Following the Second World War, the Netherlands tried to recapture its former colonies in Indonesia. The Dutch forces were resisted by Indonesian nationalists in what became known as the Indonesian War of Independence. During the ensuing conflict, an estimated 50,000 to 100,000 soldiers and 25,000 to 100,000 civilians were killed. In a recent judgment, the Netherlands has been ordered to pay compensation to the families of men unlawfully executed by Dutch soldiers between December 1946 and April 1947.

The claimants in the case were the widows and children of men executed without trial for “prohibited nationalist activities and/or terrorism”. Although the Netherlands acknowledged that the executions were unlawful, it argued that the claims were time-barred. However, in an interlocutory judgment delivered last year, the Hague District Court of Appeal rejected the State’s argument and lifted the statute of limitation, paving the way for the Hague District Court to award compensation.

This is not the first time a former colonial power has been forced to face its colonial past in the courtroom (here, here and here). The decision is consistent with international law, namely that statutes of limitation should not bar the hearing of cases involving war crimes or crimes against humanity. However, as time goes by, evidential difficulties, such as the loss of records, the decay of memories and the death of victims, perpetrators and witnesses alike, means that no more than a few cases will result in compensation for the victims of colonialism.

LIFTING THE STATUTE OF LIMITATION

The Dutch State argued that, as the men were executed before 1992, the Limitation Act 1924 (1924 Act) applied. Under the 1924 Act, a claim for compensation becomes time-barred after 5 years, with the 5 year period commencing from 31 December in the year that the claimant allegedly suffers damage or injury.

The Dutch Supreme Court has recognised the following two exceptions to statutes of limitation (such as the 1924 Act), namely: where the damage is caused by environmental pollution and where the appearance of such damage is delayed, resulting in so-called ‘hidden damage’; and where the civil court cannot award compensation until the administrative court has established the unlawfulness of the government decision alleged to have caused the damage. Otherwise, statutes of limitation should be applied strictly for evidential reasons, even if this is unpalatable “from the point of view of individual justice”. However, the Dutch Supreme Court has elsewhere said that the application of statutes of limitation should be fair, reasonable and in good faith.

Despite not fitting into either of the two exceptions recognised by the Dutch Supreme Court, the Hague District Court of Appeal decided that due to “the exceptional nature of the wrongful conduct”, it would be unreasonable and unfair to apply the statute of limitation in this case.

In addition, the Netherlands is a signatory to both the UN Convention and the European Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, which prohibit signatory states from barring the prosecution of war crimes and crimes against humanity on the grounds of statutory limitation. War crimes and crimes against humanity are defined with reference to the Nuremberg Charter, the Geneva Conventions and the UN Convention on the Prevention and Punishment of the Crime of Genocide. In its interlocutory judgment, the Hague District Court of Appeal referred to the abovementioned UN Convention and European Convention as justification for its decision to lift the statute of limitation in the instant case.

The Court of Appeal also pointed to the statutes establishing the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, and the International Criminal Court, as evidence for the continued international consensus that war crimes and crimes against humanity should not be subject to statutory limitations.

The Netherlands may appeal to the Dutch Supreme Court, fearing the decision will lead to more victims of colonialism coming forward to claim compensation. However, this fear is misplaced. The list of surviving victims of colonialism shrinks each year. Those able to bring a claim still have to prove injury or damage, which the ravages of time make increasingly difficult. The Netherlands has built a global reputation as a bastion for human rights. It would be foolish to tarnish this reputation by attempting to avoid its international and moral obligations.

Samuel is a trainee solicitor and postgraduate student at Cardiff University. He is active in several UK based organisations campaigning on behalf of Hong Kong and BNO’s. His research interests include transitional justice and the rule of law.

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