Amicus Brief in Mamani v. Sánchez Berzaín

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Amicus Brief in Mamani v. Sánchez Berzaín

On September 29, 2011, ERI filed an amicus brief to the U.S. Court of Appeals for the Eleventh Circuit in Mamani, et al. v. Sánchez de Lozada and Sánchez Berzaín,, an Alien Tort Statute (ATS) suit on behalf of ten Bolivian plaintiffs against former Bolivian President Gonzalo Sánchez de Lozada and former Minister of Defense José Carlos Sánchez Berzaín. The Mamani plaintiffs allege that the defendants were complicit in a 2003 massacre (“Black October”) that involved targeted killings of civilians, including of their family members, in violation of international law prohibiting extrajudicial killing and crimes against humanity.

In November 2009, the district court ruled in plaintiffs’ favor on a motion to dismiss, allowing claims for crimes against humanity and extrajudicial killings to move forward against both defendants. However, in August 2011, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit overturned the district court decision, finding that the case should be dismissed.  The panel found that plaintiffs had not adequately shown the defendants’ personal involvement in extrajudicial killings and had not alleged sufficient facts to show crimes against humanity.  In September 2011, counsel for the plaintiffs filed a petition for rehearing and rehearing en banc, asking the full Eleventh Circuit to reconsider the panel’s decision.

ERI joined other human rights organizations and scholars in submitting amicus briefs in support of the petition to rehear the case. ERI’s brief argues that the Eleventh Circuit’s August 2011 decision fundamentally misapplied the universally recognized standard for crimes against humanity 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 points out a number of errors in the panel’s analysis, including:

  • combining the determination of whether the attack was widespread or systematic into a single inquiry based almost entirely on the number of victims
  • ignoring allegations of how systematic the attack was, including that the attack was planned and coordinated carefully by important state officials; and
  • setting an arbitrary numerical threshold for the number of victims required to constitute crimes against humanity.

In addition to ERI’s brief, partner organizations also filed amicus briefs in support of the plaintiffs. The Center for Justice and Accountability (CJA) filed a brief arguing the panel should not have required a showing that the defendants were personally involved in the killings because plaintiffs are allowed to allege that defendants were liable by virtue of their position as commanders of the soldiers who actually did the shooting (the theory of command responsbility).  Professors Phillip Alston and Sarah Knuckey from NYU School of Law submitted a brief arguing that the panel decision was contrary to ATS jurisprudence and well- established and universal norms of international law prohibiting extrajudicial killings.  Finally, Cohen Milstein Sellers & Toll PLLC submitted a brief on behalf of professors of civil procedure, arguing that the panel’s decision violated both the Federal Rules of Civil Procedure and Supreme Court precedent by adopting an unauthorized heightened pleading standard that allowed the panel to substitute their own doubts about the case for the legal standards against which the plaintiffs’ claims should have been judged. 

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