Hague district court rules on deaths of 1977 train hijackers

This week, the District Court of The Hague, the Netherlands, issued its judgment on the claim for damages of relatives of two South Moluccan youngsters, Max Papilaja and Hansina Ukolseja, who had been killed in 1977 by Dutch Marines in an operation to end the train hijacking at De Punt. The relatives, represented by attorney Liesbeth Zegveld, claimed that both hijackers had been killed as a result of a secret order ‘not to take prisoners’ and while hors de combat. The judgment (in Dutch) in A & B v. State of The Netherlands can be found here.

On May 27, 1977, a group of nine young armed South Moluccans hijacked a train close to De Punt, a tiny village in the North East of the Netherlands. Eventually, 54 of the 94 passengers were taken as hostages. At the same time, another group occupied a primary school in the nearby town of Bovensmilde; 5 teachers and 108 pupils were taken hostage. The motives of the hijackers were rooted in Dutch colonial history in Indonesia, formerly the “Dutch East Indies”. A brief synopsis: In the ‘40s of the previous century, Moluccan NCO’s and soldiers formed the backbone of the “Royal Netherlands East Indies Army”, or ‘KNIL’ in the Dutch abbreviation. In 1945, after the Japanese capitulation, the KNIL was instrumental in trying to regain control over the colonial possessions and therefore combating those who fought for independence. When the Republic of Indonesia eventually declared independence on December 28, 1949, Moluccan activists subsequently declared the independence of the Republik Maluku Selatan (RMS -- Republic of the South Moluccan Islands) on April 25, 1950. The Dutch Government did not wish to alienate itself from the new Republic of Indonesia and did not recognize the RMS. Since it was legally not allowed to demobilize the remaining KNIL-NCO’s and soldiers while on Indonesian soil, the Dutch Government saw no other option than shipping the approximately 3.600 remaining military personnel and 8.000 relatives to the Netherlands, in the first half of the year 1950. Military personnel was demobilized on arrival and the whole population was initially housed in old barracks, cloisters and former WWII internment camps. Integration into Dutch society was a slow process. When the Dutch Government subsequently refused to lend political or other support to the ideal of creating the Republik Maluku Selatan, Moluccan anger towards Indonesia slowly but surely transformed into anger towards the Netherlands Government.

In 1977, the ‘second generation’ Moluccan hijackers demanded an active stance of the Dutch Government towards the RMS and threatened to detonate explosives in the train if their demands were not met; at a later stage they demanded an airplane to leave the country, together with fellow South Moluccans who had been imprisoned for comparable earlier actions.

On June 11, the Dutch Government decided to end the hijacking. In accordance with Dutch law at the time – in essence, the same framework still applies today -- military units had been ordered to support the civil authorities. After extensive reconnaissance the operation started in the early hours with Starfighter airplanes simulating a bomb raid and sharpshooters trying to deter the hijackers from aiming at the Marine detachment, approaching the train. The Marines entered the train and liberated the hostages. Three hijackers were captured, six were killed. Two passengers accidentally lost their lives in the operation, the remainder was unharmed. The school was also liberated by the military, without loss of life.

Returning to this week’s judgment, the court dismissed the claim of the ‘secret instruction’ not to take prisoners, by concluding that this claim had not been sufficiently substantiated. Several de auditu statements that such an instruction had indeed existed were convincingly denied by the Marines involved. As to the deaths of the two hijackers, the court concluded – after a very detailed analysis of the precise circumstances – that the two had indeed been hors de combat as a result of the initial barrage by the sharpshooters, at the moment the Marines entered the train and had fired at the location of the two.

Ms. Ukolseja was subsequently killed by one of the Marines in the train. In the case of Mr. Papilaja it could not be assessed with sufficient certainty whether the bullet fired by a Marine in the train had indeed been the fatal one, or that he had been dead already. The court nevertheless investigated in both cases whether the Marines who fired the rounds could have had a realistic conviction that the hijackers did form a real threat, which necessitated the use of deadly force. In this respect, the The court applied the "honest belief" test, as "refined" by the European Court for Human Rights in Armani da Silva v. United Kingdom (Mar. 30, 2016).

In Armani da Silva the ECHR ruled:

“The use of force by agents of the State in pursuit of one of the aims delineated in paragraph 2 of Article 2 of the Convention may be justified under this provision where it is based on an honest belief which is perceived for good reasons to be valid at the time but which subsequently turns out to be mistaken. To hold otherwise would be to impose an unrealistic burden on the State and its law enforcement personnel in the execution of their duty, perhaps to the detriment of their lives and those of others. … [T]he existence of “good reasons” should be determined subjectively. In a number of cases the Court has expressly stated that as it is detached from the events at issue, it cannot substitute its own assessment of the situation for that of an officer who was required to react in the heat of the moment to avert an honestly perceived danger to his life or the lives of others; rather it must consider the events from the viewpoint of the person(s) acting in self-defence at the time of those events... Consequently, in those Article 2 cases in which the Court specifically addressed the question of whether a belief was perceived, for good reasons, to be valid at the time, it did not adopt the standpoint of a detached observer; instead, it attempted to put itself in the position of the person who used lethal force, both in determining whether that person had the requisite belief and in assessing the necessity of the degree of force. … Moreover, in applying this test the Court has not treated reasonableness as a separate requirement but rather as a relevant factor in determining whether a belief was honestly and genuinely held. … [T]he principal question to be addressed is whether the person had an honest and genuine belief that the use of force was necessary. In addressing this question, the Court will have to consider whether the belief was subjectively reasonable, having full regard to the circumstances that pertained at the relevant time.” (¶¶ 244–48.)

Using these ECHR-parameters, taking into account that the hijackers were known to be armed and given the situation of lack of overview and limited sight, the the Hague Court concluded that in both instances, the Marines who fired at the hijackers could indeed have had the ‘honest belief’, ‘in the heat of the moment’, that the use of deadly force was necessary at the time, although – at least in the case of Ms. Ukolseja -- this belief turned out to be mistaken. All of the plaintiffs' claims were rejected.

Ms. Zegveld has already announced that the relatives of both deceased hijackers will appeal the judgment, therefore: to be continued.