Government in exile of the Republic of South Moluccas (RMS) v. The Netherlands

Court	Court of Appeal of The Hague, The Netherlands
Case number	LJN: BU5105, 200.077.445/01
Decision title	Uitspraak
Decision date	22 November 2011
Parties	Government in exile of the Republic of South Moluccas (RMS) P2 P3 P4 State of The Netherlands (the Ministry of General Affairs and the Ministry of Foreign Affairs)
Categories	Human rights violations
Keywords	Human rights violations; head of state immunity
Links	Judgment of The Court of Appeal of The Hague (in Dutch)

Summary

The President of Indonesia, Susilo Bambang Yudhoyono, had planned a visit to the Netherlands from 6 to 8 October 2010. The government in exile of the Republic of South Moluccas (RMS) filed a complaint in the Netherlands and requested the Indonesian President to be arrested upon arrival in the Netherlands, and furthermore, that he would be prosecuted for human rights violations committed against Moluccan detainees.

On 14 October 2010, the District Court of The Hague dismissed the case because President Yudhoyono as head of state could not be prosecuted (head of state immunity).

On 22 November 2011, the Court of Appeal upheld the decision.

Procedural history

On 4 October 2010, the Government in exile of the Republic of South Moluccas et al. filed a suit against the State of the Netherlands. Plaintiffs sought to compel the State to arrest Susilo Bambang Yudhoyono, the President of Indonesia who was about to make an official visit to the Netherlands, as soon as he arrived on Dutch soil. Yudhoyonowas accused of having committed human rights abuses against detained Moluccan separatist activists. The same day, the Indonesian President decided to postpone his three-day visit that was scheduled for 6 October 2010.

On 6 October 2010, the preliminary judge of the District Court of The Hague dismissed the suit. On 14 October 2010, a more detailed judgment was released. The Court held that the Indonesian President, as head of state, enjoyed full immunity from criminal jurisdiction during his official visit to the Netherlands, irrespective of the fact that the claimants alleged that he had committed human rights violations.

By writ of 2 November 2010, the plaintiffs appealed the decision of the District Court.

Legally relevant facts

Moluccan nationalists objected to the declaration of an Indonesian unitary state after independence from the Netherlands in 1949 and declared an independent Republic of South Moluccas (RMS) in 1950. In the ensuing armed conflict that followed the invasion of the Moluccan islands by Indonesian forces, many Moluccan soldiers and their families were evacuated to the Netherlands. Around 50,000 Moluccans now reside in the Netherlands where the government in exile is based.

Core legal questions

Can the State of the Netherlands be compelled not to recognise the Republic of Indonesia’s declaration of independence issued on 17 August 1945?

Court's holding and analysis

On appeal, the question of immunity was no longer an issue and was not discussed by the Court of Appeal in its decision of 22 November 2011.

In respect of the question of whether the Republic of Indonesia can be recognised as, de facto, an independent republic as of 17 August 1945, the Court of Appeal held that the claims asserted are closely interlinked with questions regarding the policy of the Netherlands in the field of foreign affairs. Moreover, the claims largely depend on political considerations. Therefore, a civil court was not the appropriate venue for determining the issue (para.2.2). In addition, the Court held that the issue was not relevant to the appeal and therefore did not rule on the independence question (para. 3.2).

Additional materials

M. Simons, 'Indonesian President Postpones Netherlands Trip', New York Times, 5 October 2010.
‘Indonesia leader delays Dutch visit’, Aljazeera, 5 October 2010.
B. BT Saragih, ‘RMS admits defeat, plans to file appeal after SBY rearrange Dutch visit’, The Jakarta Post, 6 October 2010.
'Dutch court dismisses Indonesian president arrest call', BBC News, 6 October 2010.
‘Uitspraak in kort geding Republiek der Zuid-Molukken (RMS) tegen de Staat’, de Rechtspraak, 6 October 2010.
‘Indonesian President Says Dutch Court Is Unethical’, Jakarta Globe, 8 October 2010.
‘Yudhoyono annuleerde om Wilders’, Nederlands Dagblad, 8 October 2010.
‘No arrest warrant against Yudhoyono’, Aljazeera, 11 October 2010.
‘Uitspraak Haagse hof in zaak RMS tegen Nederlandse Staat’, de Rechtspraak, 22 November 2011.

Social media links

‘RMS issue frustrates Dutch-Indonesian relations’, Radio Netherlands Worldwide, 29 November 2010.

G. Coughlan, ‘Netherlands: is South Moluccas a state?’, Radio Netherlands Worldwide, 5 October 2011.

‘Moluccan government-in-exile loses appeal’, Radio Netherlands Worldwide, 23 November 2011.

A. Savitri, ‘Yudhoyono Cancels Netherlands Visit: A Publicity Victory for RMS?’, Diaspora.