2015 | The Netherlands District Court of The Hague, South-Sulawesi widows, children & Foundation Komite Utang Kehormatan Belanda vs the State of the Netherlands

This case arose from a purge in South-Celebes (the present South-Sulawesi; at the time part of the Dutch East Indies colony) in the period December 1946 - April 1947 during which the Dutch military summarily executed men suspected of prohibited nationalist activities and/or terroristic acts.

In this interlocutory judgment, that covers four civil proceedings, the District Court of The Hague rules that the Dutch State is liable for the damage suffered by the widows and children (plaintiffs) of the executed men of South-Celebes.  

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 and will be suffering as a result of the wrongful act (paras. 3.1-3.2). They reason that their claims are not subject to a limitation period (para. 4.4.)

In its defence the Dutch State –that has acknowledged the wrongfulness of the executions- advances that plaintiffs’ claim is subject to a period of limitation and, moreover, that the children of the executed men are not even eligible for damages (para. 3.7). To no avail; the Court rejects the applicability of limitation period vis-à-vis the widows (paras. 4.5, 4.18) as well as vis-à-vis the children (paras 4.24 4.25), reasoning that:

  • In the given circumstances, acceptance of a limitation period would contravene the principles of reasonableness and fairness (paras. 4.5-4.18).
  • The summary executions of (at the time) Dutch nationals by Dutch troops is an exceptional situation (para. 4.6)
  • From the beginning, the Dutch State was aware of these wrongful acts and could and should have anticipated that it would be held liable at a point in time and have to pay damages to relatives.
  • The Dutch State has acknowledged that the executions were wrongful;
  • Given the widows’ legal, social, cultural, political and economic position, de facto they had no access to justice for a long period of time. It follows that it would be unreasonable to require them to hold the Dutch State liable “within a reasonable period after the damage became evident”, as is prescribed by Dutch civil law.
  • Analogue to the Rawagedeh case, the claims stem form a dark chapter in Dutch history that has not been closed yet (para. 4.13).

Significantly, the Court also decides, and this is contrary to the decision of the District Court in the Rawagadeh case of 2011– that the children of the executed man can indeed claim damages since both former and present Dutch civil law treat spouses and children equally as most directly affected relatives of the deceased and because the children, of which some of them have witnessed the execution of their father, bear the scars of their fathers loss throughout their lives (paras. 4.26-4.28).

Are all plaintiffs indeed widows and children of the wrongful executed men?

To be eligible for compensation, plaintiffs must establish that:

1)  They are a widow or child of;

2) A man who was summarily executed by militaries serving under the (colonial) Dutch government of that time (para. 4.34).

Not all plaintiffs have provided sufficient prove of their status of wife/child. In this context parties argue about the evidential value of a man is (re)buried on a honorary cemetery, of a “list with 214 victims of Blukumba” and of written statements of chiefs of villages and eye witnesses (para. 4.36).  To solve this issue, the Court considers appointing an expert.

Reparations

Damages

Whereas plaintiffs also claim non- pecuniary damages, the Court takes the position that under former Dutch civil law (Article 1407 Bw) provides no basis for compensation of non-pecuniary losses of relatives (para. 4.66), a position that it backs up with reference to decisions of the Dutch Supreme Court. Also plaintiffs’ argument that they have a right to non-pecuniary compensation under the European Convention of Human Rights is rejected given that this convention has entered into force after the alleged facts and lacks retroactive effect (para. 4.71)

The extent of the damage

Plaintiffs must individually prove, as concrete and substantiated as possible, the extent of their lost income (para. 4.81). Since the children can only claim their lost income from the Dutch State until the moment they had or were able to make their own living, they are additionally required to establish when that moment had arrived, respectively at what moment their fathers parental obligations would have ended according to the applicable Dutch-Indies or Indonesian law of that time (para. 4.82)

Finally, the Court grants plaintiffs the possibility to bring in the required supporting evidence to prove their status of wife/child, to which the Dutch State than can respond to. Meanwhile the Dutch State has reached an amicable settlement with a number of widows.

For more information on this topic we suggest reading our report ‘The Impacts of Litigation in relation to Systematic and Large-Scale Atrocities committed by the Dutch Military Forces in the ‘Dutch East Indies’ between 1945-1949’.