Oxford Reports on International Law in Domestic Courts
Public Prosecutor v Bouterse and ors, First instance decision, ILDC 1892 (SR 2012)
11 May 2012Parties: Public Prosecutor
Desiré Delano Bouterse, Errol Alibux, Dick de Bie, Etiënne Boerenveen, Benny Brondenstein, Winston Caldeira, Wim Carbière, Steven Dendoe, Edgar Dijksteel, Roy Esajas, Ernst Gefferie, Arthy Gorré, Orlando Heidanus, Kenneth Kempes, Iwan Krolis, Luciën Lewis, John Nelom, Edgar Ritfeld, Ruben Rozendaal, Jimmy Stolk, Imro Themen, Marcel Zeeuw
Date of Decision: 11 May 2012
Jurisdiction/Arbitral Institution/
Court: Suriname, Military Court
Judges/Arbitrators: Cynthia Valstein-Montnor (President); GAM Cooper; CW Li Fo Sjoe
Procedural Stage: First instance decision
OUP Reference: ILDC 1892 (SR 2012)
Subject(s): Human rights – International criminal law – Relationship between international and domestic law
Keyword(s): Amnesty – Crimes against humanity – Human rights, civil and political rights – Human rights, right to effective remedy – Human rights, right to truth – International crimes – International law and domestic law, conflicts between – International law and domestic law, direct effect – Treaties, application – Treaties, binding force – Treaties, interpretation – Treaties, self-executing
Core Issue(s)
1. Whether granting amnesty for serious human rights violations violated the rights of the victims’ next of kin under international human rights law.
2. Whether serious human rights violations amounted to crimes against humanity. Facts
F1 Between 7 and 9 December 1982, 15 prominent persons—who had participated in actions aimed at restoring democratic rule in Suriname—were arrested and taken to the main military compound in the capital. They were tortured and subsequently executed by military personnel. The 15 victims included a union leader, journalists, court lawyers, university professors, military officers, and businessmen.
F2 On 9 December 1982, the military regime—headed by military commander Desi Bouterse—publicly declared that the 15 victims were considered to be the leaders of anti-government or counter-revolutionary forces, had attempted to commit a coup, and had been killed during an attempt to escape.
F3 The Human Rights Committee (‘HRC’), in Baboeram-Adhin and ors v Suriname, Comm no 146/1983 and 148/1983–154/1983, CCPR/C/OP/2, 4 April 1985, para 14.3 (‘HRC view’), found that the 15 victims had ‘lost their lives as a result of the deliberate action of the military police [and] that the deprivation of life was intentional’. The HRC also found that Suriname had ‘failed to submit any evidence proving that these persons where shot while trying to escape’.
F4 The HRC concluded that the victims’ right to life had been violated contrary to Article 6 (1) of the International Covenant on Civil and Political Rights (16 December 1966) 999 UNTS 171, entered into force 23 March 1976 (‘ICCPR’) and urged Suriname—inter alia—to ‘bring to justice any persons found to be responsible for the death of the victims’ (HRC view, para 16).
F5 On 15 March 2000, the victims’ next of kin and a number of labour organizations filed a complaint with the
Surinamese Court of Justice. In October of the same year—only months before the power to prosecute the murder of the 15 victims would expire according to national law—the Court of Justice ordered the Procurator-General to institute criminal proceedings against Bouterse and his accomplices.
F6 On 7 December 2000, the investigating judge opened a preliminary judicial investigation at the request of the Public Prosecutor’s Office. At the close of the pre-trial investigation, on 1 December 2004, the Public Prosecutor’s Office filed charges against more than 20 suspects, including Bouterse, other ex-military officers, and former
members of government. As a result of—inter alia—challenges which were filed by a number of suspects against the charges, the trial proceedings before the Military Court commenced on 30 November 2007.
F7 On 19 July 2010, the main suspect in the case—Bouterse—was elected President of Suriname. In April 2012, some days before the Judge Advocate was scheduled to deliver his closing arguments and file sentencing recommendations in the case, the legislator sought to grant amnesty to Bouterse and all the other accused standing trial in the case.
F8 Specifically for that purpose, the temporal and substantive scope of the Amnesty Law, 1989 (Suriname) was broadened to include acts of murder committed on 7, 8, or 9 December 1982. Article 2 of the Amnesty Law, 2012 (Suriname) (‘Amnesty Law 2012’) stated that amnesty did not apply to criminal acts which were considered as crimes against humanity under international law.
F9 The Judge Advocate acknowledged that national laws were inviolable, save for those instances in which they were in violation of international human rights or civil and political rights recognized by the Constitution, 1987 (Suriname). With regard to the former set of norms, the Judge Advocate held that he did not know of any treaty obligation with which the amnesty law could be in breach.
F10 Based on the fact that the criminal proceedings were initiated as a result of a complaint of non-prosecution that was filed by the victims’ next of kin, the Judge Advocate submitted that the Amnesty Law might be in violation of the victims’ next of kin’s constitutional right to a fair and public hearing of their case by an independent and impartial judge.
F11 The Judge Advocate acknowledged the fact that the Constitutional Court was never instituted and was, therefore, non-existent. He nevertheless moved to indefinitely stay the criminal proceedings in order to allow the Constitutional Court to review the compatibility of the law with both the Constitution and self-executing treaty provisions.
F12 The accused made no reference to international law in their submissions. Instead, they simply held that the Military Court was under a legal obligation to administer justice in accordance with national law.
Held
H1 Article 106 of the Constitution provided that statutory laws were inviolable, except for those instances in which they were incompatible with—inter alia—self-executing treaty provisions. (paragraphs 2.2–2.4) Even though Article 106 did not contain an explicit reference to the judiciary, it followed from the nature and essence of its duties that this provision was also addressed to the judiciary. Consequently, a judge who, in the context of a specific case of which he was seized, considered that a statutory law contravened self-executing provisions of agreements was competent to disregard the national statutory provision. (paragraph 2.5)
H2 By prescribing impunity for the criminal offences contained in the indictment, the relevant provisions of the Amnesty Law 2012 may have been in violation of the rights of the victims under the American Convention of Human Rights, 1144 UNTS 123, 22 November 1969 (‘ACHR’), which had been ratified by Suriname. Furthermore, the ACHR had been promulgated in accordance with the relevant constitutional provisions. As a result, those provisions of the ACHR which were self-executing had to be considered part of the Surinamese legal order. (paragraph 5.2)
H3 Article 25 of the ACHR provided the right of effective recourse to a competent court for protection of statutory rights and the fundamental treaty rights against acts of the state. Article 25 had to be read in conjunction with and/ or in relation to Articles 1 and 2 of the ACHR. The question that arose was whether Article 25 was a self-executing provision. Primarily, the question was whose rights had been violated by the amended Amnesty Law. (paragraph 5.2) H4 The Surinamese criminal justice system did not afford injured parties or victims any other rights than the right to file a complaint of non-prosecution; the obligation to testify; or the right to request to be considered as an injured party in the criminal proceedings for the purpose of filing for monetary compensation. Save for the latter, the victims’ next of
kin had effectively made use of these rights. Furthermore, the Surinamese legal system afforded victims or their next of kin the right to initiate a civil lawsuit. The national criminal justice system did not provide any other possibilities. In addition, Article 25(2) of the ACHR did not require more than the legal system already provided. (paragraph 5.2) H5 The fact that Article 25(2) of the ACHR required state parties to ensure citizens the minimum guarantees recognized therein and see to it that the rights of victims / next of kin—such as the right to rehabilitation—were guaranteed, indicated that this provision could not be directly relied upon by citizens in national proceedings. Therefore, this provision was not self-executing. The Amnesty Law 2012 did, however, explicitly allow for rehabilitation through the introduction of a Truth and Reconciliation Commission. (paragraph 5.2)
H6 Thus, the ACHR did not contain any provision for the benefit of the victims’ next of kin based upon which the Amnesty Law 2012 could be considered in violation of self-executing provisions contained in the Convention to the detriment of the victims’ next of kin. In other words, there was no fundamental and specific right which had been restricted by the Amnesty Law 2012 that could be relied upon by the victims’ next of kin in national proceedings. (paragraph 5.2)
H7 There was one important limitation that applied to the judiciary’s competence to assess the compatibility of statutory provisions with treaties, namely that the scope of the judicial review did not venture beyond those treaty provisions which were self-executing. Article 25(2) of the ACHR did not fall within the category of self-executing treaty provisions. (paragraph 5.2)
H8 The criminal offences contained in the indictment did not satisfy the definition of crimes against humanity, as provided for in Article 2 of the Amnesty Law 2012. As a result, this provision could not prevent giving effect to the operative provisions of the Amnesty Law. (paragraph 5.2)
Date of Report: 21 September 2012
Reporter(s): Gaetano Best
Analysis
A1 In its attempt to ascertain whether the Amnesty Law 2012 violated the rights of the victims’ next of kin under international human rights law, the Military Court solely focused on the ACHR. In doing so, it disregarded the fact that Suriname had also ratified and domesticated the ICCPR. Based on the Court’s reasoning as to the self-executing nature of Article 25 of the ACHR, however, inclusion of the relevant provisions of the ICCPR would most likely not have resulted in a different outcome.
A2 Even though the Court rightly started off by considering that, based on Article 106 of the Constitution, it had to be ascertained whether Article 25 of the ACHR was a self-executing provision, the findings that followed this determination can hardly be said to contain an exhaustive answer to that question. The court only concluded that Article 25(2) of the ACHR was not self-executing. As a result, the judges completely ignored the question as to the self-executing status of the right to judicial protection, as provided for in Article 25(1) of the ACHR.
A3 An alternative reading of the Court’s reasoning could lead one to conclude that the judges did pronounce on the self-executing nature of Article 25(1) of the ACHR, albeit only implicitly. To be sure, they did ascertain that the Amnesty Law did not prevent the victims’ next of kin from—for example—filing a complaint of non-prosecution or providing testimony in court. Such an approach, however, is deeply flawed, since it equates or even deflates the scope of the ACHR right to judicial protection to whatever rights are afforded to victims of human rights violations under national law.
A4 Moreover, it is striking that the Military Court’s assessment of the compatibility of the Amnesty Law 2012 with international human rights law does not contain a single reference to the abundant case law of the Inter-American Court of Human Rights (‘IACtHR’) concerning the scope and content of Article 25 of the ACHR. This omission does, however, go a long way to explain why the fair trial rights of the victims’ next of kin under Article 8 of the ACHR did not figure in the court’s assessment of the Amnesty Law’s compatibility with the ACHR. More importantly, it explains how the court could have reached the conclusion that the Amnesty Law was not in violation of the ACHR in the first place.
A5 In Gomes Lund and ors (‘Guerrilha do Araguaia’) v Brazil, Preliminary objections, merits, reparations, and costs, Series C no 219, 24 November 2010, the IACtHR found that the prohibition of granting amnesty for serious human
rights violations under the ACHR extended beyond self-amnesties. More specifically, it held in Gomes Lund and ors (‘Guerrilha do Araguaia’) v Brazil, para 175 that:
[T]he Court, more than the adoption process and the authority which issued the Amnesty Law, heads to [the Amnesty Law’s] ratio legis: to leave unpunished serious violations in international law committed by the military regime. The non-compatibility of the amnesty laws with the American Convention in cases of serious violations of human rights does not stem from a formal question, such as its origin, but rather from the material aspect as they breach the rights enshrined in Articles 8 and 25, in relation to Articles 1(1) and 2 of the Convention.
A6 In Moiwana v Suriname, Preliminary objections, merits, reparations and costs, Series C no 124, 15 June 2005, the IACtHR held that the predecessor of the amended amnesty law could not absolve the state from its obligation to prosecute and punish serious human rights violations. The IACtHR reiterated in Moiwana v Suriname, para 167 that: no domestic law or regulation—including amnesty laws […]—may impede the State’s compliance with the Court’s orders to investigate and punish perpetrators of human rights violations.
The Military Court’s failure to take into account the case law of the IACtHR effectively enabled it to circumvent the clear implications of the aforementioned judgment for the compatibility of the amended Amnesty Law with the ACHR. A7 Another highly peculiar finding concerns the Military Court’s sweeping statement that the December murders did not satisfy the definition of crimes against humanity. Article 2 of the Amnesty Law 2012 defined crimes against humanity as ‘those crimes which according to international law are classified as such’. Contrary to what one would expect, the Military Court did not provide a basis for this finding. More specifically, it made no reference whatsoever to the relevant sources of international law in order to substantiate this finding.
A8 Moreover, the unsubstantiated finding as to the non-applicability of title of crimes against humanity stands in stark contrast to the conclusions of Professor John Dugard. In an Amicus Curiae brief written at the request of the Amsterdam Court of Appeal—Opinion Re Bouterse, Complaint of non-prosecution procedure, Amsterdam Court of Appeal, LJN AA8427, 7 July 2000, para 11.1.8—Dugard stated that:
[t]he acts attributed to Bouterse in December 1982 appear to qualify as a crime against humanity in that they were committed in a systematic manner as part of an organized plan by the military authorities, of which Bouterse was commander, against a group of civilians.
A9 In sum, the Military Court’s review of the Amnesty Law’s compatibility with international law and, more specifically, international human rights law, lacked proper legal analysis. If anything, the decision’s reasoning or lack thereof suggests that the judges never intended to comply with the obligations of the state under both international—human rights—law and the relevant parts of national law explicitly requiring the application of international law.
Date of Analysis: 21 September 2012
Analysis by: Gaetano Best
Related Developments:
Report on the Human Rights Situation in Suriname, Inter-American Commission on Human Rights, OAE/Ser.L/V/ II.61, 5 October 1983
Summary on Arbitrary Executions, Report of the Special Rapporteur, Mr Amos Wako, appointed pursuant to
Resolution 1984/35 of 24 May 1984 of the Economic and Social Council, E/CN.4/1985/17, 12 February 1985, Annex V
Baboeram-Adhin and ors v Suriname, Comm no 146/1983 and 148/1983–154/1983, CCPR/C/OP/2, 4 April 1985 Report on the Human Rights Situation in Suriname, Inter-American Commission on Human Rights, OAE/Ser.L/V/ II.66, 2 October 1985
Bouterse, Judgment on appeal, HR 00749/01 CW 2323; ILDC 80 (NL 2001) Instruments cited in the full text of this decision:
American Convention of Human Rights,1144 UNTS 123, 22 November 1969, Articles 1, 2, 25 Constitution, 1987 (Suriname), Articles 10, 11, 55, 69, 80, 103, 105, 106, 131, 133, 139, 137, 144