Part One: 
Ex President Sánchez de Lozada and Others Avoid Prosecution in the United States

Over two years have passed since Bolivian security forces killed 59 and left over 200 people seriously injured during widespread demonstrations protesting the management of Bolivia’s gas reserves in September and October of 2003. As with other social conflicts in Bolivia, there have not been legal consequences for the human rights violations committed during the "Gas War." By the time President Gonzalo Sánchez de Lozada resigned, the armed forces and police had killed almost as many people during his fourteen-month presidency as during seven years of the Banzer dictatorship, considered one of Bolivia’s bloodiest military governments since the 1952 revolution.  The military’s systematic refusal to cooperate in a meaningful way with investigations – although ordered to do so by the Bolivian Supreme court – and the delay of the U.S. government to deliver subpoenas to Sánchez de Lozada and two former cabinet ministers living in the U.S. have impeded attempts to seek justice for the victims and stem future human rights violations in a politically tenuous climate.

In a country where no member of the armed forces, or the political leaders that command them, have faced serious legal consequences for human rights violations, meaningful investigation into the violence that occurred in September and October 2003 could set an important precedent, and help prevent further violations. To that end, the Bolivian Congress authorized a "Trial of Responsibility" in 2004 to determine the whether Sánchez de Lozada and eleven cabinet members are legally responsible for these deaths. The Attorney General’s office has carried out detailed preliminary investigations – including forensic studies, crime scene investigations and the collection of eyewitness testimony – which all point to the excessive use of force against protestors on the part of the armed forces under Sánchez de Lozada’s command.

As part of the initial investigative phase of the trial, accused ministers who had returned to the legislature lost their Congressional immunity in order to face the charges against them.(1) Nine of Sánchez de Lozada’s former cabinet ministers were indicted in May 2005. The most serious charge against them is "genocide in the form of bloody massacre," punishable by ten to twenty years in prison. Though in English this terminology seems nonsensical, anyone directly or indirectly responsible for a massacre (which Bolivian law defines as the death of two or more people resulting from violence perpetrated by one or more individuals) is charged with "genocide" under Article 138 of Bolivia’s Penal Code, which levies additional penalties against government officials found responsible for such crimes.

 U.S. Government delay provokes critiques and heightens tensions within Bolivia

The Bolivian Supreme Court, Congress, and two presidential administrations have authorized the Trial of Responsibility.(2)  However, the difficulty in serving legal papers notifying Sánchez de Lozada, his Defense Minister, and his Energy Minister living in the US, of their legal obligation to return to Bolivia to testify has impeded progress in the case.

Sánchez de Lozada and his ministers have been widely discredited within Bolivia to the extent that their MNR party has chosen to run an unknown as its presidential candidate to avoid the stigma of the October violence.  Unfortunately, in the U.S. Sánchez de Lozada has been able to consistently present himself as a dignified democratically elected statesman who was a victim of subversive forces, participating frequently in public events and even publishing an editorial in the Washington Post.  The gross misrepresentation of the social protest in September and October of 2003 reflects both Sánchez de Lozada’s continuing high-level political connections and a fundamental misunderstanding within the U.S. of the deep-rooted causes of internal discontent and the gravity of human rights violations perpetrated by the Bolivian security forces.

On June 22, 2005, in an effort to notify the three ex-officials living in the United States of the charges against them and give them the opportunity to testify in their defense, the Bolivian government sent a letters rogatory to the U.S. State Department, a formal request to serve a Bolivian subpoena to the three ex-officials. Letters rogatory is a complicated mechanism for serving legal documents to individuals residing in other countries that can take as long as six months to a year. Over five months have passed, and the U.S. government has yet to deliver the documents, a delay perceived in Bolivia as a willful attempt on the part of U.S. authorities to impede the process. President Eduardo Rodriguez sent a note to the U.S. State Department requesting that they serve the subpoenas in a timely manner. Indictments cannot be issued against the three men until they have received these documents.

In an effort to bring to light Sanchez de Lozada’s central role in the 2003 killings and demonstrate that he can be easily located to be subpoenaed, in October 2005 a group of US citizens symbolically served him with the document and the list of victims at a public event in Washington, organized by Princeton University. The formal notification, though, continues in the US Department of Justice with little indication of progress.

Legal Notification is the Next Step in a Complicated Process

Letters rogatory is not an extradition request and, as a result, does not include an enforcement mechanism to oblige the U.S. to turn over Sánchez de Lozada and his ministers to Bolivian authorities. If they decide not to return once they have formally received the documents, investigation into the charges against them can continue in their absence.  They can be indicted, provided there is sufficient evidence against them.  However, they must be present to proceed with the trial itself. Bolivia could request extradition from the United States after the three men are formally charged.  District attorney, Milton Mendoza, wants to avoid any procedural errors when requesting extradition, however: "We don’t want to give him [Sánchez de Lozada] reasons to question the process" and "claim that is he being politically persecuted." (Los Tiempos, Oct. 18, 2005)

The case against the remaining ministers could continue even if the process against those in the U.S. does not progress. As the two highest-ranking civilian officials in charge of the armed forces, Sánchez de Lozada and ex-Minister of Defense Carlos Sánchez Berzaín would be considered responsible for ordering the use of force against protesters. If they continue to evade participation, the Trial of Responsibility runs the risk of languishing indefinitely in the overloaded Bolivian court system, like the great majority of human rights cases in the country. 

Conclusion

In this pre-electoral period, the nation’s future remains uncertain, and renewed political and social conflict appears almost inevitable.  Within this tense climate, legal consequences for those who have directly committed or authorized human rights violations would go along way to avoid further loss of life and an escalation of any future confrontations.  In the past, US interference in Bolivian politics, and lack of enforcement of U.S. legislation designed to fight impunity by restricting U.S. aid to security forces that do not face appropriate legal consequences for gross human rights violations (as stipulated by the Leahy amendment) has helped generate political instability.  Delays in the serving of subpoenas to Sánchez de Lozada and others residing the US, as a result of bureaucratic red tape or a lack of political will could continue this trend.  The timely delivery of the letters rogatory, a routine reciprocal legal procedure regulated by international treaties, does not oblige the US to take further actions or a political stance in the Trial of Responsibility. As a result, political fallout would be negligible.  In contrast, the decision to not subpoena Sánchez de Lozada and others or a protracted delay in this already extended process could exacerbate tensions within the nation and contribute to the political instability that the US government fears.

– – – – – – –

(1) Charges include against the nine ministers include:

·        Genocide in the form of bloody massacre 
·        Homicide
·        Injury leading to death
·        Torture and degrading treatment
·        Unlawful detention
·        Violation of rights and liberties
·        Unlawful entry
·        Searches without warrant
·        Issuing resolutions that violate the Constitution and Bolivian laws
·        Limiting freedom of the press
·        Causing serious and minor injuries

(2) Trial of Responsibility: The Process

Investigative phase
The Attorney General has six months from the time he issues indictments to investigate the case, and finalize the charges against the accused.

▼

Presentation
The Attorney General then presents the indictments and evidence to the criminal section of the Supreme Court, which will decide if there is enough evidence to go to trial, or if the charges will be dismissed.

▼

Trial
If the indictments are valid, the Court will begin the Trial of Responsibility, as authorized by Congress.