In an attempt to fight nationalistic “terrorists” in East-Java, which at the time was part of the Dutch East Indies colony, Dutch militaries have carried out so called “police actions” on East Java, on February 19 and 20, 1949. While searching the local village Peniwen, Dutch militaries summarily executed persons and misconducted otherwise. In the course of these events, plaintiff claims to have been raped by five Dutch militaries on 19 February 1949 (para. 3.2). She seeks a declaratory judgment that the Dutch State acted wrongful towards her through the rape of the Dutch militaries and is liable for the non-monetary damages she has suffered and will be suffering in future. She requests the Court to determine the extent of the damage at € 50.000,- (para. 3.1).

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Having determined that the applicable law for adjudicating this case is former Dutch civil law (para. 4.1), the Court addresses the Defence’s assertion that plaintiff’s claim has exceeded the legal limitation period. The Court however, decides[1] that applying this limitation period in this particular case, would contravene the principle of good faith (para. 4.4). It explains that in order to establish a contravention of the principle of good faith, all concrete circumstances of the case must be taken into account (para. 4.6). In this case these are:

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• Plaintiff’s claims compensation for her own[2] non-monetary damage, i.e. psychological suffering  (para. 4.7);
• Seriousness of the alleged facts: rape is a very serious violation of physical integrity and constitutes a wrongful act of the perpetrator toward the victim. Plaintiff allegedly was raped in her own house at gunpoint by five militaries which is intolerable if proven (para. 4.8.);
• The absence of any access to justice prevented the plaintiff from filing charges against the Dutch State within the legal limitation period:

– Analogue to the Rawagede case the Court considers that plaintiff’s legal, social, cultural, political and economic position, de facto withheld her from access to justice for a long period of time and therefore it would be unreasonable to require plaintiff to hold the Dutch State liable within a reasonable period after the rape (para. 4.14).

– Immunity barred the Dutch State from being sued before foreign Courts;

– It has not become evident that plaintiff could have sued the Dutch State before a Dutch Court within the limitation periods enshrined in former Dutch law (the Dutch “Verjaringswet 1924” and Article 2004 former Dutch civil law Act) (para. 4.15);

– De facto plaintiff neither had access to justice through the “Commission Van Pel” –set up by the Dutch authorities – given that the latter was not mandated to establish the civil liability of the Dutch State (para. 4.16).

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Based on these arguments, the Court determines that the reasonable period of time to hold the Dutch State liable starts from   the moment plaintiff was informed of the possibility to hold the Dutch State liable for the rape and accepts plaintiff’s substantiated statement that this was in 2014. In addition, the Court takes into account her advanced age and the fact that she lives in a remote area with no access to media, computers and on-line information.

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Verbatim repeating its reasoning in previous cases, the Court considers that plaintiff’s claim stems from a dark chapter in Dutch history that has not been closed yet. [3]

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And as in previous cases, the Court stresses that its finding, that applying the legal limitation period strictly, would contravene the principle of good faith, applies only to this specific claim and that that in every (new) case on alleged wrongful acts of Dutch troops in the former Dutch East Indies colony in 1946- 1949, the actual circumstances of the case are decisive for determining whether setting aside the applicability of a the limitation contravenes the principles of good faith (para. 4.24).

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Importantly, the Court establishes that the rape contravened the instructions given to the Dutch militaries by their superior, which is relevant for the question whether the wrongful conduct of the militaries is attributable to the Dutch State and as such constitutes a wrongful act of the Dutch State (para. 4.10).

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While concluding that plaintiff’s allegations of rape by Dutch militaries are sufficiently substantiated (para. 4.41), the Court rules that these militaries committed a wrongful act toward plaintiff, under Article 1407 of the former Dutch civil law Act. At the same time however, the Court observes that this wrongful act cannot be attributed to the Dutch State under the provision plaintiff relies on (Article 1401 of the former Dutch civil law Act). The Court determines that attribution nevertheless is possible based on Article 4013 (3) of the former Dutch civil law Act and on the attribution standards in force at that time.

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Reparations

The Court observes that, according to the Supreme Court at the time, a wrongful act based on former Dutch civil law (Article 1407 former Dutch civil law Act) could lead to a claim for non-monetary damages, and that Article 1403 of this former Act does not limit or exclude awarding such damages and that the Dutch State in principle can be held to pay compensation (para. 4.59).

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In face of the rather scarce evidence for the psychological suffering presented by plaintiff, the Court lets itself rather easily be convinced arguing “…  rape is a  very serious violation of physical integrity and it is commonly known that rape, in particular committed by weaponed perpetrators during an armed conflict, can lead to psychological damage. “ (para. 4.62).

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The extent of the non-monetary damages is addressed next. With reference to calculations on compensation for sexual abuse addressed in multiple sources, plaintiff askes the Court to determine the extent of the damage at € 50,000.-. The Court however, rejects explaining that a compensation sum over € 10,000.- is awarded in sexual abuse cases with even impact and of more serious nature. Also considering the circumstances of the rape, the Court grants a compensation for non-monetary damages of € 7.500 (paras. 4.70-4.72, 5.1).

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Epilogue

The Dutch State has announced it will compensate plaintiff as ordered by the Court. At the same time, in an attempt to clarify which war crimes are (still) and which crimes are no longer eligible for compensation, the Dutch State has lodged an appeal to review the District Court’s arguments for adapting the legal limitation period.

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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’.

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[1] This is parallel to the Distict Court’s decision in the cases of 2016 East Java torture, 2015 South Sulawesi widows & children and 2011 Rawagade.

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[2] Here a difference presents itself from the South Sulawesi widows & children case, where the Court pointed out that under former and present Dutch civil law, relatives cannot claim non-monetary damages.

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[3] This is parallel to the Distict Court’s decision in the cases of 2016 Java torture, 2015 South Sulawesi widows & children and 2011 Rawagade,

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