44
92.
Turning to the case at hand, the Tribunal decided above that it does not have
competence to examine the events of November 29, 1986. Nevertheless, it does
exercise jurisdiction over the State’s fulfillment of its obligation to ensure the right to
humane treatment, which results in the obligation to investigate possible violations
of Article 5 of the Convention.
93.
The State’s failure to fulfill this obligation has prevented the Moiwana
community members from properly honoring their deceased loved ones and has
implicated their forced separation from their traditional lands; both situations
compromise the rights enshrined in Article 5 of the Convention. Furthermore, the
personal integrity of the community members has been undermined as a result of
the obstruction of their persistent efforts to obtain justice for the attack on their
village, particularly in light of the N’djuka emphasis upon punishing offenses in a
suitable manner. The following analysis will begin with that last point.
a)
Obstruction of Moiwana community members’ efforts to obtain justice
94.
Despite the many efforts of the Moiwana community members and their legal
representatives, as well as clear evidence of the State’s responsibility in the matter,
no indication exists that there has been a serious and thorough investigation into the
events of November 29, 1986, as shall be discussed in the chapter concerning
Articles 8 and 25 of the American Convention (infra paragraphs 139 – 164).
Furthermore, the community members have not received any form of reparations for
those occurrences (supra paragraph 86(33)). Such a long-standing absence of
effective remedies is typically considered by the Court as a source of suffering and
anguish for victims and their family members;62 in fact, it has even convinced the
community members that the State actively discriminates against them.
For
example, Antonia Difienjo remarked that “compared to others in the country, […] we
do not have the same rights in Suriname.” Stanley Rensch expressed that there is
“insufficient support of the idea […] that the Maroons deserve the same type of legal
protection in the country.”
95.
Moreover, the ongoing impunity has a particularly severe impact upon the
Moiwana villagers, as a N’djuka people. As indicated in the proven facts (supra
paragraph 86(10)), justice and collective responsibility are central precepts within
traditional N���djuka society. If a community member is wronged, the next of kin –
which includes all members of his or her matrilineage – are obligated to avenge the
offense committed. If that relative has been killed, the N’djuka believe that his or
her spirit will not be able to rest until justice has been accomplished. While the
offense goes unpunished, the affronted spirit – and perhaps other ancestral spirits –
may torment their living next of kin.
96.
In this regard, expert witness Kenneth Bilby asserted that, according to
traditional beliefs, while a serious transgression goes unresolved, over time
increasing numbers of society members will be troubled by the spirits of the dead.
The witnesses who testified before this Court expressed great fear of those spirits
and much remorse that their efforts at justice had not yet succeeded. As Andre
Ajintoena stated, it is “essential” to search for justice when someone dies in an
unfair way; this obligation “to set things straight,” if not fulfilled, will cause the living
as well as the dead to suffer. For these reasons, Mr. Ajintoena established an
62
Cf. Case of the Serrano-Cruz Sisters, supra note 9, paras. 113-115.