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:
Vacates the judge’s move to set aside the verdict, and imposes a new standard for judgement.
Makes an explicit case that a reasonable jury could have found the defendants liable.
Clarifies a broader standard for defining “extrajudicial killings” under the TVPA—based on the indiscriminate use of force—that can be used going forward.
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.
Overall, Bolivia has a political culture of frequent mass participation in disruptive protest, which is reflected in laws, legal precedents, traditions of tolerance, popular attitudes toward protest and repression, and the words and actions of politicians and other leaders. For nearly a century, many Bolivian government leaders have claimed their legitimacy as representatives of recent outbursts of mass protest, but this history has been interrupted many times by military and authoritarian rulers who cracked down on protest. During the shorter, but current period of electoral democracy (since 1982), politicians of various political stripes have contrasted their values and actions with those of the pre-1982 dictatorships, creating a certain space for protest and an incomplete but nonetheless real aversion to deadly repression of protest.
However, there are now two exceptional moments that burst the bounds on deadly repression: the 2003 Gas War and the 2019 political crisis that saw the overthrow of Evo Morales. The white paper examines each of them in detail. In 2003, President Gonzalo Sánchez de Lozada moved to criminalize longstanding forms of protest, and orchestrated a military response that directly killed at least 59 civilians. In 2019, three weeks of dueling protests over the October 20 election prompted Morales’ November 10 resignation under pressure from security forces. After Morales’ ouster both military commanders and interim president Jeanine Áñez presided over deadly repression.
Bolivia’s post-Evo crackdown broke limits on state repression
Regarding 2019, my quantitative analysis found:
At least 37 people were killed in this conflict, the first death was caused on October 29, and the last so far on November 19. This includes the deaths of two individuals after hostilities had ceased.
Four of the deaths were caused by civilian supporters of Evo Morales before he resigned, while one pro-Morales journalist suffered a likely fatal beating.
Seven civilians and two police officers died during two days of interim military rule.
Finally, twenty-three civilians were killed after the swearing in of President Jeanine Áñez, all but one of them by joint military-police operations in response to protests. The massacres at Sacaba (nine killed on November 15) and Senkata (11 killed on November 19) were the deadliest incidents of state violence since 2003, and of violence of any kind since 2008.
Overall, state security forces were responsible for at least 25, and as many as 28 deaths in the aftermath of Evo Morales’ ouster. In ten days, the police and military killed more protesters than they had in the final ten years of Morale’s rule (21), and nearly as many as in his entire administration (33).
These sharp differences in death toll reflect the importance of presidential decisionmaking, policing policy and human rights guarantees in human rights outcomes. The military leadership and President Áñez both decisively reversed the order given by President Carlos Mesa in January 2005 to restrict military involvement in policing protest. Áñez also signed Supreme Decree 4078, which exempted the military from criminal prosecution for actions carried out during the nationwide crackdown.
The 2003 Gas War was an exceptional episode of state repression
The bulk of the white paper presents and extends the results of a report I drafted as an expert witness for the plaintiffs in the Mamani et al v. Sánchez de Lozada and Sánchez Berzaín case before the United States Federal Court for the Southern District of Florida. My goal in that report was to examine and contextualize the Bolivian government’s use of repressive force in response to protest during the September–October 2003 mass mobilization, popularly known as the Gas War.
What follows is a summary of the argument:
Bolivia has a highly contentious political culture marked by high levels of participation in protest, high levels of involvement in large grassroots organizations, frequent intervention of these organizations in matters of public policy, and the expectation that governments will negotiate with, rather than criminalize or physically disperse, protesters.
Frequent, disruptive protest is the norm in Bolivia’s political culture. The September–October 2003 protests were largely comprised of common elements within Bolivia’s so-called repertoire of contention.
Bolivian legal traditions authorize the country’s widespread unionization, its variety of civil society organizations, and these organizations’ unusually broad right to engage in disruptive strikes. Informally, policing and prosecutorial practice have usually respected these rights during the democratic period. When they occur, large deployment of force by the police or army may attract public criticism.
The events of September and October 2003, while larger in scale than in prior years, generally involved the use of tactics within the Bolivian repertoire of contention, and were conducted in the expectation of negotiating with the Sánchez de Lozada government. Calls for the president’s resignation were also consistent with longstanding political traditions.
The police and military response to the September and October 2003 protests is a quantitative outlier, far outside the general approach of Bolivian democratic governments in its lethality. This is true even though other democratically elected presidents have faced more frequent and more intense protests.
In the current democratic era, other Bolivian presidents have responded to large-scale and highly disruptive protests by exercising greater restraint, avoiding or limiting bloodshed. The impulse to do so is an important part of Bolivia’s post-dictatorship democratic political culture.
The Evo Morales years saw far less direct state violence
Evo Morales, who was elected by a 54% majority in December 2005 in the wake of the political upheaval reflected in the 2003 Gas War, went on to become the longest-serving president in Bolivia’s history, serving for nearly 14 years. Ultimately, 138 people would die in social movement-related events during the Morales years, a close runner-up to Gonzalo Sánchez de Lozada’s fourteen-month death toll of 139. However, in nearly all other respects, the Morales years were quantitatively very different from Sánchez de Lozada, and more in line with the 1982–1999 period of limited violence in Bolivian political life. Under Morales (as well as under Carlos Mesa), state security forces killed less often and were responsible for a smaller share of deaths than even during the relatively calm 1982–2000 years. In no single incident did security forces under Evo Morales kill more than four civilians.
Partisan political conflict among civilians resulted in twenty-six deaths during the Morales years, many more than in prior decades. Responsibility for these deaths was evenly split between Morales’ supporters and opponents. The increased frequency of such violence set the stage for the seven civilian-on-civilian killings during the 2019 crisis. During the crisis, the Morales government exercised restraint over the security forces and publicly announced its refusal to confront mutinying police. After Morales’ overthrow, a different and more deadly situation would rapidly emerge.
The Interdisciplinary Group of Independent Experts for Bolivia, a five-person team of human rights experts named by the Inter-American Commission of Human Rights (IACHR), has been formally cleared to begin the work of investigating all human rights violations during Bolivia’s 2019 political crisis (prior coverage|Wikipedia) and expects to start work in the country on October 2, 2020. The Group was authorized by agreement between the Commission and the Bolivian government on December 2 of last year, following a dramatic visit by IACHR members to the country in the wake of the Sacaba and Senkata massacres. While the IACHR quickly appointed four members of the Group back in January, its work has yet to start and the interim government Jeanine Áñez has raised objections to both its membership and methods.
On April 28, however, the IACHR and the Foreign Ministry announced their agreement to a full investigation of last year’s often-violent events. The IACHR describes the Group as
[my English translation:] an international investigation mechanism on the acts of violence that occurred in the country … with guarantees of autonomy and independence, to secure the right to the truth and to duly identify those responsible for human rights violations.
un mecanismo de investigación internacional sobre los hechos de violencia ocurridos en el país, específicamente un Grupo Interdisciplinario de Expertos Independientes (GIEI), con garantías de autonomía e independencia, para asegurar el derecho a la verdad e identificar debidamente a los responsables de violaciones de los derechos humanos.
The agreement between the Bolivian state and the IACHR guarantees the Group the right to conduct an elaborate investigation with full access to the files and records of the government. Its designated powers are reminiscent of a truth commission:
An Argentine journalist’s final report denounced a coup; his beating later that night looks like murder
Sebastián Moro was a 40-year-old Argentine journalist working for Prensa Rural, a newspaper associated with the CSUTCB national peasants union that strongly supported the government of Evo Morales. On the morning of November 9, the Morales presidency was under siege, with a widespread police mutiny backing up nationwide protests of the October 20 election results. That morning, Sebastián Moro showed up to coordinate the next edition of Prensa Rural with his supervisor José Aramayo, who also coordinated the station Radio Comunidad out of the office of the CSUTCB in the Miraflores neighborhood of La Paz. By that night, angry civilian opponents of the Morales government had broken into the compound, beaten and tied up Aramayo and senior union leader Hugo López, and delivered them to a police station.
From his apartment in the Sopocachi neighborhood, Moro filed a report for the Argentine newspaper Página12titled “Un golpe de estado en marcha en Bolivia [A coup d’etat is underway in Bolivia].” article mentioned the attack on Aramayo as part of long list of attacks by the civic movement:
Because of the [police and military’s self-imposed] confinement to barracks, on Saturady there were acts of vandalism and aggression upon government functionaries, journalists, and MAS party members in different parts of the country. Among numerous acts, the governor of Oruro’s house was burned, state workers at Bolivia TV and Radio Patria Nueva denounced they were kidnapped and denied their right to work by fighting groups of the opposition who surrounded their building, and the La Paz headquarters of the Peasant’s Confederation (CSUTCB) was invaded and attacked.
Producto de los acuartelamientos, el sábado hubo actos vandálicos y agresiones a funcionarios, periodistas y militantes del MAS en distintos puntos del país. Entre varios hechos, el gobernador de Oruro sufrió el incendio de su vivienda, trabajadores estatales del canal Bolivia TV y de Radio Patria Nueva denunciaron que fueron secuestrados y privados de su derecho al trabajo por grupos de choque de la oposición que cercaron el edificio, y la sede paceña de la Confederación Campesina (CSUTCB) fue invadida y atacada
Departmental legislator Gustavo Torrico and Evo Morales’ legal representative Patricia Pamela Hermosa are the latest people arrested in the interim Bolivian government’s legally dubious effort to prosecute exiled president Evo Morales for the crimes of sedition and terrorism. Torrico, a member of the Departmental Legislative Assembly of La Paz, was arrested last night (February 6) and is expected to be charged with sedition for threatening comments he made in a late October radio interview. Hermosa, for her part, was arrested on February 2while bringing Morales’ identity documents into Bolivia in order to register him as a MAS-IPSP candidate for Senate. She seems to be under investigation due to telephone records indicating she spoke with Evo Morales in November after his overthrow on November 10. The government has also floated the possibility of subpoenaing Chapare cocalero leader and senate candidate Andrónico Rodríguez in the case.
These moves, on top of the active investigation of at least 592 Morales government officials for alleged financial irregularities, and the recent brief arrests and apparent physical mistreatment of two officials given safe passage out of the country, illustrate a scenario in which judicial actions is being used as an active mechanism of political persecution against members of Morales’ party. The “sedition and terrorism” case is the spearhead of that overall effort.
The UN Special Rapporteur on the Independence of Judges & Lawyers Diego García-Sayán has publicly called out the Áñez government: “I am concerned by the use of judicial and prosecutorial institutions for political persecution. The number of illegal detentions is growing. Today it was the turn of former minister Gustavo Torrico. I call for respect of the independence of institutions and for due process.”
The Inter-American Commission on Human Rights, which visited Bolivia November 22 to 25, has released a visually and emotionally arresting video that highlights the testimony of survivors of the Bolivian government’s massacres of protesters in the town of Sacaba and the El Alto neighborhood of Senkata. The video interweaves survivors’ pleas with crowd shouts for “justice” and does far more to humanize the participants in protests than nearly any coverage in the mainstream Bolivian press. (Click on “CC” for English subtitles, and on “vimeo” to see a larger version.)
The Commission’s report on its visit, currently available only in Spanish, includes extensive discussion of these two massacres. What follows is my translation of a relevant portion of their text:
Massacres and murders
In the context of the crisis, and as of November 27, the IACHR received news of 36 people who lost their lives in Bolivia. During its visit, the IACHR delegation received abundant information about two massacres committed in Sacaba and in Senkata, on November 15 and 19, respectively, in which at least 18 people lost their lives.
The Sacaba massacre occurred on November 15. The Commission received information from witnesses, according to which members of the Six Federations of the Tropic of Cochabamba arrived in a peaceful demonstration to the Sacaba municipality, demanding the return of Evo Morales to the government and recject the interim government. At the Huayllani bridge, located at kilometer 10 of the highway from Cochabamba, the combined forces of the Police and Armed Forces had established a security cordon. At the moment the demonstrators attempted to pass through, they were first contained and told verbally that the Human Rights Ombudsman’s Office (Defensoría del Pueblo) was on its way to mediate; nevertheless, according to information received, a few moments later the police and military agents would open fire against the civilian population gathered there, which they also would attack with tear gas, beatings, and kicks. In these acts, nine people were killed: Omar Calle, César Sipe, Juan López, Emilio Colque, Lucas Sánchez, Plácido Rojas Delgadillo, Armando Carvallo Escobar, Marco Vargas Martínez, and Roberto Sejas. Numerous people were wounded, including by bullets, who were received by various hospitals in Sacaba and Cochabamba.
The commission takes note of the existence of different versions of how these events unfolded. On one hand, some state authorities, including the Forensic Investigation Unit (Instituto de Investigaciones Forenses; IDIF) and the police command, have accused the demonstrators of having shot one another, proposing reasons such as the caliber of the bullets that were recovered from the bodies of the dead and wounded. On the other hand, the numerous testimonies received by the IACHR are consistent in indicating that the demonstrating people were unarmed, advanced peacefully by their own initiative, and were attacked with fire arms, teargas canisters, batons, and other weapons by the security forces, in a sudden and surprising manner. Security force helicopters participated in the operation, as even the Police Commander of Cochabamba testified before the IACHR.
The Senkata massacre occurred on November 19. According to information received, a group of partisans of the MAS carried out a blockade around the oil and gas plant of the Senkata sector, in El Alto. That morning, sixty container trucks of gasoline and natural gas were allowed to leave the plant, after which the demonstrators had knocked down one of the walls on the perimeter of the plant, at which time they were contained by the firearms of the combined forces of the Police and Army. In these acts, nine people were killed by gunshots: Devi Posto Cusi, Pedro Quisberth Mamani, Edwin Jamachi Paniagua, José Colque Patty, Juan José Tenorio Mamani, Antonio Ronald Quispe, Clemente Mamani Santander, Rudy Cristian Vásquez Condori, and Calixto Huanacu Aguilar. Among those who were killed are several people who do not seem to have participated in the blockade, but rather were simply passing through the zone on the way to their homes or workplaces. There were also numerous people wounded by gunshots, beatings, inhalation of gas, and other related causes, who were attended in various hospitals in El Alto. Just as in the Sacaba massacre, some public functionaries, both forensic and police, have questioned whether the bullets that killed these citizens had been shot by the regulation weapons of the security forces. With respect to that, according to public declarations and those made before the IACHR, insistently reiterated by the victims themselves, these people were publicly demonstrating without violence and were the object of repression by state agents using firearms. There have also been public denunciations of the disappearance over various lifeless bodies of people who had died in the the same massacre, which would have been taken by state agents so that no one would have word of these dead people. In particular, cases of [such disappearances] denounced before the IACHR include that of a peasant woman, and of a girl around 12 years old, among others. The victims of this massacre consistently signal that the number of those killed is much more than the nine that have been reported up to now.
The Inter-American Commission on Human Rights emphatically condemns the massacres of Sacaba and Senkata, in which [the perpetrators] incurred in grave violations of human rights. According to the Commission’s criteria, these acts can be characterized as massacres given the number of people who lost their lives in the same way, time, and place, and because they were committed against a specific group of people. In addition, the patterns of the wounds that have been recorded offer serious indications of practices of extrajudicial execution. The right to life, protected under the American Convention [on Human Rights], is inviolable, and due to its essential character is the precondition for the exercise of all other human rights. The organs of the Inter-American System [of Human Rights] have reiterated that the use of force by the state must be bound by the principles of exceptionality, legality, necessity, and proportionality. As well, the Bolivian state is reminded that lethal force many not be used merely to maintain or re-institute public order; only protection of life itself and physical integrity against imminent and real threats is a legitimate objective for the application of deadly force by state agents. In this sense, the IACHR urges the [Bolivian] state to immediately and urgently implement mechanisms to prohibit and effectively impede the use of lethal force as a control measure for public order in cases of public demonstrations. The Commission also reiterates that firearms and their munitions must be excluded from control operations of social protest, and that police or military functionaries that may enter into contact with a demonstration should not carry fire arms or other lethal weapons. Additionally, the Commission urges the state to rapidly carry out its international obligation to investigate, judge, and sanction those responsible for these criminal acts.