Prakken d'Oliveira has taken measures in light of the global outbreak of the Corona-virus. Our firm is following the directions and recommendations from the National Institute for Public Health and the Environment (in Dutch: the RIVM) and the Dutch government. Our office remains available (also via telephone) for clients and relations. We are also still open for post and mail.  If you need to contact one of our employees and do not have a direct telephone number, please call our general office number (020-3446200).

As off March 17th, all courts and tribunals have been closed for non-urgent cases. This means that many court cases have been suspended for the time being. If you have any questions about what this means for your case, we recommend that you contact the lawyer handling your case. You can find a general overview and explanation of the case law on the consequences of this measure here (in Dutch).

We emphasize that during this difficult time we will maintain our services as much as possible and at the level you can expect from us. We remain committed to our clients and cases. New clients remain free to contact our firm and, where possible, we will continue to take in  cases.

Today, King Willem Alexander apologized on behalf of the State of the Netherlands for the derailed violence committed by the Netherlands against the local population during the independence war in the former Dutch East-Indies. In doing so, he has made apologies that are broader than those made by the Dutch ambassador in Indonesia with regard to the policy of summary executions during that conflict. The King’s apologies came as a welcome surprise to victims and surviving relatives of the violence back then.

Lawyers Liesbeth Zegveld and Brechtje Vossenberg have been representing victims of this violence for years now. An apology by the King, and as such the acknowledgement of their suffering at the highest level, is many of these clients’ long-standing wish. Over the years, several victims and surviving relatives wrote letters to the King (and before him, Queen Beatrix) in which they asked for an apology. Today, the King heeded that call.

The apology by the King is in line with previously rendered court judgments about the violence perpetrated by the Netherlands in the former Dutch East-Indies. At the moment, various cases are still pending before the district court of The Hague about that violence, that were filed by victims and surviving relatives of men who were summarily executed by the Dutch army between 1945 and 1949. The lawyers recently asked the State to come to an out-of-court settlement scheme for (in any case) the children of summarily executed men so that they could be spared going to court in future. In 2013, the State already introduced such a scheme for the widows of summarily executed men. However, to date, the State has refused to make similar arrangements for the children. The lawyers’ request followed two judgments rendered by the Appeals Court of The Hague on 1 October 2019. In those judments, the Appeals Court confirmed verdicts by lower courts in which it had been determined that the statute of limitations could be set aside in cases such as these. More in particular, the Appeals Court rejected the State’s argument that the claims of an Indonesian victim of torture on Java in 1947 (Yaseman) and several Indonesian children of men who were summarily executed on South-Sulawesi in 1947 (Monji c.s.) were out of time.

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[Photo: I. Talle and Andi Monji, children of men who were summarily executed, with their lawyers at the Appeals Court of The Hague (June2019) | Source: Marjolein van Pagee]

See also (in Dutch):

Previously

The International Criminal Court (‘ICC’) is currently investigating whether or not is has jurisdiction over cases concerning human rights violations and war crimes in the occupied Palestinian territories: East-Jeruzalem, the West Bank and the Gaza strip. In relation to this, the court previously announced that it would consider legal arguments on this topic submitted by both Israeli and Palestinian victims of the alleged war crimes.

On 12 March 2020, lawyer Liesbeth Zegveld submitted observations on behalf of inhabitants of the Palestinian village Khan al-Ahmar on the West Bank. She argues that and why the ICC indeed has the required jurisdiction. The village Khan al-Ahmar is located strategically along Route 1 on the West Bank and its existence is currently under threat. Israel has long since wanted to colonize the area and with a view to doing so, deport the villagers and destroy the village. Though the highest court in Israel previously ruled that there are no legal obstacles against evacuation, ICC-prosecutor Fatou Bensouda warned that this could be considered a war crime.

Many see Khan al-Ahmar as the front line of the Israel-Palestine-conflict. For the villagers, a decision by the ICC that it has no jurisdiction would mean that they have no effective legal avenue by which bring the violation of their rights before a court of law.

Annex

On 5 March 2020 Mr. Razzo sent the State of the Netherlands a declaration of liability for the damages he suffered as a result of an unlawful bombardment the Netherlands carried out on him, his family and his home.

In the night of 21 September 2015, Dutch F-16’s bombed Mr. Razzo’s house and the adjacent home of his brother. The State has since acknowledged that it was responsible for the bombardment and that Mr. Razzo’s house had been targeted on the basis of incorrect intel.

As a result of the bombing, Mr. Razzo’s wife and daughter were killed on impact, as well as his brother and cousin. Mr. Razzo himself suffered fractures of his hip, pelvic bone and left foot. His family home and car were also completely destroyed. In addition, Mr. Razzo is unable to return to his former place of residence in Mosul as  the Coalition broadcasted video imagery of the bombardment on Youtube in which the clearly identifiable home of Mr. Razzo was wrongly labeled an 'ISIS-building'. Because of this, and in spite of the fact that the Coalition has acknowledged that in fact no ties existed between Razzo and the ISIS, associations are made between him and ISIS to this day.

Partially released documents reveal which intel formed the basis for the decision to mark Mr. Razzo’s house as a target. For example, drone surveillance is said to have taken place for 1 hour and 35 minutes. By military standards, that is extremely short. The documents also state that the images mainly show what is not there: no weapons, no ISIS-combatants, no ISIS-flags. Also, further intel-sources label an adjacent complex as an ISIS-headquarters, not Mr. Razzo’s house.

Mr. Razzo holds the State of the Netherlands liable for the material and immaterial damages he suffered as a result of the bombardment and has requested the State to respond to his declaration of liability within three weeks. Lawyer Liebeth Zegveld is representing Mr. Razzo in this process.

See also (in Dutch):

We proudly noted the recent listing of Prakken d'Oliveira Human Rights Lawyers in the Chambers Global Ranking 2020. Prakken d'Oliveira was awarded a band 2 ranking in the category Business & Human Rights Law: Claimant-Side. We are especially proud for the compliments we received from our clients for the "enourmous commitment" and "outstanding work" of our lawyers, and the special listing of Channa Samkalden in the Spotlight Table. The full review can be found here.

On 27 January the Ministry of Justice and Security published several documents following a request on the basis of the Freedom of Information Act (FOI). The request was submitted by our lawyer Barbara van Straaten on behalf of the four NGOs which she represents in the criminal case against Shell. These NGOs filed a criminal complaint against Shell and some of its former directors in relation to Shell’s acquisition of the Nigerian oil block known as OPL 245. Shell acquired the rights to the block in 2011, together with the Italian oil multinational Eni S.p.A. The complaint is filed on behalf of Prakken d’Oliveira’s clients, the non-governmental organisations Corner House (UK), Global Witness (UK), HEDA Resource Centre (Nigeria) and Re:Common (Italy).

The criminal investigation in this case, with the name Etosha, has been going on for years. In the spring of 2019, Shell announced itself that the Office of the Public Prosecutor had announced that it found sufficient grounds for a criminal prosecution. There have been no updates about the progress in this case since then. Italy also opened a criminal investigation into this matter against both Eni and Shell. This case has now been brought before the court in Milan and has resulted in the first convictions. 

In the fall of 2018, the clients heard rumours that the Dutch Office of the Public Prosecutor would be ready to settle this case. The clients then sent a letter to Minister Grapperhaus (Justice) making an urgent appeal to bring this case before the court. A similar call was made by a number of Dutch non-governmental organisations. In the Netherlands, the Minister of Justice has the final say in approving or dismissing a proposal for a settlement (high transaction) in a criminal case. In his response to the letter, the Minister stated that this case was still under investigation by the Office of the Public Prosecutor and that it was not yet clear whether the case would end with a settlement.  The Minister found that it would "not [be] appropriate in view of the (...) separation of powers, that I have any involvement or give any observations on the case at this stage".

However, the documents that have now been disclosed show another picture. It seems that there were numerous contacts between some of the highest officials at the Office of the Public Prosecutor and the Minister in relation to this case during the summer of 2018. Agendas and invitations for meetings show that this case is (among others) mentioned under the heading 'high transactions'. This seems to imply that the possibility of a settlement was discussed after all during that time. The disclosed documents from the FOI-request can by found here. The disclosure also lead to questions in Parliament, which can be found here (including answers). 

Our clients will continue their investigation into this matter. They continue their support for the complaint that was already filed and maintain their efforts to bring this case before a Dutch court. 

NRC and Follow the Money (in Dutch) and GIR (in English) have published articles on the FOI-request. 

For previous communications about this case click here.

As previously noted, the Appeals Court in The Hague rendered two judgments on 1 October 2019 in which the defense of prescription that the Dutch State had invoked with regard to claims concerning the violence that its army committed against the local population during the independence war in the former Dutch East Indies, was rejected. The first is an interim judgment in the case filed by five Indonesian children of men who were summarily executed by the Dutch army op South-Sulawesi in 1947 (Monji et al). The second is a judgment on appeal concerning an Indonesian man who was tortured whilst in captivity by the Dutch army on Java in 1947 (Yaseman). At present, the litigation in the case Monji et al is still ongoing before the district court of The Hague; a final substantive judgement is expected relatively soon. The judgment on appeal in Yaseman became final earlier this month, with the expiration of the deadline for cassation appeal.

With the irrevocability of the judgment in Yaseman, it is now confirmed that invoking the statute of limitations vis-à-vis claims by these kinds of victims is unacceptable according to the standard of reasonableness and fairness (and/or is in bad faith). The judgment therefore is of great importance to comparable cases concerning claims filed by other victims and surviving relatives of the violence inflicted by the Netherlands during the war of independence. They hope that this paves the way for further recognition of their suffering and the settling of this chapter in our common history.

Yaseman, Monji et al and the other victims and surviving relatives are represented by lawyers Liesbeth Zegveld and Brechtje Vossenberg. They recently asked the State to come to an out-of-court settlement scheme for (in any case) the children of summarily executed men so that they could be spared going to court in future. In 2013, the State already introduced such a scheme for the widows of summarily executed men. However, to date, the State refuses to make similar arrangements for the children.  

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[Photograph: I. Talle and Andi Monji infront of the Palace of Justice in The Hague | Source: Marjolein van Pagee]

On Friday 1 November 2019 at 14.00 o’clock the summary proceedings initiated by 55 Dutch children and their 23 mothers against the State of the Netherlands will be heard by the preliminary relief judge at the District Court of the Hague. The plaintiffs sent the State a notice of liability on 15 August 2019 and asked for repatriation within four weeks. When the State failed to do so, they issued a Writ of Summons on 17 October 2019. The women and children have requested the judge in interlocutory proceedings to order their repatriation as soon as possible.

The women and children are currently staying in two camps in Northern-Syria. There is great turmoil in the region. Both the mothers and children have been living in these camps for considerable time (some for over two years) in life-threatening and deplorable conditions. Prior to the announced withdrawal of the United States from the region and the invasion by Turkey, the total number of deaths of children in the camps had already exceeded 300. Moreover, the situation in the camps is particularly harmful to the physical and psychological condition and development of the children. The children are living in captivity, are witness to disturbances and violence in the camps against which they are insufficiently protected, they do not receive any psychological treatment, cannot go to school and have there are insufficient sanitary facilities and food available to them.   

The Dutch government policy is that these women and children will not be brought back. However, the women and children assert that the State has a legal responsibility to escort them back. They base this on two grounds: the standard of due care (that must be observed in society) and the applicable international treaties, including the Convention on the Rights of the Child (CRC). They also point out that nearly all the players involved are insisting on return (i.a. the United States, the Kurds, Iraq, the United Nations, the Dutch criminal courts, the Public Prosecutor’s Office, the Child Ombudsman, NGO’s, academics and increasingly also political parties). Additionally, various experts assert that prosecution in the region is not a realistic option. In any case, many of the children are not eligible for prosecution/trial in light of their young age. The experts also assert that the dangers to society that could be posed by the mothers and their children would be greater if they are not repatriated.

In addition, the women and children put forward the following arguments that obligate the State to repatriate them (or have hem repatriated):

  1. Children are not responsible for the choices made by their parents.
  2. According to the CRC, the interests of Dutch children must always be the point of departure in all decisions that concern them.
  3. The lack of official diplomatic relations between Syria and the Kurds is no excuse for failure to take action. The State is also capable of taking action, if necessary in cooperation with other countries such as the United States or France and more recently Turkey and Russia. In particular the United States has, very recently, offered to repatriate the Dutch mothers and children, or offer their assistance in doing so and earlier this year France provided concrete assistance with the repatriation of two Dutch orphans.
  4. The Netherlands is violating the existing duty of care it has vis-à-vis the women and children. This duty of care of the women and children can be derived from various human rights treaties to which the Netherlands are party, as well as from court rulings concerning the right to diplomatic protection on and consular assistance for Dutch nationals abroad. To the extent reasonably possible, the State is required to intervene if its nationals are exposed to (mortal) danger and the violation of their rights. This standard is not been met in the current case.
  5. With regard to the safety of the children and their mothers during their transport to the Netherlands and/or the nearest Dutch consular post in Erbil (Iraq), it should be noted that the Kurds, Americans, French and Belgians, as well as 14 other countries in total have managed to transport their citizens to their respective countries safely, either directly or via Erbil.
  6. Upon their arrival, the women will be arrested immediately and detained in previously reserved cells in the terrorist wing of the penitentiary in Vught (the Netherlands). Criminal case files have already been compiled. They will be prosecuted for (in any case) participation in a terrorist organisation. Experience shows that successful prosecution for this offense is possible. Aside from an unconditional prison sentence, part of the judgment always includes a gradual return to society, subject to strict and particular conditions and government supervision. Moreover, there are various possibilities for victims to participate in the criminal proceedings. Both the Child Care and Protection Bard and the Youth Care Agency are ready to receive the children. Foster families have been arranged for the young children, either with family or elsewhere. Locations have been appointed for the older children that are specialized in de-radicalization.

The women and children are represented by lawyers from five different firms: André Seebregts from Seebregts and Saey Advocaten, Tom de Boer and Tamara Buruma from Prakken d’Oliveira Human Rights Lawyers, Elpiniki Kolokatsi from Kolokatsi Advocaten, Bart Nooitgedagt from De Roos and Pen Advocaten and Jeffrey Jordan from Jordan Law

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Prakken d'Oliveira, formerly known as Böhler, is a law firm with expertise and experience in asylum and immigration law, European law, administrative law, international criminal law and human rights. Our lawyers provide advice and conduct procedures before the Dutch Immigration and Naturalization Service (IND), the Dutch Review Committee on the Intelligence and Security Services (CTIVD), the District- and Appeals courts, the Administrative Law Division of the Dutch Council of State, the Supreme Court of the Netherlands, the European Court of Human Rights (ECHR), the Court of Justice of the European Union (ECJ), the Human Rights Treaty Bodies of the United Nations (UN), the International Criminal Court (ICC), and other international tribunals.