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Monday 19th December. After weeks of criticism, discussion and consultation, tomorrow seems to be happening: an apology from the Dutch government for its past in slavery.
For years, cabinets have felt out of favor. Prime Minister Rutte called the offer of an apology in 2020 “a risk that society will polarize further”. A topic loaded. Partly because apologizing can have other consequences as well. Think about liability and possible remediation.
Now that the apology seems to be coming, the question is, what about those legal ramifications? Five questions and answers about it.
1. What excuses have we seen before?
Governments are more likely to apologize. ‘Indeed, one can really speak of a trend in this century,’ says Professor Juliëtte Schaafsma, who has been researching for Tilburg University.
The Dutch government has apologized several times in recent decades, including for its actions during World War II and the violence in Indonesia. Apologies were also offered for recent mistakes, such as the benefits affair. Groningen received sorry three times for the consequences of gas extraction.
Even the past of slavery has not remained undisputed. In recent years, the big four cities have apologized, just like De Nederlandsche Bank.
Amsterdam apologized on July 1, during the commemoration of slavery:
Halsema apologizes for Amsterdam’s past slavery
2. Do other countries do it too?
‘It happens all over the world,’ says Professor Schaafsma. He sees that countries with a liberal democracy are overrepresented. “One could say: they also have something else to report”.
In Europe, apologies often refer to wars, explains Schaafsma. “Throughout the colonial past, countries are much less eager to offer them.”
The Netherlands joins a small club of states, mostly outside Europe. Most neighboring countries expressed regret and called the actions “deeply regrettable,” but most governments refused to apologize for slavery.
3. Does it always take a long time?
Colonial apologies just follow a long process. According to Schaafsma, this is because countries find it complicated. “It often happens only when the event has become part of national history, just like the Second World War has become part of their identity for many Germans.”
“We come from much further afield in the Netherlands when it comes to the past of slavery,” explains Schaafsma. “Many people have always thought: We were so good in the 17th century. It takes a lot more to reverse that perspective.” This usually happens in small steps. “For example, with an apology before or an apology for a specific event.”
According to Schaafsma, that process led to where we are today. “The past of slavery is now in the public domain and the voices are getting louder. So even politicians have to think about it”.
NOS op 3 previously made this video on that so called excuse dilemma:
The past of slavery and the excuse dilemma
4. What can be the legal consequences?
Politicians are often reluctant to apologize for fear of legal consequences. Consider, for example, lawsuits against relatives.
This is exactly what Lianne Wijntjens of the University of Tilburg has studied. She has looked at countless examples of lawsuits in which an apology has played a role. In it, she explored the question: “If you apologize, can it lead to civil liability, which could lead to a liability to pay damages?
The answer is almost always ‘no’.
5. What about the past of slavery?
Wijntjens also sees major legal hurdles for such liability in the history of slavery: “Slavery existed over a hundred years ago, so you are faced with statute of limitations.” While it has been established that slavery still has effects in many ways, for example in social inequality, the legal situation is more complicated. “In a liability proceeding, the individual plaintiff’s damage must be determined. If that succeeds, then this damage is too far from the original tort.”
Still, an apology means something legally, she adds. “By offering it, a government assumes that some facts are true. Especially when a professional party like a government offers them, the recipients can expect something from it.”
For example, after an apology for the Srebrenica drama, reparations to relatives followed, but that drama was much more recent than slavery. When Wijntjes looks into slavery cases, for example in the United States, “the legal hurdles for liability and reparations have proved too high.”
