Amicus Curiae del ¬International Commision of Jurists¬del 6 de julio de 1992.
6 July 1992
Manuel y Ventura Robles
Secretary of the Court
Inter-American Court of Human Rights
P.O. Box 6906-1000
San Jose, Costa Rica
Dear Manuel and Ventura Robles:
Please find enclosed the amicus curiae brief of the International Commission of Jurists in the case of Aloeboetoe et al. v. Suriname and the attached two reports of Dr. S. M. Dekker. If you have any questions, please do not hesitate to contact me at the above address and telephone.
Sincerely,
Adama Dieng
Secretary-General
enc.
In the
INTER-AMERICAN COURT OF HUMAN RIGHTS
ALOEBOETOE ET AL. V. SURINAME
Brief of the International Commission of Jurists
as
Amicus Curiae
I. INTEREST OF AMICUS CURIAE
The International Commission of Jurists is a non-governmental organization devoted to promoting throughout the world the understanding and observance of the rule of Law and the legal protection of human rights. It has national sections and affiliated legal organizations in over 60 countries. It enjoys consultative status with the United Nations Economic and social Council, UNESCO, and the Council of Europe.
Its activities include the publication of its Review, Newsletter, and CIJL Yearbook; organizing Congresses, conferences and seminars; conducting studies or inquiries into particular situations or subjects concerning the Rule of Law and publishing reports upon them; sending international observers to trials of major significance; preparing amicus curiae briefs, intervening with governments or issuing press statements concerning violations of the Rule of Law; and sponsoring proposals within the United Nations and other international organizations for improved procedures and conventions for the protection human rights.
The focus of this memorial is limited to the issue of whether an award of damages, in this case under article 63(1) of the Convention, should include compensation not just for the moral damage sustained by the families of the victims, but also for the moral damage sustained by the Saramacan tribe as a whole. The question in significant for its impact on this case, as well as for its ramifications for future cases before this court and other international tribunals. Amicus asserts that the legal principles applicable to the protection of human rights support such an award.
Amicus therefore respectfully requests leave of the court to file this memorial and the attached report. Article 34 of the Court's Rules of Procedure provides broad measures to enable the Court to receive information and opinions relevant to a case before it.
II. SUMMARY OF ARGUMENTS
The American Convention provides that breaches of the rights it guarantees shall be remedied, and that injured parties shall be fairly compensated. This Court has identified material and moral damages as separate bases for an award of compensation. This Court has further identified principles of equity as a guide-line for providing indemnification for moral harm. The Court has not had occasion to address the specific question raised in the instant case: whether the moral damage suffered by a tribe arising as the direct result of a member's death due to violations of the Convention is fully compensable. Amicus asserts that the compensation framework set forth by the Court should be construed to include compensation of the Saramacan tribe for the moral damage it sustained as the direct result of the killing of seven of its members. This position is supported by the goals and purposes of the Convention.
III. ARGUMENTS
A. Interpretation of Article 63(1)
Article 63(1) provides:
If the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party.
In the Velásquez Rodríguez case this Court set forth that ¬it is a principle of international law... that every violation of an international obligation which results in harm creates a duty to make adequate reparation¬. [1] The Court addressed moral damages as an element of restitutio in integrum specifically:
As to emotional harm, the Court holds that indemnity may be awarded under international law and, in particular, in the case of human rights violations. Indemnification must be based upon the principles of equity. [2]
Furthermore, the Court noted that its ability to determine remedies for violations was not limited by the ¬defects, imperfections or deficiencies of national law...¬. [3] Thus, ¬in order to fix the corresponding indemnity, the Court must rely upon the American Convention and the applicable principles of international law¬. [4]
The applicable principles of international law are reflected in the Lusitania opinion:
That one injured is, under the rules of international law, entitled to be compensated for an injury resulting in mental suffering, injury to his feelings, humiliation, shame, degradation, loss of social position or injury to his credit or to his reputation, there can be no doubt... Such damages are very real, and the mere fact that they are difficult to measure or estimate by money standards makes them none the less real and affords no reason why the injured person should not be compensated therefore as compensatory damages.... [5]
Professor Garcia-Amador identified that moral damage arising in the case of death is ¬determined by the close relationship between the third party and the deceased¬. [6] Moreover, this is not limited to relationship by blood. Garcia-Amador, with Professors Sohn and Baxter, specified in the case of state responsibility for death that ¬the damage in these cases derives... from the prejudice suffered in consequence thereof by a certain class of third persons - namely the dependents of the deceased - and sometimes also persons who, by reason of close relationship or for some other cause, suffer ' moral injuries' as a result of the death...¬. [7] The Lusitania opinion set forth only the limitation that in order for moral damage to be compensable, the injury ¬must be real and actual, rather than purely sentimental and vague¬.
The position advocated by Amicus challenges the history of moral damage awards in which the recipients of such awards were only the immediate family. This history reflects the principle that a claimant must establish a direct nexus between cause and harm in order to recover. Traditionally, in the case of moral damages arising from the death of a family member, that nexus could be established by the immediate family. In this case amicus argues that the nexus between the violations of the convention and the moral damage suffered is sufficient not just as to the family members, but as to the members of the Saramacan tribe as well.
B. The Causal Nexus in This Cases
An established causal nexus between the violation complained of and the damage suffered is critical to a determination of entitlement to compensation. In the case of moral damage specifically, the injury complained of must be ¬real and actual¬ in order to be susceptible to reparation. In the instant case the causal nexus to be established is that the Saramacan tribe has suffered extensive moral damage as a direct result of the killing of seven of its members.
First, the structure of the Saramacan culture is a set of complex linkages - one is a member of one's immediate family, of a particular matrilineal grouping (the bee), and of the tribe. Each village is a collectivity of inter-dependent members. Thus, the loss of a member has a strong direct effect on the tribe. [8]
Second, the Saramacan self-perception - the source of their identity and pride - evolved on the basis that they established their freedom from slavery by escaping into the interior of Suriname and fighting for their freedom. [9] They were not given their freedom. they are a very proud and independent people who have cherished the autonomy that living in the interior has allowed. [10] In this context, the incursion of government troops into Saramacan territory, the taking of seven Saramacan men in front of villagers, including children, and the killing of these men, devastated the tribe members' sense of identity, pride, and self-reliance. [11]
Amicus respectfully requests the Court to accept the attached reports detailing the observations of an expert on Saramacan culture, who is also a medical doctor, as to the moral damage sustained by the families and by the tribe. Dr. Dekker lived and worked in Suriname for almost thirty years, and has an expert understanding of the Saramacan culture and people. The observations of Dr. Dekker can provide the Court with special insight as to the psychological impact of the killings on the families and the tribe. Dr. Dekker's reports are consonant with information compiled in recent years on the situation in Suriname by the Inter-American Commission on Human Rights, and with evidence already presented in this case.
IV. CONCLUSION
The principles of the Convention, particularly article 63(1), and of international law, support the inclusion of moral damages to compensate the moral injuries suffered by the Saramacan tribe. The jurisprudence of this Court and principles of international law, adapted from the law of state responsibility for injuries to aliens to the needs of the law of human rights, suggest the following construct: 1) moral damages are an appropriate base for compensation, particularly in the context of human rights violations; 2) indemnification for moral injuries is determined according to principles of equity; 3) there must have been a strong relationship between the victim and the third party for whom compensation for moral injury is requested to justify such an award, and 4) the emotional injuries complained of must be shown to be ¬real and actual¬. The request for moral damages for the members of the victims' tribe fulfills these criteria: the violations at issue and the resulting emotional damage are particularly deserving of redress through compensation; the award is susceptible to determination on the basis of principles of equity; there was the required strong relationship between the victims and their fellow Saramacan tribe members; and the emotional injuries are real and actual, not vague or sentimental.
In the same way this Court has affirmed that every violation of the Convention's guarantees must be redressed - Amicus urges the Court to adopt remedies consonant with the violations found as they pertain to the moral damage sustained by the Saramacan tribe. In order for the protection of rights to be taken seriously by breaching governments, remedies must reflect the nature of the violation condemned and must reflect the goal of protection. Further, it is essential that remedies redress the entirety of the damage caused. In this case, the damage directly resulting from the killing of seven Suriname Maroons includes severe moral damage to the Saramacan tribe.
Professor Claudio Grossman
Washington College of Law
The American University
4400 Massachusetts Avenue, N.W.
Washington, D.C. 20016-8084
20 May 1992
Dear Professor Grossman:
Thank you for your letter of 4 May 1992 and the annexes concerning the Aloeboetoe et al. v. Suriname case. I have read them thoroughly and now I will try to write the report you asked for.
I am afraid I am not as competent - concerning this matter - as Richard and Sally Price, but I lived for almost 30 years in the Saramacan area, and I worked with and among the Saramacans, so I do think that I can make an assessment of the damage resulting from the killing of the seven Saramacans.
REPORT 1 ABOUT THE EFFECT OF THE KILLINGS ON THE RELATIVES
At the time of the killings on 31 December 1987, I was still working as a doctor at the Medical Missionary Post Ladoani, on average one and a half hours upstream from Atjoni, by dugout with outboard motor.
The stories about what took place there slowly got through to us, upriver. However, these stories were so horrifying, that at first no one would believe they were true!
We were greatly shocked and baffled and heartbroken, when these stores appeared to be true and when it appeared that, indeed, seven young men - one of which was merely a child - were assaulted and carried off, and that six of them were shot on the way and thrown into a pit they dug themselves, whereas the seventh person - Richenel Aside, or better known as Ameikanbuka in the inland parts of Suriname - appeared to be at the University Hospital, seriously wounded, after - as if by a miracle - having been found, a few days after the killings, by his brother, Briga Aside, who went looking for him, and found him, still alive!
I was acquainted with all of them, but I knew Ameikanbuka very well. He was a carrier and often went to Atjoni to fetch goods for us. He was a reliable and amiable person, who was always ready to help, wherever he could. We were all crushed by the news. For his family a terrible loss - beyond belief. For the other six families it must have been a great tragedy as well, to lose these fine young men.
The fact that these killings were absolutely senseless makes it even more sad, and on top of this the families have to miss the care and support from these men in many areas. For when one person earns a living, this is meant for all members of the family. The family - as already mentioned in Richard Price's report - is very extensive. The family - the ¬bee¬- consists of all the persons that descend from one particular woman who lived years and years ago, in the female line, and all these relatives are responsible for one another, not only in name, but also in practice. In the inland, there are very few possibilities to earn a living, so the person who does earn some money, does not only support his wife (or wives, because there is polygamy) and children, but also the other members of that same ¬bee¬who are not able to earn some money. furthermore, the man also has certain obligations concerning the ¬bee¬, such as cutting trees for and burning of a planting ground, maintaining or even building a house for the family, transportation, assistance and care in cases of illness, etc.
In my experience, the man is also greatly responsible for the children, even when it concerns children of a woman he separated from. The -extensive-. families that have lost these seven men, have to miss a great deal, both in an emotional and material way.
What is also of great importance is the fact that in six cases the families did not have the opportunity to bury their dead. For these families it is a great shock when a person dies somewhere else, so not in the presence of the family, not to mention the fact that the deceased cannot be buried near his home town, that they cannot pay him his last respects by their own traditions, or worse, that they did not have the opportunity to see the deceased before he was buried.
The trips the families were forced to make in order to find the victims or to get information about them and to check and arrange other matters in Paramaribo, were very expensive and normally these trips are very difficult. The traveling expenses for Paramaribo have increased from several guilders to hundreds of guilders, and in some cases even more than that, since the military regime took power. One of the reasons is the shortage of material: outboard motors are either not available or impossibly dear, spare parts for repairing the motors, or the trucks that are used (tires!!) cannot be delivered or are simply too expensive. The roads to Paramaribo are dirt roads, there is no or hardly any maintenance, so there are many pot-holes and the roads are muddy - especially after the tanks have passed.
The pickup trucks, which are used for transporting goods as well as persons, often stick in the mud; a trip of normally four hours can take days then. The alternative - to travel by dugout with outboard motor across the reservoir - is not without danger, since only a little wind may cause too many waves, so that on various occasions dugouts sank to the bottom of the reservoir. This means of traveling also costs a great deal of money.
With regard to the medical costs for the relative of the victims; no medical costs have been reported. However, there could not have been any medical costs, since medical assistance in the inland is free.
Some years ago, the department of Health in Suriname assigned the medical aid for the inland entirely to the Medical Missionaries. The idea was that the actual medical aid - therefore not the capital assets - would be entirely subsidized by the authorities (which was not always as perfect as it should be!). All medical care was - and still is as far as I know - free of charge, including the necessary aid from specialists at the hospital in Paramaribo (as a rule at the deaconess' hospital), and the transportation to and from the deaconess' hospital is free as well. The medical care in the inland used to be good, also in the Saramacan area, where there used to be three doctors, four nurses and a large number of assistants from the local people who were trained in the inland.
After the military coup however, many problems have arisen, such as increasing shortages of medicines and all kinds of other important goods. And later, when there was a state of war in the inland, a large number of these medical assistants fled to Paramaribo and we had great difficulties in finding doctors and nurses for the inland. The shortage of medicines and all kinds of goods became more and more serious. There were - and still area - shortages all over Suriname, but what few medicines there were, these were divided unequally among the Suriname people, and the inland obviously got the least because of the large distances.
We never heard of illnesses among the relatives of the victims as a result of the events at Atjoni. That is to say, not one person reports himself or herself sick at the Medical post, due to the events (I worked there until November 1988). I do remember that Masatin Koedemoesoe (the grandfather of the victims Indie Hendrik Banai and Mikuwendje Aloeboetoe) was ill a lot. I wrote the medical assistant of the Gujaba village for information about this, but in view of the bad connections between Paramaribo and the inland, it may take quite some time before I receive any answer.
With regard to the wife of Richenel Aside, who became mentally ill shortly after the event: particularly for this kind of illness, people do not ask for help at the medical post, since they think that this kind of illness has spiritual causes, and they will search for cures in that same spiritual world.
In summary: the families and relatives of these victims have suffered a great deal as a result of the killings. The Aloeboetoe family lost three of their young men at once, two of whom were of the same mother (Ajong Aloeboetoe). Grandparents and parents lost their grandsons and sons, wives lost their husbands and young children lost their fathers. And all these people, plus a number of other dependents from the same "bee", lost their breadwinner and their support from a material point of view, and irreparable loss for all of them.
With this, and to the best of my knowledge, I have informed you about the consequences of the Atjoni-killings for the relatives of the victims. I hope this will be a contribution to a fair judgment.
(Miep Dekker)
S.M. Dekker
Burg. W. Martenslaan 10
3958 GS Amerongen
The Netherlands
The undersigned, G. Onderwaater, Zeist, The Netherlands, sworn translator to the District Court of Utrecht, hereby declares that the above text is a true and faithful translation of the original document in the Dutch language.
Zeist, 6 June 1992
(Onderwaater)
Footnotes
[1]Velásquez Rodríguez case, Judgment of 21 July 1989, para. 25.
[2]Id. para. 27.
[3]Id. para. 30.
[4]Id. para. 31.
[5]RIAA, Vol. 7, p. 32,40 (1923)
[6] The Changing Law of International Claims 565 (1984).
[7] García-Amador, Sohn, Baxter, Recent Codification of the Law of State Responsibility for Injury to Aliens 115 (1974) (emphasis added).
[8] See attached Reports of Dr. S.M. Dekker, dated 20 May 1992, Report II, paras. 1-3 (¬when a Saramacan is maltreated by an outsider, it affects all Saramacans¬id. para.2).
[9]Id. para. 1.
[10] Id.
[11]Id. para. 1, 3-7.