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Criminalizing Environmental Activism, by Moira Birss

Berta Cáceres, assassinated in her home on March 3, 2016, was just one of hundreds of Latin American environmental activists attacked in recent years. At least 577 environmental human rights defenders (EHRDs) were killed in Latin America between 2010 and 2015—more than in any other region—as documented by Global Witness. But in addition to physical violence, EHRDs face threats and harassment through judicial proceedings, severely impeding their work. Before Cáceres’ murder, she faced trumped-up charges stemming from her leadership in opposition to hydroelectric dams on her indigenous community's territory.

Judicial system harassment attempts to intimidate EHRDs into silence. Such criminalization transforms activism into crime to avoid bloodier tactics that tend to generate greater sympathy and public outcry. Its effectiveness as a tool to silence activists is twofold: not only does it hinder their work because of the time, energy, and financial resources they must dedicate to legal defense but it also stigmatizes and alienates them from support networks.

The most obvious form of criminalization is enforcement of criminal penalties for actions that at most warrant administrative sanction. It can also include limits and restrictions on social protest and individual and collective peaceful resistance; arbitrary detention; specious prosecutions on criminal, civil, or administrative charges; unduly elevated charges; preemptive measures like pretrial detention; lack of due process guarantees; and defamation and stigmatization by public officials.

While non-state actors may be responsible for much of the intimidation and physical attacks that EHRDs face, the use of intelligence and judicial systems to criminalize EHRDs requires direct state participation. Although impunity for crimes by state officials and their non-state accomplices remains high in the region, judicial systems manage to work efficiently against EHRDs, often successfully halting their work, in some cases permanently. And as the Cáceres case demonstrates, when criminalization has not succeeded in silencing EHRDs, antagonists may resort to lethal methods.

The experience of Guatemalan indigenous EHRD Aura Lolita Chávez Ixcaquic, and the patterns she has observed elsewhere, illustrate the complicity of government officials in judicial harassment and smear campaigns. “It has primarily been government officials who have filed complaints against megovernors, mayors, legislators, ministers,” she told me in an interview this May. “They serve at the behest of companies. Of course, the companies themselves are the masterminds, including the multinationals operating through the national oligarchy.”

Why do states participate in such concerted efforts to stop EHRDs? The answer lies in these activists’ ongoing opposition to industrial exploitation of natural resources and usurpation of traditional land tenure systems. EHRDs can be local community leaders and members, indigenous leaders, environmental activists, and others acting to protect land, water, forests, animals, and the territorial rights of local communities to serve as stewards of those resources. They advocate and organize against large-scale mines, oil drilling, hydroelectric dams, biofuel plantations, cattle ranches, new highways and railways, logging operations, and other types of industrial development that states facilitate to advance economic development.

Latin America's 600 indigenous groups are often at the front lines of this conflict over the use and purpose of land and natural resources because many of the region's most sought-after resources lie in their ancestral territories. Nearly every country in the region has ratified International Labor Organization Convention 169, which stipulates that governments consult with indigenous communities that will be affected by proposed industrial development and extractive industry projects, public or private, on their lands. In some cases, national laws enact even more stringent requirements for such consultations. Yet, in practice, such projects tend to run roughshod over the rights and interests of these communities.

Chávez Ixcaquic called this phenomenon “another invasion, through which the macroeconomic and neoliberal model creates laws to open the doors to multinational companies to invade our territories without consulting with or providing information to us.” This neocolonialism relies on racist attitudes against indigenous and other tribal peoples, providing governments and companies with an excuse to behave as though the resources they encounter belong to them, regardless of the inhabitants of the area or the social and environmental consequences. Of course, the United States is no exception, as demonstrated in the violent repression and criminalization of those protesting the construction of the Dakota Access Pipeline through the territory of the Standing Rock Sioux.

When states prioritize business interests over the rights of everyday citizensparticularly the poorest and most marginalized—they tend to see them as obstacles instead of as citizens with needs to be addressed. Indeed, “the triumvirate of power” in Guatemala and other countries in the region, as Chávez Ixcaquic refers to the government, the oligarchy, and international businesses, actively accuse EHRDs of being “trouble-makers, savages, and enemies of development who scare away tourism.”

Lenca protesters demonstrate at the site of the proposed Agua Zarca dam project in Honduras. Berta Cáceres was killed for her opposition to the project. EDGARD GARRIDO/ EARTH FIRST JOURNAL

The Legal System as a Weapon Against EHRDs

Honduras provides a telling example of how political and economic elites whose interests are jeopardized by EHRDs have used the legal system to silence them. After an exhaustive investigation into the murder of Cáceres and other EHRDs in the country, Global Witness concluded, “While lone thugs and gangsters often end up in court, there is frequently a conspiracy of actors engaged in silencing the activists. These are not isolated incidentsthey are symptomatic of a systematic assault on remote and indigenous communities by state and corporate actors.”

In late May 2017, for example, a Garifuna leader in the Caribbean coastal region of Honduras, César Geovanni Bernardez, was detained and charged with usurpation and “illegal possession” of land. The charges stem from a complaint filed by Carivida, a resort community owned by Canadian businesses seeking to expand along the Caribbean. Garifuna communities are engaged in an ongoing effort to reclaim ancestral land from Carivida. Furthermore, just days before his arrest, Bernardez and others were personally threatened by a local mayor, whom the communities accuse of involvement in illegal land sales and who is believed to have close connections with members of the Honduran military.

That Latin American governments readily accommodate economic interests comes as no surprise to Gustavo Castro, a prominent Mexican social-movement leader and the sole eyewitness to Cáceres’ murder. Through his work coordinating anti-mining coalitions throughout Latin America, Castro has often seen examples of governments attempting to streamline foreign investment by modifying local lawsnot just trade rules or intellectual property statutes but also laws governing expressions of dissent. In paving the way for free trade agreements (FTAs), Latin American governments have “expanded the concept of expropriation,” Castro argued, putting in place rules that abrogate their own sovereignty and the rights of their people in the service of transnational companies.

As Castro explained, the cancellation of a concession equates expropriation and protest to a trade impediment when it blocks the flow of goods. To avoid trade disputes, governments outlaw protest and criminalize activists. “It is cheaper for governments to throw some human rights defenders in jail than pay for those million dollar lawsuits,” he said.

The rules imposed by the Peruvian government after the signing of the U.S.-Peru FTA and the criminalization of EHRDs that occurred in response to protests illustrate Castro's point. In 2008, the Awajún and Wampis, whose ancestral territory spans the Northern Peruvian Amazon, along with other indigenous peoples from across the Amazon, organized massive protests against a package of proposed legislative decrees (like executive orders) designed to make Peruvian law conform to the U.S.-Peru FTA. These decrees would have expanded access for companies to exploit Amazonian lands for oil, gas, mining, and logging.

Protests continued through 2009, and tensions escalated into a violent confrontation with police officers on June 5, 2009, resulting in 33 deaths. Afterwards, 54 protesters faced charges for crimes like homicide and rebellion, and the state prosecutor requested the most severe penalties, including life sentences. As just one example of the absurdity of the charges, the president of a Peruvian Amazon indigenous federation, AIDESEP, faced 35 years to life for “instigation,” even though he was in Lima at the time of the confrontation. In 2016, all defendants (including one who died while on trial) were absolved of the charges. Several of the laws the Awajún and Wampis protested were later deemed unconstitutional because they had not been written in consultation with indigenous communities.

Participants in the Amnesty First march to Ecuador’s Congress and Presidential Palace on May 30, 2017, in which indigenous peoples and allies demanded amnesties and pardons for criminalized indigenous leaders. CONFENIAE

The bending of government policy to the needs of industry is clear even in Ecuador, whose former president, Rafael Correa, rode into power on Latin America's pink tide and implemented policies that many on the Left heralded. During his tenure, Correa granted numerous mining and oil concessions to foreign companies on indigenous groups’ ancestral territory and in environmentally sensitive areas like the Amazon rainforest. When EHRDs and indigenous communities protested those moves, they were stigmatized, defamed, and thrown in jail. In some cases, their organizations were also shut down.

In a case still ongoing in Ecuador, dozens of members of the Shuar Arutam, an indigenous nation whose ancestral territory spans the mountain range along the Ecuador-Peru border, face criminal prosecution stemming from their activism against an openpit copper mine in their homeland. The government did not consult with the Shuar Arutam nation about the project, run by Explocobres S.A., a subsidiary of two Chinese state-run companies. As it moved forward, the Shuar tried to engage various government entities in dialogue, demanding their right to prior consultation under the Ecuadorian constitution as well as international law. When those attempts failed, the Shuar turned to protest.

Protests continued for months. After a December 2016 confrontation with police and military officials that resulted in the death of one policeman and injuries to several Shuar and police, Correa declared a “state of exception” essentially suspending rights and due processand sent the military into the province. Correa also defamed the Shuar on television and Twitter, calling them “semi-delinquents.” The national police then raided the offices of the Shuar federation and detained its president, Jimpikit Augustín Wachapá Atsasu, on charges of “inciting unrest” based on a Facebook post. Wachapá was later released, though the legal process against him continues. At least 80 more have been indicted since August 2016 for protests against the mine, and The National Indigenous Confederation of Ecuador (CONAIE) has counted more than 700 people currently criminalized for protest in Ecuador. CONAIE's “Amnesty First” campaign, launched in May 2017, called on the newly elected president, Lenin Moreno, to pardon or grant amnesty to the criminalized indigenous leaders before they would agree to his request to meet with the organization. Although Moreno's governing plan states, “nature is above the economy, [and is] invaluable,” he has also made it clear that he plans to continue the mega-mining projects planned or underway in high-biodiversity areas like the Cordillera del Cóndor. Paradoxically, he also promises to “re-green” the country, using revenues from oil and mining projects.

This double-speak is evident in states that are home to companies behind many of the resource-exploitation projects being contested by Latin American EHRDs. In 2016, Lolita Chávez Ixcaquic was invited to speak before the European Parliament about the companies operating in her region of Guatemala. “But when I spoke about hydroelectric dams, the EU wasn't so happy.” After all, she explained, our resources also “are sought after by the world powers.”

International financial institutions, both public and private, also participate in the increased drive for industrial development and natural resource exploitation. As Castro stressed, “behind all these mega-projects are others that benefit from these projects: financiers, service companies, infrastructure companies, and yet others that, like vultures, are waiting for the call.” And often the only force standing in their way is EHRDs.

The financier of the Peruvian Yanacocha and Conga gold mine projects, which have a long history of criminalizing local opposition, is the International Finance Corporation (IFC), the private lending arm of the World Bank. Like many extractive industry projects in Latin America, these mines, among the largest gold mines in Latin America, are a joint venture between the IFC; a U.S.-owned company, Newmont Mining Corporation; and a Peruvian company, Minas Buenaventura.

In one telling instance, in April 2013, local campesino leaders attended a meeting about the Conga mine organized by the regional governor. Because the location selected by the governor would not accommodate all the community members wishing to participate, the leaders asked the governor to move the meeting to the central plaza. During the meeting, community members made their rejection of the project clear, while the governor defended it. Afterward, the governor filed a criminal complaint against community members for aggravated kidnapping, alleging that he had been forced to participate in the meeting under threat of physical violence. It took nearly four years for the charges to be dismissed. As with cases of hundreds of other protesters and EHRDs facing court proceedings, a dismissal of charges indicates a political rather than evidentiary basis for the prosecutions.

Máxima Acuña de Chaupe, an indigenous woman from the Yanacocha mine area, also suffered physical attacks and criminalization stemming from her steadfast refusal to give up her land to the project. In 2011, Acuña was prosecuted on charges of alleged land invasion. She was convicted, sentenced to prison, and ordered to compensate the company. Only when the case made it to the Supreme Court, five years later, was she exonerated of all charges and her rights to the land fully recognized.

Stigmatization and Defamation: A Tool to Silence

Often employed alongside criminalization campaigns are efforts to stigmatize and defame EHRDs. This strategy is particularly useful when there is a paucity of evidence to support legal claims against EHRDs. If the ERHD is so demonized that she loses community support, defending herself in court becomes more difficult, as does defending herself before the court of public opinion. In many cases, government officials or companies carry out publicity campaigns to incriminate EHRDs before the justice system has examined a case, knowing the media will disseminate the stigmatizing messages.

“When the first charges began to be filed against me,” remembered Chávez Ixcaquic in our May 2017 interview, “the media didn't explain that I have the right to prove my innocence but rather assumed that the accusation was truthful.” Media amplification increases the emotional toll caused by false accusations. Even if the defendant is not found guilty, the reputational damage can be sufficient to severely curtail, or even render impossible, future environmental defense work.

Irish NGO Front Line Defenders has documented a particularly acute case of the criminalization and stigmatization of EHRDs in Guatemala:

Many criminal proceedings are launched by private companies (often backed by European and North American governments) related to the mining sector and the construction of dams, spuriously accusing HRDs of crimes such as acts of terrorism, usurpation of land, kidnappings and others … State authorities continue to publish statements and press releases in which they publicly incriminate HRDs on unverified charges.

The damaging effects can be particularly potent for women in Latin America. Men are often the most visible EHRD targets for threats, attacks, and criminalization. But as the experience of Berta Cáceres demonstrates, women, too, are often fearless leaders of community resistance, and they can also pay dearly for it.

Such is the case of Lolita Chávez Ixcaquic, who began her adult life as a teacher in her Maya K’iche’ village in Guatemala's Quiche province but soon became a widely-recognized leader of the council of K’iche’ communities, which supports the 87 K’iche’ communities and their traditional authorities in fights against the expansion of mining, hydroelectric, and agro-industry megaprojects.

Throughout her defense of K’iche’ land rights, Chávez Ixcaquic has received multiple death threats, survived an attempt on her life in 2012, been the object of smear campaigns and faced criminalization. “They have accused me of illicit association, of plagiarism and kidnapping, of conspiracy … for opposing multinational companies, principally mining and hydroelectric projects,” she told me. Over the years, Chávez Ixcaquic has confronted at least 25 legal cases against her, though it is hard to be sure of the exact number, let alone nature, of the legal complaints and charges against her because authorities do not always make this information available. At times, she has had to file freedom of information requests to learn the details of cases pending against her.

Chávez Ixcaquic has also been targeted in a sexualized way, as are many women EHRDs. “As women, we aren't affected by criminalization in the same way as men,” Chávez Ixcaquic told me. For example, “when they threaten me with going to jail, they tell me that ugly things will happen to me there. They tell me they will rape me, both on the way to the jail and once I am there.”

Chávez Ixcaquic did not mince words when she spoke of the effects of her criminalization. “To live with false accusations is to live with constant psychological torture,” she reported. “It has affected my life, my day-to-day. I began to be seen with all those stigmas attached to me. It's been said that I am a threat to national security. The way I was treated was exhausting and has worn down my social life, my family life, and my economic situation.”

To survive both physically and emotionally, Chávez Ixcaquic explained, she has formed support networks with other women to provide emotional, spiritual, and organizational assistance. “Creating community is what has helped me.”

Such support is necessary because judicial harassment and the accompanying stigmatization have multiple negative effects, many of which may particularly affect women: personal and familial trauma and shame, the inability to carry out one's environmental defense work, loss of paid work, and mistrust within the family or community. Furthermore, the stigma of having served jail time can stick with an EHRD even after acquittal, particularly when the criminalization was paired with a defamation campaign.

Criminalization is also a particularly potent weapon in places like Guatemala that have lived through civil conflicts. “Fear and guilt are internalized,” said Chávez Ixcaquic. “Because we dealt with so much criminalization during the war, we still have those traumas. They are collective traumas. So, people began to distrust me more, to cut of contact with me. It was like I was marked.”

Lolita Chávez Ixcaquic (center) of the Quiché People’s Council meets with GHRC’s “Women in Resistance: defending our bodies, our rights, and our mother earth” delegation in 2012. GUATEMALAN HUMAN RIGHTS COMMISSION

What Isn't Criminalized: Attacks Against EHRDs

Though police and judicial systems act decisively against EHRDs, impunity from prosecution for other crimes is rampant in the region. In recent years, various UN entities and international experts have sounded the alarm about general impunity rates in Latin America, and set up special commissions to investigate impunity and corruption in Guatemala and Honduras. Yet, according to Global Witness, the crimes committed against EHRDs in Honduras, from murders to physical attacks to specious prosecutions, “are being met with chronic levels of impunity. On rare occasions the triggermen are arrested, but the people who contract them are almost never punished.”

Chávez Ixcaquic has experienced similar impotence in the face of threats and attacks against her, even regarding assassins. She spent much of 2016 working with the K’iche’ Peoples’ Council to halt illegal logging in communally owned forests in Quiche province. In late July 2016, she and community members reported the suspicious presence of logging trucks to the National Forestry Institute (INAB) and the police. The delayed reaction from INAB and the police gave a group of armed men time to track down Chávez Ixcaquic and community monitors and threaten them. Though she denounced the threats to the police when they did arrive, the subsequent police report made no mention of the threats, let alone the armed men.

If the triggermen are rarely prosecuted, officials of the companies themselves almost never see the inside of a courtroom. Or when they do, they get off scot-free. Take the case of the Canadian mining firm Hudbay Minerals and its involvement in violence against local community activists in Guatemala. In April 2017, the former head of security of Hudbay was acquitted of murder and assault charges in a case involving nine indigenous leaders, one of whom was brutally killed.

According to community reports, on Sept. 27, 2009, Hudbay security guards, under the command of Mynor Padilla, head of security and a former colonel, entered the Mayan Q’eqchi’ community of La Unión in eastern Guatemala, and in the ensuing confrontation shot at community members. Soon after, Padilla and his men detained Adolfo Ich, a father of five and respected community leader and teacher. They reportedly hacked his body with a machete and shot him just under the ear. Padilla and the guards then dragged Ich through a fence onto Hudbay property, where he was later found dead.

Doubtingcorrectly, it turns outthe ability of the Guatemalan justice system to hold Padilla and Hudbay accountable, Ich's widow filed suit in Canada, even before the Padilla verdict was issued. She has also joined another suit in Canadian courts seeking justice for the 11 women who claim they were gang-raped at gunpoint by the company's security forces during an eviction on January 17, 2007.

“We Will Continue Fighting”

Criminalization can, and often does, have a seriously chilling effect on the work of ERHDs across Latin America. But not always.

In northern Chiapas, the arrest of a protest organizer has inspired a movement against the federal government's plans to auction oil concessions in an area that overlaps with Zoque ancestral territory. “The local government arrested her to silence the movement, but by doing so just created more awareness and resistance. It was the wrong move,” said a local protester.

As Gustavo Castro observed, “At the end of the day resistance is an ethical struggle. It is a struggle we must take up. Resistance is a principle of justice, especially when we see that the people are suffering.”

Lolita Chávez Ixcaquic agreed. “We are still alive here,” she said in May. “For as long as we continue to believe that coexistence with Mother Earth is a responsibility and a life-long commitment, we will continue fighting. I invite all those who read this article to join with us, to create community with us. This is our hope for life.”