Dear President Mesa: I write respectfully to draw your attention to serious obstacles to the ongoing investigation of the killings of more than fifty Bolivians in protests that took place in September and October of this year. Human Rights Watch is deeply concerned that if these problems are not resolved in an expeditious way the investigation will end unsuccessfully.

I write respectfully to draw your attention to serious obstacles to the ongoing investigation of the killings of more than fifty Bolivians in protests that took place in September and October of this year. Human Rights Watch is deeply concerned that if these problems are not resolved in an expeditious way the investigation will end unsuccessfully.

In your inaugural address to the National Congress on October 17 you undertook to ensure that the Bolivian justice system would carry out an independent and impartial investigation into the tragic events of the preceding weeks. At the same time you acknowledged that the task would be complex and difficult. Now that two months have passed since you made your address, it is a good moment to examine those difficulties dispassionately.

In our view, to achieve justice, Bolivia’s civilian courts must retain jurisdiction over the investigation and prosecution of members of the armed forces suspected of committing abuses when quelling protests and civil unrest. In addition, robust measures must be taken to strengthen the independence and effectiveness of the civilian justice system. We recall the conclusion of the Secretary General of the Organization of American States in his Report on the Events of February 2003 in Bolivia, that “a program to strengthen justice and the Public Ministry in particular is an absolute priority in Bolivia.”

A Human Rights Watch representative visited La Paz between November 23 and November 30 to discuss the investigation of the September and October killings with officials of your government. He met with the minister of government and the vice-minister of justice, as well as with members of the attorney general’s office (Fiscalía General de la Nación) and representatives of the armed forces and the military courts. He also met with the chair of the Human Rights Commission of the Chamber of Deputies, officials of the human rights ombudsman’s office, members of nongovernmental human rights organizations, and relatives of those killed or wounded in the protests. Besides gathering information on the steps being taken to investigate the recent violence, he also looked into the ongoing investigation of killings that took place on February 12 and 13, 2003, when thirty-one people (sixteen civilians, ten police, and five soldiers) died during and after a riot in La Paz by members of the Bolivian police.

The September and October deaths occurred in the context of anti-government protests sparked by plans to sell Bolivian natural gas through Chile. On September 20 three campesinos and an eight-year-old girl were killed by gunfire during a clash between armed protesters and army troops and police at Warisata, after the army intervened to ensure the safe passage of hundreds of tourists prevented by protesters from leaving Sorata. Two army conscripts also died in the exchange of fire. On October 12, at least twenty-six civilians were killed in El Alto. Many of them were shot when army troops armed with military combat rifles tried to break blockades preventing the passage of fuel tankers from El Alto to La Paz. At least fourteen civilians were shot and killed on the following day as the protests continued in La Paz. Given the high ratio of civilian to military and police casualties, Human Rights Watch is deeply concerned that the security forces may have failed to exercise proper care in responding to the protests. Under binding international standards, the intentional use of lethal force by law enforcement officials is permissible only when strictly unavoidable to protect life. Such standards require that impartial and independent investigations be carried out where there are indications that this principle was not followed or ignored.

In all, the Human Rights Ombudsman counted a total of fifty-nine deaths during street protests between September 20 and October 19, mainly in Warisata, El Alto, and La Paz. Other nongovernmental human rights groups, such as the Permanent Assembly of Human Rights, estimated the number of deaths at over eighty. Forty-nine civilians died from gunshot wounds, and more than 400 people were hospitalized with injuries. Three army conscripts also died. A prosecutor investigating the incidents told us that high caliber munitions used exclusively by the armed forces claimed the lives of most of the civilian victims.

Prosecutors attached to the district attorney’s office for La Paz (Fiscalia del Distrito de La Paz) are conducting investigations into both the killings that took place in February 2003 and those of September and October. Unfortunately, several serious obstacles are hampering their work.

Military Jurisdiction and Lack of Military Cooperation with Civilian Justice Officials

We are deeply concerned that the armed forces have failed to cooperate fully with the attorney general’s office. Officials of the office informed Human Rights Watch that the army had still not responded to requests for information made by the public prosecutor six weeks ago. In those requests, the prosecutor asked for information about the units dispatched to quell the October protests, including the names of their commanding officers. Nor has information been forthcoming about an army helicopter that flew over El Alto at the height of the October protests and from which soldiers are believed to have fired on the crowd. According to these sources, rather than provide the information requested by the prosecutor regarding the soldiers killed, the army is carrying out a separate investigation into the circumstances of their deaths.

Judging from past investigations into civilian deaths during protests, it is likely that if the civilian investigation advances and charges are brought against military personnel, the army will assert a competing claim for jurisdiction over the case. The president of the Supreme Tribunal of Military Justice, Gen. Jorge Rodríguez Bravo, stressed to Human Rights Watch that civilian courts lacked jurisdiction to prosecute a soldier for any crime committed while on active service. He also explained that military courts would normally dismiss charges against a soldier responsible for a civilian death who was obeying orders.

When the military courts obtain jurisdiction over a case involving members of the armed forces implicated in abuses against civilians, the case almost inevitably ends in an acquittal. The military’s ruling of acquittal, moreover, blocks the civilian justice system from proceeding with its own prosecution.

The negative effects of military justice can be seen in several recent cases. In August 2003, for example, the Supreme Military Tribunal acquitted Cap. Robinson Iriarte Lafuente, an army marksman whom the public prosecutor had accused of the homicide of a seventeen-year-old during April 2000 protests in Cochabamba. After his acquittal, Iriarte was promoted to the rank of major. The Superior Court of Justice had ruled in February 2001 that the case fell under military jurisdiction because Iriarte was on active duty and under orders at the time, even though he was in civilian clothes. Another case in which a civilian prosecutor’s investigation was preempted by a suspect’s rapid acquittal by a military court was that of Col. Aurelio Burgos Blacutt, accused of killing a protestor in January 2002. After Burgos was acquitted in the military courts later in the year the attorney general’s office had no choice but to drop the charges against him.

Most recently, the army has insisted on retaining jurisdiction over the case of four soldiers accused of killing a nurse and a porter in La Paz on February 13, 2003, during the unrest that followed the police riot. On October 4, the Superior District Court of La Paz transferred the case to a military tribunal. In doing so, it reversed an August court ruling that had confirmed the jurisdiction of the civilian courts.

By insisting on conducting criminal investigations in parallel with civilian prosecutors, the military justice authorities obstruct accountability. The pursuit of a single case within two separate jurisdictions violates article 45 of Bolivia’s Code of Penal Procedures, which states: “different trials may not be held in respect of a single event, even if the accused are different.” Most importantly, the defendant’s acquittal in a military tribunal bars further proceedings in the civilian courts, in application of the principle of non bis en idem, or double jeopardy.

Human Rights Watch opposes the use of military tribunals try those responsible for human rights abuses committed in the course of military operations, or outside them. We do not believe that military courts enjoy sufficient independence to render impartial verdicts in such cases, and we fear that the predictable result is impunity. Moreover, we note that in Bolivia there is no civilian court review of the verdicts of the military courts.

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,” 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.

Given the large number of deaths at issue in the incidents mentioned, it is crucial that the civilian justice system be allowed to carry out a full and impartial investigation. I would therefore urge you to instruct military officials to cooperate fully with civilian prosecutors, and to order military prosecutors to desist from conducting a separate and competing investigation into the events. As a longer term measure, I would urge you to introduce legislation to limit the jurisdiction of military courts to military offenses in which civilians are not victims, thus ensuring that the civilian justice system retains jurisdiction in cases involving human rights abuses or the excessive use of lethal force.

Weaknesses of the Civilian Justice System: Inefficiency, Vulnerability to Political Influence, and Lack of Resources

Although we believe that it is critical that the investigation of the September and October killings remain in the hands of civilian officials, Human Rights Watch is also deeply concerned about chronic weaknesses in the civilian justice system. We emphasize that measures to limit the scope of military justice must be accompanied by vigorous steps to improve the performance and functioning of the Public Ministry.

Officials of the Public Ministry are vulnerable to political pressure and are seen as lacking the independence that is so vital to their function. To begin with, all nine of Bolivia’s district attorneys enjoy only a provisional status -- as opposed to the normal fixed, five-year tenure in office--inevitably affecting their independence. Some prosecutors are, moreover, viewed as inept and under-qualified for their tasks. Indeed, during our visit to La Paz we were struck by the low opinion that many people expressed about the efficiency and credibility of the Public Ministry. According to recent press reports, one out of four public prosecutors in Bolivia is under investigation for having committed irregularities, and the great majority remain in their posts. For their part, those prosecutors who try hard to do a professional job encounter numerous obstacles and frustrations.

The Public Ministry’s record over the last two decades is extremely troubling. Since 1985 there have been more than 300 deaths in protests or situations of violence arising from social conflicts; thousands have been wounded or illegally detained, and many have allegedly been tortured. Yet Bolivian human rights groups we consulted only knew of one case in which a law enforcement officer or members of the armed forces was convicted for a human rights abuse: the sentencing in November 2003 of three policemen to prison, one of them for ten years, for burning to death a Peruvian detainee, Freddy Cano López, in May 1999.

Proposals by the Human Rights Commission of the Chamber of Deputies that special parliamentary commissions take charge of criminal investigations into alleged abuses by the security forces during protests are an indication of a lack of confidence in the work of the Public Ministry. For example, the Human Rights Commission recommended this step following its investigation of the death of nine civilians and a police officer during a clash between miners and security forces in northern Potosí in December 1996. Members of the Human Rights Commission and of the office of the Human Rights Ombudsman told Human Rights Watch that they believed that a parliamentary commission should be put in charge of investigating the September and October deaths.

Some of the weaknesses of the Public Ministry can be ascribed to the fact that it is under-resourced. Unfortunately, this lack of funding is evident in the current investigation. Dr. César Fiorini, the general secretary of the attorney general’s office (Secretario General de la Fiscalía Nacional), informed Human Rights Watch that his office has requested a special treasury allocation of 2 million Bolivianos (approximately $250,000) to cover the costs of investigating the September and October deaths. While his office awaits a decision on that request, the investigation has been hanging by a financial shoestring; it has had to get by with 7,000 Bolivianos (less than $1,000), scraped together with difficulty from the attorney general’s existing budget, an amount quite insufficient for an investigation of this scope and complexity. Prosecutors conducting the investigation told us of the urgent need for funds to cover costs of transportation, fuel, supplies, and equipment. One said that he had had to the meet the costs of a mission out of his own pocket.

From our conversations with justice officials, it is clear that the attorney general’s office does not have sufficient funds to undertake these investigations without additional financial assistance. We note with concern that an allocation of 1 million Bolivianos approved by the Senate to cover the costs of the attorney general’s investigation of the February 2003 deaths has still not been made available. This situation should be rectified a soon as possible, and sufficient funds made available to cover the essential requirements of both investigations.

Improving the Public Ministry’s record will depend in part on providing it with adequate funds to enable it to operate effectively. Yet it is clear that economic difficulties are only part of the problem, and possibly not the most serious part. What is equally or even more important is to ensure that the Public Ministry can count on qualified staff who are insulated from undue political pressures. New incumbents should be appointed as soon as possible and such appointments must be based solely on professional criteria.

To date, Congress has been unwilling either to appoint Public Ministry officials to their proper term in office, or to provide the Public Ministry with the funds it needs to carry out its functions. I therefore ask you to impress upon members of Congress the need to address the serious problems of the Public Ministry as a matter or urgency.

Given the difficulties that surround the investigation being undertaken by the Public Ministry, I believe that you should give serious consideration to the formation of an independent commission charged with investigating the incidents of September and October. The Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions contemplate the formation of an independent commission of inquiry or similar procedure when the established investigative procedures face difficulties such as lack of expertise and impartiality, or do not enjoy the confidence of families of the victims. Members of such a commission should be chosen for their recognized impartiality, competence, and independence as individuals. In particular, they should be independent of any institution, agency or person that might be the subject of the inquiry. The commission should have the authority to obtain all information necessary to the inquiry and should conduct the inquiry as provided for under these principles.

Investigation into Responsibility of Former Civilian Authorities

Finally, Human Rights Watch supports in principle the investigation recommended by the attorney general on November 22 into the possible responsibility of former president Gonzalo Sánchez de Lozada and members of his cabinet for ordering the military operations that led to the September and October deaths. If Congress votes to allow a “trial of responsibilities,” it is of fundamental importance that the proceedings be conducted with scrupulous regard for due process guarantees in order to safeguard the integrity and credibility of this investigation. It should also enjoy the full cooperation of the armed forces, the police, officials of the former government and those civilian witnesses able to cast light on the circumstances in which so many people died.

A fair and impartial judicial investigation of the events of September and October is of vital importance. If the Bolivian courts are able to establish the truth about what occurred and clarify the responsibility of the authorities for this tragic loss of life, it will help to strengthen the rule of law and consolidate Bolivia’s democratic institutions.

Thank you for your attention to these important matters.

Yours sincerely,

José Miguel Vivanco
Americas Division, Human Rights Watch

Cc: Alfonso Ferrufino Valderrama, Minister of Government
Cc: Juan Ignacio Siles del Valle, Minister of Foreign relations
Cc: Gonzalo Arredondo Milan, Minister of Defense
Cc: Carlos Alarcón Mondonio, Minister of Justice
Cc. Jaime Aparicio, Ambassador of Bolivia in the United States
Cc: Kofi Annan, Secretary General of the United Nations
Cc: César Gaviria, Secretary General of the Organization of American States