One of the key issues currently facing the Mesa government concerns the open public criticism of continued impunity granted to the military. Specifically, public attention has been focused on February’s military tribunal acquittal of four soldiers alleged to have shot at unarmed civilians during public protests one year ago in La Paz, the refusal of military personnel to testify in civilian investigations of October violence, and the lack of congressional action with respect to the prosecution of former president Gonzalo Sánchez de Lozada for the deaths in mass uprisings of last October.
Defense Minister Impedes Civilian Investigations of October Killings
On April 13, Defense Minister Gonzalo Arredondo, informed the District Attorneys in charge of investigation of the death of at least 59 civilians and the injury of several hundred more during the September and October 2003 "Gas War," that 200 military personnel would not testify. Arredondo justified the refusal to testify by stating, "The Constitutional Tribunal set a legal precedent about the validity of military justice. As a result my office, respectful of the constitutional decision and independence, returns the legal subpoena." (La Prensa 4/14/04). Contrary to his assertion, the Constitutional Tribunal has yet to rule on the subject. In blatant violation of the principle of separation of powers in the Bolivian government, which mandates the independence of the Judicial Branch, the Minister sustained that the military tribunal was already trying the case according to the stipulations of military law. Tribunal officials, though, were unwilling to confirm or deny this information. Military sources sustained that although internal preliminary investigations had been carried out, no case had been initiated in the military tribunal. This is the latest example of a disturbing trend to avoid prosecution of members of the armed forces for human rights violations in civilian courts, which has lead to continued impunity, in spite of the stipulations of Bolivian and international law to the contrary.
Military Courts Acquits Soldiers accused in "Black February"
On February 12 the Bolivian public commemorated the events of February 12 and 13, 2003, when public protests in La Paz resulted in violence that left 31 dead and approximately 200 injured. The protests were in response to the government’s announcement of a tax of approximately 12.5% to be deducted from all salaried employees who received more than four times the minimum wage. Under this tax the salary deductions (including pension funds) of the average citizen would have increased to over 30%, in a country that has a per capita GNP of US $900 annually. The demonstration initially began as a strike by the Bolivian National Police in La Paz, and students and workers quickly joined in solidarity. The protest escalated into a violent conflict as the military and police forces clashed.
Video footage showed military officials targeting and shooting civilians. The death of an ambulance nurse, who was attempting to aid a victim, and the injuries of a construction worker were attributed to the military. In the days following the crisis, human rights officials, such as the Human Rights Ombudsman’s Office and the Permanent Assembly of Human Rights, publicly denounced the events and alleged that the military used excessive force against unarmed civilians. Despite the overwhelming evidence, these allegations were immediately denied by then Minister of Defense, Freddy Teodovic, who stated that, "at no time did the armed forces resort to the cowardly resource of snipers" (La Razón 02/14/03). The armed forces’ lawyer prematurely concluded that members of these forces would be judged by the military tribunal, not the civilian justice system. (Los Tiempos 5/2/03).
On the one-year anniversary of the February events, Roberto Garretón, the United Nations delegate for Human Rights in Latin America and the Carribean, expressed concern that military prosecutors had not yet taken witness statements of those who were injured or of the relatives of those who lost their lives. "This goes against elemental procedures of investigation," said. Garretón. (Los Tiempos, 02/15/04). Paulo Bravo, president of the Human Rights Commission of the Legislative Chamber of Deputies accused the Attorney General, Oscar Crespo, of having significant responsibility for the veil of impunity covering the massacres of last February. "Impunity is defeating justice. Unfortunately, it is the Attorney General of the Republic who defends impunity and allows this to happen," asserted the legislator. (El Diario, 02/13/04).
Five days after the February 13 commemorative ceremonies, the Military Justice Tribunal announced the acquittal of the four soldiers who had been videotaped shooting into the crowd. The military prosecutor indicated that the physical evidence of the entry wounds supported the acquittal and countered evidence on the videotape. He also left unclear whether any more detailed investigation into the military’s actions would be forthcoming.
The acquittal prompted protests by the victims’ family members as well as human rights organizations, including the Permanent Assembly of Human Rights. Civilian prosecutors assigned to the case also expressed their concern and stated that the military should be processed in the civilian system. However, on the day of the ruling of the military tribunal the members of the District Superior Court denied the earlier requests of the government prosecutors and the Permanent Assembly of Human Rights to transfer the cases against the military to civil court.
In response to the tribunal’s ruling, Waldo Albarracín stated that "There is a mechanism of impunity in the justice system that was manipulated by the former government and remains in effect; this ruling is not only in favor of the military but also in favor of those who are involved in genocide and similar cases. It is impossible that any judge whose appointment was supported by politicians would rule against them." (La Razón, 2/17/04)
Sacha Llorenti, president of the Permanent Assembly of Human Rights indicated that the absolution of the four soldiers would result in the acceleration of the process of filing a claim in the Interamerican Court of Human Rights. The lawyer for the family of one of the victims warned that, without an adequate forum in Bolivia, a remedy would be sought in international tribunals.
Failure to address impunity sparks internal protest
While the bulk of the Bolivian public clearly supports prosecution for the events of February and October of 2003, legal proceedings remain at an impasse. In the wake of the military acquittals and the lack of prosecution of those involved, human rights activists and government officials have called for the resignation of the Attorney General, Oscar Crespo. Criticisms of the prosecutor intensified when the U.S. Department of State reported that judges and prosecutors were susceptible to bribes, and "corruption and inefficiency in the judicial system remained major problems." The Bolivian Congress, however, rejected appeals of the Human Rights Commission of the Legislative Chamber of Deputies for Crespo’s removal, citing a violation of the separation of powers. Some congressional representatives suggested that the appropriate manner of involving Congress would be through a "trial of responsibilities" in Congress against Crespo, which human rights organizations agreed to pursue. As Crespo’s term ends in early August, 2004, it is questionable whether any such trial would occur prior to the end of his term.
Human rights trials in military courts violate Bolivian law and international accords.
Since 2001, high-profile human rights cases have been transferred to the Bolivian military tribunal, although the Bolivian constitution and law do not authorize military jurisdiction in human rights cases. Article 48 of the criminal procedures code states that: "If there is doubt about the appropriate jurisdiction, as a result of concurrence or connection between special and civilian jurisdictions, the crimes should be addressed by the civilian jurisdiction." The Catholic Church, the Permanent Human Rights Assembly and the Human Rights Ombudsman’s office have repeatedly insisted that legal investigations be carried out within the civilian court system. However, military personnel have consistently refused to cooperate in investigations carried out by the attorney general’s representatives in the region, asserting that they are only answerable to internal military investigations. The military legal process does not provide for transparent court proceedings. None of the cases that have gone to military tribunals has resulted in a conviction.
Military tribunals are also inappropriate in the context of international laws to which Bolivia is a signatory. Amnesty International highlighted the impropriety of military jurisdiction in a letter addressed to the Minister of Government in October 2001:
Amnesty International considers that the practice of military jurisdiction in cases of human rights violations by members of the security forces generates a situation of impunity and denies the victims of human rights violations and their relatives the right to an effective legal solution. The United Nations Human Rights Committee and the Organization of American States’ Interamerican Human Rights Commission have repeatedly stated that trial by military tribunals of members of the armed forces accused of human rights violations is incompatible with the obligations that bind States in terms of international law.(AI Letter to Leopoldo Fernández, Minister of Government, 10/22/01).
In a December 22, 2003 letter to President Carlos Mesa, Human Rights Watch echoed these concerns:
Human Rights Watch opposes the use of military tribunals try those responsible for human rights abuses committed in the course of military operations, or outside them. We do not believe that military courts enjoy sufficient independence to render impartial verdicts in such cases, and we fear that the predictable result is impunity. Moreover, we note that in Bolivia there is no civilian court review of the verdicts of the military courts.
International human rights bodies have consistently called on states to transfer jurisdiction over human rights cases from military to civilian authorities. The U.N. Human Rights Committee, which monitors states’ compliance with the International Covenant on Civil and Political Rights, has repeatedly called on states parties to subject military personnel alleged to have committed human rights violations to civilian jurisdiction. The Inter-American Commission on Human Rights has found that "when the State permits investigations to be conducted by the entities with possible involvement, independence and impartiality are clearly compromised." The result is "de facto impunity," which has a corrosive effect on the rule of law and violates the principles of the American Convention on Human Rights, of which Bolivia is a State Party.
(HRWletter to President Carlos Mesa 12/ 22/ 04)
In spite of these legal norms, cases continue to be transferred, and customary rapid acquittals are used to impede trials in civilian courts, which they assert would result in double jeopardy.
U.S. critiques impunity in Bolivia; State Department fails to address it
On February 25, 2004, the U.S. Department of State issued its Country Reports on Human Rights Practice, and noted that various human rights agencies, both governmental and non-governmental, have continued to press the Government to "expedite action in the cases." The report also expressed concern about continuing impunity, noting that "The government’s delay in completing effective investigations and identifying and punishing those responsible for either civilian or security force deaths resulted in a perception of impunity." In the same report the U.S. Department of State concluded that "The military justice system generally was susceptible to senior-level influence and avoided rulings that would embarrass the military." Although the report acknowledges problems with the tribunal, and states that "Authorities recognized conflicts over military and civilian jurisdiction in certain cases involving human rights" the reports presents the tribunal’s findings as valid and embassy officials continue to sustain that military trials in human rights cases are appropriate.
Ironically, although the report acknowledged a lack of progress in all major cases, and especially those in the Chapare coca growing region, the State Department has yet to invoke the Leahy Amendment, which provides the U.S. the means to ensure that U.S. funds do not go to security forces that commit gross human rights violations. It requires that these abuses be investigated and the responsible parties face prosecution. To strengthen this legislation, in January 2004 the U.S. Congress approved language in the foreign operations bill that makes respect for human rights and military and police forces’ participation in legal investigations a prerequisite for the disbursement of U.S. funds to these units:
Provided further, That funds appropriated under this heading that are available for assistance for the Bolivian military and police should be made available for such purposes subject to a determination by the Secretary of State, and a report to the Committees on Appropriations, that the Bolivian military and police are respecting human rights and cooperating with investigations and prosecutions of alleged violations of human rights.
The conference managers note that,
(D)espite repeated assurances by successive Bolivian governments that human rights cases would be properly investigated and the individuals responsible appropriately punished, little has been done and impunity remains the norm for members of Bolivian security forces who commit violations. The managers urge the Secretary to give higher priority to these justice issues."
Despite U.S. criticism of the impasse in any prosecution for civilians killed and injured by the security forces, U.S. funding to units implicated in gross human rights violations remains unaffected. It is crucial that the U.S. State Department implement the Leahy Amendment and the language included in the 2004 Foreign Operations Bill, and demand the investigation and prosecution of human rights violations and the active participation of police and military in these processes as a condition for continued U.S. funding.
Continued impunity further exacerbates tensions throughout the nation and impedes lasting peaceful solutions to recurring conflicts. As diverse social sectors threaten to renew protests and strikes, clear accountability for security forces is essential to avoid further injury and loss of life and to maintain the legitimacy of the Mesa administration.