Judgment of the Inter-American Court of Human Rights in the Case of Moiwana Village, Suriname Summary of the Operative Points

Judgment of the Inter-American Court of Human Rights in the Case of Moiwana Village, Suriname Summary of the Operative Points

I.   Background

On 29 November 1986, a unit of the National Army of Suriname surrounded the N’djuka maroon village of Moiwana and then proceeded to kill at least 39 members of the community. Many others were wounded and they, together with the other survivors, were forced to flee through the forest until they reached safety in French Guiana. For some this was a three to four day walk carrying wounded family members.

In 1989, the civilian police, particularly Inspector Herman Gooding, attempted to investigate the massacre. Two persons were arrested in April 1989, but were released when a fully armed unit of the Military Police surrounded the police station and forced the civilian police to hand them over. One of the detainees was taken to an event at a nearby military barracks where he was given a hero’s reception. At the same venue, high ranking military officers declared that the massacre had been ordered by them and that military operations were not subject to investigation. Threats were also made against Inspector Gooding. In August 1990, Inspector Gooding was shot and his body left beside the road near the office of the then-deputy commander of the Military police. The officers assisting Inspector Gooding fled the country and were granted political asylum in The Netherlands.

Despite numerous complaints and requests for an investigation submitted by the NGO Moiwana ’86, which acted on behalf of the survivors of the massacre, Suriname failed to initiate an investigation. In 1993, when presented with evidence of a mass grave at Moiwana village, the authorities called in a pathologist who, along with civil and military police, exhumed the remains of five adults and four children. However, this preliminary investigation was cut short after government ministers declared that Suriname’s economic problems must take precedence and that an Amnesty Law, adopted in 1992, precluded any prosecution of persons involved.

From 1993 until 1997, the survivors and Moiwana ’86 submitted further requests for investigation, culminating with initiation of a private prosecution procedure under the Code of Criminal Procedure in 1996. This was submitted to the Attorney General and then the President of the Court when the Attorney General failed to respond. After the Attorney General failed to respond to two requests from the President of the Court regarding the case, the President of the Court simply referred the survivors back to the Attorney General again.

Deciding that it was impossible to obtain justice in Suriname, the survivors submitted a formal complaint to the Inter-American Commission on Human Rights. The complaint was submitted in July 1997 and requested the Commission’s assistance to address the human rights violations associated with the massacre and subsequent denial of justice. The Commission declared the case admissible in March 2000 and found Suriname in violation of 11 articles of the American Declaration on the Rights and Duties of Man and the American Convention on Human Rights in March 2002. [1] The Commission recommended, among others, that Suriname investigate the massacre, prosecute those responsible and compensate the survivors and next of kin. It also observed that the massacre constituted a crime against humanity in violation of international criminal law.

Suriname responded to the case for the first time in April 2002 and requested an extension of two months in order to review the case and the Commission’s recommendations. A further extension of four months was granted at Suriname’s request in August 2002 and the survivors were asked by the Commission to provide their views on whether the case should be submitted to the Inter-American Court of Human Rights. This was submitted in October 2002 and stated, should Suriname fail to comply with the Commission’s recommendations within the allotted time, that it would be both necessary and appropriate to submit the case to the Inter-American Court. After Suriname failed to provide information about its compliance with the Commission’s recommendations, the Commission submitted the case to the Court on 20 December 2002. A hearing was held at the Court on 9 September 2004 and final written arguments were submitted in October 2004.

II.        Violations

On 15 June 2005, the Inter-American Court unanimously ruled that Suriname had violated the human rights of 130 named members of the village of Moiwana and ordered that Suriname repair the violations. The Court found violations of article 5 (the right to humane treatment), article 22 (the right to freedom of movement and residence), article 21 (the right to property), and articles 8, 25 and 1 (the right to judicial guarantees and protection).

A.        Article 5

Article 5(1) of the American Convention provides that “Every person has the right to have his physical, mental, and moral integrity respected.” The Court observed that Suriname’s failure to provide justice to the victims had prevented and continues to prevent the Moiwana community members from properly honoring their deceased loved ones and has contributed to 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.” [2]

After analyzing the various impacts on the community and its members, the Court concluded that “the Moiwana community members have endured significant emotional, psychological, spiritual and economic hardship – suffering to a such a degree as to result in the State’s violation of Article 5(1) of the American Convention, in relation to Article 1(1) of that treaty, to the detriment of said community members.” [3]

B.        Article 22

The attack on Moiwana village in 1986 resulted in the destruction of the village and the forcible eviction of the survivors, who have been unable to return to rebuild their village and maintain their relationships with their ancestral lands to this day. The survivors remain internally displaced in Suriname or continue to live in a refugee camp in French Guiana. Article 22 of the American Convention establishes that “1. Every person lawfully in the territory of a State Party has the right to move about in it, and to reside in it subject to the provisions of the law. 2. Every person has the right to leave any country freely, including his own. […] 5. No one can be expelled from the territory of the state of which he is a national or be deprived of the right to enter it.”

Concerning article 22, the Court found that “many Moiwana community members have remained in French Guiana, owing to fears for their safety and the failure of the State’s criminal investigation [and that] since their flight from Moiwana Village in 1986, both the refugees in French Guiana and those who never left Suriname have typically faced impoverished conditions and lack access to many basic services.” [4] It continued that “only when justice is obtained for the events of November 29, 1986 may the Moiwana community members: 1) appease the angry spirits of their deceased family members and purify their traditional land; and 2) no longer fear that further hostilities will be directed toward their community. Those two elements, in turn, are indispensable for their permanent return to Moiwana Village, which many – if not all – of the community members wish to accomplish….” [5]

Finding a violation of article 22, the Court concluded that

the State has failed to both establish conditions, as well as provide the means, that would allow the Moiwana community members to return voluntarily, in safety and with dignity, to their traditional lands, in relation to which they have a special dependency and attachment – as there is objectively no guarantee that their human rights, particularly their rights to life and to personal integrity, will be secure. By not providing such elements – including, foremost, an effective criminal investigation to end the reigning impunity for the 1986 attack – Suriname has failed to ensure the rights of the Moiwana survivors to move freely within the State and to choose their place of residence. Furthermore, the State has effectively deprived those community members still exiled in French Guiana of their rights to enter their country and to remain there. [6]

C.        Article 21

Article 21 of the American Convention provides that: “1. Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society. 2. No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law.” As discussed above with regard to article 22, the Court found that Surianme’s failure to investigate the massacre “has directly prevented the Moiwana community members from voluntarily returning to live in their traditional lands. Thus, Suriname has failed to both establish the conditions, as well as provide the means, that would allow the community members to live once again in safety and in peace in their ancestral territory….” [7]

In order to assess if this situation also amounted to a violation of the right to property as guaranteed by article 21 of the American Convention, the Court determined that it must first assess whether Moiwana village belonged to the victims. [8] It began by noting that under contemporary Surinamese law because no formal title had been issued to Moiwana village that it belonged by default to the State. However, referring to its prior decisions recognizing indigenous peoples’ rights to lands and resources, the Court concluded that although the Moiwana community members are not indigenous to the region, Moiwana Village was settled by N’djuka clans late in the 19th Century and from that time until the 1986 attack, “the community members lived in the area in strict adherence to N’djuka custom.” [9] It further concluded that

the Moiwana community members, a N’djuka tribal people, possess an “all-encompassing relationship” to their traditional lands, and their concept of ownership regarding that territory is not centered on the individual, but rather on the community as a whole. Thus, this Court’s holding with regard to indigenous communities and their communal rights to property under Article 21 of the Convention must also apply to the tribal Moiwana community members: their traditional occupancy of Moiwana Village and its surrounding lands – which has been recognized and respected by neighboring N’djuka clans and indigenous communities over the years … – should suffice to obtain State recognition of their ownership. The precise boundaries of that territory, however, may only be determined after due consultation with said neighboring communities. [10]

Finally, determining that Suriname had violated article 21, the Court observed that “the Moiwana community members may be considered the legitimate owners of their traditional lands; as a consequence, they have the right to the use and enjoyment of that territory. The facts demonstrate, nevertheless, that they have been deprived of this right to the present day as a result of the events of November 1986 and the State’s subsequent failure to investigate those occurrences adequately.” [11]

D.        Article 25 and 8

The Inter-American Court and Commission have held numerous times that under the American Convention, States “have an obligation to provide effective judicial remedies to victims of human rights violations (Article 25) – remedies that must be substantiated in accordance with the rules of due process of law (Article 8(1)) – all in keeping with the general obligation of such States to guarantee the free and full exercise of the rights recognized by the Convention to all persons subject to their jurisdiction (Article 1(1)).” [12]

In the Moiwana case, the Court looked at a number of issues related to the victims’ right to judicial protection and guarantees. In doing so, it concluded that “it has been proven … as well as expressly recognized by Suriname, that State actors were involved in the November 29, 1986 attack that killed at least 39 defenseless Moiwana Village residents – including infants, women and the elderly – and wounded many others. Thus, the facts portray a disturbing scenario of multiple extrajudicial executions; with respect to such a situation, the Tribunal’s case law is unmistakable: the State has an ex officio duty to initiate, without delay, a serious, impartial, and effective investigation. [13] … Therefore, the Moiwana community members have the following rights: to have the deaths and violations to personal integrity occurring in 1986 effectively investigated by state authorities, to have those responsible for the unlawful acts prosecuted and appropriately punished, and to receive compensation for damages and injuries suffered.” [14]

Discussing the attempts of the survivors to obtain justice and Suriname’s failure to adequately respond to those attempts, the Court observed that

Suriname’s manifest inactivity in the face of this case’s extremely serious facts – despite pressures to investigate the 1986 attack from the alleged victims as well as the State’s own legislative branch – shows a patent disregard for the principle of due diligence. Indeed, as recently as the public hearing held before this Court on September 9, 2004, not even Suriname’s Attorney General himself could describe with any degree of specificity the current state of the Moiwana investigation. The Tribunal, then, shares the assessment of the United Nations Human Rights Committee, which, in its 2004 Concluding Observations on the human rights situation in Suriname, stated:

investigations into […] the 1986 Moiwana massacre remain pending and have not yet produced concrete results. [The information supplied that the case is] still being investigated is disturbing, especially given the lapse of time since [its] occurrence. The Committee further considers that this situation reflects a lack of effective remedies available to victims of human rights violations […].

The Court further observes that there is abundant evidence in the record that attests to the involvement of Suriname’s military regime in the overt obstruction of justice in the instant case. Army Commander Desire Bouterse’s forcible release of Orlando Swedo and his statement forbidding the further investigation of military operations by the civilian police serve as irrefutable examples. [15]

The Court then held that “Suriname’s seriously deficient investigation into the 1986 attack upon Moiwana Village, its violent obstruction of justice, and the extended period of time that has transpired without the clarification of the facts and the punishment of the responsible parties have defied the standards for access to justice and due process established in the American Convention,” and therefore, Suriname has violated articles 25, 8 and 1 of the American Convention. [16]

Finally, the Court stated that domestic laws, such as the 1992 Amnesty Law or any statute of limitation may not be invoked to impede the ordered investigation and prosecution otherwise “the rights found in the American Convention would be deprived of effective protection.” [17]

III.       Reparations

The Court identified 130 victims in the Moiwana case and ordered that Suriname make reparations to remedy the violations discussed above as follows: [18]

A.       Investigation and Prosecution

The State shall fulfill its obligation to investigate the facts of the case, as well as identify, prosecute, and punish the responsible parties. In particular, “the State must immediately carry out an effective, swift investigation and judicial process, leading to the clarification of the facts, punishment of the responsible parties and appropriate compensation of the victims. The results of these processes must be publicly disseminated by the State, so that the Surinamese society may know the truth regarding the facts of the instant case.” [19] To comply with it obligations, the State must also

a) remove all obstacles, de facto and de jure, that perpetuate impunity; b) use all means at its disposal to expedite the investigation and judicial process; c) sanction, according to the appropriate domestic laws, any public officials, as well as private individuals, who are found responsible for having obstructed the criminal investigation into the attack on Moiwana Village; and d) provide adequate safety guarantees to the victims, other witnesses, judicial officers, prosecutors, and other relevant law enforcement officials. [20]

B.         Return of Remains

The State shall, as soon as possible, recover the remains of the Moiwana community members killed during the events of November 29, 1986, and deliver them to the surviving community members so that the appropriate rituals may be performed and the remains interred in a place of the victims’ choosing.

C.        Recognition of Collective Title to Traditional Lands

The State shall adopt legislative, administrative, and other measures as are necessary to ensure the property rights of the members of the Moiwana community in relation to the traditional territories from which they were expelled, and provide for the members’ use and enjoyment of those territories. These measures shall include the creation of an effective mechanism for the delimitation, demarcation and titling of their traditional territories. [21] Additionally, Suriname shall (a) “take these measures with the participation and informed consent of the victims as expressed through their representatives, the members of the other Cottica N’djuka villages and the neighboring indigenous communities, including the community of Alfonsdorp;” [22] and, (b) “[u]ntil the Moiwana community members’ right to property with respect to their traditional territories is secured, Suriname shall refrain from actions – either of State agents or third parties acting with State acquiescence or tolerance – that would affect the existence, value, use or enjoyment of the property located in the geographical area where the Moiwana community members traditionally lived until the events of November 29, 1986.” [23]

D.        Guarantees of Safety for those who Return

The State shall guarantee the safety of those community members who decide to return to Moiwana Village. In order to do this, “the State shall send representatives every month to Moiwana Village during the first year, in order to consult with the Moiwana residents. If the community members express concern regarding their safety during those monthly meetings, the State must take appropriate measures to guarantee their security, which shall be designed in strict consultation with said community members.” [24] The Court also noted that “only the community members themselves can decide when exactly it would be appropriate to return to Moiwana Village.” [25]

E.         Community Development Fund

The State shall establish, as a measure of collective reparations to the community, a community development fund of US$1.2 million, “which will be directed to health, housing and educational programs for the Moiwana community members [and] shall be completed within a period of five years from the date of notification of the present judgment.” [26] The fund will be run and administered by an ‘implementation committee’ composed of one person selected by the victims, one by the government and one by mutual agreement. If this is not established within six months of the date of the notification due to failure to agree on the members, the Court may call the parties for a hearing and order a solution. [27]

F.         Public Apology

The State shall carry out a public ceremony, whereby Suriname recognizes its international responsibility and issues an apology. “This public ceremony shall be performed with the participation of the Gaanman, the leader of the N’djuka people, as well as high-ranking State authorities, and shall be publicized through the national media. Furthermore, in consideration of the particular circumstances of the instant case, the event must also honor the memory of Herman Gooding, the civilian police official who was murdered due to his courageous efforts to investigate the events of November 29, 1986.” [28]

G.        Construction of a Memorial

The State shall build a memorial in a suitable public location. The memorial’s design and location shall be decided upon in consultation with the victims’ representatives, and shall be completed within one year from the date of notification of the judgment.

H.        Compensation for Material Damages

The State shall pay compensation of US$3,000.00 for material damages to each of the 130 victims because the “proven facts indicate that the Moiwana community members were violently forced from their homes and traditional lands into a situation of ongoing displacement, whether in French Guiana or elsewhere in Suriname…. Moreover, they have suffered poverty and deprivation since their flight from Moiwana Village, as their ability to practice their customary means of subsistence and livelihood has been drastically limited.” [29] This compensation must be paid within one year of the notification of the judgment (15 July 2005).

J.          Compensation for Moral Damages

The State shall pay compensation of US$10,000.00 to each victim for moral damages within one year. The Court’s assessment of moral damages particularly took into account the following factors: (a) the victims’ inability, despite persistent efforts, to obtain justice for the attack on their village, especially in light of the N’djuka emphasis upon punishing offenses in an appropriate manner. According to the Court, such “long-standing impunity, fostered by violent State efforts to obstruct justice …, humiliates and infuriates the community members, as much as it fills them with dread that that offended spirits will seek revenge upon them…;” [30]

(b) that the victims’ do not know what has happened to the remains of their loved ones, and, as a result, they cannot honor and bury them in accordance with fundamental norms of N’djuka culture, which causes them deep anguish and despair…. Since the various death rituals have not been performed according to N’djuka tradition, the community members fear “spiritually-caused illnesses,” which they believe can affect the entire natural lineage and, if reconciliation is not achieved, will persist through generations; and

(c)  the Moiwana community members’ connection to their ancestral territory was brusquely severed – dispersing them throughout Suriname< and French Guiana. Since a N’djuka community’s relationship to its traditional land is of vital spiritual, cultural and material importance, their forced displacement has devastated them emotionally, spiritually, culturally, and economically….

K.        Compensation for Costs

The State shall pay the compensation within one year for the costs incurred in seeking to resolve the Moiwana case locally and before the inter-American human rights system in the amount of US$45,000.00.

L.         Compliance

The Court will monitor compliance with the judgment and will close the case only once the State has fully implemented all of the provisions. Within one year of the date of notification of the judgment, Suriname must provide the Court with a report on the measures taken to comply with the Court’s orders.

 

[1] Report No. 35/02, Moiwana Village, Inter-American Commission on Human Rights.

[2] Case of Moiwana Village, Judgment of 15 June 2005, Inter-American Court of Human Rights, at para. 93.

[3] Id. at para. 103.

[4] Id. at para. 117.

[5] Id. at para. 118.

[6] Id. at para. 120.

[7] Id. at para. 128.

[8] Id. para. 129.

[9] Id. at para. 132.

[10] Id. at para. 133 (footnotes omitted).

[11] Id. at para. 134.

[12] Id. at para. 142.

[13] Id. at para. 145.

[14] Id. at para. 147.

[15] Id.at para. 156-57,quoting and citing U.N. Human Rights Committee, Concluding Observations: Suriname. CCPR/CO/80/SUR. May 4, 2004.

[16] Id. at para. 163.

[17] Id. at para. 167.

[18] Id. at para. 233.

[19] Id. at para. 205.

[20] Id. at para. 207.

[21] Id. para. 209.

[22] Id. at para. 210.

[23] Id. at para. 211.

[24] Id. at para. 212.

[25] Id.

[26] Id. at para. 214.

[27] Id. para. 215.

[28] Id. at para. 216.

[29] Id. at para. 186.

[30] Id. at para. 195.