This judgment is a follow up of the interlocutory judgment of the District Court of March 11, 2015, after which the State has reached a settlement with a number of widows. Assessing the remaining plaintiffs’ claims, the Court now focusses on two issues:
Above all, this judgment shows the difficulties plaintiffs encounter proving their status as widows and children of the executed men of South-Celebes in 1946-1947. Not only this is due to the fact that marriage and birth registration in Indonesia was and to a certain extent still is under developed, but also cultural differences play a role. For instance, whereas plaintiffs bring in evidence that might be persuasive according to Indonesian law or custom, Dutch civil law sets the evidential bar higher.
Being charged with the burden of proof, plaintiffs were requested for supporting evidence by the Court (para. 2.4) that found the evidence so far unverifiable, too short or unreliable. They responded in providing four lists of 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 which concrete and verifiable sources it is based (para. 2.19). Due to issues such as typing errors, the fact that allegedly in Indonesia, it is not unusual to spell names in multiple ways and a person thus can be listed under various names, the Court’s conclusion is that the lists lacks concrete and unverifiable sources (paras. 2.11, 2.22). Moreover, also the testimonials suffer in essence from the same weakness (para. 2.27, 2.28.) and thus, the Court cannot ascertain that plaintiffs indeed are the widows and children of the men that were wrongfully executed in 1946-1947 by the Dutch military (para. 2.33).
Seeking ways to evidence their status of widows and children, and recognizing the cultural differences with regard to concepts such as prove, truth, time and place in Indonesia at one hand and the evidential value under Dutch civil law on the other (para. 2.35) plaintiffs request the Court to appoint an anthropologist to, amongst others, hear witnesses – which the Court promised to consider (para. 2.41).
In order to help clarify the evidential value of the parts of the existing evidence, the Court 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).
Whereas the Court in its interlocutory judgment explained that under former Dutch civil law, applicable to this case, it can only reward monetary damages, it requested each plaintiff to show “as concrete and motivated as possible and substantiated with evidence” their loss of income, plaintiffs have only roughly documented their monetary damages to which the Dutch State has not been able to respond yet (para. 2.66).
The Court decided to appoint Mr Cribb as expert (paras. 2.71, 2.7).
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’.