Dutch war crimes in Indonesia
Nederlands Juristenblad (Netherlands Law Journal, NJB), February 17, 2023, by: Cornelis J. Wisse
If the [Dutch] government admits that crimes were committed that would be classified as war crimes under current international law, then this was already the case under the international law of that time.
On February 17, 2022, the NIOD Institute for War, Holocaust and Genocide Studies, the Royal Institute for the Linguistics, Geography and Ethnology (KITLV) and the Netherlands Institute for Military History (NIMH) published the results of the research program ‘Independence, Decolonization, Violence and War in Indonesia, 1945-1950.’
The Dutch government, in a short first official response, agreed that Dutch soldiers used systematic and widespread extreme violence during the period 1945-1949.
On December 14, 2022, the Dutch government published a second response. In it, the government stated that the term war crimes did not apply to a non-international conflict if it took place in the latter period, because the Geneva Conventions were not concluded until 1949 and international law had not yet penalized violations of humanitarian law and the law of war as war crimes.
The question is, however, whether this view is legally tenable.
To answer this question, the judgment of the European Court of Human Rights (ECtHR) Kononov/Latvia will be briefly discussed below.
Incidentally, in its second government response, the government explicitly admitted that certain forms of extreme violence used at the time, such as torture and executions, would currently be regarded as war crimes according to the applicable standards of international law.
On May 17, 2010, the ECtHR ruled in a case involving Vasily Kononov (hereinafter: Kononov), who was a former commander of a military unit affiliated with the Soviet Union who, on May 27, 1944, operating far behind enemy lines in Latvia, killed a group of Latvian civilians on suspicion of collaboration with the Nazis.
The most important legal question on the table was whether Kononov, based on this event, could be convicted of war crimes under the law of the time.
In paragraph 207 of the ruling, the ECtHR answered this question affirmatively:
‘The Charter of the IMT Nuremberg provided a nonexhaustive definition of war crimes for which individual criminal responsibility was retained and the judgement of the IMT Nuremberg opined that the humanitarian rules in the Hague Convention and Regulations 1907 were “recognized by all civilized nations and were regarded as being declaratory of the laws and customs of war” by 1939 and that violations of those provisions constituted crimes for which individuals were punishable. There was agreement in contemporary doctrine that international law had already defined war crimes and required individuals to be prosecuted. In consequence, the Charter of the IMT Nuremberg was not ex post facto criminal legislation. The later Nuremberg principles, drawn from the Nuremberg Charter and judgment, reiterated the definition of war crimes set out in the Charter and that anyone committing a crime under international law was responsible and liable to punishment.’
In short, according to the ECtHR’s opinion, prior to the Geneva Conventions of 1949, there was also a situation in which war crimes were already defined as such within international law.
It should be noted that although Latvia was still occupied by Germany on May 27, 1944, it was officially part of the Soviet Union, which recaptured Latvia from Germany shortly afterwards, which means that the term international conflict is not applicable in this case.
The position of the Dutch government that the classification of war crimes would not apply to the conflict in Indonesia during 1945-1949 due to a lack of legal grounds is therefore legally untenable.
If the government admits that cases have taken place that would be classified as war crimes under current international law, namely: torture and extrajudicial killings, the conclusion follows that this was already the case under international law at the time.
The government’s position that the war in Indonesia during 1945-1949 was a non-international conflict – a qualification that Indonesia will not endorse because of its declaration of independence on 17 August 1945 – does not help the government in this respect either. After all, the same goes for the war crimes committed by Kononov in Latvia, which was occupied by Germany at the time, but was officially part of the Soviet Union. The latter did not prevent the ECtHR from confirming that Kononov was guilty of war crimes at the time.