ERI filed an amicus curiae (friend of the court) brief this past week in the U.S. Court of Appeals for the Eleventh Circuit in Mamani v. Sánchez de Lozada, a case brought by Bolivian plaintiffs against former Bolivian President Gonzalo Sánchez de Lozada and former Minister of Defense José Carlos Sánchez Berzaín.  The Mamani case involves claims arising out of the 2003 massacre of more than 65 Bolivian civilians who were killed in their homes or in public spaces by Bolivian military forces under the command and control of the defendants. Among the victims was an 8-year-old girl who was killed by a sharpshooter while playing in the window of her mother’s bedroom. In the wake of the attacks, in October of 2003, Lozada and Berzaín stepped down from their posts in Bolivia and fled the country, taking refuge in the United States. 

The Bolivian plaintiffs filed suit in U.S. federal court for these violations of international law in 2007, after Lozada and Berzaín refused to return to Bolivia to stand trial. The families claim that the Bolivian military’s campaign of terror—which was authorized and deployed by Lozada and Berzaín—amounted to extrajudicial killing and crimes against humanity, and was an unlawful response to the ongoing civilian demonstrations at the time, which challenged the Lozada administration’s gas and economic policies. The Eleventh Circuit recently ruled that the case should be dismissed, and the plaintiffs have asked that court to reconsider its decision.

ERI joined other human rights organizations and scholars in submitting amicus briefs in support of the plaintiffs’ petition for rehearing to the Eleventh Circuit. ERI’s brief addresses the proper application of the standard for crimes against humanity in federal court in the United States.  Under international law, crimes such as murder or torture constitute crimes against humanity when they are part of a “widespread” or “systematic” attack against a civilian population.   ERI’s brief argues that the Eleventh Circuit’s recent decision dismissing the case was in error because the court misapplied the crimes against humanity standard in a number of ways. First, the court improperly combined the determination of whether the attack at issue was “widespread” or “systematic” into a single inquiry based almost entirely on the number of victims. Second, the court wrongly ignored allegations of how “systematic” the attack was, including that the attack was planned and coordinated carefully by important state officials. Finally the court inappropriately set an arbitrary numerical threshold for the number of victims required to constitute crimes against humanity.

Mamani is an important case to watch because it raises a number of critical legal issues in addition to the meaning and scope of crimes against humanity.  Some of these issues were addressed by other amici in briefs also filed last week.  One key issue, addressed in an amicus brief filed by the Center for Justice and Accountability (CJA), is the availability of a “command responsibility” theory of liability—a theory that extends liability to high-level officials who authorize or permit violations of international law by their subordinates. This theory of liability is widely recognized under international law and was recognized in prior Eleventh Circuit decisions. CJA’s brief argues that the Eleventh Circuit failed when it disregarded this precedent. 

A second critical issue was addressed in a brief submitted by Cohen Milstein Sellers & Toll PLLC on behalf of professors of civil procedure. The brief addresses the Eleventh Circuit’s contravention of the Federal Rules of Civil Procedure and of Supreme Court precedent in Ashcroft v. Iqbal, and argues that the Eleventh Circuit court wrongly adopted an unauthorized heightened pleading standard that allowed the judges to substitute their own doubts about the case for the legal standards against which the plaintiffs’ claims should have been judged.  A third issue of importance was addressed in a brief prepared by Professors Phillip Alston and Sarah Knuckey from NYU School of Law. Their brief argues that the Eleventh Circuit’s decision was contrary to ATS jurisprudence and well- established and universal norms of international law prohibiting extrajudicial killings.