AUGUST 26, 2012
Photo by Lea Aschkenas
IN THE SUMMER of 2011, intrigued by the left-leaning presidency of Evo Morales and wanting to learn more, I arranged a two-week trip to Bolivia. Instead of flying to La Paz, I flew south to what I anticipated would be the quieter colonial capital of Sucre. But my arrival coincided with the start of what is probably the least tranquil week of the year there — the week leading up to the country’s August 7th Independence Day, filled with endless city-wide fiestas.
In the Recoleta district I encountered Feria de Alasitas, a traveling fair that filled up the Plaza Pedro Azures with rows of teenagers playing fussball while vendors hawked everything from handcrafted jewelry and alpaca sweaters to Triple A batteries and travel-sized packets of Kleenex. The smoke from roasting potatoes and sausages wafted through the crisp winter air while stalls selling cheese empanadas and chocolate-covered apples, fluorescent pink jello, and chicha de mani (a peanut and fermented quinoa drink) spilled into the streets, transforming them into pedestrian malls. And then, a few blocks northwest of the feria near the Plaza 25 de Mayo, the party picked up again with morning-till-midnight marching bands (of uniformed school children, of soldiers, of rubber-nosed juggling clowns) parading past my hotel and lining Avenida Aniceto Arce for as far as the eye could see.
Parque Bolívar, a rectangular expanse of green so far from the center of town that it ran off the edge of my map, seemed like the best way to escape the commotion. Without the crowds, I could make out the political graffiti that decorated many of the walls, calling for an end to electoral fraud, demanding justice for the victims of power-hungry politicians, insisting on the expropriation of transnational companies.
While Bolivia is South America’s poorest country, it is also one of its most organized when it comes to populist movements. In 1952, after centuries of Spanish exploitation of Bolivia’s silver and tin miners, the indigenous workers rebelled and their revolution resulted in a nationalization of the mines. More recently, in 2000 when the World Bank ordered the Bolivian government to sell the city of Cochabamba’s public water company to the U.S.-owned Bechtel, Cochabambinos took to the streets, protesting the proposed utility price hikes with strikes and transportation blockades until Bechtel was expelled. In 2003, similar protests by La Paz’s indigenous Aymará over the foreign sale of Bolivia’s natural gas resources ultimately pushed out the pro-privatization president and his similarly-minded successor.
When I arrived in Sucre’s Parque Bolívar in August 2011, I happened upon another, albeit related, historic protest. This one, though, was twofold with the objective of halting not just Bolivia’s but also possibly the U.S.’s history of granting impunity to powerful politicians. It was a quiet protest at the park entrance, across the street from the Supreme Court. About a dozen gray and blue domed tents lined a worn patch of lawn. Black, white and red banners flapped in the breeze alongside a Wiphala, the rainbow-colored flag of the Aymará and their indigenous compatriots.
The Aymará come from an ancient temple-building people. Their history pre-dates the Inca civilization by 500 years; their empire has outlasted it for nearly as long. Today they comprise a quarter of Bolivia’s population and reside mainly in the country’s oxygen-thin western highlands, an area encompassing both Sucre at 9,000 feet and La Paz at 12,000. President Evo Morales is Aymará — and the first indigenous leader in South America.
His election in 2005 initiated a resurgence in indigenous pride, but the Aymará still suffer from a long past of colonial neglect and mistreatment.
In Parque Bolivar, half a dozen Aymará women sat on the ground knitting behind the tents. Their legs were sprawled out in front of them beneath their polleras, traditional multilayered skirts; their upper bodies were covered with fringed wool mantas slung over their shoulders and attached at their necks with jumbo safety pins. Beneath the banners lay an effigy of a man slumped on the sidewalk with one hand resting on a giant dollar sign and, on the street below, dozens of face shots of adults and children. They were red-cheeked girls with trademark Aymará double braids, older women in felt bowler hats, teenage boys in faded sweatshirts; they were middle-aged miners in helmets and headlights, leather-faced older men in stiff suits, a narrow-faced young man smiling shyly at someone off stage. All, according to the vital stats typed beneath their photos, were now dead.
Between September 20 and October 12, 2003, during what is now referred to as Black October, 67 Aymará were killed and another 470 wounded by the military while protesting the sale of Bolivia’s natural gas to the U.S. and Mexico via a proposed pipeline through Chile. The victims ranged in age from 5 to 72, the majority killed by gunshot wounds.
Juan Patricio, a protester in his 30s, explained this history to me at the encampment. He and 40 other Aymará had travelled 12 hours by bus to protest in front of Sucre’s Supreme Court, where they had been for 32 days.
After the massacre in Black October, people protested the killings by pushing a train off its tracks to barricade La Paz. They demanded that the U.S.-backed President Gonzalo Sánchez de Lozada, known as Goni, resign. On October 17th, Goni and his Defense Minister José Carlos Sánchez Berzaín fled to the U.S., where they have remained to this day, where Goni enjoys permanent resident status (Berzaín was granted political asylum in 2007).
“That’s Goni,” Juan Patricio said, pointing to the effigy of the man slouched on the sidewalk. “He has his hand on the money because he is a rich man, and he ruled Bolivia from this perspective of self-interest. And not only was he backed by big business in the U.S., not only did he come to power as a result of U.S. pressure and interference, but he was educated in the U.S., so when he speaks in Spanish, he has an American accent.”
Juan Patricio said that the U.S. never responded to Bolivia’s informal 2005 summons, nor their formal 2008 one requesting the extradition of Goni and Berzaín; Bolivian law does not permit trials in absentia.
“But there were others involved in the massacre — some military and some politicians — who are still in Bolivia,” Juan Patricio told me. He turned, motioning to the Supreme Court. “It’s taken eight years. But now, finally, these politicians and military people are being tried. The case has been going on for nearly two and a half years, with lots of suspensions and delays. It started up again a little over a month ago, and we’ve been here since that first day to witness it, to attend the trial each day, and we’re going to stay until the end.”
“Why do you think it’s taken so long for the trial? Especially with Evo Morales in office now.”
He smiled. “Yes, you would think that, because Evo came to power largely as a result of the massacre and Goni’s being pushed out, he would make a trial his priority, but it’s complicated. Evo’s done some good things — before him our natural gas was 18 percent national and 82 percent foreign. Evo reversed those numbers, but this massacre was committed by the military and traditionally the military and the politicians are very closely connected, so presidents rarely take on the military.”
“We don’t really know what the outcome of all this will be,” Juan Patricio said. “But the alternative is to do nothing, which is worse.” He paused for a moment before adding, “We’re going to try to march with our banners in the Independence Day Parade on Saturday. It’s a big event — even Evo will be here, and we’re hoping that his seeing us will make a difference and make him push for the case to go through without more delays.”
On the evening following the march, I visited the Aymará at their encampment, staying late into the night. They told me about the family members they’d lost in Black October, and about the hardships in their lives since.
“There is no justice for the poor,” a young woman named Margarita told me, sharing that she was a widowed mother of two, struggling to make ends meet. “It is embarrassing for me to be sleeping on the street like this,” she said, sobbing, and blowing her nose into a sheet of toilet paper that an Aymará grandmother named Matilde handed her. “It’s just not right.”
We eventually turned to lighter topics, the women showing me their knitting projects of baby sweaters and cell phone carriers, on which they worked during the weekends and in the long morning and evening hours between breaks in the trial. I played catch with Matilde’s grandson Joel who, at age three, didn’t quite have the coordination for the game and seemed to derive the most satisfaction from landing his large inflatable yellow ball on his grandmother’s head. Soon after sunset, exhaustion set in — from the afternoon march, from the 32-day-long wait outside the Supreme Court — and a hush fell over the campsite. A woman named Susana laid out a blanket, placing an anthill of khaki-colored coca leaves in the center alongside a plastic bag of sugar, and everyone scooted over to form a circle around them. I sat waiting with the Aymará, comforted by their silent camaraderie as I followed their example, dipping the tip of the coca leaf in the sugar and sitting back to chew. I stared up at the glimmering stars, my mouth filling with the taste of bittersweet.
On August 30, three weeks after the Independence Day march, the country’s Supreme Court made a landmark decision: it sentenced five members of the military and three former government ministers to 10 to 15 years in prison. This was not just the first time such a decision had been made but the first time such a case (involving civilian murders at the hands of the military) had even gone to trial in a civilian court. While the Supreme Court’s decision was a huge victory, to many it was not enough. The Aymará’s memories of the massacre were still fresh, and its main perpetrators, Goni and Berzaín were still living free in asylum in the United States. Attempts to bring the two to justice had not succeeded.
The United States has often been a refuge of last resort for state-sponsored dictators. Perhaps the most notorious example is that of former Philippine President Ferdinand Marcos. Wanted in his homeland on charges of corruption, embezzlement, and murder, in 1986 Marcos fled to the U.S., was granted asylum under the Reagan administration, and lived out his final years in a mansion in Hawaii.
In the case of Goni and Berzaín, to prevent a similar story from playing out, a dozen American lawyers, hailing from various private law firms as well as the Center for Constitutional Rights and the Harvard and Stanford Law Schools’ International Human Rights Clinics, have joined forces to file a class action lawsuit.
Mamani v. Sánchez de Lozado and Sánchez Berzaín has the potential to set a precedent. According to James Cavallaro, the Director of Stanford’s International Human Rights Clinic and a co-counsel in the Mamani case, if the Aymará won, this would be the first time a former head of state harbored in the U.S. had been found guilty of crimes against humanity.
“This is an interesting time,” Cavallaro told me, “because this utter and absolute impunity for heads of state is changing. We’re seeing some push back, like the case of [former Liberian President] Charles Taylor, who has just been prosecuted for his role in facilitating severe human rights abuse in Sierra Leone. Unfortunately, though,” he adds with a wry laugh, “the U.S. is not exactly on the cutting edge of this trend.”
Nor is the U.S. on the cutting edge when it comes to media coverage of such human rights abuses, especially, according to Cavallaro, when it comes to Bolivia.
In fact, because of this lack of coverage, Cavallaro, who closely follows Latin American politics, was only vaguely aware of Black October before a soon-to-be law student of his, 26-year-old law student Thomas Becker, stumbled across the story while traveling in Bolivia. Becker planned to travel, practice his Spanish, and learn about the country’s indigenous communities over the course of three months. Instead, upon his arrival in La Paz in the spring of 2005, Becker found himself in the middle of a protest that blocked all the roads surrounding the airport. He told me that’s when he first learned about Black October.
“It’s pretty sad that I didn’t know about it,” Becker says, “especially given how catastrophic it was for the people there. But it just never found its way into the U.S. press.”
In Bolivia, Becker started working with the Comité Impulsor, a group of lawyers, activists, and journalists who were interviewing massacre survivors and the deceased’s family members. When Becker began law school at Harvard in the fall of 2005, he convinced Cavallaro, the then Executive Director of the Harvard Human Rights Program, to take on the Aymará’s case. The following year, Cavallaro and several of Becker’s fellow law students accompanied Becker on a fact-finding mission to Bolivia.
While at Harvard, Becker learned about the Alien Tort Statute (ATS), which allows non-U.S. citizens to file civil suits in U.S. federal courts for human rights violations committed abroad. This, he realized, was what the Aymará needed to be able to press charges against Goni and Berzaín despite the U.S.’s refusal to extradite them.
In September 2007, the case was filed jointly in a federal court in Florida, where Berzaín resides in a gated Miami community, and in Maryland, where Goni lives in the exclusive Chevy Chase neighborhood (he spent most of his youth there). Goni and Berzaín were charged with extrajudicial killings and crimes against humanity but, despite the year and a half of evidence-collecting as well as the indisputable evidence of the deaths themselves, the Eleventh Circuit Court of Appeals accepted the defendants’ appeal for dismissal.
“We asked the court to reconsider, but they refused the request,” says Susan Farbstein, a co-counsel in the Mamani case and a Clinical Director of Harvard’s Human Rights Program. “So now we’re in the process of filing a claim that will make more specific ties between what the defendants had done and the military’s role in the deaths.”
Beyond this re-working of the claim, there is another catch, a further delay, which has the potential to unhinge the statute upon which the entire case is built.
The Supreme Court is currently preparing to hear Kiobel vs. Royal Dutch Petroleum Company, a separate ATS case in which Farbstein is co-counsel to amici. Although the statute has been successfully applied in trials for the past 30 years, the court has decided to use Kiobel to reconsider the extraterritorial reach of ATS — and its future viability.
“The case will be argued on October 1, and decided in early 2013,” says Farbstein. “And until then, Mamani is on hold.”
Farbstein says that, while disappointed, she and her co-counsel were not entirely surprised by this delay since defendants in ATS cases have long been raising arguments about extraterritorially or, as put more bluntly by Becker, “Conservatives [aligned] with Bush have wanted to limit ATS as much as possible. [For them], this extraterritorial reach could mean that Bush could be held accountable for war crimes in other countries.”
Given just how entrenched the Mamani defense is in the Washington political machine (among those representing Goni and Berzaín are Jack Goldsmith, who served in the Bush administration, and Williams & Connolly, the law firm that defended Oliver North during the Iran-Contra Affair), it’s no real surprise that the case against them is going nowhere fast.
There are also serious questions revolving around the legality of Berzaín having received political asylum in 2008.
“When you apply for political asylum, you have to prove you’re not being prosecuted anywhere,” Cavallaro says. “Berzaín was in the most high-profile prosecution in Bolivia in the last century. He is known widely to have been responsible for 67 deaths, but he filled out his asylum form saying he wasn’t facing prosecution.”
Indeed, on Berzaín’s I-589 application for asylum, he answered the question, “Have you or your family members ever been accused, charged, arrested, detained, interrogated, convicted and sentenced, or imprisoned in any country other than the United States?” with a double X mark in the “No” box. He also answered “No” to “Have you, your spouse, or child(ren) ever ordered, incited, assisted, or otherwise participated in causing harm or suffering to any person because of his or her race, religion, nationality, membership in a particular social group or belief in a particular opinion?” even though he ordered the military to deal with those voicing their opinions against the natural gas pipeline.
“Actually, the majority of people who were shot weren’t even involved in the protests; they were in their homes,” Becker says. “This, of course, sent the message, ‘Don’t come out into the streets to protest.’”
Also in the asylum application, Berzaín claimed that were he to return to Bolivia now, he would be tortured by current President Evo Morales, who had been involved in the protests and whom Berzaín claims has publicly threatened him.
Technically, Becker and the other lawyers working on Mamani could look into having Berzaín’s asylum status revoked for his falsehoods, although the actual pursuit of this issue would have to be undertaken by the U.S. government.
“That door is not being closed,” Becker says. “But for now, we’re just continuing with what we’ve been working on. If the Supreme Court decides the U.S. has jurisdiction under the ATS, then we’ll continue with our charges for crimes against humanity. If the court says ‘no,’ then we’ll move forward with state claims for wrongful death.”
In the 2005 documentary film Our Brand is Crisis, director Rachel Boynton traces Goni’s 2002 path to the presidency via the aid of the now-defunct Greenberg Carville Shrum, the political consulting firm partly responsible for Bill Clinton’s 1992 presidential success. Part of their mandate was to burnish his image through positive publicity and dispel the negative image Goni had in Bolivia.
In a pre-election prepping scene, consultant Jeremy Rosner tells Goni, “You’ve still got over half the electorate who can’t stand you…The only question [for them] is, ‘How high should the gallows be?’”
Becker agrees that Goni was disliked by a majority of the population who had bad memories of him from a prior term he’d served as President from 1993 to 1997.
“A lot of the people’s criticism of Goni had to do with him doing the most radical privatization in recent times in Bolivia,” says Becker. “The Water Wars stemmed from policies that he implemented. He went to college at the University of Chicago and was really into the Milton Friedman school of thought. It wasn’t just progressives or the indigenous who were protesting [against his policies]. There were also conservatives. He was not good for Bolivia in the long run, and in the short run, basically he helped out a few buddies. People were fed up with all this money going to corporations and other countries while Bolivia remained poor.”
Until the court passes its judgment on Goni’s case in early 2013, Becker, like the rest of the lawyers working on Mamani, and the Aymará I met in Bolivia, will continue to wait. They will wait for the United States’ famed legal system to mete out justice in the case of two men wanted for crimes against their own people — for an end to the impunity that some former dictactors, such as Goni, have longed enjoyed on our shores.