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(Source picture: Sargasso)

(Source picture: Sargasso)

Wisah Binti Silan et al. v. The State of The Netherlands (Ministry of Foreign Affairs)

Court District Court of The Hague, The Netherlands
Case number 354119 / HA ZA 09-4171
Decision title Judgment (Court ruling)
Decision date 14 September 2011
Parties
  • Wisah Binti Silan
  • Wanti Binti Dodo
  • Lasmi Binti Kasilan
  • Cawi Binti Baisan
  • Taswi
  • Tijeng Binti Tasim
  • Layem Binti Murkin
  • Taijsi Binti Tikin
  • Saih Bin Sakam
  • The State of The Netherlands (Ministry of Foreign Affairs)
Other names
  • Rawagedeh case
  • Wisah Binti Silan et al. v. The Netherlands
  • Rawagadeh case
Categories Human rights violations
Keywords compensation, executions, State responsibility
Links
Other countries involved
  • Indonesia
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Summary

The District Court of The Hague ruled that the Dutch State acted unlawfully by executing a large amount of the male population in Rawagedeh without trial on 9 December 1947, during the Indonesian War for Independence. It required the Dutch State to award compensations to plaintiffs 1 to 7, but not to plaintiff 8 and the Foundation.

This was a landmark ruling, as it marked the first time that the Dutch government has been held responsible by a court for a committed massacre. On 9 December 2011, the Dutch government publicly apologised to Indonesia for the massacre through Tjeerd de Zwaan, the Dutch ambassador in Indonesia. None of the soldiers involved in the massacre have ever been prosecuted. Both sides have given different estimations regarding the amount of people killed, with the Netherlands stating that 150 people were killed, whereas the victims’ association puts this number as high as 431.

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Procedural history

Survivors and family representing victims killed in an incident in Rawagedeh, Indonesia, on the 9th of December 1947 brought a case before the Hague District Court asking for compensation from the Netherlands for the lives that were lost and damage that was done when Dutch forces allegedly opened fire and killed between 150 (according to Dutch authorities) and 400 (according to the plaintiffs) representing nearly the entire male population of the Indonesian village of Ragawedeh in West Java. According to the plaintiffs, the men who were shot were independence fighters rebelling against Dutch colonial rule in Indonesia. Their argument was that the Netherlands was responsible for the executions, to which the Dutch government responded with the argument that the applicable statute of limitations rendered the issue no longer justiciable.

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Related developments

The Netherlands agreed to pay the relatives a compensation of €20,000 each on 5 December 2011.

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Legally relevant facts

Indonesia was a colony of the Kingdom of the Netherlands under the name of the Dutch East Indies until 1949. On 25 March 1947 the Netherlands and Indonesia concluded the Linggadjati Agreement according to which Indonesia was to become independent no later than 1 January 1949.

Disagreement over the interpretation and execution of the Linggadjati Agreement led to a military intervention by the Netherlands in Indonesia in July 1947. On 9 December 1947, as part of the military intervention, Dutch forces attacked Rawagedeh. During this attack, a large amount of the male population was executed without trial by the Dutch soldiers.

Plaintiffs 1 to 7 are spouses (p. 2, para. 2.5), and plaintiff 8 is the daughter (p. 4, para. 3.2) of the executed men.

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Core legal questions

  • Whether the Dutch State was responsible for the killings committed by Dutch troops in the village of Rawagedeh on 9 December 1947, now called Balongsari, during the 1945-49 Indonesian War for Independence?
  • Whether the claims by the plaintiffs were barred by the Dutch statute of limitations?

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Specific legal rules and provisions

  • Section 4 of the Dutch Constitution as of 1938.
  • Section 148 of the Dutch Military Criminal Justice Act as applied in 1947.
  • Articles 2 (right to life) and 6 (fair trial) of the European Convention on Human Right (ECHR).
  • Protocol to the ECHR.

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Court's holding and analysis

The Court found the Government’s argument untenable for reasons of fairness and reasonableness and therefore ruled in favour of the plaintiffs, declaring that the Dutch state acted wrongfully through the executions and that the state is liable to pay damages. A separate hearing was scheduled to determine the amount of damages that will be paid.

The Court ruled that the Dutch State is liable towards plaintiffs 1 to 7 for the damages consequently incurred and yet to be incurred, whereas it dismissed the application by plaintiff 8 and the Foundation, and required them to pay the legal costs of the State, which were estimated at nil (p. 12).

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Further analysis

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Instruments cited

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Additional materials