Mamani v. BerzainCommand responsibility for the killing of indigenous protestors in Bolivia
On September 29, 2011, CJA filed an amicus brief in support of the Plaintiff’s petition for a rehearing en banc of an 11th Circuit panel’s decision in Mamani v. Berzain. The brief was filed on behalf of retired military professionals, scholars and professors of military law and argues that the 11th Circuit decision contravenes the well-established doctrine of command responsibility under both domestic and international law.
In 2007, ten victims of human rights violations in Bolivia filed civil suits under the Alien Tort Statute and Torture Victim Protection Act against the former President of Bolivia Gonzalo Daniel Sánchez de Lozada Sánchez Bustamante and the former Minister of Defense Jose Carlos Sánchez Berzaín.
Plaintiffs allege that during the anti-government protests in Bolivia in September and October 2003, the Defendants permitted Bolivian security forces to use deadly force against unarmed civilians. As a result, Bolivian security forces under the command and control of the Defendants killed 67 civilians and injured 400 Bolivians that were predominantly from the indigenous Aymara communities. Plaintiffs alleged that although the Defendants did not personally commit the attacks, they are responsible as a result of their command responsibility over the military, and their involvement in conspiring and aiding and abetting the attacks.
With the help of the International Human Rights Clinic at Harvard and the Center for Constitutional Rights, Plaintiffs filed claims of crimes against humanity and extrajudicial killing for the deaths of their family members during the 2003 massacre. See the complaint here.
In 2009, the Southern District of Florida denied the Defendants’ motion to dismiss and permitted Plaintiffs’ claims for extrajudicial killing and crimes against humanity to move forward. However, upon appeal to the 11th Circuit, a three judge panel dismissed the complaint, ruling that the plaintiffs had not pleaded sufficient facts to hold defendants accountable for the harms alleged under the Alien Tort Statue. Namely, the panel held that without more facts of the crimes and defendants’ personal involvement in the attacks, the claims were not sufficient to state a violation of international law. Plaintiff’s filed a petition for rehearing en banc, which is currently pending before the 11th Circuit.
CJA’S AMICUS BRIEF
CJA filed an amicus brief in support of the Plaintiffs’ petition for rehearing en banc. In our brief, we argue that the 11th Circuit panel erred by requiring a showing of direct personal involvement to establish command responsibility. CJA argues that such a requirement is only necessary to establish an official’s direct responsibility for the harms alleged, not to establish command responsibility. Read the amicus brief here.
Under well-established 11th Circuit precedent and domestic and international law, a high ranking official can be held accountable for crimes committed by persons under their effective command if they knew or had reason to know of wrongful conduct committed by their subordinates and failed to prevent or punish the conduct. Although the commanders must have some knowledge of the atrocities, they need not be aware of, or direct, the specific deaths of the plaintiffs’ decedents to be held responsible.
By requiring Plaintiffs to show that Defendants had specific knowledge or direct involvement in the deaths of Plaintiffs’ decedents, the 11th Circuit panel departed from the Supreme Court’s application of the command responsibility doctrine in In re Yamashita, 327 U.S. 1, 16 (1946); the 11th Circuit’s test for command responsibility, as stated in Ford v. Garcia, 289 F.3d 1283, 1288-89 (11th Cir. 2002); and well-established tenets of military law.
In Yamashita, one of the first US cases to acknowledge the doctrine, the Supreme Court found that a Japanese military commander could be held responsible for the widespread atrocities committed by Japanese military and prison guards in the Philippines during World War II, even if he did not order the specific harms. The 11th Circuit set forth the elements of command responsibility for ATS cases in Ford v. Garcia. CJA’s brief argues that the panel decision risks limiting liability for human rights violations to low-level actors, and therefore undermines the very purpose of the doctrine of command responsibility and this merits rehearing.
CJA PARTNERS AND OTHER AMICUS BRIEFS IN SUPPORT OF PLAINTIFFS
CJA filed our brief with pro bono partner law firm Wilson Sonsini Goodrich & Rosati on behalf of retired military professionals, scholars, and experts in military law. In addition to CJA’s amicus brief, three other briefs were filed in support of the Plaintiffs’ petition.
- Earth Rights International filed a brief arguing that the 11th Circuit decision misapplied the standard for crimes against humanity under international law. Available here.
- Professors Phillip Alston and Sarah Knuckey from NYU School of Law filed a brief on the standards for extrajudicial killing. Available here.
- Cohen Milstein Sellers & Toll PLLC filed a brief on behalf of professors of civil procedure arguing that the 11th Circuit decision improperly imposed a heightened pleading standard that goes against the Federal rules. Available here.