2019 | THE NETHERLANDS The Hague Court of Appeal, Children of executed men in South-Sulawesi v. The Netherlands, Case no. 200.243.525/01, October 1st, 2019
This case arose from a purge in South-Celebes (the present South-Sulawesi), formerly part of the Dutch East Indies colony. In the period December 1946 - April 1947, the Dutch soldiers summarily executed men suspected of prohibited nationalist activities and/or terroristic acts. In 2015, the District Court of The Hague ruled that the Dutch State is liable for the damage suffered by the widows and children of the executed men of South-Celebes. It decided that the Dutch State’s invocation of the period of limitation with regard to the plaintiffs’ compensation claim would be not reasonable and fair and thus unacceptable.
The Dutch State appealed the District Court’s decision, arguing that former Dutch civil law–applicable to this case- did not provide for the possibility of derogating from the period of limitation on grounds of reasonableness and fairness (except in one situation, not relevant here). Additionally, the Dutch State claims that the invocation of the statute of limitations is not unacceptable in view of the criteria of reasonableness and fairness. The Dutch State also contests that the children of the executed men (plaintiffs in this procedure) were not in a position to lodge their compensation claims earlier and within the legally prescribed reasonable period of time.
The Court of Appeal (the Court) determines that Dutch law is applicable to this case. Since the damage, ensuing form the Dutch forces wrongful acts, occurred before January 1st, 1992, the law applicable to plaintiffs’ compensation claim is former Dutch civil law. The Statute of Limitations of 31 October 1924 (in Dutch ‘Verjaringswet’) applies as well given the fact that this case involves a monetary claim against the Dutch State.
Reasonableness and fairness prevail over period of limitation
The Court determines that it would be unreasonable and unfair towards the plaintiffs to declare their claim barred by the period of limitation. Citing the Dutch Supreme Court’s guidelines for determining when the invocation of the period of limitations would be unacceptable (para. 14), the Court finds that the extraordinary seriousness of the crimes (gross human rights violations against the background of cleansing actions in a colonial war) and the Dutch State’s high degree of culpability for the violence used, are important factors overruling the period of limitation. In this context, the Court notes that (international) criminal law excludes war crimes and crimes against humanity from periods of limitation (para. 15.2). The Court proceeds noting that the Dutch State had a legal due diligence obligation to adequately document relevant information about its prisoners and their injuries. Since it failed to do so while it could and should have expected future claims, it has itself to blame for now struggling to substantiate its defense (para. 15.3).
Parallel to its findings in similar cases, the Court holds that plaintiffs’ legal, social, cultural, political and economic position de facto barred them from access to justice for a long period of time (para. 15.4). A (strict) application of the period of limitation would therefore be unfair. Plaintiffs, however, are held to their legal obligation to lodge their claims within a reasonable time from the moment the aforementioned obstacles dissolved, which they have done. This moment must be sufficiently verifiable and made objective. In this case, that is the moment the plaintiffs knew about the possibility of suing the Dutch State for compensation for their damages. The Court specifically states that it must concern knowledge that could not have been available at an earlier stage due to the obstacles referred to (paras. 15.5-15.7)
No compensation for immaterial damages
The plaintiffs sue for compensation for material and immaterial damages suffered. With regard to the latter, they claim to have been seriously personally impacted by the absence of a father figure and the gap that this has caused in their lives. In line with the District Court’s decision, the Court rejects their claim reasoning that the applicable law provides no basis for an award of these kind of immaterial damages (paras. 22-23, 25).
The case is now referred back to the District Court of The Hague to decide whether plaintiffs are indeed children of the executed men (para. 19). If so, they are eligible for compensation for their material damages, entailing a reimbursement of living expenses.
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.