Alarming Legal Precedents Hang Over Crucial Case for Protest against Mining in Peru
By: Jonathan Stevenson
Date: 27 September 2018
Grave accusations of aggravated extortion, conspiracy, or illicit association with criminal intent might not be the first things that come to mind when we think about indigenous and peasant social movements trying to safeguard their land and environment in countries like Peru in the Global South.
However, as the case of Aymara indigenous leader Walter Aduviri comes to its climax in the Peruvian Courts shortly, the case lays bare a worrying escalation of judicial persecution against social leaders that seeks to undermine their capacity to organise – particularly in the face of extractive projects in their territories.
The Aduviri case arose in 2011, when communities in Puno in the south of Peru stood up in opposition to Canadian company Bear Creek’s Santa Ana silver mine. After weeks of protest the government suspended the project – but began criminal proceedings against the principal spokespersons in the communities, among them Walter Aduviri. After a further six years of trial proceedings in December 2017 local tribunals condemned Aduviri to seven years in prison and a compensation payment of $600,000. His defense appealed the sentences and the case is now in the hands of the Supreme Court of Justice in Peru; this is Aduviri’s last chance to be freed from the sentence hanging over him. If the Supreme Court doesn’t annul the sentence, they will be setting harsh precedents for the defense of the environment and indigenous rights in Peru.
The first of these precedents relates to the use of the legal theory of indirect perpetration (‘autoría mediata’) against spokespersons and leaders of indigenous and peasant communities in social protests. This represents a significant legal and political shift in Peru as it allows social organizations to be equated with criminal organizations and their leaders to be equated with criminal instigators.
According to Pablo Abdo, a human rights lawyer from the Institute for the Study of Andean Cultures (IDECA) in Puno “if these sentences stand, Aduviri’s sentence in particular, it will allow for the criminalisation and conviction of other leaders and human rights defenders. That’s the problem … if you take the arguments used in the Aymarazo to convict Walter Aduviri, you can use that same argument in other cases that have already been acquitted to seek a conviction.”
Aduviri’s case is just one of many cases in which legal charges that were originally conceived of to combat organised crime and terrorism (including in relation to crimes against humanity by former Peruvian president Fujimori, and in terrorism charges against the leadership of the Sendero Luminoso) are now being used against social organisations and their representatives in a worrying escalation of criminalisation tactics.
The second precedent on the line in the case relates to whether or not Walter Aduviri is subject to indigenous rights. These rights, relating to cultural identity, territorial autonomy and the right to be informed and consulted about development projects (particularly ILO Convention 169) are recognised both in the Peruvian legal system and Constitution as well as in international treaties to which Peru is a signatory.
In the regional courts in Puno, the judges ruled that Walter Aduviri was not subject to these rights because, among other things, he had attained a university education.
According to Rodrigo Lauracio, lawyer at local human rights organisation DHUMA in Puno, “this represents a violation of international standards in terms of indigenous peoples’ rights… it affects not only Walter Aduviri but all indigenous peoples, because it represents jurisprudence [that could be applied in] other court rulings”.
Like many other criminalisation cases in Peru and across the region, this one must be understood in the broader context of the multiple forms of discrimination and prejudice faced by indigenous communities. Whether it be the negation of indigenous rights or the equation of social movements with criminal mafias, the objective is clear: to suppress social organisation on the part of already marginalised communities in order to facilitate the extraction of natural resources – mostly by multinational corporations.
Local human rights groups in southern Peru and international organisations have mobilised a campaign not just to highlight this case and the two legal precedents on the line, but also to pressure the courts in Lima and the Peruvian government on the outcome of the case in the weeks ahead, all the while shining a much brighter light on the role of the Canadian multinational involved – Bear Creek Mining. (More at: http://bit.ly/DCAymarazo)
On September 5th an international sign-on letter was delivered to the Supreme Court of Justice in Lima signed by more than 130 international organisations demanding that the judges annul Aduviri’s sentence. On September 11th a press conference was held in Puno in which the public statement was presented to local and national media. As well as rejecting the criminalisation of social protest – local groups also declared that they would not allow the Peruvian state to make the multi-million dollar payment which Bear Creek have demanded of Peru for cancelling the Santa Ana project in 2011. At the end of 2017 the World Bank’s International Court for the Settlement of Investor Disputes (ICSID) settled in favour of Bear Creek and ordered Peru to pay the mining company $30 million (including interest and legal fees).
On Monday September 17th a final hearing took place to analyze the case of Walter Aduviri in the Supreme Court in Lima and the court will hand down its ruling on October 5th.
Bringing the weight of international civil society to bear on the outcome of this single case is but a small contribution. More broadly, if we are serious about sustainability and justice, it would mean aligning our efforts much more squarely behind the struggles of those risking their lives every day defending the Earth.
Note: You can follow the Democracy Center’s Facebook page here for all of the latest developments in the campaign, in Peru and internationally
Photos: Aymara supporters of criminalised community leaders awaiting court rulings in Puno. Credit: DHUMA Peru
