13
VIII
50.
It has already been stated that insofar as the right to life is concerned, it is
impossible to reinstate the enjoyment of that right to the victims. In such cases,
reparation must take other, alternative forms, such as pecuniary compensation
(supra, para. 46).
This compensation refers primarily to actual damages suffered. According to arbitral
case law, it is a general principle of law that such damages comprise both indirect
damages and loss of earnings (cf. Chemin de fer de la baie de Delagoa,
sentence, 29 mars 1900, Martens, Nouveau Recueil Général de Traités,
2ème Série, t. 30, p. 402; Case of Cape Horn Pigeon, 29 November 1902,
Papers relating to the Foreign Relations of the United States, Washington,
D.C.: Government Printing Office, 1902, Appendix I, p. 470). Compensation
shall furthermore include the moral damages suffered by the victims.
The
Permanent Court of International Justice so held [Treaty of Neuilly, Article 179,
Annex, Paragraph 4 (Interpretation), Judgment No. 3, 1924, P.C.I.J., Series
A, No. 3, p. 9], as did the arbitral tribunals (Maal Case, 1 June 1903, Reports of
International Arbitral Awards, vol. X, pp. 732 and 733; and, Campbell Case,
10 June 1931, Reports of International Arbitral Awards, vol. II, p. 1158).
51.
In the instant case, the victims who died at Tjongalangapassi suffered moral
damages when they were abused by an armed band which deprived them of their
liberty and later killed them. The beatings received, the pain of knowing they were
condemned to die for no reason whatsoever, the torture of having to dig their own
graves are all part of the moral damages suffered by the victims. In addition, the
person who did not die outright had to bear the pain of his wounds being infested by
maggots and of seeing the bodies of his companions being devoured by vultures.
52.
In the Court’s opinion, it is clear that the victims suffered moral damages, for
it is characteristic of human nature that anybody subjected to the aggression and
abuse described above will experience moral suffering. The Court considers that no
evidence is required to arrive at this conclusion; the acknowledgement of
responsibility by Suriname suffices.
53.
The actual damages are analyzed starting in paragraph 88 et seq.
IX
54.
The damages suffered by the victims up to the time of their death entitle
them to compensation. That right to compensation is transmitted to their heirs by
succession.
The damages payable for causing loss of life represent an inherent right that belongs
to the injured parties. It is for this reason that national jurisprudence generally
accepts that the right to apply for compensation for the death of a person passes to
the survivors affected by that death. In that jurisprudence a distinction is made
between successors and injured third parties. With respect to the former, it is
assumed that the death of the victim has caused them actual and moral damages
and the burden of proof is on the other party to show that such damages do not
exist. Claimants who are not successors, however, must provide specific proof
justifying their right to damages, as explained below (cf. infra, para. 68).