Military Trials in Human Rights Cases: Illegal and Reinforce Impunity

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."  In spite of repeated Supreme Court and other legal rulings, 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.  Furthermore, none of the cases that have gone to military tribunals has resulted in a conviction.  Using the military tribunal for human rights cases is illegal due to the lack of third party monitoring, but this process is used to give officers quick acquittals and ensure impunity.   

Updates on Human Rights Cases

Case: February 2003

On February 12 and 13, public protests and a police strike in La Paz resulted in violence that left 31 people dead and over 200 injured.  There has been no further military cooperation or progress in the investigation. One prosecutor assigned to the case called it “the greatest embarrassment in the history of Bolivian justice system."¹

Case: October 2003

In September and October of 2003, during the “Gas War” that led to the resignation of President Sánchez de Lozada, security forces killed 60 civilians, 95 percent of whom died of gunshot wounds.  According to ballistics tests carried out by the Attorney General’s office, high-caliber munitions used exclusively by the armed forces caused most of the civilian deaths.  Two security force members were also killed, and more than 400 other people were injured.

Four military commanders were indicted in December 2005.  High level commanders and other military personnel have provided some testimony and limited information, but they have also repeatedly filed legal recourses and appeals to stall the case.  There has been nominal, but not genuine cooperation with the investigation.

 On August 9, 2006 the Bolivian Armed Forces said they would respect a Supreme Court ruling that two ex-Commanders can be tried in the civilian court system as part of the "trial of responsibilities" without congressional approval.  They are being charged with homicide, negligence, and genocide² According to the lead prosecutor on the case, as a result of this decision only six military officers have testified and they have provided some reports “which were of no use at all, and denied having other documentation such as mission diaries that they are required by military regulations to keep.”³ In August 2006 the commander of the armed forces ordered his subordinates to testify, yet there has only been limited cooperation. 

Case: Juan Choque and Genaro Canaviri

Juan Choque was shot in the head by a member of the Joint Task Force and Genaro Canaviri died from a bullet wound sustained during a confrontation between the Joint Task Force and coca growers in the Bustillo community in the Chapare on September 28, 2004. 

Case: Carlos Coro Mayta

Carlos Coro Mayta, a miner, was shot in the back on June 9, 2005 during confrontations outside Sucre. The circumstances of his death are still unclear.  During 2005, the armed forces repeatedly refused to provide information or testify in the case.  On November 29, 2005 the Chuquisaca Supreme court ruled that the Armed Forces had the obligation to testify and provide documentation.  State prosecutors affirm that here has been no military participation in the investigation since the ruling.

Case: Oruro Squatters

On June 9, 2006, the Bolivian National Police and the 8^th Cavalry Braun Regiment of the Bolivian Army forcibly evicted squatters from the Papel Pampa settlement outside Oruro (and three other communities).  The Bolivian Minister of Government, the MAS party Prefect of Oruro Department and the National Police Commander reportedly authorized the mission.  The combined military-police group tear-gassed the settlement at approximately 6 am.  Off duty police officer and squatter Santiago Orocondo was shot from the back in the left hip and died soon after from blood loss.  Another man was shot in the hand which later had to be amputated. 

The subcommander of the Braun Regiment provided initial testimony that the Armed Forces did have firearms, although Morales administration officials denied this claim.  Since that initial testimony, the Armed Forces have refused to provide further testimony or cooperation in the investigation carried out by the Oruro District Attorney's office.  Morales administration officials categorically deny any responsibility of the security forces in this incident and blame the squatters.  On August 25, 2006, Defense Minister Walker San Miguel told the press that officers would testify, but has not responded to prosecutors repeated requests.⁴

Case: Vandiola Yungas

On September 29, 2006 a confrontation occurred between the Joint Eradication Task Force, a combined military and police unit in charge of eradication.  The Joint Task Force shot and killed two coca growers. Two soldiers and one coca grower also suffered bullet wounds.  Although the police involved in the incident have provided testimony, members of the armed forces have not done so.  During this heated conflict, coca growers and the Joint Task force both took hostages.⁵The large “cache of weapons” in the possession of coca growers, cited in the memorandum, actually belonged to the members of the Joint Task Force.  The coca grower withheld the arms and returned them to the armed forces upon the release of their Joint Task Force hostages.  Police testimony states that coca growers did not carry guns.

Case: Villamontes

On April 17, 2007, members of the Villamontes community marched to a natural gas processing plant to pressure authorities to shut off production during a dispute over provincial borders.  Members of the Third Army division fired tear gas, rubber pellets and live ammunition into the crowd. Protestor Erman Ruiz Terrazas was shot in the thigh and died soon afterward.  The case has been opened in the military justice tribunal^,6 in spite of legal stipulations requiring that human rights cases be tried in civilian courts. On April 30, 2007, the general in charge of the military tribunal sent a letter to the civilian prosecutor, requesting all case documentation, citing that he had a presidential order to initiate military proceedings.

Case: Arani

Date: September 28, 2007

On September 27, approximately 2,000 students and parents blocked the road in the town of Arani and shut off a gas pipeline, demanding that a teacher’s school be transferred to Arani.  The police and military response to the protest left Osmar Flores dead and 14 people injured – two with bullet wounds.

The autopsy revealed that Flores died from a high caliber bullet shot into the nape of his neck from a distance of approximately 50 yards.  Two other students received bullet wounds, one in the face, and another who had to have a portion of his lung removed.

The military launched its own parallel investigation, and has resisted participating in the civilian investigation.

• Military commanders subpoenaed by civilian prosecutors responded that they did not have authorization to testify, and that the district attorney’s office had to officially request information from the Minister of Defense.  One prosecutor informed AIN that the minister’s office stated they were “too busy” to respond to their request, although they have a legal obligation to do so.
• Contrary to usual practice, the armed forces remained at the scene of the incident for four full days after the end of the conflict. Civilian prosecutors stated that they found two bullet holes in adobe houses at the scene of the shooting that had been filled in with mud and straw, suggesting that the members of the armed forces had attempted to hide them.
• The Commander of the Seventh Army Division told the press that he could not provide information about the incident because he was not present at the confrontation due to “a blister on his foot” that day.

•  The armed forces were present for a re-enactment, but have provided no testimony.

 
Misleading US Department of State Report Downplays Human Rights Violations by Bolivian Security Forces

Beginning in 2001 a coalition of Latin American advocacy organizations, in conjunction with concerned US legislators pressed for conditioning on US funding to security forces that violate human rights and impede human rights investigations. Since 2004, the US Congress has passed consecutive foreign aid appropriations legislation that conditioned the availability of US funds for the Bolivian military and police on a determination by the Secretary of State that these forces “are respecting human rights and cooperating with investigations and prosecutions of alleged violations of human rights."⁷ A determination that the Bolivian security forces have not complied with these requirements resulted in the partial suspension of 2006 and 2007 Andean Counterdrug Initiative funding for the Bolivian military. 

Each year, except in 2005, the US Congress required the Secretary of State to submit a report to substantiate the determination⁸. In spite of these requirements and a partial freeze on ACI funding as a result of its misleading 2004 report, the State Department did not present another determination until December 6, 2006.  After significant pressure from AIN and other advocacy groups, the State Department improved this track record, presenting the 2008 report on March 4.  The US embassy hired a special human rights officer to follow cases and prepare reports.  However, despite the additional efforts, the 2008 report again makes patently false claims and misleading assertions of the Bolivian military’s respect for human rights and participation in civilian trials. 

• Although the memo asserts the contrary, the Bolivian security forces have been implicated in further human rights violations, such as those mentioned above, and have not cooperated with investigations and prosecutions of alleged violations of human rights in the civilian courts.

• No member of the Bolivian security forces has ever received serious legal consequences for human rights violations committed during civilian protests and violations of this nature continue to occur.

Misleading Statements in the DOS March 2008 Certification Memo (in italics) and AIN’s Responses to those Statements:

The 2008 certification memorandum contains many misleading statements that celebrate progress of human rights jurisdiction, without providing any substantiating evidence.

“Since the last certification in December 2006 the Bolivian military has respected human rights and cooperated with civilian judicial authorities.”  

• Between the 2006 certification memorandum and the submission of the 2007 certification memorandum, the Bolivian military was credibly implicated in the deaths of two civilians in two different incidents.

“The vast majority of the cases are being investigated, albeit slowly with the military’s cooperation.

• In several others cases they refused to cooperate and actively blocked investigation. The military has not cooperated with civilian investigations and prosecutions of violations of human rights civilian authorities, except for one case of initial testimony and only superficial compliance in the October 2003 case.

Military Human Rights Training Has Limited Impact

The report also provides manipulated information about the good will of the armed forces:

“Overall, incidents of human rights violations have decreased significantly in recent years, which is a reflection of positive steps by the Bolivian military."

• In November 2007, a US Embassy official agreed with AIN’s assertion that the improvement in human rights conditions is primarily a direct result of the Bolivian executive branch’s agreement to end military forced coca eradication in the region starting in October 2004.

The report states that a USAID-funded initiative, the Integrated Justice Center, credits “consciousness-raising campaigns” targeting security forces as reducing the amount of human rights violations in the Chapare coca-growing regions in recent years.

The 2008 memorandum cites human rights training and awareness initiatives within the armed forces which are indeed important.  The authors’ assertion that “it is difficult to prove a direct correlation between the decrease in human rights abuse cases and the increase in human rights seminars,” is correct.  Furthermore these training initiatives have occurred in varying degrees since 2000, with little improvement in the armed forces’ participation in civilian human rights investigations.

“Evidence for the military’s respect for civilians’ human rights may be found in the restraint shown during the unrest in November 2007 in Sucre.

• During this conflict, the military remained on base and guarded the perimeter.  They did not directly intervene in protests in downtown Sucre where confrontations led to the death of three protesters. 

Blaming the Judicial System

“This slow progress is due primarily to a broken civilian judicial system rather than failure on the part of the military to cooperate with investigations. In many cases, military involvement has not been definitively established due to protracted or faulty investigations.”

• Continued military refusal to provide testimony, the opening of parallel investigations in military tribunals in violation of military law and refusal to respond to subpoenas have continued to characterize human rights investigations.   Military impediments to investigations have stalled investigations.  
• Under the Morales administration, commanders affirm that the Defense Minister should respond to requests for information, although there is no legal stipulation for this process. As a result prosecutors with limited budgets must fund repeated trips to La Paz, only to find military officers refuse to be subpoenaed.  The military claims it cannot be subpoenaed, although according to the civilian judicial system, it can.  As a result, a Morales appointee has the capacity, but no legal mandate to directly block civilian prosecutors’ access to information.
• As cited in the memo, some cases do not progress and prosecutors change repeatedly.  These stalled hearing are not a result of incompetence, but reflect the heightened level of pressure which prosecutors face in high profile cases.  Adding to this pressure, prosecutors have received threats of violence and death.

Armed Forces Disobey Court Order to End Military Confidentiality

 “The military has shown a desire to work with civilian courts through cooperation and by lifting its “secreto militar.”

• As the memo acknowledges elsewhere, a Supreme Court ruling and other judicial decisions legally obligated the armed forces to end military confidentiality. The armed forces energetically protested this decision, and, in every case except October 2003, have refused to comply.

 Conclusion

 The memorandum concludes:

“It remains essential for the United States to continue engaging Bolivia, and particularly the Bolivian Military, to improve overall respect for human rights and cooperation in investigating and prosecuting human rights cases by civilian authorities.” 

• Yet, “highest level assurances” from Bolivian government and military personnel to US officials have not translated into armed forces cooperation with the stipulations of Bolivian and international law. It is crucial that the state department provides accurate information to Congress about Bolivia’s level of compliance with human rights requirements and continued engagement must emphasize the importance of military cooperation in human rights investigations

Although the government of Bolivian President Evo Morales, who assumed office in January 2006, has expressed a commitment to respect human rights, sporadic cycles of violence and deaths of citizens at the hands of the Bolivian security forces have continued.  Members of the armed forces still evade participation in civilian court investigations and no member of these forces has faced serious legal consequences for the death of a civilian during protests or confrontations.  In spite of heated rhetoric and friction, continued US assistance and open relations with Bolivia remain important elements. As a result, certification requirements in the Foreign Operations Bill should be taken seriously by the State Department, and information provided to Congress, especially in internal US government documents like the Memorandum of Justification should be straightforward and accurate.

The retention of counterdrug funding to the military ended in May 2008, in spite of the continued failure of the armed forces to cooperate in investigations of human rights abuses. Congress released the funding, not because of evidence of military compliance with funding conditions in the Foreign Operations law, but because it is not convinced that withholding the money has made any significant changes to human rights practices.  This statement is accurate, as the Bolivian military continues to impede civilian persecution of human rights trials.  Yet, lifting the partial suspension of military funding is misinterpreted within Bolivia as evidence that the armed forces comply with human rights norms and investigations.  The rhetoric supplied by the U.S. State Department regarding human rights training does little to actively enforce human rights laws.  Diverse training and educational initiatives, in the absence of clear legal consequences for perpetrators of human rights violations has demonstrated little improvement in the respect for human rights standards by the Bolivian military. While the scale of human rights violations has lessened since 2003, in the current climate of uncertainty it remains essential to address impunity to help prevent further violations. As a result, the United States needs to enforce human rights conditions on its funding to the Bolivian security forces.