Inter-American Court of Human Rights
Case of the Moiwana Community v. Suriname
Judgment of June 15, 2005
(Preliminary Objections, Merits, Reparations and Costs)
In the Case of Moiwana Village,
the Inter-American Court of Human Rights (hereinafter “the Inter-American Court,”
“the Court,” or “the Tribunal”), composed of the following judges:
Sergio García-Ramírez, President;
Alirio Abreu-Burelli, Vice-President;
Oliver Jackman, Judge;
Antônio A. Cançado-Trindade, Judge;
Cecilia Medina-Quiroga, Judge;
Manuel E. Ventura-Robles, Judge; and
Diego García-Sayán, Judge;
also present,
Pablo Saavedra-Alessandri, Secretary; and
Emilia Segares-Rodríguez, Deputy Secretary;
pursuant to Articles 62(3) and 63(1) of the American Convention on Human Rights
(hereinafter “the Convention” or “the American Convention”) and Articles 29, 31, 37,
56, 57 and 58 of the Court’s Rules of Procedure (hereinafter “the Rules of
Procedure”)*, delivers the present Judgment.
* The present judgment is delivered pursuant to the terms of the Rules of Procedure approved by
the Inter-American Court of Human Rights during its XLIX Ordinary Period of Sessions by Order of
November 24, 2000, which entered into force on June 1, 2001, and according to the partial amendment
approved by the Court during its LXI Ordinary Period of Sessions by Order of November 25, 2003, which
entered into force on January 1, 2004.
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I
INTRODUCTION OF THE CASE
1. On December 20, 2002, pursuant to Articles 50 and 61 of the American
Convention, the Inter-American Commission on Human Rights (hereinafter “the
Commission” or “the Inter-American Commission”) submitted an application against
the State of Suriname (hereinafter “the State” or “Suriname”) to the Court,
originating from petition No. 11,821, which had been received at the Commission’s
Secretariat on June 27, 1997.
2. The Commission submitted the application for the Court to decide whether the
State has violated Articles 25 (Right to Judicial Protection), 8 (Right to a Fair Trial)
and 1(1) (Obligation to Respect Rights) of the Convention, to the detriment of
certain former residents of Moiwana Village (infra paragraphs 71-74 and 86(17) for
the identification of the alleged victims). Furthermore, the Commission requested
that the Court order the State to adopt several monetary and non-monetary
reparations measures, as well as to pay the legal costs and fees incurred during both
the domestic and international proceedings of the instant case.
3. According to the Commission, on November 29, 1986, members of the armed
forces of Suriname attacked the N’djuka Maroon village of Moiwana. State agents
allegedly massacred over 40 men, women and children, and razed the village to the
ground. Those who escaped the attack supposedly fled into the surrounding forest,
and then into exile or internal displacement. Furthermore, as of the date of the
application, there allegedly had not been an adequate investigation of the massacre,
no one had been prosecuted or punished and the survivors remained displaced from
their lands; in consequence, they have been supposedly unable to return to their
traditional way of life. Thus, the Commission stated that, while the attack itself
predated Suriname’s ratification of the American Convention and its recognition of
the Court’s jurisdiction, the alleged denial of justice and displacement of the Moiwana
community occurring subsequent to the attack comprise the subject matter of the
application.
II
JURISDICTION
4. Suriname has been a State Party to the American Convention since November
12, 1987. On that same date, Suriname also recognized the Court’s jurisdiction as
binding. The State has alleged in its preliminary objections that the Court lacks
competence to hear the instant case (infra paragraphs 34, 45, 52, 60 and 65).
Therefore, the Court shall first decide the preliminary objections submitted by
Suriname; subsequently, if justified in law, the Tribunal will proceed to rule on the
merits and reparations requested in the present case.
III
PROCEEDINGS BEFORE THE COMMISSION
5. On June 27, 1997 the human rights organization Moiwana ’86 filed a petition
before the Inter-American Commission.
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6. On March 7, 2000, during its 106th Regular Period of Sessions, the
Commission approved Admissibility Report No. 26/00, in which it decided, inter alia,
that the claims with respect to Articles 25, 8 and 1(1) of the American Convention
were admissible.
7. On February 28, 2002, during its 114th Regular Period of Sessions, the
Commission approved Report No. 35/02 on the merits of the case, in which it made
the following recommendations to the State:
1. That the State of Suriname open a serious, impartial, and effective
investigation into the facts so that an official report can be produced
on the circumstances surrounding the Moiwana massacre and [so that
the perpetrators may be] duly tried and punished.
2. That the necessary steps be taken to complete, as soon as possible
and in absolute conformity with [the] law, the judicial and
administrative proceedings concerning all the persons involved in the
violations cited in the […] conclusions [of Report No. 35/02], in order
to investigate, prosecute and duly punish the responsible persons.
3. That the State of Suriname repair the consequences of these violations
of rights to the victims, their families, and rightful claimants who have
been prejudiced by the aforesaid violations of rights, [whose]
reparation is to be based on the concept of family established by the
Inter-American Court of Human Rights.
4. That the State of Suriname take necessary legislative and judicial
measures to repeal [and] nullify the Amnesty law for this case, in so
far as it allows for impunity for human rights violations, and crimes
against humanity.
8. By the communication dated March 21, 2002, the Commission transmitted
Report No. 35/02 to the State, with the request that the State report, within two
months from the date of transmission, on the measures adopted in fulfillment of the
recommendations contained therein.
9. By the communication of the same date, the Commission informed the
petitioners that it had approved Report No. 35/02 and requested that they provide
information pursuant to Article 43(3) of the Commission’s Rules of Procedure,
regarding the petitioners’ position with respect to a possible referral of the case to
the Inter-American Court. The petitioners complied with this request on April 20,
2002.
10. On May 20, 2002, the State submitted a communication contesting both the
admissibility of the case and the Commission’s decisions in Report No. 35/02.
11. After unsuccessful efforts to facilitate the State’s compliance with its
recommendations, and having taken into account the views of the petitioners on the
matter, the Commission decided to refer the case to the Inter-American Court.
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IV
PROCEEDINGS BEFORE THE COURT
12. On December 20, 2002, the Commission submitted the application to the
Court, which included documentary evidence and offered testimonial evidence (supra
paragraph 1). The Commission appointed Clare Kamau Roberts and Santiago A.
Canton as delegates, and Ariel Dulitzky as legal advisor. Following the preliminary
review of the application by the President of the Court (hereinafter “the President”),
the Secretariat of the Court (hereinafter “the Secretariat”) notified Suriname of the
application on January 17, 2003, and informed the State of the time limits for
answering the application and for appointing its representation in the proceeding.
Furthermore, the Secretariat, following instructions of the President, advised the
State of its right to appoint a Judge ad hoc to take part in the consideration of the
case. By the communications dated January 9, 2003, the Secretariat, pursuant to
Article 35(1)(d) of the Rules of Procedure, notified Maytrie Kuldip-Singh of Moiwana
’86 of the application. By the communications of the same date, the Secretariat,
pursuant to Article 35(1)(e) of the Rules of Procedure, notified Maytrie Kuldip-Singh,
Julie Ann Fishel, Fergus Mackay and Martin Misiedjan (hereinafter “the
representatives”) of the application. On March 3, 2003, the State appointed
Soebhascandre Punwasi as Agent and Armand van der Saan as Deputy Agent.
13. On March 6, 2003, the State appointed Freddy Kruisland as Judge ad hoc for
the present case.
14. After having been granted an extension, on May 1, 2003 the State submitted
its answer to the application, in which it also filed preliminary objections and
documentary evidence.
15. Upon a request for information presented by the representatives on May 23,
2003, the Secretariat responded on May 26, 2003 that the deadline for submitting
their brief containing pleadings, motions and evidence had expired on February 17,
2003.
16. On February 24, 2004, Harvard Law Student Advocates for Human Rights and
the Global Justice Center jointly submitted an amici curiae brief.
17. On May 26, 2004, the Inter-American Commission submitted a brief in
response to the preliminary objections filed by the State (supra paragraph 14).
18. On August 5, 2004, the President issued an Order, in which he requested,
pursuant to Article 47(3) of the Rules of Procedure, that Thomas S. Polimé, who was
proposed as an expert witness by the Commission, render his testimony by affidavit.
According to the terms of the Order, the affidavit was to be sent to the Court by
August 23, 2004, and subsequently was to be transmitted to the State and to the
representatives, to permit the submission of any pertinent observations.
Furthermore, the President convened the Commission, the representatives and the
State to a public hearing that would take place at the seat of the Court on
September 9, 2004, in order to hear their final oral arguments on preliminary
objections, possible merits, reparations and costs, as well as testimony from the
witnesses and expert witness indicated below (infra paragraph 21). Finally, the
President required the Commission, the representatives and the State to submit their
final written arguments on preliminary objections, possible merits, reparations and
costs no later than October 11, 2004.
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19. On August 23, 2004, the President issued another Order in which he decided
to hear testimony during the September 9, 2004 public hearing from two additional
witnesses and a different expert witness, as indicated below (infra paragraph 21).
20. On the same date, the Commission submitted Thomas S. Polimé’s affidavit to
the Court. Although it was transmitted to the State and the representatives on
August 25, 2004, neither party presented any observations on Mr. Polimé’s affidavit.
21. On September 9, 2004, at the public hearing on preliminary objections,
possible merits, reparations and costs, the Court heard testimony from the witnesses
and expert witness proposed by the Inter-American Commission, as well as the final
oral arguments on preliminary objections, possible merits, reparations and costs
from the Commission, the representatives and the State.
Appearing before the Court:
for the Inter-American Commission:
Elizabeth Abi-Mershed, advisor;
Víctor Hugo Madrigal, advisor; and
Lilly Ching, advisor;
for the representatives of the alleged victims:
Mariska Muskiet, Director, Moiwana ’86; and
Fergus MacKay, Coordinator, Forest Peoples Programme;
for the State of Suriname:
Soebaschandre Punwasi, Agent;
Eric Rudge, advisor;
Margo Waterval, advisor;
Lydia Ravenberg, advisor;
Henry MacDonald, advisor; and
Monique Pool, interpreter;
witnesses proposed by the Inter-American Commission:
Stanley Rensch;
Erwin Willemdam;
Antonia Difienjo; and
Andre Ajintoena;
expert witness proposed by the Inter-American Commission:
Kenneth M. Bilby.
22. On October 8, 2004, the representatives submitted their final written
arguments on preliminary objections, possible merits, reparations and costs.
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23. On October 11, 2004, both the State and the Commission submitted their
final written arguments on preliminary objections, possible merits, reparations and
costs.
24. On January 14, 2005, the State submitted a copy “of the recent modification
of the Criminal Code of the Republic of Suriname,” with regard to the extension of
the statute of limitation for certain defined crimes.
25. On February 17, 2005, following the President’s instructions and pursuant to
Article 45 of the Rules of Procedure, the parties were requested to submit additional
information to the Court no later than March 17, 2005.
26. On March 15, 2005, the representatives submitted documentation pursuant to
Article 45 of the Rules of Procedure. Furthermore, the representatives requested an
extension of 20 days in order to supplement the information presented. Following
the instructions of the President, an extension was granted until April 6, 2005.
27. On March 17, 2005, Suriname submitted information pursuant to Article 45 of
the Rules of Procedure. On that same day, the Commission also responded to the
President’s aforementioned request (supra paragraph 25). In its communication, the
Commission indicated, inter alia, that it had received “information concerning the
identification of four additional victims of the attack on Moiwana Village.”
28. On April 14, 2005, Mr. F. Kruisland and the parties to the instant case were
notified of the Order issued by the Court on March 15, 2005, by which Mr. Kruisland
was ordered to “demit the post of ad hoc judge in the Case of Moiwana Village v.
Suriname,” owing to “his [previous] participation in legal proceedings that have a
direct connection with significant facts and issues before the Court in the instant
case.” In said Order, the Court observed that its decision to dismiss Mr. Kruisland
from the present case “[did] not signify that he in fact lacks independence or
impartiality regarding the matters in question, nor [did] it express any form of
reprimand or criticism on the part of the Tribunal.”
29. On April 15, 2005, Mr. Kruisland “demit[ted] as ad hoc judge of the Court [in
the instant case], effective immediately.”
30. On April 25, 2005, the representatives submitted additional documentation in
response to the President’s request (supra paragraph 25) pursuant to Article 45 of
the Rules of Procedure. Said information contained the names of seven individuals
who previously had not been designated alleged victims in the present case.
31. On May 12, 2005, the representatives advised, inter alia, that they were
“unable to obtain any further documentation concerning [alleged] victims beyond
that which has already been transmitted previously to the Court.”
32. On May 13, 2005, following the President’s instructions, the Secretariat
invited the parties of the case to submit observations on the information and
documentation presented before the Court in response to the President’s request of
February 17, 2005, made pursuant to Article 45 of the Rules of Procedure. The
Secretariat indicated that, if the parties chose to submit said observations, they were
to be received by May 20, 2005.
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33. On May 20, 2005, the Inter-American Commission submitted observations on
the information and documentation presented before the Court in response to the
President’s request of February 17, 2005, made pursuant to Article 45 of the Rules of
Procedure.
V
PRELIMINARY OBJECTIONS
FIRST PRELIMINARY OBJECTION
The Court lacks jurisdiction ratione temporis because the American Convention
does not apply to the Republic of Suriname in the present case
Arguments of the State
34. The State has argued that the Court lacks jurisdiction ratione temporis to
hear the present case on the basis of the following:
a) the Commission has made a distinction between two categories of
alleged human rights violations: i) alleged violations which took place before
November 12, 1987, regarding Articles I, VII, IX, XXIII of the American
Declaration of the Rights and Duties of Man; and ii) alleged violations of a
continuous nature occurring after November 12, 1987, regarding Articles 1, 8
and 25 of the American Convention. These are “two clearly distinctive
categories” of violations and thus should have been processed separately;
b) a “Convention State” is an OAS member state that is a party to the
American Convention. The Commission wrongly treated Suriname as a
“Convention State” for the entire case, applying the Convention to the State
ex post facto;
c) events taking place at Moiwana Village on November 29, 1986, when
Suriname was not yet a “Convention State,” would not constitute violations of
Convention norms, “but perhaps a violation of the standards laid down in the
Declaration.” Since the facts in question occurred before Suriname became a
State Party to the Convention, the petitioners did not present the Commission
with evidence of violations of that treaty;
d) the Commission, then, should have dismissed the petition for failing to
state facts tending to establish a violation under the Convention, as required
under Article 47(b) of the American Convention;
e) the Court only recognizes the possibility that forced disappearances,
which are not at issue in the present case, may constitute continuing
violations. The concept of the continuing violation, as applied to the alleged
violations of the American Convention in the instant case, is “extreme,
exceptional and against general accepted principles of international law”; and
f) since Convention standards have never been violated, it would be
impossible to have continuing violations of that treaty, as alleged by the
Commission. Furthermore, in its merits report the Commission never
8
declared a violation of Article XVIII of the Declaration; thus, it could not
conclude that a violation of Articles 8 and 25 of the Convention took place.
Arguments of the Commission
35. With regard to the State’s preliminary objection concerning the Tribunal’s lack
of jurisdiction ratione temporis, the Inter-American Commission contended that:
a) this objection to admissibility is “extemporaneous”; it was not until
after the Commission adopted Merits Report No. 35/02 that the State
contested the American Convention’s applicability to the present case;
b) because the State raised its admissibility challenges outside of the
procedural opportunities provided to the parties litigating before the
Commission, the petitioners had no opportunity to respond within the context
of those proceedings;
c) if the State is arguing that the Commission should have adopted two
separate sets of admissibility and merits reports – one concerning claims
under the Declaration and the other concerning claims under the Convention
– it cites no legal support for such a position. Neither the Convention, nor the
Commission’s Statute or Rules of Procedure require such a process, and the
principle of procedural economy weighs against it;
d) while the State contends that it has effectively been treated as a State
Party to the Convention with respect to the entirety of the claims presented in
the present case, both the admissibility and merits reports demonstrate that
only claims relating to the alleged ongoing denial of justice were addressed
under the American Convention. The claims involving the alleged attack and
related violations completed on November 29, 1986 were dealt with only
under the American Declaration;
e) the Commission is not requesting that the Court apply legal norms or
jurisdiction retroactively; the Court has full jurisdiction over all acts and
omissions subsequent to November 12, 1987; and
f) to the extent that the State wishes to controvert the factual and legal
basis upon which the Commission grounded its Merits Report No. 35/02 and
its subsequent application before the Court, those are issues that should be
addressed at the merits phase of the proceedings.
Arguments of the representatives
36. The representatives argued in relation to the State’s ratione temporis
preliminary objection that:
a) the violations alleged before the Court either took place subsequent to
Suriname’s ratification of the American Convention and acceptance of the
Court’s jurisdiction or are of a continuing nature;
b) the denial of justice alleged in this case is specifically linked to
Suriname’s acts and omissions occurring in 1989, 1992, 1993, 1995 and
1997, and continues to the present day;
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c) the alleged violation of Article 2 of the American Convention is related
to acts and omissions occurring in 1992, when the “Amnesty Act 1989” was
enacted, and in 1993, when State agents allegedly invoked the “Amnesty Act
1989” as grounds for discontinuing the preliminary investigation into the
massacre at Moiwana Village;
d) the alleged violations of Article 5 of the Convention are associated with
the massacre itself and are of a continuing nature, “and are also distinct and
cumulative violations connected with the denial of justice and other acts and
omissions that post-date the State’s acceptance of the Court’s jurisdiction”;
e) the alleged violation of Article 21 of the American Convention is of a
continuing nature and therefore attributable to Suriname subsequent to its
acceptance of the Court’s jurisdiction; and
f) whereas the alleged violations that were completed on November 29,
1986 are not before the Court, the massacre constitutes a grave and
systematic violation of a series of fundamental norms of international law that
are nonetheless highly relevant to determining the nature and extent of
Suriname’s responsibility for the denial of justice under the American
Convention, as well as the nature and extent of the measures required to
remedy those violations.
The Court’s Assessment
37. The State’s central defense in the case sub judice consists in its rejection of
the Court’s ratione temporis jurisdiction. Suriname contends that the violations
alleged by the Commission and the representatives originate in events that occurred
in November of 1986, one year prior to its accession to the American Convention and
its recognition of the Court’s jurisdiction. According to the State, therefore, the
terms of its international responsibility during 1986 would be defined exclusively by
the American Declaration, thus prohibiting the Court from exercising jurisdiction in
the instant case. Similarly, the State maintains that any violation declared by the
Tribunal with regard to the facts at issue would necessarily require an ex post facto
application of the Convention.
38. As indicated previously, on November 12, 1987 Suriname recognized the
competence of the Court (supra paragraph 4), pursuant to Article 62 of the
Convention, without any express limitations. Thus, the State recognized as binding
and as not requiring any special agreement the Court’s jurisdiction on all matters
relating to the interpretation and application of the Convention. In light of the
nature of the present preliminary objection, it is necessary to refer to Article 28 of
the Vienna Convention on the Law of Treaties of 1969,1 which provides:
[u]nless a different intention appears from the treaty or is otherwise
established, its provisions do not bind a party in relation to any act or fact
1 Cf. Case of the Serrano-Cruz Sisters. Preliminary Objections. Judgment of November 23, 2004.
Series C No. 118, para. 64; Case of Alfonso Martín del Campo-Dodd. Preliminary Objections. Judgment of
September 3, 2004. Series C No. 113, para. 68; and Case of Cantos. Preliminary Objections. Judgment of
September 7, 2001. Series C No. 85, para. 35.
10
which took place or any situation which ceased to exist before the date of the
entry into force of the treaty with respect to that party.
39. According to this principle of non-retroactivity, in the case of a continuing or
permanent violation, which begins before the acceptance of the Court’s jurisdiction
and persists even after that acceptance, the Tribunal is competent to examine the
actions and omissions occurring subsequent to the recognition of jurisdiction, as well
as their respective effects.2
40. The Commission has maintained throughout the present proceeding that the
only violations which it attributes to Suriname before this Tribunal relate to “a series
of acts and omissions,” starting from the date of the State’s acceptance of the
Court’s jurisdiction, which has allegedly caused an ongoing denial of justice in
violation of the terms of Articles 8, 25 and 1(1) of the American Convention. In its
various submissions before the Court, the Commission has referred to several
examples of “individual, autonomous violations of the State’s obligations under the
Convention,” all of which have allegedly occurred subsequent to Suriname’s
accession to the Convention and recognition of the Court’s jurisdiction.
41. These supposed State violations are based upon, inter alia, the following
alleged facts cited by the Commission: the failure until 1989 to initiate an ex officio
investigation into the November 29, 1986 occurrences at Moiwana Village; the
army’s forceful releasing of suspects in police custody in 1989; the 1990 murder of
the police officer in charge of the Moiwana investigation and, as a consequence, a
suspension of further official inquiries; and the additional “chilling effect” upon the
investigation brought about by the 1992 enactment of an amnesty law.
42. For their part, the representatives argued that “[t]he denial of justice alleged
in this case is specifically linked to Suriname’s acts and omissions occurring in 1989,
1992, 1993, 1995 and 1996-97 and continues to the present day.” Furthermore,
they have alleged other State violations of the Convention, in addition to those
associated with Articles 8, 25 and 1(1), which also purportedly took place following
Suriname’s recognition of the Court’s jurisdiction, such as alleged violations of
Articles 5 and 21 of the Convention.
43. In the case sub judice, the Court distinguishes between alleged violations of
the American Convention that are of a continuing nature, and those that occurred
after November 12, 1987. With respect to the former, the Tribunal observes that the
perpetration of a massacre in 1986 has been alleged; in consequence, an obligation
arose for the State to investigate, prosecute and punish the responsible parties. In
that regard, Suriname initiated an investigation in 1989. Yet, the State’s obligation
to investigate can be assessed by the Court starting from the date when Suriname
recognized the Tribunal’s competence. Thus, an analysis of the State’s actions and
omissions with respect to that investigation, in light of Articles 8, 25 and 1.1 of the
Convention, falls within the jurisdiction of this Court. On the other hand, it has been
argued that the alleged victims were forcefully displaced from their ancestral lands.
Although this displacement supposedly occurred in 1986, their inability to return to
those territories has allegedly continued. The Court, then, has competence to rule
upon these alleged facts and their legal implications. Finally, with regard to the
2 Cf. Case of the Serrano-Cruz Sisters. Preliminary Objections, supra note 1, para. 67; Case of
Alfonso Martín del Campo Dodd. Preliminary Objections, supra note 1, para. 79; and Case of Blake.
Preliminary Objections. Judgment of July 2, 1996. Series C No. 27, paras. 39 and 40.
11
alleged violations that took place subsequent to November 12, 1987, which need not
be specified here, it is clear that they fall within the Inter-American Court’s
jurisdiction.
44. Consequently, the instant preliminary objection is dismissed on the grounds
set out above.
SECOND PRELIMINARY OBJECTION
The petitioners failed to exhaust domestic remedies as required by the
American Convention and the Inter-American Commission’s Rules of Procedure
Arguments of the State
45. The State argued the following regarding the non-exhaustion of domestic
remedies:
a) although specific remedies that apply to this case exist in Suriname,
the petitioners have neglected to invoke and/or exhaust them. Furthermore,
the petitioner has the burden of proof to show that specific remedies were
exhausted or that they fall within the exception established in Article 37(2) of
the Commission’s Rules of Procedure;
b) Suriname has not waived its right to argue non-exhaustion of domestic
remedies as grounds for inadmissibility; in May 2002, the State acted in a
timely fashion regarding this issue;
c) adequate and effective local remedies are provided for in the State’s
Civil Code, its Code of Civil Procedure and its Code of Criminal Procedure;
d) in the instant case, the petitioner had the opportunity to commence
criminal proceedings and a civil action on the basis of the alleged violations;
e) pursuant to Article 1386 of the Civil Code, the State can be sued for
damages caused by its wrongful acts. This would have been the most
effective legal remedy in Suriname to obtain compensation; however, the
petitioners did not litigate under Article 1386; they only opted for the criminal
prosecution of those responsible;
f) the Commission has not acknowledged that a civil action was in fact
available and that the petitioners did not exhaust this remedy; nor did it show
how the said civil remedy was not effective; and
g) the petitioners cannot argue that they have been denied access to the
national judicial authorities; a delay in the legal process cannot be alleged
either, since the petitioners did not make use of the range of domestic legal
remedies available.
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Arguments of the Commission
46. Regarding the alleged non-exhaustion of domestic remedies, the Commission
contended that:
a) the State did not reply to reiterated requests from the Commission for
information and never challenged the admissibility of the claims during the
appropriate procedural opportunity. Thus, Suriname tacitly waived its right to
object to noncompliance with such requirements as exhaustion of domestic
remedies under Article 46 of the Convention, and is now estopped from
objecting in this regard;
b) the Commission expressly informed the State that its failure to
respond to its requests for information would permit the Commission to
presume, pursuant to Article 42 of its then-applicable Rules of Procedure, that
the denounced facts were true, in the absence of evidence to the contrary;
c) in its Admissibility Report No. 26/00, the Commission considered the
State’s silence to be an implicit waiver of its right to argue non-exhaustion of
domestic remedies;
d) the requirement that claimants exhaust domestic remedies is not to
impose unjustified procedural obstacles, but rather to ensure that the State
has been made aware of the claims prior to being summoned before an
international mechanism of supervision. When it is not possible for claimants
to exhaust such remedies as a matter of fact or law, the requirement is
“consequently and necessarily excused”;
e) a civil action for damages might be appropriate for a private or civil
wrong between two parties, or in certain cases for the breach of a noncontractual
obligation by the State, but it does not represent an adequate and
effective remedy in response to actions that may constitute serious crimes
under Suriname’s domestic law;
f) the remedy suitable to address the rights violations in the present case
is a criminal investigation devised to identify, prosecute and punish those
responsible. Such crimes are subject to ex officio prosecution;
g) the remedies that should have been provided by the State through its
criminal justice system have been affected by “evident undue delay”;
h) by the time the application was submitted to the Court, more than 16
years had passed since the events that gave rise to the present case, and no
one had been prosecuted or punished for the human rights violations. In this
way, the victims have been denied effective judicial protection and
guarantees; and
i) the delay and denial of justice in this case provide the application’s
very basis: “[t]he case itself demonstrates that domestic remedies have been
neither available nor effective for the residents of Moiwana Village.”
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Arguments of the representatives
47. The representatives argued that “[t]he testimony and other evidence
presented to the Court demonstrate that the [alleged] victims actively and
repeatedly sought recourse in Suriname.” According to the representatives, “[t]hese
attempts to obtain justice were ignored, rebuffed and even chastised by Suriname
and produced no result.”
The Court’s Assessment
48. Article 46(1)(a) of the American Convention provides that, in order for a
petition or communication submitted to the Inter-American Commission pursuant to
Articles 44 or 45 of the Convention to be admissible, it is necessary that the
remedies under domestic law have been pursued and exhausted.
49. On this matter, the Court has already established clear criteria. To begin, of
the generally-recognized principles of international law regarding the rule on
exhaustion of domestic remedies, the foremost is that the defendant State may
expressly or tacitly waive invocation of this rule.3 Secondly, in order to be
considered timely, the objection that domestic remedies have not been exhausted
should be raised during the first stages of the proceeding; otherwise, it will be
presumed that the interested State has tacitly waived its use.4 Finally, the State
that alleges non-exhaustion of domestic remedies must indicate which remedies
should have been exhausted, as well as provide evidence of their effectiveness.5
50. In the instant case, the State disputes that it has waived its right to argue
non-exhaustion of domestic remedies. Indeed, Suriname maintains that its first
objection on the subject, presented in a May 20, 2002 pleading submitted to the
Inter-American Commission, was made in a timely fashion. However, as the
Commission has repeatedly pointed out, and as is unmistakable from the record,
Suriname’s first response on the matter was not presented until after the
Commission had issued both its Admissibility Report of March 7, 2000, and its Merits
Report of February 28, 2002 in the present case.
51. Thus, as a consequence of not challenging this issue in a timely fashion, the
Court concludes that the State tacitly waived its right to object in this regard, and,
therefore, dismisses the instant preliminary objection.
3 Cf. Case of the Mayagna (Sumo) Awas Tingni Community. Preliminary Objections. Judgment of
February 1, 2000. Series C No. 66, para. 53; Case of Loayza-Tamayo. Preliminary Objections. Judgment
of January 31, 1996. Series C No. 25, para. 40; and Case of Castillo-Páez. Preliminary Objections.
Judgment of January 30, 1996. Series C No. 24, para. 40.
4 Cf. Case of the Mayagna (Sumo) Awas Tingni Community. Preliminary Objections, supra note 3,
para. 53; Case of Castillo-Petruzzi. Preliminary Objections. Judgment of September 4, 1998. Series C No.
41, para. 56; and Case of Loayza-Tamayo. Preliminary Objections, supra note 3, para. 40.
5 Cf. Case of the Mayagna (Sumo) Awas Tingni Community. Preliminary Objections, supra note 3,
para. 53; Case of Durand and Ugarte. Preliminary Objections. Judgment of May 28, 1999. Series C No. 50,
para. 33; and Case of Cantoral-Benavides. Preliminary Objections. Judgment of September 3, 1998.
Series C No. 40, para. 31.
14
THIRD PRELIMINARY OBJECTION
Owing to the Commission’s late submission of the application, the Court’s
jurisdiction is barred, according to the terms of Article 51(1) of the Convention
Arguments of the State
52. The State submitted the following arguments with regard to Article 51(1) of
the Convention:
a) the Commission clearly exceeded the time limit of three months
provided for in the Convention to submit the application to the Court;
b) the relevant provisions of the Convention have not been observed,
since in the present case “the Commission should have adopted an Article 51
report”; and
c) the Commission submitted the case to the Court on the last day the
State was able to respond to the Merits Report No. 35/02.
Arguments of the Commission
53. The Commission argued the following with regard to the present preliminary
objection:
a) the instant case was submitted in accordance with the applicable
norms and practices;
b) in June and then August of 2002 the State requested extensions of the
applicable deadline, and expressly recognized that “if the suspension is
granted, […] once the […] suspension has expired and no settlement of the
case has been reached, the Commission may decide to submit the case to the
Inter-American Court”; and
c) an extension, when requested by the State, benefits the State by
providing it with additional time to resolve a matter prior to its submission
before the Court. Suriname cannot request and accept a benefit, and then
invoke it as a procedural violation.
Arguments of the representatives
54. The representatives did not submit arguments related to the instant
preliminary objection.
The Court’s Assessment
55. The Court will now turn to examine whether the Commission in the instant
case submitted the application to this Tribunal in a timely fashion, according to the
terms of Article 51(1) of the Convention.
56. Both the State and the Commission are in agreement that, after the
transmission of the Merits Report No. 35/02 to the former, Suriname requested two
extensions of the time limit provided for in Article 51(1) of the Convention, which
15
regulates the submission of matters to this Court. Suriname’s first request, on June
20, 2002, for an extension of the Article 51(1) time limit – which, at that point in the
proceedings, was scheduled to expire on June 21, 2002 – was granted by the
Commission, resulting in an extension of the deadline until August 20, 2002. On
August 20, 2002, the State requested an additional four months, “primarily […] to
continue with the detailed investigation of the matter”; as a result, on August 20,
2002, the Commission revised the time limit again, and communicated to Suriname
that it would accordingly expire on December 20, 2002. The Commission states that
subsequently, “in the absence of substantive developments” regarding the State’s
investigation of the facts and the settlement of the case, it decided to submit the
application to the Court on the day the second extension expired, that is, December
20, 2002.
57. The Court has already established that the extension of the three-month time
period stipulated in Article 51(1) of the Convention is permissible, provided that it is,
of course, carried out within a context of procedural fairness.6 In the instant case,
the conditions regarding the two extensions were explicitly acknowledged by both
the Commission and the State. Indeed, during both occasions the State expressly
recognized that “if the suspension is granted, […] once the […] suspension has
expired and no settlement of the case has been reached, the Commission may
decide to submit the case to the Inter-American Court.” Furthermore, the Tribunal
notes that the Commission honored the terms of its agreement with the State, by
not submitting the application to the Court until the second extension actually
expired on December 20, 2002.
58. Moreover, in accordance with international legal practice, when a party to a
case adopts a position that is either beneficial to it or detrimental to the other party,
it cannot subsequently, in virtue of the principle of estoppel, assume a contradictory
position. In that regard, the rule of non concedit venire contra factum proprium
applies.7
59. For the foregoing reasons, the Court rejects the instant preliminary objection.
FOURTH PRELIMINARY OBJECTION
In its Merits Report No. 35/02, the Commission “concluded
other violations than those for which the case was admitted”
Arguments of the State
60. Regarding the fourth preliminary objection, Suriname has argued that in the
Merits Report No. 35/02, the Commission concluded that certain violations of the
American Declaration were committed, despite the fact that the petitioners did not
originally allege those violations. Thus, the Commission declared other violations
than those for which the case was admitted, “contrary to international law” and to
the detriment of the State’s defense.
6 Cf. Case of Cayara. Preliminary Objections. Judgment of February 3, 1993. Series C No. 14, para.
38; and Case of Neira-Alegría et al. Preliminary Objections. Judgment of December 11, 1991. Series C No.
13, para. 34.
7 Cf. Case of Neira-Alegría et al. Preliminary Objections, supra note 6, para. 29.
16
Arguments of the Commission
61. Regarding the fourth preliminary objection, the Commission argued that:
a) only the alleged violations of the rights enshrined in Articles 25, 8 and
1(1) of the American Convention are before the Court in the present case;
b) the claims before the Court were admitted and reviewed by the
Commission pursuant to the applicable norms and procedures;
c) it is neither presumed nor required that petitioners must be versed in
law in proceedings before the Commission; and
d) the fact that a petitioner does not specifically allege a particular
violation does not preclude either the Commission or the Court from
considering it on its own, in accordance with the principle of iura novit curia.
Arguments of the representatives
62. The representatives did not submit arguments concerning the fourth
preliminary objection.
The Court’s Assessment
63. The Tribunal affirms that, pursuant to Article 62 of the American Convention,
its jurisdiction concerns the interpretation and application of the provisions of that
Convention. Consequently, although the Court generally takes into consideration the
provisions of the American Declaration in its interpretation of the American
Convention, the Commission’s conclusions regarding specific violations of the
American Declaration do not pertain to the instant proceedings.8 Furthermore, the
Commission’s assessment with respect to alleged violations of the American
Convention is not binding upon the Court.
64. Therefore, the Court dismisses the State’s fourth preliminary objection.
FIFTH PRELIMINARY OBJECTION
The Commission “neglected to send all pertinent parts of the petition
to the State, as intended in Article 42 of its Rules of Procedure”
Arguments of the State
65. With respect to the fifth preliminary objection, the State contends that the
Court lacks jurisdiction in this case because the Commission neglected to send “all
pertinent parts” of the petition – namely, “a number of attachments” – to the State,
“as intended in Article 42 of its Regulations.” Furthermore, the State considered that
said attachments are of the “utmost importance” in deciding the instant case, and,
as a result, its defense was compromised.
8 Cf. Article 29 of the American Convention on Human Rights; and Interpretation of the American
Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American
Convention on Human Rights. Advisory Opinion OC-10/89 of July 14, 1989. Series A No. 10, para. 36.
17
Arguments of the Commission
66. With regard to the fifth preliminary objection, the Commission stated that it
failed to understand which would be the “pertinent parts” that were not transmitted
to the State. On the other hand, given that the State declined to respond to multiple
requests for information from the Commission, and that it did not challenge the
admissibility or the merits of the claims raised until after Merits Report No. 35/02,
the Commission cannot perceive how the State’s right to defense was compromised.
Arguments of the representatives
67. The representatives did not submit arguments concerning the fifth preliminary
objection.
The Court’s Assessment
68. With regard to the fifth and final preliminary objection, the Court finds it
necessary to indicate that, as discussed above (supra paragraph 50), Suriname
initially participated in the proceedings before the Commission by submitting a
substantive brief in May 2002, which not only was presented well after the
Commission’s several requests for information, but also subsequent to the issuing of
the Admissibility Report of March 7, 2000 and the Merits Report of February 28,
2002. Thus, the Tribunal deems Suriname’s preliminary objection regarding the
Commission’s alleged failure to transmit “the pertinent parts of the petition” to the
State to be improper. Having chosen not to exercise its right to defense during the
appropriate procedural opportunities before the Commission, Suriname may not raise
said objection now, before this Court.
69. For the aforementioned reason, the Tribunal rejects the State’s fifth
preliminary objection.
VI
PREVIOUS CONSIDERATIONS
70. The Court has taken into account, as it has done in other judgments, certain
facts that occurred before the State’s recognition of the Court’s jurisdiction.9 This
was done only to place into the proper context those alleged violations over which
the Tribunal actually exercises jurisdiction. The Court emphasizes, as stated
previously (supra paragraph 43), that it is only competent to declare violations of the
American Convention with regard to actions or omissions that have taken place
following the date of recognition of the Tribunal’s jurisdiction and with respect to any
situations which have not ceased to exist by that date.
*
* *
71. At this juncture, the Tribunal deems it necessary to identify clearly the alleged
victims of the instant case. The alleged victims are those persons individualized in
9 Cf. Case of the Serrano-Cruz Sisters. Judgment of March 1st., 2005. Series C No. 120, para. 27.
18
the application, who are described as: a) the survivors of the events of November
29, 1986 in Moiwana Village, and b) the next of kin of those who were killed that
day. It is observed that Suriname found the method applied by the Inter-American
Commission to determine the list of alleged victims “open to question.” However,
since the State did not explain the reasons why the Commission’s method was
supposedly unacceptable, the Court considers that the objection must be dismissed
as imprecise and lacking adequate justification. In consequence, said individuals will
be deemed to be the alleged victims of the instant case, and shall hereinafter be
referred to as the “alleged victims” or the “Moiwana community members.”
72. The Court notes that on March 17, 2005, the Commission requested that the
Tribunal consider four additional persons as victims in the instant case: Beata
Misidjan, Edmundo Misidjan, Ludwig Misidjan, and Reguillio Misidjan. In support of
its request, the Commission argued that such an inclusion was justified, as the
mother of those four persons, Mado Misidjan, was allegedly killed during the 1986
attack on Moiwana Village. As a result, her children were dispersed within Suriname
after the attack, lived with persons who had no contact with the other alleged
victims, and only recently have been located. The representatives agreed with the
Commission, adding that said individuals were present when the attack occurred and
were originally included in the “requests for justice” that were presented at the
national level. Yet, the representatives stated that “as the larger group of [alleged]
victims was unsure if they had survived the massacre and was not aware of their
whereabouts, they decided not to include them on the list submitted to the
Commission and, ultimately, to the Court.”
73. Furthermore, on May 12, 2005, in their response to a request for evidence
pursuant to Article 45 of the Rules of Procedure, the representatives petitioned that
seven more individuals who had previously not been designated alleged victims in
the present case be added to the list: Majo Ajintoena, Erwien Awese, Cornelly Madzy
James, Humprey James, Romeo James, John James, and Manfika Kamee. The
representatives explained that they had not been included earlier owing to an
“oversight,” which occurred while compiling the original list of alleged victims. For
its part, the Commission “support[ed] the identification of victims put forward by the
petitioners.”
74. Regarding the requests to consider the additional persons as alleged victims,
the Court observes that the State was transmitted both requests and then was
expressly invited to submit observations on said information by the Secretariat’s
communication of May 13, 2005, and yet did not respond on the matter. In
consequence, since the State was duly granted its right of defense on the issue – yet
did not object – the Tribunal rules that it is appropriate to consider the additional 11
individuals as alleged victims in the instant case.
VII
EVIDENCE
75. Before turning to the analysis of the evidence received, in this chapter the
Court, pursuant to Articles 44 and 45 of the Rules of Procedure, will make reference
to certain general considerations applicable to the specific case, which have been
previously developed in the jurisprudence of this Tribunal.
19
76. The principle of the presence of the parties to a dispute applies to evidentiary
matters, and it involves respecting the parties’ right to defense. This principle is
contained in Article 44 of the Rules of Procedure, regarding the time frame in which
the evidence must be submitted, in order to secure equality among the parties.10
77. It is well-settled law and practice that international procedures relating to the
admission and evaluation of evidence are not subject to the same formalities as
domestic judicial procedures. This principle is especially applicable to international
human rights tribunals, which enjoy greater flexibility in assessing the evidence
presented before them, in accordance with the rules of logic and on the basis of
experience. Evidence may be admitted only after careful attention to the
circumstances of the particular case, while bearing in mind the limits imposed by a
proper respect for judicial certainty and procedural equality as between the parties.11
78. Against this background, the Court will proceed to examine and evaluate all of
the elements that comprise the corpus of evidence in the instant case.
A) DOCUMENTARY EVIDENCE
79. Regarding the documentary evidence presented by the parties, pursuant to
the President’s Order of August 5, 2004 (supra paragraph 18), the Commission
submitted the affidavit of the expert witness Thomas S. Polimé. The Court considers
it appropriate to summarize said affidavit.
a) Expert report of Thomas S. Polimé, anthropologist
Dr. Polimé’s affidavit discussed the following subjects: 1) general information
on the Maroons in Suriname; 2) N’djuka social structure, religious beliefs,
mourning traditions, local government and justice systems; 3) history of
Moiwana Village; 4) events prior to, during and after the attack at Moiwana
Village; 5) the impact of the attack and the subsequent denial of justice; and
6) information relevant to the possible award of reparations in the present
case.
B) TESTIMONIAL EVIDENCE
80. During the public hearing (supra paragraph 21), the Court heard oral
testimony from the witnesses and expert witness proposed by the Commission. The
Court considers it appropriate to summarize these declarations.
a) Stanley Rensch, founder of Moiwana ’86
The massacre of November 29, 1986 was unprecedented; it is one of the
most notorious human rights violations in Suriname. In recognition of its
“systematic,” “grave” and “terrible nature,” they named the human rights
organization Moiwana ‘86 after it. The perpetrators of the attack were
10 Cf. Case of Caesar. Judgment of March 11, 2005. Series C No. 123, para. 41; Case of the
Serrano-Cruz Sisters, supra note 9, para. 31; and Case of Lori Berenson-Mejía. Judgment of November
25, 2004. Series C No. 119, para. 62.
11 Cf. Case of Caesar, supra note 10, para. 42; Case of the Serrano-Cruz Sisters, supra note 9,
para. 33; and Case of Lori Berenson-Mejía, supra note 10, para. 64.
20
organized, trained and armed by state military personnel. It was a
problematic period for eastern Suriname in general; serious violations took
place in that area, which was a major battleground during the internal armed
conflict, and Moiwana ’86 reported those violations to the government. At
one point, the Ministry of Defense publicly stated that the attack at Moiwana
was a military action.
Moiwana ’86 was “very systematic” in requesting that the State investigate
the attack of November 29, 1986. Toward this end, they collected
information, put it into writing and submitted it to government authorities on
a continual basis. Moiwana ’86 as an organization has asked police and
judicial authorities every year at least once to investigate the attack.
Moiwana ’86 also tried to be “as supportive as possible” concerning Inspector
Gooding’s inquiries; Gooding was in charge of the State’s official criminal
investigation. The witness stated that Gooding “found major members of the
team of perpetrators” and remarked that his accomplishments showed that he
was “a very brave man.” As a result of this initial investigation, Orlando
Swedo was detained by the police; yet his release was demanded and
obtained by a fully-armed military unit. The military leader Desire Bouterse
ordered that release; this was known because Bouterse conducted a press
conference once Swedo was freed.
During that meeting with the press, Gooding was warned not to cooperate
with Moiwana ’86. Not long after, Gooding visited the military barracks at
Fort Zeelandia. Upon leaving, his car was stopped; he was then taken out
and shot to death. After Gooding’s death, the police did not continue their
investigation of the Moiwana attack. On the other hand, those responsible for
Gooding’s murder were never prosecuted and the circumstances were never
clarified. Furthermore, many of the investigators that worked with Gooding
had to leave the country because they faced “a life-threatening situation.”
“Even the highest authorities were not able to further investigate” his death.
In 1993, the witness received information about the discovery of human
remains near the village of Moiwana; he was told that the bodies were from
the massacre. He informed the authorities, especially the Attorney General,
who was quick in establishing a committee to look into the matter. After two
sessions – the witness was present during both – remains were uncovered,
which were taken to Paramaribo for further investigation. The witness
learned from the press that the remains of six to nine individuals, including
children, were found. However, the authorities never identified the remains,
and the witness never received information about further steps to investigate
the situation. Moreover, there was a “reactionary statement” in the press
from a government official, alluding to an amnesty law enacted in 1992,
which diminished the hope that the investigation of the Moiwana case could
continue.
In 1995, the Surinamese Parliament called on the Executive to investigate
various human rights violations. However, the witness was unaware of any
subsequent investigation into the Moiwana attack by the legal authorities. In
1996, Moiwana ’86 submitted a formal request to the Attorney General under
the Surinamese Code of Criminal Procedure for an investigation into the
massacre. After receiving no response, they presented a formal request for
21
an investigation to the President of the Court of Justice, who in turn sent the
petition to the Attorney General; nevertheless, no further action was taken.
Moiwana ’86 requested the government to reject the amnesty law that was
adopted in 1992, because they considered it a means to legalize impunity.
The witness also believes that the law itself negatively affected the willingness
of the police to investigate the human rights violations occurring during the
period from 1985 to 1992-93, which are the years covered by that legislation.
Many of those collaborating with Moiwana ’86 received threats and had to
leave the country. The witness himself was arrested four times; furthermore,
there was an attempt made on his life, which obligated him to leave
Suriname. To his knowledge, the assassination attempt was never
investigated by the authorities. Efforts to investigate the Moiwana case have
entailed risks because “there are not that many people in the system who
would like to have this thing […] looked into.” As a result, it was “very
difficult to guarantee anyone safety, to guarantee protection from people you
can’t control.”
Of all the human rights cases that Moiwana ’86 handled during the time that
the witness worked there, he cannot recall a single one that reached the
stage of prosecution and punishment – although the cases taken before the
Inter-American Court, Aloeboetoe and Gangaram Panday, resulted in
compensation for the victims.
The witness has worked with the survivors and next of kin of the attack,
including the refugees in French Guiana, since 1987. The other survivors are
located in Suriname, in the towns of Paramaribo and Moengo. Since that
time, he and others have visited these individuals to do as much as possible
to assist them and to find them a temporary place to stay. Moiwana ’86 has
included representatives of the survivors in its activities: “at least three
members of that group were permanently participating in our activities with
regard to Moiwana.” Furthermore, when the witness and Moiwana ’86
submitted complaints and requests to the judicial authorities for investigation,
it was made clear that they did so on behalf of the survivors.
These complaints and requests have sought criminal investigation, not a civil
action for compensation. This is because the only possibility to investigate
effectively the violations at Moiwana was to appeal to law enforcement
authorities. As a human rights organization, Moiwana ’86 tried to initiate the
criminal investigation by communicating with the appropriate state
institutions, “to help the State with its obligations to defend rights.” Thus,
the Moiwana survivors have not initiated civil proceedings yet; they have only
sought a criminal investigation, after which civil actions may be filed.
Based on his experience, the witness believes that there has been
“insufficient support of the idea, the concept, that the Maroons deserve the
same type of legal protection in the country.” A few days before the hearing,
the representatives of the Moiwana survivors confirmed to the witness that
they wish to return to their village.
22
b) Erwin Willemdam, former Moiwana Village resident
The witness was present at Moiwana Village during the events of November
29, 1986; his wife was killed during the massacre. The attack itself had the
characteristics of a planned military operation, according to the witness, who
had served in the army himself. He judged this by the way the attackers
approached the village and surrounded it. He also heard an order given to
burn down the village huts.
Immediately after the attack, the witness fled to French Guiana. After
spending a year there, he decided to return to Suriname so that his children
could have an education. About this time, he started collaborating with
groups of survivors to seek justice. In the N’djuka culture it is an obligation
to pursue justice; if it is not obtained, “then your life is disturbed; it’s
disrupted, and you can’t continue to live in a proper way.” The two children
the witness had with his deceased wife also participate in these activities to
seek justice, since it is a cultural responsibility that continues through the
generations.
Since the attack, the witness has driven past Moiwana Village, but has never
stopped. He does not know of other community members who have returned
to Moiwana to live. “As long as justice is not served, […] then they cannot go
back to that place to stay.” Since there has been no investigation, the
witness has the feeling that the Moiwana survivors are not treated in the
same way as other Surinamese citizens.
The community members believe that while those who died at Moiwana are
not vindicated, their souls will not be at peace. Furthermore, as long as their
bodies do not receive a proper burial, this will bring negative consequences
upon the living. The witness is fearful of these angry spirits. However, “if
everything is done in a proper way – justice is served and compensation is
granted – then the people can go back and live again in that area.” At this
moment, since “nothing” has been done, the witness would not return.
One of the witness’ greatest sources of suffering is that he does not know
what has happened to his wife’s body. He heard that some corpses from
Moiwana were burned at a particular place in Moengo, the town where he now
lives. Every time he passes by that location he feels very bad about what
happened. “That is one of the worst things that could occur to us, if you burn
the body of someone who died.”
The Moiwana survivors have a committee, which coordinates with Moiwana
’86 on the legal matters associated with the investigation. The witness is not
a member of this committee. The committee wrote letters to the State and
tried to work with the government to advance the investigation. But the
State “never reacted.” For example, the Moiwana survivors were not
informed about the State’s excavation of the human remains in 1993. In this
way, now “there is no interest in cooperation with the government at this
[stage of the proceedings].”
On a personal level, the witness is fearful of taking the case to a judge and
distrusts the State police. One day, a military officer and three police asked
23
him questions in Moengo. Once they had spoken and the officers had taken
notes, the witness requested to see what they had written, but was refused.
Because the witness’ wife was killed unjustly, “it’s not possible to live a
normal life anymore.” He cannot even do the farming that he used to do at
Moiwana. Since “so many of ours died on that land,” and their murders were
“absolutely improper,” the witness believes that the State, in addition to
providing a proper investigation and compensation, should grant the former
residents their right to live in Moiwana Village. “It has to be recognized so
that we can dare to live there and use [the land].”
c) Antonia Difienjo, former Moiwana Village resident
The witness was present at Moiwana Village during the events of November
29, 1986; her father, who was a N’djuka loekoman or basia, her aunt, and
her baby of seven months were all killed during the massacre. Her child was
killed while in her arms.
The attackers spared some of the residents and “gave the order that we
should go.” As a result, the witness recalled that they “had to disappear in
the forest.” Later, the witness and others were found in the jungle and
assisted across the river into French Guiana. There they were placed in
refugee camps in Saffé. At the camps they had to support themselves by
growing produce and selling it. She and others still remain at the camps to
this day. Although they have written the Surinamese government letters,
State officials have not visited the Moiwana survivors in French Guiana.
“They considered us like dogs: you can kill them, you don’t have to pay that
much attention to them.”
At Moiwana, in the N’djuka tradition, women had the right to land and to
farm. The witness believes that this right is necessary, but states that it is
unavailable to them in French Guiana where she lives now: “there I can do
nothing.”
The Moiwana survivors have been unable to recover the bodies of those killed,
and they still do not know where the corpses are located. The witness has
understood that some of the bodies were taken to Moengo. In the N’djuka
culture, however, it is crucial to provide a proper burial – and there are many
ceremonies to perform for the deceased before the actual burial takes place.
Yet nothing can be accomplished without first recovering the remains of the
deceased. If these rituals are not observed, “it will burden all the children,
also be after ourselves.” Many negative consequences are possible for the
next of kin, such as going mad. By not fulfilling the traditional obligations
concerning the dead, “it is if we do not exist on earth.”
Her community has asked the State for justice after the attack, but Suriname
has not “reacted” to the request. “Compared to the others in the country, […]
we do not have the same rights in Suriname.” It is important for the
Moiwana survivors to work for justice together; toward this end, the witness
has collaborated with Andre Ajintoena, the chairman of the Association
Moiwana.
24
The State must right the wrongs that it has committed; it must address the
situation in an appropriate way, “before we can return to normalcy.” Since
the attack, the witness’ life “has been completely disturbed”; she feels that
she has been in the same situation since the events of November 29, 1986.
Furthermore, the community may require assistance to return to Moiwana
Village; she personally has not gone back yet at all. In any event, the
witness is willing to return to live at Moiwana “if everything […] is done
properly” according to tradition, since her current location in French Guiana,
she states, “is not my place.”
The witness never understood the reason for the attack. She stated that “it is
important for me – I would like to know why. […] It is essential to know,
because that is the law […] in the tradition of the N’djuka culture. […] Our
rights have to be observed.” Also with regard to potential reparations, the
witness added that everything which would bring their lives back to normal is
“welcome,” such as compensation and being provided somewhere to live.
d) Andre Ajintoena, former Moiwana Village resident and chairman of
Association Moiwana
The witness was present at Moiwana Village during the events of November
29, 1986; his sisters and their children were killed during the massacre. He
stated that “those killed in Moiwana, one could say, they are all family
members.”
In the N’djuka culture it is “essential” to search for justice when someone dies
in an unjust way. This obligation “to set things straight,” if not fulfilled, will
cause the living as well as the dead to suffer. The witness himself has
established a group dedicated to obtaining justice, Association Moiwana,
which has collaborated with Moiwana ’86 since the attack. In this way, the
survivors first tried, in coordination with Moiwana ’86, to obtain justice using
domestic options; however, as soon as they realized it was not possible on
that level, they decided to appeal to the international recourses available to
them.
Association Moiwana has members in French Guiana as well as in Suriname.
Whenever any important decision is to be taken with regard to the present
case, all of Moiwana’s survivors and next of kin are consulted through the
efforts of the Association. Thus, the Association conducts regular meetings;
in fact, before the public hearing the witness once again met with the
Moiwana survivors and next of kin in French Guiana and Suriname.
The witness and Association Moiwana did all that they could to cooperate with
the Surinamese government, although during Inspector Gooding’s
investigation the internal armed conflict impeded the witness and others from
traveling to Paramaribo to talk with Gooding. In fact, the police have never
taken a statement from the witness regarding the Moiwana case. After the
death of Gooding, many people thought it would not be possible to proceed at
all with the investigation.
With regard to the discovery of bodies near Moiwana in 1993, the government
never informed the survivors about the final results of its exhumation.
Furthermore, the survivors specifically wrote to the State to request an
25
investigation of the massacre, to no avail. Thus, the State has never
conducted a sufficient investigation with regard to the occurrences in Moiwana
and “we don’t know why they didn’t do it.” The witness stated that “our lives
are not valued in the same way by the government in Suriname, since they
do not investigate the problems we have.”
After the attack the witness returned with others to document and take
pictures of the site. Once they had finished, many began feeling ill; they
realized that “things weren’t right, it wasn’t proper, because according to our
culture you can’t go back to the place without having arrangements made.” A
return is only possible “applying the religious [and] cultural rules.” On the
other hand, the survivors need “badly” to live in Moiwana in order “to restore
our life.” At this point, approximately 100 people from Moiwana live in French
Guiana; others live in Suriname along the Marowijne River, or in towns such
as Moengo or Albina.
A young woman survivor, who was only two years old during the attack, is
able to recount what occurred that day in vivid detail because she is
“possessed by those occurrences.” The events of that day “burdened […] the
people of Moiwana very, very, very much.” They “lost everything.” The
witness explains that he needs the support and help of his family members
that were killed. And now, because of the denial of justice they experience,
“it is as if we are dying a second time.”
During the difficult flight out of Suriname after the attack, some of the
Moiwana survivors were injured and subsequently were admitted to hospitals
in French Guiana. The French Guiana authorities, in recognition of their
“degree of suffering” have permitted the Moiwana survivors to remain when
other Surinamese refugees have been repatriated.
With the massacre, “the government destroyed the cultural tradition […] of
the Maroon communities in Moiwana.” As a result, “justice has to be served,”
and the State must recognize responsibility. Furthermore, since the State
cannot give back the lives of those killed, compensation should be arranged.
Finally, in order to return to their land, which belongs to them according to
tradition, the survivors’ safety must be guaranteed.
e) Expert witness: Kenneth M. Bilby, anthropologist
The history of the Eastern Maroons, which includes the N’djuka, Aloekoe and
Saramaka communities, extends back to at least the early 18th Century, when
their ancestors fled from plantations in other parts of coastal Suriname.
Land is for the N’djuka people an embodiment of their collective identity; it
also serves as a repository of their cultural history, as well as the primary
source of their subsistence. Furthermore, in N’djuka society a woman must
have access to land so that she can fulfill her obligations and function
properly within her community.
In order for a N’djuka community to function normally, the members must
have a homeland. Even if they travel elsewhere, there are life rites that must
be performed at their home village, which permits them to continue to
express their continuity as a community. Without a traditional home to
26
return to, the society will disintegrate, because it will be difficult to maintain
its cultural integrity and social obligations.
In response to a death in N’djuka society, a whole series of complex religious
rites and ceremonies are set into motion, which require between six months
and a year to be completely fulfilled. This process is of critical importance
because it is fundamental that the dead are honored properly; as a result, the
rites demand the largest assembling of people and resources for ceremonial
purposes in N’djuka society.
It is extremely important to have possession of the physical remains of the
deceased, since the way the corpse is treated in death ceremonies reflects
how much the person was respected during his or her life. Moreover, it is
necessary that human remains be placed in the burial grounds of the
appropriate descent group. On the other hand, in all Maroon societies, the
idea of cremation is repugnant; thus, the possibility that the corpses of many
Moiwana residents were burned would have been considered very offensive.
If the various rituals are not performed according to the traditional rules, it is
considered a moral offense, which will not only anger the spirit of the
individual who died, but also may offend other ancestors of the community.
This leads to a number of “spiritually-caused illnesses” that become manifest
as actual physical maladies; however, they cannot be healed by conventional
or Western means. These illnesses can potentially affect the entire natural
lineage, that is, the descent group to which the deceased belonged. These
problems and illnesses do not go away on their own, but must eventually be
resolved through social and ceremonial means; if not, they will persist
through generations.
Considering all of the above, the situation of the Moiwana survivors is
“catastrophic” and “unprecedented for the N’djuka people or any Maroon
people.” The sheer scale of the number of deaths due to the attack is
imposing enough; but the fact that the community cannot even begin the
necessary rituals to achieve reconciliation is “difficult to imagine.”
Justice is a central concept in traditional N’djuka society; indeed, one of their
primary institutions in daily life is the council meeting, which is the means to
resolve conflicts of any nature within the community. The institution has
spiritual dimensions as well, since ancestors are believed to partake in council
proceedings, which provide their decisions with particular legitimacy. In the
context of the Moiwana massacre, traditional values would dictate that this
must be dealt with on a collective level; mere individual efforts would not be
enough. In order for such a serious problem to be resolved, it requires help
from the community as a whole. Indeed, as time goes on and the conflict is
not resolved, it will affect more and more people and social groups within the
society.
Individuals acquire rights to land at birth by virtue of their membership in a
number of descent groups – and each of these groups has its own legal
mechanisms that are particular to it, through which these rights are
distributed and activated. Land rights in N’djuka society in fact exist on
several levels, ranging from rights of the entire ethnic community to those of
the individual. Larger territorial land rights are vested in the entire people;
27
these rights are considered to exist in perpetuity and are not alienable. If
there were a dispute about a specific boundary, this would be adjudicated
after consulting the elders and village chiefs. According to their tradition and
customary law then, although the Moiwana residents have not occupied their
land for at least 18 years, they would maintain rights to that area.
Nevertheless, in general there is no State recognition of the traditional
customary law among the Maroons; it has existed over the centuries as an
autonomous, de facto system. Only some minor aspects are recognized, such
as local officials within the communities.
The expert witness had the opportunity in December 1986 to interview
refugees in French Guiana who had recently fled from Moiwana. He reported
that “they were tremendously distressed; they were in shock; they were
disoriented.” In fact, many that he came in contact with were unable to
speak at all. Not only were they traumatized, but they were also often
physically exhausted after running for days in the forest.
Finally, the expert witness explained that the traditional N’djuka system of
customary law contemplates various measures to remedy offenses, such as
public apologies and ceremonies on the one hand, and material compensation
on the other. An adequate reparations scheme in this case would demand
coming to an agreement satisfactory to the N’djuka people; that is, providing
measures in accord with their own customary law and traditions. Certainly, it
would be extremely important for the State to create the conditions to
guarantee their safe return to Moiwana. To accomplish a return, however,
the first critical step would be an investigation of the events occurring on
November 29, 1986. The survivors need to know why the deaths occurred
and how the perpetrators will be held responsible.
C) ASSESSMENT OF THE EVIDENCE
Documentary evidence
81. In this case, as in others,12 the Court admits the probative value of those
documents presented in timely fashion by the parties, in accordance with Article 44
of the Rules of Procedure, and those documents produced at the request of the
Court, pursuant to Article 45 of the Rules of Procedure, when the authenticity of said
evidence was not challenged or questioned.
82. Regarding the affidavit rendered by Thomas S. Polimé, expert witness
proposed by the Commission (supra paragraph 79), the Court rules that it is
admissible, insofar as it is in conformity with the President’s Order of August 5,
2004.
83. Suriname contended that “several of the annexes submitted by the
Commission are not relevant in this case,” and argued that the Court’s jurisdiction
“does not encompass the issues” presented by said annexes. In this regard, the
State only cited with specificity the Commission’s annex 29. With respect to the
12 Cf. Case of Caesar, supra note 10, para. 46; Case of the Serrano-Cruz Sisters, supra note 9,
para. 37; and Case of Lori Berenson-Mejía, supra note 10.
28
State’s objection, the Court reiterates what it asserted in its “Previous
Considerations” at paragraph 70 of the instant judgment – namely, that it has
properly taken into account certain facts that occurred before the State’s recognition
of the Court’s competence only to place into the appropriate context those alleged
violations over which the Tribunal actually exercises jurisdiction.
Testimonial evidence
84. With respect to the declarations rendered by the alleged victims during the
public hearing (supra paragraphs 86(b) – 86(d)), the Court admits them insofar as
they are in conformity with the President’s Orders of August 5 and 23, 2004 (supra
paragraphs 18 and 19). In this regard, because the alleged victims have a direct
interest in the case, those declarations cannot be evaluated in isolation, but rather
within the context of the entire corpus of evidence submitted in the instant
proceedings. Thus, as it has held in similar cases, the Court considers those
declarations to be of assistance inasmuch as they can provide information on the
alleged violations that may have been committed and their consequences.13
85. Regarding the other testimony received during the public hearing (supra
paragraph 21), the Court rules that it is admissible, insofar as it is in conformity with
the aforementioned Orders of August 5 and 23, 2004.
VIII
PROVEN FACTS
86. Following its analysis of the documentary evidence and testimony, as well as
the statements of the Commission, the representatives, and the State over the
course of the proceedings, the Court finds that the following facts have been proven:
The N’djuka Society of Suriname
a) An introduction
86(1). During the European colonization of present-day Suriname in the 17th
Century, Africans were forcibly taken to the region and used as slaves on the
plantations. Many of these Africans, however, managed to escape to the rainforest
areas in the eastern part of Suriname’s present national territory, where they
established new and autonomous communities; these individuals came to be known
as Bush Negroes or Maroons. Eventually, six distinct groups of Maroons emerged:
the N’djuka, the Matawai, the Saramaka, the Kwinti, the Paamaka, and the Boni or
Aluku.14
86(2). These six communities individually negotiated peace treaties with the colonial
authorities. The N’djuka people signed a treaty in 1760 that established their
freedom from slavery, a century before slavery was formally abolished in the region.
13 Cf. Case of Caesar, supra note 10, para. 47; Case of the Serrano-Cruz Sisters, supra note 9,
para. 40 and 45; and Case of Lori Berenson-Mejía, supra note 10, para. 78.
14 Cf. affidavit of expert witness Thomas Polimé, sworn on August 20, 2004 (case file on preliminary
objections and possible merits, reparations and costs, vol. III, p. 690); and testimony of Kenneth M. Bilby
delivered before the Inter-American Court on September 9, 2004.
29
In 1837, this treaty was renewed; the terms of the agreement permitted the N’djuka
to continue to reside in their settled territory and determined the boundaries of that
area. The Maroons generally – and the N’djuka in particular – consider these
treaties still to be valid and authoritative with regard to their relationship with the
State, despite the fact that Suriname secured its independence from the Netherlands
in 1975.15
86(3). The N’djuka community, which consists of approximately 49,000 members, is
organized in clans that are dispersed among several villages within the community’s
traditional territory. The matrilineal kinship system serves as the basic organizing
principle of the society and influences every aspect of life: relationships, settlement
patterns, land tenure and the division of political and religious functions. Leadership
positions, including those of the paramount chief, the Gaanman, are inherited
through the matrilineal line.16
86(4). The N’djuka are distinct from other Maroon peoples of Suriname: they have
their own language, history, as well as cultural and religious traditions. Furthermore,
other Maroon populations and the indigenous community of the region, the
Amerindians, respect the boundaries of the traditional N’djuka lands, which extend
along the Tapanahoni and Cottica Rivers.17
86(5). Although individual members of indigenous and tribal communities are
considered natural persons by Suriname’s Constitution, the State’s legal framework
does not recognize such communities as legal entities.18 Similarly, national legislation
does not provide for collective property rights.19
b) Aspects of N’djuka culture relevant to the instant case
86(6). The N’djuka community’s relationship to its traditional land is of vital
spiritual, cultural and material importance. In order for the culture to maintain its
integrity and identity, its members must have access to their homeland. Land rights
in N’djuka society exist on several levels, ranging from rights of the entire ethnic
community to those of the individual. Larger territorial land rights are vested in the
entire people, according to N’djuka custom; community members consider such
rights to exist in perpetuity and to be inalienable.20
15 Cf. affidavit of expert witness Thomas Polimé, sworn on August 20, 2004 (case file on preliminary
objections and possible merits, reparations and costs, vol. III, pp. 690 – 692).
16 Cf. affidavit of expert witness Thomas Polimé, sworn on August 20, 2004 (case file on preliminary
objections and possible merits, reparations and costs, vol. III, pp. 692 and 693); and testimony of
Kenneth M. Bilby delivered before the Inter-American Court on September 9, 2004.
17 Cf. affidavit of expert witness Thomas Polimé, sworn on August 20, 2004 (case file on preliminary
objections and possible merits, reparations and costs, vol. III, p. 693).
18 Cf. Fact recognized by the State (case file on preliminary objections and possible merits,
reparations and costs, vol. VI, pp. 1428 – 1512).
19 Cf. Fact recognized by the State (case file on preliminary objections and possible merits,
reparations and costs, vol. VI, pp. 1428 – 1512).
20 Cf. testimony of Kenneth M. Bilby delivered before the Inter-American Court on September 9,
2004; testimony of Andre Ajintoena delivered before the Inter-American Court on September 9, 2004;
and affidavit of expert witness Thomas Polimé, sworn on August 20, 2004 (case file on preliminary
objections and possible merits, reparations and costs, vol. III, pp. 692 and 693).
30
86(7). The N’djuka have specific rituals that must be precisely followed upon the
death of a community member. A series of religious ceremonies must be performed,
which require between six months and one year to be completed; these rituals
demand the participation of more community members and the use of more
resources than any other ceremonial event of N’djuka society.21
86(8). It is extremely important to have possession of the physical remains of the
deceased, as the corpse must be treated in a specific manner during the N’djuka
death rituals and must be placed in the burial ground of the appropriate descent
group. Only those who have been deemed evil do not receive an honorable burial.
Furthermore, in all Maroon societies, the idea of cremation is considered very
offensive.22
86(9). If the various death rituals are not performed according to N’djuka tradition,
it is considered a moral transgression, which will not only anger the spirit of the
individual who died, but may also offend other ancestors of the community. This
leads to a number of “spiritually-caused illnesses” that become manifest as actual
physical maladies and can potentially affect the entire natural lineage. The N’djuka
understand that such illnesses are not cured on their own, but rather must be
resolved through cultural and ceremonial means; if not, the conditions will persist
through generations.23
86(10). Justice and collective responsibility are central tenets within traditional
N’djuka society. If a community member is wronged, the next of kin – which
includes all members of his or her matrilineage – are obligated to avenge the offense
committed. If that relative has been killed, the N’djuka believe that his or her spirit
will not be able to rest until justice has been accomplished. While the offense goes
unpunished, the angry spirits of the dead may torment their living next of kin.24
c) The settlement of Moiwana Village
21 Cf. testimony of Kenneth M. Bilby delivered before the Inter-American Court on September 9,
2004; testimony of Antonia Difienjo delivered before the Inter-American Court on September 9, 2004; and
affidavit of expert witness Thomas Polimé, sworn on August 20, 2004 (case file on preliminary objections
and possible merits, reparations and costs, vol. III, pp. 697, 698 and 717).
22 Cf. testimony of Kenneth M. Bilby delivered before the Inter-American Court on September 9,
2004; testimony of Antonia Difienjo delivered before the Inter-American Court on September 9, 2004;
testimony of Erwin Willemdam delivered before the Inter-American Court on September 9, 2004; and
affidavit of expert witness Thomas Polimé, sworn on August 20, 2004 (case file on preliminary objections
and possible merits, reparations and costs, vol. III, p. 697).
23 Cf. testimony of Kenneth M. Bilby delivered before the Inter-American Court on September 9,
2004; testimony of Antonia Difienjo delivered before the Inter-American Court on September 9, 2004;
testimony of Andre Ajintoena delivered before the Inter-American Court on September 9, 2004; and
affidavit of expert witness Thomas Polimé, sworn on August 20, 2004 (case file on preliminary objections
and possible merits, reparations and costs, vol. III, pp. 720 and 721).
24 Cf. testimony of Kenneth M. Bilby delivered before the Inter-American Court on September 9,
2004; testimony of Antonia Difienjo delivered before the Inter-American Court on September 9, 2004;
testimony of Andre Ajintoena delivered before the Inter-American Court on September 9, 2004; testimony
of Erwin Willemdam delivered before the Inter-American Court on September 9, 2004; and affidavit of
expert witness Thomas Polimé, sworn on August 20, 2004 (case file on preliminary objections and possible
merits, reparations and costs, vol. III, pp. 699, 711 and 719 – 721).
31
86(11). Moiwana Village was settled by N’djuka clans late in the 19th Century. By
1986, the ten camps that formed the village stretched along approximately four
kilometers of the Paramaribo-Albina road in eastern Suriname. The community’s
traditional hunting, farming and fishing territory extended for tens of kilometers into
the forest on either side of that road.25
Suriname’s Internal Conflict
a) An introduction
86(12). On February 25, 1980 Desire Bouterse led a violent coup of Suriname’s
young democratic government and established a military regime that would commit
gross and systematic human rights violations. In 1986 an armed opposition force
known as the Jungle Commando began operating in the eastern part of the country,
attacking military installations in the area. Many of the Jungle Commando’s
members – including their leader, Ronnie Brunswijk – were Maroon.26
86(13). That same year, the national army responded to the Jungle Commando’s
aggressions by carrying out extensive military actions in the eastern region of
Suriname. From 1986 to 1987, at least 200 civilians were killed during army
operations; most of these victims were Maroon villagers. During this same time
period, approximately 15,000 persons fled the combat zone to the capital city,
Paramaribo, and another 8,500 escaped to French Guiana.27 Although some 1,000
Amerindians fled the area, the majority of the displaced were Maroons, representing
more than one third of that ethnic group’s total population.28
86(14). Suriname returned to a civil government after the elections of November
1987; however, the military once again seized power in the country in December
1990. Although the State held democratic elections the following year, the military
continued to exert substantial influence on national society throughout that decade.29
b) The 1986 attack on Moiwana Village and its consequences
25 Cf. affidavit of expert witness Thomas Polimé, sworn on August 20, 2004 (case file on preliminary
objections and possible merits, reparations and costs, vol. III, pp. 702 and 703).
26 Cf. Amnesty International Report, Suriname: Violations of Human Rights. September 1987.
(exhibits to the application, vol. II, exhibit 16, p. 281); and U.N. Economic and Social Council. Summary
or Arbitrary Executions. E/CN.4/1988/22. Report by the Special Rapporteur, Mr. Amos S. Wako, pursuant
to Economic and Social Council Resolution 1987/60 of 19 January 1988 (exhibits to the application, vol. II,
exhibit 19, p. 358).
27 Cf. Inter-American Commission on Human Rights. Annual Report 1986-1987 dated September
22, 1987, Chapter IV: Political Rights, Suriname. OEA/Ser.L/V/II.71 doc.9 rev.1. (exhibits to the
application, vol I, exhibit 9, pp. 263-265).
28 Cf. U.N. Economic and Social Council. Summary or Arbitrary Executions. E/CN.4/1988/22 Report
by the Special Rapporteur, Mr. Amos S. Wako, pursuant to Economic and Social Council Resolution/60 of
19 January 1988 (exhibits to the application, vol. II, exhibit 19, p. 358).
29 Fact recognized by the State in its answer to the application (case file from preliminary
objections, and possible merits, reparations and costs, vol. II, pp. 345 – 346). Cf. Inter-American
Commission on Human Rights. Annual Report 1989-1990 dated May 17, 1990, Chapter IV: Situation on
Human Rights in Several States, Suriname. OEA/Ser.L/V/II.77 doc.7 rev.1 (exhibits to the application,
vol. I, exhibit 11, p. 223); and Inter-American Commission on Human Rights. Annual Report 1990-1991
dated February 22, 1991, Chapter IV: Situation on Human Rights in Several States, Suriname.
OEA/Ser.L/V/II.79 doc.12 rev.1 (exhibits to the application, vol. I, exhibit 12, p. 229).
32
86(15). On November 29, 1986 a military operation was conducted at Moiwana
Village. State agents and collaborators killed at least 39 defenseless community
members, including infants, women and the elderly, and wounded many others.
Furthermore, the operation burned and destroyed Village property and forced
survivors to flee.30
86(16). The following Moiwana community members died during the attack of
November 29, 1986:
1 Celita Ajintoena
2 Cherita Ajintoena
3 Eric (Manpi) Ajintoena
4 Iwan Ajintoena
5 Kathleen Ajintoena
6 Magdalena Ajintoena
7 Olga Ajintoena
8 Patrick Ajintoena
9 Sonny Waldo Ajintoena
10 Stefano Ajintoena
11 Albert Apinsa
12 Alice Yvonne Apinsa
13 Jenifer Asaiti
14 Jurgen Asaiti
15 Margo Asaiti
16 Elisabeth Asaitie or Elisabeth Asaiti
17 Johan Benjamin
18 Josephine Bron
19 Ma-betoe Bron
20 Steven Bron
21 Dennis Difijon
22 Cequita Dogodoe or Chequita Dogodoe
23 Ciska J. Dogodoe
24 Patricia Dogodoe
25 Theresia Dogodoe
26 Irene Kodjo
27 Jurmain Kodjo
28 Marilva Kodjo or Marilwa Kodjo
29 Remeo Kodjo
30 Fact recognized by the State before the Inter-American Court during the public hearing of
September 9, 2004. Cf. testimony of Antonia Difienjo delivered before the Inter-American Court on
September 9, 2004; testimony of Andre Ajintoena delivered before the Inter-American Court on
September 9, 2004; testimony of Erwin Willemdam delivered before the Inter-American Court on
September 9, 2004; affidavit of expert witness Thomas Polimé, sworn on August 20, 2004 (case file on
preliminary objections and possible merits, reparations and costs, vol. III, pp. 705 – 706); and U.N.
Economic and Social Council. Summary or Arbitrary Executions. E/CN.4/1988/22. Report by the Special
Rapporteur, Mr. Amos S. Wako, pursuant to Economic and Social Council Resolution 1987/60 of 19
January 1988 (exhibits to the application, vol. II, exhibit 19, p. 358).
33
30 Rinia Majkel
31 Babaja Mijnals
32 Betsie Misidjan
33 Difienjo Misidjan or Difinjo Misdjan
34 Iries Misidjan
35 Judith Misidjan
36 Mado Misidjan or Nanalibie Sadow Misdjan
37 Ottolina M. Misidjan
38 Sajobegi Misidjan
39 Sylvano Misidjan
86(17). The following Moiwana community members survived the events of
November 29, 1986:
1 Hesdy Adam or Hesdie Adam
2 Johiena Adam
3 Marlene Adam
4 Marlon Adam
5 Petrus Adam
6 Antonius Agemi
7 A. Andro Ajintoena
8 Aboeda Ajintoena
9 Andre Ajintoena
10 Atema Ajintoena
11 Cynthia Ajintoena
12 Doortje Ajintoena
13 Eddy Ajintoena
14 Franklin Ajintoena
15 Gladys Ajintoena
16 Jacoba Ajintoena
17 Juliana Ajintoena
18 Letitia Ajintoena or Lettia Ajintoena
19 Maikel Ajintoena
20 Marietje Ajintoena or Maritje Ajintoena
21 Maureen Ajintoena
22 Miranda Ajintoena
23 Ottolina Ajintoena
24 P. Joetoe Ajintoena
25 S. Marciano Ajintoena
26 Majo Ajintoena
27 Miraldo Allawinsi or Miraldo Misidjan
28 Richard Allawinsi
29 Roy Allawinsi
30 Alphons Apinsa
31 Anika M. Apinsa
34
32 Erna Apinsa
33 Gwhen D. Apinsa
34 Meriam Apinsa
35 Sylvia Apinsa
36 Dannie Anna Asaiti
37 Hermine Asaiti
38 Erwien Awese
39 Cyriel Bane
40 Tjamaniesting Bron
41 Jacqueline Bron or Jacquelina Bron
42 Mena Bron
43 Rosita Bron
44 Sawe Bron or Sawe Djang Abente Bron
45 Rudy Daniel
46 Marlon Difienjo or Michel Difienjo
47 Antonia Difienjo
48 Diana Difienjo
49 Martha Difienjo
50 M. Milton Difienjo
51 Patricia Difienjo
52 Petra Difienjo
53 Anelies Djemesie or Annelies Jemessie
54 Gladys Djemesie
55 Glenn Djemesie
56 Ligia Djemesie
57 Alfons Dogodoe
58 Benita Dogodoe
59 Benito Dogodoe
60 Cynthia Dogodoe
61 D. Silvana Dogodoe
62 Hellen Dogodoe
63 R. Patrick Dogodoe
64 Richenel Dogodoe
65 S. Claudia Dogodoe
66 Z. Jose Dogodoe
67 Johannes Jajo
68 Cornelly Madzy James
69 Humprey James or Humphrey James
70 John James
71 Romeo James
72 Adaja Kagoe
73 Manfika Kamee
74 Johannes Kanape
75 Agwe Kastiel
76 Alexander Kate
35
77 Johan Laurence
78 Martha Makwasie
79 Benito Martinies
80 Chequita Martinies
81 Marciano Martinies
82 Petrus Martinies
83 Rodney Martinies
84 S. Ruben Martinies
85 Rinia Meenars
86 Andre Misidjan
87 Awena Misidjan
88 Beata Misidjan or Beata Misdjan
89 Carla Misidjan
90 Edmundo Misidjan or Edmundo Misdjan
91 Jofita Misidjan
92 Ludwig Misidjan
93 Malai Misidjan
94 Marlon M. Misidjan
95 Mitori Misidjan
96 Reguillio Misidjan or Reguillio Misdjan
97 Rudy Misidjan
98 Theodorus Misidjan
99 Wilma Misidjan
100 Anoje M. Misidjan or Anoje M. Misiedjan
101 Sandra Misidjan or Sandra Misiedjan
102 Apoer Lobbi Misiedjan or Apoerlobbi Misidjan
103 Antonius Misiedjan or Misidjan Antonius
104 John Misiedjan or John Misidjan
105 Johnny Delano Misiedjan or Johny Delano Misidjan
106 Sadijeni Moiman
107 Jozef Toeli Pinas or Toeli-Jozef Pinas
108 Leonie Pinas
109 Felisie Sate
110 Alma O. Sjonko
111 Annelies Sjonko or Annalies Sjonko
112 Cornelia Sjonko
113 Inez Sjonko or Aines Sjonko
114 Jeanette E. Sjonko
115 R. Sjonko
116 Carlo Sjonko
117 Isabella Sjonko
118 Johan Sjonko
119 Lothar Sjonko
120 Natashia Sjonko
121 Nicolien Sjonko
36
122 Pepita M.J. Solega
123 Antoon Solega
124 A. Dorothy Solega
125 H. Roel Solega
126 K. Delano Solega
127 M. Sellely Solega or M. Seclely Solega
128 Awese Lina L. Toetoe
129 Jozef Toetoe or Jozef Toeboe
130 Erwin Willemdam
86(18). Many of the Village residents escaped to the forest, where they endured
harsh conditions, and eventually arrived at refugee camps in French Guiana. Others
became internally displaced: some fled to larger towns in the interior of Suriname,
and others to the capital, Paramaribo. These displaced individuals, both in French
Guiana and in Suriname, have suffered poverty and deprivation since their flight
from Moiwana Village, and have been unable to practice their customary means of
subsistence and livelihood.31
86(19). Moiwana Village and its surrounding traditional lands have been abandoned
since the 1986 attack. Some community members have subsequently visited the
area, but without the intention of staying there permanently.32 (infra paragraph
86(43)).
86(20). The Moiwana community members have been unable to recover the
remains of their relatives killed during the attack; in consequence, it has been
impossible for them to provide the deceased with the appropriate death rites as
required by fundamental norms of N’djuka culture (supra paragraphs 86(7) –
86(9)).33
c) Surinamese refugees in French Guiana
86(21). In 1991, arrangements were made – though the assistance of the United
Nations High Commissioner for Refugees (hereinafter “UNHCR”) – for the thousands
31 Cf. testimony of Kenneth M. Bilby delivered before the Inter-American Court on September 9,
2004; testimony of Antonia Difienjo delivered before the Inter-American Court on September 9, 2004;
testimony of Andre Ajintoena delivered before the Inter-American Court on September 9, 2004; and
affidavit of expert witness Thomas Polimé, sworn on August 20, 2004 (case file on preliminary objections
and possible merits, reparations and costs, vol. III, pp. 711, 712, and 714).
32 Cf. testimony of Antonia Difienjo delivered before the Inter-American Court on September 9,
2004; testimony of Andre Ajintoena delivered before the Inter-American Court on September 9, 2004;
testimony of Erwin Willemdam delivered before the Inter-American Court on September 9, 2004; and
affidavit of expert witness Thomas Polimé, sworn on August 20, 2004 (case file on preliminary objections
and possible merits, reparations and costs, vol. III, p. 724).
33 Cf. testimony of Kenneth M. Bilby delivered before the Inter-American Court on September 9,
2004; testimony of Antonia Difienjo delivered before the Inter-American Court on September 9, 2004;
testimony of Andre Ajintoena delivered before the Inter-American Court on September 9, 2004; testimony
of Erwin Willemdam delivered before the Inter-American Court on September 9, 2004; and affidavit of
expert witness Thomas Polimé, sworn on August 20, 2004 (case file on preliminary objections and possible
merits, reparations and costs, vol. III, p. 717).
37
of Surinamese refugees, the great majority of them Maroons, to participate in
national elections; however, few Maroons participated.34
86(22). Also in 1991, the refugees presented their conditions for repatriation to
Suriname before a commission comprised of representatives from the UNHCR and
the governments of Suriname and French Guiana. Those requirements, which were
never acted upon by said commission, demanded that Suriname ensure their safety
and freedom, as well as that those responsible for having killed civilians during the
internal conflict would be investigated and prosecuted.35
86(23). When the official refugee camps in French Guiana were closed in 1992, the
French government allowed a certain population to remain. The great majority of
the members of that group were Moiwana community members, who refused to
return to Suriname without guarantees for their safety. The French government
granted said individuals renewable permits to reside in French Guiana; in 1997, they
were provided with five or ten-year residency permits.36
86(24). In 1993, a minority of the Moiwana community members returned to
Suriname, and were placed in what was designed to be a temporary reception center
in Moengo. Many remain in the reception center to this day, as they have not been
provided with a suitable alternative.37
Investigation of the 1986 Attack on Moiwana Village
a) Official efforts
86(25). The civilian police began an investigation into the November 29, 1986
events at Moiwana Village in 1989, over two years after the attack, and more than a
year following the State’s accession to the American Convention. During March and
April of 1989, Inspector Herman Gooding, who was in charge of this investigation,
questioned several suspects and arrested at least two individuals, Frits Moesel and
Orlando Swedo.38 Messrs. Moesel and Swedo declared to the police that they had
been trained and armed by the State’s national army and then had participated in
the events of November 29, 1986.39
34 Cf. Inter-American Commission on Human Rights. Annual Report 1990-1991 dated February 22,
1991, Chapter IV: Situation on Human Rights in Several States, Suriname. OEA/Ser.L/V/II.79 doc.12
rev.1 (exhibits to the application, vol. I, exhibit 12, p. 229); and Inter-American Commission on Human
Rights. Annual Report 1991 adopted February 14, 1992, Chapter IV: Situation on Human Rights in Several
States, Suriname. OEA/Ser.L/V/II.81 doc.6 rev.1 (exhibits to the application, vol. I, exhibit 13, p. 236).
35 Cf. affidavit of expert witness Thomas Polimé, sworn on August 20, 2004 (case file on preliminary
objections and possible merits, reparations and costs, vol. III, p. 708).
36 Cf. affidavit of expert witness Thomas Polimé, sworn on August 20, 2004 (case file on preliminary
objections and possible merits, reparations and costs, vol. III, p. 709); and testimony of Andre Ajintoena
delivered before the Inter-American Court on September 9, 2004.
37 Cf. affidavit of expert witness Thomas Polimé, sworn on August 20, 2004 (case file on preliminary
objections and possible merits, reparations and costs, vol. III, p. 711).
38 Cf. case file on the police investigation of the Moiwana case directed by Inspector Gooding
(exhibits to the State’s answer to the application, vol. I, exhibit 20, pp. 11-18).
39 Cf. case file on the police investigation of the Moiwana case directed by Inspector Gooding
(exhibits to the State’s answer to the application, vol. I, exhibit 20, pp. 11-18).
38
86(26). Shortly after Mr. Swedo was placed in state custody, a fully-armed
contingent of military police arrived at the civilian police station and forcibly obtained
his release.40
86(27). Mr. Swedo was taken to military barracks where Army Commander
Bouterse had convened a meeting. There, Mr. Bouterse issued a statement to the
press, by which he confirmed the following: a) that the operation in Moiwana Village
was a military action which he himself had ordered; b) that he would not allow
military operations to be investigated by the civilian police; and c) that he had
required the release of Mr. Swedo.41
86(28). On August 4, 1990, Inspector Gooding, following his meeting with the
Deputy Commander of the military police, was murdered. His death has not been
conclusively investigated.42
86(29). Some of the police investigators who collaborated with Inspector Gooding
faced life-threatening circumstances and, consequently, fled Suriname.43
86(30). On December 10, 1993, Frits Moesel – who had confessed to police that he
had led the attack on Moiwana village – was killed, allegedly due to a hunting
accident.44
86(31). On May 22, 1993, Moiwana ’86, an organization representing the alleged
victims in the instant case (supra paragraphs 2 and 5), discovered a mass grave
near Moiwana Village, in the District of Marowijne, and two days later notified the
Office of the Attorney General. The grave site was then visited on two occasions –
May 29 and June 9, 1993 – by military and civilian police, a pathologist and Moiwana
’86. The team uncovered human remains, which were taken to Paramaribo for
further analysis. Subsequently, state authorities reported only that the remains
40 Cf. testimony of Stanley Rensch delivered before the Inter-American Court on September 9,
2004; newspaper article titled “Sweedo leer een vrij man,” published in the Weekkrant Suriname, May 6 –
12, 1989 (exhibits to the application, vol. II, exhibit 27, pp. 458 – 459); newspaper article titled
“Arrestaties in verband met bloedbad Moiwana,” published in the Weekkrant Suriname, April 22 – 28,
1989 (exhibits to the application, vol. II, exhibit 27, pp. 460 – 461); and newspaper article titled
“President ontluisterd; holding regering uiterst slap,” published in the Weekkrant Suriname, April 29, 1989
(exhibits to the application, vol. II, exhibit 27, pp. 462 – 463).
41 Cf. testimony of Stanley Rensch delivered before the Inter-American Court on September 9,
2004; newspaper article titled “Rensch: Onderzoek massamoorden in Oost-Suriname,” published in
Algemeen Dagblad, May 25, 1993 (exhibits to the application, vol. II, exhibit 27, pp. 464 – 466); and
newspaper article titled “Wat zich te Moi Wana voltrok,” published in De Ware Tijd, May 28, 1993 (exhibits
to the application, vol. II, exhibit 27, pp. 467 – 468).
42 Fact recognized by the State in its answer to the application (case file from preliminary
objections, and possible merits, reparations and costs, vol. II, p. 398). Cf. testimony of Stanley Rensch
delivered before the Inter-American Court on September 9, 2004.
43 Cf. testimony of Stanley Rensch delivered before the Inter-American Court on September 9,
2004; and Inter-American Commission on Human Rights. Annual Report 1990-1991 dated February 22,
1991, Chapter IV: Situation on Human Rights in Several States, Suriname. OEA/Ser.L/V/II.79 doc.12
rev.1 (exhibits to the application, vol. I, exhibit 12, p. 229).
44 Fact recognized by the State in its answer to the application (case file on preliminary objections
and possible merits, reparations and costs, vol. II, p. 398). Cf. official report from interviews with Harry
Moesjoekoere (exhibits to the State’s answer to the application, vol. III, exhibit 26, p. 8).
39
corresponded to five to seven adults and two to three children; the identification of
the corpses or further information on the grave site in general have not been
provided by the State.45
86(32). On December 19, 1995, the National Assembly of Suriname adopted a
motion requesting the Executive Branch “to instigate an immediate investigation”
into human rights violations committed during the military regime.46
86(33). As of the date of the present judgment, only the initial investigative steps
described above have been conducted by the State. Thus, neither the events of
November 29, 1986, nor the numerous incidents of obstruction of justice – including
the forcible liberation of Orlando Swedo (supra paragraph 86(26)) and the death of
Inspector Gooding (supra paragraph 86(28)) – have been properly investigated. In
this way, not a single individual has been convicted for the attack, and the Moiwana
community members have not received any form of reparation for the deaths or for
being forced from their traditional lands.47
b) Efforts of the alleged victims
86(34). The alleged victims and the organizations acting on their behalf, Moiwana
’86 and Association Moiwana, have repeatedly sought a criminal investigation into
the attack on Moiwana Village. For example, on May 24, 1993, Moiwana ’86
reported the discovery of the grave site (supra paragraph 86(31)) to the Office of the
Attorney General and urged an investigation of the attack and the prosecution of
those responsible. On August 23, 1993, Moiwana ’86 directed another letter to the
Attorney General that requested information on the state of the criminal
investigation of the attack on Moiwana Village.48
45 Cf. document titled The Moiwana Graves, June 19, 1993 (exhibits to the application, vol. II,
exhibit 25, pp. 448 – 452); communications addressed to Suriname’s Attorney General by Moiwana ’86 on
May 24, June 28, and August 23, 1993 (exhibits to the application, vol. II, exhibit 24, pp. 442 – 447); 10
reports on the autopsies performed by the forensic pathologist Dr. M.A. Vrede on the mortal remains
found in the excavations (exhibits to the brief filing preliminary objections and answering the application,
vol. III, exhibit 29, p. 4); testimony of Stanley Rensch delivered before the Inter-American Court on
September 9, 2004; and affidavit of expert Thomas Polimé, sworn on August 20, 2004 (case file from
preliminary objections, and possible merits, reparations and costs, vol. III, p. 718).
46 Cf. Motion by the Parliament of Suriname on the Investigation of Human Rights Abuses,
December 19, 1995 (case file on preliminary objections and possible merits, reparations and costs, vol. II,
p. 441).
47 Cf. affidavit of expert witness Thomas Polimé, sworn on August 20, 2004 (case file on preliminary
objections and possible merits, reparations and costs, vol. III, p. 713); testimony of Antonia Difienjo
delivered before the Inter-American Court on September 9, 2004; testimony of Andre Ajintoena delivered
before the Inter-American Court on September 9, 2004; and testimony of Stanley Rensch delivered before
the Inter-American Court on September 9, 2004.
48 Cf. communications addressed to Suriname’s Attorney General from Moiwana ’86 on May 24,
June 28, and August 23, 1993 (exhibits to the application, vol. II, exhibit 24, pp. 442 – 447); newspaper
article titled “Sweedo leer een vrij man,” published in the Weekkrant Suriname, May 6 – 12, 1989
(exhibits to the application, vol. II, exhibit 27, pp. 458 – 459); newspaper article titled “Arrestaties in
verband met bloedbad Moiwana,” published in the Weekkrant Suriname, April 22 – 28, 1989 (exhibits to
the application, vol. II, exhibit 27, pp. 460 – 461); newpaper article titled “President ontluisterd; holding
regering uiterst slap,” published in the Weekkrant Suriname, April 29, 1989 (exhibits to the application,
vol. II, exhibit 27, pp. 462 – 463); newspaper article titled “Rensch: Onderzoek massamoorden in Oost-
Suriname,” published in Algemeen Dagblad, May 25, 1993 (exhibits to the application, vol. II, exhibit 27,
pp. 464 – 466); newspaper article titled “Wat zich te Moi Wana voltrok,” published in De Ware Tijd, May
28, 1993 (exhibits to the application, vol. II, exhibit 27, pp. 467 – 468); testimony of Antonia Difienjo
40
86(35). In 1996, following the National Assembly’s motion (supra paragraph
86(32)), Moiwana ’86 filed two formal requests with the Attorney General for a
proper investigation into the attack. Having received no response, Moiwana ’86
submitted another request to the President of the Court of Justice. On August 21,
1996, the President of the Court of Justice instructed the Attorney General to submit
to that Court, pursuant to Article 4 of the Code of Criminal Procedure, a report on the
matter, to be accompanied by any available police files. Subsequently, in response
to a follow-up inquiry from Moiwana ’86, the President of the Court of Justice advised
that the Attorney General still had not responded to his request. After yet another
communication from Moiwana ’86, the President of the Court of Justice, on February
26, 1997, reiterated his request for information on the investigation to the Office of
the Attorney General.49
86(36). Association Moiwana has collaborated with Moiwana ’86 for years to obtain
justice for the community. Whenever any important decision is to be taken with
regard to the instant case, all of the survivors and next of kin from Moiwana Village –
whether located in Suriname or in French Guiana – are consulted through the efforts
of Association Moiwana.50
86(37). Those who collaborated with Moiwana ’86 to obtain justice for the 1986
attack and related human rights abuses were often threatened and harassed; as a
result, some found it necessary to leave Suriname for their own safety. Stanley
Rensch, founder of Moiwana ’86, survived an assassination attempt and was
arbitrarily arrested four times; eventually, he also sought refuge abroad.51
86(38). The Moiwana community members have not pursued civil remedies in
Suriname with regard to the events of November 29, 1986.52
National Legislation Relevant to the Investigation of the 1986 Attack
a) The “Amnesty Act 1989”
delivered before the Inter-American Court on September 9, 2004; and testimony of Stanley Rensch
delivered before the Inter-American Court on September 9, 2004.
49 Cf. communications addressed from the President of the Court of Justice to the Attorney General,
dated August 21, 1996, and to the Director of Moiwana ’86, dated October 2, 1996 and February 26, 1997
(exhibits to the application, vol. II, exhibit 26 and case file from preliminary objections, and possible
merits, reparations and costs, vol. II, pp. 442 – 444); and testimony of Stanley Rensch delivered before
the Inter-American Court on September 9, 2004.
50 Cf. affidavit of expert witness Thomas Polimé, sworn on August 20, 2004 (case file on preliminary
objections and possible merits, reparations and costs, vol. III, p. 711); and testimony of Andre Ajintoena
delivered before the Inter-American Court on September 9, 2004.
51 Cf. testimony of Stanley Rensch delivered before the Inter-American Court on September 9,
2004; and Inter-American Commission on Human Rights. Annual Report 1989-1990 dated May 17, 1990,
Chapter IV: Situation on Human Rights in Several States, Suriname. OEA/Ser.L/V/II.77 doc.7 rev.1
(exhibits to the application, vol. I, exhibit 11, p. 226).
52 Fact recognized by the State in its answer to the application (case file on preliminary objections
and possible merits, reparations and costs, vol. II, pp. 369 and 407). Cf. testimony of Antonia Difienjo
delivered before the Inter-American Court on September 9, 2004; and testimony of Stanley Rensch
delivered before the Inter-American Court on September 9, 2004.
41
86(39). On August 19, 1992, the President of Suriname officially promulgated the
“Amnesty Act 1989,” which grants amnesty to those who committed certain criminal
acts, with the exception of crimes against humanity, during the period from January
1, 1985 until August 20, 1992. Crimes against humanity are defined by the statute
as “those crimes which according to international law are classified as such.”53
86(40). Moiwana ’86 sought to prevent the enactment of the “Amnesty Act 1989” by
seeking an injunction in the First District Court in Paramaribo, arguing that the Act
would violate “the Constitution of the Republic of Suriname and […] the conventions
ratified by the Republic of Suriname in respect of human rights.” On August 19,
1992, the First District Court issued a judgment by which it refused to grant the
“interim injunction” requested.54
b) Amendment to the statute of limitations for certain crimes
86(41). On November 16, 2004, the President of Suriname officially promulgated an
amendment to the Penal Code, which provides that the “right to prosecute does not
expire” if the matter in question concerns, inter alia, a “crime against humanity” or a
“war crime.”55
Suffering and Fear of the Moiwana Community Members
86(42). The Moiwana community members have suffered emotionally,
psychologically, spiritually and economically, owing to the attack on their village, the
subsequent forced separation from their traditional lands, as well as their inability
both to honor properly their deceased loved ones and to obtain justice for the events
of 1986.56
86(43). The ongoing impunity for the 1986 raid on Moiwana Village and the inability
of the community to understand the motives for that attack have generated a deep
fear in the members that they may be subject to future aggressions, which is a
central factor preventing them from returning to live in their traditional lands. Their
permanent return to Moiwana Village, then, is contingent upon the State conducting
a complete investigation into the events of 1986; according to the community
members, only when justice is accomplished in the case will they be able to appease
the angry spirits of their deceased family members, purify their land, and return to
permanent residence without apprehension of further hostilities.57
53 Cf. “Amnesty Act 1989.” Statutes of the Republic of Suriname No. 68, August 19, 1992 (exhibits
to the application, vol. II, exhibit 28, pp. 476 – 483).
54 Cf. Judgment of the First District Court issued on August 19, 1992 (case file on preliminary
objections and possible merits, reparations and costs, vol. V, pp. 1226 – 1230).
55 Cf. “Act of 16 November 2004” (case file on preliminary objections and possible merits,
reparations and costs, vol. VI, pp. 1301 – 1306).
56 Cf. testimony of Kenneth M. Bilby delivered before the Inter-American Court on September 9,
2004; testimony of Antonia Difienjo delivered before the Inter-American Court on September 9, 2004;
testimony of Andre Ajintoena delivered before the Inter-American Court on September 9, 2004; testimony
of Erwin Willemdam delivered before the Inter-American Court on September 9, 2004; and affidavit of
expert witness Thomas Polimé, sworn on August 20, 2004 (case file on preliminary objections and possible
merits, reparations and costs, vol. III, pp. 713 – 715).
57 Cf. testimony of Kenneth M. Bilby delivered before the Inter-American Court on September 9,
2004; testimony of Antonia Difienjo delivered before the Inter-American Court on September 9, 2004;
42
Legal Representation of the Moiwana Community Members
86(44). The Moiwana community members have been represented domestically, as
well as before the Inter-American System, by the following three organizations:
Moiwana ’86, the Forest Peoples Programme, and Association Moiwana. These
organizations have requested compensation for the costs in which they have incurred
during the instant case’s preparation; on the other hand, they have waived all
attorney fees.58
IX
ARTICLE 5 OF THE AMERICAN CONVENTION
(RIGHT TO HUMANE TREATMENT)
IN RELATION WITH ARTICLE 1(1)
(OBLIGATION TO RESPECT RIGHTS)
Arguments of the representatives
87. The representatives claimed that the State violated the right to humane
treatment established in Article 5 of the American Convention based on the following
considerations:
a) the alleged victims have all suffered “substantial, severe and
protracted mental and moral suffering and anguish,” amounting to a violation
of Article 5, which has been proven on the basis of the evidence before the
Court and can be presumed as well due to the nature of the underlying
violations and prevailing state of impunity in the case;
b) the alleged victims have suffered ongoing and continuous violations of
Article 5 both in their own right as survivors of the massacre and those
denied justice, and by virtue of their status as the next of kin of the “39
persons known to have been murdered at Moiwana Village”;
c) the violations of Article 5 are directly imputable to Suriname due to its
responsibility for the massacre; its protracted and ongoing refusal to provide
justice to the alleged victims and the resulting state of impunity; and its
failure to cooperate in any way with them in their many attempts to clarify
the facts, to locate and provide proper burials for the remains of their loved
ones and to seek a just closure to their anguish and suffering;
d) the alleged victims have suffered great anxiety in the knowledge that
their failure to obtain justice for those killed has violated fundamental norms
and obligations of their society and has “invited the wrath of the spirits of the
dead,” which may also inflict suffering upon their children and future
generations;
testimony of Andre Ajintoena delivered before the Inter-American Court on September 9, 2004; and
testimony of Erwin Willemdam delivered before the Inter-American Court on September 9, 2004.
58 Cf. Expense receipts (case file on preliminary objections and possible merits, reparations and
costs, vol. IV, pp. 903 and 924 – 994).
43
e) the alleged victims’ anguish was made substantially worse in this case
due to the State’s affirmative obstruction of justice;
f) the State’s failure to investigate the massacre and clarify the facts and
motives has also left the alleged victims with a deep sense of uncertainty and
fear that the massacre could happen again; and
g) the alleged victims have also suffered intensely because they have
been unable to provide proper burials for their loved ones and because they
have had to endure two decades of forcible separation from their traditional
land, which is the seat of their culture and spiritual well-being.
Arguments of the Commission
88. The Commission did not specifically submit arguments of law regarding the
alleged violation of the right established in Article 5 of the American Convention.
Arguments of the State
89. The State also did not expressly present arguments of law regarding the
alleged violation of the right established in Article 5 of the American Convention.
The Court’s Assessment
90. Article 5(1) of the American Convention provides that “[e]very person has the
right to have his physical, mental, and moral integrity respected.”
91. The Court observes that the Commission did not submit arguments regarding
the alleged violation of the right protected in Article 5 of the American Convention.
Nevertheless, it is now well established in the Tribunal’s case law that the
representatives may argue violations of the Convention other than those alleged by
the Commission, as long as such legal arguments are based upon the facts set out in
the application.59 The petitioners are the holders of all of the rights enshrined in the
Convention; thus, preventing them from advancing their own legal arguments would
be an undue restriction upon their right of access to justice, which derives from their
condition as subjects of international human rights law.60 Furthermore, this Court
has the competence – based upon the American Convention and grounded in the iura
novit curia principle, which is solidly supported in international law – to study the
possible violation of Convention provisions that have not been alleged in the
pleadings submitted before it, in the understanding that the parties have had the
opportunity to express their respective positions with regard to the relevant facts.61
59 Cf. Case of De la Cruz-Flores. Judgment of November 18, 2004. Series C No. 115, para. 122;
Case of the “Juvenile Reeducation Institute.” Judgment of September 2, 2004. Series C No. 112, para.
125; and Case of the Gómez-Paquiyauri Brothers . Judgment of July 8, 2004. Series C No. 110, para.
179.
60 Cf. Case of De la Cruz-Flores, supra note 59, para. 122; Case of the “Juvenile Reeducation
Institute,” supra note 59, para. 125; and Case of the Gómez-Paquiyauri Brothers, supra note 59, para.
179.
61 Cf. Case of the “Juvenile Reeducation Institute,” supra note 59, para. 126.
44
92. Turning to the case at hand, the Tribunal decided above that it does not have
competence to examine the events of November 29, 1986. Nevertheless, it does
exercise jurisdiction over the State’s fulfillment of its obligation to ensure the right to
humane treatment, which results in the obligation to investigate possible violations
of Article 5 of the Convention.
93. The State’s failure to fulfill this obligation has prevented the Moiwana
community members from properly honoring their deceased loved ones and has
implicated their forced separation from their traditional lands; both situations
compromise the rights enshrined in Article 5 of the Convention. Furthermore, the
personal integrity of the community members has been undermined as a result of
the obstruction of their persistent efforts to obtain justice for the attack on their
village, particularly in light of the N’djuka emphasis upon punishing offenses in a
suitable manner. The following analysis will begin with that last point.
a) Obstruction of Moiwana community members’ efforts to obtain justice
94. Despite the many efforts of the Moiwana community members and their legal
representatives, as well as clear evidence of the State’s responsibility in the matter,
no indication exists that there has been a serious and thorough investigation into the
events of November 29, 1986, as shall be discussed in the chapter concerning
Articles 8 and 25 of the American Convention (infra paragraphs 139 – 164).
Furthermore, the community members have not received any form of reparations for
those occurrences (supra paragraph 86(33)). Such a long-standing absence of
effective remedies is typically considered by the Court as a source of suffering and
anguish for victims and their family members;62 in fact, it has even convinced the
community members that the State actively discriminates against them. For
example, Antonia Difienjo remarked that “compared to others in the country, […] we
do not have the same rights in Suriname.” Stanley Rensch expressed that there is
“insufficient support of the idea […] that the Maroons deserve the same type of legal
protection in the country.”
95. Moreover, the ongoing impunity has a particularly severe impact upon the
Moiwana villagers, as a N’djuka people. As indicated in the proven facts (supra
paragraph 86(10)), justice and collective responsibility are central precepts within
traditional N’djuka society. If a community member is wronged, the next of kin –
which includes all members of his or her matrilineage – are obligated to avenge the
offense committed. If that relative has been killed, the N’djuka believe that his or
her spirit will not be able to rest until justice has been accomplished. While the
offense goes unpunished, the affronted spirit – and perhaps other ancestral spirits –
may torment their living next of kin.
96. In this regard, expert witness Kenneth Bilby asserted that, according to
traditional beliefs, while a serious transgression goes unresolved, over time
increasing numbers of society members will be troubled by the spirits of the dead.
The witnesses who testified before this Court expressed great fear of those spirits
and much remorse that their efforts at justice had not yet succeeded. As Andre
Ajintoena stated, it is “essential” to search for justice when someone dies in an
unfair way; this obligation “to set things straight,” if not fulfilled, will cause the living
as well as the dead to suffer. For these reasons, Mr. Ajintoena established an
62 Cf. Case of the Serrano-Cruz Sisters, supra note 9, paras. 113-115.
45
organization, Association Moiwana, dedicated to promoting an investigation of the
1986 attack; however, owing to the denial of justice community members continue
to face, Mr. Ajintoena remarked, “it is as if we are dying a second time.” Thus, not
only must the Moiwana community members endure the indignation and shame of
having been abandoned by Suriname’s criminal justice system – despite the grave
actions perpetrated upon their village – they also must suffer the wrath of those
deceased family members who were unjustly killed during the attack.
97. Furthermore, because of the ongoing impunity for the 1986 raid and the
inability of the community members to understand the motives for that attack, they
suffer deep apprehension that they could once again confront hostilities if they were
to return to their traditional lands. Erwin Willemdam testified before the Court that,
since the attack, he has driven past Moiwana Village on occasions, but has never
stopped: “as long as justice is not served, […] then we cannot go back to that place
to stay.” The testimonial evidence demonstrated that, in order for community
members to feel safe enough to take up residence again at Moiwana Village, they
must know why the deaths occurred and how the perpetrators will be held
responsible by the State.
b) Inability of Moiwana community members to honor properly their deceased
loved ones
98. As indicated in the proven facts (supra paragraphs 86(7) – 86(9)), the
N’djuka people have specific and complex rituals that must be precisely followed
upon the death of a community member. Furthermore, it is extremely important to
have possession of the physical remains of the deceased, as the corpse must be
treated in a particular manner during the N’djuka death ceremonies and must be
placed in the burial ground of the appropriate descent group. Only those who have
been deemed unworthy do not receive an honorable burial.
99. If the various death rituals are not performed according to N’djuka tradition,
it is considered a profound moral transgression, which will not only anger the spirit of
the individual who died, but also may offend other ancestors of the community
(supra paragraph 86(9)). This leads to a number of “spiritually-caused illnesses”
that become manifest as actual physical maladies and can potentially affect the
entire natural lineage (supra paragraph 86(9)). The N’djuka understand that such
illnesses are not cured on their own, but rather must be resolved through cultural
and ceremonial means; if not, the conditions will persist through generations (supra
paragraph 86(9)). In this way, Ms. Difienjo stated that, if the death ceremonies are
not performed:
it will burden all the children, also be after ourselves. […] It is if we do not exist
on earth. I mean, that will be the burden. […] If it is not done properly with
those killed, then many things can happen with us […]. So if it is not taken care
of properly for those died, then we are nowhere.
100. Thus, one of the greatest sources of suffering for the Moiwana community
members is that they do not know what has happened to the remains of their loved
ones, and, as a result, they cannot honor and bury them in accordance with
fundamental norms of N’djuka culture. The Court notes that it is understandable,
then, that community members have been distressed by reports indicating that some
of the corpses were burned at a Moengo mortuary. As Mr. Willemdam stated, “that
46
is one of the worst things that could occur to us, if you burn the body of someone
who died.”
c) The separation of community members from their traditional lands
101. The proven facts demonstrate that a N’djuka community’s connection to its
traditional land is of vital spiritual, cultural and material importance (supra paragraph
86(6)). Indeed, as the expert witnesses Thomas Polimé and Kenneth Bilby
commented (supra paragraphs 79 and 80(e)), in order for the culture to preserve its
very identity and integrity, the Moiwana community members must maintain a fluid
and multidimensional relationship with their ancestral lands.
102. However, Moiwana Village and its surrounding traditional lands have been
abandoned since the events of November 29, 1986 (supra paragraph 86(19)).
Numerous community members are internally displaced within Suriname and the rest
remain to this day as refugees in French Guiana (supra paragraph 86(18)). Unable
to practice their customary means of subsistence and livelihood, many, if not all,
have suffered poverty and deprivation since their flight from Moiwana Village (supra
paragraph 86(18)). Ms. Difienjo testified before the Court that since the attack, her
life “has been completely disturbed”; moreover, she feels that the plight of the
refugees has been ignored by the State and emphasized that French Guiana “is not
[her] place.” Mr. Ajintoena, for his part, stated that they “lost everything” after the
events of 1986 and need “badly” to return to their traditional lands in order “to
restore [their] lives.” He further testified that, with the attack, “the government
destroyed the cultural tradition […] of the Maroon communities in Moiwana.”
*
* *
103. Taking into account the foregoing analysis, the Court concludes that the
Moiwana community members have endured significant emotional, psychological,
spiritual and economic hardship – suffering to a such a degree as to result in the
State’s violation of Article 5(1) of the American Convention, in relation to Article 1(1)
of that treaty, to the detriment of said community members.
X
ARTICLE 22 OF THE AMERICAN CONVENTION
(FREEDOM OF MOVEMENT AND RESIDENCE)
IN RELATION WITH ARTICLE 1(1)
(OBLIGATION TO RESPECT RIGHTS)
Arguments of the representatives
104. Although the representatives did not expressly allege the violation of the right
established in Article 22 of the American Convention, they argued the following:
a) the alleged victims have been deprived of their customary means of
subsistence due to their forcible expulsion from their traditional territory and
their continuing inability to return; as a result of the foregoing, they live in
poverty; and
47
b) forcible eviction or involuntary resettlement is prohibited under
international law because it does grave and disastrous harm to the basic civil,
political, economic, social and cultural rights of both individuals and
collectivities. In the case of tribal peoples, forcible eviction completely severs
their various relationships with their ancestral lands.
Arguments of the Commission
105. Although the Commission did not explicitly claim the violation of the right
established in Article 22 of the American Convention, it argued that – owing to the
ongoing impunity for the November 29, 1986 attack on Moiwana Village and the fact
that the perpetrators continue to hold power and influence in Suriname – the
Moiwana survivors remain fearful and unable to return to their traditional lands.
Furthermore, the Commission asserted that “[t]he [alleged] forced displacement [of
the Moiwana community members] brought about by the massacre and the absence
of any accountability for these violations [allegedly] continues to deny its members
protection for their basic rights and human dignity.”
Arguments of the State
106. Although the State did not expressly refer to an alleged violation of the right
enshrined in Article 22 of the American Convention, it nevertheless contended that:
a) the Moiwana survivors “have never been an isolated community, that
[…] practiced its own culture”;
b) “[a]lthough they have mostly fled to other places, they are regularly in
the northeast Marowijne coastal region of Suriname and/or elsewhere in the
country”; and
c) they move freely throughout the country. “No communications have
thereby ever reached the Suriname[se] Government that the rights of these
persons were violated or that they were intimidated.”
The Court’s Assessment
107. As already noted above (supra paragraph 91), as well as in numerous other
judgments, this Court has the competence, based upon the American Convention
and in light of the iura novit curia principle, to study the possible violation of
Convention provisions that have not been alleged in a case’s pleadings. Indeed, a
court has the duty to apply all appropriate legal standards – even when not expressly
invoked by the parties – in the understanding that those parties have had the
opportunity to express their respective positions with regard to the relevant facts.63
In this way, the Tribunal underscores that the facts to be considered in the present
chapter are grounded in the application and have been subsequently clarified over
the course of the litigation before this Court; thus, all of the parties involved have
had their due opportunity to present their positions with regard to said facts.64
63 Cf. Case of De la Cruz-Flores, supra note 59, para. 122; Case of the “Juvenile Reeducation
Institute,” supra note 59, paras. 125 and 126; and Case of the Gómez-Paquiyauri Brothers, supra note
59, para. 179.
64 Cf. Case of the “Juvenile Reeducation Institute,” supra note 59, para. 126.
48
108. The proven facts establish that Moiwana Village and its surrounding traditional
lands, formerly in habited by the Moiwana community members, have been
abandoned since the events of November 29, 1986 (supra paragraph 86(19)). Up to
the date of this judgment, Moiwana community members continue to be either
internally displaced within Suriname or live as refugees in French Guiana (supra
paragraph 86(18)). Thus, the Tribunal may properly exercise jurisdiction over the
ongoing nature of the community’s displacement, which – although initially produced
by the 1986 attack on Moiwana Village – constitutes a situation that persisted after
the State recognized the Tribunal’s jurisdiction in 1987 and continues to the present
day.
*
* *
109. Article 22 of the American Convention establishes:
1. Every person lawfully in the territory of a State Party has the right to move
about in it, and to reside in it subject to the provisions of the law.
2. Every person has the right to leave any country freely, including his own.
3. The exercise of the foregoing rights may be restricted only pursuant to a law to
the extent necessary in a democratic society to prevent crime or to protect
national security, public safety, public order, public morals, public health, or the
rights or freedoms of others.
4. The exercise of the rights recognized in paragraph 1 may also be restricted by
law in designated zones for reasons of public interest.
5. No one can be expelled from the territory of the state of which he is a national
or be deprived of the right to enter it.
[…]
110. This Court has held that liberty of movement is an indispensable condition for
the free development of a person.65 Furthermore, the Tribunal shares the views of
the United Nations Human Rights Committee as set out in its General Comment No.
27, which states that the right to freedom of movement and residence consists, inter
alia, in the following: a) the right of all those lawfully within a State to move freely in
that State, and to choose his or her place of residence; and b) the right of a person
to enter his or her country and the right to remain in one’s country. In addition, the
enjoyment of this right must not be made dependent on any particular purpose or
reason for the person wanting to move or to stay in a place.66
111. Of particular relevance to the present case, the UN Secretary General’s
Special Representative on Internally Displaced Persons issued Guiding Principles in
1998,67 which are based upon existing international humanitarian law and human
65 Cf. Case of Ricardo Canese. Judgment of August 31, 2004. Series C No. 111, para. 115; U.N.,
Human Rights Committee, General Comment no. 27, November 2, 1999.
66 Cf. Case of Ricardo Canese, supra note 65, para. 115; U.N., Human Rights Committee, General
Comment no. 27, November 2, 1999, paras. 1, 4, 5 and 19.
67 U.N. Guiding Principles on Internal Displacement, E/CN.4/1998/53/Add.2. February 11, 1998.
49
rights standards. The Court considers that many of these guidelines illuminate the
reach and content of Article 22 of the Convention in the context of forced
displacement. For the purposes of the instant case, then, the Tribunal emphasizes
the following Principles:
1(1). Internally displaced persons shall enjoy, in full equality, the same rights
and freedoms under international and domestic law as do other persons in their
country. They shall not be discriminated against in the enjoyment of any rights
and freedoms on the ground that they are internally displaced.
5. All authorities and international actors shall respect and ensure respect for
their obligations under international law, including human rights and humanitarian
law, in all circumstances, so as to prevent and avoid conditions that might lead to
displacement of persons.
8. Displacement shall not be carried out in a manner that violates the rights
to life, dignity, liberty and security of those affected.
9. States are under a particular obligation to protect against the displacement
of indigenous peoples, minorities, peasants, pastoralists and other groups with a
special dependency on and attachment to their lands.
14(1). Every internally displaced person has the right to liberty of movement and
freedom to choose his or her residence.
28(1). Competent authorities have the primary duty and responsibility to
establish conditions, as well as provide the means, which allow internally displaced
persons to return voluntarily, in safety and with dignity, to their homes or places
of habitual residence, or to resettle voluntarily in another part of the country.
Such authorities shall endeavour to facilitate the reintegration of returned or
resettled internally displaced persons.
112. Turning to the pleadings of the case sub judice, the representatives have
submitted arguments on the general subject of Article 22 of the Convention, stating
that the Moiwana community members have suffered a “forced eviction” from their
ancestral lands, and asserting that, since the events of November 29, 1986,
Suriname has not made any effort “to assist or facilitate [their] return” to those
lands. On the contrary, the representatives argue, “[the State’s] acts and omissions,
that violate the American Convention, have made it impossible for the [alleged]
victims to return” to Moiwana Village.
113. The record clearly demonstrates that, until the Moiwana community members
obtain justice for the events of 1986, they are convinced that they cannot return to
their ancestral territory. Andre Ajintoena testified that after the attack he briefly
visited the area with others only to document and take pictures of the site. Once the
group had finished, many felt ill; according to Mr. Ajintoena, they realized that
“things weren’t right, it wasn’t proper, because according to our culture you can’t go
back to the place without having arrangements made.” By having returned without
“applying the religious [and] cultural rules” – that is, performing the necessary death
rituals and achieving reconciliation with the spirits of those killed in the 1986 raid
(supra paragraph 86(7) – 86(9)) – Mr. Ajintoena and the others believed that they
had seriously offended those spirits and, as a result, began to suffer physical and
psychological maladies. All of the community members who testified before the
Court expressed a similar fear of avenging spirits, and affirmed that they could only
live in Moiwana Village again if their traditional lands first were purified.
50
114. Moreover, the Moiwana survivors have conveyed deep concern that they
could once more suffer aggressions as a community if they take up residence again
in their homeland, which is located in an area that was targeted during several army
operations over the course of the internal conflict (supra paragraph 86(43)). Mr.
Ajintoena stated as follows:
the religious cleansing, the purification of the land, that is one aspect of it; but
secondly, we don’t know who the perpetrators are. There has been no
investigation, so the guarantee should also be given that upon return we will not
be confronted with the same type of problems that occurred in 1986.
The community members’ fear of future persecution is well illustrated by the case of
those survivors, such as Mr. Ajintoena, who have remained exiled in French Guiana.
In 1991, arrangements were made – through the assistance of the UNHCR – for the
thousands of Surinamese refugees, the great majority of them Maroons, to
participate in national elections (supra paragraph 86(21)). Nevertheless, few
Maroons dared to cross the Maroni River to vote on Surinamese soil.
115. Also in 1991, the Surinamese refugees presented their conditions for
repatriation to a commission comprised of representatives from the UNHCR and the
governments of Suriname and French Guiana (supra paragraph 86(22)). Those
requirements, which were never acted upon by said commission, demanded that
Suriname ensure their safety and freedom, as well as that those responsible for
having killed civilians during the internal conflict would be investigated and
prosecuted. The Court considers it particularly noteworthy, furthermore, that when
the official refugee camps in French Guiana were closed in 1992, the French
government allowed a certain population to remain. The majority of the members of
that group were Moiwana community members, who refused to return to Suriname
without guarantees for their safety (supra paragraph 86(23)). The French
government recognized the particular dangers those individuals faced by granting
them renewable permits to reside in French Guiana; in 1997, they were provided
with five or ten-year residency permits.
116. In a relevant case before the UN Human Rights Committee, a Colombian civil
rights attorney was forced into exile in the United Kingdom after receiving numerous
death threats and suffering an attempt against his life.68 At the time of the
Committee’s decision, ten years had passed after the assassination attempt, and the
outcome of the criminal investigation in Colombia was still not known. With regard
to the victim’s claims that his right to freedom of movement and residence had been
violated, the Committee held the following:
considering the Committee’s view that the right to security of person (art. 9, para.
1) was violated and that there were no effective domestic remedies allowing the
author to return from involuntary exile in safety, the Committee concludes that the
State party has not ensured to the author his right to remain in, return to and
reside in his own country. Paragraphs 1 and 4 of article 12 of the Covenant were
therefore violated.69
68 U.N. Human Rights Committee, Communication No. 859/1999: Colombia. April 15, 2002.
69 U.N. Human Rights Committee, Communication No. 859/1999: Colombia. April 15, 2002, para.
7.4.
51
117. In the instant case, as discussed above, many Moiwana community members
have remained in French Guiana, owing to fears for their safety and the failure of the
State’s criminal investigation. Nevertheless, in 1993 a minority of the community
members returned to Suriname and were placed in a temporary reception center in
Moengo – yet, many remain in the reception center to this day, as they haven’t been
provided with a suitable alternative. Ms. Difienjo expressed indignation at the State’s
approach to the refugees in general; she testified that, although Moiwana community
members have written the State letters, government officials have very rarely visited
them in French Guiana or attended to their needs: “they consider us like dogs: you
can kill them, you don’t have to pay that much attention to them.” As established
previously (supra paragraph 86(18)), since their flight from Moiwana Village in 1986,
both the refugees in French Guiana and those who never left Suriname have typically
faced impoverished conditions and lack access to many basic services.
118. In sum, only when justice is obtained for the events of November 29, 1986
may the Moiwana community members: 1) appease the angry spirits of their
deceased family members and purify their traditional land; and 2) no longer fear that
further hostilities will be directed toward their community. Those two elements, in
turn, are indispensable for their permanent return to Moiwana Village, which many –
if not all – of the community members wish to accomplish (supra paragraph 86(43)).
119. The Court observes that Suriname has disputed that the Moiwana survivors
suffer restrictions upon their travels or residence; in that regard, the State asserts
that they may indeed move freely throughout the country. Regardless of whether a
legal disposition actually exists in Suriname that establishes such a right – upon
which the Tribunal deems it unnecessary to rule – in this case the Moiwana survivors’
freedom of movement and residence is circumscribed by a very precise, de facto
restriction, originating from their well-founded fears described above, which excludes
them only from their ancestral territory.
120. Thus, the State has failed to both establish conditions, as well as provide the
means, that would allow the Moiwana community members to return voluntarily, in
safety and with dignity, to their traditional lands, in relation to which they have a
special dependency and attachment – as there is objectively no guarantee that their
human rights, particularly their rights to life and to personal integrity, will be secure.
By not providing such elements – including, foremost, an effective criminal
investigation to end the reigning impunity for the 1986 attack – Suriname has failed
to ensure the rights of the Moiwana survivors to move freely within the State and to
choose their place of residence. Furthermore, the State has effectively deprived
those community members still exiled in French Guiana of their rights to enter their
country and to remain there.
121. For the foregoing reasons, the Court declares that Suriname violated Article
22 of the American Convention, in relation to Article 1(1) of that treaty, to the
detriment of the Moiwana community members.
52
XI
ARTICLE 21 OF THE AMERICAN CONVENTION
(RIGHT TO PROPERTY)
IN RELATION TO ARTICLE 1(1)
(OBLIGATION TO RESPECT RIGHTS)
Arguments of the representatives
122. The representatives argued that the State violated the right to property
established in Article 21 of the American Convention based on the following
considerations:
a) while the initial alleged violation – forcible expulsion of the community
from its traditional lands and territory – took place on November 29, 1986,
prior to Suriname’s accession to the Convention and acceptance of the Court’s
jurisdiction, as a matter of fact and law, the violation of Article 21 is of a
continuing nature;
b) continuing violations are particularly common in cases where
indigenous and tribal peoples have been forcibly removed from their
traditional lands;
c) the Governing Body of the International Labor Organization has
routinely exercised jurisdiction over the consequences of such relocations,
particularly as they relate to property rights, which persist even in cases
where the originating event took place decades prior to the entry into force of
Convention No. 169;
d) the alleged victims continue to be deprived of their property rights by
the following acts and omissions of the State: i) the denial of justice, which in
itself deters the alleged victims from reestablishing their community on their
traditional lands; and ii) the failure of Suriname to establish legislative or
administrative mechanisms for the alleged victims to assert and secure their
rights of tenure in accordance with N’djuka customary law, values and usage;
e) the alleged victims’ property rights are guaranteed and protected
under Article 21 of the Convention, which has an autonomous meaning and is
not restricted to property as defined by domestic legal regimes; the provision
also protects the rights to property of “members of […] indigenous
communities within the framework of communal property”;
f) the alleged victims have been deprived of their customary means of
subsistence due to their forcible expulsion from their traditional territory and
their continuing inability to return; as a result, they live in poverty; and
g) forcible eviction or involuntary resettlement is prohibited under
international law because it does grave and disastrous harm to the basic civil,
political, economic, social and cultural rights of both individuals and
collectivities. In the case of tribal peoples, forcible eviction completely severs
their various relationships with their ancestral lands.
53
Arguments of the Commission
123. The Commission did not specifically submit arguments of law regarding the
alleged violation of the right established in Article 21 of the American Convention.
Arguments of the State
124. The State also did not expressly present arguments of law regarding the
alleged violation of the right established in Article 21 of the American Convention.
The Court’s Assessment
125. The Court once again notes that the Commission did not submit explicit
arguments regarding the alleged violation of the right enshrined in Article 21 of the
American Convention. Yet it recalls (supra paragraph 91) that the representatives
may argue other violations of the Convention than those alleged by the Commission,
as long as such legal arguments are based upon the facts delineated in the
application.70
126. Furthermore, as established in the chapter concerning Article 22 of the
American Convention (supra paragraph 108), the Court may properly exercise
jurisdiction over the ongoing nature of the community’s displacement from its
traditional lands, which constitutes a situation that persisted after the State
recognized the Tribunal’s competence in 1987 and continues to the present day.
*
* *
127. Article 21 of the American Convention provides:
1. Everyone has the right to the use and enjoyment of his property. The law may
subordinate such use and enjoyment to the interest of society.
2. No one shall be deprived of his property except upon payment of just
compensation, for reasons of public utility or social interest, and in the cases and
according to the forms established by law.
[…]
128. In the preceding chapter regarding Article 22 of the Convention, the Court
held that the State’s failure to carry out an effective investigation into the events of
November 29, 1986, leading to the clarification of the facts and punishment of the
responsible parties, has directly prevented the Moiwana community members from
voluntarily returning to live in their traditional lands. Thus, Suriname has failed to
both establish the conditions, as well as provide the means, that would allow the
community members to live once again in safety and in peace in their ancestral
territory; in consequence, Moiwana Village has been abandoned since the 1986
attack.
70 Cf. Case of De la Cruz-Flores, supra note 59; Case of the “Juvenile Reeducation Institute,” supra
note 59, para. 125; and Case of the Gómez-Paquiyauri Brothers, supra note 59, para. 179.
54
129. In order to determine whether such circumstances constitute the deprivation
of a right to the use and enjoyment of property, naturally, this Court must first
assess whether Moiwana Village belongs to the community members, bearing in
mind the broad concept of property developed in the Tribunal’s jurisprudence.
130. The parties to the instant case are in agreement that the Moiwana community
members do not possess formal legal title – neither collectively nor individually – to
their traditional lands in and surrounding Moiwana Village. According to submissions
from the representatives and Suriname, the territory formally belongs to the State in
default, as no private individual or collectivity owns official title to the land.
131. Nevertheless, this Court has held that, in the case of indigenous communities
who have occupied their ancestral lands in accordance with customary practices –
yet who lack real title to the property – mere possession of the land should suffice to
obtain official recognition of their communal ownership.71 That conclusion was
reached upon considering the unique and enduring ties that bind indigenous
communities to their ancestral territory. The relationship of an indigenous
community with its land must be recognized and understood as the fundamental
basis of its culture, spiritual life, integrity, and economic survival.72 For such
peoples, their communal nexus with the ancestral territory is not merely a matter of
possession and production, but rather consists in material and spiritual elements that
must be fully integrated and enjoyed by the community, so that it may preserve its
cultural legacy and pass it on to future generations.73
132. The Moiwana community members are not indigenous to the region;
according to the proven facts, Moiwana Village was settled by N’djuka clans late in
the 19th Century (supra paragraph 86(11)). Nevertheless, from that time until the
1986 attack, the community members lived in the area in strict adherence to N’djuka
custom. Expert witness Thomas Polimé described the nature of their relationship to
the lands in and around Moiwana Village:
[the] N’djuka, like other indigenous and tribal peoples, have a profound and allencompassing
relationship to their ancestral lands. They are inextricably tied to
these lands and the sacred sites that are found there and their forced
displacement has severed these fundamental ties. Many of the survivors and next
of kin locate their point of origin in and around Moiwana Village. Their inability to
maintain their relationships with their ancestral lands and its sacred sites has
deprived them of a fundamental aspect of their identity and sense of well being.
Without regular commune with these lands and sites, they are unable to practice
and enjoy their cultural and religious traditions, further detracting from their
personal and collective security and sense of well being.
133. In this way, the Moiwana community members, a N’djuka tribal people,
possess an “all-encompassing relationship” to their traditional lands, and their
concept of ownership regarding that territory is not centered on the individual, but
rather on the community as a whole.74 Thus, this Court’s holding with regard to
71 Cf. Case of the Mayagna (Sumo) Awas Tingni Community. Judgment of August 31, 2001. Series
C No. 79, para. 151.
72 Cf. Case of the Mayagna (Sumo) Awas Tingni Community, supra note 71, para. 149.
73 Cf. Case of the Mayagna (Sumo) Awas Tingni Community, supra note 71, para. 149.
74 Cf. Case of the Mayagna (Sumo) Awas Tingni Community, supra note 71, para. 149.
55
indigenous communities and their communal rights to property under Article 21 of
the Convention must also apply to the tribal Moiwana community members: their
traditional occupancy of Moiwana Village and its surrounding lands – which has been
recognized and respected by neighboring N’djuka clans and indigenous communities
over the years (supra paragraph 86(4)) – should suffice to obtain State recognition
of their ownership. The precise boundaries of that territory, however, may only be
determined after due consultation with said neighboring communities (infra
paragraph 210).
134. Based on the foregoing, the Moiwana community members may be
considered the legitimate owners of their traditional lands; as a consequence, they
have the right to the use and enjoyment of that territory. The facts demonstrate,
nevertheless, that they have been deprived of this right to the present day as a
result of the events of November 1986 and the State’s subsequent failure to
investigate those occurrences adequately.
135. In view of the preceding discussion, then, the Court concludes that Suriname
violated the right of the Moiwana community members to the communal use and
enjoyment of their traditional property. In consequence, the Tribunal holds that the
State violated Article 21 of the American Convention, in relation to Article 1(1) of
that treaty, to the detriment of the Moiwana community members.
XII
ARTICLES 8 AND 25 OF THE AMERICAN CONVENTION
(JUDICIAL GUARANTEES AND JUDICIAL PROTECTION)
IN RELATION TO ARTICLE 1(1)
(OBLIGATION TO RESPECT RIGHTS)
Arguments of the Commission
136. The Commission argued in its application that the State is responsible for the
violation of the rights to judicial guarantees and to judicial protection established in
Articles 8 and Article 25, of the American Convention, respectively, based upon the
following considerations:
a) the alleged victims and their families were unable to invoke and
exercise their right under Article 25 of the Convention to a simple, prompt
and effective judicial recourse for the protection of their rights;
b) the efforts of the alleged victims and their families were met with
institutional resistance and failed to produce substantive results;
consequently, they have been denied not only their right to an effective
investigation designed to establish the violations and corresponding
responsibility, but also their right to seek reparation for the consequences of
those violations;
c) the obligation to provide judicial protection is not met simply by the
formal existence of legal remedies; rather, states must take specific measures
to ensure that judicial protection is effective;
56
d) the judicial remedies theoretically available through the legal system
have proven completely illusory in the present case, as the alleged victims
have never succeeded in obtaining an adequate investigation of the attack on
Moiwana Village, although the attack included multiple crimes requiring an
investigation ex officio, including, but not limited to, murder, battery and
destruction of property;
e) the only reported efforts to carry out an investigation in the instant
case, those headed by Inspector Gooding, reached a stage at which a number
of members of the armed forces were arrested, only to be liberated by a siege
conducted by the military police;
f) although this action to release the detained soldiers was an open and
notorious breach of the authority of the military police, it was not met with
any official sanction. To the contrary, the investigation of the attack on
Moiwana Village was suspended following the murder of Inspector Gooding, in
circumstances that have themselves never been clarified. In this way, the
authorities responsible for carrying out an investigation have either been
intimidated or directly prevented from applying due diligence to investigate
the attack;
g) in addition to a state’s obligation to investigate suspected human
rights violations ex officio, Surinamese law establishes the right of a victim to
petition as a party for a criminal investigation. The alleged victims, then, had
a fundamental civil right to go to the courts, and thereby play an important
role in propelling the criminal case forward; however, that right cannot be
realized when the investigation process is obstructed;
h) family members are entitled to know the facts and circumstances with
respect to the fate of their loved ones. They are also entitled to a judicial
investigation by a criminal court in order to establish responsibility for human
rights violations;
i) the amnesty law adopted by the State fosters the impunity prevalent
in Suriname after the attack on Moiwana Village. Since the initiatives to
investigate never reached the stage of prosecution, the amnesty law was
never applied in the instant case. Nevertheless, evidence suggests that the
law had the effect of indicating to relevant officials that those responsible for
violations committed during the relevant time period were not to be held
accountable; and
j) the amnesty law continues to be interpreted by many as precluding
any measures to identify, prosecute and punish those responsible for the
attack on Moiwana Village; and thereby contributes to the prevailing of
impunity, both in the present case and in others of Suriname.
Arguments of the representatives
137. The representatives agreed with the Commission that the State violated the
aforementioned rights to judicial guarantees and to judicial protection, and argued as
follows:
57
a) the evidence before the Court demonstrates that all of the alleged
victims actively and repeatedly sought legal recourse in Suriname, but their
attempts to obtain justice were ignored, rebuffed, and obstructed, and
produced no result;
b) as a result of Suriname’s failure to provide effective judicial protection
and guarantees, as well as the State’s affirmative obstruction of justice, the
alleged victims have been denied not only their right to an effective
investigation designed to clarify the facts and assign responsibility, but also
their right to seek reparation for the consequences of the violations
perpetrated against them;
c) Suriname has affirmatively obstructed justice in this case, both
through the actions of military officials in 1989 and through invocation of the
“Amnesty Act 1989” in relation to the initial investigation of human remains in
1993;
d) Suriname bears an “aggravated international responsibility” for its
obstruction of justice in this case and its continuing tolerance of that
obstruction. Furthermore, the denial of justice in this case must also be
viewed in the light of the “extreme gravity” of the underlying violations; in
this regard, there is an affirmative obligation on the State to prosecute in
cases of crimes against humanity.
Arguments of the State
138. Regarding the alleged violation of the rights enshrined in Articles 8 and 25 of
the American Convention, the State argued that:
a) if the State can prove in the instant case that it offered adequate
judicial protection after its accession to the Convention, then there would be
no violation of Article 25, assuming that the Court accepts the argument of a
“continuous violation”;
b) the State has commenced a criminal investigation that is still ongoing,
and has no intention to let any offense committed go unpunished;
c) there is no unwillingness or inability of the State to investigate,
prosecute and punish those who committed the alleged human rights
violations against the residents of Moiwana Village. Suriname has not refused
in the past or in the present to provide justice for the alleged attack, nor did it
obstruct justice in this case; and
d) although the alleged victims have urged the State to launch an
independent criminal investigation, they have failed to “report an offence”; on
the other hand, they have not commenced civil proceedings before the
authorities;
e) in 1989 a criminal investigation was started, without having been
initiated by the victims or the petitioners; however, at that moment
“democracy was still not stable,” and, as a result, the climate was not suitable
to carry out a sufficient investigation;
58
f) a criminal investigation into the events of November 29, 1986
resumed in August 2002 and is now being carried out in accordance with the
national statutory provisions, for the purpose of prosecuting and punishing
any guilty parties;
g) the political situation in Suriname is now appropriate for a structured
approach toward the criminal investigation of the Moiwana case, as well as of
other events occurring during the 1980s and early 1990s. A team has been
established, consisting of investigating officers and headed by a chief public
prosecutor;
h) the victims and their families had and still have the opportunity to
invoke and exercise their right to a simple, prompt and effective judicial
recourse for the protection of their rights;
i) the most effective manner to obtain damages and remedy is the civil
process. The Surinamese Code of Civil Procedure offers everyone the
opportunity to commence a civil action on the basis of one or more legal
provisions; although such an action could have been instituted against the
State, this has not been done in the instant case;
j) the Legal Aid Office of the Ministry of Justice and Police provides legal
assistance to economically-disadvantaged individuals;
k) the original petitioner, Moiwana ’86, is aware of the abovementioned
possibility to obtain one’s right to justice, since that organization instituted, at
the national level, an action against the State to declare the “Amnesty Act
1989” non-binding;
l) through the adoption of the “Amnesty Act 1989,” no rights of
individuals were violated. “If the State waives prosecution of certain persons
[…] or postpones prosecution until an appropriate time, then it would have
only postponed or waived the use of a certain means to enforce or protect
such rights”;
m) A state has both the right and the authority “to postpone or to waive
the use of a certain means of law enforcement,” when the use of such means
would seriously compromise the protection of other important interests that
form part of that government’s responsibilities, such as bringing about peace
and order;
n) in drafting the “Amnesty Act 1989” “the legislator did not envisage
impunity of possible perpetrators of events in Moiwana Village”;
o) the “Amnesty Act 1989” is not contrary to international law, given the
fact that a number of States have granted a similar amnesty, “with the
cooperation of the Organization of American States and the Organization of
African Unity”;
p) the “Amnesty Act 1989” does not apply to crimes against humanity.
Not every infringement on the rights granted to man is included under the
title of crimes against humanity; it only includes crimes that are committed
within the framework of a systematic violation of human rights with the object
59
to destroy or decimate a certain group of people, or at least deprive them of a
place within normal society. Such a group is identified on the basis of
national character, ethnicity, race or religion; and
q) the “Amnesty Act 1989” expressly excludes crimes against humanity
from amnesty and “is incorrectly considered as a tool for denial of justice.”
“If, after investigation, it appears that the events at Moiwana must be
qualified as a system of terror against the population or parts thereof, which
means that it can be reasonably verified that there is systematic violation of
human rights, then these events, according to the law, are excluded from
amnesty.”
The Court’s Assessment
139. Article 8(1) of the American Convention establishes:
Every person has the right to a hearing, with due guarantees and within a
reasonable time, by a competent, independent, and impartial tribunal, previously
established by law, in the substantiation of any accusation of a criminal nature
made against him or for the determination of his rights and obligations of a civil,
labor, fiscal, or any other nature.
140. Article 25 of the Convention provides:
1. Everyone has the right to simple and prompt recourse, or any other
effective recourse, to a competent court or tribunal for protection against acts that
violate his fundamental rights recognized by the constitution or laws of the state
concerned or by this Convention, even though such violation may have been
committed by persons acting in the course of their official duties.
2. The States Parties undertake:
a. to ensure that any person claiming such remedy shall have his rights
determined by the competent authority provided for by the legal system of the
state;
b. to develop the possibilities of judicial remedy; and
c. to ensure that the competent authorities shall enforce such remedies when
granted.
141. The Court has held above that it lacks jurisdiction over the events of
November 29, 1986 in Moiwana Village; nevertheless, the Tribunal does have
competence to examine the State’s fulfillment of its obligation to investigate those
occurrences (supra paragraph 43). The following assessment will establish whether
that obligation was carried out pursuant to the standards set forth in Articles 8 and
25 of the American Convention.
142. The Court has affirmed that, under the American Convention, States Parties
have an obligation to provide effective judicial remedies to victims of human rights
violations (Article 25) – remedies that must be substantiated in accordance with the
rules of due process of law (Article 8(1)) – all in keeping with the general obligation
60
of such States to guarantee the free and full exercise of the rights recognized by the
Convention to all persons subject to their jurisdiction.75
143. In similar cases, this Court has established that “in order to clarify whether
the State has violated its international obligations owing to the acts of its judicial
organs, the Court may have to examine the respective domestic proceedings.”76
Adhering to precedent, then, the Tribunal will consider the entirety of the relevant
national proceedings in the instant case, in order to make an informed determination
as to whether the Convention’s abovementioned provisions regarding judicial
protection and due process have been violated.77 The Court’s assessment will
involve a discussion of the following elements: a) the appropriate legal remedy under
the circumstances of the present case; b) the effectiveness of said remedy; and c)
the reasonableness of the length of proceedings.
a) The appropriate legal remedy
144. Throughout the proceedings before this Court, the State has maintained that
the Moiwana community members should have instituted civil actions in national
courts to obtain redress for the various human rights violations they claim to have
suffered. Suriname has stated that “the most effective manner to obtain damages
and repair is the civil process,” and “it is a clear-cut case that petitioners should have
filed a civil suit to receive compensation for material and [moral] damages.” In this
regard, Suriname has offered evidence that actions against the State for
compensation have proven to be successful, yet has noted that there is no record
that community members have filed such civil suits in national courts (supra
paragraph 86(38)).
145. The Court observes that, eventually, civil actions may serve as a means of
reparations for the human rights violations suffered by Moiwana community
members at the hands of State agents and collaborators. However, it has been
proven (supra paragraph 86(15)), as well as expressly recognized by Suriname, that
State actors were involved in the November 29, 1986 attack that killed at least 39
defenseless Moiwana Village residents – including infants, women and the elderly –
and wounded many others. Thus, the facts portray a disturbing scenario of multiple
extrajudicial executions; with respect to such a situation, the Tribunal’s case law is
unmistakable: the State has an ex officio duty to initiate, without delay, a serious,
impartial, and effective investigation.78
146. Upon its accession to the American Convention in 1987, then, the first legal
remedy Suriname was obligated to provide was a swift and exhaustive judicial
investigation into the events of November 29, 1986. The Court has held that such
an investigation must be undertaken in a serious manner and not as a mere
75 Cf. Case of the Serrano-Cruz Sisters, supra note 9, para. 76; Case of 19 Merchants. Judgment of
July 5, 2004. Series C No. 109, para 194; and Case of Las Palmeras. Judgment of December 6, 2001.
Series C No. 90, para. 60.
76 Cf. Case of the Serrano-Cruz Sisters, supra note 9, para. 57; Case of Lori Berenson-Mejía, supra
note 10, para. 133; and Case of 19 Merchants, supra note 75, para 182.
77 Cf. Case of the Serrano-Cruz Sisters, supra note 9, para. 58.
78 Cf. Case of Juan Humberto Sánchez. Judgment of June 7, 2003. Series C No. 99, paras. 127 and
132.
61
formality predestined to be ineffective.79 Moreover, this effective search for the truth
is the State’s responsibility, and decidedly does not depend upon the initiative of
victims and their family members or upon their submission of evidence.80
147. During the investigative process and judicial proceedings, the Tribunal has
asserted that victims of human rights violations, or their family members, must have
ample opportunities to participate and be heard, as much in the clarification of facts
and the punishment of responsible parties, as in their pursuit of due compensation.81
Indeed, the Court has established that victims of rights violations and their family
members have a right to know the truth regarding those violations – that is, to be
informed about the relevant facts and the responsible parties.82 Therefore, the
Moiwana community members have the following rights: to have the deaths and
violations to personal integrity occurring in 1986 effectively investigated by state
authorities, to have those responsible for the unlawful acts prosecuted and
appropriately punished, and to receive compensation for damages and injuries
suffered.83
b) The effectiveness of the official investigation in the instant case
148. Thus, in response to the extrajudicial killings that occurred on November 29,
1986, the foremost remedy provided should have been an effective, state-sponsored
investigation and judicial process, leading to the clarification of the facts, punishment
of the responsible parties, and appropriate compensation. In order to judge the
effectiveness of the State’s investigation in the present case, the Court will consider
whether the official efforts were conducted with due diligence.84
149. In this regard, the Tribunal has previously specified the basic guidelines to
follow subsequent to a death suspected to have been an extrajudicial execution. At
a minimum, state authorities conducting an inquiry shall seek, inter alia: a) to
identify the victim; b) to recover and preserve evidentiary material related to the
death in order to aid in any potential prosecution of those responsible; c) to identify
possible witnesses and obtain statements from them concerning the death; d) to
determine the cause, manner, location and time of death, as well as any pattern or
practice that may have brought about the death; and e) to distinguish between
79 Cf. Case of the Serrano-Cruz Sisters, supra note 9, para. 61; Case of Bulacio. Judgment of
September 18, 2003. Series C No. 100, para. 112; and Case of Juan Humberto Sánchez, supra note 78,
para. 144.
80 Cf. Case of the Serrano-Cruz Sisters, supra note 9, para. 61; Case of 19 Merchants, supra note
75, para. 184; and Case of Bulacio, supra note 79, para. 112.
81 Cf. Case of the Serrano-Cruz Sisters, supra note 9, para. 63; Case of 19 Merchants, supra note
75, para. 186; and Case of Las Palmeras, supra note 75, para. 59.
82 Cf. Case of the Serrano-Cruz Sisters, supra note 9, para. 62; Case of Carpio-Nicolle et al.
Judgment of November 22, 2004. Series C No. 117, para. 128; and Case of Plan de Sánchez Massacre.
Reparations (Art. 63.1 American Convention on Human Rights). Judgment of November 19, 2004. Series
C No. 116, para. 97.
83 Cf. Case of the Serrano-Cruz Sisters, supra note 9, para. 64; Case of 19 Merchants, supra note
75, para. 187; and Case of Las Palmeras, supra note 75, para. 59.
84 Cf. Case of the Serrano-Cruz Sisters, supra note 9, para. 65; Case of Carpio-Nicolle et al., supra
note 82, para. 129; and Case of Plan de Sánchez Massacre. Reparations, supra note 82, para. 98.
62
natural death, accidental death, suicide and homicide.85 The Court further notes
that: a) the crime scene must be exhaustively investigated and b) autopsies, as well
as analyses of skeletal remains, must be rigorously performed by competent
professionals, employing the most appropriate procedures.86
150. Turning to the instant case, the proven facts indicate that the civilian police
began an investigation into the November 29, 1986 events at Moiwana Village in
1989, over two years after the attack (supra paragraph 86(25)). During March and
April of 1989, Inspector Herman Gooding, who was in charge of said investigation,
questioned several suspects and arrested at least two individuals, Frits Moesel and
Orlando Swedo (supra paragraph 86(25)). Nevertheless, shortly after Mr. Swedo was
placed in state custody, a fully-armed contingent of military police arrived at the
police station and forcibly obtained his release (supra paragraph 86(26)). Following
the siege of the civilian police station, Army Commander Desire Bouterse issued a
statement, by which he confirmed the following: a) that the operation in Moiwana
Village was a military action which he himself had ordered; b) that he would not
allow military operations to be investigated by the civilian police; and c) that he had
required the release of Mr. Swedo (supra paragraph 86(27)).
151. The official investigation was then abandoned until May of 1993, when
Moiwana ’86 discovered a mass grave near Moiwana Village and notified the Office of
the Attorney General (supra paragraph 86(31)). The grave site was then visited on
two occasions – May 29 and June 9, 1993 – by military and civilian police, a
pathologist and Moiwana ’86 (supra paragraph 86(31)). The team uncovered human
remains, which were taken to Paramaribo for further analysis (supra paragraph
86(31)). Subsequently, however, state authorities reported only that the remains
corresponded to five to seven adults and two to three children; the identification of
the corpses or further information regarding the grave site have not been provided
by the State (supra paragraph 86(31)).
152. The Court observes with grave concern that only the limited investigative
steps described above have been performed by Suriname since the events of
November 29, 1986. Furthermore, the State has maintained this posture of
indifference despite a directive adopted on December 19, 1995 by the National
Assembly of Suriname, requesting the Executive Branch “to instigate an immediate
investigation” into human rights violations committed during the military regime
(supra paragraph 86(32)).
153. In efforts to explain the troublesome lack of results, the State has remarked
that the political climate in Suriname after the 1986 attack prevented “an
independent and impartial investigation,” since “the position of power held by the
former military leaders had not yet ended and […] democracy was still not stable.”
In this regard, the Court acknowledges the difficult circumstances endured by the
nation of Suriname in its struggle for democracy. Nevertheless, country conditions,
however difficult, generally may not release a State Party to the American
85 Cf. Case of Juan Humberto Sánchez, supra note 78, paras. 127 and 132; and U.N. Manual on the
Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, U.N. Doc
E/ST/CSDHA/.12 (1991).
86 Cf. Case of Juan Humberto Sánchez, supra note 78, paras. 127 and 132; and U.N. Manual on the
Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, U.N. Doc
E/ST/CSDHA/.12 (1991).
63
Convention from the legal obligations set out in that treaty, and particularly not in a
case of extrajudicial executions.87 The Tribunal has held that by carrying out or
tolerating actions leading to extrajudicial killings, by not investigating such actions
adequately, and by not punishing those responsible, the State breaches its duty to
ensure the rights recognized in the Convention and prevents the society as a from
learning the truth regarding those facts.88
154. For their part, the alleged victims and the organizations acting on their behalf,
Moiwana ’86 and Association Moiwana, have repeatedly sought an official
investigation into the attack on Moiwana Village. For example, according to the
proven facts, on May 24, 1993, Moiwana ’86 reported the discovery of the mass
grave site to the Attorney General and urged an investigation of the attack and the
prosecution of those responsible (supra paragraph 86(31)). On August 23, 1993,
Moiwana ’86 directed another letter to the Attorney General that requested
information on the state of the criminal investigation (supra paragraph 86(34)).
155. Moreover, as recounted in the proven facts (supra paragraph 86(35)),
following the National Assembly’s motion, Moiwana ’86 filed two formal requests in
1996 with the Attorney General for a proper investigation into the attack. Having
received no response, Moiwana ’86 contacted the President of the Court of Justice.
On August 21, 1996, the President of the Court of Justice instructed the Attorney
General to submit to that Court, pursuant to Article 4 of the Code of Criminal
Procedure, a report on the matter, to be accompanied by any available police files.
However, the Office of the Attorney General never substantively responded to these
requests filed by the President of the Court of Justice and Moiwana ’86.
156. Suriname’s manifest inactivity in the face of this case’s extremely serious
facts – despite pressures to investigate the 1986 attack from the alleged victims as
well as the State’s own legislative branch – shows a patent disregard for the principle
of due diligence. Indeed, as recently as the public hearing held before this Court on
September 9, 2004, not even Suriname’s Attorney General himself could describe
with any degree of specificity the current state of the Moiwana investigation. The
Tribunal, then, shares the assessment of the United Nations Human Rights
Committee, which, in its 2004 Concluding Observations on the human rights
situation in Suriname, stated:
investigations into […] the 1986 Moiwana massacre remain pending and have not
yet produced concrete results. [The information supplied that the case is] still
being investigated is disturbing, especially given the lapse of time since [its]
occurrence. The Committee further considers that this situation reflects a lack of
effective remedies available to victims of human rights violations […].89
*
* *
87 Cf. Case of the Serrano-Cruz Sisters. Preliminary Objections, supra note 1, para. 118; and Case
of Bámaca-Velásquez. Judgment of November 25, 2000. Series C No. 70, para. 207.
88 Cf. Case of Juan Humberto Sánchez, supra note 78, para. 134; Case of Trujillo-Oroza.
Reparations (Art. 63(1) American Convention on Human Rights). Judgment of February 27, 2002. Series C
No. 92, para. 99 – 101 and 109; and Case of Bámaca-Velásquez. Reparations (Art. 63(1) American
Convention on Human Rights). Judgment of February 22, 2002. Series C No. 91, paras. 74 – 77.
89 U.N. Human Rights Committee. Concluding Observations: Suriname. CCPR/CO/80/SUR. May 4,
2004.
64
157. The Court further observes that there is abundant evidence in the record that
attests to the involvement of Suriname’s military regime in the overt obstruction of
justice in the instant case. Army Commander Desire Bouterse’s forcible release of
Orlando Swedo and his statement forbidding the further investigation of military
operations by the civilian police serve as irrefutable examples.
158. The proven facts (supra paragraphs 86(28), 86(29) and 86(37)) also
demonstrate that essential actors in the search for justice in the present case
suffered serious violence and harassment: a) on August 4, 1990, Inspector Herman
Gooding, following his meeting with the Deputy Commander of the military police,
was murdered; b) some police investigators that collaborated with Inspector Gooding
faced life-threatening circumstances and, consequently, fled Suriname; c) Stanley
Rensch, founder of Moiwana ’86, survived an assassination attempt and was
arbitrarily arrested four times; eventually, he also sought refuge abroad; and d)
those who collaborated with Moiwana ’86 to obtain justice for the 1986 attack and
related human rights abuses were often threatened and harassed; as a result, some
found it necessary to leave Suriname for their own safety (infra paragraph 207).
159. This Court considers that the purpose of such violence and threats was to
deter the aforementioned individuals from their respective roles in the investigation
and clarification of the facts surrounding the 1986 attack on Moiwana Village. In this
regard, the Tribunal notes with dismay that, after nearly 15 years, the murder of
Inspector Gooding still has not been conclusively investigated. In order to guarantee
due process and judicial protection in a renewed official investigation into the 1986
attack and related human rights violations, the State must facilitate all of the
necessary means to protect investigators, witnesses, judges, prosecutors and the
Moiwana community members.90
c) The reasonableness of the length of proceedings
160. Since Suriname recognized the competence of the Court on November 12,
1987, almost 18 years have passed and the State has not conducted a serious and
effective investigation capable of leading to the conviction of those responsible for
the attack on Moiwana Village (supra paragraph 86.33). The Tribunal considers that
such a prolonged delay constitutes per se a violation of judicial guarantees, which
only exceptionally could be justified by the State. The Court will nevertheless assess
whether the delay resulted directly from the case’s complexity or from the conduct of
the parties.91
161. With respect to the conduct of the parties, the proven facts (supra paragraphs
86(34) and 86(35)) indicate that the alleged victims and their representatives have
frequently urged a criminal investigation into the attack on Moiwana Village, and on
occasions have directly facilitated the State’s efforts, such as in 1993 when Moiwana
’86 reported the discovery of the mass grave site to the Office of the Attorney
General.
90 Cf. Case of Myrna Mack-Chang. Judgment of November 25, 2003. Series C No. 101, para. 199.
91 Cf. Case of the Serrano-Cruz Sisters, supra note 9, para. 69; Case of Ricardo Canese, supra note
65, para. 142; and Case of 19 Merchants, supra note 75, para. 191.
65
162. Regarding the case’s complexity, the Court recognizes that the investigation
into the events of November 29, 1986 is a difficult matter, as the attack implicated
the past actions of a powerful military regime, involved a great number of possible
victims – who are now either dead or displaced – and took place in a remote area of
the country, among other factors. Nevertheless, it is recalled that, in Inspector
Gooding’s 1989 investigation, statements of witnesses were taken and arrests of
suspects were carried out (supra paragraph 86(25)). Had the investigation not been
abandoned shortly thereafter – owing to the obstructive actions of the military
(supra paragraph 86(27)) and the subsequent lack of resolve displayed by Attorney
General’s Office (supra paragraphs 86(31) – 86(33) and 86(35)) – it may have
promptly resulted in the identification and the subsequent punishment of the attack’s
perpetrators. Thus, the Court does not find the extended delay to be justified;
accordingly, the length of said proceedings must be judged unreasonable.
*
* *
163. In consideration of the many facets analyzed above, the Court holds that
Suriname’s seriously deficient investigation into the 1986 attack upon Moiwana
Village, its violent obstruction of justice, and the extended period of time that has
transpired without the clarification of the facts and the punishment of the responsible
parties have defied the standards for access to justice and due process established in
the American Convention.
164. As a result, the Tribunal declares that the State violated Articles 8(1) and 25
of the American Convention, in relation to Article 1(1) of that treaty, to the detriment
of the Moiwana community members.
*
* *
165. The Court takes notice that, on August 19, 1992, the President of Suriname
officially promulgated the “Amnesty Act 1989,” which grants amnesty to those who
have committed certain criminal acts, with the exception of crimes against humanity,
during a period from January of 1985 until August of 1992 (supra paragraph
86(39)). The statute vaguely defines crimes against humanity as “those crimes
which according to international law are classified as such.” Naturally, then, during
the proceedings before the Tribunal there has been much debate as to whether the
elements of the 1986 attack reach the threshold of crimes against humanity.
166. In this regard, the Court finds it necessary to reiterate its holding above: in
response to the extrajudicial killings that occurred on November 29, 1986, the
foremost remedy to be provided by the State is an effective, swift investigation and
judicial process, leading to the clarification of the facts, punishment of the
responsible parties, and appropriate compensation of the victims.
167. As the Tribunal has asserted on repeated occasions,92 no domestic law or
regulation – including amnesty laws and statutes of limitation – may impede the
State’s compliance with the Court’s orders to investigate and punish perpetrators of
92 Cf. Case of the Gómez-Paquiyauri Brothers, supra note 59, para. 151; Case of Bulacio, supra
note 79, paras. 117 and 142; and Case of the Five Pensioners. Judgment of February 28, 2003. Series C
No. 98, para. 164.
66
human rights violations. If this were not the case, the rights found in the American
Convention would be deprived of effective protection. This conclusion is consistent
with the letter and spirit of the Convention, as well as general principles of
international law. Figuring prominently among said principles, pacta sunt servanda
requires that a treaty’s provisions be given meaningful effect within a State Parties’
internal legal framework.93
XIII
REPARATIONS
(Application of Article 63(1) of the American Convention)
Obligation to provide adequate reparations
168. In accordance with the assessment on the merits set forth in previous
chapters, the Court declared, based on the facts of the case, violations of Articles 5,
22, 21, 8 and 25 of the American Convention, all in relation to Article 1(1) of said
instrument. The Court has held, on a number of occasions, that any violation of an
international obligation resulting in harm carries with it an obligation to provide
adequate reparations.94 Article 63(1) of the American Convention states that:
[i]f 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 (emphasis added).
169. This provision constitutes a rule of customary law that enshrines one of the
fundamental principles of contemporary international law on state responsibility.
Thus, when an illicit act is imputed to the State, there immediately arises a
responsibility on the part of that State for the breach of the international norm
involved, together with the subsequent duty to make reparations and put an end to
the consequences of said violation.95
170. The reparation of harm caused by a violation of an international obligation
requires, whenever possible, full restitution (restitutio in integrum), which consists in
restoring the situation that existed before the violation occurred. When this is not
possible, as in the present case, it is the task of this Tribunal to order the adoption of
a series of measures that, in addition to guaranteeing respect for the rights violated,
will ensure that the damage resulting from the infractions is repaired, by way, inter
alia, of payment of an indemnity as compensation for the harm caused.96 The
obligation to provide reparations, which is regulated in all its aspects (scope, nature,
93 Cf. Case of the Gómez-Paquiyauri Brothers, supra note 59, para. 152; and Case of Bulacio, supra
note 79, para. 118.
94 Cf. Case of the Serrano-Cruz Sisters, supra note 9, para. 133; Case of Lori Berenson-Mejía, supra
note 10, para. 230; and Case of Carpio-Nicolle et al., supra note 82, para. 85.
95 Cf. Case of the Serrano-Cruz Sisters, supra note 9, para. 134; Case of Carpio-Nicolle et al., supra
note 82, para 86; and Case of Plan de Sánchez Massacre. Reparations , supra note 82, para. 52.
96 Cf. Case of the Serrano-Cruz Sisters, supra note 9, para. 135; Case of Carpio-Nicolle et al., supra
note 82, para 87; and Case of Plan de Sánchez Massacre. Reparations, supra note 82 para. 53.
67
modalities, and designation of beneficiaries) by international law, cannot be altered
or eluded by the State’s invocation of provisions of its domestic law.97
171. Reparations, consist in those measures necessary to make the effects of the
committed violations disappear. The nature and amount of the reparations depend
on the harm caused at both the material and moral levels. Reparations cannot, in
any case, entail either the enrichment or the impoverishment of the victim or his or
her family.98
172. In light of the abovementioned criteria, the Court will proceed to analyze the
submissions of the Commission and the representatives regarding reparations, in
order to determine the pertinent remedial measures to be adopted in the instant
case.
A) BENEFICIARIES
Arguments of the Commission
173. The Commission considers that the beneficiaries of reparations in this case
should be the Moiwana residents who survived the attack and the family members of
those who were killed.
Arguments of the representatives
174. The representatives similarly argued that the beneficiaries of reparations
should be the survivors of the massacre and the next of kin of those killed.
Arguments of the State
175. The State requested that the Commission’s claim for reparations be denied
based on the fact that “the method applied by the Commission to determine the
individuals who would be entitled to reparations, as well as the level of the
reparations, is not justified by law.”
The Court’s Assessment
176. To begin, the Court considers that the “injured parties” in the terms of Article
63(1) of the American Convention, are those persons defined in paragraph 71 as the
“Moiwana community members” (supra paragraphs 71 and 86(17) for the complete
list). In consequence, said individuals shall be the beneficiaries of the reparations
the Tribunal deems suitable to order.
177. It is necessary to recall that within the context of the contentious process, the
identities of the beneficiaries must be properly communicated to the Court.99 Thus,
this Tribunal cannot grant the request that additional victims, which to date have not
97 Cf. Case of the Serrano-Cruz Sisters, supra note 9, para. 135; Case of Lori Berenson-Mejía, supra
note 10, para. 231; and Case of Carpio-Nicolle et al., supra note 82, para. 87.
98 Cf. Case of the Serrano-Cruz Sisters, supra note 9, para. 136; Case of Carpio-Nicolle et al., supra
note 82, para. 89; and Case of Tibi. Judgment of September 7, 2004. Series C No. 114, para. 225.
99 Cf. Case of Plan de Sánchez Massacre. Reparations, supra note 82, para. 62; and Case of the
“Juvenile Reeducation Institute,” supra note 59, para. 273.
68
been individualized before the Court, be named for compensation purposes
subsequent to the instant judgment. Such a decision is consistent with the Case of
Plan de Sanchez Massacre, as in that case no additional victims were permitted to be
identified, following the judgment on reparations, in order to receive monetary
awards.100
178. Following precedent,101 this Court considers as properly identified those
victims who are referred to in an official document, such as a birth certificate or
“family book,” submitted before the Tribunal. Regarding the other victims
individualized in the application who have not been suitably identified, the Court
holds that the compensation that corresponds to each one shall be awarded in the
same manner as those properly identified by State documents – as long as they
appear before the appropriate State officials within 24 months following the
notification of the instant judgment and provide sufficient means of identification.102
Adequate identification shall entail either: a) an official document attesting to the
person’s identity; or b) a statement before a competent state official by a recognized
leader of the Moiwana community members, as well as the declarations of two
additional persons, all of which clearly attest to the individual’s identity. The Court
notes that it is granting more latitude in this case with respect to acceptable means
of proving identity, in light of the statements by the Commission and the
representatives that many Maroons do not possess formal identity documents, and
were never inscribed in the national registry.
179. The compensation determined by the Court shall be individually awarded to
each beneficiary in his or her condition as victim of the violations enumerated in
paragraph 168 of the instant judgment. If any victim has died, or dies before the
issuing of his or her compensation, the amount that would have corresponded to that
individual shall be distributed pursuant to national laws of succession and descent. If
eventual legal successors lack official identity documents, they also must provide the
alternate means of identification specified above to receive compensation (supra
paragraph 178).
180. The sufficiently identified victims are the following:
1 Hesdy Adam or Hesdie Adam
2 Marlene Adam
3 Marlon Adam
4 Petrus Adam
5 Antonius Agemi
6 A. Andro Ajintoena
7 Aboeda Ajintoena
8 Andre Ajintoena
9 Atema Ajintoena
10 Cynthia Ajintoena
11 Doortje Ajintoena
100 Cf. Case of Plan de Sánchez Massacre. Reparations, supra note 82, para. 62.
101 Cf. Case of Plan de Sánchez Massacre. Reparations, supra note 82, para. 63.
102 Cf. Case of Plan de Sánchez Massacre. Reparations, supra note 82, para. 67.
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12 Eddy Ajintoena
13 Franklin Ajintoena
14 Gladys Ajintoena
15 Jacoba Ajintoena
16 Juliana Ajintoena
17 Letitia Ajintoena or Lettia Ajintoena
18 Maikel Ajintoena
19 Marietje Ajintoena or Maritje Ajintoena
20 Maureen Ajintoena
21 Miranda Ajintoena
22 Ottolina Ajintoena
23 P. Joetoe Ajintoena
24 S. Marciano Ajintoena
25 Richard Allawinsi
26 Roy Allawinsi
27 Alphons Apiñas
28 Erna Apiñas
29 Gwhen D. Apiñas
30 Meriam Apiñas
31 Sylvia Apiñas
32 Dannie Anna Asaiti
33 Erwien Awese
34 Tjamaniesting Bron
35 Jacqueline Bron or Jacquelina Bron
36 Sawe Bron or Sawe Djang Abente Bron
37 Marlon Difienjo or Michel Difienjo
38 Antonia Difienjo
39 Diana Difienjo
40 Martha Difienjo
41 M. Milton Difienjo
42 Patricia Difienjo
43 Petra Difienjo
44 Anelies Djemesie or Annelies Jemessie
45 Alfons Dogodoe
46 Benita Dogodoe
47 Benito Dogodoe
48 Cynthia Dogodoe
49 D. Silvana Dogodoe
50 Hellen Dogodoe
51 R. Patrick Dogodoe
52 Richenel Dogodoe
53 S. Claudia Dogodoe
54 Z. Jose Dogodoe
55 Johannes Jajo
56 Cornelly Madzy James
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57 Humprey James or Humphrey James
58 Manfika Kamee
59 Johannes Canapé
60 Agwe Kastiel
61 Alexander Kate
62 Martha Makwasie
63 Benito Martinies
64 Chequita Martinies
65 Marciano Martinies
66 Petrus Martinies
67 Rodney Martinies
68 S. Ruben Martinies
69 Rinia Meenars
70 Andre Misidjan
71 Beata Misidjan or Beata Misdjan
72 Carla Misidjan
73 Edmundo Misidjan or Edmundo Misdjan
74 Ludwig Misidjan
75 Malai Misidjan
76 Mitori Misidjan
77 Reguillio Misidjan or Reguillio Misdjan
78 Wilma Misidjan
79 Anoje M. Misidjan or Anoje M. Misiedjan
80 Sandra Misidjan or Sandra Misiedjan
81 Apoer Lobbi Misiedjan or Apoerlobbi Misidjan
82 Leonie Pinas
83 Felisie Sate
84 Annelies Sjonko or Annalies Sjonko
85 Cornelia Sjonko
86 Inez Sjonko or Aines Sjonko
87 Jeanette E. Sjonko
88 R. Sjonko
89 Carlo Sjonko
90 Isabella Sjonko
91 Johan Sjonko
92 Lothar Sjonko
93 Natashia Sjonko
94 Nicolien Sjonko
95 Antoon Solega
96 A. Dorothy Solega
97 H. Roel Solega
98 K. Delano Solega
99 M. Sellely Solega or M. Seclely Solega
100 Awese Lina L. Toetoe
101 Jozef Toetoe or Jozef Toeboe
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102 Erwin Willemdam
181. Those victims who must present adequate means of identification, pursuant
to the terms of paragraph 178, are the following:
1 Johiena Adam
2 Majo Ajintoena
3 Miraldo Allawinsi or Miraldo Misidjan
4 Anika M. Apinsa
5 Hermine Asaiti
6 Cyriel Bane
7 Mena Bron
8 Rosita Bron
9 Rudy Daniel
10 Gladys Djemesie
11 Glenn Djemesie
12 Ligia Djemesie
13 John James
14 Romeo James
15 Adaja Kagoe
16 Johan Laurence
17 Awena Misidjan
18 Jofita Misidjan
19 Marlon M. Misidjan
20 Rudy Misidjan
21 Theodorus Misidjan
22 Antonius Misiedjan or Misidjan Antonius
23 John Misiedjan or John Misidjan
24 Johnny Delano Misiedjan or Johny Delano Misidjan
25 Sadijeni Moiman
26 Jozef Toeli Pinas or Toeli-Jozef Pinas
27 Alma O. Sjonko
28 Pepita M.J. Solega
B) MATERIAL DAMAGES
Arguments of the Commission
182. The Commission requested the Court to order the State to pay material
damages related to the denial of justice suffered by the victims, based on the
following considerations:
a) the survivors of the attack have continued to pressure local authorities
to comply with their legal duties to investigate the case, and much of that
72
work has been done together with the organization Moiwana ’86. These
initiatives and efforts have implied time and costs;
b) the former Moiwana Village residents lost their homes, possessions
and means of subsistence when they were forced to flee. To this day,
because they have received neither justice nor compensation in the
intervening years, they remain in a precarious state with respect to their
living conditions;
c) material harm caused also includes economic losses related to medical
or psychological treatment required as a consequence of the denial of justice
and displacement in the instant case; and
d) because the attack has been left in impunity, the survivors have been
denied the foundation of fact and law necessary to seek compensation for the
wrongs they suffered. Thus, although such losses are complicated to estimate
in the present case, they should be assessed by the Court in equity.
Arguments of the representatives
183. The representatives requested that the Court order material and moral
damages resulting from the ongoing violation of Article 21 of the American
Convention, which “should account for the grave harm caused to the victims’ cultural
integrity, dignity and spiritual well-being caused by this arbitrary, uncompensated
and ongoing deprivation, as well as the destruction of the victims’ subsistence
lifestyle.”
Arguments of the State
184. Regarding the requests for material damages, the State argued that:
a) no concrete indications or proof have been given regarding the actual
material and moral harm resulting from the alleged failure of State to provide
the effective judicial protection and guarantees required under the
Convention. Furthermore, there is no correlation between the alleged
violations and the level and nature of the compensation demanded; and
b) the Commission attempts to obtain, “in a roundabout way,” damages
for alleged human rights violations that occurred prior to the State’s accession
to the American Convention, including violations of the right to life.
The Court’s Assessment
185. The Court will now assess material damages suffered by the victims as a
result of the facts of the instant case, in order to grant an appropriate indemnity. In
so doing, the Tribunal will take into account the evidence submitted, its own case law
and the relevant arguments presented by the Commission, the representatives, and
the State.
186. The proven facts indicate that the Moiwana community members were
violently forced from their homes and traditional lands into a situation of ongoing
displacement, whether in French Guiana or elsewhere in Suriname (supra paragraph
86(18)). Moreover, they have suffered poverty and deprivation since their flight
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from Moiwana Village, as their ability to practice their customary means of
subsistence and livelihood has been drastically limited (supra paragraph 86(18)).
187. The Court, considering, inter alia, the circumstances of the case and that a
sufficient basis exists to presume material harm, sees fit, on grounds of equity, to
direct the State to grant an indemnity for material damages of US$3,000.00 (three
thousand dollars of the United States of America) to each of the victims indicated in
paragraphs 180 and 181. The indemnity for material damages shall be granted to
each of the victims pursuant to the terms stipulated in paragraphs 178 and 179 of
the instant judgment. The Tribunal notes here that an additional measure shall be
ordered in a subsequent section of this judgment, in efforts to repair the loss of the
Moiwana community members’ homes (infra paragraph 214).103
C) MORAL DAMAGES
Arguments of the Commission
188. The Commission requested that the Court order the State to pay moral
damages resulting from the denial of justice suffered by the victims, based on the
following considerations:
a) both the survivors and the family members of those killed in the
massacre have experienced moral suffering as a result of the ongoing denial
of justice, their forced displacement and the lack of closure regarding the
events;
b) the former residents of Moiwana Village were traumatized – physically,
psychologically and emotionally – by the circumstances of the attack that
forced them to flee in terror, and which resulted in the destruction of their
homes and the community as a whole;
c) the victims also suffer because they were unable to bury their loved
ones in the traditional custom and, in most cases, are unaware of the location
of the corpses;
d) the victims must live with the knowledge that their failure to obtain
justice has caused anger in the spiritual world, which has already manifested
itself in the form of illness, disease and misfortune;
e) their inability to maintain their relationship with their ancestral lands
and its sacred sites has deprived them of a fundamental aspect of their
cultural identity, which adds to their sense of loss as well as to their
uncertainty about the community’s future; and
f) they continue to fear for their personal safety, owing to the ongoing
impunity.
103 Cf. Case of Plan de Sánchez Massacre, supra note 82, para. 74.
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Arguments of the representatives
189. The representatives requested moral damages in the following terms:
a) given the grave circumstances and violations of basic human rights in
this case, “both those before the Court and the underlying violations,” and the
ongoing indifference of the State to such violations and the consequential
extreme suffering of the victims, moral damages over and above a judgment
of condemnation should be awarded;
b) the aggravated circumstances of the case that should be taken into
account include: gross violations of the right to life as part of a pattern of
systematic, collective reprisals against civilian maroons; intentional
destruction of the remains of a number of the victims of the massacre and
denial of the fundamental right to conduct the required burials; ongoing
dispossession of traditional lands and resources; the State’s gross indifference
and hostility towards the suffering of the victims; Suriname’s affirmative
obstruction of justice; and the complete failure over an 18-year period to
investigate the massacre, punish those responsible and compensate the
victims;
c) the victims have suffered and still suffer greatly because of their
inability to comply with fundamental cultural norms, and because “angry
spirits are avenging themselves on the victims and causing them physical and
mental afflictions”;
d) the victims have been forced “to take up life in a foreign country far
from the context in which [their lives] had been evolving, in a state of
solitude, poverty, and severe physical and psychological distress”; and
e) the massacre is not history for the victims, it is a burden that each and
every one of them has endured for the past 18 years, made more heavy and
painful by the State’s indifference to their suffering.
Arguments of the State
190. The State’s arguments found in the material damages section (supra
paragraph 184) apply to the matter of moral damages as well.
The Court’s Assessment
191. Moral damage may include suffering and affliction, detriment to very
significant personal values, as well as non-pecuniary alterations to a victim’s living
conditions. Since it is not possible to assign a precise monetary equivalent to nonpecuniary
damage, for purposes of comprehensive reparation to victims, the Court
must turn to other alternatives: first, payment of an amount of money or delivery of
goods or services that can be estimated in monetary terms, which the Court will
establish through reasonable application of judicial discretion and equity; and
second, public acts or works that seek, inter alia, to commemorate and dignify
victims, as well as to avoid the repetition of human rights violations.104
104 Cf. Case of the Serrano-Cruz Sisters, supra note 9, para. 156; Case of Plan de Sánchez Massacre.
Reparations, supra note 82, para. 80; and Case of De la Cruz-Flores, supra note 59, para. 155.
75
192. It is well settled in international jurisprudence that a judgment constitutes,
per se, a form of reparation. However, considering the aggravated circumstances of
the present case and its many non-pecuniary consequences, the Court deems it
appropriate that the moral damages must also be repaired, on grounds of equity,
through the payment of compensation.105
193. In evaluating the non-pecuniary damages suffered in the instant case – harm
so serious as to have produced a violation of Article 5 of the American Convention, in
conjunction with Article 1(1) of that treaty (supra para. 103) – the Court has
carefully studied the testimony of Moiwana community members Erwin Willemdam,
Antonia Difienjo and Andre Ajintoena, and is of the opinion that their experience may
be considered representative of that of rest of the victims.106 Furthermore, the
Tribunal has closely examined the testimony of witness Stanley Rensch, as well as of
expert witnesses Kenneth M. Bilby and Thomas Polimé (by affidavit), all of whom
have demonstrated intimate familiarity with N’djuka society in general, and the
circumstances of the Moiwana community members in particular.
194. Given that the victims of the present case are members of the N’djuka
culture, this Tribunal considers that the individual reparations to be awarded must be
supplemented by communal measures; said reparations will be granted to the
community as a whole in subsection D.107
195. The Court’s assessment of moral damage in the instant case particularly takes
into account the following aspects of the Moiwana community members’ suffering:
a) their inability, despite persistent efforts, to obtain justice for the attack
on their village, particularly in light of the N’djuka emphasis upon punishing
offenses in a proper manner (supra paragraph 86(10)). Such long-standing
impunity, fostered by violent State efforts to obstruct justice (supra
paragraph 86(33)), humiliates and infuriates the community members, as
much as it fills them with dread that that offended spirits will seek revenge
upon them (supra paragraph 86(43)). In addition, due to the failure of the
State’s criminal investigation, community members are fearful that they could
once again confront hostilities if they were to return to their traditional lands
(supra paragraph 86(43));
b) they do not know what has happened to the remains of their loved
ones, and, as a result, they cannot honor and bury them in accordance with
fundamental norms of N’djuka culture, which causes them deep anguish and
despair (supra paragraph 86(42)). Since the various death rituals have not
been performed according to N’djuka tradition, the community members fear
“spiritually-caused illnesses,” which they believe can affect the entire natural
lineage and, if reconciliation is not achieved, will persist through generations
(supra paragraph 86(9)); and
105 Cf. Case of the Serrano-Cruz Sisters, supra note 9, para. 157; Case of Carpio-Nicolle et al., supra
note 82, para. 117; and Case of Plan de Sánchez Massacre. Reparations, supra note 82, para. 81.
106 Cf. Case of Plan de Sánchez Massacre. Reparations, supra note 82, para. 84.
107 Cf. Case of Plan de Sánchez Massacre. Reparations, supra note 82, para. 86.
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c) the Moiwana community members’ connection to their ancestral
territory was brusquely severed – dispersing them throughout Suriname and
French Guiana. Since a N’djuka community’s relationship to its traditional
land is of vital spiritual, cultural and material importance, their forced
displacement has devastated them emotionally, spiritually, culturally, and
economically (supra paragraph 86(42)).
196. In consideration of the severe circumstances discussed above, the Tribunal
sees fit, on grounds of equity, to direct the State to grant an indemnity for moral
damages of US$10,000.00 (ten thousand dollars of the United States of America), or
the equivalent in national currency, to each of the victims indicated in paragraphs
180 and 181 of the instant judgment. The indemnity for moral damages shall be
granted to each of the victims pursuant to the terms stipulated in paragraphs 178
and 179 of the instant judgment.
D) OTHER FORMS OF REPARATION
(Satisfaction measures and non-repetition guarantees)
Arguments of the Commission
197. With regard to measures of satisfaction and guarantees of non-repetition, the
Commission requested that the Court order Suriname to complete the following
measures:
a) adopt all measures required to ensure the prompt and effective
investigation of the attack on Moiwana Village and subsequent denial of
justice in order to ensure that those responsible are tried and punished;
b) facilitate the return of any former members of Moiwana Village, their
family members and any family members of those killed who wish to resume
life in that community. This measure must include: i) formal legal recognition
of their right to own and occupy the traditional seat of the community; ii)
guarantees to ensure their personal security; and iii) the construction,
furnishing and staffing of educational and health facilities in the community;
c) locate the remains of the victims who were killed in the massacre at
Moiwana and whose bodies have not been recovered, and exhume them
and/or take other measures necessary to serve the wishes of their families
with respect to an appropriate final resting place;
d) erect a monument to memorialize both the massacre at Moiwana
Village and its victims, in consultation with and taking fully into account the
wishes of the survivors and family members of those killed; and
e) issue a formal apology to the designated Gaanman of the N’djuka
community for the denial of judicial protection and forced displacement.
198. The Commission based the abovementioned requests on the following
considerations:
1. The criminal investigation
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a) the victims feel an obligation to ensure that the dignity of those killed
is vindicated through the clarification of the facts and imposition of
accountability for the violations suffered. Furthermore, they have also
indicated that the impunity of the instant case shows the contempt of the
State toward the lives of those killed in the massacre and the suffering
experienced by the survivors;
b) the N’djuka culture attributes a central role to justice. The survivors of
the massacre and the next of kin of those killed are obligated by N’djuka law
to seek justice so that the spirits can rest. If this is not accomplished, the
spirits may become very angry and cause great difficulties for the survivors
and next of kin;
c) the fact that the victims have not obtained justice and reparations for
the massacre is seen as deeply shameful by other N’djuka, as it is perceived
as a failure to honor their obligations to the dead and their ancestors. Such
loss of standing within N’djuka society is a constant source of pain and
embarrassment for the victims;
2. The return of the victims
d) following the attack and massacre, the survivors fled elsewhere within
Suriname as well as to neighboring French Guiana. The survivors who arrived
in French Guiana were placed in a refugee camp; in early 1993, some
survivors decided to return to Suriname;
e) as provided for by agreement with France, when the victims returned
to Suriname they were placed in a temporary reception center in Moengo, at
which time the State promised to rebuild their villages and otherwise provide
for them. However, the promise was never honored, and many remain in the
reception center today;
f) at this time, many victims are not ready to return to Moiwana
permanently, due to their traumatic and intensely painful memories of the
attack;
g) others are afraid that the massacre could be repeated owing to the
ongoing impunity. The author of the massacre, Desire Bouterse, maintains a
prominent and powerful position in Surinamese public life: he is a Parliament
member and leader of the National Democratic Party, the largest opposition
party;
h) some of the victims would like to return to Moiwana permanently and
others wish simply to farm but not to live there; in any event, all want to
maintain their spiritual and cultural commitments, ensuring that future
generations can return when they wish;
3. Recovering the remains of the victims who were killed in the massacre
i) this measure involves the State’s duty to carry out an effective
investigation to ensure accountability, as well as a remedy for the moral
suffering of the survivors and next of kin, who have been unable to fulfill their
78
familial, cultural and religious obligations to provide their loved ones with a
proper burial; and
4. An official apology and the construction of a monument
j) State authorities have never given the victims any “support,” have not
apologized, and have not shown them any respect. In fact, the State has
rarely acknowledged that the massacre occurred.
Arguments of the representatives
199. With regard to measures of satisfaction and guarantees of non-repetition, the
representatives requested that the Court order Suriname to carry out the following
measures:
1. Investigation of the massacre and prosecution of its intellectual authors
a) Suriname must publicly declare that it will investigate the massacre
and, in accordance with applicable law, prosecute its intellectual authors for
crimes against humanity and gross violations of humanitarian and human
rights law;
b) the State must in fact conduct a serious and diligent investigation of
the massacre and, again pursuant to applicable law, prosecute the intellectual
authors as described above;
c) Suriname must also investigate, prosecute and punish those
responsible for the obstruction of justice in this case;
d) the State must adopt legislative and other measures to ensure that the
preceding measures can take place and that any statute of limitations that
may presently apply to the Moiwana massacre in domestic law be declared
inapplicable; and
e) Suriname must repeal the “Amnesty Act 1989” and declare that it was
devoid of legal effect ab initio.
2. Restitution of Traditional Lands and Resources
f) the State must provide: i) restitution and legal recognition of the
community’s ownership rights to their traditional lands and resources in
accordance with their customary law, values and usage; ii) collective title to
these traditional lands and resources that confirms and effectively secures
their ownership rights in accordance with their customary law; iii) physical
demarcation; iv) guarantees of safety for those who choose to return; and v)
an opportunity for the full participation and informed consent of both the
victims and the other neighboring Cottica N’djuka communities regarding the
preceding measures;
g) the State must adopt legislative and other measures in order to
identify and effectively title the community’s traditional lands in a manner
that is consistent with the American Convention and indigenous peoples’
rights in other human rights instruments; and
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h) Suriname must rebuild the houses in the village and construct, furnish
and staff fully-equipped and functional educational and health facilities, all
with the prior informed consent of the victims and with their full cooperation.
3. Other measures
i) the State must call a press conference and publicly acknowledge that
the Moiwana massacre occurred as well as its responsibility for the massacre
and subsequent denial of justice and other proven violations;
j) Suriname must provide funds for the design, construction and
placement of a monument to those killed at Moiwana in a suitable public
place, with the agreement of the victims;
k) the State, with the full participation and consent of the victims, must
use all means at its disposal to locate and return the remains of the victims of
the massacre, at its own expense, to the victims and ensure the victims the
free exercise of their right to bury their loved ones in accordance with their
customs and beliefs; and
l) Suriname must issue a public apology for the massacre and
subsequent denial of justice to Gaanman Matodja Gazon, in his capacity as
paramount leader and representative of the N’djuka people, and to
Surinamese society in general.
Arguments of the State
200. With regard to the measures of reparation at issue, the State responded that:
a) the inhabitants of Moiwana Village subsist on trade and agriculture, as
is typical in that region; thus, they have never been an isolated community
that practiced its own culture;
b) the Commission has been unable to show that those responsible for
the massacre continue to occupy positions of power and influence in the
country. Nor has it been able to demonstrate that the community members
have been prevented from returning to Moiwana Village or have been
prevented from reconstructing their cultural life as a N’djuka people;
c) Suriname will continue its investigation into “the occurrences that took
place in the village of Moiwana”; and
d) the State “has no objections” with regard to the following measures: i)
issuing a public apology “to the whole nation with regard to the occurrences
that took place in the village of Moiwana and to the survivors and family
members in particular”; ii) establishing a memorial referring to the events of
Moiwana, to serve as “a reminder to the whole nation of what happened and
what may not repeat itself in the future”; and iii) paying for reasonable costs
so that survivors and family members may “commence cultural activities in
Suriname, with regard to the occurrences that took place on the 29th of
November, 1986.”
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The Court’s Assessment
201. In this chapter, the Court will determine the measures of satisfaction to repair
non-pecuniary damages; such measures seek to impact the public sphere.108 These
measures have special significance in the instant case, given the extreme gravity of
the facts and the collective nature of the damages suffered.
a) The State’s obligation to investigate the facts in question, identify, prosecute
and punish the responsible parties, as well as recover the remains of the Moiwana
community members killed during the 1986 attack
202. The Court held above (supra paragraphs 163 and 164) that Suriname’s
gravely deficient investigation into the November 29, 1986 attack upon Moiwana
Village, the State’s violent obstruction of justice, and the extended period of time
that has transpired without a clarification of the facts and the punishment of the
responsible parties have defied the standards for access to justice and due process
established in the American Convention.
203. Thus, more than 18 years later, the impunity of the material and intellectual
authors responsible for the attack continues to prevail in Suriname. The Court has
defined impunity as the overall lack of investigation, arrest, prosecution and
conviction of those responsible for violations of the rights protected by the American
Convention.109 The State is obliged to combat such a situation by all available legal
means, as impunity fosters the chronic repetition of human rights violations and
renders victims and their next of kin completely defenseless.110
204. Furthermore, as stated previously, all persons, including the family members
of victims of serious human rights violations, have the right to the truth. In
consequence, the family members of victims and society as a whole must be
informed regarding the circumstances of such violations. This right to the truth,
once recognized, constitutes an important means of reparation. Therefore, in the
instant case, the right to the truth creates an expectation that the State must fulfill
to the benefit of the victims.111
205. In light of the above, in response to the extrajudicial killings that occurred on
November 29, 1986, the State must immediately carry out an effective, swift
investigation and judicial process, leading to the clarification of the facts, punishment
of the responsible parties and appropriate compensation of the victims. The results
of these processes must be publicly disseminated by the State, so that the
Surinamese society may know the truth regarding the facts of the instant case.
108 Cf. Case of the Serrano-Cruz Sisters, supra note 9, para. 165; Case of Plan de Sánchez Massacre.
Reparations, supra note 82, para. 93; and Case of De la Cruz-Flores, supra note 59, para. 164.
109 Cf. Case of the Serrano-Cruz Sisters, supra note 9, para. 170; Case of the Gómez-Paquiyauri
Brothers, supra note 59, para. 148; and Case of 19 Merchants, supra note 75, para. 175.
110 Cf. Case of Carpio-Nicolle et al., supra note 82, para. 126; Case of Tibi, supra note 98, para.
255; and Case of the Gómez-Paquiyauri Brothers, supra note 59, para. 228.
111 Cf. Case of Carpio-Nicolle et al., supra note 82, para. 128; Case of the Gómez-Paquiyauri
Brothers, supra note 59, para. 230; and Case of 19 Merchants, supra note 75, para. 261.
81
206. Moreover, as the Court asserted in a preceding chapter, no domestic law or
regulation – including amnesty laws and statutes of limitation – may impede the
State’s compliance with the Court’s orders to investigate and punish perpetrators of
human rights violations. In particular, amnesty laws, statutes of limitation and
related provisions that hinder the investigation and punishment of serious human
rights violations – such as those of the present case, summary, extra-legal or
arbitrary executions – are inadmissible, as said violations contravene non-derogable
rights recognized in international human rights law.112
207. In fulfillment of its obligation to investigate and punish the responsible parties
in the instant case, Suriname must: a) remove all obstacles, de facto and de jure,
that perpetuate impunity; b) use all means at its disposal to expedite the
investigation and judicial process; c) sanction, according to the appropriate domestic
laws, any public officials, as well as private individuals, who are found responsible for
having obstructed the criminal investigation into the attack on Moiwana Village; and
d) provide adequate safety guarantees to the victims, other witnesses, judicial
officers, prosecutors, and other relevant law enforcement officials.
208. Finally, Suriname must employ all technical and scientific means possible –
taking into account the relevant standards in the field, such as those set out in the
United Nations Manual on the Effective Prevention and Investigation of Extra-Legal,
Arbitrary and Summary Executions – to recover promptly the remains of the
Moiwana community members killed during the 1986 attack. If such remains are
found by the State, it shall deliver them as soon as possible thereafter to the
surviving community members so that the deceased may be honored according to
the rituals of N’djuka culture. Moreover, the State shall conclude, within a
reasonable timeframe, the analysis of the human remains found at the grave site in
1993 (supra paragraph 86(31)), and communicate the results of said analysis to the
representatives of the victims.
b) Collective title to traditional territories
209. In light of its conclusions in the chapter concerning Article 21 of the American
Convention (supra paragraph 135), the Court holds that the State shall adopt such
legislative, administrative and other measures as are necessary to ensure the
property rights of the members of the Moiwana community in relation to the
traditional territories from which they were expelled, and provide for their use and
enjoyment of those territories. These measures shall include the creation of an
effective mechanism for the delimitation, demarcation and titling of said traditional
territories.
210. The State shall take these measures with the participation and informed
consent of the victims as expressed through their representatives, the members of
the other Cottica N’djuka villages and the neighboring indigenous communities,
including the community of Alfonsdorp.
211. Until the Moiwana community members’ right to property with respect to their
traditional territories is secured, Suriname shall refrain from actions – either of State
agents or third parties acting with State acquiescence or tolerance – that would
112 Cf. Case of the Serrano-Cruz Sisters, supra note 9, para. 172; Case of the Gómez-Paquiyauri
Brothers, supra note 59, para. 148; and Case of 19 Merchants, supra note 75, para. 175.
82
affect the existence, value, use or enjoyment of the property located in the
geographical area where the Moiwana community members traditionally lived until
the events of November 29, 1986.
c) State guarantees of safety for those community members who decide to
return to Moiwana Village
212. The Court is aware that the Moiwana community members do not wish to
return to their traditional lands until: 1) the territory is purified according to cultural
rituals; and 2) they no longer fear that further hostilities will be directed toward their
community. Neither of these elements is possible without an effective investigation
and judicial process, leading to the clarification of the facts and punishment of the
responsible parties. As these processes are carried out and led to conclusion, only
the community members themselves can decide when exactly it would be
appropriate to return to Moiwana Village. When community members eventually are
satisfied that the necessary conditions have been reached so as to permit their
return, the State shall guarantee their safety. To that effect, upon the community
members’ return to Moiwana Village, the State shall send representatives every
month to Moiwana Village during the first year, in order to consult with the Moiwana
residents. If the community members express concern regarding their safety during
those monthly meetings, the State must take appropriate measures to guarantee
their security, which shall be designed in strict consultation with said community
members.
d) Developmental fund
213. As the 1986 military operation destroyed Moiwana Village property and forced
survivors to flee, both the representatives and the Commission have emphasized the
necessity of implementing a developmental program that would provide basic social
services to the community members upon their return. The State, for its part, has
shown willingness “to pay for the reasonable costs of survivors and family members
to commence cultural activities […], with regard to the occurrences [of November 29,
1986].”
214. In that regard, this Court rules that Suriname shall establish a developmental
fund, to consist of US $1,200,000 (one million, two hundred thousand dollars of the
United States of America), which will be directed to health, housing and educational
programs for the Moiwana community members. The specific aspects of said
programs shall be determined by an implementation committee, which is described
in the following paragraph, and shall be completed within a period of five years from
the date of notification of the present judgment.
215. The abovementioned committee will be in charge of determining how the
developmental fund is implemented and will be comprised of three members. The
committee shall have a representative designated by the victims and another shall
be chosen by the State; the third member shall be selected through and agreement
between the representatives of the victims and the State. If the State and the
representatives of the victims have not arrived at an agreement regarding the
composition of the implementation committee within six months from the date of
notification of the present judgment, the Court will convene them to a meeting in
order to decide upon the matter.
83
e) Public apology and acknowledgment of international responsibility
216. The Court notes with appreciation Suriname’s statement that it “has no
objections to issue a public apology to the whole nation with regard to the
occurrences that took place in the Village of Moiwana and to the survivors and family
members in particular.” In this regard, as a measure of satisfaction to the victims
and in attempt to guarantee the non-repetition of the serious human rights violations
that have occurred, the State shall publicly recognize its international responsibility
for the facts of the instant case and issue an apology to the Moiwana community
members. This public ceremony shall be performed with the participation of the
Gaanman, the leader of the N’djuka people, as well as high-ranking State
authorities, and shall be publicized through the national media. Furthermore, in
consideration of the particular circumstances of the instant case, the event must also
honor the memory of Herman Gooding, the civilian police official who was murdered
due to his courageous efforts to investigate the events of November 29, 1986.
217. The aforementioned ceremony must be organized and funded by the State
and completed within one year from the date of notification of the present judgment.
f) Monument
218. Finally, the Court also notes with satisfaction Suriname’s assertion that it “has
no objections to establish a memorial to point out the occurrences that took place in
the Village of Moiwana […] this memorial must be a reminder to the whole nation of
what happened and what may not [be] repeat[ed] in the future.” For those very
reasons – to memorialize the events of November 29, 1986, as well as to prevent
the recurrence of such dreadful actions in the future – the State shall build a
monument and place it in a suitable public location. The memorial’s design and
location shall be decided upon in consultation with the victims’ representatives, and
shall be completed within one year from the date of notification of the instant
judgment.
XIV
LEGAL COSTS AND FEES
Arguments of the Commission
219. On this matter, the Commission argued that:
a) neither the Moiwana survivors nor their representatives should be
obliged to bear the costs associated with the legal representation necessary
to confront the ongoing injustice in this case; and
b) an award of costs and fees that is reasonable and justified is essential
in this case; it should take into account past and current legal costs and fees,
as well as those necessary to pursue the matter before the Court through all
stages including compliance with an eventual judgment.
Arguments of the representatives
220. The representatives requested an award of all costs incurred in preparing and
pursuing the case domestically and before the Commission and the Court,
84
apportioned as follows: a) US $10,000.00 (ten thousand US dollars) to Association
Moiwana, as well as an additional US $5,000.00 (five thousand US dollars) for
expected future costs; b) US $68,213.75 (sixty-eight thousand two hundred thirteen
US dollars and seventy-five cents) to Moiwana ‘86; and c) US $32,681.61 (thirty two
thousand six hundred eighty-one US dollars and sixty one cents) to the Forest
Peoples Programme.
Arguments of the State
221. The State requested that the payment of legal costs and fees be denied,
based on the fact that legal costs of this nature bear no relationship to prevailing
conditions in the Inter-American system and that their award has no legal basis
within this system.
The Court’s Assessment
222. As the Court has stated on previous occasions, costs and fees are
contemplated within the concept of reparations as enshrined in Article 63(1) of the
American Convention, since the victims’ efforts to obtain justice in the domestic as
well as international stages of the case lead to expenses that must be compensated
when the State’s international responsibility has been determined. In this regard,
the Tribunal must prudently assess such expenses, which involve both internal and
international judicial processes, and take into account the particular circumstances of
the case and the nature of international jurisdiction in the protection of human
rights. The estimate must be made on grounds of equity and in consideration of the
reasonable expenses submitted by the parties. In the instant case, the Court
observes that the representatives have waived attorneys’ fees, and thus only seek an
award of costs.
223. In light of the above, the Court sees fit, on grounds of equity, to direct the
State to grant an indemnity for costs of US $45,000.00 (forty-five thousand US
dollars), to the legal representative of Association Moiwana, which functions as a
coordinating mechanism for the victims (supra paragraph 86(36)). Of that total
amount, US $27,000.00 (twenty-seven thousand US dollars) shall correspond to the
costs of the organization Moiwana ’86, and US $10,000.00 (ten thousand US dollars)
shall correspond to the costs of the Forest Peoples Programme.
224. Furthermore, it has been demonstrated (supra paragraph 86(44)) that
Association Moiwana has been actively involved in the efforts for justice in the
instant case. Although Association Moiwana did not submit expense receipts before
the Court, the representatives have nonetheless requested an award for costs to said
organization, based in equity, and have also indicated that Association Moiwana will
continue to be involved in advocating for the eventual investigative and judicial
proceedings concerning the facts of the present case. In this way, of the total
amount of US $45,000.00 that will be disbursed to the legal representative of
Association Moiwana, US $8,000.00 (eight thousand US dollars) shall correspond to
the past and likely future costs of Association Moiwana.
XV
MEANS OF COMPLIANCE
225. To comply with the instant judgment, the State shall pay the compensation
ordered (supra paragraphs 187, 196, 223 and 224), carry out the public ceremony
85
(supra paragraphs 216 and 217) and build the aforementioned memorial (supra
paragraph 218), all within a year, except when specified otherwise (supra paragraph
217). Regarding the community development fund, which will be directed to health,
housing and education programs for the Moiwana community members, the specific
elements of said programs shall be determined by an implementation committee,
and shall be completed within five years. If the State and the representatives of the
victims have not arrived at an agreement regarding the composition of the
implementation committee within six months from the date of notification of the
present judgment, the Court will convene them to a meeting in order to decide upon
the matter. Finally, the State shall, as soon as possible, recover the remains of the
Moiwana community members killed during the events of November 29, 1986, and
deliver them to the surviving community members. All of the time frames
mentioned above shall be calculated from the date of the notification of the instant
judgment. The other measures ordered without a specific time frame shall be
completed within a reasonable period of time from the date of the notification of the
present judgment.
226. The payment of compensation ordered in favor of the victims shall be carried
out according to the terms set out in paragraphs 178 – 181 of the instant judgment,
as is appropriate.
227. The payment of costs incurred by the representatives shall be carried out
according to the terms set out in paragraphs 223 and 224 of the instant judgment.
228. The State may comply with its obligations by payment in United States dollars
or the equivalent amount in national currency, using the rate of exchange between
the two currencies in force on the market in New York, United States of America, the
day before payment, in order to make the respective calculation.
229. If, due to causes that can be attributed to the beneficiaries of the
compensation, they are unable to claim such compensation within the specified
period of one year or 24 months (supra paragraphs 178 and 179), from the date of
the notification of this judgment, the State shall deposit such amount in their favor in
an account or a deposit certificate in a reputable national banking institution, in
United States dollars and in the most favorable financial conditions allowed by
legislation and banking practice. If, after ten years, the compensation has not been
claimed, the sum shall be returned to the State, with the interest earned.
230. The payments ordered in this judgment as compensation for material and
moral damages, as well as costs, may not be affected, reduced or conditioned by any
current or future taxes or charges. Consequently, the amounts shall be paid in full
to the victims in accordance with the present judgment.
231. If the State falls in arrears, it shall pay interest on the amount owed,
corresponding to bank interest on arrears in Suriname.
232. In accordance with its consistent practice, the Court retains the authority,
inherent in its competence, to monitor compliance with this judgment. The instant
case shall be closed when the State has fully implemented all of the provisions of this
judgment. Within one year of the date of notification of this judgment, Suriname
shall furnish the Court with a first report on the measures taken in compliance
therewith.
86
XVI
OPERATIVE PARAGRAPHS
233. Therefore,
THE COURT,
DECIDES,
Unanimously,
1. To dismiss the State’s preliminary objections.
DECLARES,
Unanimously, that:
1. The State violated the right to humane treatment enshrined in Article 5(1) of
the American Convention on Human Rights, in relation to Article 1(1) of that treaty,
to the detriment of the Moiwana community members, in the terms of paragraph 103
of this judgment.
2. The State violated the right to freedom of movement and residence enshrined
in Article 22 of the American Convention, in relation to Article 1(1) of that treaty, to
the detriment of the Moiwana community members, in the terms of paragraph 121 of
this judgment.
3. The State violated the right to property enshrined in Article 21 of the
American Convention, in relation to Article 1(1) of that treaty, to the detriment of the
Moiwana community members, in the terms of paragraph 135 of this judgment.
4. The State violated the rights to judicial guarantees and judicial protection
enshrined in Articles 8(1) and 25 of the American Convention, in relation to Article
1(1) of that treaty, to the detriment of the Moiwana community members, in the
terms of paragraphs 163 and 164 of this judgment.
5. This judgment constitutes, per se, a form of reparation, in the terms of
paragraph 192 of this judgment.
AND DECIDES,
Unanimously, that:
1. The State shall implement the measures ordered with respect to its obligation
to investigate the facts of the case, as well as identify, prosecute, and punish the
responsible parties, in the terms of paragraphs 202 – 207 of this judgment.
87
2. The State shall, as soon as possible, recover the remains of the Moiwana
community members killed during the events of November 29, 1986, and deliver
them to the surviving community members, in the terms of paragraph 208 of this
judgment.
3. The State shall adopt such legislative, administrative, and other measures as
are necessary to ensure the property rights of the members of the Moiwana
community in relation to the traditional territories from which they were expelled,
and provide for the members’ use and enjoyment of those territories. These
measures shall include the creation of an effective mechanism for the delimitation,
demarcation and titling of said traditional territories, in the terms of paragraphs 209
– 211 of this judgment.
4. The State shall guarantee the safety of those community members who
decide to return to Moiwana Village, in the terms of paragraph 212 of this judgment.
5. The State shall establish a community development fund, in the terms of
paragraphs 213 – 215 of this judgment.
6. The State shall carry out a public ceremony, whereby Suriname recognizes its
international responsibility and issues an apology, in the terms of paragraphs 216 –
217 of this judgment.
7. The State shall build a memorial in a suitable public location, in the terms of
paragraph 218 of this judgment.
8. The State shall pay the compensation ordered in paragraph 187 of the instant
judgment to the Moiwana community members for material damages, in the terms of
paragraphs 178 – 181 and 225 – 231 of this judgment.
9. The State shall pay the compensation ordered in paragraph 196 of the instant
judgment to the Moiwana community members for moral damages, in the terms of
paragraphs 178 – 181 and 225 – 231 of this judgment.
10. The State shall pay the compensation ordered in paragraph 223 of the instant
judgment for costs, in the terms of paragraphs 223 – 231 of this judgment.
11. The Court will monitor compliance with this judgment and will close this case
once the State has fully implemented all of the provisions. Within one year of the
date of notification of this judgment, the State shall furnish the Court with a report
on the measures taken in compliance therewith, in the terms of paragraph 232 of
said judgment.
Judges Cançado-Trindade and Medina-Quiroga advised the Court of their concurring
opinions, which accompany this judgment. Judge García-Ramírez also signed Judge
Medina-Quiroga’s opinion.
88
Drafted in San José, Costa Rica, on June 15, 2005, in English and Spanish, both
texts being authentic.
Sergio García-Ramírez
President
Alirio Abreu-Burelli
Oliver Jackman
Antônio A. Cançado-Trindade
Cecilia Medina-Quiroga
Manuel E. Ventura-Robles
Diego García-Sayán
Pablo Saavedra-Alessandri
Secretary
So ordered,
Sergio García-Ramírez
President
Pablo Saavedra-Alessandri
Secretary
SEPARATE OPINION OF JUDGE A.A. CANÇADO TRINDADE
1. Almost fourteen years after its decision in the Aloeboetoe and Others versus Suriname
case (of 04.12.1991), – my first case in this Court and a Sentence which was complied with in
an exemplary way by the respondent State, a young country struck by material poverty but
rich in cultural manifestations, – the present Judgment of the Inter-American Court of Human
Rights in the case of the Moiwana Community versus Suriname, for the adoption of which I
concurred with my vote, raises issues of great transcendence, from the juridical perspective. In
the paragraphs that follow I shall endeavour to identify those issues, on which I feel obliged to
leave my personal reflections on the records, in the hope that they may contribute to the
future evolution of international law in what appears to me to be its terra nova or incognita at
the present stage of its evolution.
I. Preliminary Observations.
2. In indicating, in my Separate Opinion in the cas d’espèce, the foundations of my
position of the multiple aspects of the matter at issue, as I perceive them, I shall, thus,
develop three lines of reflections. In the first one, I shall address the following issues: a) the
legal subjectivity of peoples in international law; b) uprootedness as a human rights problem
confronting the universal juridical conscience; c) the projection of human suffering in time; and
d) the illusion of the “post-modern” and the incorporation of death into life. In the second one,
I shall dwell upon the following points: a) mortality and its inescapable relevance to the living;
b) the duties of the living towards their dead; and c) the duties towards the dead in the origins
and development of international law and domestic law. And, in the third one, I shall present
my reflections, entirely de lege ferenda, on what I see it fit to call: a) the moving from the
right to a project of life (proyecto de vida) to the right to a project of after-life (proyecto de
post-vida); b) the configuration of the spiritual damage (daño espiritual), beyond the moral
damage; and c) my concluding observations in the form of a plea against oblivion.
3. Some of my thoughts developed herein are, to the best of my knowledge, advanced for
the first time, – particularly my third line of reflections, on the right to a project of after-life
(proyecto de post-vida) and the configuration of the spiritual damage (daño espiritual), in the
sense I conceive it, beyond the moral damage, focusing on the human person in her life and
after-life. I have not yet seen them being considered, at any depth, in the so-called “centres of
academic excellence” of post-industrial societies, where normally authors engage themselves
in quoting each other, – in agreement or in disagreement, disclosing a blend of parochialism
and self-sufficiency, – and almost invariably in their own and same language, apparently
disconnected, to a large extent, from the day-to-day problems that afflict “common people”.
4. On my part, I feel entirely free, besides obliged, to give expression to my thoughts on
the aforementioned points, living (or being based on) as I do, in extremis, in the surrealistic
city of Brasília, in the middle of nowhere, where the convincing sunset and the penetrating
moonlight far outweigh and overwhelm, in my own perception, the “ultra-modern”
architectural frenzy. Neither impressed nor constrained by “post-modernism” at all, I sense I
can properly value the griefs of the Maroon N’djukas of the Moiwana Community, in the
present case opposing them to the State of Suriname.
II. The Legal Subjectivity of Peoples in International Law.
2
5. Almost as a preliminary issue, may I briefly refer to the legal subjectivity of peoples in
international law. In the present Sentence in the Moiwana Community versus Suriname case,
the Court indicates, in the section on proven facts of the present Judgment, that
“During the European colonization of present-day Suriname in the 17th
Century, Africans were forcibly taken to the region and used as slaves on the
plantations. Many of these Africans, however, managed to escape to the
rainforest areas in the eastern part of Suriname’s present national territory,
where they established new and autonomous communities; these individuals
came to be known as Bush Negroes or Maroons. Eventually, six distinct groups
of Maroons emerged: the N’djuka, the Matawai, the Saramaka, the Kwinti, the
Paamaka, and the Boni or Aluku.
These six communities individually negotiated peace treaties with the
colonial authorities. The N’djuka people signed a treaty in 1760 that established
their freedom from slavery, a century before slavery was formally abolished in
the region. In 1837, this treaty was renewed; the terms of the agreement
permitted the N’djuka to continue to reside in their settled territory and
determined the boundaries of that area. The Maroons generally – and the
N’djuka in particular – consider these treaties still to be valid and authoritative
with regard to their relationship with the State, despite the fact that Suriname
secured its independence from the Netherlands in 1975″1.
6. Thus, more than two centuries before Suriname attained statehood, its Maroon peoples
celebrated peace agreements with the colonial authorities, subsequently renewed, and thus
obtained their freedom from slavery. And the Maroons, – the N’djuka in particular, – regard
these treaties as still valid and authoritatives in the relations with the successor State,
Suriname. This means that those peoples exercised their attributes of legal persons in
international law, well before the territory where they lived acquired statehood. This reinforces
the thesis which I have always supported, namely, that the States are not, and have never
been, the sole and exclusive subjects of international law.
7. This purely inter-State outlook was forged by positivism, as from the Vattelian
reductionism in the mid-XVIIIth century2, and became en vogue in the late XIXth century and
early XXth century3, with the well-known disastrous consequences – the successive atrocities
perpetrated in distinct regions of the world against human beings individually and collectively –
that marked the tragic and abhorrent history of the XXth century. However, since its historical
1. Paragraph 86(1) and (2).
2. Found in the work by E. de Vattel, Le Droit des gens ou Principes de la loi naturelle appliquée
à la conduite et aux affaires des nations et des souverains (1758); cf., e.g., E. Jouannet, Emer
de Vattel et l’émergence doctrinale du Droit international classique, Paris, Pédone, 1998, pp.
255, 311, 318-319, 344 and 347.
3. For a criticism of State-consent theories, reflecting the dangerous voluntarist-positivist
conception of international law, cf. A.A. Cançado Trindade, “The Voluntarist Conception of
International Law: A Re-Assessment”, 59 Revue de droit international de sciences
diplomatiques et politiques – Geneva (1981) pp. 201-240.
3
origins in the XVIth century, the law of nations (droit des gens, derecho de gentes, direito das
gentes) encompassed not only States, but also peoples, and the human person, individually
and in groups), and humankind as a whole4.
8. In this respect, reference can be made, for example, to the inspiring work by Francisco
de Vitoria5, particularly his De Indis – Relectio Prior (1538-1539)6. In his well-known
Salamanca lectures De Indis (chapters VI and VII), Vitoria clarified his understanding of jus
gentium as a law for all, individuals and peoples as well as States, “every fraction of
humanity”7. In the XVIIth century, in the days of Hugo Grotius (De Jure Belli ac Pacis, 1625),
likewise, the jus humanae societatis, conceived as a universal one, comprised States as well as
peoples and individuals8. It is important to rescue this universalist outlook, in the current
process of humanization of international law and of construction of the new jus gentium of the
XXIst century.
9. The present case of the Moiwana Community before the Inter-American Court,
disclosing the cultural wealth of what is known as “Latin America”, – of which we can, and have
to, be proud of as human beings, – gives an eloquent testimony of the need to propound and
advance further this universalist outlook of the law of nations. As the present Judgment of the
Court further acknowledges, as to the proven facts,
“The N’djuka community’s relationship to its traditional land is of vital
spiritual, cultural and material importance. In order for the culture to maintain
its integrity and identity, its members must have access to their homeland. Land
rights in the N’djuka society exist on several levels, ranging from rights of the
entire ethnic community to those of the individual. Larger territorial land rights
4. A.A. Cançado Trindade,- “La Humanización del Derecho Internacional y los Límites de la
Razón de Estado”, 40 Revista da Faculdade de Direito da Universidade Federal de Minas
Gerais – Belo Horizonte/Brazil (2001) pp. 11-23; A.A. Cançado Trindade, “A Personalidade e
Capacidade Jurídicas do Indivíduo como Sujeito do Direito Internacional”, in Jornadas de
Direito Internacional (Ciudad de México, Dec. 2001), Washington D.C., OAS Subsecretariat of
Legal Affairs, 2002, pp. 311-347; and cf. A.A. Cançado Trindade, “Vers la consolidation de la
capacité juridique internationale des pétitionnaires dans le système interaméricain des droits
de la personne”, 14 Revue québécoise de droit international (2001) n. 2, pp. 207-239.
5. Francisco de Vitoria, Relecciones del Estado, de los Indios, y del Derecho de la Guerra (with
an Introduction by A. Gómez Robledo), 2nd. ed., Mexico, Ed. Porrúa, 1985, pp. XXX, XLIVXLV,
LXXVII and 61, and cf. pp. LXII-LXIII.
6. Francisco de Vitoria, De Indis – Relectio Prior (1538-1539), in: Obras de Francisco de Vitoria
– Relecciones Teológicas (ed. T. Urdanoz), Madrid, BAC, 1960, p. 675.
7. J. Brown Scott, The Spanish Origin of International Law – Francisco de Vitoria and his Law of
Nations, Oxford/London, Clarendon Press/H. Milford – Carnegie Endowment for International
Peace, 1934, pp. 140 and 170.
8. Cf. H. Grotius, De Jure Belli ac Pacis (1625), The Hague, Nijhoff, 1948, pp. 6, 10 and 84-85;
and P.P. Remec, The Position of the Individual in International Law according to Grotius and
Vattel, The Hague, Nijhoff, 1960, pp. 203, 216-217 and 219-220.
4
are vested in the entire people, according to N’djuka custom; community
members consider such rights to exist in perpetuity and to be unalienable”9.
10. Human beings, individually and collectively, have emerged as subjects of international
law. The rights protected disclose an individual and a collective or social dimensions, but it is
the human beings, members of such minorities or collectivities, who are, ultimately, the
titulaires of those rights10. This approach was espoused by the Inter-American Court of Human
Rights in the unprecedented decision (the first pronouncement of the kind by an international
tribunal) in the case of the Community Mayagna (Sumo) Awas Tingni versus Nicaragua (2001),
which safeguarded the right to communal property of their lands (under Article 21 of the
American Convention on Human Rights) of the members of a whole indigenous community11.
11. In this respect, the endeavours undertaken in both the United Nations and the
Organization of American States (OAS), along the nineties, to reach the recognition of
indigenous peoples’ rights through their projected and respective Declarations, pursuant to
certain basic principles (such as, e.g., that of equality and non-discrimination), have emanated
from human conscience. Those endeavours, – it has been suggested, – recognize the debt that
humankind owes to indigenous peoples, due to the “historical misdeeds against them”, and a
corresponding sense of duty to “undo the wrongs” done to them12.
12. This particular development has, likewise, contributed to the expansion of the
international legal personality of individuals (belonging to groups, minorities or human
collectivities) as subjects of (contemporary) international law. International Human Rights Law
in general, and this Court in particular, have contributed to such development. Under human
rights treaties such as the American Convention, to identify the individuals belonging to given
communities presents the advantage of conferring upon them the corresponding enforceable
subjective rights13. In the present Judgment in the Moiwana Community case, the Inter-
American Court has rightly pointed out that the petitioners are the titulaires of the rights set
forth in the Convention, and to deprive them of the faculty to submit their own pleadings
would in fact constitute an “undue restriction” of “their condition as subjects of the
9. Paragraph 86(6).
10. There are also international instruments, like the 1989 ILO Convention concerning
Indigenous and Tribal Peoples in Independent Countries (ILO Convention n. 169, in force as
from 05.09.1991), which appear to lay more emphasis, as far as duties are concerned, on the
human collectivities as such.
11. The Court pondered, in paragraph 141 of its Judgment (merits), that to the members of the
indigenous communities (such as the present one) “the relationship with the land is not merely
a question of possession and production but rather a material and spiritual element that they
ought to enjoy fully, so as to preserve their cultural legacy and transmit it to future
generations”.
12. A. Meijknecht, Towards International Personality: The Position of Minorities and Indigenous
Peoples in International Law, Antwerpen/Groningen, Intersentia, 2001, pp. 228 and 233.
13. N. Rouland, S. Pierré-Caps and J. Poumarède, Direito das Minorias e dos Povos Autóctones,
Brasília, Edit. UnB, 2004, pp. 228-229.
5
International Law of Human Rights” (par. 91). Beyond that, there remains the question of the
evolving condition of peoples themselves as subjects of international law14.
III. Uprootedness as a Human Rights Problem Confronting the Universal
Juridical Conscience.
13. The State-planned massacre of 1986 that originated the present case of the Moiwana
Community versus Suriname also gave rise to displacement of former residents in the Moiwana
village, besides those who sought refugee in French Guyana. They have endured this drama of
social and family disruption for almost two decades. The tragedy of uprootedness, manifested
in the present case, cannot pass unnoticed here, as uprootedness (desarraigo) affects
ultimately the right to cultural identity, which conforms the material or substantive content of
the right to life lato sensu itself.
14. In this connection, in a lecture I delivered at the Convent of San Carlos and San
Ambrosio in Havana, Cuba, on 28 November 2000, in addressing the traumas generated by
the forced displacements and consequent uprootedness of so many human beings nowadays, I
saw it fit to recall the warning, formulated by Simone Weil already in the mid-XXth century, to
the effect that to be rooted was “perhaps the most important and least recognized necessity of
the human soul”, and one of the “most difficult to define”15. In the same epoch and the same
line of thinking, Hannah Arendt likewise warned against “the sufferings of the uprooted (the
loss of home and familiarity of day-to-day life, the loss of profession and the feeling of
usefulness to the others, the loss of the mother-tongue as a spontaneous expression of the
sentiments)”; she further warned against the illusion of “trying to forget the past (given the
influence exerted over each one by his ancestors, the previous generations)”16.
15. And still in the same thinking, J.-M. Domenach observed in the mid-sixties that it would
not be possible to deny the roots of the human spirit itself, as the very form of aquisition of
knowledge, on the part of each human being, – and consequently of his perception of the
world, – was to a large extent conditioned by factors such as the place of birth, the mothertongue,
the cults, the family and the culture17. On the occasion, on my part I characterized
uprootedness as a human rights problem confronting the universal juridical conscience18.
14. For general studies, cf., e.g., P. Thornberry, Indigenous Peoples and Human Rights,
Manchester, University Press, 2002, pp. 1-429; S. James Anaya, Indigenous Peoples in
International Law, 2nd. ed., Oxford, University Press, 2004, pp. 3-291; J. Castellino and N.
Walsh (eds.), International Law and Indigenous Peoples, Leiden, Nijhoff, 2005, pp. 89-116 and
249-267.
15. S. Weil, The Need for Roots, London/N.Y., Routledge, 1952 (reprint 1995), p. 41.
16. H. Arendt, La tradition cachée, Paris, Ch. Bourgois Éd., 1987 (ed. orig. 1946), pp. 58-59 y
125-127.
17. J.-M. Domenach, Le retour du tragique, Paris, Éd. Seuil, 1967, p. 285.
18. A.A. Cançado Trindade, “Reflexiones sobre el Desarraigo como Problema de Derechos
Humanos frente a la Conciencia Jurídica Universal”, in La Nueva Dimensión de las Necesidades
6
16. In fact, despite the persistence of the problem of internal displacement along mainly
the last two decades, only in the first quarter of 1998, the U.N. Commission on Human Rights
succeeded at last to adopt the Guiding Principles on Internal Displacement, aiming at
reinforcing and strengthening the already existing means of protection; to this effect, the
proposed new principles apply both to governments and insurgent groups, at all stages of the
displacement. The basic principle of non-discrimination occupies a central position in the
aforementioned document of 199819, which cares to list the same rights, of internally displaced
persons, which other persons in their country enjoy20.
17. The 1998 Basic Principles referred to, determine that the displacement cannot take
place in a way that violates the rights to life, to dignity, to freedom and security of the affected
persons21; they also assert other rights, such as the right to respect for family life, the right to
an adequate standard of living, the right to equality before the law, the right to education22.
The basic idea underlying the whole document is in the sense that the internally displaced
persons do not lose their inherent rights, as a result of displacement, and can invoke the
pertinent international norms of protection to safeguard their rights.
18. In the American continent, the 1984 Declarations of Cartagena on Refugees, the 1994
San José Declaration on Refugees and Displaced Persons, and the 2004 Mexico Declaration and
Plan of Action to Strengthen the International Protection of Refugees in Latin America, are,
each of them, product of a given historical moment. The first one, the Declaration of
Cartagena, was motivated by urgent needs generated by a concrete crisis of great proportions;
to the extent that this crisis was being overcome, due in part to that Declaration, its legacy
began to project itself to other regions and subregions of the American continent.
19. The second Declaration was adopted amidst a distinct crisis, a more diffuse one,
marked by the deterioration of the socio-economic conditions of wide segments of the
population in distinct regions. In sum, Cartagena and San José were product of their time. The
aggiornamento of the Colloquy of San José gave likewise a special emphasis on the
identification of the needs of protection of the human being in any circumstances23. There
de Protección del Ser Humano en el Inicio del Siglo XXI (eds. A.A. Cançado Trindade and J.
Ruiz de Santiago), 3rd. ed., San José of Costa Rica, Inter-American Court of Human
Rights/UNHCR, 2004, pp. 40-41, and cf. 27-86.
19. Principles 1(1), 4(1), 22, 24(1).
20. It affirms, moreover, the prohibition of the “arbitrary displacement” (Principle 6).
21. Principles 8 and following.
22. Principles 17, 18, 20 and 23, respectively.
23. Instead of subjective categorizations of persons (in accordance with the reasons which led
them to abandon their homes), proper of the past, nowadays the objective criterion of the
needs of protection came to be adopted, encompassing thereby a considerably greater number
of persons (including the internally displaced persons) so vulnerable as the refugees, or even
more than these latter.
7
remained no place for the vacatio legis24. The 1994 Declaración of San José gave a special
emphasis not only on the whole problem of internal displacement, but also, more widely, on
the challenges presented by the new situations of human uprootedness in Latin America and
the Caribbean, including the forced migratory movements originated by causes differents from
those foreseen in the Declaration of Cartagena.
20. The 1994 Declaration recognized that the violation of human rights is one of the causes
of forced displacements and that therefore the protection of those rights and the strengthening
of the democratic system constitute the best measure for the search of durable solutions, as
well as for the prevention of conflicts, the exoduses of refugees and the grave humanitarian
crises25. Recently, at the end of consultations, with a wide public participation, undertaken at
the initiative of the UNHCR, the 2004 Mexico Declaration and Plan of Action to Strengthen the
International Protection of Refugees in Latin America was adopted26, on the occasion of the
twentieth anniversary of the Cartagena Declaration (supra). For the first time in the present
process, a document of the kind was accompanied by a Plan of Action. This can be explained
by the aggravation of the humanitarian crisis in the region, particularly in the Andean
subregion.
21. As the rapporteur of the Committee of Legal Experts of the UNHCR observed in his
presentation of the final report to the Mexico Colloquy, at its first plenary session, on 15
November 2004, although the moments of the 1984 Cartagena Declaration and the 1994 San
José Declaration are distinct, their achievements “cumulate, and constitute today a juridical
patrimony” of all the peoples of the region, disclosing the new trends of the development of
the international safeguard of the rights of the human person in the light of the needs of
protection, and projecting themselves into the future27. Thus,
“the Declaration of Cartagena faced the great human drama of the
armed conflicts in Central America, but furthermore foresaw the aggravation of
the problem of internally displaced persons. The Declaration of San José, in
turn, dwelt deeper upon the issue of protection of, besides refugees, also of
internally displaced persons, but moreover foresaw the aggravation of the
problem of forced migratory fluxes.
Ever since anachronical compartmentalizations were overcome,
proper of a way of thinking of a past which no longer exists, and one came to
recognize the convergences between the three regimes of protection of the
rights of the human person, namely, the International Law of Refugees,
International Humanitarian Law and the International Law of Human Rights.
24. Ibid., pp. 14-15.
25. Ibid., pp. 431-432.
26. Cf. text reproduced in: UNHCR, Memoria del Vigésimo Aniversario de la Declaración de
Cartagena sobre los Refugiados (1984-2004), Mexico City/San José of Costa Rica, UNHCR,
2005, pp. 385-398.
27. Cf. “Presentación por el Dr. A.A. Cançado Trindade del Comité de Consultores Jurídicos del
ACNUR” (Mexico City, 15.11.2004), in UNHCR, Memoria del Vigésimo Aniversario de la
Declaración de Cartagena…, op. cit. supra n. (27), pp. 368-369.
8
Such convergences – en at normative, hermeneutic [cf.] and operative levels –
were reaffirmed in all preparatory meetings of the present Commemorative
Colloquy of Mexico City, and repercute [cf.] nowadays in other parts of the
world, conforming the most [more] lucid international legal doctrine on the
matter”28.
22. Those convergences29 were, not surprisingly, further reflected in the 2004 Mexico
Declaration and Plan of Action to Strengthen the International Protection of Refugees in Latin
America itself. Thus, as the rapporteur of the Committee of Legal Experts of the UNHCR at last
warned at the Mexico Colloquy of November 2004,
“there is no place for the vacatio legis, there is no legal vacuum, and
all (…) persons are under the protection of the Law, in all and any
circumstances (also in face of security measures)”30.
23. In the Inter-American Court, this is not the first time in which I see it fit to draw
attention to the contemporary and growing tragedy of uprootedness. Already in this Court’s
Order of Provisional Measures of Protection, of 18.08.2000, in the case of the Haitians and
Dominicans of Haitian Origin in the Dominican Republic, I devoted my whole Concurring
Opinion (pars. 1-25) to disclose the truly global dimension of uprootedness in the dehumanized
world in which we live today31. It is significant that, in the present case of the Moiwana
Community versus Suriname, the Court, on the basis of the American Convention and in the
light of the principle jura novit curia, devoted a whole section of the present Judgment to
forced displacement – a malaise of our times – and established a violation by the respondent
28. Ibid., p. 369.
29. Cf. A.A. Cançado Trindade, “Derecho Internacional de los Derechos Humanos, Derecho
Internacional de los Refugiados y Derecho Internacional Humanitario: Aproximaciones y
Convergencias”, in 10 Años de la Declaración de Cartagena sobre Refugiados – Memoria del
Coloquio Internacional (San José of Costa Rica, Dec. 1994), San José of Costa Rica,
IIDH/UNHCR, 1995, pp. 77-168; A.A. Cançado Trindade, “Aproximaciones y Convergencias
Revisitadas: Diez Años de Interacción entre el Derecho Internacional de los Derechos
Humanos, el Derecho Internacional de los Refugiados, y el Derecho Internacional Humanitario
(De Cartagena/1984 a San José/1994 y México/2004)”, in Memoria del Vigésimo Aniversario
de la Declaración de Cartagena sobre Refugiados (1984-2004), San José of Costa Rica,
UNHCR, 2005, pp. 139-191.
30. Ibid., p. 369.
31. Nowadays the number of migrants far outweigh those of refugees (18 million) and displaced
persons (25 million) in the world. Current estimates indicate a total of 120 million people in
situations of considerable vulnerability. Yet, the overwhelming majority of States has not yet
ratified the 1990 U.N. Convention on the Rights of Migrant Workers and Their Families. This
indicates that what most States (of those who temporarily rule them) care about today is to
secure free flows of investment capital (for quick profit), of goods and services, but not of
human beings; in fact, they do not seem to care in the least about people and their living
conditions. This portrays the dehumanized world in which we happen to live.
9
State of Article 22 of the American Convention (on freedom of movement and residence) in
combination with the general duty of Article 1(1) of the Convention (pars. 107-121).
IV. The Projection of Human Suffering in Time.
24. The circumstances of the present case of the Moiwana Community versus Suriname
invite one to a brief reflection, going beyond its confines. Well before, as well as after, the
attainment of statehood by Suriname, the existence of the Maroon peoples (like the
Saramakas in the Aloeboetoe case and the N’djukas in the present Moiwana Community case,
before this Court) has been marked by suffering, in their constant struggle against distinct
forms of domination. This is not the first time that I address the issue which I see it fit to call
the projection of human suffering in time; I have already done so in my Separate Opinion
(pars. 10-14) in the Bámaca Velásquez versus Guatemala case (Reparations, Judgment of
22.02.2002), and I now retake the point at issue for further considerations on the matter, in
the present Moiwana Community case.
25. The projection of human suffering in time (its temporal dimension) is properly
acknowledged, e.g., in the final document of the U.N. World Conference against Racism, Racial
Discrimination, Xenophobia and Related Intolerance (Dunbar, 2001), its adopted Declaration
and Programme of Action. In this respect, it began by stating that
“We are conscious of the fact that the history of humanity is replete with
major atrocities as a result of gross violations of human rights and believe that
lessons can be learned through remembering history to avert future tragedies”
(par. 57).
26. It then stressed the “importance and necessity of teaching about the facts and truth of
the history of humankind”, with a view to “achieving a comprehensive and objective
cognizance of the tragedies of the past” (par. 98). In this line of thinking, the Durban final
document acknowledged and profounding regretted the “massive human suffering” and the
“tragic plight” of millions of human beings caused by the atrocities of the past; it then called
upon States concerned “to honour the memory of the victims of past tragedies”, and affirmed
that, wherever and whenever these occurred, “they must be condemned and their recurrence
prevented” (par. 99).
27. The Durban Conference final document attributed particular importance to
remembering the crimes and abuses of the past, in emphatic terms:
“We emphasize that remembering the crimes or wrongs of the past,
wherever and whenever they occurred, unequivocally condemning its racist
tragedies and telling the truth about history, are essential elements for
international reconciliation and the creation of societies based on justice,
equality and solidarity” (par. 106).
It at last recognized that “historical injustices” had undeniably contributed to the poverty,
marginalization and social exclusion, instability and insecurity affecting so many people in
distinct parts of the world (par. 158).
1 0
28. Half a decade ago, the President of the Academy of Chinese Culture (the philosopher
Tang Yi Jie) and a Professor at the Collège de France (the geophysicist Xavier Le Pichon)
engaged into an academic dialogue on death, in which Tang Yi Jie recalled the Buddhist view
that “human existence is a sea of sufferings” as well as R. Rolland’s remark (translated from
Chinese), to the same effect that
“La vie humaine est une souffrance. C’est un combat incessant pour ceux
qui ne se contentent pas d’avoir une vie médiocre, un combat souvent cruel,
sans gloire, sans bonheur, mené dans la solitude et le silence”32.
On his turn, X. Le Pichon added that “the degree of humanization of a society is measured by
the quality of taking care of those who suffer or those whose handicap exclude the possibility
of having a life like the others”33.
29. In the present case of the Moiwana Community, the handicap of, or harm suffered by,
the survivors of the massacre and close relatives of the direct victims, of the massacre
perpetrated on 29 November 1986 in the N’djuka Maroon village of Moiwana, is a spiritual one.
Under their culture, they remain still tormented by the circumstances of the violent deaths of
their beloved ones, and the fact that the deceased did not have a proper burial. This privation,
generating spiritual suffering, has lasted for almost twenty years, from the moment of the
perpetration of the 1986 massacre engaging the responsibility of the State until now. The
N’djukas have not forgotten their dead.
30. Nor could they. In the public hearing before this Court, of 29.09.2004, one of the two
representatives of the alleged victims (F. MacKay) declared that
“the representatives of the victims of the Moiwana massacre and the
next of kin stand before this Court today as part of their ongoing efforts to
obtain justice; justice for the 39 persons known to have been brutally murdered
and mutilated by the national army of Suriname on 29 November 1986; justice
for the survivors of that massacre who witnessed their defenceless
relatives being shot and hacked to pieces with machetes; their ancestral village
with its sacred sites burned to the ground, and who have had to endure forced
exile from their traditional lands and the spiritual congress that can only be
enjoyed on those lands; and justice for the survivors and next of kin who are
obliged by fundamental cultural norms to ensure that the dead are given ritual
burials and to ensure that they receive justice so that their spirits may rest in
peace.
The search for justice is taking place continuously throughout the almost
eighteen years that have passed since the massacre. (…) The massacre
constitutes a crime against humanity, a gross and flagrant violation of jus
cogens norms, obligations erga omnes, and of norms of International
Humanitarian Law codified in the Geneva Conventions and judged to have
atttained the status of customary international law. (…) The massacre amounts
32. Cit. in: Tang Yi Jie and Xavier Le Pichon, La Mort, Shanghai/Paris, Presses Artistiques et
Littéraires de Shanghai/DDB, 1999, pp. 32 and 76.
50
33. In ibid., p. 149.
1 1
to murder on a large scale; at least 39 individuals were killed in a space of a few
hours on 29 November 1986. Over 70 per cent of those killed were below the
age of 18; 25% were 5 years old or younger, including four infants under the
age of 2; and 50% were women or girls (…). By all accounts they were
defenceless (…).
(…) The Moiwana massacre was not an isolated incident but rather part
of a policy of widespread, systematic and collective reprisals against the civilian
Maroon population for the activities of the Jungle Commando. Then Commander
of the Army Désiré Bouterse stated on the radio in late 1986, for instance, that
he would, – and I quote, – ‘kill all Maroons and find their planting grounds and
bomb them’”34.
31. And the same representative of the alleged victims went on to state before the Court
that
“massacres were also reported in the Maroon villages of Morakondre,
Moengotapoe, and Maroons were subject to forced starvation (…). During this
time [1987] almost every Maroon village in Eastern Suriname was razed to the
ground with the help of military aircraft. Some ten thousand people fled the
area, and Maroon religious rites were routinely destroyed. In addition to the
Moiwana massacre, reliable sources estimate that in November and December
1986 alone some 244 mostly Maroon civilians were murdered by the National
Army. Finally, the Army unit responsible for the massacre was especially trained
for the operation at Moiwana, indicating that the massacre was planned,
calculated and deliberate.
(…) We wish further to emphasize that the classification of the massacre
as a crime against humanity, as a gross violation of humanitarian law and of jus
cogens norms, (…) [and] Suriname’s responsibility for the subsequent denial of
justice (…). With respect to the denial of justice in this case, we believe that the
facts speak for themselves. The testimony and other evidence presented to the
Court demonstrate that the victims actively and repeatedly sought recourse in
Suriname. These attempts to obtain justice were ignored, rebuffed and even
chastised by Suriname and produced no result. (…) The intellectual authors,
who are well known and who have publicly ackowledged their responsibility on
more than one occasion, continue to enjoy complete impunity”35.
32. The facts do indeed speak for themselves. In the present Judgment, the Court recalled,
as to the proven facts, inter alia, that the Army Commander of Suriname (D. Bouterse) had
issued a statement to the press36 whereby he confirmed that “the operation in Moiwana village
was a military action which he himself had ordered”, and that “he would not allow military
34. From the recording and transcripts of the public hearing of 29.09.2004, deposited in the
archives of the Inter-American Court.
35. From the recording and transcripts of the public hearing of 29.09.2004, deposited in the
archives of the Inter-American Court.
36. On 21.04.1989.
1 2
operations to be investigated by the civil police”37. The Moiwana massacre was State-planned,
State-calculated and State-executed: it was a crime of State. As I sustained in my Separate
Opinions in the cases of Myrna Mack Chang (2003) and of the Massacre of Plan de Sánchez
(Merits, 2004) before this Court, both concerning Guatemala, crimes of State do exist.
Whether international lawyers like it or not, such crimes do exist. They do not cease to exist
only because some – or most – international lawyers do not like the expression. Individual and
State responsibility co-exist, they are complementary to each other.
33. For the first time in almost two decades, since the massacre at Moiwana village in
1986, the survivors found redress, with the present Judgment of the Inter-American Court. In
the meantime, the N’djukas did not, and could not, forget their innocent and defenceless
beloved relatives, murdered in cold blood. And they will never forget them, but their suffering –
theirs together with their dead – has now been at least judicially recognized. Their longstanding
longing for justice may now be fulfilled, so that they can rest in peace with their
beloved deceased.
V. The Illusion of the “Post-Modern” and the Incorporation of Death into
Life.
34. May I move on to my next point in the present Separate Opinion, an important lesson
to be extracted from the Moiwana Community case. Human suffering projected in time is
generally minimized or ignored in the so-called “post-modern world”, – a world that cares less
and less about human suffering and death (preferring simply to minimize or ignore them), and
values more and more, to its own detriment, the ambition of materialism and accumulation of
wealth, armamentism and the use of force. The question has thus been timely asked: how can
one wake up the contemporaries, how can one convey the necessity of spirituality?38 The
International Law of Human Rights has attempted to do so, has done its best, but appears
nowadays to be under fire and hostility, on the part of those engaged in its deconstruction, the
usual heralds of the use of force and the accumulation of material wealth.
35. Yet, the usual blindness of power-holders as to human values has not succeeded – and
will never succeed – in avoiding human thinking to dwell upon the conception of human
mortality, to reflect on the enigmas of existence and death. In the fragments of his play
Faustus – Subjective Tragedy, inspired by Goethe’s masterpiece, the universal writer Fernando
Pessoa remarked, in the early XXth century, precisely on the mystery surrounding life and
death:
“Silente, medonho,
Embebido em sonho
Sombrio e profundo
É o mistério do mundo.
Quero fugir ao mistério
Para onde fugirei?
Ele é a vida e a morte
37. Paragraph 86(27).
38. E. Kübler-Ross, La Rueda de la Vida, 2nd. ed., Madrid, Ed. BSA, 2000, p. 385.
1 3
Ó dor, onde me irei?
Quem sabe se ainda
Não é mais profundo
Do que o pensamento
O enigma do mundo!”39
36. Human thinking on mortality has, in fact, accompanied humankind in all ages and
cultures. In the old Paleolithic times, there was a cult to the memory, and in ancient Egypt the
living and their dead remained close together40. In ancient Greece, a new sensitivity towards
post mortem destiny arose41. It need only be recalled, as two examples among many, namely,
Plato’s contribution, in securing the continuity of human experience through the immortality
and transmigration of the soul, as well as Budha’s contribution of detaching human suffering
from in his view what originates it, the desires42. The myth of the “eternal return” (or
repetition), so widespread in ancient societies (as in Greece), conferring upon time a cyclic
structure, purported to annul (or even abolish) the irreversibility of the passing of time, to
contain or withhold its virulence, and to foster regeneration43.
37. In modern times, however, human beings became ineluctably integrated into history
and to the idea of “progress”, implying the “definitive abandonment of the paradise of the
archetypes and of the repetition”44, proper of ancient cultures and religions. In the Western
world, there came to prevail, in the XXth century, an attitude of clearly avoiding to refer to
death; there came to prevail a “great silence” about death45. Contemporary Western societies
came to “prohibit” the consideration of death at the same time that they fostered hedonism
and material well-being46.
39. F. Pessoa, Fausto – Tragédia Subjectiva (1st. integral edition), Rio de Janeiro, Ed. Nova
Fronteira, 2003 (reprint), pp. 30, 154 and 184.
40. J.L. de León Azcárate, La Muerte y Su Imaginario en la Historia de las Religiones, Bilbao,
Universidad de Deusto, 2000, pp. 24-25, 37, 50-51 and 75.
41. Ibid., pp. 123 and 130.
42. J.P. Carse, Muerte y Existencia – Una Historia Conceptual de la Mortalidad Humana, Mexico,
Fondo de Cultura Económica, 1987, pp. 85 and 167.
43. M. Eliade, El Mito del Eterno Retorno, Madrid/Buenos Aires, Alianza Ed./Emecé Ed., 2004,
pp. 90-91.
44. Ibid., p. 156.
45. Ph. Ariès, Morir en Occidente desde la Edad Media hasta Nuestros Días, Buenos Aires, A.
Hidalgo Ed., 2000 (reed.), pp. 196-199, and cf. pp. 213 and 238.
46. Ibid., p. 251.
1 4
38. While ancient cultures were very respectful of the elderly, “modern” societies try rather
to put them aside47. Ancient cultures ascribe great importance to the relationships between the
living and the dead, and to death itself as part of life. Modern societies try in vain to minimize
or ignore death, rather pathetically. Nowadays there is stimulus simply to forget, as pertinently
denounced by some lucid writers, like Jorge Luis Borges:
“Ya a nadie le importan los hechos. Son meros puntos de partida para la
invención y el razonamiento. En las escuelas nos enseñan la duda y el arte del
olvido. Ante todo el olvido de lo personal y local. Vivimos en el tiempo, que es
sucesivo, pero tratamos de vivir sub specie aeternitatis. Del pasado nos quedan
algunos nombres, que el lengaje tiende a olvidar. Eludimos las inútiles
precisiones. No hay cronología ni historia”48.
39. Already in the early XXth century, the philosopher Max Scheler, in his monograph
Death and Survival, warned that the “fanaticism” of “progress” had led “modern man” to deny
the essence of death and not to care much about survival. However, “modern man” cannot
attempt entirely to ignore death, pressed as he is by his own aging and infirmities; death
appears then not simply an “empirical part” of one’s own experience, but rather, according to
Scheler, part of the essence of the experience of living and moving towards death49. Universal
history discloses the important role played by the dead and their legacy in the decisions taken
by the living50.
40. There is a diffident attitude of the “post-modern”, due apparently more to ignorance
than anything else, about cultures of what is wrongly labelled “primitive societies”, which
discloses, however, a much better understanding of the relationship between human beings
and the outside world and a much more respectful posture as to the relationships between the
living and the dead. Those who are proud of regarding themselves as “post-modern”, are, in
my view, to be pitied; they are used to thinking fast, nourished by fast food, walking fast on
their fast road back to primitivism, – if they are fortunate enough.
VI. Mortality and Its Inescapable Relevance to the Living.
41. It goes without saying, – whether the self-sufficient “post-modern” like it or not, – that
mortality is endowed with an inescapable relevance to the living. An essay originally published
in 1937 sustained that the consciousness of death arises out of living with others: – “Nous
47. Cf. [Various authors,] Dialogue among Civilizations – The Round Table on the Eve of the
United Nations Millennium Summit, Paris, UNESCO, 2001, p. 84 (intervention by E. Morin).
48. J.L. Borges, El Libro de Arena, Madrid, Alianza Edit., 1999 [reprint], p. 99; and cf. also J.L.
Borges, Historia de la Eternidad, Madrid, Alianza Edit., 2002 [reprint], pp. 40-44.
49. M. Scheler, Muerte y Supervivencia, Madrid, Ed. Encuentro, 2001, pp. 11, 16-17, 27 and
47.
50. Ibid., p. 15.
1 5
avons constitué un `nous’ avec le mourant. Et c’est dans ce `nous’ (…) que nous sommes
amenés à la connaissance vécue de notre propre devoir mourir”51.
42. It may be recalled, in this respect, that the inspiring Tibetan Book of the Dead cares to
advise the incorporation of death into life, so that the living can gradually prepare themselves
for the passage into death; in fact, – the book reminds, – at every moment something is born
and something dies within ourselves, and this is part of one’s existence. The book deals, in a
way, with “universal conscience”, and points out that those who have, in life and meditation,
recognized “the true nature of the spirit” are better prepared for the arrival of the day of their
passage into death, into liberation52.
43. The equally inspiring Egyptian Book of the Dead, on its turn, reveals the belief in the
afterlife and in the “spiritual substance of the gods”; to the ancient Egyptians, death was
rather a passage into the eternal world of the gods, there being thus a continuity. The living
were particularly careful with their dead, so that these latter would have a “happy eternity”.
Hence the elaborate funerary rites, the process of mummification, so that the corpses would be
well preserved to keep the soul therein (and thus avoid it “to disappear forever”), and would
be carefully deposited in the funerary chambers, and would be well taken care of by the
relatives of the dead53.
44. The history of human thinking reveals the permanence of the doctrine of the survival or
eternity of the spirit, from Plato’s days to modern times (e.g., Kant, Goethe); in Scheler’s view,
the belief in the immortality of the spirit guards relationship with the way one lives54. The
significant attitude of remembering, reentering into the past, may provide intuitions (Plato’s
Phaedon) for the issue of survival55.
45. In face of death, distinct collective attitudes can in fact be detected not only in different
cultures but also at distinct historical moments. In a pioneering study, for example, of
collective attitudes in face of death in the XVII and XVIII centuries, M. Vovelle remarked that in
vain were the attempts in those days to erase death from human mind, as, towards the last
decades of the XVIIIth century, the reality of death came again to occupy human thinking. And
he recalled Robespierre’s remark that if the immortality of the soul was nothing but a dream,
yet it remained one of the most beautiful conceptions of the human spirit56.
51. P.-L. Landsberg, Essai sur l’expérience de la mort, Paris, Seuil/Points-Sagesses, 1993
(reed.), pp. 36-37 and 40, and cf. pp. 38-40.
52. Cf. El Libro Tibetano de los Muertos (Bardo-Thödol), (org. E.K. Dargyay), Madrid, EDAF,
1997 (reed.), pp. 20-23, 38, 79, 170-171, 179-180 and 218-219.
53. Cf. El Libro Egipcio de los Muertos (org. A. Champdor), Madrid, EDAF, 2000 (reed.), pp. 35,
41, 51, 99-100, 118, 125, 141, 145-147, 151, 156-157 and 163, and cf. pp. 178-181.
54. M. Scheler, Muerte y Supervivencia, op. cit. supra n. (27), pp. 58, 71-72, 74-75, 87-88 and
90.
55. Ibid., p. 62.
56. M. Vovelle, Mourir autrefois, Paris, Gallimard/Julliard, 1990, pp. 207 and 223.
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46. In the recent case-law of the Inter-American Court of Human Rights, there are cases
which have a direct bearing on existence and death, such as Aloeboetoe and Others (1991),
Bámaca Vélasquez (2000-2002), Bulacio (2003), Villagrán Morales and Others (“Street
Children”, 1999-2001), Brothers Gómez Paquiyauri (2004), Massacre of Plan de Sánchez
(2004). There are some, like Bámaca Velásquez, which encapsulate an extraordinarily rich and
enlightening cultural ingredient, precisely as to the relationship between existence and death,
like the present case of the Moiwana Community. Such cases, in my view, rank among the
most important ones in human rights case-law all over the world, and would be so recognized
if people, including academics, everywhere, were not so provincial, shallow and narrowminded,
minding only about what looks more directly familiar to them.
VII. The Duties of the Living towards Their Dead.
47. As I have already pointed out, it is not possible to consider the phenomenon of life
without taking into account likewise that of death. Life and death have been considered pari
passu in the history of human thinking. Ancient cultures bear witness of that; in the account of
A. Bentué, for example,
“los primitivos no tienen mayor interés en saber en qué pueda consistir
la ‘vida de ultratumba’. Para ellos, esa otra vida no afecta para nada la vida
presente. Lo que hay que procurar es simplemente que los muertos, después de
haberse cumplido su breve permanencia cerca de la tumba, durante el período
que duran los ritos mortuorios prescritos por el duelo, descansen en ese otro
mundo, sin quedar ‘vagando’, afectando, ahí sí, la vida de quienes siguen
permaneciendo en esta tierra (‘penándoles’).
Con todo, esa vida de ultratumba no es concebida como ‘eterna’, sino
que tiene una duración mayor o menor según la ‘memoria’ que los
sobrevivientes puedan mantener del difunto. El país de los muertos coincide con
el ‘recuerdo’ que de ellos puedan tener los vivos, de manera que si éstos
dejaran de recordarlos, las almas de los difuntos quedarían sumidas en la nada
del olvido. Sin embargo, los difuntos siguen vigentes en la continuidad de la
vida de los vivos que los prolongan”57.
48. Some traditional lines of thinking associate the soul with the proximity, for some time,
of the body of those who died, requiring particular care with the mortal remains. Some
contemporary thinking has warned against denying or pretending to ignore death, and has
stressed the need once again to learn to integrate death to life. And it has further pointed out
the “weight and sorrow” of sudden and violent death58, which does not allow those who depart
to bid farewell to those who survive them.
57. A. Bentué, Muerte y Búsquedas de Inmortalidad, Santiago, Edic. Universidad Católica de
Chile, 2002, p. 33.
58. M. de Hennezel, La mort intime, Paris, R. Laffont, 1995, pp. 105, 16 and 40.
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49. In fact, distinct religious faiths59 attribute particular importance to the behaviour of the
living in respect of their dead. The Bahá’í faith, for example, sustains the possibility that even
the condition of “those who have died in sin and unbelief may become changed” by the
“prayers and supplications” for their souls by those who survived them60.
50. According to the cultural tradition of the indigenous community Wayuu (living in the
desert La Guajira, near the Colombian border with Venezuela), there are three stages in one’s
passage from life to death and afterlife. The first one takes place when one dies and is buried;
his spirit is converted into “yoluja”. At least three years later, one’s bones are exhumed and
recollected, and placed in a common grave; the dead person loses his identity forever, and the
sorrow of his close relatives and friends disappears. The “definitive” death takes place when he
is at last forgotten. But his spirit converts itself into rain (“wanülü”) and returns to earth61.
51. Other examples could here be recalled. In the region of the Araucanía in Chile, e.g., the
people mapuche ascribe likewise particular importance to the funerary rites; to them, the
ceremony of the burial is “the expression of solidarity of the community”62. From the mapuche
perspective, “the communication with the dead is cultural, logical, it forms part of the mapuche
cosmovision and religion”63.
52. The mayas, aztecas and incas, on their turn, believed in life post mortem. To the
aztecas, death formed part of life (cycle of regeneration); to the incas, death was no more
than the passage of this life into the other one. To the maya, azteca and inca cultures, “vivir es
morir y morir es vivir”; life post mortem is not conditioned by personal attitudes, it is a
continuous cycle64. In distinct cultures, the passing of time is seen as reflecting the solidarity
between human generations that, like the stations, succeed each other in time65.
59. For a call for the “purification des mémoires”, and a “dialogue interreligieux” which consists
in the “accueil des autres dans leurs différence”, cf. J. Dupuis, “Le dialogue interreligieux dans
une société pluraliste”, in [Various Authors,] Movimientos de Personas e Ideas y
Multiculturalidad (Forum Deusto), vol. I, Bilbao, Universidad de Deusto, 2003, pp. 51-52.
60. Cf. Abdu’l-Bahá, Some Answered Questions (transl. from the Persian by L.C. Barney),
Wilmette Ill., Bahá’í Publ. Trust, 2003 [reprint], p. 232.
61. Cf. S. Harker, Wayuu – Cultura del Desierto Colombiano, Bogotá, Villegas Ed., 1998, pp.
182-183, and cf. pp. 184-186.
62. P. Pérez-Sales, R. Bacic Herzfeld and T. Durán Pérez, Muerte y Desaparición Forzada en la
Araucanía – Una Aproximación Étnica, Santiago de Chile, Ed. Universidad Católica de Temuco,
1998 (reed.), p. 171.
63. Ibid., p. 182.
64. J.L. de León Azcárate, La Muerte y Su Imaginario…, op. cit. supra n. (41), pp. 187, 198 and
219.
65. A.Y. Gurevitch, “El Tiempo como Problema de Historia Cultural”, in Las Culturas y el
Tiempo, Salamanca/Paris, Ed. Sígueme/UNESCO, 1979, p. 264.
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53. I well recall that, half a decade ago, during the contentious proceedings before this
Court in the Bámaca Velásquez versus Guatemala case (Merits, 2000), a point which was
sigled out before the Tribunal was the central relevance attributed by the maya culture to
securing a proper burial to the victim’s mortal remains, disclosing the links uniting the living to
their dead. On that occasion, in my Separate Opinion in the Court’s Judgment of 25.11.2000 in
that memorable case, I sustained that “the human kind comprises not only the living beings –
titulaires of human rights, – but also the dead with their spiritual legacy. We all live in the time;
likewise, legal norms are created, interpreted and applied in the time (and not independently
of it, as the positivists mistakenly assumed)”66.
54. And the passing of the time, – I added, – does not represent an element of separation,
but
“rather of approximation and union, between the living and the dead, in
the common journey of all towards the unknown. The knowledge and the
preservation of the spiritual legacy of our predecessors constitute a means
whereby the dead can communicate with the living67. Just as the living
experience of a human comunidad develops with the continuous flux of thought
and action of the individuals who compose it, there is likewise a spiritual
dimension which is transmitted from an individual to another, from a generation
to another, which precedes each human being and survives him, in the time.
There is effectively a spiritual legacy from the dead to the living,
apprehended by the human conscience. Likewise, in the domain of legal science,
I cannot see how not to assert the existence of a universal juridical conscience
(corresponding to the opinio juris comunis), which constitutes, in my
understanding, the material source par excellence (beyond the formal sources)
of the whole law of nations (droit des gens), responsible for the advances of the
human kind not only at the juridical level but also at the spiritual one. What
survives us is only the creation of our spirit, to the effect of elevating the human
condition. This is how I conceive the legacy of the dead, from a perspective of
human rights”68.
55. In the same Separate Opinion in the merits of the Bámaca Velásquez case, in
addressing the links of solidarity between the living and their dead, I further pondered that
“The respect to the mortal remains is also due to the spirit which
animated in life the dead person, in connection moreover with the beliefs of the
survivors as to the destiny post mortem of the person who died69. It cannot be
66. Paragraph 14, and cf. pars. 4-5.
67. Is is what I allowed myself to point out, – recalling in this sense a remark by Simone Weil in
her book L’Enracinement (1949), – in my Concurring Opinion (par. 5) in the case of the
Haitians and Dominicans of Haitian Origin in the Dominican Republic (Provisional Measures of
the Inter-American Court of Human Rights, of 18.08.2000).
68. Paragraphs 15-16.
69. B. Py, op. cit. supra n. (8), pp. 94 and 77, and cf. pp. 7, 38, 47, 77 and 123.
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denied that the death of an individual affects directly the life, as well as the
juridical situation, of other individuals, especially his relatives (as illustrated, in
the frameword of civil law (droit civil), by the norms of family law and the law of
successions). (…)
Universal human rights find support in the spirituality of all cultures and
religions70, are rooted in the human spirit itself; as such, they are not the
expression of a given culture (Western or any other), but rather of the universal
juridical concience itself. All the aforementioned advances, due to this universal
juridical conscience, have taken place amidst cultural diversity. Contrary to what
the spokesmen of the so-called – and distorted – “cultural relativismo” preach,
cultural manifestations (at least those which conform themselves with the
universally accepted standards of treatment of the human being and of respecto
for their dead) do not constitute obstacles to the prevalence of human rights,
but quite on the contrary: the cultural substratum of the norms of protection of
the human being much contributes to secure their effectiveness. Such cultural
manifestations – such as that of respect for the dead in the persons of the living,
titulaires of rights and duties – are like superposed stones with which is erected
the great pyramid71 of the universality of human rights”72.
56. Subsequently, in the Judgment on reparations in the same Bámaca Velásquez versus
Guatemala case (2002), I further pondered, in my new Separate Opinion, that in social circles
strongly impregnated with a communitarian vision, there prevails a feeling of harmony
between the living and their dead. Thus, in the oldest graves known, those of the Neanderthal
man times, the dead are buried in a foetal position, as if indicating the belief in after-life or
rebirth73, and funerary rites help to perpetuate the cultural legacy and to contribute to face the
reality of death and the anguish provoked by it74 (par. 20). And I added that
“in my view, what we conceive as the human kind comprises not only
the living beings (titulaires of the human rights), but also the dead (with their
spiritual legacy). The respect for the dead is in effect due in the persons of the
living. Human solidarity has a wider dimension than the purely social solidarity,
70. Cf. [Various Authors,] Les droits de l’homme – bien universel ou fruit de la culture
occidentale? (Colloquy of Chantilly/France, March 1997), Avignon, Institut R. Schuman pour
l’Europe, 1999, pp. 49 and 24.
71. To evoke an image quite proper to the rich maya culture.
72. Paragraphs 19 and 28.
73. Edgar Morin, O Paradigma Perdido: A Natureza Humana, 6a. ed., Sintra/Mem Martins,
Publs. Europa-América, 2000, pp. 93 y 135-137.
74. Ibid., p. 95, y cf. p. 165. El conocimiento humano – inclusive el científico – no ha logrado dar
una respuesta a los problemas transcendentales enfrentados por el ser humano (como el de su
destino); es posible que esteamos todavía en el “inicio del conocimiento”; ibid., p. 212.
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in so far as it manifests itself also in the links of solidarity between the dead and
the living” (par. 25)75.
57. In the present case of the Moiwana Community versus Suriname, originated in a
massacre perpetrated more than two decades ago, the Maroon N’djuka people have
consistently displayed an acute and admirable awareness of their duties towards their dead.
This became clear from the testimonial evidence produced before this Court, where it became
clear that the survivors, and close relatives of the direct victims of the massacre of 1986,
assumed their obligation to seek justice for their dead (as “a cultural responsibility that
continues through the generations”), and acknowledged the duty incumbent upon them to
recover the remains of their deceased, to perform the funerary ceremonies and to give a
“proper burial” to their deceased76.
58. In addition, the expert evidence produced (by anthropologist K.M. Bilby) before the
Court added that
“Justice is a central concept in traditional N’djuka society; indeed, one of
their primary institutions in daily life is the council meeting, which is the means
to resolve conflicts of any nature within the community. The institution has
spiritual dimensions as well, since ancestors are believed to partake in council
meetings, which provide their decisions with particular legitimacy. In the context
of the Moiwana massacre, traditional values would dictate that this must be
dealt with on a collective level; mere individual efforts would not be enough. In
order for such a serious problem to be resolved, it requires help from the
community as a whole. Indeed, as time goes on and the conflict is not resolved,
it will affect more and more people and social groups within the society”77.
59. According to one testimony, the massacre of 29.11.1986 was part of a grave and
systematic pattern of violence, and its perpetrators were “organized, trained and armed by
State military personnel”78. Yet another testimony before this Court added that if justice, after
so many years, was not done in the case of the Moiwana Community, this would “cause the
living as well as the dead to suffer”79. In their culture, the links of solidarity between the living
and their dead are so strong that, in situations of the kind, they both keep on suffering
together. The duties of the living towards their dead are, thus, to be duly performed faithfully.
75 For the view that the unity of the human kind can be found in the links between the living
and the dead, cf. A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos
Humanos, vol. III, Porto Alegre/Brazil, S.A. Fabris Ed., 2003, pp. 362-373.
76. Paragraph 80(b) to (d).
77. Paragraph 80(e).
78. Paragraph 80(a).
79. Paragraph 80(d).
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VIII. The Duties towards the Dead in the Origins and
Development of Law.
1. International Law.
60. It cannot pass unnoticed that an acknowledgement of the duties of the living towards
their dead was, in fact, present in the very origins, and along the development, of the law of
nations. Thus, to refer but to an example, in his treatise De Jure Belli ac Pacis (of 1625), H.
Grotius dedicated chapter XIX of book II to the right of burial (“derecho de sepultura”). Therein
H. Grotius sustained that the right of burying the dead has its origin in the voluntary law of
nations, and all human beings are reduced to an equality by precisely returning to the common
dust of the earth80.
61. H. Grotius further recalled that there was no uniformity in the original funeral rites (for
example, the ancient Egyptians embalmed, while most of the Greeks burned, the bodies of the
dead before committing them to the grave; irrespective of the types of funeral rites, however,
the right of burial was ultimately explained by the dignity of the human person81. H. Grotius
further sustained that all human beings, including “public enemies” (“enemigos públicos”) were
entitled to burial, this being a precept of “virtue and humanity”82.
62. In historical perspective, the influence of religion on the development of international
law should not pass unnoticed. The contribution of the Spanish theologians Francisco de Vitoria
(Relecciones Teológicas (1538-1539) and Francisco Suárez (De Legibus ac Deo Legislatore,
1612)83, and their influence on the work of H. Grotius himself84, soon became widely
acknowledged. And the work of these founding fathers of the discipline propounded an
essentially universalist outlook, as I had occasion to stress in my Concurring Opinion in the
Inter-American Court’s Advisory Opinion n. 18 on the Juridical Condition and Rights of
Undocumented Migrants (2003, pars. 4-12).
63. Nowadays, International Humanitarian Law provides for respect for the remains of the
deceased, whether they are buried or burned. Article 130 of the 1949 IV Geneva Convention
(on the Protection of Civilian Population) requires all due care and respect with mortal remains.
Article 34 of Protocol I of 1977 to the four Geneva Conventions of 1949 elaborates on the
matter in greater detail; the commentary of the International Committee of the Red Cross on
80. H. Grocio, Del Derecho de la Guerra y de la Paz [1625], tomo III (libros II y III), Madrid,
Edit. Reus, 1925, p. 39, and cf. p. 55.
81. Ibid., pp. 43 and 45.
82. Ibid., pp. 47 and 49; and cf. Hugonis Grotii, De Jure Belli ac Pacis [1625] (ed. B.M.
Telders), The Hague, Nijhoff, 1948, p. 88 (abridged version).
83. Association Internationale Vitoria-Suarez, Vitoria et Suarez – Contribution des Théologiens
au Droit International Moderne, Paris, Pédone, 1939, pp. 169-170.
84. M.W. Janis (ed.), The Influence of Religion on the Development of International Law,
Dordrecht, Nijhoff, 1991, p. 61, and cf. pp. 62-81.
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that Article points out that the respect due to the remains of the deceased “implies that they
are disposed of as far as possible in accordance with the wishes of the religious beliefs of the
deceased, insofar as these are known”, and warns that
“even reasons of overriding public necessity cannot in any case justify a
lack of respect for the remains of the deceased”85.
2. Domestic Law.
64. The duties of the living towards the dead found expression not only in international law
but also in domestic law. However insufficient the treatment of the matter might appear to be,
already the ancient Roman law, e.g., safeguarded penally the respect due to the dead. In the
comparative law of our days, it can be found that the penal codes of numerous countries tipify
and sanction the crimes against the respect for the dead (such as, e.g., the subtraction and
the hiding of the mortal remains of a human being). And at least one trend of the legal
doctrine on the matter visualizes as passive subject of the right to respect for the dead the
community itself (starting with the relatives) which the dead belonged to. As I allowed myself
to indicate in my Separate Opinion in the Bámaca Velásquez versus Guatemala case (Merits,
2000),
“Even though the juridical subjectivity of an individual ceases with his
death (thus no longer being, when having died, a subject of Law or titulaire of
rights and duties), his mortal remains – containing a corporeal parcel of
humanity, – continue to be juridically protected. The respect to the mortal
remains preserves the memory of the dead as well as the sentiments of the
living (in particular his relatives or persons close to him) tied to him by links of
of affection, – this being the value juridically protected86. In safeguarding the
respect for the dead, also penal law gives concrete expression to a universal
feeling of the human conscience. The respect for the dead is thus due – at the
levels of both internal and international legal orders, – in the persons of the
living” (par. 12).
65. The end of legal subjectivity with one’s death does not mean that law is indifferent to
the relationships between the living and their dead. Beyond existence one no longer needs
rights, but duties nevertheless persist towards the deceased. Niceto Alcalá-Zamora, – to whom
the “moral patrimony” of a people was formed by its accumulation of traditions, ideals, beliefs
and culture, – once remarked, in an inspiring monograph, that
“la conciencia justa (…) irá comprendiendo y realizando una relación de
derecho a través del tiempo, entre los que se suceden sin convivir; que
85. Y. Sandoz, C. Swinarski and B. Zimmermann (eds.), Commentary on the Additional
Protocols of 08 June 1977 to the Geneva Conventions of 12 August 1949, Geneva,
ICRC/Nijhoff, 1987, pp. 369 and 379.
86. Bruno Py, La mort et le droit, Paris, PUF, 1997, pp. 31, 70-71, 79-80 and 123.
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también en esto ha de practicarse el neminem laedere, y para ello,
previamente, el suum cuique tribuere”87.
66. Well before its penetration into law, the concern to render respect and honour to the
dead was already present in ancient cultures, – though the matter has been neglected, if not
trivialized, in the “post-modern” world. From their original recognition in the most distinct
cultures and religions, the duties of the living towards the dead was later on to find expression
also in the domain of Law, both international and domestic, and this holds true also in our
days.
IX. From the Right to a Project of Life to the Right to a Project of After-
Life.
67. Throughout the last seven years, the Inter-American Court has jurisprudentially
asserted the right to the project of life, in particularly in the cases Loayza Tamayo
(Reparations, 1998), Villagrán Morales and Others (“Street Children”, Merits, 1999, and
Reparations, 2001), and Cantoral Benavides (Reparations, 2001). The contribution of the
Inter-American Court on this point, – which has parallels in the jurisprudence of certain
national tribunals reflecting in comparative law, – has attracted the attention of, and has had a
positive repercussion and receptiveness in, contemporary international legal doctrine. In
addition, in other cases before the Inter-American Court, the right to the project of life has
been invoked by the complaining parties before the Court, at individual level (cases Myrna
Mack Chang, 2003; Brothers Gómez Paquiyauri, 2004; Carpio Nicolle and Others, 2004; and
De la Cruz Flores, 2004), at family level (case Molina Theissen, 2004), and at community level
(case of the Massacre of Plan de Sánchez, Reparations, 2004).
68. The present case of the Moiwana Community, in my view, takes us even further than
the emerging right to the project of life. A couple of years ago this Court broke into new
ground by asserting the existence of a damage to the project of life. The whole construction
took into account, however, the living. In the present case, however, I can visualize, in the
griefs of the N’djukas of the Moiwana village, a claim to the right to the project of after-life,
taking into account the living in the relations with their dead, altogether. International Law in
general, and the International Law of Human Rights in particular, cannot remain indifferent to
the spiritual manifestations of human beings, such as the ones expressed in the proceedings
before this Court in the present case of the Moiwana Community.
69. There is no cogent reason to remain in the world exclusively of the living. In the cas
d’espèce, it appears to me that the Ndjukas are certainly well entitled to cherish their project
of after-life, the encounter of each of them with their ancestors, the harmonious relationship
between the living and their dead. Their outlook of life and after-life embodies fundamental
values, long forgotten and lost by the sons and daughters of the industrial and the
communications “revolutions” (or rather, involutions, from the spiritual perspective).
70. My years of experience in this Court have enabled me to adjudicate on cases which
have raised issues which have gone, in fact, beyond this world of the living (such as the
87. N. Alcalá-Zamora y Torres, La Potestad Jurídica sobre el Más Allá de la Vida, Buenos Aires,
EJEA, 1959, pp. 25-26, and cf. pp. 22 and 136.
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Bámaca Velásquez case, 2000-2002, and the Massacre of Plan de Sánchez case, 2004, among
others). These have been cases with a dense cultural content, and the solutions arrived at by
the Court have left with me the impression that there is a fertile ground on which to advance
further. I have, ever since those decisions, much reflected on the matter, and the present
Moiwana Community case appears to me to constitute a most adequate occasion to propose an
entirely new category of damage, not covered by the existing categories to date.
X. Beyond the Moral Damage: the Configuration of the Spiritual
Damage.
71. I would dare to conceptualize it as a spiritual damage, as an aggravated form of moral
damage, which has a direct bearing on what is most intimate to the human person, namely,
her inner self, her beliefs in human destiny, her relations with their dead. This spiritual damage
would of course not give rise to pecuniary reparations, but rather to other forms of reparation.
The idea is launched herein, for the first time ever, to the best of my knowledge.
72. This new category of damage, – as I perceive it, – embodies the principle of humanity in
a temporal dimension, encompassing the living in their relations with their dead, as well as the
unborn, conforming the future generations. This is how I see it. The principle of humanitas
has, in fact, a long historical projection, and owes much to ancient cultures (in particular to
that of the Greeks), having become associated in time with the very moral and spiritual
formation of human beings88.
73. This new type of damage that I am proposing herein can be distinguished from moral
damages, as these became commonly understood. May I dwell upon this point for a while.
Moral damages have developed in legal science under a strong influence of the theory of civil
responsibility, which, in turn, was constructed in the light, above all, of the fundamental
principle of the neminem laedere, or alterum non laedere. This basic conception was
transposed from domestic into international law, encompassing the idea of a reaction of the
international legal order to harmful acts (or omissions) to the human person (individually and
collectively) and to shared social values.
74. The determination of moral damages ensuing therefrom (explained by the Roman law
notion of id quod interest) has, in legal practice (national and international), taken usually the
form of “quantifications” of the damages. Moreover, a “quantification” of the kind is undertaken
as a form of reparation, to the benefit essentially of the living (direct or indirect victims). When
one comes to the proposed spiritual damage, however, I cannot see how to separate the living
from their dead.
75. In historical perspective, the whole doctrinal discussion on moral damages was marked
by the sterile opposition between those who admitted the possibility of reparation of moral
damages (e.g., Calamandrei, Carnelutti, Ripert, Mazeaud et Mazeaud, Aubry et Rau, and
others) and those who denied it (e.g., Savigny, Massin, Pedrazzi, Esmein, and others); the
point that they all missed, in their endless quarrels about the pretium doloris, was that
88. G. Radbruch, Introducción a la Filosofía del Derecho, 3rd. ed., Mexico/Buenos Aires, Fondo
de Cultura Económica, 1965, pp. 153-154.
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reparation did not, and does not, limit itself to pecuniary reparation, to indemnization. Their
whole polemics was conditioned by the theory of civil responsibility.
76. Hence the undue emphasis on pecuniary reparations, feeding that long-lasting doctrinal
discussion. This has led, in domestic legal systems, to reductionisms, which paved the what to
distorted “industries of reparations”, emptied of true human values. The advent of the
International Law of Human Rights, and in particularly the case-law of the Inter-American
Court, came fortunately to widen considerably the horizon of reparations, and render that
doctrinal difference largely immaterial, if not irrelevant, in our days. There appears to be no
sense at all in attempting to resuscitate the doctrinal differences as to the pretium doloris in
relation to the configuration of the proposed spiritual damage. This latter is not susceptible of
pecuniary reparations, it requires other forms of reparation.
77. The testimonial evidence produced before this Court in the cas d’espèce indicated that,
in the N’djukas cosmovision, in circumstances like those of the present case the living and their
dead suffer together, and this has an intergenerational projection. Unlike moral damages, in
my view the spiritual damage is not susceptible of “quantifications”, and can only be repaired,
and redress be secured, by means of obligations of doing (obligaciones de hacer), in the form
of satisfaction (e.g., honouring the dead in the persons of the living).
78. In should be kept in mind that, in the present case of the Moiwana Community, as a
result of the massacre of 1986, the whole community life in the Moiwana village was
disrupted; family life was likewise disrupted, displacements took place which last until now
(almost two decades later). The fate of the mortal remains of the direct victims, the nonperformance
of funerary rites and ceremonies, and the lack of a proper burial of the deceased,
deeply disrupted the otherwise harmonious relations of the living N’djukas with their dead. The
grave damage caused to them, in my view, was not only psychological, it was more than that:
it was a true spiritual damage, which seriously affected, in their cosmovision, not only the
living, but the living with their dead altogether.
79. Moreover, the resulting impunity, in the form of a generalized and sustained violence
(increased by the sense of indifference of the public power to the fate of the victims) which has
persisted to date, has generated, in the members of the Moiwana Community, a sense of total
defencelessness. This has been accompanied by their loss of faith in human justice, the loss of
faith in Law, the loss of faith in reason and conscience governing the world.
80. In addition, in the public hearing of 09.09.2004 before this Court, as pointed out in the
present Judgment, former residents of the Moiwana village indicated that they were haunted
by their ancestors for not having had a proper burial; this had negative consequences for the
next-of-kin. They stressed that in the N’djuka culture they had the obligation to pursue justice,
and because of the denial of justice that they experienced in the present case, it is as if they
were “dying a second time”89. The State-planned massacre of 1986 “destroyed the cultural
tradition (…) of the Maroon communities in Moiwana”90. The expert evidence produced before
this Court expressly referred to “spiritually-caused illnesses”91.
89. Paragraph 80(b), (c) and (d).
90. Paragraph 80(a) and (d).
91. Paragraphs 80(e) and 83(9).
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81. All religions devote attention to human suffering, and attempt to provide the needed
transcendental support to the faithful; all religions focus on the relations between life and
death, and provide distinct interpretations and explanations of human destiny and after-life92.
Undue interferences in human beliefs – whatever religion they may be attached to – cause
harm to the faithful, and the International Law of Human Rights cannot remain indifferent to
such harm. It is to be duly taken into account, like other injuries, for the purpose of redress.
Spiritual damage, like the one undergone by the members of the Moiwana Community, is a
serious harm, requiring corresponding reparation, of the (non-pecuniary) kind I have just
indicated.
XI. Concluding Observations: A Plea against Oblivion.
82. In one of his latest publications, Memory and Identity (2005), the late Pope John Paul II
sustained that each person has a “spiritual patrimony” to preserve, and the cultivation of
memory assists one in precisely preserving his or her own identity93; it is due to the memory,
that each person, or human collectivity, preserves they, and – he added – the defence of such
identity is ultimately a matter of survival94. John Paul II recalled, in particular, the tragic
historical experience of his own people and homeland, – the Polish, – which, despite having
been attacked by their neighbours, divided and occupied by foreigners, nonetheless survived,
because they conserved their identity, cultivated their memory, and based themselves, in
times of utter adversity, on their own culture95 (including language and religion).
83. Memory is, ultimately, the faculty that preserves the identity of human beings, at both
personal and collective levels96. The cultivation of memory of events occurred in times of
repression, – in particular grave violations of human rights, – has in recent years been fostered
by the work of successive Truth Commissions in distinct continents97. This suggests the
awakening of the universal juridical conscience as to the need to combat the imposition of
oblivion and impunity.
92. Cf., e.g., [Various Authors,] Life after Death in World Religions, Maryknoll N.Y., Orbis, 1997,
pp. 1-124.
93. Juan Pablo II, Memoria e Identidad – Conversaciones al Filo de Dos Milenios, Buenos Aires,
Ed. Planeta, 2005, pp. 95, 109, 131 and 183.
94. Ibid., pp. 176-177.
95. Ibid., p. 109, and cf. pp. 28, 169-170 and 176-177.
96. Ibid., p. 177.
97. For a study, cf. A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos
Humanos, vol. II, Porto Alegre/Brazil, S.A. Fabris Ed., 1999, pp. 400-403, and sources referred
to therein.
2 7
84. Under the suggestive and title Testimony against Oblivion (Testimonio contra el
Olvido), the Comité de Iglesias para Ayudas de Emergencia, for example, published in 1999 in
Paraguay a documentary book (covering the period 1954-1989) so as to reveal the injustices
committed in the name of “an omnipotent State”, which left the numerous victims impotent,
and so as to contribute to preserve the memory of the sufferings of the victims which made it
possible to recover the freedom later. It warns as to what happens when the police, instead of
protecting, repress and humiliates those who think differently from the “official line of the
State”98.
85. Recent examples to the same effect multiply themselves. The Inter-American Court has
given its contribution to this liberation of the human spirit from imposed oblivion and impunity,
in particular by fulminating self-amnesty laws in its historical and wide-acclaimed Judgment in
the Barrios Altos case (of 14.03.2001) concerning Peru, and by discarding prescription in its
substantial Judgment in the Bulacio versus Argentina case (of 18.07.2003).
86. It should not pass unnoticed that in the present case of the Moiwana Community versus
Suriname, the human rights organization “Moiwana ’86” sought in vain to prevent the
enactment of an amnesty act in Suriname. As the Inter-American Court noted, as to the
proven facts, in the present Sentence, on 19.08.1992 the President of Suriname officially
enacted the “Amnesty Act 1989”, granting amnesty to those who had committed certain
criminal acts during the period from 01.01.1985 to 20.08.1992, with the exception of crimes
against humanity; these latter were defined as “those crimes which according to international
law are classified as such”99.
87. In his thoughtful book La mémoire, l’histoire, l’oubli (2000), P. Ricoeur timely warns
that “oblivion is not only the enemy of memory and history”, but is furthermore “the emblem
of the vulnerability of the historical condition as a whole”100. He then directs his criticisms to
the legal subterfuges precisely of prescription and amnesty:
“(…) La prescription est une institution étonnante, qui s’autorise à
grand-peine de l’effet présumé du temps sur des obligations supposées persister
dans le temps. À la différence de l’amnistie qui (…) tend à effacer les traces
psychiques ou sociales, comme si rien ne s’était passé, la prescription consiste
en une interdiction de considérer les conséquences pénales de l’action commise
(…). C’est le refus, après un laps d’années défini arbitrairement, de reparcourir
le temps en arrière jusqu’à l’acte et ses traces illégales ou irrégulières. Les
traces ne sont pas effacées: c’est le chemin qui est interdit (…). Comment le
98. Cf. Testimonio contra el Olvido – Reseña de la Infamia y el Terror (Paraguay 1954-1989),
Asunción, Comité de Iglesias para Ayudas de Emergencia, 1999, pp. 7-37, esp. p. 15.
99. Paragraph 86(39) and (40).
100. P. Ricoeur, La mémoire, l’histoire, l’oubli, Paris, Éd. Seuil, 2000, pp. 374-375.
2 8
temps pourrait – il à lui seul (…) opérer la prescription sans un consentement
tacite à l’inaction de la société? Sa justification est purement utilitaire”101.
88. P. Ricoeur then turns to the reaction of Law to such attempts to impose oblivion, in
particular in cases of grave violations of human rigths:
“L’imprescriptibilité signifie que le principe de prescription n’a pas lieu
d’être invoqué. Elle suspend un principe qui consiste lui-même à faire obstacle à
l’exercice de l’action publique. En supprimant les délais de poursuite, le principe
d’imprescriptibilité autorise à poursuivre indéfiniment les auteurs de ces crimes
immenses. En ce sens, il restitue au droit sa force de persister en dépit des
obstacles opposés au déploiement des effets du droit. (…) C’est
fondamentalement la gravité extrême des crimes qui justifie la poursuite des
criminels sans limite dans le temps. (…) La présomption est que la réprobation
des crimes considérés ne connaît pas de limite dans le temps. À cet argument
s’ajoute la considération de la perversité de plans concertés (…)”102.
89. Forgetfulness can simply not be imposed on anyone. Legal or institutionalized means of
imposing oblivion, – such as amnesty or prescription, – utilitarian as they may seem to be,
appear rather as obstructions of justice103 (summum jus, summa injuria). The search for, and
investigation of, past violations of human rights render the past an eternal present, so as to
allow the survivors of the violations to earn their future104. It has been rightly contended that
the unmasking of the atrocities of the past and of the present corresponds to a true “ethics of
the memory”105.
90. I surely hope that the personal thoughts I cared to give expression to, in my present
Separate Opinion, may help to disclose the great transcendence of the issues raised in the
present case, from the juridical perspective. I further hope that the Court’s Judgment in the
Moiwana Community case may contribute to restore, to the members of the Maroon N’djuka
community of the village of Moiwana, their sense of justice having been done and their
resulting peace of mind, as the spiritual damage they have been enduring for almost two
decades with their beloved deceased has herein been judicially recognized.
101. Ibid., p. 610.
102. Ibid., pp. 611-612.
103. P. Ricoeur, “Esquisse d’un parcours de l’oubli”, in Devoir de mémoire, droit à l’oubli? (ed.
Th. Ferenczi), Bruxelles, Éditions Complexe, 2002, pp. 26-27 and 30-31.
104. A. Wieviorka, “Entre transparence et oubli”, in Devoir de mémoire…, op. cit. supra n.
(104), pp. 182-183.
105. N. Weill, “Y a-t-il un bon usage de la mémoire?”, in Devoir de mémoire…, op. cit. supra n.
(104), p. 227.
2 9
91. The N’djukas had their right to the project of life, as well as their right to the project of
after-life, violated, and continuously so, ever since the State-planned massacre perpetrated in
the Moiwana village on 29.11.1986. They suffered material and immaterial damages, as well
as spiritual damage. Some of the measures of reparations ordered by the Court in the present
Judgment duly stand against oblivion, so that this atrocity never occurs again. Such is the case
of the State’s duty to investigate the facts and to try and sanction those responsible for them;
the State’s duty to find and identify the mortal remains of the victims of the massacre of
Moiwana village and to pass them on to the survivors of the Moiwana Community; the State’s
duty to secure the safe return to, and resettlement in, the Moiwana village of all those
forcefully displaced from it; the State’s duty to implement a fund of community development;
the State’s apologies to the victims, and the building of a monument in memory and honour of
the victims of the massacre of 1986106.
92. In sum, the wide range of reparations ordered by the Court in the present Judgment in
the Moiwana Community case appears well in keeping with the recognizedly rich case-law of
the Inter-American Court on the matter, which, as widely acknowledged107, has concentrated
on, and enhanced the centrality of, the position of the victims, – as well as on devising a wide
range of possible and adequate means of redress. In the cas d’espèce, the collective memory
of the Maroon N’djukas is hereby duly preserved, against oblivion, honouring their dead, thus
safeguarding their right to life lato sensu, encompassing the right to cultural identity, which
finds expression in their acknowledged links of solidarity with their dead.
93. It is incumbent upon all of us, the still living, to resist and combat oblivion, so
commonplace in our post-modern, ephemeral times. The dead need our faithfulness, they are
entirely depended upon it108. The duties of the living towards them are thus not limited to
securing respect for their remains and to granting them a proper burial; such duties also
encompass perennial remembrance. They need our remembrance today and tomorrow, just as
much as we needed their advice and care yesterday. Time, thus, instead of keeping us apart,
on the contrary, brings all of us – the living and the dead – together. This, in my view, ascribes
an entirely new dimension to the links of solidarity between the living and their dead.
Remembrance is a manifestation of gratitude, and gratitude is perhaps the noblest
manifestation of rendering true justice.
Antônio Augusto Cançado Trindade
Judge
Pablo Saavedra-Alessandri
Secretary
106. Decisory points ns. 1-8.
107. Cf., e.g., I. Bottigliero, Redress for Victims of Crimes under International Law, Leiden,
Nijhoff, 2004, pp. 111 and 144, and cf. pp. 176-177 and 183.
108. N. Wachtel, “Mémoire marrane”, in Devoir de mémoire…, op. cit. supra n. (104), p. 128.
CONCURRING OPINION OF JUDGE CECILIA MEDINA
I agree with the Court’s decision that Articles 5(1), 22 and 21 of the American Convention
have been violated, all in relation to Article 1(1) thereof, and also Articles 8(1) and 25 of the
Convention. Nevertheless, I have prepared this opinion because I consider that, in the
judgment, the Court failed to declare that Article 4 had also been violated, based on the
State’s failure to comply with its obligation to investigate the deprivation of life that
occurred owing to the massacre that took place in Moiwana in 1986. Furthermore, it did not
note that Article 5 had been violated, also due to the State’s failure to comply with its
obligation to investigate these facts, but in relation to personal integrity.1 In my opinion,
then, the omission of Article 4 left the violation of Articles 8 and 25 of the Convention
unsubstantiated.
First, I would like to establish the general premises for this position and, then, refer to the
specific case that is the subject of this judgment.
With regard to the general premises:
1. The American Convention establishes the obligation of the State to respect and
guarantee the human rights recognized therein. The obligation to guarantee, which is
relevant in this opinion, “is not exhausted by the existence of norms designed to make
compliance with this obligation possible, but requires governmental conduct that ensures
the genuine existence of an effective guarantee for the free and full exercise of human
rights.”2 With these words, the Court establishes the notion that it is obligatory for the
States Parties to implement actions designed to comply with this provision.
Since the obligation to guarantee refers to specific rights, it is complied with in
different ways according to the right that is the object of the guarantee.
2. In my opinion, and I believe that it is the Court’s case law as well, the obligation to
investigate, which the Court has mentioned consistently in cases where violations of Articles
4 and 5 of the Convention have occurred, derives from the general obligation of the States
Parties to guarantee these two rights – in other words, from Article 1(1) of the Convention
read in conjunction with Articles 4 or 5 thereof. The grounds supporting this position can be
found from the inception of the Court’s jurisprudence and have prevailed to date.3
3. Moreover, based on the above, it is evident that the obligation to investigate can only
be demanded with regard to a substantive right that must be protected. The Court has
regularly recognized the essential link between the obligation to guarantee, and
consequently to investigate, and the respective right that must be guaranteed.
1 In the case of Article 5, in addition to the lack of investigation into violations of integrity that
occurred during the massacre, there were other allegations regarding violations related to events that
took place after the massacre, on which the Court did rule (see paras. 90 to 103)
2 Ibid, para. 167.
3 Cf. Case of Velásquez-Rodríguez. Judgment of July 29, 1988. Series C No. 4, paras. 166 to
177.
2
This position can already be seen in the Court’s first judgment, where it affirmed that
Article 1(1) “specifies the obligation assumed by the States Parties in relation to each of
the rights protected. Each claim alleging that one of those rights has been infringed
necessarily implies that Article 1(1) of the Convention has also been violated.”4 In
accordance with this position, in the Tibi case for example, the Court stated that, owing to
the obligation contained in Article 1(1) to respect and ensure the rights of the Convention,
“the State has the obligation to initiate an immediate effective investigation ex officio that
makes it possible to identify, prosecute and punish those responsible when there has
been a complaint or there are grounds for believing that an act of torture has been
committed in violation of Article 5 of the American Convention.”5 In the Myrna Mack
Chang case, the Court stated that “safeguarding the right to life requires conducting
an effective official investigation when there are persons who have lost their life as a
result of the use of force by agents of the State.”6 This idea is repeated, inter alia, in the
following judgments: Gómez-Paquiyauri Brothers,7 Cantoral-Benavides,8 Caballero-Delgado
and Santana,9 and Baena-Ricardo et al.10
Even in cases in which the Court has examined the violation of Article 1 in an
independent chapter, it has still linked the violation of Article 1(1) to the right violated. In
the Juan Humberto Sánchez case, for example, the Court decided that: “The violations of
the right to liberty and personal safety, to life, to physical, mental and moral integrity, […]
that have been established in this judgment, are attributable to the State […]. Therefore,
the State is responsible for non-observance of Article 1(1) of the Convention, in
connection with the violations held regarding Articles 4, 5, 7, 8 and 25 of that
Convention.”11 The judgment in the Bámaca-Velásquez case, based on the same
violations, has the same conclusion.12
4. A similar situation exists with regard to Article 2 of the Convention, which also contains
a general obligation that underlies the rights recognized in the Convention. The Court’s
position in this regard has been the same, even when it has dealt with the violation of
Article 2 in a separate chapter. In the Suárez-Rosero case, for example, first the Court
4 Cf. Case of Velásquez-Rodríguez, supra note 3, para. 162.
5 Cf. Case of Tibi. Judgment of September 7, 2004. Series C No. 114, para. 159.
6 Cf. Case of Myrna Mack-Chang. Judgment of November 25, 2003. Series C No. 101, para. 157.
7 Cf. Case of the Gómez-Paquiyauri Brothers. Judgment of July 8, 2004. Series C No. 110, para.
131.
8 Cf. Case of Cantoral-Benavides. Judgment of August 18, 2000. Series C No. 69, tenth
operative paragraph.
9 Cf. Case of Caballero-Delgado and Santana. Judgment of December 8, 1995. Series C No. 22,
para. 56.
10 Cf. Case of Baena-Ricardo et al. Judgment of February 2, 2001. Series C No. 72, fifth
operative paragraph.
11 Cf. Case of Juan Humberto Sánchez. Judgment of June 7, 2003. Series C No. 99, para. 145.
12 Cf. Case of Bámaca-Velásquez. Judgment of November 25, 2000. Series C No. 70, para. 213.
See also sixth and eighth operative paragraphs.
3
established a violation of Article 7(5) and then, in the chapter dealing with Article 2, it
concluded that:
99. In conclusion, the Court points out that the exception contained in the
aforementioned Article 114 bis violates Article 2 of the Convention in that Ecuador has
not taken adequate measures under its domestic law to give effect to the right
enshrined in Article 7(5) of the Convention.13
Thus, the Court linked the failure to comply with Article 2 to the violation of a specific
right.
5. This linkage between the obligation of Article 1(1) and the substantive right that is
protected makes it unlikely that an autonomous violation of that right can be declared. If
the State is obliged to guarantee the rights established in the Convention – as Article 1(1)
states – the object of the guarantee can only be one or more of those rights, and it shall be
understood that the obligation has not been complied with only with regard to that right,
and constitutes a violation of the latter.
Consequently, I consider that the legal grounds that the Court can invoke to demand
that a State comply with the obligation in Article 1(1) are the existence of a violation of a
right that should be protected, ensured or guaranteed. In other words, there appear to be
no other legal grounds for obliging a State to investigate facts, other than the Court
deciding that by failing to conduct an investigation, the obligation to guarantee a specific
right has been violated.
Furthermore, I do not consider that the Court has the authority to demand that a
State investigate any fact, without basing this demand on legal grounds arising from the
Convention or on the international norms which the Court can invoke to justify its decisions.
Indeed, there appears to be no mention in the Court’s case law of legal grounds other than
the one described above.
6. Looking at another aspect of the problem, the case law of the Court, with which I agree,
also seems to indicate that a right recognized in the Convention may be violated by either
the act or the omission of the State. This had already been stated by the Court in the
Velásquez Rodríguez judgment on the merits, and is defined specifically in the Children’s
Rehabilitation Center judgment. In paragraph 156 of this judgment, the Court holds that
States “have the obligation to guarantee the creation of the conditions required for the full
enjoyment and exercise” of the right to life, and then establishes that, since Paraguay had
not taken “the necessary and sufficient positive measures to guarantee conditions for a
dignified life for all the detainees or taken the special measures required for the children,”
the State had violated Article 4.14
With regard to this specific case:
1. The first point that the Court had to decide in this case referred to its competence
ratione temporis to hear it, since the massacre of many members of the Moiwana
Community had occurred in 1986 – namely, before the date that the American Convention
came into force in Suriname and also before the date that this State accepted the Court’s
13 Cf. Case of Suárez-Rosero. Judgment of November 12, 1997. Series C No. 35, para. 99.
14 Cf. Case of the “Children’s Rehabilitation Institute”. Judgment of September 2, 2004. Series C
No. 112, para. 176. See also fourth operative paragraph of the judgment.
4
jurisdiction.15 Respecting this lack of competence, and when ruling on the preliminary
objection ratione temporis filed by the State, the Court stated that it was unable to examine
the violation of Article 4 in relation to the alleged arbitrary deprivation of life of members of
the Moiwana community by State agents, or the violation of Article 5, which could derive
from any adverse effects on personal integrity that occurred the day of the events of 1986;
that is, it could not rule on the alleged violation of the obligation to respect the right to life
and the right to personal integrity that had occurred on November 29, 1986, in Suriname.16
Notwithstanding the above, the Court understood that the events that occurred in
1986 gave rise to the obligation to investigate them, and that this obligation was pending
execution when the Court acquired jurisdiction to try the State of Suriname and, thus,
ratione temporis, it came within the Court’s jurisdiction.17
2. In my opinion, the obligation to investigate was generated at the time of the massacre.
It should not be forgotten that, at that date, Suriname was a member of the Organization of
American States and, as a member, it was obliged to respect and guarantee the human
rights established in the American Declaration of the Rights and Duties of Man, which
include, in Article 1, the rights to life, liberty and the security of the person. Thus, the
massacre of the Moiwana village did not take place in the absence of norms of the system,
which Suriname should have respected.
However, the Court was unable to monitor compliance with that obligation because it
lacked jurisdiction to do so. Its jurisdiction commenced when Suriname deposited the
appropriate instrument, in accordance with Article 62 of the Convention. At that moment,
the obligation to investigate was pending, because it is an obligation that is not exhausted
when the facts occur.18 That is what the Court decides in paragraph 40 of the judgment.
3. Since the Court decided that the State had the obligation to investigate the facts of
the massacre, it should have set out the legal grounds for that obligation, because if these
grounds did not exist, neither did the obligation. Paragraph 156 of the judgment failed to
mention this.
This is essential because, if the obligation to investigate does not exist, the Court
cannot maintain that there has been a violation of Articles 8(1) and 25 to the detriment of
the members of the Community. Article 8(1) establishes how an investigation should be
conducted, when there is an obligation to investigate, and Article 25 establishes the need
for a remedy “for protection against acts that violate […] fundamental rights…”
15 The Court encountered a similar problem in the Case of the Serrano-Cruz Sisters, but in that
case there was an obstacle that prevented it from declaring that the obligation to investigate
subsisted. There, the State had accepted the Court’s contentious jurisdiction with the express
reservation that the Court could only and exclusively examine the facts or legal acts occurring after
the date of the State’s acceptance of the Court’s jurisdiction or those facts or legal acts whose
execution had commenced after that date. See Case of the Serrano-Cruz Sisters. Judgment of
November 23, 2004. Series C No. 118, paras. 57 to 96).
16 See paras. 37 to 43.
17 See para. 40.
18 Similarly, the Court indicated in the Tibi case that “[s]ince the date the said Inter-American
Convention against Torture entered into force in Ecuador (December 9, 1999), the State has been
obliged to comply with the obligations contained in that treaty.” (Cf. Case of Tibi, supra note 5, para.
159)
5
The mention made by the Court of Article 1(1) does not resolve this vacuum. In this
case, the obligation to guarantee refers to the duty to comply with the contents of Article 8
and of Article 25, but cannot serve as grounds to hold that the State had the obligation to
investigate. Due process and remedies can only be demanded to protect another human
right or rights; these other rights necessarily arise from another source, which the judgment
in this case fails to mention.
4. Based on the considerations and reasoning in the first part of this opinion and the
considerations on the case itself that precede this paragraph, I conclude that, in this
judgment, the State of Suriname is obliged to investigate the facts of the 1986 Moiwana
massacre owing to the existence of its obligation to guarantee the rights to life and
personal integrity, and that not guaranteeing them constitutes a violation of Articles 4 and 5
which recognize them, read in conjunction with Article 1(1).
5. Thus, I consider that the Court should have declared that Articles 4 and 5 were violated
in relation to the failure to comply with the obligation to investigate, because this was part
of the obligation to guarantee against the deprivation of life and the adverse effects on
personal integrity that were alleged in the case.
Cecilia Medina-Quiroga
Judge
Pablo Saavedra-Alessandri
Secretary
Judge García-Ramírez subscribes to Judge Medina Quiroga’s opinion.
Sergio García-Ramírez
Judge
Pablo Saavedra-Alessandri
Secretary
Inter-American Court of Human Rights Case of the Moiwana Community v. Suriname Judgment of June 15, 2005 (Preliminary Objections, Merits, Reparations and Costs)
