Massacre Claims Follow Former Bolivia President

     (CN) – Bolivia’s ex-president must face claims that he ordered the killing of those who peacefully protested his administration’s policies in 2003, a federal judge ruled.
     Gonzalo Sanchez de Lozada was elected to a second term as president of Bolivia in June 2002, with 22 percent of the vote. Lozada’s energy policies, which included a plan to export Bolivia’s natural gas to the United States and Mexico through Chile, attracted protests from the nation’s indigenous Aymara communities, who claimed the policies would further impoverish them. When protests broke out in 2003, Lozada and Bolivia’s minister of the presidency, Jose Carlos Sanchez Berzain, mobilized the army and ordered it to use deadly force against the protesters, according to federal complaints consolidated in Fort Lauderdale, Fla.
     The plaintiffs, nine Bolivian citizens whose relatives died during the 2003 civil unrest known as the Gas War, claimed Lozada and Berzain, who later became the minister of defense, designed an elaborate plan to kill large numbers of civilians to suppress opposition to their policies. After Lozada’s administration used lethal force against protesters in early 2003, government officials and critics warned the president that his tactic was illegal and would claim innocent lives.
     Lozada and his supporters nevertheless continued to use military force to quash opposition, according to the lawsuits. Berzain said that “999 deaths were not enough, but that 1,000 would be sufficient,” to send the right message to protesters, the plaintiffs claimed.
     In the fall of 2003, when farmers, union members and students continued peaceful protests around the country, Lozada’s government once again refused to negotiate with them. The president declared Bolivia in a state of war, authorizing the army to shoot and kill civilians, who were falsely labeled as “enemy combatants” and “an organized armed rebellion” to justify the use of force, according to court filings.
     The plaintiffs claimed Lozada’s army randomly shot and killed close to 100 civilians, including their relatives, and injured at least 400 others. Marlene Nancy Rojas Ramos, an 8-year-old girl, was shot as she looked out the window in her home in Warisata, a small town a few hours from Bolivia’s capital La Paz, her parents claimed in the lawsuit.
     The parents said their daughter was far from the site of any protests, as were the other plaintiffs’ relatives, who were shot and killed in their homes or while trying to run for shelter. Lozada and Berzain ordered soldiers deployed south of La Paz to “shoot at any head that you see” and stop protesters from entering the capital, according to the complaints.
     After the U.S. Embassy withdrew its support for Lozada and his administration in October 2003, Lozada and Berzain resigned and fled to the United States, where they now reside, the plaintiffs said.
     Seeking to prosecute him Bolivia demanded Lozada’s extradition from the United States, but the U.S. government refused the request on the grounds that a civilian leader cannot be tried for crimes committed by the military. Bolivian courts have meanwhile reportedly convicted several military officers and cabinet ministers on genocide charges in connection with the 2003 shootings.
     Led by Eloy Rojas Mamani, the relatives of the slain Bolivian civilians sought damages from Lozada and Berzain under the Alien Tort Statute (ATS), the Torture Victim Protection Act (TVPA), and Florida law.
     The South Florida court initially upheld some of the claims and dismissed others for failure to exhaust remedies available in Bolivia. The 11th Circuit in 2011 then said that the counts over the extrajudicial killings and crimes against humanity failed to state a plausible claim under the Alien Tort Statute. After the U.S. Supreme Court addressed that issue in Kiobel v. Royal Dutch Petroleum Co. last year, the Florida court allowed the plaintiffs to amend their claims.
     Relying on the Kiobel decision, which said that U.S. claims should be barred where all relevant conduct took place outside the United States, U.S. District Judge James Cohn last week dismissed claims for extrajudicial killings and crimes against humanity under the Alien Tort Statute. The plaintiffs’ relatives were Bolivian citizens residing in Bolivia at the time of their shooting, which occurred in Bolivia, Cohn noted. What’s more, Lozada and Berzain only fled to the United States after the alleged conduct occurred, according to the May 20 ruling.
     The fact that Lozada and Berzain are now U.S. residents who cannot stand trial anywhere else, and that the current Bolivian administration supports litigation in the United States are insufficient to override the presumption against extraterritoriality, the 41-page order states.
     Cohn also rejected the plaintiffs’ argument that dismissal of their ATS claims would make the United States a “safe haven” for human rights violators and would negatively impact foreign relations with Bolivia.
     The judge said the plaintiffs may pursue their extrajudicial killings claims under the Torture Victim Protection Act, which serves to ensure that human-rights violators in the United States cannot evade liability for crimes they committed elsewhere.
     The fact that the Bolivian government compensated the plaintiffs for the loss of their loved ones under two humanitarian-assistance laws does not preclude them from bringing human-rights-violations claims against Lozada and Berzain, who can be sued only in the United States, the ruling adds.
     Cohn said “it would be absurd to conclude that defendants could avoid liability for their alleged wrongs merely because the Bolivian government saw fit to render some humanitarian assistance to plaintiffs. To do so would, in effect, inappropriately shift the benefit of the Bolivian government’s payments from plaintiffs to defendants.”
     Lozada and Berzain had argued that the plaintiffs had other remedies, such as pursuing civil lawsuits in Bolivia against seven of their subordinates who were convicted in 2011 of “genocide through mass killings.”
     But the court said the defendants had failed to allege which plaintiffs had the right to sue the convicted officers, or whether such civil suits could lead to enforceable judgments against anyone.
     The plaintiffs have sufficiently alleged that the killing of their relatives was deliberate, and that the two defendants, the highest commanders of the Bolivian military, had a direct superior-subordinate relationship with the soldiers who fired the fatal shots, according to the 41-page order.
     Lozada and Berzain devised the plan and closely supervised the military operations, and thus had knowledge of the alleged extrajudicial killings. They also failed to stop the killings and ordered further military operations despite the mounting civilian death toll, the ruling adds.
     Cohn denied the defendants’ request to forgo supplemental jurisdiction over the state-law claims on grounds that they involve “novel or complex” issues of Bolivian law.

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