Goni and El Zorro fall and $10 Million is awarded to Indigenous Bolivian survivors in landmark human rights case
April 4, 2018 By Jacquelyn Kovarik
FORT LAUDERDALE, April 3, 2018—In an unexpected move, a federal jury found the ex-President of Bolivia, Gonzalo Sánchez de Lozada, and his foreign minister, Carlos Sánchez Berzaín, responsible for the killings of indigenous Bolivian peasants in 2003. The civil trial caps a decade-long legal battle by family members of some of the victims who were killed during what became known as the Bolivian Gas War. Goni, as the former president is known, and Berzaín, popularly known as “el Zorro” in Bolivia, are to pay the plaintiffs $10 million in compensatory damages. Thomas Becker, an attorney for the International Human Rights Clinic at Harvard Law School, said this was the first time in U.S. legal history that a former head of state had been held responsible for human rights violations.
“The jury heard their voices and determined that Sánchez and Berzaín are responsible,” Becker told reporters at a press conference held outside the courthouse after the verdict was announced. It is also the first time a former head of state of any country has stood trial for human rights violations in a U.S federal court.
The case against Goni and Berzaín charged that the Bolivian military massacred more than 60 citizens in September and October of 2003 in the city of El Alto, which neighbors La Paz, in what is often referred to as the October Massacre, or Black or Red October. The killings took place at the culmination of the Gas War, as El Alto organizations, indigenous Aymara peasants, and citizens across various sectors of Bolivian society protested the privatization of natural gas reserves. The blockades and bloody clashes in El Alto between the protesters and the Bolivian army eventually forced Goni to resign and flee the country. Two successive short-lived presidencies followed Goni’s ouster before the election in 2005 of Bolivia’s first Indigenous president, Evo Morales, who is of Aymara descent and was one of the leaders of the protests.
The rare trial was filed under the Torture Victim Protection Act, or TVPA, which grants U.S. federal courts jurisdiction in lawsuits filed by non-U.S. citizens for crimes that violate international law. Under the terms of the TPVA, the plaintiffs must prove that the killings were extrajudicial in nature and that the defendants are legally liable for the crimes—by way of direct command responsibility, conspiracy or agency.
The plaintiffs in this case are Eloy Rojas Mamani, Etelvina Ramos Mamani, Sonia Espejo Villalobos, Hernán Apaza Cutipa, Juan Patricio Quispe Mamani, Teófilo Baltazar Cerro, Juana Valencia de Carvajal, Hermógenes Bernabé Callizaya, Gonzalo Mamani Aguilar and Felicidad Rosa Huanca Quispe. Representing them were attorneys organized by the Center for Constitutional Rights, a progressive non-profit legal advocacy organization based in New York City. All nine plaintiffs are family survivors of indigenous Aymara peasants killed during the 2003 protests in and around El Alto.
The killings occurred under varying circumstances. In the cases of Teodosia Morales Mamani and Roxana Cutipa, stray bullets killed them when they pierced their homes in El Alto. Lucio Gandarillas Ayala, Arturo Mamani Mamani and Jacinto Barnabé Roque were shot dead in the hills of Senkata along the Ánimas Valley Road. Marlene Mamani, the eight-year-old daughter of Eloy Rojas Mamani and Etelvina Ramos Mamani, was shot dead in El Alto through her mother’s bedroom window.
In a unanimous decision after three weeks of testimony before U.S. District Court Judge James I. Cohn and a day and a half of closing arguments, the jury took eight days to find that the plaintiff’s lawyers had successfully proved that the killings were planned, premeditated, and linked directly to Goni and Berzaín.
On March 26, during final arguments, the plaintiff’s lawyer Joseph Sorkin argued that Goni and Berzaín understood that their actions would lead to civilian deaths, even if there was no explicit decree to kill civilians. “Use your common sense,” he told the jurors. .”—you don’t have to leave that at the door. You can bring that with you.”
Sorkin then argued that Bolivia has a long and complex history in which indigenous civilian protest was accepted as a legitimate means of political participation. As precedents, he pointed to the 2001 Cochabamba Water War and the Coca Wars of the 1990s, as well as the more general historical context of indigenous political disenfranchisement. “Native people have historically been left out of the political arena,” he said, “and marching and blockades are very common and typical responses.” The defense, he argued, had failed to take this cultural and historical context into account.
Sorkin’s argument rested in large part on the testimony of then Vice Minister of Government, José Luis Harb, who said that in the weeks leading up to the October Massacre, the Bolivian cabinet “was divided”: one side vying for a peaceful solution to the protests and the other side calling for military action. Sorkin said Harb’s testimony proves that non-violent resolution was an option that Goni and Berzaín willfully ignored—to the point of legal liability.
To show precedent for the resolution of conflict in Bolivia through dialogue, Sorkin brought up the peaceful de-escalation of violence in February 2003 during a blockade sparked by the imposition of a new income tax that triggered a rebellion led by Bolivian police and high school students. The conflagration left 33 people dead in La Paz and spread to El Alto. Dialogue between the protest organizers and the Bolivian government brought the conflict to an end. Sorkin argued that Goni and Berzaín had willfully ignored this established approach.
As Sorkin appealed to the jury, he stood behind the courtroom podium. Several times, he could not locate an exhibit he wished to show to the jury, and on one occasion he became flustered to the point of near-speechlessness. If at times he seemed desperate, he came off above all else as passionate and deeply invested in the case.
Ana Reyes, the defense team lawyer, said in her closing argument, “Here we do not do trial by accusations, we have trial by evidence.” She characterized the case as involving a series of tragic deaths that resulted from the Bolivian state’s appropriate and proportionate response to a national emergency. As evidence, she presented U.S. State Department cables and official statements from the Bolivian government that La Paz “remained cut-off because of the El Alto tourniquet,” a reference to the Gas War blockades.
In contrast to Sorkin, Reyes’s demeanor was calm as she addressed the jury. She opted to walk around the courtroom instead of standing still behind the podium. Her voice was confident and unwavering, as she repeatedly appealed to the jury’s “common sense” and “ability to make inferences.”
Reyes was relentless in her demonization of Morales, the current president of Bolivia, and Felipe Quispe, an Aymara political leader in Bolivia popularly referred to as “El Mallku”. She described them as uncooperative antagonists who fomented the violence and refused to engage in dialogue with the government. “Quispe was a guerilla fighter of the terrorist group Tupac Katari and Morales was a cocalero. Coca is used to make cocaine,” she said. “. . .Use your common sense.”
Cocalero refers to the indigenous coca leaf growers of Peru and Bolivia. Andean peoples have been cultivating coca leaves for more than 8,000 years for medicinal and religious reasons. It was not until after World War II that coca began to be popularly refined into cocaine. Even now, the vast majority of coca leaf production in Bolivia is not for cocaine production, as Paul Gootenburg argues in his book “Andean Cocaine: The Making of a Global Drug.” Gootenburg emphasizes the empirical distinction between the drug cocaine and the Andean coca leaf, but Reyes’s explanation of the coca leaf echoed the rhetoric of the U.S. War on Drugs. Reyes’s implication to the jury was that the social leaders behind the Gas War were unreasonable terrorists and narco-traffickers who rendered peaceful dialogue impossible.
Her argument followed the U.S.-interventionist perspective on the case, especially considering her use as evidence of U.S. State Department cables. The United States is perhaps the least neutral place for Goni to be tried, considering his decades-long relationship with U.S. politicians, economists, and political consultants. It is not surprising that the United States has proved to be a safe haven for Goni for the past 15 years. This makes the verdict all the more surprising and significant.
In 2007, Bolivian prosecutors formally charged Goni with genocide, and human rights activists both in the United States and Bolivia have been fighting for his extradition since 2008. The United States has refused to do so. In granting Goni and Berzaín asylum for the past decade, the U.S. State Department has declared that the defendants would not be granted a fair and impartial trial in Bolivia because of the perceived political motivations behind the case, and their risk of political persecution in their home country.
Especially during the defense arguments, the discomfort and pain of the plaintiffs was palpable. Sitting quietly with translation devices over their ears, a wary shake of a head or an uncomfortable clearing of the throat were common responses to Reyes’s closing remarks. On one occasion, an elderly female plaintiff began to interject, and was immediately shushed and comforted by a member of the counsel. Throughout the trial, Goni and Berzaín remained stoic. They seemed calm, at peace, even, as they sat outside in the lobby during recesses. During the trial, Goni did not testify. It was not clear whether this was an acquiescence to the plaintiff’s request not to hear from him in court. On the final day of the trial, Goni showed up a few hours late, causing observers in the courtroom to wonder if he would show at all.
In the plaintiffs’ view, the trial came down to what Sorkin referred to as a “problem of paper,” a reference to the repeated use as defense evidence of U.S. State Department cables that portrayed the Aymara indigenous protesters as armed instigators of the violence. Some of the cables also said that Goni called for dialogue, but that the community organizers in El Alto ignored his appeal.
Sorkin questioned the validity of using U.S. State Department cables as evidence, asserting that it is impossible to know who wrote those cables or if those who wrote them were eye-witness to anything pertaining to the trial or what the intent was in sending the cables. Reyes countered that regardless of the validity of specific defense exhibits, the plaintiffs failed to prove that the killings were extrajudicial in nature and directly linked to Goni and Berzaín.
In the end, the jury sided with Sorkin. It took the panel more than a week to reach a verdict. Early on Tuesday Judge Cohn gave the jury an Allen Charge, to encourage them to come to unanimous decision. The Allen Charge is a verbal instruction given by the court to a deadlocked or hung jury to encourage those in the minority to reconsider their position.
This verdict is an enormous victory for indigenous rights activists both in Bolivia and in the United States. At the press conference live-streamed by the Center for Constitutional Rights on Tuesday afternoon, the mood was one of joy, celebration and gratitude. “People thought we were crazy to launch a case against two of the most powerful people in Bolivia and with families that are seen as poor and indigenous and weak,” said Becker for the plaintiff team. “But that did not deter them. They travelled thousands of miles to do this case and today they made history.”
The family members of the victims also expressed their joy and gratitude to the jury. “I want the entire world to know that this tragedy was so immense that not even their lawyers could cover it up,” said Teófilo Baltazar, who lost his wife and unborn child in the massacre.
Judith Chomsky, an attorney for the Center for Constitutional Rights and one of the lead counsels for the case, thanked the plaintiffs for the opportunity to represent them: “These eight families came to us and inspired us to do this case,” she said, “which sets a precedent for all those struggling for human rights in the U.S.”
The ruling does not call for the extradition of Goni, but it does raise the question of what comes next. Jim Shultz, author of the book “Dignity and Defiance: Stories from Bolivia’s Challenge to Globalization,” said he remains skeptical that Goni will ever be extradited, despite the trial’s outcome. “The U.S. government has shown no interest at all in that,” he said in an email.
However, Shultz emphasized the symbolic importance of this verdict both in Bolivia and globally. “While the money is important,” he said, “really, this is about the principle that a president and aide can’t just participate in the killing of their own citizens and expect to take a plane to the United States and live happily ever after.
“I don’t think it could be overstated how much that means to the Bolivian people,” he went on. “It is also a crucial precedent that will be read and understood by repression regimes in other parts of Latin America.”
The defense has pleaded to extend a Rule 50 motion first filed on March 18, claiming that the plaintiffs did not present sufficient evidence to merit conviction by a reasonable jury. Judge Cohn has given the deadline of April 11 for the defense to submit supporting arguments for the motion. A final hearing on the matter will be held on May 4. The verdict is technically not final until this Rule 50 motion is decided.
Chomsky, at the press conference, said that although the legal struggle is not over, she thinks that the verdict still represents a victory. “We are confident that the demands of the plaintiffs are vindicated by the decision,” she said. “The purpose of the [TVPA] law was that the U.S. would not be a safe haven for tyrants who torture and abuse their citizens. We have set a precedent. The plaintiffs, their supporters in Bolivia and the court system here now say this is not a safe haven.”
Shultz said further that it is also significant that a U.S. jury—with no or little knowledge of Bolivian history and culture, a panel that likely had never even heard of Goni or the October Massacre until a month ago—had reached such a verdict. “I think it says that average citizens can relate to the lives and the sufferings of average citizens,” Shultz said at the press conference. “That’s really what this is, a verdict by regular people about regular people instead of bowing down to some form of false superiority by an ex-president.”
About Jacquelyn Kovarik
Jacquelyn is currently a Foreign Language Area Studies Fellow at New York University, where she is studying Quechua and pursuing a masters degree in Latin American Studies and Journalism. Her research focuses on contemporary social change in Bolivia and Peru, with an emphasis on transitional justice and initiatives for well-being and resilience in Andean communities. In 2016 she filmed and produced a documentary about families fighting for reconciliation in a post-dictatorship Bolivian society.