Comment | Forgiveness does not automatically lead to responsibility

Now the Dutch government Apologized As for the past of Dutch slavery, the question arises as to what legal consequences are associated with this. The fear that an apology would be an admission of responsibility is lingering but unjustified. Only in very rare circumstances is an apology considered an admission of civil liability. That decision rests with the judge. To this end, he must test the legal requirements for liability. An apology is not conclusive. Exceptions are possible if an apology is seen as an admission of responsibility, even if it was not their intention.

Jurisdiction Research However, it shows that judges are not quick to judge that an apology is an admission of responsibility. This was the case in only two of the nearly four thousand cases investigated. Judges see forgiveness as a moral judgment of one’s own behavior rather than an acceptance of responsibility.

This is not to say that an apology cannot have legal implications. For example, apologies can be used to acknowledge facts. The same was in Prime Minister Mark Rutte’s (VVD) speech. He elaborated on the historical facts, clearly referring to extensive historical research prior to this moment. For a legal practice, this means that these facts are established.

Obligation to compensate damages

Hence the obligation to pay damages by way of apology does not arise. So the announced compensation fund should not be viewed as such. It is a voluntary compensation scheme not imposed by a civil court. This means that the government has more freedom in implementing the compensation fund. There is currently no support in the Cabinet and House of Representatives for reparations to individuals or states (Suriname) or countries (Curaçao, Aruba, Sint Maarten).

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However, many interesting legal questions remain open. Advisory Committee Dialogue Committee Proposed History of Slavery Acknowledgment of the past of Dutch slavery should be recognized by law. Prime Minister Rutte did not address this recommendation in his speech. Also from Letter to Parliament It is not clear. In addition, the Dialogue Group advises a complete exclusion of liability in the same Act. In view of the above such denial seems to me unnecessary. It also strikes me as undesirable because apologies needlessly lose value in this way.

There are many complex legal hurdles to overcome for claims

Does the above mean that it is impossible for descendants of enslaved people to claim compensation in a civil court? I don’t think so. Admittedly, there are a lot of complicated legal hurdles. The fact that the injustice occurred in the distant past poses difficult evidentiary problems. If it can already be established that someone is indeed a descendant of an enslaved person, it is still necessary to determine what damage has been done. In addition, it must be demonstrated that the damage is sufficiently related to the injustice. It is legally difficult to determine this over time. Cases in other countries like USA and France have failed because of this.

Statute of Limitations

The first legal hurdle is the statute of limitations. This means that after 20 years, in principle, no further legal action can be taken. Over time, slavery claims have long since expired. However, previous case law shows that the statute of limitations can be broken in cases of historical injustice in special circumstances. Such was the case, for example, in the case of summary executions in the Indonesian village of Rawakete (now: Palongsari). In a case brought by relatives and survivors against the Dutch government, the civil court ruled that the law to protect state limitations was untenable according to fair and reasonable standards.

It involves an exceptional injustice and the important consideration is that the victims have not received justice for a long time. The future will show whether this exception applies to slave claims as well.