15
hearing and the personality he revealed led the Court to develop an opinion of the
witness that persuaded it to reject his testimony.
59.
The Commission has produced information on the social structure of the
Saramakas indicating that the tribe displays a strongly matriarchal(*) familial
configuration where polygamy occurs frequently. The principal group of relatives
appears to be the “bêè”, composed of all the descendants of one single woman. This
group assumes responsibility for the actions of any of its members who, in theory,
are each in turn responsible to the group as a whole. This means that the
compensation payable to one person would be given to the “bêè”, whose
representative would distribute it among its members.
60.
The Commission also requests compensation for the injured parties and the
distribution of such compensation among them. On examining the Commission’s
brief, it is evident that the identification of the beneficiaries of such compensation
has not been carried out in accordance with Saramaka custom, at least not as the
Commission has described it before the Court. It is impossible to determine what
legal norm the Commission applied for this purpose. It would appear that the
Commission simply took a pragmatic approach.
Likewise, on the matter of the amount of compensation and its distribution, the
Commission’s brief asserts that it resorted to an “equilibrium system” which took
the following factors into account: the age of the victim, his actual and potential
income, the number of his dependents and the customs and petitions of the
Bushnegroes.
61.
The I.L.O. Convention Nº 169 concerning Indigenous and Tribal Peoples in
Independent Countries (1989) has not been accepted by Suriname. Furthermore,
under international law there is no conventional or customary rule that would
indicate who the successors of a person are. Consequently, the Court has no
alternative but to apply general principles of law (Art. 38(1)(c) of the Statute of the
International Court of Justice).
62.
It is a norm common to most legal systems that a person’s successors are his
or her children. It is also generally accepted that the spouse has a share in the
assets acquired during a marriage; some legal systems also grant the spouse
inheritance rights along with the children. If there is no spouse or children, private
common law recognizes the ascendants as heirs. It is the Court’s opinion that these
rules, generally accepted by the community of nations, should be applied in the
instant case, in order to determine the victims’ successors for purposes of
compensation.
These general legal principles refer to “children,” “spouse,” and “ascendants.” Such
terms shall be interpreted according to local law. As already stated (supra, para.
58), here local law is not Surinamese law, for the latter is not effective in the region
insofar as family law is concerned. It is necessary, then, to take Saramaka custom
into account. That custom will be the basis for the interpretation of those terms, to
the degree that it does not contradict the American Convention. Hence, in referring
to “ascendants,” the Court shall make no distinction as to sex, even if that might be
contrary to Saramaka custom.
(*)
Probably a more precise anthropological term would be matrilineal.