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:
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).
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).
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.