Date: July 9, 2004
To: Foreign Policy Aides
From: Kathryn Ledebur, Director, Andean Information Network
John Walsh, Senior Associate, Washington Office on Latin America
Re: Flawed State Department Report on Human Rights in Bolivia
In January 2004, Congress passed foreign aid appropriations legislation that conditioned the availability of FY2004 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."[1] Congress also required the Secretary of State to submit a report that would substantiate such a determination. The legislators who managed the spending bill left no doubt as to the seriousness with which they viewed the matter. In report language, lawmakers stated 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" (emphasis added).
On April 22, 2004, the State Department submitted to Congress its determination and report finding that "the Bolivian military and police respect human rights and cooperate with civilian authorities in the investigation, prosecution and punishment of personnel credibly alleged to have committed violations."[2] Moreover, the State Department asserted that both the military and police "investigate all allegations of human rights abuses" (emphasis added). The sweeping nature of these claims invites skepticism.
The tenure of former president Gonzalo Sánchez de Lozada (August 2002-October 2003) was remarkable for the high number of human rights violations committed by state security forces. During this 14-month period, the armed forces and police killed nearly as many people as were killed by security forces over the course of the seven-year military dictatorship of General Hugo Banzer (1971-1978). Furthermore, the Bolivian armed forces have categorically refused to testify or participate in investigations in the civilian justice system, although Bolivian and international law stipulate that this is the appropriate jurisdiction for these cases.
The rosy account provided by the April 22 report is contradicted by the State Department's own Country Report on Human Rights Practices for 2003, released in February 2004, which states:
"Some members of the security forces committed serious human rights abuses… Security forces killed dozens and injured hundreds of protestors during episodes of violent social unrest… There were unconfirmed allegations of torture by the police and security forces. There were credible reports of abuses by security forces, including use of excessive force, extortion, and improper arrests… 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."[3]
The skepticism invited by the April 22 report's initial sentences is borne out in the subsequent text by numerous errors of fact, dubious interpretations of events, and patently false claims. Beyond these shortcomings in substance, the report includes certain mistakes in grammar and word choice that could have been identified and corrected with minimal attention. For example, security forces are said to have acted "with force commiserate to the threat posed by protestors."
Officials at the State Department and the U.S. Embassy in La Paz may well be engaging Bolivian government officials in a concerted and constructive manner on human rights. But if so, such seriousness is not evident in the April 22 report. The easily avoidable mistakes, substantial errors of fact, and the overly broad nature of many of the report's assertions suggest that the State Department has not yet accorded "higher priority" to human rights issues in Bolivia.
The inaccurate claims made by the State Department in its April 22 report to Congress concern four major categories: (a) general respect for human rights; (b) investigations into alleged violations; (c) military and police cooperation with civilian authorities; and (d) military jurisdiction. The report's main assertions are presented and critiqued beginning on page 3 of this memo.
Recommendations for Congress
- Congress should put a hold on any remaining FY2004 military and police aid. Congress should make it clear to the State Department that the April 22 report is woefully inadequate at justifying the Secretary's determination, and that Congress expects that the concerns raised in this memo will be addressed and clarified.
- Congress should retain its hold on any remaining military and police aid until presented with compelling evidence that the military and police are cooperating with civilian human rights investigations and prosecutions.
- For FY2005, Congress should sharpen the legislative conditions that must be met for aid to be disbursed by specifying that the Secretary of State must determine that the Bolivian military and police are cooperating fully with civilian investigations and prosecutions of alleged violations of human rights. As explained below, Bolivia's Constitutional Tribunal has confirmed Bolivian law's stipulation that military personnel accused of human rights violations must be tried in civilian courts.
A. General Respect for Human Rights
- "Despite unrest created by two episodes of major social upheaval, the military and police acted with restraint and with force commiserate [sic] to the threat posed by protestors" (page 8).
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. In September and October of 2003, during the "Gas War" that led to the resignation of President Sánchez de Lozada, security forces killed 57 civilians, 49 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.
In its country report on human rights, the State Department asserted that Bolivian "[s]ecurity forces killed dozens and injured hundreds of protestors during episodes of violent social unrest" in 2003. But in its April 22 report, the State Department apparently deems the use of force that led to these killings and injuries to have been commensurate to the threat posed by protestors. Investigations are ongoing, but the overwhelming weig
ht of evidence already in the public record clearly indicates that some members of the Bolivian police and military responded to the February and September/ October disturbances with excessive force.
- "There have been no civilian casualties in the Chapare since January 2003-only attacks against security forces" (page 5).
Even if "casualties" is defined to mean only killings and the time period in question is only the remainder of 2003, this assertion is wrong. According to the Andean Information Network, from February through December 2003, two Chapare civilians were killed by Bolivian security forces, and another 20 were injured by security force gunfire.
B. Investigations into Alleged Violations
- "The Bolivian military and police investigate all credible allegations of human rights abuses" (page 4, emphasis added).
In reality, the investigations are often the result of pressure by human rights groups and the victims' families, and they are usually superficial and cursory. The State Department's claim gives the false impression that military and police investigations are effective in bringing perpetrators of human rights violations to justice. But the vast majority of human rights cases heard by the military tribunal lead to quick acquittals, as in the case of the military officers accused of homicide on February 13, 2003. Military court deliberations are closed to the public, and not even the victims' families or members of the civilian court system have access to the proceedings.[4] In its 2003 country report on human rights, the State Department recognizes that the military is highly unlikely to engage in effective investigations and punishments of its own members, stating that the "military justice system generally was susceptible to senior-level influence and corruption and avoided rulings that would embarrass the military."[5] To date, no member of the Bolivian armed forces has been convicted in civilian or military court for committing human rights violations in the course of responding to protests.
C. Cooperation with Civilian Authorities
- "In the case of February, both the police and military cooperated fully with the OAS and the Public Ministry and continue to do so. With respect to October, both institutions are involved with their own investigations and are cooperating with the Attorney General" (page 8).
February 2003: Members of the armed forces have consistently refused to participate in civilian investigations of the cases connected to the February 2003 disturbances. According to representatives of the Attorney General's office, at no time did members of the armed forces under investigation testify or provide information requested by members of the Public Ministry. "The armed forces impeded direct access to information," according to March 2004 prosecutors' reports to the Attorney General, "and always sent the documentation they chose and not what was needed. Unfortunately this attitude is based on their apparent claim to special jurisdiction…. Threats made to the Public Ministry make this situation worse."[6] The prosecutors filed similar reports on the obstacles to their work with the Bolivian Chamber of Deputies Human Rights Commission and made frequents statements to the press.[7] In May 2003, the armed forces' lawyer prematurely concluded that "no military personnel committed criminal acts," and maintained that accused security force members would be judged by the military tribunal, not the civilian justice system.[8] Although many police officers under investigation in connection with the February 2003 abuses did provide testimony, prosecutors assigned to the case reported in March 2004 that "the police through their different representatives have interfered with the case in one way or another."[9]
September/October 2003: As with the February cases, military personnel had repeatedly refused to testify or provide information for civilian investigations as of the April 22 publication of the State Department report. In contrast, most police officers cited had provided testimony.[10] In a March 23, 2004, letter to the Attorney General, prosecutors assigned to the case complained that "From October of last year to date we have not received support from the armed forces, in spite of constant subpoenas and memos, blocking in this way the present investigation and with even the refusal of the Minister of Defense."[11] On April 13, 2004, Defense Minister Gonzalo Arredondo informed prosecutors in charge of the investigations into the events of September and October 2003 that 200 military personnel would not testify. Arredondo justified the refusal to testify by explaining that the military tribunal was already trying the case under military law. "The Constitutional Tribunal set a legal precedent about the validity of military justice," Gonzalo Arredondo claimed. "As a result my office, respectful of the constitutional decision and independence, returns the legal subpoena."[12] But at the time of Arredondo's statement, the Constitutional Tribunal had not yet ruled on the subject. Moreover, the Tribunal's eventual ruling on the matter of civilian vs. military jurisdiction, announced May 7, 2004, explicitly repudiated Gonzalo Arredondo's position (see below).
- "Bolivian security forces also took steps to ensure respect for human rights by cooperating with independent offices dedicated to monitoring alleged cases of human rights abuses, including the Human Rights Ombudsman and the Chimore Center for Justice" (page 8).
Bolivian law requires members of the security forces to provide investigators from the office of the Human Rights Ombudsman with unlimited access to their bases and facilities, and to provide formal responses to inquiries made by the Ombudsman's office.[13] But police and military forces sometimes refuse access to their facilities and either fail to comply with requests for written reports or defer the requests to the high command, which typically provides only pro forma responses.[14] The State Department's own 2003 country report notes that "NGOs and the Ombudsman complained that occasionally government security forces and ministries refused to cooperate when NGOs or the Ombudsman conducted investigations."[15] Recent examples of lack of cooperation include the failure of Lt. Col. Dario Leigue, Military Joint Task Force Commander, to respond to a written request for information regarding the November 2003 burning of 25 homes of coca growers in the Isiboro Secure Park in the Chapare region,[16] although required by law to do so within ten days. Also, on December 11, 2003, security officers impeded Ombudsman officials from entering the Chimore base to investigate the condition of detainees within the facility.[17] Staff at the Chimore Center for Justice (which is not an independent office, as described as the April 22 report, but part of the Vice Ministry of Justice) noted that when they do receive reports requested from the military, the answers are misleading and inaccurate.[18]
D. Military Jurisdiction
- "Under the new Constitution, laws regarding the military's jurisdiction over its own personnel in human rights cases remain unclear and conflicting" (page 4).
The constitutional and legal issues were already fairly clear before the April 22 report was submitted, and have been further clarified since. The April report omits mention of the key section of article 48 of Bolivia's new Code of Criminal Procedures (CCP), which 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. Civilians can never be submitted to military jurisdiction…." The new Code, an initiative funded and promoted by USAID, also states that any contradicting legal norms from special laws (which include military legislation) are abolished.[19] The Constitutional Tribunal's May 7, 2004 ruling stipulated that military personnel accused in the February 2003 case must be tried in the civilian jurisdiction, clarifying any potential confusion about which jurisdiction should hear these cases.
Trials in Bolivian military tribunals do not represent "effective measures to bring the responsible members of the security forces unit to justice," as stipulated by the Leahy Amendment.[20] Military tribunals are also inappropriate in the context of the international conventions ratified by Bolivia.[21]
- "The Bolivian military has said that it will respect a constitutional court ruling or congressional legislation that resolves the issue" (page 4).
The State Department's assurances that the military would respect a constitutional court ruling were squarely contradicted by subsequent events. Only weeks after the State Department submitted its report to Congress, the Bolivian Constitutional Tribunal ruled on May 7, 2004, in an unappealable verdict, that four military officers accused of homicide for killing an un
armed nurse and another civilian on February 13, 2003, must be tried within the civilian court system, and cited Constitutional guarantees and other legal norms to justify their decision.[22] The armed forces responded to the high court's ruling by immediately ordering its forces confined to barracks for a 12-hour period. The day of the ruling, military leaders-dressed in battle fatigues-arrived at a meeting with the president 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.[23] The military's explicit rejection of the Constitutional Tribunal's ruling underscores their ongoing lack of cooperation with civilian legal investigations.
[1] Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2004 (P.L. 108-199, Division D, Title V).
[2] U.S. Department of State. Secretary's Report to the Committees on Appropriations: Human Rights and Assistance to the Bolivian Security Forces. April 22, 2004.
[3] U.S. Department of State. Country Reports on Human Rights Practices – 2003. February 25, 2004.
[4] Andean Information Network Update. "Impunity Update: Military Court Investigates Huanca Murder." December 14, 2001.
[5] U.S. Department of State. Country Reports on Human Rights Practices – 2003. February 25, 2004.
[6] Ibid.
[7] AIN telephone interview with prosecutor assigned to February case. May 11, 2004
[8] Los Tiempos. May 2, 2003.
[9] Report to Attorney General Oscar Crespo from February 12 and 13 case prosecutors. March 22, 2004 (copy on file at AIN).
[10] AIN interview with prosecutor assigned to October case. May 14, 2004
[11] Letter to Attorney General Oscar Crespo from October case prosecutors. March 23, 2004 (copy on file at AIN).
[12] La Prensa. April 14, 2004.
[13] Law 1818, Human Rights Ombudsman's Law, Article II, Clause 3, Chapter II, Article 26. Republic of Bolivia. December 22, 1997.
[14] AIN interview with Dr. Godofredo Reinicke, Special Representative, Human Rights Ombudsman's Office, Villa Tunari, May 18, 2004.
[15] U.S. Department of State. Country Reports on Human Rights Practices – 2003. February 25, 2004.
[16] AIN interview with Dr. Godofredo Reinicke, Special Representative, Human Rights Ombudsman's Office, Villa Tunari, January 17, 2004.
[17] Ibid.
[18] AIN interview with staff member of Chimore Center for Justice and Human Rights. May 18, 2004.
[19] Final Dispositions: Article VI, Clause3, Law 1970 Criminal Procedures Code. Republic of Bolivia.
[20] Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2004 (P.L. 108-199, Division D, Title V, Sec. 553).
[21] Bolivia has been a state party to the American Convention on Human Rights since July 19, 1979, and has recognized the obligatory jurisdiction of the Court since July 27, 1993.
[22] Sentencia Constitucional 0663/2004-R, Sucre May 5, 2004, Expediente 2004-08468-17-RAC. Sentencia Constitucional 0664/2004-R, Sucre May 6, 2004, Expediente 2004-08469-17-RAC.
[23] Los Tiempos, May 9, 2004.
