Latin American Perspectives: blog: Political Report # 1339 How US Civil Law is Being Used to Bring Human Rights Abuses to Court

by Linda Farthing, The Nation

Two weeks after the verdict in a landmark human-rights case in Fort Lauderdale, Thomas Becker was still excited. "This is a historic victory," the attorney said. "This case shows that you can be a poor person and stand up for human rights, justice and social change. And you can win."

Becker was talking about the early April jury decision in a civil trial that has significantly boosted the reach of US human-rights law against foreign government officials. The events in the case took place 15 years ago and thousands of miles away from the US district federal courtroom in downtown Fort Lauderdale where the trial played out. For three weeks in March, the families of people killed by the Bolivian military during a 2003 country-wide uprising testified against former president Gonzalo Sánchez de Lozada and his minister of defense Carlos Sánchez Berzaín. The verdict finally came back on April 3: The case marks the first time that an ex-head of state was forced to face his accusers in a US court for human-rights abuses.

The tragedy began with a government proposal to construct a pipeline: The plan was to increase exports of the landlocked country's immense natural gas reserves-at the time the second largest in South America-by piping the gas through Bolivia on to Chile, the country's long-time adversary. Across the country, large swathes of the population saw the proposal as one more instance of a long and painful history of foreigners stealing the country's natural resources and territory. Protests were most intense in the highlands, where the largely indigenous city of El Alto blocked food and fuel destined for the city of La Paz, which sits in a basin below. The coalition government of Gonzalo Sánchez de Lozada, popularly known as Goni, who had won his second term with the help of US Democratic Party election consultants, declared a state of siege and militarized El Alto and surrounding areas.

Once the dust settled, around 60 people had been killed and over 400 wounded, almost every one of them working class people of Aymara indigenous heritage. All of the case's plaintiffs lost family in the uprising; many of them lost elderly parents or young children. "Even though it took 15 years, we never gave up hope that we would get our day in court," said Teófilo Baltazar, one of the nine plaintiffs. His wife who was five months pregnant was shot to death through the wall of their home.

Felicidad Rosa Huanca Quispe, from a small community south of La Paz where protestors were blocking roads, was preparing lunch for her five children on October 13, 2003, when her 69-year-old father Raúl Ramon headed to a nearby corner shop to buy a soft drink. On the stand in the Fort Lauderdale courtroom, dressed in the wide skirts that characterize Aymara women, she began to sob uncontrollably as she told the court, "the military shot him in two places and killed him."

Some of the most damning testimony against the two men came from a carpenter who was fulfilling his obligatory military service in 2003. Edwin Aguilar Vargas told the court that "soldiers were ordered by their commanding officers to shoot anything that moved." He reported that he and his fellow conscripts were supplied lethal ammunition and machine guns.

The families of the victims were overjoyed when the ten-person jury returned a guilty verdict. "The jury really listened to us," said Baltazar. "I am proud that this case is an example to the whole world that it doesn't matter how rich and powerful you are, you can't murder people. No one is untouchable."

The 2003 killings broke with a long-established pattern of protest in Bolivia where, for decades, people blockaded streets and roads against a government policy, grinding the country to a halt. This pressured the government to negotiate, often with the assistance of the Roman Catholic Church. In a country that had been ruled by a tiny white elite for centuries, this became the accepted way that the working class, indigenous and poor got their voices heard. Massacres occurred, but they were the exception.

For many Bolivians, the Florida trial brought harrowing ghosts of the past back to life. "No one in this case fought harder than the families of the victims," said Becker, who works as lawyer for the families. "For 15 years they have had no closure, but they frequently told me that they were willing to keep their wounds open so that no one has to suffer what they went through."

The groundbreaking civil case hinged on the US Torture Victims Protection Act, one of the broadest human-rights laws in the world. The TVPA created the ability to bring cases of extrajudicial killings and torture against foreign officials when the potential remedies are exhausted in a plaintiff's home country. "The core principle behind TVPA litigation," explains Rutgers Camden law professor, Beth Stephens, who worked on the case, "is that all government officials, no matter how high their positions, can be held accountable for violations of human rights."

The case was brought by a consortium of US human-rights lawyers, including the Harvard Law School's International Human Rights Clinic, where Becker was a student. He met one of the victims' lawyers, Rogelio Mayta, at a La Paz dinner in 2005. "It was like combining water with thirst in a providential moment," recalled Mayta whose team was already exploring whether bringing a civil case in the US might bring some measure of justice for the victims, given, in Mayta's words, "the inefficiency in the Bolivian justice system." Becker returned to Bolivia the next year to work with Mayta's office, cementing their working relationship and friendship.

In 2011, Mayta was still representing the victims' families in Bolivia's Supreme Court when five former military officials and two former cabinet ministers were convicted for their role in the 2003 killings. After a two-and-a-half-year trial, the generals received 10- to 15-year prison sentences, and the ministers three years a piece. Sánchez de Lozada and Sánchez Berzaín were indicted in that case as well, but because at the time Bolivian law prohibited trials in absentia and both were residents in the US, neither was tried. US support for the two men was made explicit in 2007, when Sánchez Berzaín was granted political asylum.

The Bolivian government has tried repeatedly to get them back to face trial at home. An extradition request was presented to the State Department in November 2008, ironically based on a treaty pushed on Bolivia in 1995 at the height of the US-financed War on Drugs, when the US sought to force accused drug traffickers to face trial in the United States. Bolivia's application was only the second time the country had attempted to make the treaty reciprocal. "The State Department blocked us at every turn," recalls Vicky Aillón who worked on preparing Bolivia's submission.

It took four years for the State Department to turn the request down in a diplomatic note sent to Bolivia's foreign ministry. The reason given was that the criminal accusations of genocide and other charges against the two former authorities had no equivalency in US law and that the request did not conform with the terms of the 1995 extradition treaty. Bolivia tried a second time in October 2014, with assistance from the New York law firm Rabinowitz, Boudin, Standard, Krinsky & Lieberman. In February 2016, the application was referred to the Department of Justice for consideration, although Bolivia's attorney general, Ramiro Guerrero, cautioned "this is the only one step in a long process." At the same time, however, the civil TVPA case was winding its way through the courts.

"We put the first demand together in 2007," Stephens, who is affiliated with the Center for Constitutional Rights, explained of the TVPA case. In 2014, Federal Judge James Cohn ruled that the plaintiffs' claims could proceed and two years later, a US appeals court dismissed the defense argument that the court should shelve the case because the plaintiffs had been provided some financial compensation from the Bolivian government.

All of which led to the wood-paneled courtroom in downtown Fort Lauderdale, where in March of this year, the jury heard testimony from former government ministers and the Mayor of La Paz in 2003. Goni's Minister of Government, Victor Hugo Canelas, declared that in 2001, with Gonzalo Sánchez de Lozada present, he heard Carlos Sánchez Berzaín say that if their party was elected in 2002, they would "kill two or three thousand people" if necessary to get their policies adopted. "Sánchez de Lozada indicated that he approved of what Sánchez Berzaín said," Canelas's testimony stated.

The stories that most moved the court were those told by the plaintiffs and other people who had suffered through the military violence. Teófilo Baltazar looked directly at the former president of his country when he said, "it is the fault of these two men that my children don't have a mother." According to Becker, "it was one of the most powerful moments in the trial." Surrounded by a bevy of lawyers and family, Goni was smartly turned out in an expensive dark suit and bright blue tie, appearing younger than his 87 years. He listened intently to the testimony but appeared unperturbed by it.

The defense countered the plaintiffs' testimony by arguing that the 2003 confrontation entailed an armed uprising against the Bolivian state, led by now-President Evo Morales and rural Aymara leader Felipe Quispe. "As only 2 or 3 soldiers were killed compared to 60 civilians, this argument is absurd," said Becker.

Making Evo Morales the mastermind behind the uprising was easily dismantled by the plaintiffs' lawyers. Not only was Morales out of the country at the clash's height, the political party he heads, the MAS, was just beginning to spread to urban areas in 2003. Morales and Quispe, who had far more influence at the time in El Alto and its surroundings, have been at odds since the 1990s.

It took the jury six days to reach a decision. "The jury found that the defendants had 'command responsibility' for the conduct of the soldiers," Judith Chomsky, an attorney affiliated with the Center for Constitutional Rights, explained. "This required that there was a superior-subordinate relationship, that the defendants knew or should have known that the misconduct was likely to or did occur, and finally that they failed to prevent or punish the wrongdoing. The jury recognized liability of the country's highest authority despite the many layers of authority down the military chain."

Two hours after the Florida verdict, Bolivia's President Evo Morales tweeted "My respect and admiration for the families of the victims of October 2003, for their perseverance, commitment and strength...." In a rare move Bolivia's usually fractious Chamber of Deputies adopted a unanimous resolution demanding that the United States extradite Goni and Sánchez Berzaín to face trial in Bolivia.

"The victory is a bittersweet one," said Brigida Quiroga who represents part of El Alto in Bolivia's Chamber of Deputies. "While we're happy with the verdict, no amount of money will ever bring back these families' loved ones."

"This case applies the TVPA to a new set of facts," explained attorney Beth Stephens. "The verdict strengthens the body of law governing human rights accountability, in the US and around the world." Judith Chomsky added, "The outcome expands the possibilities for bringing cases against any former foreign government official (or a paramilitary supported by the foreign government) who can be tied to either torture or an extrajudicial killing."

The next hurdle for the case is Judge James Cohn's May 4th ruling on a defense motion to dismiss the case for insufficient evidence. Such motions are common in civil trials, according to civil litigation attorney Steve Sprenger, and it is highly unlikely the judge will overturn a jury decision. If the defense motion fails, Goni and Sánchez Berzaín's lawyers plan to appeal the verdict.

Although this civil trial in Florida is not linked to Bolivia's extradition petition, Bolivia's Minister of Justice and Institutional Transparency, Héctor Arce told the press after the verdict, "We hope this case will prompt the US government to finally require Sánchez de Lozada y Sánchez Berzaín to return to Bolivia to respond to justice."

"No matter what happens next, this verdict will hopefully diminish impunity and allow more human rights cases to go forward," said Becker. "So few human rights cases in the US result in a positive verdict for the victims. The logistical problems of bringing people from other countries, the differences in legal standards and the difficulty of enforcing settlements all mean that success is minimal."

The jury's decision "greatly strengthens the reach of the TVPA and reaffirms Congress's intent to open our federal courts to human rights victims when the perpetrators are found on US soil," affirmed participating attorney Paul Hoffman.

On the courthouse steps after the verdict, surrounded by other plaintiffs carrying large photos of their dead loved ones, Eloy Rojas Mamani, whose 8-year daughter Marlene was killed, told the press, "This tragedy was so great that not even their lawyers could cover it up."