February 23, 2005

Gonzalo Sanchez de Lozada and Genocide

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After reading Barrio Flores' article on the charges brought against former Bolivian president Gonzalo Sanchez de Lozada (GSL) for allegedly engaging in Genocide, I took a tour around Bolivian newspapers to read about it in more detail.

Sure enough, newly appointed Attorney General (AG), Pedro Gareca, formally filed the charges to the Supreme Court. The AG, charges GSL and 15 members of his cabinet with Genocide. The former president and two of his former ministers (Carlos Sánchez Berzaín, Defense Minister and Minister of Government Yerko Kukoc) are accused of committing the crime of Genocide and the rest of the ministers are accused of being accessories to the crime.

The thing that attracted my attention is not that the process will go on, because after all, GSL is a very powerful man and, I am sure, he has the means to at least try to stop the accusations against him and his ministers. Although, it seems at this point in time that he faces an uphill battle. There are other powerful forces in the country who want him brought to justice. With the latest actions, GSL is one step closer to be tried. Instead, the thing that attracted my attention was the curious charge itself.

Genocide, seems to me a BIT out of place and essentially technically wrong. I asked myself, why would an AG of a country take the risk and accuse someone of a crime which doesn't fit the actions in question?

The first thing I did is look for the definition of Genocide. I found this definition in the Merriam-Webster dictionary. I looked in various dictionaries, but they are essentially the same definitions as the one in Meriam-Webster. The definition states: "the deliberate and systematic destruction of a racial, political, or cultural group".

But, of course, many things in this world, including law, are subjective and thus subject to own interpretations and definitions. So I tried to look for definitions of Genocide in other more international (broad) sources. One such source, the International Criminal Court (ICC) can be seen as the place to provide a more exact and more universal definition of Genocide. (you can find the definition on this UN link, which is of course the mother organization of the ICC)

The ICC's definition of the crime of Genocide is:

". . . Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such:

  • killing members of the group;
  • causing serious bodily or mental harm to members of the group;
  • deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
  • imposing measures intended to prevent births within the group;
  • forcibly transferring children of the group to another group.

So, we can see, it is more exact as to what kinds of crimes it applies to. However, it still refers to the meaning cited by the dictionaries. Similarly, in Amnesty International's website, we can find a Spanish definition of Genocide (genocidio), which is pretty much identical at the one used by the ICC. That was to be expected, I thought.

Finally, just to make sure...., I consulted the academic world and found an interesting site where we can find various scholarly definitions of Genocide.

So, where does all this research takes us?

At the beginning of the issue. Is it right to prosecute GSL for Genocide, taking into account that the events in question were carried out in the context of a mass demonstration where the Government of Bolivia (personified by GSL) tried to, allegedly maintain order? At the heart of the question is whether or not the charge of Genocide is correct.

Well, perhaps it is not correct according to the world's definition of Genocide, as we have seen. However, it is the only available tool in the Bolivian Penal Code (BPC). According to the BPC, in the second book, title one, chapter four, which deals with international law crimes and if we read article number 138, titled Genocide, we can, surprisingly, find "almost" the same definition the rest of the world has of Genocide. It reads (in Spanish): "El que con propósito de destruir total o parcialmente un grupo nacional, étnico o religioso, diere muerte o causare lesiones a los miembros del grupo, o los sometiere a condiciones de inhumana subsistencia, o les impusiere medidas destinadas a impedir su reproducción, o realizare con violencia el desplazamiento de niños o adultos hacia otros grupos, será sancionado con presidio de diez a veinte años. En la misma sanción incurrirán el o los autores, u otros culpables directos o indirectos de masacres sangrientas en el país."

It is the highlighted sentence on which the Bolivian AG is relying to charge GSL and his ministers with genocide. Translated it says "In the same manner, the authors and/or direct or indirect culprits of bloody massacres in the country, will be penalized."

In the eyes of the population and of Mr Gareca, GSL massacred 56 people back in October 2003 and according to the interpretation of "bloody massacres", which is taken as "...the violent action by governments or its representatives to solve via armed force social or political conflicts...." as stated in Benjamín Miguel Harb, Código Penal Boliviano y Leyes Conexas, Pág. 125, Mr Gareca has decided to charge GSL with Genocide. (source link)

Now we can argue all night long whether GSL and his ministers have committed Genocide or not. I think it is clear they have not. The charge is simply technically wrong. GSL's actions could not be qualified as Genocide. Crimes against humanity, perhaps, but not Genocide.

In the end, in the eyes of the world, the charge of Genocide is still raising brows, if not contempt, about Bolivian law. If not because the charge is technically wrong and that means that Bolivian lawyers do not know the difference between Genocide and other crimes, but because this could also mean that Bolivian lawyers are incapable of making logical penal law. In any case, it is clear to me the BPC has to be brought in sync with the rest of the world.