25
reparation did not, and does not, limit itself to pecuniary reparation, to indemnization. Their
whole polemics was conditioned by the theory of civil responsibility.
76.
Hence the undue emphasis on pecuniary reparations, feeding that long-lasting doctrinal
discussion. This has led, in domestic legal systems, to reductionisms, which paved the what to
distorted "industries of reparations", emptied of true human values. The advent of the
International Law of Human Rights, and in particularly the case-law of the Inter-American
Court, came fortunately to widen considerably the horizon of reparations, and render that
doctrinal difference largely immaterial, if not irrelevant, in our days. There appears to be no
sense at all in attempting to resuscitate the doctrinal differences as to the pretium doloris in
relation to the configuration of the proposed spiritual damage. This latter is not susceptible of
pecuniary reparations, it requires other forms of reparation.
77.
The testimonial evidence produced before this Court in the cas d'espèce indicated that,
in the N'djukas cosmovision, in circumstances like those of the present case the living and their
dead suffer together, and this has an intergenerational projection. Unlike moral damages, in
my view the spiritual damage is not susceptible of "quantifications", and can only be repaired,
and redress be secured, by means of obligations of doing (obligaciones de hacer), in the form
of satisfaction (e.g., honouring the dead in the persons of the living).
78.
In should be kept in mind that, in the present case of the Moiwana Community, as a
result of the massacre of 1986, the whole community life in the Moiwana village was
disrupted; family life was likewise disrupted, displacements took place which last until now
(almost two decades later). The fate of the mortal remains of the direct victims, the nonperformance of funerary rites and ceremonies, and the lack of a proper burial of the deceased,
deeply disrupted the otherwise harmonious relations of the living N'djukas with their dead. The
grave damage caused to them, in my view, was not only psychological, it was more than that:
it was a true spiritual damage, which seriously affected, in their cosmovision, not only the
living, but the living with their dead altogether.
79.
Moreover, the resulting impunity, in the form of a generalized and sustained violence
(increased by the sense of indifference of the public power to the fate of the victims) which has
persisted to date, has generated, in the members of the Moiwana Community, a sense of total
defencelessness. This has been accompanied by their loss of faith in human justice, the loss of
faith in Law, the loss of faith in reason and conscience governing the world.
80.
In addition, in the public hearing of 09.09.2004 before this Court, as pointed out in the
present Judgment, former residents of the Moiwana village indicated that they were haunted
by their ancestors for not having had a proper burial; this had negative consequences for the
next-of-kin. They stressed that in the N'djuka culture they had the obligation to pursue justice,
and because of the denial of justice that they experienced in the present case, it is as if they
were "dying a second time"89. The State-planned massacre of 1986 "destroyed the cultural
tradition (...) of the Maroon communities in Moiwana"90. The expert evidence produced before
this Court expressly referred to "spiritually-caused illnesses"91.
. Paragraph 80(b), (c) and (d).
89
. Paragraph 80(a) and (d).
90
. Paragraphs 80(e) and 83(9).
91
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