Dutch soldiers committed war crimes in Indonesia, even by the legal standards of the time. During the war of decolonization, the Netherlands did indeed have the legal authority to prosecute them for these crimes. The fact that this was rarely, if ever, done was a deliberate administrative decision. This is the conclusion reached by legal scholar Maurice Swirc in his dissertation on the Netherlands’ handling of these war crimes, from the war of decolonization to the present day.
Since World War II, the Netherlands has presented itself as a country that holds the rule of law and the international legal order in high regard. At the same time, Dutch soldiers committed war crimes systematically and on a large scale during the colonial war in Indonesia (1945–1949). Swirc investigated why those crimes were not prosecuted, or were prosecuted only to a very limited extent. In doing so, he also addressed the question of whether humanitarian law of war applied at the time.
The laws of war were legally binding
Swirc demonstrates that humanitarian law of war was indeed applicable during the war. Article 38 of the Code of Military Criminal Law made the law of war “in time of war” a binding standard for the conduct of military personnel, even in the context of an internal conflict. Gross violations were therefore considered war crimes, which could be prosecuted under Dutch criminal law.
According to Swirc, this was already well known at the time. Prominent legal scholars, including Professors Van Bemmelen, Kisch, and Röling, as well as international law expert Mouton, assumed in their publications and lectures that there was a legal framework within which Dutch military personnel could commit war crimes.
Not prosecuting was a deliberate choice
The fact that the prosecution of Dutch soldiers was virtually nonexistent was therefore not due to a lack of legal options, according to Swirc. Successive Dutch governments made a conscious choice to conduct little or no criminal investigations or prosecutions, thereby making impunity the norm.
According to Swirc, one factor in this was the fear among government officials that prosecution would raise questions about the responsibility of the military leadership and, ultimately, of themselves. In that light, he also examined the role of prime ministers such as Drees, Beel, and De Jong.
Swirc also sees the 1971 Statute of Limitations as a deliberate political choice. This law stipulates that war crimes and crimes against humanity are not subject to a statute of limitations, but it is worded in such a way that the war crimes committed by Dutch soldiers in Indonesia are indeed subject to a statute of limitations. Official documents show that the government deliberately steered the law in that direction.
Recognition of Victims
In 2022, Prime Minister Rutte offered “deep apologies” for the “extreme violence” committed by the Dutch side. He avoided using the term “war crimes” in that statement. In December 2022, the cabinet explicitly stated that international humanitarian law would not have applied at the time. According to Swirc, that position is incompatible with the legal reality of that period.
According to Swirc, the use of the term “war crimes” ensures that the Indonesian victims are recognized under international law. Without that term, the government’s apologies are meaningless from a legal perspective.
According to Swirc, the lack of prosecution also stemmed from the Netherlands’ self-image as a just, ethically acting nation. That self-image is partly rooted in so-called “ethical politics,” the colonial ideology that the Netherlands was carrying out a civilizing mission in Indonesia. That ideology legitimized the occupation and made it unthinkable that Dutch soldiers could commit war crimes against the population that, according to this ideology, the Netherlands was supposed to “uplift.” Indonesian victims remained virtually invisible.
According to Swirc, this history remains relevant today, especially now that the international legal order is under serious pressure. “If the Netherlands does not take its own colonial history seriously, how can it reflect on the functioning of its own rule of law and credibly contribute to the international legal order?” said Swirc.