Ten years of MH17: the struggle for recognition and justice

During the Indonesian War of Independence, countless Indonesian men were executed without trial by Dutch soldiers. The Dutch state has since acknowledged that systematic and extreme violence and publicly apologized for it. Yet the surviving relatives of these men - now in their elderly years - are told that they are not eligible for compensation. Linde Mayer assists thirteen of them. What happened In the Indonesian War of Independence (1945 - 1949), the Dutch army conducted operations in which Indonesian men were summary executions. No charges, no defense, no verdict. The victims were killed on the spot. In many cases, their deaths were not documented. Decades later, the Dutch State established the regulation ‘Contours of civil law settlement to compensate children of victims of summary executions in the former Dutch East Indies. This regulation allows children of executed men to apply for compensation. Our clients made use of that possibility. Their requests were denied. The impact The men who were executed left behind children. Those children grew up without a father, without an explanation and without any recognition of what was done to their families. Many have carried the consequences with them throughout their lives. Therefore, the rejection of their requests affects them not only financially, but especially in what is really important to them: recognition. Recognition that they have been wronged, and that this injustice has had lasting consequences. The State says it recognizes that injustice. Its application shows otherwise. An unfeasible burden of proof The heart of the problem lies in the standard of proof used by the scheme. To qualify for compensation, relatives must prove that their father's execution was mentioned in published, public sources. That is precisely where it goes wrong: summary executions were often not documented or not recognizably documented at the time. Consequently, in many cases, they cannot be found in the sources called for by the settlement. The State acknowledges that these executions took place, but at the same time demands evidence that is usually not there. This puts relatives in an impossible position of proof. What Beer advocaten does We have asked the State to enter into consultations in the short term. Those consultations have two goals. The first is to review the standard of proof. In its current form, it excludes precisely the group for which the rule is intended. Second, we want to discuss with the State what evidence is available and how it can be carefully considered. We await a response from the State. If consultation does not lead to a solution, our clients will consider further steps. The urgency is great. All survivors are at an advanced age. If the assessment of their requests takes too long, the settlement risks overshooting its goal. How Linde Mayer looks at this case ’What touches me in this case is the fundamental contradiction in the State's position. On the one hand, the Netherlands acknowledges that there has been systematic and extreme violence

Around the year 2000, pharmaceutical company Merck launched the drug Vioxx. A painkiller that quickly became popular and just as quickly proved dangerous. The company knew even before Vioxx was produced for patients that using this drug significantly increased the risk of heart and brain attacks. But it didn't warn about that. Not in the package insert and not to the authorities who had to approve Vioxx. In 2004, Merck took Vioxx off the market worldwide. It was one of the largest recalls in pharmaceutical history. By then, our clients had already suffered a stroke. Victims in the Netherlands, settlements in America We acted for a large group of Dutch victims. People who had taken Vioxx and then suffered an infarction. Some suffered permanent damage to their health. In America, Merck reached settlements with victims. In the Netherlands, the company did not want to come to the table. Merck made it public that it would not settle because of Vioxx. Outside America, they did so in few countries. We continued. Thousands of files, one decisive piece of evidence There were two crucial things to prove. First: that the infarction had been caused by Vioxx, and not some other cause. Second: that Merck knew about the increased risk before the market launch. Through the courts, we demanded Merck's internal research documents. In a room, we searched through thousands of binders for what was not in the package insert. Finally, we found the reports from the research phase, prepared before Vioxx came on the market. These showed that Merck knew the drug worryingly increased the risk of infarction. The company had not shared that information with regulators. The road to the negotiating table To establish Merck's liability judicially as the basis for a settlement, we selected several clients in the group as litigators. Their cases were a model for the rest. The decisive step toward Merck was taken by a lawyer from our international network. Without that opening, the negotiations would not have got off the ground. This shows the importance of international contacts in cases with a foreign counterparty. Retrospective “The fact that perseverance wins certainly applies to this case,” says Christa Wijnakker. “Merck had made it public that they would not settle because of Vioxx, and have done so in few countries outside America. It hit me that Vioxx was taken off the market in 2004 because of the risk of infarction, and the failure to warn about it. And that Merck did not want to take responsibility towards Dutch victims for a long time after that.” Do you have questions about this case? Please contact Christa Wijnakker.

Between February 19 and 28, 1999, thousands of people visited the Westfriese Flora in Bovenkarspel, then the largest flower exhibition in the world. What was supposed to be a day out turned into a disaster. Some 318 visitors became infected with the legionella bacteria. At least 32 of them did not survive. What happened Part of the Flora was a consumer trade show, which included hot tubs on display. Legionella bacteria had developed in one or more of those baths. The exhibitor had not added chlorine to the water. The reasoning: no one would sit in the bath anyway. That reasoning turned out fatally. Legionella bacteria spread through water droplets in the air. Walking along the bath was enough to become infected. Legionella-induced Legionnaires' disease was diagnosed in about 318 visitors. The disease caused permanent lung problems. At least 32 people died from the effects. Many of those affected were from the West Friesland region. The community as a whole felt affected. Enforcing recognition At the request of the Consumers' Association, Beer advocaten took up the case for all victims and surviving relatives. The exhibitors who owned the contaminated hot tub were held liable. The Westfriese Flora itself and the Dutch State were also sued, arguing that not enough had been done to identify the danger of legionella and take measures. The Alkmaar District Court rejected the claims against the Flora and the State in 2002. It found that only the exhibitors had acted unlawfully. All parties appealed. Three problems of proof The case had a number of intractable obstacles. The first was medical: was it possible to become infected simply by walking past the hot tub? That had to be substantiated. The second was factual: How do you prove that visitors had actually been at the Flora? Many victims had bought their tickets in cash and had not kept them. Smartphones did not exist in 1999; there were hardly any photographs. The third problem was financial and unexpected. A defunct foundation The insurer of the liable exhibitor had paid out the full sum insured. Just not to the victims. The money, nearly 600,000 euros, had been placed in the Talpa Foundation, based in the eastern part of the country. The foundation had been set up by the stand holder and his insurer, ostensibly for the benefit of the victims. Its existence had been kept secret for years. When the Consumers' Association discovered the existence of Stichting Talpa, it initiated summary proceedings. The Zutphen District Court ordered the foundation to enter into consultation with the Consumers' Association within three months and determine a compensation scheme. An independent administrator was appointed. That administrator determined that the money in the foundation could no longer be found. Insurer pays again After talks with the insurer, Nationale-Nederlanden decided on a second payment, this time directly for the benefit of the victims, plus interest. An independent board reviewed the individual claims. Victims who could prove that they had been infected on the Flora and had suffered damages that had not already been compensated in other ways were eligible for payment. In the case of personal injury claims,