On January 20, 2023, the Inter-American Court of Human Rights ordered the opening of military archives in Bolivia in a historic ruling for the case of Flores Bedregal v. Bolivia. Photos courtesy CIDH - IACHR/Twitter and CorteIDH/Twitter.
State of Bolivia Must Guarantee Right to Truth in Forced Disappearance Case
Washington, D.C., January 24, 2023 - On Friday, January 20, the Inter-American Court of Human Rights set a new legal precedent for access to human rights information when it ordered the government of Bolivia to open historical military archives concerning a case of assassination and forced disappearance. The sentence in Flores Bedregal v. Bolivia, which found the State of Bolivia responsible for the 1980 disappearance of activist Juan Carlos Flores Bedregal, represents the first time the regional court has insisted that a member state has an obligation to guarantee the right to truth by releasing military documents.
National Security Archive senior analyst Kate Doyle gave expert testimony before the Court in February 2022, addressing the right to truth and the right to information – including military archives – in cases of grave human rights crimes and crimes against humanity. (The full text of that statement appears below.)
The ruling has broad implications for the transparency of military records in the Americas, where many states have long opposed opening the archives of their security forces. In the case of historical human rights investigations, governments have routinely denied access to military and police records to families of the disappeared, official truth commissions, even state prosecutors.
Carlos Flores was 28 years old in 1980, a leading member of the Revolutionary Workers Party, and an alternate deputy in the Bolivian Congress. On July 17, Bolivia’s military seized power in a bloody coup led by General Luis García Meza. A group of army and paramilitary forces attacked the headquarters of the Bolivian Workers Central, where Flores and other party members were attending a meeting. Both Flores and his colleague, Marcelo Quiroga Santa Cruz, a renowned political leader and writer, were shot and presumed killed, their bodies removed from the scene. The victims’ families never received their physical remains.
Flores was from a large family, the only son among four sisters. As soon as they learned about the attack on their brother, his sisters began searching for him, demanding information about what had happened and where Carlos had been taken. But their efforts were frustrated by government stonewalling at every turn. The sisters protested, filed lawsuits, held hunger strikes, attended exhumations, and complained before national and international human rights bodies.
They also demanded that the military open archives that could help clarify the events and perpetrators behind their brother's disappearance. The Ministry of Defense steadfastly refused, claiming national security exemptions and pointing, in particular, to Article 98 in the Organic Law of the Armed Forces, which calls classified military information “secret and inviolable.”
The Bolivian military’s strategy of denial is part of a long history in Latin America of military secrecy, silence, and stonewalling when it comes to revealing information about human rights violations. Unable to obtain access to records through national judicial systems, families of the disappeared have repeatedly petitioned the Inter-American Court to intervene. But although the Court has been willing in the past to express the importance of the right to truth in the text of its resolutions, it has not included a broad obligation to disclose military archives as part of “Reparations” in any other case.
In this instance, the Inter-American Commission’s Special Rapporteur for Freedom of Expression saw an opportunity to challenge the absolutism of military secrecy regarding a disappearance that took place over four decades ago and in the context of a rightwing military coup that has long since been discredited and disavowed. He did so on behalf of petitioners – Carlos Flores’s sisters, now in their 60s and 70s – who never stopped pressing for justice. Former Special Rapporteur Edison Lanza made Bolivia’s failure to open the archives the centerpiece of the Commission’s argument in the case (and asked the National Security Archive to join as an expert), and his successor, Pedro Vaca, presented it in the in-person hearing before the Court in Costa Rica last year.
It worked. In the Reparations section of the Flores Bedregal ruling, the Court ordered Bolivia to complete its criminal investigation of the case without claiming State secrecy or confidentiality, “which are actually a pretext to prevent the investigation.” (para. 178, p. 52) The Court told the State that it had one year to lift restrictions on “all documentation related to the forced disappearance… under the control of the Armed Forces and other state entities.” (para. 198, p. 56) And the Court went further, demanding that Bolivia – one of only four countries in the Americas without a freedom of information law –
adopt the legislative, administrative and any other measures […] necessary to strengthen […] access to information in cases of alleged violations of human rights, and in particular with regard to the regulations that govern the confidentiality of information in the Organic Law of the Armed Forces when it prevents the clarification of the forced disappearance of persons. (para. 197, p.56)
It’s an important precedent for the right to truth in Latin America, and a vindication for Carlos Flores’ family after 43 years of waiting.
* * *
February 10, 2022
I have had the honor of appearing in person before this Court on two other occasions, each time to render expert testimony on the right to information, the right to the truth, and access to military archives that contain relevant information on human rights violations. I was in this courtroom in 2002 for the hearing in the assassination of Guatemalan anthropologist Myrna Mack. I testified in Guayaquil, Ecuador in 2012 for the Diario Militar case. And here we are in 2022 for the case of Juan Carlos Flores Bedregal. My involvement in each of those cases over the years speaks to the continued need to develop strong inter-American principles, standards, and jurisprudence on access to information and the right to the truth.
The Flores Bedregal case offers the Court an exceptional opportunity to issue measures of reparation regarding the obligations of States to guarantee citizens the right to information on serious human rights violations and crimes against humanity. These obligations must not only respond to the demand for justice, but must also specifically affirm Article 13 of the American Convention on Human Rights in guaranteeing the freedom of "every person," as the convention says, "to seek, receive, and impart information and ideas of all kinds.”
In terms of the right to information and the right to the truth, I would characterize Bolivia as a distinct case, a country with very few legal instruments to guarantee access to information, with inconsistent jurisprudence, and hermetic military and security institutions.
In 2019, UNESCO reported that 125 of the 193 UN member states had adopted legislation providing access to official information. Within the Americas, Bolivia joins only Cuba, Venezuela, and Costa Rica in not having a freedom of information law. It is true that Bolivia approved a new constitution in 2009 that promotes the right to communication and information (in Articles 106 and 107) and that establishes transparency as one of its values (in Article 8). But 12 years later, the country has yet to pass implementing legislation that would make the aspirational words of the constitution into law.
Without a law, it follows that there is also no prohibition on the State's ability to withhold confidential information about serious human rights abuses: a prohibition found in the laws of six countries in the Americas. Without a law, there are no set time limits for opening records to the public. There are no rules about how families can obtain and read archived records about their loved one. There is no autonomous authority that can oversee and guarantee a citizen’s right to information.
This case encompasses so many and such profound breaches by the State of its obligations to the right to information that it makes very little sense to try to analyze each aspect. Mr. Juan Carlos Flores Bedregal was assassinated in 1980 and the victim's family sought information about his death and the disappearance of his body a few days after the crime. However, in the 42 years that have elapsed since then, the State has evaded its responsibility towards the relatives in many ways, be it through silence, delays, restrictions, denials, lies or false information; in short, it has been a broad and pervasive obstructionism. The State will have its justifications – we may hear some of them this morning. But let us not lose sight of a simple fact: that more than four decades after the disappearance of Mr. Flores Bedregal, his relatives have not had access to any of the files they sought.
I was invited by the Commission's Office of the Special Rapporteur for Freedom of Expression to address three different issues.
1- the development of principles and standards of comparative and international law and regional best practices to guarantee access to information on serious human rights violations held by the armed forces
There is a broad international consensus that official information on serious human rights violations and crimes against humanity cannot and should not be classified and denied to the victims and to society. That concept has resulted in an extraordinary variety of principles and norms issued over the last 20 years that are directly related to this case. Among the most important are:
All make extensive references to the imperative of access to archives containing information on human rights, including military archives.
2- the right to access information on serious human rights violations contained in military archives, the scope, content and obligations of the State
Access to official information, including military files, begins with a freedom of information law that is based on a presumption of publicity, except for rare exceptions clearly outlined in the rule. For example, freedom of information laws define the meaning of "national security" so that military institutions cannot arbitrarily designate any information they want as classified. There are no “inviolable secrets” in the context of a regulatory framework on the right to information – a phrase that comes from Article 98 of the Organic Law of the Bolivian Armed Forces and has been used by the State to justify an endless reserve of some relevant information in this case.
In the case of information concerning serious violations of human rights and crimes against humanity, there is no justification for continuing to classify it as secret. According to the Tshwane Principles, 10A(I): “There is an overriding public interest in the disclosure of information about serious violations of human rights or serious violations of international humanitarian law, including crimes under international law, and systematic or widespread violations of the rights to personal liberty and security. Said information may not be classified for reasons of national security under any circumstances.”
In all international norms and standards, victims of human rights violations and their families must have direct access to information on the human rights crimes that affected them. Their right to the truth exists whether or not they can expect justice in their case, a right that is most appropriately associated with Article 13 of the American Convention on Human Rights. As stated in the UN principles on impunity written by Joinet/Orentlicher (Principle 4, THE RIGHT OF VICTIMS TO KNOW): “Regardless of the actions they may bring before the courts, victims and their families have the imprescriptible right to know the truth about the circumstances in which the violations were committed and, in the case of death or disappearance, about the fate of the victim.”
3- will report on the response of the States of the region to requests for access to information contained in military files and its impact on access to justice
In many Latin American countries powerful military institutions have ruled without regard to civilian control or oversight. Dictatorships endured for many decades; today we live with this legacy. That is why it has not been easy to affirm that the right to information and the right to truth extend to military institutions. But in cases where access to military archives has been granted, giant strides have been made: the Guatemalan genocide case, the trials of military officers in Argentina, the Paraguayan Archive of Terror – which restored identity and clarified the fate of thousands of victims for their families.
The recovery of information from military archives can serve to nurture justice – but also to help victims and their families, to strengthen historical memory, and to even improve the very security institutions themselves, which benefit from transparency.
To conclude:
The continued obstruction of military archives has multiple effects on Bolivians today. The lack of access to historical archives prolongs the suffering of families seeking information about their missing loved ones or clandestine graves. It perpetuates impunity and the cover-up of past human rights crimes. It allows officers with blood on their hands to rise through the ranks and retire without being held accountable. It destroys society's ability to truly study and analyze the past, to pass on the lessons to future generations; damages the credibility of institutions and the rule of law; promotes conspiracy, secrecy, silence and ignorance; violates the right of Bolivians to the truth about their own history.
The solution would be a series of reparation and non-repetition measures, in accordance with international and inter-American principles regarding access to information and the right to the truth.
Bolivia must pass a law on access to information, which is based on a presumption of publicity. The law must include a prohibition on the confidential classification of all information related to serious human rights violations (modeled on the law of access to public information of Mexico, Article 14, “Information may not be classified when the investigation of grave violations of fundamental rights or crimes against humanity is at stake.”). It must also incorporate an autonomous and independent entity that guarantees access and resolves disputes.
Information is restorative – and not only in terms of justice. It is restorative for a society that has lived through periods of dictatorship, repression, State violence, the use of State institutions as instruments to murder, torture, or disappear. Information helps recover historical memory and contributes to the guarantee of non-repetition. In addition, information can be restorative for the victim and for their family. It can return a sense of certainty about what happened, speak to the victim's experience, their identity, and their struggle.
These are reflections that have already been considered by the Court in other cases. My recommendation today is that they become reparation measures based on Article 13 of the American Convention. The Flores Bedregal case is an opportunity to create new standards for the inter-American system.
Thank you very much.
Kate Doyle, Senior Analyst, National Security Archive
Lea la declaración pericial en español aquí >>