Bolivian Constitutional Court Rules that Soldiers Must Be Tried in Civilian Courts—Armed Forces Re

Bolivian president Carlos Mesa is currently in the midst of the most acute crisis since he assumed the presidency in October of 2003.  In his inaugural speech Mesa promised full investigations and sanctions for those responsible for atrocities during the 2003 conflicts, lack of progress on this front has provoked criticism from national and international human rights monitors.  This criticism escalated this past February after a military court quickly acquitted four soldiers alleged to have shot at unarmed civilians during public protests in February 2003 in La Paz, despite evidence against the accused.  The protests were in response to tax mandates outlined by former president Gonzalo Sánchez de Lozada, who resigned under pressure last October after several months of intermittent but increasingly violent political conflicts.  The case, initially filed in the civilian justice system, was inappropriately transferred to a military tribunal despite objections by the public prosecutors assigned to the case and the families of the victims. Military trial for human rights cases are closed proceedings that to date have always resulted in a rapid acquittal. Furthermore, they violate the dictates of Bolivia law and international agreements signed by Bolivia.

Constitutional Court Mandates Civilian Trial for Accused Soldiers

In a dramatic turn of events, Bolivia’s highest court, the Constitutional Tribunal, ruled on May 5 and 6 that the four soldiers must face prosecution in the civilian justice system.  The ruling of the Constitutional Tribunal is equivalent to a ruling by the U.S. Supreme Court and is not subject to appeal.   The decision, based on a careful revision of Bolivian legal norms, provoked the outrage of the armed forces, which began to make veiled threats and challenge the decision.  Traditional party politicians expressed support for the military and, threatened to impeach tribunal members.  The Bolivian Senate met on May 12 and passed an emergency law, if approved by the full Congress, which would grant the military a blank check to try its own member for any offense they see fit.
Thirty-one persons died in violent protests against the government of February 2003.  Those deaths included a nurse, at the scene to aid a victim, and a construction worker.  Video footage, combined with witness testimony, provided credible evidence that the soldiers fired into the area where these deaths occurred.  The four soldiers implicated in the video footage were initially indicted in the civilian justice system.  Public prosecutors repeated denounced that the military was wholly uncooperative in the case and all members of the armed forces have refused to testify and have denied access to evidence. 

The Bolivian military filed objections to the jurisdiction of the civilian court, arguing that the military has exclusive jurisdiction to try and render judgment against its own members.  A lower court agreed with this argument, and ruled that the case against the military should be tried before a military tribunal.  That ruling was appealed by the nurse’s family and civilian court prosecutors, but in the interim the military court purportedly investigated and tried the case.  Despite evidence, the four soldiers were rapidly acquitted. 

At issue was the interpretation of constitutional articles that permit the military to have their own laws and norms stipulating that constitutional offenses must be tried in civilian courts that authorizes prosecution in military court for military matters.  The Constitutional Tribunal, in overturning the lower court’s decision, indicated that allegations of violations of protected constitutional rights must be tried in civilian court, and stated that the armed forces are obligated to respect human rights and act within constitutional limits.  The court went on to explain that international law sustains that "a military penal system has aspects that impedes access to an effective and impartial judicial remedy, including the impossibility that such a system be subject to the judicial system, since they are instead subject to the executive branch, and the other being that military judges, as members of the military, are placed in a position where they must render judgment on their companions of arms, rendering illusory the natural requisite of impartiality." (Constitutional Tribunal Sentence 0664/2004-2 5/6/04).

Shortly after the ruling was announced one civilian prosecutor assigned to the case declared that the court’s ruling "opens a chapter within our judicial history because it allows the civilian justice system to judge persons that have been protected by a bias of impunity."  (Los Tiempos, 5/8/04).  Prosecutors investigating the February killings and the 58 deaths in September and October of 2003 stated that they would continue prosecutions.  Representatives of human rights organizations also lauded the court’s decision.  The president of the Permanent Human Rights Assembly Sacha Llorenti, declared that the ruling constituted an "historic precedent" in the battle against impunity; that opinion was echoed by Waldo Albarracín, Human Rights Ombudsman. (La Prensa, 5/8/04)  Albarracín further explained that the decision was not a conviction, merely an order that the soldiers stand trial and that all Bolivian citizens, military or civilian, are subject to the same laws.

Military Violates its Constitutional Role, Rejects Ruling and Threatens Insubordination

The military responded to the high court’s ruling by immediately ordering its forces confined to barracks for a 12-hour period.  Shortly thereafter military leaders arrived at a meeting dressed in battle fatigues, and later met with the media to denounce the court’s decision and declare their refusal to abide by the ruling.  The commander of the Armed Forces launched a series of veiled threats. He stated that the ruling was a "grave historic error" and warned the members of the judiciary of the "gravity of the consequences" that could leave the country "unarmed" in social conflicts.  (Los Tiempos, 5/9/04).

Initially Legislators from four major political parties denounced statements by the military as implicit threats, and asked the military to protect democracy. (La Razón, May 9).  The Catholic Church voiced similar concerns as Cardinal Julio Terrazas issued a warning to the military that the "rattling of weapons" could destroy Bolivia and did not promote the military’s obligation to protect the Bolivian public. (La Prensa, May 10).  On May 10, President Mesa, in his role as Supreme Commander of the Armed Forces, asked military leaders to be loyal to constitutional authority and the Constitution.  A military leader responded that loyalties should be reciprocal, or "loyalty from the top down and from the bottom up."  (Los Tiempos, 5/11/04).  The military affirmed their respect for democracy, but warned President Mesa that it would, in the future be difficult to demand obedience from its subordinates.   (La Razón, 5/11/04).  Pressure from the military continued to increase throughout the week as the military in essence demanded guarantees that they would not be prosecuted in future conflicts– referred to by one human rights monitor as "a blank check for impunity."   One high ranking commander told the press, "If they ignore the military justice code, we will not comply with orders during a social conflict or war, because they will treat us as criminals and assassins." (Los Tiempos, 05/13/04)

On that same day, Evo Morales, head of the Socialist Movement Party (MAS), interpreted the military’s statements as an "act of sedition" and asked military loyalists and the international community to uphold democracy.  (Los Tiempos, 5/11/04).    The armed forces justify their right to try their own personnel by citing article 209 of the Constitution that states:

The organization of the Armed Forces is based on its hierarchy and discipline. It is essentially founded on obedience, is not a deliberative body, and is subject to military laws and regulations. As an institutional organization it does not carry out political action, although individually its members enjoy and exercise all the citizen rights as established by law.

Ironically the institution’s rejection constitutional tribunal’s ruling and strong political statements violate the requirement for obedience and the prohibition of political action stipulated in the clause.  Their rejection of the constitutional ruling and rejection of the court as a valid legal body fits within the definition of sedition in the military criminal procedures code which stipulates a two to ten year peacetime prison term for "personnel who oppose laws, orders from superiors…. or compliance with rulings." (Bolivian Military Penal Code, Article 74)
Simultaneously, military officials announced their intent to seek legal recourse to the court’s ruling.  However, legal analysts agree that the decision of the Constitutional Tribunal, equivalent to a ruling by the U.S. Supreme Court, cannot be appealed.

Traditional Parties in the Bolivian Senate Attempt to Guarantee Impunity and Approve Immunity for U.S. Citizens

Then, on May 11, the president of the Chamber of Deputies and member of the National Revolutionary Movement (MNR), Oscar Arrien, suggested that the president avert a constitutional crisis by using his presidential authority to grant amnesty to the four soldiers, or by examining the possibility of interpretive law of the constitutional article in question, that would allow for an interpretation different than that decided upon by the Constitutional Tribunal. (Los Tiempos, 5/12/05). Political analysts observed that ex-coalition party opposition to the ruling is more a bid for support from the armed forces for their own political agendas than support for the institution.  In addition, these politicians fear that a potential conviction of soldiers in civilian courts could accelerate and exacerbate the pending legal investigation and trial of ex-president Sánchez de Lozada and other high-ranking officials from these parties.

On May 12, the Bolivian Senate, after a meeting with some of their leadership and President Mesa, passed an interpretive law that broadens the military jurisdiction in cases where military personnel are charged with criminal offenses, i.e., offenses that violate constitutional rights.  Notably, the Senate’s move took place with little debate and in the absence of members of MAS, who have been the most vocal supporters of the recent Constitutional Court decision.  Coincidentally, the Senate, at the same time and with less than 2 minutes of debate, passed the approval of a treaty with the United States that would provide immunity to U.S. citizens and military personnel from prosecution in the International Criminal Court for crimes against humanity and other offenses.  This treaty, which has been the subject of intense debate and vocal opposition by MAS, other parties and diverse social sectors, was also passed in the absence of MAS representation.

Rejection of the Senate’s two decisions, after over a year of legislative stalemate produced heated responses from social sectors and opposition parties. MAS Party leader Evo Morales stated that he did not support the two pieces of legislation and withdrew his support for Mesa. He stated further that protests against the two laws passed in the Senate could spread to the streets and coca growing regions. Other opposition leaders echoed similar sentiments.  Marches and limited road blockades occurred on May 14, in different regions

International Support for Constitutional Tribunal Ruling

Prior to the passage of the interpretive law, Human Rights Watch (HRW) issued a statement (see attachment) that supported the ruling of the Constitutional Tribunal. In that statement, HRW noted that "It is high time for the Bolivian army to recognize that its members will be held accountable if they commit abuses."  In that same statement HRW noted the following:

The U.N. Human Rights Committee has repeatedly called on countries to subject military personnel implicated in human rights violations to civilian court jurisdiction. The Inter-American Commission on Human Rights has also found that independence and impartiality are clearly compromised when countries permit investigations to be conducted by the same institutions that may be responsible for the crimes. The "de facto impunity," that results from such investigations has a corrosive effect on the rule of law and violates the principles of the American Convention on Human Rights, the commission has stated.

U.S. State Department Report Presents Misleading Information to Congress

Legislation such as the Leahy Amendment and special language included in the 2004 Foreign Operations Bill make 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.  In spite of well-publicized efforts by the military to impede civilian investigations (which have increased exponentially as prosecutors reveal ballistic evidence and testimony implicating them in human rights violations) the U.S. State Department in an April 22 report to the U.S. Congress claimed that the armed forces were cooperating fully with investigations. In addition to this blatant misrepresentation, the report provides misleading information about Bolivian laws mandating civilian jurisdiction and OAS recommendations. In essence, the report reinforces the impunity enjoyed by the Bolivian armed forces in spite of credible evidence of their participation in gross human rights violations.  The skewed information in the report follows the disturbing pattern set by US Embassy and State Department officials who have consistently refused to implement the Leahy Amendment in Bolivia.

  In addition, Bolivia was recently named as one of sixteen countries eligible for funds from the U.S. as part of the "Millennium Challenge," a sustainable development program.  Eligibility is determined in part on proof of the promotion of civil liberties and the rule of law, respect for human rights and the transparency and accountability of government.

Ongoing efforts of the armed forces and traditional parties implicated in violations to maintain a state of impunity for human rights abuses by the Bolivian military can be significantly mitigated by international pressure.  The U.S. is in a unique position to exert such pressure, and, in fact, is legislatively mandated to do so for the security forces it funds and trains.  Bolivia is at a critical juncture when its current president has seemingly made substantial gains in dealing with a myriad of political and economic issues.  However, a decision to negate a ruling of Bolivia’s highest court, which allows for transparent proceedings in the civilian justice system in allegations of human rights abuses by military forces, will serve only to aggravate social conflict and implicitly sanction continued abuses. The simultaneous approval by Bolivian Senate of freedom from legal consequences for both U.S. citizens and military personnel has led to accusations of U.S. interference in both areas.

 It is critical that the U.S. State Department implement the Leahy Amendment and requirements that security forces cooperate in legal investigations and support the ruling of the Constitutional Tribunal that would allow for the open and fair investigation and prosecution of the human rights violations, as mandated by Bolivian and international law.