The US Court of Appeals of the Eleventh Circuit in Miami issued a major ruling that brings us closer to justice for the killings during in the 2003 “Gas War” protests. Bolivian President Gonzalo (“Goni”) Sánchez de Lozada and Defense Mininister Carlos Sánchez Berzaín both fled to exile in the United States after the deaths of over 70 protesters failed to quash widespread protests. For the last thirteen years, a legal team including Bolivian human rights lawers, the Center for Constitutional Rights, Harvard Law School’s International Human Rights Clinic, and DC-based Akin Gump have pursued the two former officials for civil accountability in the United States.

The plaintiffs, surviving relatives of eight people killed during the 2003 protests, sued the two officials in US civil court under the Torture Victims Protection Act. In March 2018, the case, Mamani et. al v. Sánchez de Lozada and Sánchez Berzaín became the first time that a former head of state was brought to trial for human rights violations in a United States court. A month later, a jury a United States jury found the defendants liable under the Torture Victims Protection Act and not liable under a wrongful death claim. They entered a judgment of $10 million for the eight deaths. But Judge James I. Cohn set aside the jury’s ruling in May 2018, finding that the jury could not have lawfully reached its conclusion. (Full chronologies from the Center for Constitutional Rights and Harvard Human Rights Program.)

Today, the 11th Circuit Appeals Court dramatically reversed that ruling and issued a dramatic endorsement of the plaintiffs’ long quest for justice. The ruling:

1. Vacates the judge’s move to set aside the verdict, and imposes a new standard for judgement.
2. Makes an explicit case that a reasonable jury could have found the defendants liable.
3. Clarifies a broader standard for defining “extrajudicial killings” under the TVPA—based on the indiscriminate use of force—that can be used going forward.
4. Opens the door for a new trial on the wrongful death claims by ruling that inadmissible hearsay (from US government cables) was provided to the jury improperly.

The plaintiffs clearly recognize Monday’s ruling as a victory. “This is such wonderful news,” said Sonia Espejo, whose husband Lucio was killed in the 2003 Massacre. “We have fought for so long. We will continue fighting, but for today, I feel happy. I feel calm,” according to their joint press release.

Beyond the renewed possibility that Sánchez de Lozada and Sánchez Berzaín will have to pay (in a material sense) for coordinating the deadliest crackdown on protesters in Bolivia’s democratic era, the ruling offers both a significant increment in the willingness of US courts to hold human rights abuses accountable and direct validation of the loss suffered and grief endured by the families that brought the case.

The Eleventh Circuit recognized an expanded definition of “extrajudicial killings” based on international precedents. Because the Torture Victims Protection Act allows victims of extrajudicial killings along with torture

Armed with an understanding of “extrajudicial killing” as a broad prohibition, encompassing considered, purposeful acts that take another’s life in Case: 18-12728 Date Filed: 08/03/2020 Page: 48 of 63 the absence of a sudden passion or just provocation, we hold that evidence that the decedents were killed by soldiers acting under orders to shoot or kill civilians and evidence that Defendants were connected to those orders provides a legally sufficient basis for a TVPA claim. Plaintiffs need not present evidence of the existence of a preconceived, meticulously coordinated plan, campaign, or strategy to kill civilians to demonstrate that the victims were deliberately killed.

Mamani et al. v. Sánchez de Lozada and Sánchez Berzaín, 18-12728 (11th Cir, August 3, 2020) at 47-48.

The ruling also meticulously considers the circumstances of each of the eight deaths as described in trial testimony. Their presentation of these events is almost certainly the most comprehensive description to appear in English and an unusual validation of their decade and a half of work to have their stories told. The fourteen page account (p. 10–24) is worth reading. The court then applies the standards of legality to each of the eight deaths. In three devastating pages (p. 38-40), it finds that each was a “deliberated killing” for which command responsibility potential applies.

For each decedent, Plaintiffs presented evidence that the cause of death was consistent with a deliberate shot from a member of the Bolivian military in the absence of just provocation. Or to use Plaintiffs’ words, a jury could reasonably infer that “these soldiers deliberately fired deadly shots with measured awareness that they would mortally wound civilians who posed no risk of danger.” None of the decedents were armed, nor was there evidence that they posed a threat to the soldiers. Many were shot while they were inside a home or in a building. Others were shot while they were hiding or fleeing. There is little to no evidence that members of the Bolivian military were in imminent danger or acted out of sudden passion when they fired. Witnesses testified that they saw the armed members of the military, that there were not armed civilians in the area, and that the military aimed at or targeted each individual decedent or other civilians around the time of the incidents.

Mamani et al. v. Sánchez de Lozada and Sánchez Berzaín, 18-12728 (11th Cir, August 3, 2020) at 38.

Next steps in the case

The Appeals Court ruling affirms that the eight killings at the heart of the trial were each potentially covered by the TVPA, but it left to the District Court to evaluate whether each of the deaths were “military reaction[s] to just provocation, which is lawful under international law” or indiscriminate and/or deliberate killings of civilians that are international crimes. On these matters, the Appeals court ordered, “We remand for the District Court to consider in the first instance whether, for each decedent, Plaintiffs produced sufficient evidence to demonstrate that each death was not lawful under international law and thus extrajudicial and, if so, whether Plaintiffs produced sufficient evidence to link Defendants to that wrongdoing via the command-responsibility doctrine.” This will require further arguments from attorneys in the case.

Meanwhile, the Appeals Court also found the lower court’s admission of US Embassy cables prejudicial, it authorized “a new trial on Plaintiffs’ wrongful-death claims,” which are based on Bolivian law. If this road is taken, a new jury would consider these claims.

Photo above: the Mamani et al. plaintiffs and their legal team in 2018.

Disclosure: I served as an expert witness to the Mamani et al. plaintiffs in the course of their preparations for the 2018 trial. My analysis here and description of the next steps is purely my own and not those of that legal team.