INTER-AMERICAN COURT OF HUMAN RIGHTS
CASE OF MOIWANA VILLAGE V. SURINAME
JUDGMENT OF JUNE 15, 2005
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.
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.
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.
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.
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.
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.
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
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;
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
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
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.
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.”
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.
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
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.
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.
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
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.
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
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
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.
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
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.
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
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
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;
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
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.
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
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
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
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 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
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
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
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
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
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
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
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.
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
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.
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
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 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
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