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ANNEX 2 INTER-AMERICAN
COURT OF HUMAN RIGHTS (ART.
63(1) OF THE AMERICAN CONVENTION ON HUMAN RIGHTS) JUDGEMENT OF SEPTEMBER 10, 1993 In the case of
Aloeboetoe et al., the Inter-American
Court of Human Rights, composed of the following judges:
Rafael Nieto-Navia, President also present:
Manuel E. Ventura-Robles, Secretary, and Pursuant
to the Court’s judgment of December 4, 1991 (Aloeboetoe et al.
Case Judgment of December 4, 1991. Series C No. 11), and in
application of Article 44(1) of the Rules of Procedure of the
Inter-American Court of Human Rights in force for matters submitted to it
prior to July 31, 1991 (hereinafter "the Rules of Procedure"),
enters the following judgment in the case brought by the Inter-American
Commission on Human Rights (hereinafter "the Commission")
against the Republic of Suriname (hereinafter _"the Government"
or "Suriname"). I
1.
The instant case was brought to the Inter-American Court of Human
Rights (hereinafter "the Court") by the Commission on August 27,
1990, by a note transmitting its Report 03/90.
It originated in Petition No. 10.150 of January 15, 1988, against
Suriname. In its communication, the Commission asserted that "the Government of Suriname violated Articles 1, 2, 4(1), 5(1), 5(2), 7(1), 7(2), 7(3), 25(1) and 25(2) of the American Convention on Human Rights" (hereinafter "the Convention" or "the American Convention"). On those grounds, the Commission asked the Court "to adjudicate this case in accordance with the terms of the Convention, and to fix responsibility for the violation described herein and award just compensation to the victims' next of kin. " 2. The Commission
submitted its memorial on April 1, 1991. The
events that gave rise to the petition apparently occurred on December 31,
1987, in Atjoni (village of Pokigron, District of Sipaliwini) and in
Tjongalangapassi, District of Brokopondo.
In Atjoni, more than 20 males, unarmed Bushnegroes (Maroons)
had been attacked, abused and beaten with rifle-butts by a group of
soldiers. A number of them
had been wounded with bayonets and knives and were detained on suspicion
of belonging to the Jungle Commando, a subversive group.
Some 50 persons witnessed these occurrences. 3. According to
the petition, the Maroons all denied that they were members of the Jungle
Commando. The Captain of the
village of Gujaba made point of informing the commander in charge of the
soldiers that the persons in question were civilians from various
different villages. The
commander disregarded this information. 4. The petition
asserts that the soldiers allowed some of the Maroons to continue on their
way, but that seven of them, including a 15 year old boy, were dragged,
blindfolded, into a military vehicle and taken through Tjongalangapassi in
the direction of Paramaribo. The names of the persons taken by the soldiers, their place
and date of birth, insofar as is known, are as follows: Daison Aloeboetoe, of Gujaba, born June 7, 1960; Dedemanu
Aloeboetoe, of Gujaba Mikuwendje Aloeboetoe, of Gujaba, born February 4,
1973; John Amoida, of Asindonhopo (resident of Gujaba); Richenel Voola,
alias Aside or Ameikanbuka, of Grantatai (found alive); Martin Indisie
Banai, of Gujaba, born June 3, 1955; and, Beri Tiopo, of Gujaba (cf. infra,
paras, 65 and 66). 5. The petition
goes on to state that the vehicle stopped when it came to Kilometer 30.
The soldiers ordered the victims to get out or forcibly dragged
them out of the vehicle. They
were given a spade and ordered to start digging.
Aside was injured while trying to escape, but was not followed. The other six Maroons were killed. 6. The petition states that on Saturday, January 2, 1988, a number of men from Gujaba and Gratatai set out for Paramaribo to seek information on the seven victims from the authorities. They called on the Coordinator of the Interior at Volksmobilisatie and on the Military Police at Fort Zeeland, where they tried to see the Head of S-2. Without obtaining any information regarding the whereabouts of the victims, they returned to Tjongalangapassi on Monday, January 4. At Kilometer 30 they came across Aside, who was seriously wounded and in critical condition, and the bodies of the other victims. Aside, who had a bullet in his rights thigh, pointed out that he was the sole survivor of the massacre, the victims of which had already been partially devoured by vultures. Aside’s wound was infested with maggots and his rights shoulder blade bore and X-shaped cut. The group retuned to Paramaribo with the information. After 24 hours of negotiations with the authorities, they representative of the International Red Cross obtained permission to evacuate Mr. Aside. He was admitted to the Academic Hospital of Paramaribno on January 6, 1988, but died despite the care provided. The Military Police prevented his relatives from visiting him in the hospital. It was not until January 6, that the next of kin of the other victims were granted permission to bury them. 7. The original
petitioner asserted that he spoke twice with Aside about the events and
that Aside’s version of what took place concurs with that obtained form
the eyewitnesses and the members of the search-party. 8. The memorial of
the Commission contains all the documentation on the instant case.
Proceedings were initiated by the Commission on February 1, 1988,
and continued until May 15, 1990. On
that date, pursuant to Article 50 of the Convention, the Commission drew
up Report Nº 03/90 which decided the following: 1. To admit the present case. 2.
To declare that the parties have been unable to achieve a friendly
settlement. 3.
To declare that the Government of Suriname has failed to fulfill
its obligations to respect the rights and freedoms contained in the
American Convention on Human Rights and to assure their enjoyment as
provided for in Article 1 and 2 of the same instrument. 4.
To declare that the Government of Suriname violated the human
rights of the subjects of this case as provided for by Articles 1, 2,
4(1), 5(1), 5(2), 7(1), 7(2), 7(3), 25(1), and 25(2) of the American
Convention on Human Rights. 5.
To recommend to the Government of Suriname that it take the
following measures: a.
Give effect to Articles 1 and 2 of the Convention by assuring
respect for and enjoyment of the rights contained therein; b.
Investigate the violations that occurred in this case and try and
punish those responsible for their occurrence; c.
Take necessary measures to avoid their reoccurrence; d.
Pay a just compensation to the victims' next of kin. 6.
To transmit this report to the Government of Suriname and to
provide the Government of Suriname and to provide the Government with 90
days to implement the recommendations contained herein.
The 90 day period shall begin as of the date this report is sent.
During the 90 days in question the Government may not publish this
report, I keeping with Article 47(6) of the Commission's Regulations. 7.
To submit this case to the Inter-American Court of Human Rights in
the event that the Government of Suriname should fail to implement all of
the recommendations contained in numeral 5 above. 9. In its memorial
of April 1, 1991, the Commission requested the following of the Court: [.
. .] That
the Honorable Court find the State of Suriname responsible for the deaths
of Messrs. Aloeboetoe, Daison; Aloeboetoe, Dedemanu; Aloeboetoe,
Mikuwendje; Amoida, John; Voola, Richenel, alias Aside [or] Ameikanbuka
(found alive); Banai, Martin Indisie; and, Tiopo, Beri, while in
detention, and hold that these deaths violate Article 1(1) (2), 4(1), 5(1)
(2), 7(1) (2) (3) and 25 of the American Convention on Human Rights. That
the Court find that Suriname must pay adequate reparation to the victims'
next of kin and, consequently, order the following:
payment of indemnization for indirect damages and loss of earnings;
reparation for moral damages, including the payment of compensation and
adoption of measures to restore the good name of the victims; and, the
investigation of the crime committed, with due punishment for those found
to be guilty, [.
. .] 10. Suriname's
counter-memorial was received by the Court on June 28, 1991.
In it, the Government interposed preliminary objections. The
document presented by the Government requested that the Court declare
that: 1.-
Suriname cannot be held responsible for the disappearance and death
of the persons named by the Commission. 2.-
In view of the fact that it has not been proved that the violation
attributed to Suriname was committed, Suriname be exempted from the
payment of costs in the instant case, since its responsibility for the
executions attributed to it has not been demonstrated. 11. At the public
hearing convened by the Court on December 2, 1991, to deal with the
preliminary objections, Suriname accepted its responsibility in the
instant case (cf. Aloeboetoe et al. Case, supra,
introductory paragraph, para. 22) 12. As a result, in
its judgment of December 4, 1991, the Court unanimously 1.
Notes the admission of responsibility proffered by the Republic of
Suriname and finds that the dispute relating to the facts giving rise to
the instant case has now been concluded 2.
Decides to retain the case on its docket in order to fix
reparations and costs. (Aloeboetoe
et al. Case,
supra, introductory paragraph, operative part.) II 13. By order of
January 18, 1992, the President of the Court (hereinafter "the
President") granted the Commission until March 31, 1992, to offer and
submit the evidence and its disposal regarding reparations and costs in
the instant case; he gave the Government until May 15, 1992, to present
its observations on the Commission’s submission.
In that order, the President also summoned the parties to a public
hearing on the subject, to be held at 10:00 a.m. on June 23, 1992.
At the request of the Commission and with the Government's
agreement, the President on March 24, 1992, agreed to postpone the
aforementioned hearing until July 7, 1992, at the same hour. 14. The Commission presented its brief on reparations and costs on March 31, 1992, with the Spanish translation following on May 8. 15. In its brief,
the Commission maintains that, under Article 63(1) of the American
Convention and the applicable principles of international law, the
Government must compensate the injured party for damages resulting from
its failure to fulfill its obligations on the basis of the rule of restitutio
in integrum. In the
Commission’s opinion, the Government should indemnify for material and
moral damages, grant other, non-monetary reparations and reimburse the
expenses and costs incurred by the victim’s next of kin.
The Commission’s brief refers to the amount or the damages and
costs, proposes a method of payment and lists the non-monetary measures
requested by the families of the victims. 16. The Commission
makes a distinction between the compensation for material damages payable
to the minor children of the persons killed and that payable to their
adult dependents. It proposes
the establishment of a trust fund for the minor children, the basic value
of which would consist of a sum proportional to the estimated projected
income of the victim, after deducting what would have been the victim’s
own living expenses. _The
foregoing would be determined by applying the current or present value
method. According to the
Commission, this method entails the application of generally acceptable
principles that are compatible with international law.
AS for the adult dependents, the Commission requests that a lump
sum be placed in a trust fund, to become due and payable on the date of
the judgment. The amount
thereof would be calculated on the basis of the income that the victims
had at the time of their death. Alternatively,
said sum could be made available through annual payments in securities
that maintain their purchasing power. To be continued until the death of
the beneficiaries. The sums
claimed in Surinamese Florins (hereinafter ("Sf") must be
adjusted to reflect the current value of that currency, since they were
calculated on the basis of "1988 monetary values." 17. With regard to
the persons who would be entitled to compensation for actual damages, the
Commission explains that it is necessary to take into account the family
structure of the Maroons, of which the Saramakas (the tribe to which the
victims belonged) are a part. It
is essentially a matriarchal*
structure, where polygamy is common.
In Suriname, marriages must be registered in order to be recognized
by the State. Due to the
dearth of registry offices in the interior of the country, however, that
requirement is generally not met. The
Commission is of the opinion that this should not affect the right to
compensation of the relatives or spouses of unregistered marriages.
It is argued that the care of family members is entrusted to a
communal group organized along maternal lines; this is something that
should be borne in mind in determining which of the relatives should be
compensated. The direct,
personal damages of a monetary nature that five rise to compensatory
rights should be measured principally by the degree of financial
dependence that existed between the claimant and the deceased.
The list of aggrieved parties entitled to compensation was drawn up
by the Commission partly on the basis of sworn statements by the next of
kin of the victims. 18. According to
the Commission, the Government would also be under the obligation to make
reparation for moral damages suffered as a result of the severe
psychological repercussions that the killings had on the relatives of the
victims, the working men who represented their main or only source of
income. The
Government’s failure to react, investigate or punish these deeds is
presented as an indication of the little value it places on the lives of
the Maroons, a fact that has wounded their dignity and self-confidence.
In six of the seven cases, the bodies of the victims were not
returned for burial, the authorities gave no information as to where they
might be found, they could not be identified and no death certificates
were issued. 19. The Commission
argues that the Saramakas also suffered direct moral damages and should be
compensated. According to the Commission, In
the traditional maroon society, a person is not only a member of his own
family group, but also a member of the village community and of the tribal
group. In this case, the
damages suffered by the villagers due to the loss of certain members of
its group must redressed. Since
the villagers, in practice, constitute a family in the broad sense of that
term [. . .] they have suffered direct emotional damages as a result of
the violations of the Convention. The
deeds for which the Government accepted responsibility appear to have
caused damages to the Saramaka tribe, aggravated by the Government’s
subsequent actions in not recognizing "the rights of the
Bushnegroes." In the
Commission’s opinion, a conflictive relationship appears to have existed
between the Government and the Sarmaka tribe and the killings occurred as
a consequence of that situation. 20. The Commission
states that the families of the victims demand that certain non-pecuniary
provisions be made. For example, they ask that the President of Suriname
apologize publicly for the killings; that the chiefs of the Saramaka tribe
be invited to come before Congress of Suriname to receive an apology; and,
that the Government publish the operative part of this judgment.
They also request the Government to exhume the bodies of the six
victims and return them to their respective families; to name a park,
square or street in a prominent section of Paramaribo after the Saramaka
tribe; and, to investigate the murders committed and punish the guilty
parties. 21. The Commission
demands that the Government pay the expenses and costs incurred by the
families of the victims in asserting their rights before the courts of
Suriname, the Commission, and the Court. In
its brief, the Commission describes some aspects of that endeavor, which
included a visit to Suriname by the attorney representing the victims, a
visit to the interior of the country by part of Moiwana 86, the
appointment of research assistants to prepare the three hearings for the
case before the Commission and the initial memorandum to the Court, and
the hiring of an associate professor to take over the university course
that the victims’ attorney was unable to give because of his work on
this case. 22. The
Commission’s brief concludes that: [.
. .] In
view of the foregoing, the Commission on Human Rights and the attorneys
representing the victims’ respectfully request that the Court order the
payment of the following amounts: A
lump sum of Sf.5,114,484 broken down as follows: Sf.
1,114,484 for material damages, to the children: Sf.
660,000 for moral damages, to the children; Sf.
1,340,000 for moral damages, to the adult dependents an
annual sum of Sf. 84,040, adjusted incrementally, for actual damages
payable to the adult dependents; lump
sums of Sf. 715,618 and US$18,533 to cover legal costs; and, a lump sum of
US$32,375 for expenses
In order to preserve the purchasing power for the amounts listed in
Suriname se currency, we respectfully ask the Court to order the
Government to provide access to the official rate of exchange.
Otherwise, the sums involved will have to be recalculated at the
market rate of exchange of 20:1 The
Court has confirmed that discrepancies exist between the English and
Spanish versions of the Commission’s brief, as well as between the
figures and names as they appear in the text and in its attachments. 23. On May 13,
1992, the Agent of Suriname requested the President to grant an extension
of the time limit set for the Government to submit its observations on the
Commission’s brief regarding reparations and costs, in view of the fact
that the official Spanish version was transmitted to the Agent on May 12,
1992, "exactly three days before the deadline fixed by the Court"
for the Government’s submission. The President acceded to the request and determined that the
observations should be submitted to the Secretariat by May 22, 19892, at
the latest. The
Government presented its observations on Monday, May 25, 1992, that is, on
the first working day after expiration of the time limit.
In them, the Government argues that the fact the Commission
submitted its brief on the reparations and costs in the English language
and that the Spanish translation was delivered to the Agent four days
before expiration of the deadline fixed by the Court "resulted in
an indirect reduction of the time limit granted [. . .] for presentation
of its counter memorial and to some degree impaired once again our defense
before that Court" (underlined in the original), since Suriname
had barely ten days in which to respond to the Commission’s brief on
reparations and costs. 24. The
communication emphasized the importance of Suriname’s express admission
to the Court of its responsibility in the instant case.
This action by Suriname has its "fundamental basis"
in the fact that the country had, on May 25, 1991, retaken the road to
democracy and that its President, Dr. Venetiaan, had committed himself
"to respect and promote the observance of the obligations
comprised in the area of human rights".
It recalls that, in its 1991 Annual Report, the Commission declared
that it had received no complaints of alleged violations of human rights
since the accession of the President Venetiaan. 25. The Government
does not seek to disavow the responsibility it accepted before the Court.
However, it considers the reparations and costs demanded by the
Commission to be excessively burdensome and "a distortion of the
meaning of the provisions of Article 63(1) of the Convention."
It adds that the potential income of the victims as presented by
the Commission has no bearing on reality. 26. Suriname points
out that its domestic legislation only permits it to make payments in the
national currency. Consequently, it shall use that coin to pay all of the
financial obligations that this judgment may impose. 27. As for the
compensation for actual damages suffered, the Government declares that
such compensation should be based on the American Convention and the
applicable principles of international law, as the Court indicated in the
Godínez Cruz Case [Godínez Cruz Case, Compensatory Damages,
Judgment of July 21, 1989 (Art. 63(1) American Convention on Human Rights).
Series C No. 8, para. 29].
The customary norms of the Saramaka tribe should not be binding in
fixing the amount of compensation to be granted to the victims' next of
kin, whose family relationship must be determined by reference to the
American Convention and the applicable principles of international law. 28. Suriname
accepts the compensation for moral damages and relies on the precedents
established in the Velásquez Rodríguez and Godínez Cruz cases, where
such compensation was granted after the psychological damages of the
family members of the victims had been substantiated by expert medical
testimony [Velásquez Rodríguez Case, Compensatory Damages,
Judgment of July 21, 1989, (Art. 63(1) American Convention on Human Rights).
Series C. No. 7, para. 51; Godínez Cruz Case, Compensatory
Damages, supra 27, para. 49].
According to the Government, this was not done in the instant case,
no evidence having been produced on the subject. 29. Suriname
objects to the Commission's request to compensate the Saramaka tribe for
moral damages because this claim was not presented during the proceedings
on the merits. In its brief,
the Government states the following: To
admit new claims for compensation during the current COMPENSATORY DAMAGES
phase would be to accept the violation of a new international obligation
(which the Commission to this date has neither identified nor attributed)
that had not been presented by the Commission in its previous briefs and
had neither been analyzed by the Court during the various phases of the
proceedings nor contested by Suriname's defense during the prior hearings
(apart from the fact that this deprives the government of its defense). 30. The Government
argues that the Commission works with outside attorneys, who are listed as
lawyers for the victims, in order to perform tasks that should have been
done by its own officials. Fees
for such services amounts to 250 United States of American Dollars
(hereinafter "dollars" or "US$") per hour, a rate that
bears no relationship to prevailing conditions in the
"inter-American" system. Furthermore,
the families of the victims did not file any claims in the Surinamese
courts and the Commission was seized of the case a mere fifteen days after
the events had taken place. 31. As for the
non-pecuniary reparations requested by the Commission, the Government
believes that the acceptance of its responsibility, made public in the
Court's judgment of December 4, 1991, is a significant and important form
of reparation and moral satisfaction for the families of the victims and
the Saramaka tribe. 32. In its brief,
Suriname challenges the experts proffered by the Commission to testify at
the hearing scheduled for July 7, 1992.
It states that such experts should have provided a sworn
affidavit—for which the procedural stage had already expired—and that
only the testimony of witnesses would be admissible at the hearing.
The Government provides supporting proof in its brief. 33. In its
conclusion, Suriname's brief declares the following: Suriname
wishes to inform the Court that, in its opinion, compensation in this
contentious case should basically cover in-kin reparations, such as the
opportunity to obtain, free of charge, housing, agricultural property,
social security, labor, medical, and educational benefits.
Suriname is, in consequence, prepared to grant the families of the
victims the aforementioned reparations within a reasonable period.
These would be treated as part of the fair compensatory damages
that the Court may order to be paid. 34. The Government
considers that the standards of compensation put forward by the Commission
are not in line with the current social and economic reality in Suriname.
It ads that Suriname has come before the Court "in order to
correct he erroneous path followed in the past by former governments, as
well as to demonstrate to the Court and to the international community the
seriousness of President Venetiaan's intentions with regard to the
protection of human rights," a position that must not serve as a
pretext to impose on the country compensations in the millions that will
only impoverish it further. III 35. In view of the
statements of the parties, the evidence presented and Suriname's objection
to the expert witnesses proposed by the Commission, on June 19, 1992, the
President decided that the purpose of the hearing convened for July 7,
1992 (see supra, para 13), would be to hear the arguments of
Suriname and the observations of the Commission regarding the objection
filed and, if appropriate, to receive the testimony offered by the parties
and hear the views of the parties concerning reparations and costs. 36. The public
hearing on reparations and costs was held at the seat of the Court on July
7, 1992. There appeared before
the Court a) for the
Government of Suriname:
Carlos Vargas-Pizarro, Agent b) for the
Inter-American Commission on Human Rights:
Oliver H. Jackman, Delegate c) called at the
request of the Commission:
Richard Price d) called at the
request of the Government:
Ramón de Freitas. 37. At the hearing,
the Court rejected the objections filed by Suriname and heard the
testimony, while "reserving the right to consider it at a late
date". The witnesses
and experts proffered by the parties responded to the questions put to
them by the parties of the judges. 38. During these
proceedings, an amicus curiae brief was received from the
International Commission of Jurists. IV 39.
In view of the fact that more detailed information was required in
order to be able to fix the amount of the compensation and costs, the
President, after consulting with the Permanent Commission, on September
24, 1992, decided to have the Court avail itself of the services of Mr.
Christopher Healy and Ms. Merina Eduards as experts.
By order of March 16, 1993, the Court decided to “at
the appropriate time make available to the parties the information
supplied by the experts in this case.”
The Court also requested clarifications and additional information
of the parties. On
March 18, 1993, the Court asked the Commission to transmit “a final list of the correct names of the persons it contends are the
children and spouses of the victims” in this case.
On March 20, 1993, the Court asked the Government to send “to
the Court whatever information and observations the Government of Suriname
deems advisable to submit in this regard.”
A final list containing the names of the wives, children, and other
dependents of the victims was drawn up by the Commission on April 8, 1993,
and delivered to the Secretariat of the Court on the 14th of
that month. By note of April
26, 1993, the President granted the Government a period of 20 days to
present its observations regarding the documents transmitted by the
Commission to the Court. The Government made no observations, nor did it present the
information it had been requested to provide. 40.
During the Special Session of the Court held from March 15 to 18,
1993, it was decided that the Deputy Secretary, Ana María Reina, would
travel to Suriname in order to gather additional information regarding the
economic, financial, and banking situation of the country.
She would also visit the village of Gujaba to obtain data that
would enable the Court to deliver a judgment taking into account the
prevailing conditions in Suriname. This
decision was communicated to the parties.
The information and data gathered during this visit through
interviews and documents, both in Paramaribo and in the village of Gujaba,
have also been utilized by the Court to fix the amount of compensation. V 41.
The Court has jurisdiction to decide on the payment of reparations
and costs in the instant case. Suriname
has been a State Party to the American Convention since November 12, 1987,
date on which it also accepted the contentious jurisdiction of the Court. The Commission submitted the case to the Court pursuant to
Articles 51 and 61 of the American Convention and 50 of its Regulations,
and the Court decided the case on the merits on December 4, 1991. VI 42.
In the instant case, Surname has accepted its responisibility for
the events described in the Commission’s memorial.
Consequently, as the Court stated in its judgement of December 4,
1991, “the dispute relating to the facts giving rise to the instant case has
now been concluded” (Aloeboetoe
et al. Case, supra introductory paragraph, para. 23).
This means that the facts presented in the memorial of the
Commission dated August 27, 1990, are deemed to be true.
Nevertheless, there is disagreement between the parties as to other
facts which relate to the reparations and their scope.
The dispute over these matters will be decided by the Court in the
instant judgment. 43.
The provision applicable to reparations is Article 63(1) of the
American Convention, which reads as follows: 1.
If the Court finds that there has been a violation of a right or
freedom protected by this Convention, the Court shall rule that the
injured party be ensured the enjoyment of his right or freedom that was
violated. It shall also rule,
if appropriate, that the consequences of the measure or situation that
constituted the breach of such right or freedom be remedied and that fair
compensation be paid to the injured party.
This article codifies a rule of customary law which, moreover, is
one of the fundamental principles of current international law, as has
been recognized by this Court (cf. Velásquez Rodríguez Case, Compensatory Damages, supra 28, para.
25; Godínez Cruz Case, Compensatory Damages, supra 27, para. 23)
and the case law of other tribunals (cf.
Factrory at Chorzów, Jurisdiction, Judgment Nº 8, 1927, P.C.I.J.,
Series A, Nº 9, p. 21; Factory at Chorzów, Merits, Judgment Nº 13, 1928, P.C.I.J., Series
A, Nº 17, p. 29; Interpretation of Peace Treaties with bulgaria, Hungary
and Romania, Second Phase, Advisory Opinion, I.C.J., Reports 1950, p.
228). 44.
The obligation contained in Article 63(1) of the Convention is
governed by international law in all of its aspects, such as, for example,
its scope, characteristics, beneficiaries, etc.
Consequently, this judgment must be understood to impose
international legal obligations, compliance with which shall not be
subject to modification or suspension by the respondent State through
invocation of provisions of its own domestic law ((cf. Veláquez Rodríguez Case,
Compensatory Damages, supra 28, para. 30; Godínez Cruz Case, Compensatory Damages, supra 27, para. 28; Jurisdiction
of the Courts of Danzng, Advisory Opinion, 1928, P.C.I.J., Series B, Nº
15, pp. 26 and 27; Greco-Bulgarian “Communities”, Advisory Opinion, 1930, P.C.I.J.,
Series B, Nº 17, pp. 32 and 35; Free
Zones of Upper Savoy and the District of Gex, Order of 6 December
1930, P.C.I.J., Series A, Nº 24, p. 12; Free
Zones of Upper Savoy and the District of Gex, Judgment, 1932, P.C.I.J.,
Series A/B, Nº 46, p. 167; Treatment
of Polish Nationals and Other Persons of Polish Origin or Speech in the
Danzig Territory, Advisory Opinion, 1932, P.C.I.J., Series A/B, Nº
44, p. 24). VII 45.
Having determined that the obligation to make reparation falls
under international law and is governed by it, the Court considers it
advisable to carefully analyze the scope of that compensation. 46.
Article 63(1) of the Convention makes a distinction between the
behavior that must be followed by the State responsible for the violation
from the moment that the Court passes judgement and the consequences of
that same State’s attitude in the past, that is, while the violation was
in process. As regards the
future, Article 63(1) provides that the injured party shall be ensured the
enjoyment of the right or freedom that was violated.
As for the past, the provision in question empowers the Court to
impose reparations for the consequences of the violation and a fair
compensation. In
matters involving violations of the right to life, as in the instant case,
reparation must of necessity be in the form of pecuniary compensation,
given the nature of the rigfht violated (Velásquez Rodríguez Case, Judgment of July 29, 1988.
Series
C Nº 4, para. 189; Godínez Cruz Case, Judgment of January 20,
1989. Series
C Nº 5, para. 199). 47.
The Commission interprets Article 63(1) of the Convention as
instituting the obligation to reestablish the statu
quo ante. In another part
of its brief, the Commission refers to in
integrum restitutio, which it seems to equate to the reestablishment
of the statu quo ante. Regardless
of the terms employed, the Commission affirms that the compensation to be
paid by Suriname shall be in an amount sufficient to remedy all the
consequences of the violations that took place. 48.
Before analyzing these rules in their legal context, it is
important to reflect on human actions in general and how these occur in
practice. Every
human act produces diverse consequences, some proximate and others remote.
An old adage puts it as follows:
causa causæ est causa
causati. Imagine the
effect of a stone cast into a lake; it will cause concentric circles to
ripple over the water, moving further and further away and becoming ever
more imperceptible. Thus it
is that all human actions cause remote and distant effects. To
compel the perpetrator of an illicit act to erase all the consequences
produced by his action is completely impossible, since that action caused
effects that multiplied to a degree that cannot be measures. 49.
For a long time, that law has addressed the subject of how human
actions occur in practice, what their effects are and what
responsibilities they give rise to. On
the international plane, the arbitral award in the case of “Alabama”
already dealt with this question (Moore,
History and Digesto of International
Arbitrations to which the United States has been a Party, Washington,
D.C., 1898, vol. I, pp. 653-659). The solution provided by law in this regard consists of demanding that the responsible party make reparation for the immediate effects of such unlawful acts, but only to the degree that has been legally recognized. As for the various forms and modalities of effecting such reparation, on the other hand, the rule of in integrum restitutio refers to one way in which the effect of an international unlawful act may be redressed, but it is not the only way in which it must be redressed, for in certain cases such reparation may not be possible, sufficient or a appropriate (cf. Factory at Chorzów, merits, supra 43, p. 48). The Court holds that this is the interpretation that must be given to Article 63(1) of the American Convention. VIII 50.
It has already been stated that insofar as the right to life is
concerned, it is impossible to reinstate the enjoyment of that right to
the victims. In such cases,
reparation must take other, alternative forms, such as pecuniary
compensation (supra,
para. 46). This
compensation refers primarily to actual damages suffered.
According to arbitral case law, it is a general principle of law
that such damages comprise both indirect damages and loss of earnings (cf.
Chemin de fer de la baie de Delagoa,
sentence, 29 mars 1900, Martens, Nouveau Recueil Général de Traités, 2ème
Série, t. 30, p. 402; Case of Cape
Horn Pigeon, 29 November 1902, Papers relating to the Foreign
Relations of the United States, Washington, D.C.: Government Printing
Office, 1902, Appendix I, p. 470). Compensation shall furthermore
include the moral damages suffered by the victims.
The Permanent Court of International Justice so held [Treaty
of Neuilly, Article 179, Annex, Paragraph 4 (Interpretation), Judgement
Nº 3, 1924, P.C.I.J., Series A, Nº 3, p. 9], as did the arbitral
tribunals (Maal Case, 1º June 1903,
Reports of International Arbitral Awards, vol. X, pp. 732 and 733;
and, Campbell
Case, 10 June 1931, Reports of International Arbitral Awards, vol. II,
p. 1158). 51.
In the instant case, the victims who died at Tjongalangapassi
suffered moral damages when they were abused by an armed band which
deprived them of their liberty and later killed them.
The beatings received, the pain of knowing they were condemned to
die for no reason whatsoever, the torture of having to dig their own
graves are all part of the moral damages suffered by the victims.
In addition, the person who did not die outright had to bear the
pain of his wounds being infested by maggots and of seeing the bodies of
his companions being devoured by vultures. 52.
In the Court’s opinion, it is clear that the victims suffered
moral damages, for it is characteristic of human nature that anybody
subjected to the aggression and abuse described above will experience
moral suffering. The Court
considers that no evidence is required to arrive at this conclusion; the
acknowledgement of responsibility by Suriname suffices. 53.
The actual damages are analyzed starting in paragraph 88 et
seq. IX 54.
The damages suffered by the victims up to the time of their death
entitle them to compensation. That
right to compensations is transmitted to their heirs by succession. The
damages payable for causing loss of life represent an inherent right that
belongs to the injured parties. It
is for this reason that national jurisprudence generally accepts that the
right to apply for compensation for the death of a person passes to the
survivors affected by that death. In
that jurisprudence a distinction is made between successors and injured
third parties. With respect
to the former, it is assumed that the death of the victim has caused them
actual and moral damages and the burden of proof is on the other party to
show that such damages do not exist.
Claimants who are not successors, however, must provide specific
proof justifying their right to damages, as explained below (cf.
Infra, para. 68). 55.
IN the instant case, there is some difference of opinion between
the parties as to who the successors of the victims are.
The Commission urges that this decision be made with reference to
the customs of the Saramaka tribe, whereas Suriname requests that its
civil law be applied. The
Court earlier stated that the obligation to make reparation provided in
Article 63(1) of the American Convention is governed by international law,
which also applies to the determination of the manner of compensation and
the beneficiaries thereof (supra, para. 44). Nevertheless,
it is useful to refer to the national family law in force, for certain
aspects of it may be relevant. 56.
The Saramakas are a tribe that lives in Surinamese territory and
was formed by African slaves fleeing from their Dutch owners.
The Commission’s brief affirms that the Saramakas enjoy internal
autonomy by virtue of a treaty dated September 19, 1762, which granted
them permission to be governed by their own laws.
It also states that these people “acquired
their rights on the basis of a treaty entered into with the Netherlands,
which recognizes, among other things, the local authority of Saramaka
(sic) over their own territory.”
The text of the treaty is attached to the brief in question, which
adds that “the obligations of the
treaty are applicable, by succession, to the state (sic) of Suriname.” 57.
The Court does not deem it necessary to investigate whether or not
that agreement is an international treaty.
Suffice it to say that even if that were the case, the treaty would
today be null and void because it contradicts the norms of jus
cogens superveniens. In
point of fact, under that treaty the Saramakas undertake to, among other
things, capture any slaves that have deserted, take them prisoner and
return them to the Governor of Suriname, who will pay from 10 to 50
florins per slave, depending on the distance of the place where they were
apprehended. Another article
empowers the Saramakas to sell to the Dutch any other prisoners they might
take, as slaves. No treaty of
that nature may be invoked before an international human rights tribunal. 58.
The Commission has pointed out that it does not seek to portray the
Saramkas as a community that currently enjoys international juridical
status; rather, the autonomy it claims for the tribe is one governed by
domestic public law. The
Court does not deem it necessary to determine whether the Saramakas enjoy
legislative and jurisdictional autonomy within the region they occupy.
The only question of importance here is whether the laws of
Suriname in the area of family law apply to the Saramaka tribe.
On this issue, the evidence offered leads to the conclusion that
Surinamese family law is not effective insofar as the Saramakas are
concerned. The members of the
tribe are unaware of it and adhere to their own rules.
The State for its part does not provide the facilities necessary
for the registration of births, marriages, and deaths, an essential
requirement for the enforcement of Surinamese law.
Furthermore, the Saramakas do not bring the conflicts that arise
over such matters before the State’s tribunals, whose role in these
areas is practically non-existent with respect to the Saramakas.
It should be pointed out that, in the instant case, Suriname
recognized the existence of a Saramaka customary law. The
only evidence produced to the contrary is the statement made by Mr. Ramón
de Freitas. However, the
manner in which that witness testified, his attitude during the hearing
and the personality he revealed led the Court to develop an opinion of the
witness that persuaded it to reject his testimony. 59.
The Commission has produced information on the social structure of
the Saramakas indicating that the tribe displays a strongly matriarchal*
familial configuration where polygamy occurs frequently.
The principal group of relatives appears to be the “bêè”,
composed of al the descendants of one single woman.
This group assumes responsibility for the actions of any of its
members who, in theory, are each in turn responsible to the group as a
whole. This means that the
compensation payable to one person would be given to the “bêè”,
whose representative would distribute it among its members. 60.
The Commission also requests compensation for the injured parties
and the distribution of such compensation among them.
On examining the Commission’s brief, it is evident that the
identification of the beneficiaries of such compensation has not been
carried out in accordance with Saramaka custom, at least not as the
Commission described it before the Court.
It is impossible to determine what legal norm the Commission
applied for this purpose. It
would appear that the Commission simply took a pragmatic approach. Likewise,
on the matter of the amount of compensation and its distribution, the
Commission’s brief asserts that it resorted to an “equilibrium
system” which took the following factors into account: the age of
the victim, his actual and potential income, the number of his dependents
and the customs and petitions of the Bushnegroes. 61.
The I.L.O. Convention Nº 169 concerning Indigenous and Tribal
Peoples in Independent Countries (1989) has not been accepted by Suriname.
Furthermore, under international law there is no conventional or
customary rule that would indicate who the successors of a person are.
Consequently, the Court has no alternative but to apply general
principles of law (Art. 38(1)(c) of the Statute of the International Court
of Justice). 62.
It is a norm common to most legal systems that a person’s
successors are his or her children. It
is also generally accepted that the spouse has a share in the assets
acquired during a marriage; some legal systems also grant the spouse
inheritance rights along with the children.
If there is no spouse or children, private common law recognizes
the ascendants as heirs. It
is the Court’s opinion that these rules, generally accepted by the
community of nations, should be applied in the instant case, in order to
determine the victims’ successors for purposes of compensation. These
general legal principles refer to “children,” “spouse,” and
“ascendants.” Such terms shall be interpreted according to local law.
As already stated (supra,
para. 58), here local law is not Surinamese law, for the latter is not
effective in the region insofar as family law is concerned.
It is necessary, then, to take Saramaka custom into account.
That custom will be the basis for the interpretation of those
terms, to the degree that it does not contradict the American Convention.
Hence, in referring to “ascendants,” the Court shall make no
distinction as to sex, even if the might be contrary to Saramaka custom. 63.
It has proved extremely difficult to identify the children,
spouses, and, in some cases, the ascendants of the victims in this case.
These are al members of a tribe that lives in the jungle, in the
interior of Suriname, and speaks only its own native tongue. Marriages and
births have in many cases not been registered.
In those cases where they have, sufficient data have not been
provided to fully document the relationship between persons.
The matter of identification becomes even more complex in a
community which practices polygamy. 64.
In its observations, Suriname has presented a general critique of
the Commission’s brief as regards the evidence it presents.
The Government asserts the following:
“[…] we need to know, based on rational and certainly verifiable data,
specifics on all the victims, insofar as the family members left
unprotected are concerned […]” It
is true that a person’s identity must, as a general rule, be proved by
means of relevant documentation. However,
the situation in which the Saramakas find themselves is due in great
measure to the fact that the State does not provide sufficient registry
offices in the region; consequently, it is unable to issue documentation
to all its inhabitants on the basis of the data contained therein.
Suriname cannot, therefore, demand proof of the relationship and
identity of persons through means that are not available to al of its
inhabitants in that region. In
addition, Suriname has not here offered to make up for its inaction by
providing additional proof as to the identity and relationship of the
victims and their successors. In
order to clarify the information available on the successors, the Court
requested the Commission to provide complementary data about them. Considering the circumstances surrounding the instant case,
the Court believes that the evidence supplied is credible and can be
admitted. 65.
The information provided by the Commission nevertheless contains
some discrepances between the names of the victims and the way these
appeared in the petition (see supra, para. 4). Thus,
Deede-Manoe Aloeboetoe appears in the petition as Dedemanu Aloeboetoe;
this can be explained by the fact that both names are pronounced in the
same way. The name of Bernard
Tiopo appears in the petition as Beri Tiopo, which was one of his
nicknames or sobriquets, for he was known as Beri or Finsié.
There has also been some confusion as to the name of Indie Hendrik
Banai, who originally appeared as Martin Indisie Banai, though his
identification has never been questioned.
As for a victim who was listed in the petition as John Amoida, he
was a son of Pagai Amoida and was known as Asipee Adame.
His identification also presented to questions. 66.
In accordance with the foregoing, it has been possible to establish
a list of the successors of the victims.
That list reflects the situation at the time of the killings.
Consequently, it includes persons who have since died and excludes those
spouses who at the time were divorced from the victims. Daison
Aloeboetoe his wives: his children:
Wenke Asodanoe
Podini Asodanoe
Maradona Asodanoe
Aingifesie Aloeboetoe Leona Aloeboetoe Deede-Manoe
Aloeboetoe his wives: his children:
Asoidamoeje Tiopo Kluction
Tiopo
Norma Aloeboetoe Moitia Foto Mikuwendje Aloeboetoe his mother: Andeja Aloeboetoe his father: Masatin Koedemoesoe Richenel Voola his wives: his children: Mangoemaw Adjako (deceased) Stefan Adjako Bertholina Adjako John Adjako Godfried Franklin Adjako Pamela Jaja Adjako Senda Palestina Esje Lugard Baba Tiopo Indie
Hendrik Banai his wife: his children:
Adelia Koedemoesoe
Elbes Koedemoesoe
Chris Enoi Vorswijk
Aike Karo Vorswijk Robert Vorswijk Etty Vorswijk Etmelia Adipi Jenny Alfonsoewa Bernard Tiopo his wives: his children:
Dina Abauna
Bakapina Abauna
Ajemoe Sampi Seneja
Sampi
Arisin Sampi
Maritia Vivian Sampi
Anthea Vorswijk
Apintimonie Vorswijk
Glenda Lita Toy Asipee
Adame his
father: Pagai Amoida his
mother: Aoedoe
Adame (deceased on May 29, 1989). X 67.
The obligation to make reparation for damages caused is sometimes,
and within the limits imposed by the legal system, extended to cover
persons who, though not successors of the victims, have suffered some
consequence of the unlawful act. This
issue has been the subject of numerous judgments by domestic courts.
Case law nevertheless establishes certain conditions that must be
met for a claim of compensatory damages filed by a third party to be
admitted. 68.
First, the payment sought must be based on payments actually made
by the victim to the claimant, regardless of whether or not they
constituted a legal obligation to pay support.
Such payments cannot be simply a series of sporadic contributions;
they must be regular, periodic payments either in cash, in kind, or in
services. What is important
here is the effectiveness and regularity of the contributions. Second,
the nature of the relationship between the victim and the claimant should
be such that it provides some basis for the assumption that the payments
would have continued had the victim not been killed. Lastly,
the claimant must have experienced a financial need that was periodically
met by the contributions made by the victim.
This does not necessarily mean that the person should be indigent,
but only that it be somebody for whom the payment represented a benefit
that, had it not been for the victim’s attitude, it would not have been
able to obtain on his or her own. 69.
The Commission has submitted a list of 25 persons who, while not
successors of the victims, claim compensatory damages as their dependents.
According to the Commission, they are persons who received
financial support from the victims, whether in cash, in kind, or through
contributions of personal work. According to the Commission’s brief, the persons listed are relatives of some of the victims, the only exception being a former teacher of one of them. The Commission presents this information in its brief on reparations and includes a fact sheet on each of the victims. It also adds an affidavit from the father or the mother of each victim. No fur |