On August 19, defendants in the Black October case – five former military commanders and two ex-ministers –  began their closing arguments.  Oral testimonies closed on August 24th. Judicial officials expect to conclude the trial in the coming week. This landmark case represents an important turning point for the Bolivia’s human rights record as the first civilian trial of military officials accused of human rights violations to reach a conclusion.  Although many Gonzalo Sánchez de Lozada supporters dismiss the case as a politically motivated attack, the charges have been well-documented victims’ claims are legitimate:  in reality “Black October” was a violent military action that killed sixty-seven civilians and injured hundreds.  Convictions would bring justice to victims and their families after eight years of uncertainty.  International organizations, including Amnesty International and Human Rights Watch, denounced the 2003 violence and supported a civilian investigation and trial of those responsible.

Remembering Black October

During widespread popular protest that gained momentum from mid-September to mid-October 2003, the Sanchez de Lozada administration refused to engage in dialogue with most of the protesting sectors or otherwise address their concerns. Although social unrest increased daily, legislators continued to bicker over party control of appointments. In response to government inaction, more and more Bolivians took to the streets in protest.

In October 2003, thousands of protestors in El Alto opposed plans for natural gas exportation through Chile.  In early October 2003, the administration resorted to heavy repression in lieu of dialogue. Within one month of the initiation of the recent round of protests, security forces killed at least sixty-seven citizens, and injured several hundred, the great majority from bullet wounds from military issue weapons.  In fact, the armed forces and police killed almost as many people during the fourteen-month Sánchez de Lozada presidency as during the seven years of General Banzer’s dictatorship, considered one of the bloodiest of Bolivia’s military governments since the 1952 revolution.

Sánchez de Lozada resigns, US grants asylum

Actors across the political spectrum called for the president’s resignation, including high-ranking government officials. Carlos Mesa, Sánchez de Lozada’s hand-picked vice president, withdrew his support for the president shortly after the civilian deaths in El Alto, publically stating, “If the government does not have the capacity to understand [the concept of] unconditioned dialogue, it will not be able to be a valid arbiter in the process to address popular demands.….I will not tolerate death as a response to popular protest.”[i]

• Initially, Sánchez de Lozada refused to resign, stating that Peru’s Shining Path guerrillas and Colombian insurgent groups allegedly trained the coca growers and financed the protests. He also suggested that nongovernmental organizations and the Libyan government could be involved.  These statements provoked even more popular anger, as the president refused to recognize the validity of protesters’ concerns and seemed to be out of touch with reality.

• In the wake of corruption scandals and his own cabinet calling for his resignation, Sánchez de Lozada resigned on October 17.

• On October 23, the European Parliament voted to reject asylum for Sánchez de Lozada and other officials and asked that they be held responsible for the repression and deaths in the Gas War.

• Sánchez de Lozada, Defense Minister, Carlos Sánchez Berzain, and others fled to the United States.  The US Government granted Sánchez Berzain, , asylum.  Both men have been living in the US.  In addition, all but two of Sánchez de Lozada’s former ministers subsequently left Bolivia to avoid prosecution.  Bolivian law forbids trial in absentia, so the US and other countries would have to extradite all other former officials in order for them to appear in court.

Trial authorized by Bolivian congress in accordance with Bolivian law

Sánchez de Lozada supporters frequently hold up investigations against former Bolivian presidents as evidence of a supposed Morales political vendetta.  However, demands for trials of responsibilities affect all political actors.  For example, President Morales also under investigation in connection to “Black October” and two other cases.   There have been no credible reports of government meddling to thwart these ongoing legal proceedings.  There is, however, direct testimony from a legal investigator in the Sánchez de Lozada case that prosecutors had received threats and pressure to drop the case.

The Bolivian Congress authorized the case against former president long before Morales’ election.  During Carlos Mesa’s presidency, congress reached majority consensus (2/3) to try the ex-president, even though the majority of Congress belonged to Lozada’s party and allies.  Thus, the decision to proceed with the trial came from his own political coalition – not from the MAS party – which had about 20 percent of the congressional seats at the time.

Black October trial important precedent against impunity

The military’s systematic refusal to meaningfully cooperate with investigations – although ordered to do so by the Bolivian Supreme court – and lack of U.S. government to an extradition request filed for Sánchez de Lozada and two former cabinet ministers 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 September and October 2003 deaths. The Attorney General’s office has carried out detailed investigations – including forensic studies, crime scene investigations and in-depth eyewitness testimony – which demonstrate the use 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. Nine of Sánchez de Lozada’s former cabinet ministers were indicted in May 2005, although most of them left the country to avoid prosecution. 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.

First Human Rights Case to reach completion in the Civilian Court System

Other trials of Bolivian military officials have taken place in military courts, in violation of Bolivian and international law and encouraging impunity.   Efforts to prosecute members of the security forces in civilian courts have consistently faced military opposition pressure on prosecutors and judges.  As a result, investigations falter. International rights organizations have consistently criticized the use of military tribunals for human rights cases.

• In a December 2003 letter to President Carlos Mesa, Human Rights Watch advocated the civilian trial of military officials.[ii]

• 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,”[iii] 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.

• Since 2001, Amnesty International has proven that stipulations in both the Bolivian constitution and international law require human rights cases to be tried in civilian courts. [iv]

By trying military officials involved in Black October in the Supreme Court, this trial is the first of its kind in Bolivia and could set an important precedent to end endemic impunity in Bolivian human rights cases.

Verdict’s Potential Impact

Although a conviction in the trial would set an important precedent against impunity, it would also provoke a deep rift in civil-military relations. The Morales government has provided considerable concessions the armed forces and frequently praises them as key actors in the “process of change.” A conviction, with even a symbolic sentence,[v] would generate saber rattling and tremendous friction. In spite of initial press statements to the contrary, the Morales administration has paid little attention to the trial, and has even criticized prosecutors in other cases for pressing the military to honor court orders.

Yet, the victims of the 2003 violence, their families, who have carried out over 50 days of vigil in front of the Supreme Court have publically stated that they advocated the maximum 25-year sentence for the accused.  Residents of El Alto, where most of the deaths occurred, were infuriated by Morales’s general statements supporting the armed forces and have threatened widespread protests if the court acquits the accused.

The over two years of judicial proceeding have followed due process norms and Bolivian law with transparency.  It is necessary for Bolivian political leaders and military commanders who ordered and led the repression to assume fair legal consequences for their actions, as they have elsewhere in Latin America, as an indispensable prerequisite for the development of true democracy.

[ii] Human Rights Watch, “Bolivia: Letter to President Carlos Mesa Gisbert,” 21 December 2003.

[iii] Ibid.

[iv] Bolivia has been a state party to the American Convention on Human Rights since 19 July 1979 and has recognized the obligatory jurisdiction of the Court since 27 July 1993.  See Susan Lee, Amnesty International Regional Director, “Letter to Leopold Fernandez, Minister of Government,” 22 October 2001.

[v] Bolivian law stipulates that in criminal sentences under three years, jail time may be suspended, and in less than two-year sentences, the guilty party can receive an “executive pardon.