27
these rights are considered to exist in perpetuity and are not alienable. If
there were a dispute about a specific boundary, this would be adjudicated
after consulting the elders and village chiefs. According to their tradition and
customary law then, although the Moiwana residents have not occupied their
land for at least 18 years, they would maintain rights to that area.
Nevertheless, in general there is no State recognition of the traditional
customary law among the Maroons; it has existed over the centuries as an
autonomous, de facto system. Only some minor aspects are recognized, such
as local officials within the communities.
The expert witness had the opportunity in December 1986 to interview
refugees in French Guiana who had recently fled from Moiwana. He reported
that “they were tremendously distressed; they were in shock; they were
disoriented.” In fact, many that he came in contact with were unable to
speak at all. Not only were they traumatized, but they were also often
physically exhausted after running for days in the forest.
Finally, the expert witness explained that the traditional N’djuka system of
customary law contemplates various measures to remedy offenses, such as
public apologies and ceremonies on the one hand, and material compensation
on the other. An adequate reparations scheme in this case would demand
coming to an agreement satisfactory to the N’djuka people; that is, providing
measures in accord with their own customary law and traditions. Certainly, it
would be extremely important for the State to create the conditions to
guarantee their safe return to Moiwana. To accomplish a return, however,
the first critical step would be an investigation of the events occurring on
November 29, 1986. The survivors need to know why the deaths occurred
and how the perpetrators will be held responsible.
C) ASSESSMENT OF THE EVIDENCE
Documentary evidence
81.
In this case, as in others,12 the Court admits the probative value of those
documents presented in timely fashion by the parties, in accordance with Article 44
of the Rules of Procedure, and those documents produced at the request of the
Court, pursuant to Article 45 of the Rules of Procedure, when the authenticity of said
evidence was not challenged or questioned.
82.
Regarding the affidavit rendered by Thomas S. Polimé, expert witness
proposed by the Commission (supra paragraph 79), the Court rules that it is
admissible, insofar as it is in conformity with the President’s Order of August 5,
2004.
83.
Suriname contended that “several of the annexes submitted by the
Commission are not relevant in this case,” and argued that the Court’s jurisdiction
“does not encompass the issues” presented by said annexes. In this regard, the
State only cited with specificity the Commission’s annex 29. With respect to the
12
Cf. Case of Caesar, supra note 10, para. 46; Case of the Serrano-Cruz Sisters, supra note 9,
para. 37; and Case of Lori Berenson-Mejía, supra note 10.