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Reparations in Aloeboetoe v. Suriname.

I. INTRODUCTION

On 10 September 1993 the Inter-American Court of Human Rights handed down its judgment on reparations in the matter of Aloeboetoe et al. v. Suriname.(2) The events from which this wrongful death action arose occurred on 31 December 1987. In the presence of numerous witnesses, seven Saramaccan Maroon boatmen, including a fifteen year old boy, were detained by a squad of Surinamese soldiers in southern Suriname. The seven men were forced at gunpoint to lie on the ground, where military men proceeded to stomp and urinate upon them. Army members accused them of belonging to the Jungle Commando, a small band of rebels under the leadership of Ronnie Brunswijk, a former bodyguard of Surinamese strongman, Lt. Colonel Desi Bouterse. Although the seven victims denied belonging to the guerrilla operation and, indeed, had never been members of the group, they were blindfolded and forced into a military truck that carried them to a solitary place along a country road. Ordered down from the truck, the men were given shovels to dig their own graves. Richenel Voola, one of the prisoners, tried to run away but was brought down in a hail of gunfire. As Mr. Voola feigned death, he witnessed the summary execution of his six friends.

Several days later a search party of Maroons, led by Richenel Voola's brother, found the survivor and transported him to the university hospital in Paramaribo. By coincidence, I was in the Surinamese capital at that time and learned from Stanley Rensch, the leader of Moiwana 86, the Surinamese nongovernmental human rights organization, that Voola was alive. We immediately went to see him and I took his testimony, with Stanley serving as my interpreter. A month later, Voola died of his bullet wounds.

A year earlier, Suriname had ratified the American Convention and accepted the compulsory jurisdiction of the Inter-American Court of Human Rights(3) in an effort to deflect increasing international criticism of its human rights record. Accordingly, the Commission's investigation of the case proceeded as prescribed by the American Convention.(4)

II. COMMISSION INVESTIGATION

By the end of 1988, the Commission had conducted its fourth on-site visit to Suriname(5) and, among other things, deposed Voola's brother on videotape. His testimony coincided with the account provided by the deceased. The cassette and transcript of his testimony were later presented to the Court.

In August 1990 the Inter-American Commission issued a report(6) finding Suriname in violation, inter alia, of Article 4(7) of the Pact of San Jose,(8) respecting the right to life of the seven Maroons. The case was then sent to the Court for disposition.(9)

Faced with overwhelming evidence at a hearing on preliminary objections held in December 1991, in San Jose, the government's agent conceded responsibility for the deaths of the seven men.(10) Subsequently, the Commission submitted a demand for damages.(11) The process of establishing reparations raised new questions of law and fact and unprecedented problems in fact-finding related to damages.

The Commission demanded material and moral damages for the families of the victims on the basis of restitutio in integrum.(12) It also sought nonpecuniary damages in the form of a public apology and the return of the remains of the seven victims to their families.(13) In addition, the Commission requested that the government be required to investigate the case and try to punish those responsible for the deaths.(14) The Commission likewise asked for moral damages for the Saramaccan tribe as a whole.(15) Lastly, the Commission argued for costs incurred by the victims' families and NGOs.(16)

The court ultimately ordered the following reparations to commence in 1994:

1. $ 453,102 (payable in US Dollars or Dutch Florins) for the victims' children, spouses and parents;

2. The creation of two non-taxable trust funds at the Suritrust Bank in Paramaribo--one for the children and the other for the adults;

3. The establishment of a fiduciary committee called the "Foundation," composed of seven persons to administer the funds as trustee;

4. A one time $4,000 contribution from the government to cover start up costs of the Foundation;

5. The re-opening of a school and a medical dispensary in the village of Gujaba, village where the majority of the families reside;

6. The denial of all costs, except those borne directly by the families and Moiwana 86;

7. A requirement that the Court supervise compliance with this decision.(17)

In general terms, this summarizes the case. For the sake of students of the Commission and Court, however, a more careful examination of the reparations aspect of this case is required.

III. DETERMINATION OF DAMAGES

A. Material Damages

To establish material damages, the Commission Delegates Oliver Jackman and David J. Padilla, along with Claudio Grossman, the Commission's legal advisor from the International Human Rights Law Group and the Human Rights Clinic of the Washington College of Law at the American University, devised an extensive questionnaire. Moiwana 86, under the leadership of Stanley Rensch, was then asked to administer the questionnaire to family members of the victims who live in South-Central Suriname, far from the Caribbean Coast. On more than one occasion, planes had to be chartered to enter the Maroon territory to administer the questionaire. Moreover, in keeping with custom and law, prior permission to administer the questionnaire had to be obtained from the Saramaccan chief known as the "Granman," who in turn had to consult with his co-elders, known as "Captains."

After receiving permission to administer the questionnaire, the survey administrators had to identify the various wives, children, and other relatives of the deceased. Occupations had to be determined as well as earning patterns and employment histories. This work was further complicated because most of the victims had several wives, as polygamy is an accepted practice among the Maroons. All of the questionnaires were duly sworn to by the deponents in the presence of a notary public. The Commission also consulted experts in the course of determining the appropriate remedies and submitted affidavits on the matter of psychological damages. At the hearing on damages, which was held before the Court in July 1992, the Commission presented the expert testimony of anthropologist Richard Price, the pre-eminent expert in Saramaccan culture.

After establishing his credentials as an expert based on his training, extensive writings, fluency in the Saramaccan language, and years of living with the Maroons in both Suriname and French Guiana, Professor Price proceeded to explain the matriarchal character of Saramaccan society, based on the dominant female family member known as the "bee."(18) In keeping with this practice, the Commission sought a role for the Bee in the disposition of any award.

Furthermore, Professor Price explained the migratory work habits of Saramaccan men who routinely travel to the coast of both Suriname and French Guiana to obtain well paying construction jobs for periods of several years. These men typically return to their villages of origin laden with manufactured goods purchased with their savings. In the course of Professor Price's unrebutted testimony, he also established the fact that migrant Saramaccan workers customarily earn, handle, and save substantial amounts of money, up to $20,000, during these migrations.

Once the questionnaire-affidavits were submitted to the Commission, an actuary from the accounting firm of Coopers and Lybrand applied a technique known as the "present value added" system to determine projected earnings by the victims.

A total of thirty-seven beneficiaries were identified, including nine wives, twenty-four children, and four parents. The total demand for material damages included:(19)

1) a lump sum of US$ 2,557,242 broken down as follows:
US$    557,000    for material damages to the children
       330,000    for moral damages to the children
       670,000    for moral damages to the adult dependents


2) An annual sum of US$ 42,000, adjusted incrementally, for actual damages payable to the adult dependents; lump sums of US$ 35,785 and US$ 18,533 to cover legal costs; and a lump sum of US$ 32,375 for expenses.

3) An additional US$ 1,000,000 was sought as moral damages for the tribe.(20)

B. Moral Damages

During the hearing on damages, the government of Suriname sought to limit its liability by insisting that polygamy is not legal in Suriname and that recovery by any children should be premised on proper legal marriage and birth registration. In addition, the government argued that the 1762 treaty between the Maroons and the Dutch colonial power should not be relied on to establish the territorial autonomy of the Saramaccan's area where the murders took place, and thus moral damages to the tribe should be denied.(21)

1. Cultural rights

The Commission sought to establish new Inter-American jurisprudence in the area of cultural rights. Rather than basing its argument on the legal validity of the Treaty,(22) the Commission sought, through the testimony of Professor Price, to show that the character, pride, and very identity of the Saramaccas stemmed from their having obtained their freedom from slavery, as enshrined in the Treaty. The Saramaccas obtained their freedom first by successfully escaping from the sugar plantations of their Dutch masters and later by defeating the colonists by force of arms. The Commission also attempted to demonstrate that the self-esteem of an entire people had been profoundly violated during the 1986-1987 civil war through repeated and pitiless incursions of the army. The Committee then tried to establish that failure to compensate the Saramaccans to restore their lost dignity would constitute an irreparable injury to their cultural integrity. On this issue, the Court appears to have missed the relevant issue entirely by limiting examination of this question exclusively to the juridical character of the 1762 Treaty.(23) As a result, moral damages to the Saramaccan people were denied.(24)

C. Costs

On the matter of costs, the Commission submitted extensive supporting documentation, including receipts, for diverse costs, such as telephone bills, airline tickets, and photocopying services. All of the costs sought were those borne by the NGOs and the victims,(25) including reasonable attorney's fees.(26) It is important to underscore that none of the costs attributable to the Commission, its delegates, staff attorneys, secretarial support, material contributions, and the like were included in the requested recovery. Again, the Court made a serious mistake of fact, confusing the role of the Commission's legal advisor by indicating that Professor Grossman had been contracted by the Commission which was not the case. In fact, in seeking to recover reasonable attorney fees for time spent working on the case, Professor Grossman, by separate affidavit, declared that his services had been rendered pro bono and any recovery would accrue to the two NGOs that he represented.(27)

IV. COURT APPOINTED FACT-FINDERS

Following the hearing on damages,(28) the Court commissioned three persons to do further fact finding.(29) This action was entirely appropriate under Article 34 of the Court's Rules of Procedure in effect for this case.(30) In the Commission's view, these individuals--a Surinamese social scientist, a Surinamese consultant residing in Suriname, and the Assistant Secretary of the Court--all served as experts. Nevertheless, despite insistent requests by the Commission, none of them were made available for purposes of cross-examination by the parties. Moreover, only after repeated requests were the reports presented to the Court by these individuals made available to the Commission. In addition, there is reason to believe that, at least in the case of the Court's assistant secretary, verbal reports were provided to the judges without the litigants' knowledge, leaving the litigants unable to obtain the information and cross-examine the experts. In the interest of fairness, however, it would appear that these undertakings in the area of fact finding proved useful in clarifying certain gaps in some of the questionnaires provided by family members of the victims, including relevant information on such matters as divorces and deaths of parents.

A. The Court's Findings

On the issues of delivering of bodies(31) and the government's obligation to punish those responsible for the crimes,(32) the Court failed to break new ground or to follow former precedent. However, an examination of the Court's decisions on reparations reveals that, while not entirely satisfactory, some important precedents were nonetheless established.

B. Damages

1. Moral damages

Concerning the issue of moral damages, the Court held that the victims suffered moral damages from the time of their detention to the time of their deaths. Therefore, as is the case in domestic jurisprudence, the right to compensation for such damages would be transferred to the victims' heirs.(33) The Court stated that within domestic jurisprudence, it may be assumed that successors(34) to wrongfully killed victims suffer real and moral damage and that the burden of proof is on the government to show that such damages do not exist.(35) However, in the case of nonsuccessor third parties, the third party has the burden of proving damages.(36) In this case, the Court held that such damages were not proven as to third parties,(37) but awarded some compensation for moral damage to the parents of the victims, as a matter of judicial notice.(38) Apparently, the Court would have preferred that the Commission dispatch psychologists and other mental health experts to the interior of Suriname to strengthen its claim that wives, children, and parents suffer trauma when their husbands, fathers, and children are gunned down in cold blood.

2. Material damages

On material damages, the Court indicated that the data provided by the Commission were "not sufficiently documented."(39) Here again, in a culture and economy in which pay stubs, tax returns, and other ordinary means of verification are not customarily employed, it is hard to determine what better means than sworn, unrebutted affidavits by family members could be provided.

C. Important Precedents

The ultimate decision on damages in Aloeboetoe nevertheless established a number of very positive precedents. First, reparations were based on a "prudent estimate of damages"(40) and "principles of equity."(41) In applying these criteria, the Court awarded close to half a million dollars to otherwise bereft widows, orphans, and parents. Further, the Court ordered the payment of damages in hard currency, thereby avoiding problems with Suriname's inflation plagued guilder.(42) Second, the Court showed some ingenuity in ordering the reopening of a school and clinic in the victims village.(43) Third, the Court properly rejected the government's objections based on the alleged illegality of polygamy and the failure of the Saramaccas to register their births and marriages.(44) By doing so, the Court recognized the viability of Maroon cultural practices in fundamental intimate relations.

In addition, the Court's creation of trust funds,(45) at the Commission's request, and the establishment of a trustee in the form of a foundation(46) were also significant developments. Unfortunately, the Commission was not consulted on the foundation's formation. Consequently, only one Saramaccan was designated to serve on the Foundation, with no representation from either the tribal leadership or Moiwana 86, the moving party in the case. Twice the Commission sought information concerning the background and qualifications of the foundation members from the Court, and twice the Commission was informed, in writing, that the information was on file at the Court and open to review by the Commission. Such a response was less than the cooperative attitude one might have hoped for from a body located two thousand miles from the Commission's headquarters.

V. CONCLUSION

In this article the main aspects of Aloeboetoe have been reviewed. Given that the Inter-American Court of Human Rights has only ruled on a handful of cases to date, the jurisprudence articulated in this decision is extremely important and will undoubtedly command further analysis. Indeed, any of the sub-issues alluded to would be worthy of separate and more extensive treatment. The purpose of this analysis, however, has been to present the general matter to the reader and to place on the record the reflections of one who participated during all aspects of the case.

By way of conclusion, some thought should be given to the overall economy of prosecuting this kind of case before the Court. The intangible, yet exemplary, impact of Aloeboetoe, upon both the government concerned and other governments, deserves recognition. However, as long as the methods of the instant case are employed, one cannot help but wonder whether it would be practical to press such cases in the future.

The Commission, with this point in mind, has sought to simplify the fact-finding process. In keeping with the European Court of Human Rights' holding in Stocke v. Germany,(47) the Commission requested that the Inter-American Court accept the Commission's findings of fact as true barring some showing of manifest abuse or error.(48) However, the Court denied the Commission's request.(49)

In recent conversations between the Court and the Commission, an agreement to take sworn testimony in the presence of counsel for both the Commission and the government, preferably on video tape was reached. This practice could obviate the need to transport numerous victims and witnesses to the Court's seat in San Jose, Costa Rica for purposes of a full blown trial.

Even with this improvement, other techniques need to be developed and refined. To say that Aloeboetoe was exceptional because of its ethnographic and geographic peculiarities would be easy. However, the fact is that our continent is vast and our peoples and economies are extremely diverse. Therefore, determining proper damages is essential to the development of a credible judicial system in the area of human rights. Intergovernmental and nongovernmental human rights organizations must create reliable tools in order to make these determinations.

Lastly, the Court's denial of costs in Aloeboetoe is extremely disappointing. Fortunately, because this denial appears to have been made on the basis of an honest but mistaken notion of the role of the NGOs, it, hopefully, is not fatal. Nevertheless, in light of the financial resources expended by the NGOs(50) and the Commission,(51) and the Court's decision to deny costs, general members of the bar(52) will lack the incentive to accept and prosecute human rights cases in the inter-American system. For this to change, there must be some expectation of an award of costs.

(1.)Assistant Executive Secretary, Inter-American Commission on Human Rights. The views expressed in this article are the author's and not those of the Commission or the OAS. Special thanks to Howard Dean for his help in researching this study.

(2.)Aloeboetoe et al. Case, Reparations, Inter-Am. Ct. H.R. 66, OAS/ser.L./V./III.29, doc. 4 (1993) [hereinafter Aloeboetoe].

(3.)Suriname ratified the Convention and accepted the jurisdiction of the Court on 12 November 1987. Organization of American States, Signatures and Current Status of Ratifications, American Convention on Human Rights, reprinted in BASIC DOCUMENTS PERTAINING TO HUMAN RIGHTS IN THE INTER-AMERICAN SYSTEM OAS/ser.L./V./II.82, doc. 6 rev. 1, 1 July 1992 at 53 (1992) [hereinafter BASIC DOCUMENTS].

(4.)American Convention on Human Rights, signed 22 Nov. 1969, entered into force 18 July 1978, O.A.S. Treaty Series No. 36, at 1, O.A.S. Off. Rec. OAS/ser. L./V./II.23 doc. rev. 2, reprinted in BASIC DOCUMENTS, supra note 3, at 25 (1992) [hereinafter "American Convention"].

(5.)Annual Report of the Inter-American Commission on Human Rights, OAS/ser.P, AG/doc.2518/89, at 16, 22 (1988-89).

(6.)Pursuant to Article 50 of the Convention, the Commission drafted Report No. 03/90 on 15 May 1990, which decided:

1. To admit the present case.

2. To declare that the parties have been unable to achieve a friendly settlement

3. To declare that the Government of Suriname has failed to fulfill its obligations to respect the rights and freedoms contained in the American Convention on Human Rights and to assure their enjoyment as provided for in Articles 1 and 2 of the same instrument.

4. To declare that the Government of Suriname violated the human rights of the subjects of the case as provided for by Articles 1, 2, 4(1), 5(1), 5(2), 7(1), 7(2), 7(3), 25(1), and 25(2) of the American Convention on Human Rights.

5. To recommend to the Government of Suriname that it take the following measures:

a. Give effect to Articles 1 and 2 of the Convention by assuring respect for and enjoyment of the rights contained therein;

b. Investigate the violations that occurred in this case and try and punish those responsible for their occurrence;

c. Take necessary measures to avoid their recurrence;

d. Pay a just compensation to the victim's next of kin.

6. To transmit this report to the Government of Suriname and to provide the Government with 90 days to implement the recommendations contained herein. The 90 day period shall begin as of the date this report is sent. During the 90 days in question the Government may not publish this report, in keeping with Article 47(6) of the Commissions Regulations.

7. To submit this case to the Inter-American Court of Human Rights in the event that the Government of Suriname should fail to implement all of the recommendations contained in numeral 5 above.

Aloeboetoe, supra note 2, [paragraph] 8.

(7.)Article 4(1) of the Convention states that: "Every person has the right to have his life respected. This right shall be protected by law and, in general, fromk the moment of conception. No one shall be arbitrarily deprived of his life." American Convention, supra note 4, at art. 4.

(8.)Because The American Convention on Human Rights was adopted at an intergovernmental conference in San Jose, Costa Rica, it is also known as the "Pact of San Jose." BUERGENTHAL ET AL., PROTECTING HUMAN RIGHTS IN THE AMERICAS: SELECTED PROBLEMS 8 (1990).

(9.)The case was sent to the Inter-American Court on 27 August 1990. In its communication to the Court, the Commission alleged that "the Government of Suriname violated Articles 1, 2, 4(1), 5(1), 5(2), 7(1), 7(2), 25(1) and 25(2) of the American Convention on Human Rights." Aloeboetoe, supra note 2, [paragraph] 1. In its memorial dated 1 April 1991, the Commission requested the following of the court:

That the honorable Court find the State of Suriname responsible for the deaths [of the seven victims], and hold that these deaths violate Articles 1(1)(2), 4(1), 5(1)(2), 7(1)(2)(3) and 25 of the American Convention on Human Rights.

That the Court find that Suriname must pay adequate repartion to the victims' next of kin and, consequently, order the following: payment of indemnization for indirect damages and loss of earnings; reparation for moral damages, including the payment of compensation and adoption of measures to restore the good name of the victims; and, the investigation of the crime committed, with due punishment for those found to be guilty....

That the Court order Suriname to pay costs incurred by the Commission and the victims in the instant case.

Id. [paragraph] 9.

(10.)At the hearing, convened on December 2, 1991, for the purpose of dealing with the preliminary objections...the Agent of Suriname declared that the Republic of Suriname, having reference to the first case being considered in the proceedings now before the Court, accepts responsibility for the consequences of the Pokigron case, better known as Aloeboetoe et al.

Aloeboetoe et al. Case, Preliminary Arguments, Inter-Am. Ct. H.R. 57, [paragraph] 22, OAS/ser.L./V./III.25, doc. 7, app. VIII (1991).

(11.)A brief on reparations and costs was submitted by the Commission on 31 March 1992. Aloeboetoe, supra note 2, [paragraph] 14.

(12.)Restitution in Integrum is defined as "restoration or restitution to the previous condition." BLACK'S LAW DICTIONARY 1313 (6th ed. 1990). The Commission maintained that, pursuant to Article 63(1) of the American Convention and general principles of international law, "the Government must compensate the injured party for damages resulting from its failure to fulfill its obligations on the basis of the rule of restitution in integrum." Aloeboetoe, supra note 2, [paragraph] 15. Article 63(1) of the American Convention articulates, in particular, that

[i]f the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that a fair compensation be paid to the injured party.

American Convention, supra note 4, at art. 63(1). The right to compensation in the case of a breach of international law by a State is a principle of customary international law, and has been recognized by the Court as such. See Aloeboetoe, supra note 2, [paragraph] 43; see also, the Velasquez Rodriguez Case, Inter-Am. Ct. H.R. 123, [paragraph] 25, OAS/ser.L./V./III.21, doc. 14 (1989) [hereinafter "the Velasquez Rodriguez Case, Compensatory Damages"]; and, the Godinez Cruz Case, Inter-Am. Ct. H.R. 141, [paragraph] 23, OAS/ser.L./V./III.21, doc. 14 (1989) [hereinafter "the Godinez Cruz Case"]; as well as the case law of other tribunals. See, e.g., Factory of Chorzow, Jurisdiction, Judgment No. 8, 1927, P.I.C.J. at 21; Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Second Phase, Advisory Opinion, I.C.J., Reports 1950, at 228. For a full discussion of the Court's interpretation of art. 63(1), see Aloeboetoe, supra note 2, [paragraph] [paragraph] 42-49.

(13.)Aloeboetoe, supra note 2, [paragraph] 20.

(14.)Id. [paragraph] 20.

(15.)The Commission asserted that the "Government would ... he under [an] obligation to make reparation for moral damages suffered as a result of the severe psychological repercussions that the killings had on the relatives of the victims." Id. [paragraph] 18. Additionally, the Commission sought moral reparation for the Saramaccan tribe as a whole. According to the Commission, "[i]n the traditional Maroon society, a person is not only a member of his own family group, but also a member of the village community and of the tribal group. In this case, the damages suffered by the villagers due to the loss of certain members of its group must be redressed. Since the villagers, in practice, constitute a family in the broad sense of the term ... they have suffered direct emotional damages as a result of the violations of the Convention." Id. [paragraph] 19. See also, id. [paragraph] [paragraph] 81-84.

(16.)Id. [paragraph] 21.

(17.)Id. [paragraph] 116.

(18.)Evidence was presented before the court explaining that the "bee" is the principal group of relatives "composed of all the descendants of one signle woman." Id. [paragraph] 59.

(19.)Id. [paragraph] 22.

(20.)Id.

(21.)Suriname accepted compensation for actual damages but felt that such compensation should not be based on the customary norms of the Saramaccan Tribe. Rather, the government believed that compensation should be based on the American Convention and applicable principles of international law as articulated in the Godinez Cruz Case. Aloeboetoe, supra note 2, [paragraph] 27; See also, the Godinez Cruz Case, supra note 12, [paragraph] 29. Additionally, the government agreed to compensate for moral damages. Again the government relied on the Velasquez Rodriguez and the Godinez Cases which held that "compensation was granted after the psychological damages of the family members of the victims had been substantiated by expert medical testimony." Aloeboetoe, supra note 2, [paragraph] 28. See also, the Velasquez Rodriguez Case, Compensatory Damages, supra note 12, [paragraph] 51; the Godinez Cruz Case, supra note 12, [paragraph] 49. The government further objected to a request to compensate the Saramaccan tribe itself for moral damages. The government argued primarily that this claim was not presented during the proceedings on the merits. Consequently, "[t]o admit new claims for compensation during the current COMPENSATORY DAMAGES phase would be to accept the violation of a new international obligation ... that had not been presented by the Commission in its previous briefs and had neither been analyzed by the Court during the various phases of the proceedings nor contested by Suriname's defense during the prior hearings." Aloeboetoe, supra note 2, [paragraph] 29. The Court rejected this argument, noting that "in proceedings before an international court a party may modify its application, provided that the other party has the procedural opportunity to state its views on the subject." Id. [paragraph] 81, citing Factory of Chorzow, supra note 12, at 7; Neuvieme rapport annuel de la Court permanente de Justice internationale, P.C.I.J., Series E, No. 9, at 163 (1932-33).

(22.)The Court interpreted the Commission's brief as establishing three grounds for payment of moral damages to the Saramaccas. First, the Court implied from the Commission's brief that the killings were "racially motivated and committed in the context of ongoing conflicts that apparently existed between the Government and the Saramacca Tribe." On this issue, the Court declared that it had not been proved that the racial factor was a motive for the killings, Aloeboetoe, supra note 2, [paragraph] 82. Second, the Commission articulated in its brief the notion that a person in a traditional maroon society "is a member not only of his or her own family group, but also of his or her own village community and tribal group." Thus, "damages caused to one of its members also represent damages to the community, which would have to be indemnified." Here, the Court stressed that the Saramaccas, while members of their family and village community, also belong to the "intermediate community." Accordingly, because "the obligation to pay moral damages does not extend to such communities, nor to the State in which the victim participated; these are redressed by the enforcement of the system of laws." Id. [paragraph] 83. See also, id. [paragraph] 19. Third, the Commission asserted that the Tribe's rights were violated when the Suriname army entered the Tribe's territory. As the Commission explained, the Saramaccas' autonomy originated in the treaty but at present is only governed by domestic public law. Consequently, the government action was a violation of a territorial domestic legal norm; not a treaty based norm. Notwithstanding the Commission's argument, the Court looked exclusively to the 1762 treaty, noting that "[n]o other provision of domestic law, either written or customary, has been relied upon to establish the autonomy of the Saramaccas." Id. [paragraph] 84. See also, id. [paragraph] [paragraph] 56-58.

(23.)Id. [paragraph] 84.

(24.)"The assumption that a domestic rule on territorial jurisdiction was transgressed in order to violate the right to life does not of itself establish the right to moral damages claimed on behalf of the tribe. The Saramacas could raise this alleged breach of public domestic law before the competent jurisdiction; however, they may not present it as a factor that justifies the payment of moral damages to the whole tribe." Id.

(25.)In its brief, the Commission demanded that "the Government pay the expenses and costs incurred by the families of the victims in asserting their rights before the courts of Suriname, the Commission and the Court." Id. [paragraph] 21. Here, the court held that the Government shall reimburse the expenses incurred by the families of the victims in their dealings with the Surinamese authorities. Id. [paragraph] 111. See also, id. [paragraph] [paragraph] 94-95.

(26.)Pursuant to the Regulations of the Inter-American Commission on Human Rights, the Commission member(s) representing the Commission before the Inter-American Court "may be assisted by any person designated by the Commission." Regulations of the Inter-American Commission on Human Rights, at art. 71(4), reprinted in BASIC DOCUMENTS, supra note 3, at 103.

(27.)The Commission's demands for judgment are included in the pleadings. See, Pleadings (on file at the Inter-American Court of Human Rights).

(28.)The president of the Court, by an 18 January 1992 order, gave the Commission until 31 March 1992 to present its evidence on reparations and costs; the government of Suriname was given until 15 May 1992 to present its observations on the Commission's submissions. Pursuant to the same order, a hearing was convened for 7 July 1992. Aloeboetoe, supra note 2, [paragraph] 13. The purpose of the hearing "would be to hear the arguments of Suriname and the observations of the Commission regarding [Suriname's objections to damages] and, if appropriate, to receive the testimony offered by the parties and hear the views of the parties concerning reparations and costs." Id. [paragraph] 35.

(29.)Id. [paragraph] [paragraph] 39-40.

(30.)Article 34 of the Inter-American Court's Rules of Procedure states the following:

1. The Court may, at the request of a party or on its own motion, obtain any evidence which it considers likely to clarify the facts of the case. In particular, it may decide to hear as a witness or expert witness, or in any other capacity, any person whose evidence, statements or opinion it deems useful.

2. The Court may, at any time during the proceedings, request the parties to provide any type of evidence available to them or any explanation or statement that, in its judgment, would be likely to clarify the facts of the case.

3. The Court may, at any time during the proceedings, designate any person, office, commission or authority of its choice to obtain information, express an opinion, or make a report on any given point. These reports may not be published without the authorization of the Court.

4. The Court may, at any time during the proceedings, designate one or more of its members to conduct an inquiry, carry out an investigation on the spot or take evidence in some manner.

Rules of Procedure of the Inter-American Court of Human Rights, art. 34, reprinted in BASIC DOCUMENTS, supra note 3, at 145.

(31.)On the matter of delivering the bodies, the Court's decision failed to establish a positive precedent. In its decision, the Court simply indicated that the government's duty is to inform the families of their whereabouts with no mention of exhumation, delivery, or reinterment. Aloeboetoe, supra note 2, [paragraph] 109.

(32.)Further, on the question of the government's obligation to investigate and punish those responsible for these crimes, the Court was silent despite the fact that it had previously ruled on this same issue in the 1988 Velasquez Rodriguez Case. There the Court held: "The State has a legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation." The Velasquez Rodriguez Case, Inter-Am. Ct. H.R. 35, [paragraph] 174, OAS/ser.L./V./III.19, doc. 13 (1988).

(33.)Violation of the right to life requires compensation. The Court held that such compensation includes actual damages and moral damages. Because the victims are entitled to compensation for the damages suffered up until the time of their death, the victim's heirs have a right to compensation by succession. Aloeboetoe, supra note 2, [paragraph] [paragraph] 50-53.

(34.)On this issue there was some question as to who the successors of the victims were. The Commission argued that the Court should make this decision with reference to the customs of the Saramaccan Tribe. Id. [paragraph] 55. In making its determination, the Court looked first to the 1762 treaty establishing autonomy. On this point the Court held that there was no need to ascertain the effectiveness of the treaty because, pursuant to the norms of jus cogens superveniens, the treaty would today be void. Id. [paragraph] 57. Accordingly, "[t]he only question of importance ... is whether the laws of Suriname in the area of family law apply to the Saramaca Tribe." Id. [paragraph] 58. Here, the court held that "the evidence offered leads to the conclusion that the Surinamese family law is not effective insofar as the Saramacas are concerned. The members of the tribe are unaware of it and adhere to their own rules." Id. Recognizing the inapplicability of Suriname law in determining the victim's successors, the Court applied general principles of international law pursuant to article 38(1)(c) of the Statute of the International Court of Justice. Id. [paragraph] 61. The Court then noted that, under most legal systems, a person's successors are defined as "children," "spouse," and "ascendants." Id. [paragraph] 62. Such terms, the court held, should be interpreted according to local law. Because local law is not Surinamese law, Saramaca custom should be taken into account. Saramaca custom, thus, "will be the basis for the interpretation of those terms, to the degree that it does not contradict the American Convention." Id.

(35.)Id. [paragraph] 54.

(36.)Id. The Court explains that third parties may successfully make a claim for compensatory damages (actual and moral) where the following three conditions are satisfied:

First, the payment sought must be based on payments actually made by the victim to the claimant, regardless of whether or not they constituted a legal obligation to pay support. Such payments cannot be simply a series of sporadic contributions; they must be regular, periodic payments either in cash, in kind, or in services. What is important is the effectiveness and regularity of the contributions.

Second, the nature of the relationship between the victim and claimant should be such that it provides some basis for the assumption that the payments would have continued had the victim not been killed.

Lastly, the claimant must have experienced a financial need that was periodically met by the contributions made by the victim. This does not necessarily mean that the person should be indigent, but only that it be somebody for whom the payment represented a benefit that, had it not been for the victim's attitude, it would not have been able to obtain on his or her own.

Id. [paragraph] 68.

(37.)Id. [paragraph] 69.

(38.)The Court noted that only the parents of some of the victims had been characterized as successors, and were thus eligible for moral damages. With regards to those parents not in the same situation, the Court held that "it can be presumed that the parents have suffered morally as a result of the cruel death of their offspring, for it is essentially human for all persons to feel pain at the torment of their child." Id. [paragraph] 76. Accordingly, the Court compensated those parents with moral damages. Id. [paragraph] 77.

(39.)Id. [paragraph] 88.

(40.)As the Court stated, "[i]t is not correct, then, in these cases, to adhere to rigid criteria ... but rather to arrive at a prudent estimate of the damages, given the circumstances of each case." Id. [paragraph] 85 (citing the Velasquez Rodriguez Case, Compensatory Damages, supra note 12, [paragraph] 48; the Godinez Cruz Case, supra note 12, [paragraph] 46).

(41.)In assessing compensation for moral damages, "[i]ndemnification must be based upon the principles of equity." Aloeboetoe, supra note 2, [paragraph] 86, (citing the Velasquez Rodriguez Case, Compensatory Damages, supra note 12, [paragraph] 27; the Godinez Cruz Case, supra note 12, [paragraph] 25).

(42.)Aloeboetoe, supra note 2, [paragraph] [paragraph] 89, 92.

(43.)As the Court noted,

[t]he compensation fixed for the victims' heirs includes an amount that will enable the minor children to continue their education until they reach a certain age. Nevertheless, these goals will not be met merely by granting compensatory damages; it is also essential that the children be offered a school where they can receive adequate education and basic medical attention.

Id. [paragraph] 96. Thus, the Court believes that, as part of the compensation due, Suriname is under the obligation to reopen the school at Gujaba and staff it with teaching and administrative personnel to enable it to function on a permanent basis as of 1994. In addition, the necessary steps shall be taken for the medical dispensary already in place there to be made operational and reopen that same year.

Id.

(44.)Id. [paragraph] [paragraph] 62, 64.

(45.)Two trust funds are to be set up for the listed beneficiaries: one for the minor children and the other for the adult beneficiaries. Id. [paragraph] [paragraph] 100-02.

(46.)The foundation was created "with a view to providing the beneficiaries with the opportunity of obtaining the best returns for the sums received in reparation." Id. [paragraph] 103.

(47.)Stocke v. The Federal Republic of Germany, 199 Eur. Ct. H.R. (ser. A) (1991). In this case, the European Court of Human Rights held that "under the Convention system the establishment and verification of facts is primarily a matter for the Commission (arts. 28 [sections][sections] 1, 31). Accordingly, it is only in exceptional circumstances that the court will use its powers in this area." Id. [paragraph] 53.

(48.)In the Gangaram Panday Case, the Commission asserted that "because of its judicial nature, the court has the power to reach its own conclusions as to the legality of the proceedings and as to the verification and scope of the facts determined by the Commission (see art. 62(3)). In cases in which the court concludes that the proceedings before the Commission were in violation of the Convention and/or that the facts have not been duly established, there is no doubt that the court can order the submission of relevant proof." The Gangaram Panday Case (21 Jan. 1994), [paragraph] 39 (currently unreported).

(49.)The court noted that

the Court exercises full jurisdiction over all issues relevant to a case [and] [i]n exercising these powers, the Court is not bound by what the Commission may have previously decided; rather, its authority to render judgment is in no way restricted. The Court does not act as a Court of review, or appeal or other similar court in its dealings with the Commission. Its power to examine and review all actions and decisions of the Commission derives from its character as sole judicial organ in matters concerning the Convention.

The Gangaram Panday Case, supra note 48, [paragraph] 41 (citing the Velasquez Rodriguez Case, Preliminary Objections, Inter-Am. Ct. H.R. 35, [paragraph] 29, OAS/ser.L./V./III. 17, doc. 13 (1987); the Fairen Garbi Case, Preliminary Objections, Inter-Am. Ct. H.R. 57, [paragraph] 34, OAS/ser.L./V./III. 17, doc. 13 (1987); the Godinez Cruz Case, Preliminary Objections, Inter-Am. Ct. H.R. 81, [paragraph] 32, OAS/ser.L./V./III. 17, doc. 13 (1987)).

(50.)The NGOs were out of pocket $54,033 for expenses, and $32,375 for legal fees. Despite the Court's suggestion that international NGOs are often well endowed by philanthropic foundations, they are usually as poor as if not poorer than, the Commission. Accordingly, NGOs can only reasonably pursue a limited number of actions of this type.

(51.)The Commission's costs over a period of four and a half years, also raise serious cost-benefit analysis questions.

(52.)For a discussion on the role of private attorneys in human rights litigation, see Claudio Grossman, Disappearances in Honduras: The Need for Direct Victim Representation in Human Rights Litigation, 15 HASTINGS INT'L & COMP. L. REV. 363 (1992); David Padilla, The Inter-American Commission on Human Rights of the Organization of American States: A Case Study, 9 AM. U. J. INT'L & POL'Y 95, 108-11 (1994).
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Title Annotation:case before the Inter-American Court of Human Rights in 1993 for the government's wrongful killing of seven men
Author:Padilla, David J.
Publication:Human Rights Quarterly
Date:Aug 1, 1995
Words:7222
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