monetary damages they have suffered and will be suffering as a result of the wrongful act.

Principle legal   argument(s)

Plaintiffs primarily purport that their claims are not subject to a period of limitation.

Type of reparation sought

Compensation for past and future damages.

 

This interlocutory judgment is a follow up of the interlocutory judgment of the District Court of 11 March 2015, after which the State of The Netherlands reached a settlement with a number of widows. Assessing the remaining plaintiffs’ claims, the Court now focusses on two issues:

  1. The evidence that plaintiffs indeed are the widows and children of the men that were wrongfully executed in 1946-1947 by the Dutch military, and
  2. The extent of the damages.

Ad 1: Evidence

Above all, this judgment shows the difficulties plaintiffs encounter when seeking to prove their status as widows and children of the executed men of South-Celebes in 1946-1947. This is due partly to the fact that marriage and birth registration in Indonesia was (and to a certain extent still is) under-developed. In addition, differences exist between the relevant legal cultures, such that evidence that may be persuasive according to Indonesian law or custom, may not meet the higher evidential bar observed by Dutch Civil law.  

Being charged with the burden of proof, plaintiffs were requested by the Court to provide supporting evidence (para. 2.4) as it had found earlier evidence submitted to be unverifiable, lacking in sufficient detail or otherwise unreliable. The plaintiffs responded by providing four lists provided by the Indonesian welfare service and, in a number of individual cases, testimonials (paras. 2.9, 2.10). The Court observes that the evidential value of the four lists mainly depends on their being based, in turn, on concrete and verifiable sources (para. 2.19). Unfortunately, typing errors, together with the fact that allegedly in Indonesia, names can be spelled in multiple ways and persons therefore listed under various names, the Court’s conclusion is that the lists could not constitute sufficiently concrete and verifiable sources (paras. 2.11, 2.22). Moreover, the testimonials suffered from similar weakness (paras. 2.27, 2.28.). Thus, the Court cannot ascertain that the plaintiffs are indeed the widows and children of the men that were wrongfully executed in 1946-1947 by the Dutch military (para. 2.33).

Seeking ways to strengthen the evidence of their status as widows and children, and recognizing the cultural differences between Indonesian and Dutch law with regard to concepts such as proof, truth, time and place, (para. 2.35) the plaintiffs request the Court to appoint an anthropologist to interview the witnesses. The Court agrees to consider this proposal (para. 2.41) and decides to appoint the Australian, Dutch speaking historian Mr Robert Cribb, expert in the Indonesian Independence war, and formulates the research questions that will be presented to him (paras. 2.43, 2.45).

Reparations

Ad 2: Extent of the damages

In its interlocutory judgment, the Court explained that under the former Dutch civil law applicable to this case, it can only reward monetary damages, and requested each plaintiff to show their loss of income “as concretely as possible and substantiated with evidence”, plaintiffs only roughly documented their monetary damages. Consequently, the Dutch State has not yet been able to respond (para. 2.66).

Pending the findings of Mr Robert Cribb and the provision of more concrete evidence of monetary loss, the Court reserves further decisions in this case. (paras. 2.71, 2.73).