Essay: The Rawagede court ruling

On the 25th of March 1947 the Linggadjati Agreement was established, an agreement between the Governments of the Netherlands and the Republic of Indonesia. The main purpose of this agreement was that the Republic of Indonesia should be independent on the first of January 1949 at the latest. Unfortunately, the execution of the agreement did not go as planned, which resulted in a military intervention of the Netherlands in the Republic of Indonesia from July 1947 until 5 August 1947. During this intervention, the Dutch soldiers occupied the lowland plains surrounding the city of Krawang, which is only a couple of kilometres away from Rawagede . Simultaneously, the Indonesian forces became active in that area, which is why the Dutch military attacked the Indonesian rebel fighters in Rawagede on 9 December 1947. Additionally, the Dutch military executed a large part of the male population of Rawagede, without any legitimate form of process . The District Court of The Hague ruled on 14 September 2011 that the Dutch State is responsible for the damage suffered from the executions on 9 December 1947 in Rawagede. In the following paper I will address several negative and positive aspects of the decision, viewed from a victims’ perspective.
After the attack on 9 December 1947, the Committee of Good Offices on the Indonesian Question almost immediately came with a rapport which stated that the action of the Dutch military in Rawagede was seen as ‘deliberate and ruthless’ . However, despite the major was liable under criminal law and the attack of the Dutch military could be seen as a criminal act, the case got dismissed . Moreover, in 1969, the Dutch prime minister De Jong decided that the Dutch solders would not be persecuted for crimes committed by them in Indonesia from 1945 until 1950 . However, on 8 September 2008 a lawyer of nine plaintiffs held the State by letter responsible for the attack and the damage that followed . The plaintiffs consisted of the 7 widows from the executed men, one man that got injured during the attack and one child of an executed man. The lawyer held that the State acted unlawfully towards the plaintiffs because she executed a big part of the male population of Rawagede and injured one of the plaintiffs, no criminal-investigation was done on the executions and because of the fact that the responsible Dutch military was not prosecuted. The plaintiffs held the State responsible for the damages . Though, the State reacted by saying that it did not want to cover the damages. However, the court in The Hague ruled on 14 September 2011 that the State did acted unlawfully towards almost all the plaintiffs and held the State responsible for all the damages they suffered . Though, the court ruling could be seen as somewhat ambiguous.
After the court decided that Dutch law was applicable to the case, it decided that the State must be judged on the basis of the law that applied before 1 January 1992 . The law before 1992 stated that a time limit of 5 years applies for monetary debts of the Central Government and other Governments. The State argued that the time limit of 5 years past, whereas the plaintiffs did not. To determine whether there is a monetary debt of the Central Government in terms of the previous Article, there has to be one moment in time when the authority arises to demand immediate compliance with the obligation . The moment the claim becomes payable coincides with the moment of inception of the claim. In this case, it meant that the claim from the plaintiffs was incepted immediately after the executions had taken place on 9 December 1947. Meaning that the limitation period of the right of claimstarted on 31 December 1947 and ended on 31 December 1952 . Due to this time limit, the right of the plaintiffs to file in a claim against the executions technically had expired . However, the Court ruled that in terms of reasonableness and fairness it was unacceptable to rely on the limitation period of the right of claim of plaintiffs by virtue of the execution . There was no existing case law that had formulated this, but that does not mean that you can say a contrario that there is no room for a new interpretation. What not expressly is prohibited, is permitted . The State acted unlawfully and knew this from the start. Besides, it was familiar with the facts and its responsibility towards the victims. The fact that it might had to compensate the damages someday, had to be taken into account . Moreover, the fact that the State remained inactive despite the awareness of the facts, makes the period in the history of the Netherlands unsettled . The State still deals with claims from survivors of the World War II . If seems unfair to provide victims of the World War II a way to collect their damages, whereas victims of the unlawful attack in Rawagede cannot. The court also called the case ‘exceptional’. However, plenty of other massacres are acknowledged during the Indonesian War by for example Governor-General van Mook. The unpublished Van Rij and Stam investigation of 1954 also reported several other massacres. By calling the case exceptional, the court could provide that other victims of other massacres would go to the court and ask for reparations. It also made it possible for the court to make sure that ignoring the limitation period would only apply to the massacre in Rawagede . Moreover, the court actually also had to pay attention to the question whether the plaintiffs had the chance to enforce their claims in good time. The court instead suggests that there could be situations where it is unacceptable to rely on the limitation period because of reasons that go beyond the rate of the limitation rule itself. The limitation rule is being eliminated instead of being clarified or being complemented . In the case of extreme injustice, the value of legal certainty must yield to the value of justice . If the court followed the law, the limitation rule had to be followed, because five years had passed and the victims did have the chance to go to court earlier. The court looked at the case from a more victim perspective, taken into account especially the severeness of the attack and the fact that the State knew that it acted unlawfully. However, legal certainty can become an issue when putting aside the statutory limitations and moreover, the limitations can be effective when it comes to procedural fairness. Evidence can no longer be available after some time, which makes some claims impossible to rebut. The statutory limitations aim to prevent these claims from rebutting. Moreover, statutory limitations can contribute to finality and peace when it comes to reparations in victim cases . By not mentioning these goals and by putting aside the statutory limitation, the court implies that statutory limitations should not be applied in reparation cases . Furthermore, the court ruled that from the plaintiffs only the widows of the executed men and the injured men did not have to rely on the limitation period. Children from the executed men cannot profit from this, because the court sees them as a next generation that had not been affected by the attack as much as the widows and the injured man. Though, since the Dutch law is applicable according to the Court, Article 6:108 of the Dutch Civil Code says that when somebody is liable for the death of somebody, children can also receive damages. Moreover, the claims that the State still deals with that stem from the World War II do involve the subsequent generation when it comes to paying damages . Furthermore, the people that can be eligible for the damages, are logically elderly men and women. The possibility exists that some of them die during the damages procedure. The State did allow that if a person dies and already started the procedure, it is still possible that the claim succeeds. This however seems not right, because this means that relatives or the next of kin can still get access to the damages in some way, but at the same time the State did not allow the next generation to ‘abandon’ the limitation period . The State should allow the next generation to receive damages. The legal definition of a victim also includes immediate family or dependents of the direct victim . The victims from the subsequent generation are being ignored, while the first generation does receive damages. It looks like the subsequent generation has not been taken seriously in their claims. However, even though most of the plaintiffs did receive damages, after the court ruling the population of Balongsari demanded their share of the damages that the plaintiffs received. It looks like they did not understand that the damages were only for the people how were named in the court ruling. The local authorities called upon the public peace and redistributed the money. This however, is not fare towards the victims at all. They were entitled to the money, not the rest of the population of Balongsari. They could receive damages as well, but they first had to go to the civil court to make this happen . Due to envy and resentment, compensation may have an adverse local impact . The Netherlands offered a formal apology on 9 December 2011 as a result of the court ruling by the then Dutch ambassador Tjeerd de Zwaan . Before the court ruling in 2011, the State had never offered a formal apology. A public apology could be really important for victims, because it is a way in which satisfaction can be given to a victim . Not providing a formal or public apology, could result in victims getting suspicious in whether the State really regrets their unlawful act. An apology could make victims realise that the State is accepting its responsibility. Acknowledgement of the facts that happened during the attack is also an important factor why an apology could be important .
The court in Ten Hague decided on 14 September 2011 that the attack on the population of Rawagede by the Dutch military on 9 December 1947 was unlawful and held the State responsible. By calling the massacre ‘exceptional’ and the fact that the State knew it acted unlawfully and did not do anything for all these years, it would be unreasonable and unfair to apply the limitation period. However, the case was not exceptional and the court should also have addressed the question whether the plaintiffs had the chance to enforce their claims in good times. Moreover, it now may look like that statutory limitations should not be applied in reparation case. By looking at a more victim perspective, the court was able to set aside the limitation period. However, the court only set aside the statutory limitations for the widows of the executed men and the man who got injured during the attack. The subsequent generation could not receive damages, because they were not as much involved as the first generation the court said. Furthermore, the plaintiffs that did receive damages, had to share their parts with the rest of the population of Balongsari. Furthermore, the State only offered a formal apology after the court ruling in 2011, 64 years after the massacre. The apology could be seen as a judicial enforced apology, which could cause unsatisfactory feelings among the victims. Altogether, from a victim perspective the court made the right decision to rule that the State acted unlawfully. The victims received damages and the facts got acknowledged due to the court ruling and the formal apologies. However, how the court came to its conclusions may be somewhat ambiguous and the fact that the subsequent generation could not receive damages seems wrong to me. It also makes no sense that the damages received were cut in half by the local authorities of Balongsari. Everything the State did for the victims of the attack, including the formal apologies and the fact that they paid damages, seems judicial enforced. Acknowledgement then seems far away.