21
annuel de la Cour permanente de Justice internationale, P.C.I.J., Series E,
No. 9, p. 163).
82.
In its brief, and in some of the evidence presented by the Commission, it is
implied that the killings were racially motivated and committed in the context of
ongoing conflicts that apparently existed between the Government and the
Saramaka tribe.
In the petition dated January 15, 1988, presented to the Commission, it is alleged
that: “More than 20 unarmed Bushnegroes were severely beaten and tortured in
Atjoni. All were male and they were unarmed, but the soldiers suspected that they
were members of the Jungle Commando.”
The Commission’s memorial of April 1, 1991, took up this petition and included it as
an integral part of the document. Throughout the proceedings, the statement that
the soldiers acted on suspicion that the Saramakas were members of the Jungle
Commando was neither amended nor challenged. Consequently, the origin of the
events as described in the memorial of April 1, 1991, lies not in some racial issue
but, rather, in a subversive situation that prevailed at the time. Although a certain
passage of the brief dated March 31, 1992, and the testimony of an expert both
refer to the conflicting relationship that appears to have existed between the
Government and the Saramakas, in the instant case it has not been proved that the
racial factor was a motive for the killings of December 31, 1987. It is true that the
victims of the killings all belonged to the Saramaka tribe, but this circumstance of
itself does not lead to the conclusion that there was a racial element to the crime.
83.
In its brief, the Commission explains that, in traditional Maroon society, a
person is a member not only of his or her own family group, but also of his or her
own village community and tribal group. According to the Commission, the villagers
make up a family in the broad sense. This is why damages caused to one of its
members also represent damages to the community, which would have to be
indemnified.
As for the argument linking the claim for moral damages to the unique social
structure of the Saramakas who were generally harmed by the killings, the Court
believes that all persons, in addition to being members of their own families and
citizens of a State, also generally belong to intermediate communities. In practice,
the obligation to pay moral compensation does not extend to such communities, nor
to the State in which the victim participated; these are redressed by the
enforcement of the system of laws. If in some exceptional case such compensation
has ever been granted, it would have been to a community that suffered direct
damages.
84.
According to the Commission, the third ground for payment of moral damages
to the Saramakas involves the rights that the tribe apparently have over the territory
they occupy and the violation of such rights by the Army of Suriname when it
entered that territory. The Commission has stated that the autonomy acquired by
the Saramakas, while originating in a treaty, at the present time is only governed by
domestic public law, since no form of international status is sought for the tribe (cf.
supra, para. 58). The Commission, then, is basing the right to moral compensation
on the alleged violation of a domestic legal norm regarding territorial autonomy.