75
192. It is well settled in international jurisprudence that a judgment constitutes,
per se, a form of reparation. However, considering the aggravated circumstances of
the present case and its many non-pecuniary consequences, the Court deems it
appropriate that the moral damages must also be repaired, on grounds of equity,
through the payment of compensation.105
193. In evaluating the non-pecuniary damages suffered in the instant case – harm
so serious as to have produced a violation of Article 5 of the American Convention, in
conjunction with Article 1(1) of that treaty (supra para. 103) – the Court has
carefully studied the testimony of Moiwana community members Erwin Willemdam,
Antonia Difienjo and Andre Ajintoena, and is of the opinion that their experience may
be considered representative of that of rest of the victims.106 Furthermore, the
Tribunal has closely examined the testimony of witness Stanley Rensch, as well as of
expert witnesses Kenneth M. Bilby and Thomas Polimé (by affidavit), all of whom
have demonstrated intimate familiarity with N’djuka society in general, and the
circumstances of the Moiwana community members in particular.
194. Given that the victims of the present case are members of the N’djuka
culture, this Tribunal considers that the individual reparations to be awarded must be
supplemented by communal measures; said reparations will be granted to the
community as a whole in subsection D.107
195. The Court’s assessment of moral damage in the instant case particularly takes
into account the following aspects of the Moiwana community members’ suffering:
a)
their inability, despite persistent efforts, to obtain justice for the attack
on their village, particularly in light of the N’djuka emphasis upon punishing
offenses in a proper manner (supra paragraph 86(10)). Such long-standing
impunity, fostered by violent State efforts to obstruct justice (supra
paragraph 86(33)), humiliates and infuriates the community members, as
much as it fills them with dread that that offended spirits will seek revenge
upon them (supra paragraph 86(43)). In addition, due to the failure of the
State’s criminal investigation, community members are fearful that they could
once again confront hostilities if they were to return to their traditional lands
(supra paragraph 86(43));
b)
they do not know what has happened to the remains of their loved
ones, and, as a result, they cannot honor and bury them in accordance with
fundamental norms of N’djuka culture, which causes them deep anguish and
despair (supra paragraph 86(42)). Since the various death rituals have not
been performed according to N’djuka tradition, the community members fear
“spiritually-caused illnesses,” which they believe can affect the entire natural
lineage and, if reconciliation is not achieved, will persist through generations
(supra paragraph 86(9)); and
105
Cf. Case of the Serrano-Cruz Sisters, supra note 9, para. 157; Case of Carpio-Nicolle et al., supra
note 82, para. 117; and Case of Plan de Sánchez Massacre. Reparations, supra note 82, para. 81.
106
Cf. Case of Plan de Sánchez Massacre. Reparations, supra note 82, para. 84.
107
Cf. Case of Plan de Sánchez Massacre. Reparations, supra note 82, para. 86.