War, the Law of War and War Crimes 1945-1949
Nederlands Juristenblad (Netherlands Law Journal, NJB), February 17, 2023, by: Theo de Roos, Stan Meuwese & Jurjen Pen
If the Dutch government does not recognize that the law of war was applicable to the decolonization war, how can they defend all Dutch violence that was used in that war, even in case the violence does not qualify as extreme violence? According to the views of the past as well as the views of today, Dutch soldiers committed war crimes in the former Dutch East Indies.
Dutch Prime Minister Rutte wrote on December 14, 2022 that the term war crimes does not apply to Indonesia’s war of independence. As cited from the (largely unnoticed) second government response to the report: ‘Beyond the Pale. Dutch Extreme Violence in the Indonesian War of Independence, 1945-1949.‘ (Parliamentary Papers II 2022/23, 26049, no. 98). And: ‘therefore, from a legal perspective, cases of structural extreme violence do not qualify as war crimes’.
In this government response and the first response of February 17, 2022 (Parliamentary Papers II 2022/23, 26049, no. 92) for the first time the conflict of 1945-1949 is openly called a war and not police actions. A recolonization war, as formulated in the research report, or a decolonization war, as stated in the government response.
The three historians who led the research project, Frank de Vree (NIOD), Gert Oostindie (KITLV) and Ben Schoenmakers (NIMH) accept the historical conclusion ‘The Netherlands used extreme violence in Indonesia’, however, they reject the legal conclusion ‘The Netherlands committed war crimes in Indonesia.’ The three claim that as historians they cannot take a position on what they call a legal question. Yet, even though the prime minister is a historian himself, the government can certainly define the legal qualifications.
Previously, we have argued in this juridical magazine (‘Applicability of the law of war in the Dutch-Indonesian war’, NJB 2021/2351, ep. 31, September 17, 2021), that the then existing law of war was fully applicable to this war through Article 38 of the Military Criminal Code. For a soldier who adheres to the law of war, there is ground for exclusion from punishment for acts that fall under (communal and military) criminal law. Killing an adversary is not punishable if it is done within the constraints of the law of war, that is to say: based on military necessity and within the framework of a military action. This concerns the law of war applicable at the time in written and unwritten form. Therefore, all the provisions of the Hague and Geneva Conventions of 1907 and 1929 are applicable, as does the De Martens Clause, the legal safety net for the protection of all ‘populations and belligerents’.
International law, arising from ‘the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience’, is deemed to apply to them: not everything that is not explicitly prohibited is therefore allowed.
Article 6 sub b of the Charter of the International Military Tribunal states that a war crime is understood as ‘violations of the laws and customs of war’. The Netherlands acceded to the London Agreement of 8 August 1945, of which the Charter is part, on 25 September 1945 (Dutch Bullein of Acts and Decrees, Stb. 1946, G5). With that, the Dutch government also accepted the description of war crimes.
The list of 32 war crimes – as it was distilled from the Hague treaties in 1919 for the peace negotiations in Versailles – was copied almost verbatim by Lieutenant Governor General H. van Mook in his War Crimes Ordinance of 1 July 1946 (Dutch Indian Bulletin of Acts and Decrees 1946, 44). This does not negate the fact that this list was drawn up for the purpose of prosecuting and sentencing Japanese soldiers, if only because of the golden rule of reciprocity: ‘Do unto others as you would have done unto you‘. The 1919 list has been embraced by the United Nations War Crimes Commission as the ‘formal list of breaches of the law and customs of war’ (UN Document E/CN.4/W.19). What war crimes – factually and legally – entailed was abundantly clear to all civil, military and judicial authorities in The Hague and Batavia.
An often-heard counter-argument against this statement is that the term ‘war crime’ was introduced into Dutch law only with the War Criminal Law Act (Act of 10 July 1952, Dutch Bulletin of Acts and Decrees 1952, 408), which prohibits violations of the four Geneva Conventions of 1949 when other treaties of war were made punishable. Although correct, it does not alter the fact that the use of extreme violence (summary executions, torture) results in unjustifiable crimes committed under war conditions.
The concept of war crime was – the government is right – not a term backed by law (included in the formal legislation) at the time, but it was indeed a legal term (applicable in the juridical domain) . Moreover, the government should recognize that the term ‘law of war’ was a legal term at the time: see Article 38 Military Criminal Code), the only place in Dutch legislation where the term law of war is mentioned. What are war crimes other than violations of the laws of war? If the government does not recognize that the law of war was applicable in the decolonization war, how can they defend all Dutch violence that was used in that war, even in case the violence does not qualify as extreme? According to the views of the past as well as the views of today, Dutch soldiers committed war crimes.
Theo de Roos (emeritus professor of criminal law, Jurjen Pen (lawyer) en Stan Meuwese (legal historian)