A major study avoided the phrase ‘war crimes’

What Legal Steps Can Indonesia Take with Rutte’s ‘Sincere Apologies’?

War crimes. These two words were deliberately avoided by the researchers who investigated the violence that the Dutch used in Indonesia. After the results were published, the Dutch Prime Minister Rutte expressed ‘sincere apologies’ for systematic and widespread ‘extreme violence’. But what is the value of these apologies from moral and legal perspective?

One World, February 25, 2022, By: Fitria Jelyta

The apologies were offered on the day of the presentation of the study Independence, Decolonization, War and Violence in Indonesia 1945-1950. This study is a revision of the so-called ‘Excessennota’ (List of Excesses), another government study on Dutch violence, published in 1969, of which the conclusion reads that the Dutch armed forces ‘behaved correctly in Indonesia’ except for a few ‘violent derailments’.

According to the new investigation, the Dutch armed forces were guilty of torture, executions without trial, assault, rape, looting, and violent reprisals such as burning down villages, shooting civilians and mass detention. Not only was the violence that Dutch soldiers used against the Indonesian population ‘extreme’, but the army also used violence deliberately while the politicians and the judiciary tolerated it by consistently looking away. Prime Minister Mark Rutte expressed his “sincere apologies” to the Indonesian population for this.

‘Socially desirable answer’

Do these apologies mean more than a gesture of political correctness? Indonesian law expert Hadi Purnama, who is doing PhD research in the field of international law at the VU University Amsterdam, thinks that Rutte’s apologies are primarily socially desirable. “Activists and highly educated members of minorities and migrant groups are increasingly confronting European countries with their colonial past. That is why decolonization and anti-racism have become prioritized in the west.”

If the apologies are mainly socially desirable, the question is whether they have any value. “Logically, reparations to Indonesia should follow,” says Hadi Purnama. But legal action and reparations are complex for several reasons. One of the reasons is the use of the term ‘extreme violence’ in the study. “Why don’t the researchers talk about war crimes?” According to Purnama, the term ‘war crimes’ has a clear legal framework, while “when you talk about ‘extreme violence’ it can mean anything”.

The criticism of the term ‘extreme violence’ is also known to Frank van Vree, the NIOD program director who led the research in recent years. “War crimes are part of the ‘extreme violence’ that we investigated. If we only speak of war crimes, we will exclude other forms of violence. We didn’t want that. The term ‘extreme violence’ suited the broad approach we agreed upon to conduct the investigation.” But to avoid confusion, the researchers could have explicitly stated that this involved ‘extreme violence, including war crimes’, Van Vree now realizes.

He denies that there are political motives behind it. “Some say that ‘extreme violence’ is a euphemism, others think that we have stayed away from the term ‘war crimes’ for political reasons. But why should we do that?” In the summary of the research, however, the academics stated that they deliberately kept distance from legal concepts in past or contemporary international law. According to them, this would lead to “complicated historical-legal debates”.

Taking responsibility

Yet these are precisely the debates that must be held, thinks legal expert Purnama. He sees the deliberate avoidance of terms in international law as a sign that the investigation was not intended to take responsibility for the colonial war in Indonesia. Project leader Van Vree confirms: “It is now up to Dutch politics. We have only done our work as researchers.”

Extreme violence or war crimes?

According to Purnama, in international law, in addition to war crimes, there are also genocide, crimes against humanity and crimes against peace. “These legal terms were used in the run-up to the Nuremberg tribunal in 1946, where Nazi leaders were tried for their war crimes.” Another example is the Tokyo Tribunal which was held in the same year. The leaders of the former Japanese Empire were convicted of war crimes, crimes against peace, and crimes against humanity.

Regret or Apologies?

Official apologies, or apologies, can have far-reaching legal consequences regarding an expression of regret, according to the Belgian legal scholar Wannes Vandenbussche of KU Leuven. For example, the Belgian King Philippe expressed his ‘deep regret’ for Belgium’s colonial past following the 60th anniversary of Congo’s independence. “Deep regrets only indicate a personal feeling of the king.” With official apologies, it would be possible for a country like Congo to sue Belgium before the International Court of Justice and demand compensation. According to Vandenbussche, Belgium would go bankrupt if the country had to repay the real debt.

Van Vree thinks that the apologies could have consequences for Indonesian victims who want to file legal claims, but also for the Indonesian government, which had to pay reparations to the Netherlands after the transfer of sovereignty in 1949 to maintain its independence. In addition, the apologies could lead to rehabilitation for the 4,000 Dutch conscripts who refused to go to Indonesia in 1945-1949. 2,600 of the Indonesia-refusers were given prison terms ranging from 2 months to 5 years. Many of them already passed away by now.

Responsibility would nevertheless be a complex issue, even if legally valid terms would have been been used in the research, Purnama explains. “The Netherlands invaded Indonesia shortly after Sukarno declared independence on August 17, 1945. But the Netherlands does not recognize that date legally.” That is why the Netherlands invaded its ‘own colony’ at that time and not an independent state. According to the Netherlands, Indonesia only became an independent republic after the transfer of sovereignty in 1949. “Suppose the Dutch government recognizes Indonesian independence on August 17, 1945, then the Indonesian government could sue the Netherlands at the International Court of Justice for invading a sovereign state.”

It is no longer possible to take individual Dutch soldiers guilty of war crimes in Indonesia to court. This is due to the so-called Prescription Act of 1971. It states that the statute of limitation regarding war crimes in general is not applicable, except for war crimes committed in Indonesia from 1945 to 1949 by Dutch soldiers. Legal scholars like Hadi Purnama find this law and its interpretation very remarkable. “The Dutch government at that time refused to see the Dutch as perpetrators and deliberately chose to protect itself against criminal prosecution.”

Nevertheless, it is possible to take legal action against the Dutch state and the colonial regime of that time. In 2011, the Committee of Dutch Honorary Debts (K.U.K.B.), chaired by the Indonesian activist Jeffry Pondaag, was able to obtain damages and an apology from the Dutch state for the summary executions of 431 Indonesian men in the Javanese village of Rawagede in 1947. Purnama sees these lawsuits as groundbreaking. “They show that the violence can be considered a crime on which legal claims can be based.”

Van Vree believes that we can see the apology in itself as a positive development in the recognition of the colonial past. “In May 2020, King Willem Alexander apologized for the ‘violent derailments on the part of the Dutch side’. That apology was based on the previous research results from 1969. The latter government position is no longer tenable with the conclusions from this new research. That is why the Prime Minister also spoke in his statement about a colonial war and about systematic, widespread extreme violence.”

Purnama is less optimistic. “With this research, the Netherlands only wants to ‘face’ the past. But that violent past has long been common knowledge in Indonesia. I am curious what the next step will be for the Dutch government.”

For the first time there is a study that included Indonesian perspectives

For this research, the Royal Institute for the Linguistics, Geography and Ethnology (KITLV), the Netherlands Institute for Military History (NIMH) and the Institute for War, Holocaust and Genocide Studies (NIOD) collaborated with Indonesian academics and educational institutions. This is new given the lack of Indonesian perspectives in previous Dutch studies of the colonial past. The Dutch government spent 4.1 million euros on this long-term study that began in 2016.