In Latin America, the law is ‘a tool to silence’ environmental defenders

  • Environmental defenders across Latin America are being sued and arrested as they protest against agribusiness, mining and energy projects on their lands.
  • In most cases, government authorities are the ones pursuing criminal charges against these defenders, which range from obstructing public roads to terrorism and murder.
  • Experts say that this criminalization serves one purpose: to demobilize defenders using fear, exhaustion, stigmatization, and even social and financial ruin.

Wbeimar Cetina says he remembers with chilling clarity the 14 months he spent in jail in Arauca, Colombia. Because he couldn’t have visitors due to the COVID-19 pandemic, he replayed in his mind the last moments he lived with his family. He also dwelled on Feb. 10, 2020, when a group of armed police officers knocked on his door to take him away. They accused him of being a member of a Colombian guerrilla group.

Seven months earlier, Cetina had led a protest against the Colombian subsidiary of the U.S. oil company Occidental (Oxy), which has operated in the area since the 1970s. “In this time, they have ended an Indigenous sanctuary and have displaced community members. We have constantly reported crude oil spills,” Cetina says. The last protest, in July 2019, was what landed Cetina in jail. In fact, he says, anyone who protests against the oil company in Arauca immediately becomes a target.

Besides Cetina, six other community leaders from Arauca are being prosecuted for rebellion and even terrorism as a result of the same protest, and four of them are in jail. For Cetina, the case not only cost him 14 months of freedom, but also caused a rupture in his bond with his family. He is now awaiting an announcement from the prosecutor’s office on an appeal he filed. He says he knows his freedom depends on that decision.

What happened to Cetina isn’t an isolated incident. Latin America is a dangerous place for environmental defenders, many of whom have been prosecuted, sued, even killed. Laura Furones, a campaign leader from Global Witness, which monitors the threats to environmental defenders around the world, says much more in the way of resources are needed to identify the cases in each Latin American country. Mary Lawlor, the United Nations special rapporteur on human rights defenders, told Mongabay Latam that another issue to consider is “the underreporting of criminalization acts of those who defend the environment, at both the national and international level.”

Using information from various ministries, prosecutors’ offices, and 11 human rights organizations in Colombia, Mexico, Ecuador and Peru, Mongabay Latam has created a database of environmental defenders who are facing legal proceedings.

What the data say

According to the Inter-American Commission on Human Rights (IACHR), the criminalization of environmental defenders occurs when “the justice system is manipulated” to try to prevent the defenders from protecting their land and the environment.

Carlos Rivera, a lawyer from Peru’s Legal Defense Institute (IDL in Spanish), says repression in these cases require two key elements: First, the person being prosecuted has a direct relationship with the protest; and second, the charges against the person are for defending the interests of a community.

Dixon Torres, an environmental defender, during a protest in the Arauca case in Colombia. Image by Dixon Torres.

Using the criteria laid out by the IACHR and the IDL, Mongabay Latam reviewed the lists of cases compiled by human rights organizations in Colombia, Peru, Ecuador and Mexico. After filtering and corroborating the information, Mongabay Latam found that at least 156 environmental defenders are facing active legal proceedings for their activism in these four countries.

Nearly half of these active cases, 77, are in Peru, with 36 in Colombia, 22 in Mexico, and 21 in Ecuador. Indigenous people in the Peruvian and Ecuadoran Amazon account for a disproportionately high number of these defenders, at 37. By gender, 132 of the defenders identify as men, and 24 as women.

The situation is so dangerous that 13 of the defenders requested that their names not be divulged due to fears of retaliation and additional stigma.

Mongabay Latam also determined that most of the projects or policies that these defenders are protesting are in the mining and agribusiness sectors. The most frequent offenses the defenders are accused of are the obstruction of public roads, disturbances, aggravated damage, and sabotage.

“The criminalization of environmental defenders in Latin America has been a problem ever since I have worked with defenders of human rights,” Lawlor says.

Mining — the sector with the most prosecuted defenders

In Cotabambas, Peru, Virginia Pinares has lived in a state of constant tension for six years. It began when she and other leaders led a protest against Las Bambas, one of the largest copper mines in the world. For those six years, many residents of the communities surrounding the mine have demanded an end to the project, saying they’re exposed to environmental damage by the constant passage of trucks that cross through their land loaded with ore and waste. Pinares has been required by a court to live at the same address for six years as a result of the protest.

“What have you gained with all this?” asks Pinares’s 13-year-old daughter. Pinares listens to her, but continues to defend her territory, although no longer from a leadership position.

“This is what causes the prosecution,” says David Velazco, a lawyer with the Ecumenical Foundation for Development and Peace (FEDEPAZ in Spanish). Since the prosecution of more than 21 leaders as a result of the September 2015 protest against Las Bambas, no one has wanted to lead protests because they fear retaliation.

Mine operator MMG Las Bambas, a subsidiary of the Chinese corporation MMG Limited, which in turn is majority-owned by a Chinese state-owned company, did not respond to Mongabay Latam’s questions by the time of this article’s publication in Spanish.

A confrontation between rural community members and police over the open-pit Las Bambas copper mine in Peru. Image courtesy of the Observatory of Mining Conflicts in Latin America.

In Cenepa, in northern Peru, 10 Indigenous people from the Awajún ethnic group have been sued by illegal miners. Agoustina Mayán, a community leader, is one of them. The constant harassment of the Awajún people by the illegal miners has caused the Indigenous group to attempt to keep a low profile.

In Ecuador, 14 people, all from the Shuar Indigenous group, face legal proceedings for defending their land and water from the operations of two mining companies.

About half of the mining conflicts that have resulted in the criminalization of environmental defenders have occurred in the Amazon, and all of those defenders, 31 in total, are Indigenous. According to Lawlor, “in many countries, it has been the Indigenous people, Afro-descendants, and defenders from remote areas who have been attacked most frequently.”

The Indigenous communities that defend the Amazon

One “paradigmatic” example of this, says Lenin Sarzosa, a lawyer from the Confederation of Indigenous Nationalities of Ecuador (CONAIE), is the Shuar community of Nankints in the Ecuadoran Amazon. In 2016, police evicted the 32 Indigenous members on the grounds that a court had determined that the land — on which the families had lived their entire lives — was owned by mining company Explorcobres S.A. and that the Shuar were therefore illegal squatters. Four years later, unable to return to Nankints, the Shuar were involved in a confrontation at the mining camp, for which 12 of them, including some community leaders, now face criminal charges.

The La Esperanza mining camp, which is owned by the Chinese-owned Explorcobres corporation. Image by José María León.

Explorcobres S.A. said it had not “arbitrarily displaced” any Shuar people, and that their eviction was legally justified. It also said that since 2006, it has been the victim of “multiple armed attacks and fires,” including an armed attack as recently as 2020, for which it had begun new legal proceedings.

“If assemblies or acts of protests existed, the leaders were immediately notified to go to the prosecutor’s office,” Sarzosa said of the persistent threat of litigation. “Prosecution became a constant blackmailing tool against defenders.”

The Baguazo confrontation. Image courtesy of IDL EPA/STR.

Those protesting against policies rather than specific companies have been similarly prosecuted. On June 5, 2009, thousands of members of the Wampís and Awajún communities gathered in Baguazo, Peru, to protest legislation that would have given them less say in extractive projects, like oil drilling, on their land. The protest turned violent, leaving 23 civilians and 10 police officers dead. Fifty-three Indigenous people were accused of crimes; six of them are still subject to active legal proceedings.

“Social protests should not have a judicial response, but a political response,” says Juan José Quispe, the lawyer from the IDL representing the defenders. “If the government had addressed the legitimate demands of the Indigenous people, such as what happened in Baguazo, that confrontation could have been avoided.”

Conflicts with agribusiness

After mining, agribusiness is the sector with the highest number of environmental defenders facing prosecution. Most of these conflicts involve companies that produce palm oil — a commodity notorious for the deforestation of large swaths of rainforest in Southeast Asia, and now increasingly driving the clearing of forests in Latin America.

Oil palms now cover part of the land of the Shipibo community in Santa Clara de Uchunya, Peru. For more than 20 years, the community had sought official recognition for what it considers its ancestral areas. But in 2014, outsiders began encroaching onto their territory, deforesting the land they claim and even obtaining proof of possession of that land.

Some of these occupiers have accused six Shipibo people of aggravated theft, minor injuries, and damage to property. “At times, leaders have received complaints from the invaders themselves because they confiscated a chainsaw within Indigenous property,” says Álvaro Másquez, a lawyer from the IDL. “They are exercising Indigenous justice, and they are protected by the Constitution to do that. But they are not protected against that — instead, legal proceedings are opened to prevent their defense work.”

Másquez adds the government should have prioritized the community’s claims to the land on the basis of ancestral rights. “The IDL and the community believe that the criteria are recognized by the law, and this establishes that in these cases, the Indigenous communities’ territorial recognition should be preferred, as they have been on these lands before the creation of the Republic,” Másquez says.

Ocho Sur, a company that now occupies part of the land that the Shipibo claim, said it obtained the land through the proper legal channels and denied any allegations of invading or expanding beyond its borders.

Santa Clara de Uchunya Perú Palma
An inspection by prosecutors and police on Sept. 17, 2020, found evidence of illegal logging on land claimed by the Santa Clara de Uchunya community. Image by Iván Flores.

“We reject all forms of illegal activity, particularly any action that threatens the human rights of Indigenous communities,” Ocho Sur said in an email.

Government participation

The Ocho Sur case is characteristic of the conflicts analyzed by Mongabay Latam, which showed that, in 118 of the 156 cases in which defenders face prosecution, the litigation against them is linked to environmental conflicts with private companies. However, in about half of those cases, it’s the government that has gone after the defenders for disrupting public order during protests.

Rivera, from the IDL, says there’s a consolidated relationship between individuals, companies, business groups, and the government. “This stems from an economic model in which companies have a strong institutional relationship in defense of their interests,” he says.

A protest in Arauca against oil operations. Image courtesy of Trochando sin Fronteras.

The reason for this alliance, according to Oscar Ramírez, a lawyer from the Colombian group Committee of Solidarity with Political Prisoners (CSPP in Spanish), is that armed groups in Colombia periodically attack companies in the mining and energy sectors by stealing oil, damaging infrastructure, and even extorting funds from businesses. According to Colombian prosecutors, these relationships between the government and companies “have allowed [us] to obtain very relevant results against armed organized groups, dissidents, and several criminal organizations linked to hydrocarbon confiscation, terrorism, kidnapping, homicide, and extortion, among other crimes.”

The problem, according to Ramírez, is that using this justification, rural people and environmental defenders are also prosecuted.

“The prosecutor’s office says that these protests benefit the guerrilla insurgency. Since Arauca is one of the areas where internal armed conflict is most critical, environmental defenders are often accused of having the same goal,” says Marcela Cruz, a lawyer from the Joel Sierra Human Rights Foundation. “It is an effective way to delegitimize social processes in Arauca.”

A protest in Arauca situation. Image courtesy of Trochando sin Fronteras.

It’s a similar situation in Peru, says Velazco, the lawyer from FEDEPAZ: “We see that the government and companies use criminal law to pursue the defenders, to demobilize them so they do not protest. To mock them in front of those who continue to protest.”

In an email, the Peruvian Ministry of Justice said the government “does not have a policy of criminalizing people who defend human rights.”

The consequences of criminalization

After seven years of harassment in his home by members of the army and the police, rural leader Dixon Torres and his family decided to leave their land two months ago and move to the more urban area of Arauca. “I am practically displaced by criminalization,” Torres says. He adds his house was a few meters from a military base. Every time he passed through the area, he was searched and photographed. Torres is one of the seven community leaders denounced for the July 2019 protests in Arauca. He says he still doesn’t know whether the prosecutor’s office will demand that he be arrested.

Criminalization does more than cause family problems, create ruptures within organizations, and suppress protests in the long run. It also imposes an economic burden by subjecting an individual to years of legal proceedings.

The problem with paying for a private lawyer is that “it involves heavy expenses,” says lawyer Pablo Abdo from Grufides, an organization working to defend human rights and the environment in Peru. “A lawyer to work on your case costs at least $83 for a consultation and $828 for a hearing.”

Ramírez, from the CSPP, says that although environmental defenders can usually find legal support from human rights organizations like his, this isn’t always the case. The large number of cases exceeds the capacity of civil society organizations, according to lawyers.

Pepe Acacho, an Ecuadoran environmental defender, spent the last nine years of his life trying to prove that he was innocent of the crimes of which he had been accused. Image by José María León.

This lack of defense from the start of the case can land some defenders in jail before they’ve even been convicted. Mongabay Latam verified that 12 environmental defenders in Colombia, Peru and Mexico are currently in jail while their legal cases are ongoing.

Abdo says this series of consequences can cause environmental defenders to experience social stigma. “This is not a process in which an investigation is done for 20 days or two months and the issue is forgotten,” he says.

“The leaders in [the case of] Las Bambas already have spent six years going to sign [documents] every month,” Velazco adds. “They cannot move without notifying the court.”

“This is a tool to silence us,” Torres says.

In most cases, according to experts, the defenders face persecution long before their trial concludes. “We know that we are working with countries that have high levels of impunity, so nobody is expecting that trial to come to an end,” says Francisca Stuardo from Global Witness.

“They want to weaken and take the person, the [environmental defense] leader, to the extreme, so that they give up what they are doing; break them, suppress them — a slow process, but efficient,” says Cetina. He says he knows about this because, even today, although he’s free, he can’t return to his house. “My home has ended,” he says. Even so, Cetina says he hasn’t given up and remains firm in his stance: “We maintain our ideal of defending the land and life.”

Mongabay Latam requested interviews with representatives of the Public Ministry of Ecuador, Occidental of Colombia (Oxy), EcuaCorriente S.A., Yanacocha S.A., Bear Creek Mining Corporation, and MMG Las Bambas. However, as of the time of this article’s publication in Spanish, these parties had not responded to the requests.

Gabriela Quevedo Castañeda collaborated in the organization and analysis of this data.

Banner image illustration courtesy of Kipu Visual.

Visualization by Rocío Arias and Daniel Gómez.

This story was reported by Mongabay’s Latam team and first published here on our Latam site on May 4, 2021.