Thomas McDonagh and Aldo Orellana Lopez : OPEN DEMOCRACY
In the coming weeks, the Supreme Court in Peru will decide the fate of Walter Aduviri, an indigenous spokesperson and aspiring politician for the local elections, convicted for his role in the 2011 Puno protests.
In the next few weeks the Supreme Court in Lima, Peru, will decide the fate of Walter Aduviri, an indigenous Aymara community spokesperson convicted for his role in protests that took place in 2011 in the southern region of Puno.
The case has been going on for more than seven years but now in the final stretch it is being closely watched by social organisations, human rights lawyers and political analysts throughout the country because it could set two legal precedents with implications for many other struggles for indigenous and peasant rights.
The case of Walter Aduviri and the Aymara people is emblematic of the attacks and threats faced by communities that stand up to defend their basic resources throughout Latin America and other regions.
Dragging the spokespersons of these struggles through the courts is the cornerstone of a much broader trend to criminalize social protest. This includes not only new laws and legal cases against communities, but also smear campaigns, discrimination and violent coercion on the part of the State.
The objective is clear: to suppress social organisation in order to facilitate the extraction of natural resources - mostly by multinational corporations - by limiting and violating the rights of the population.
The conflict known as "El Aymarazo" was a mobilization in the Puno region in 2011 against the proposed Santa Ana mine - an open-pit mining project located near the border with Bolivia. The project was owned by the Canadian mining company Bear Creek and plans were to mine 63 million ounces of silver over 11 years from 2012.
When news of the proposed mine reached the local population in 2008, there was an almost complete rejection of the project due to the high usage and risk of contamination of local water sources. The region is largely an agricultural and livestock area that includes important local rivers such as the Callacami and the Desaguadero River. Lake Titicaca, shared between Peru and Bolivia, was also threatened.
Having seen the contamination of land and water sources caused by mining projects in other provinces and having found out about a series of irregularities in the acquisition of the land titles by the company, the communities began to petition the authorities, requesting in particular that their right to prior consultation be respected.
Faced with official indifference at both local and national levels, protests developed into a region-wide strike in May 2011. One of the central demands was the repeal of Executive Decree 083 – 2007 that had declared Santa Ana a project of national priority, despite the Peruvian Constitution banning foreign-owned mining concessions within 50km of the national border.
Subsequently the community sought the cancellation of all mining concessions in the region and a moratorium on future concessions. The strike in Puno intensified and the government was eventually forced to repeal its decree. The Santa Ana mining project had been blocked.
Shut up in Court
After the Aymarazo, the public prosecutor opened investigations against 100 leaders involved in the mobilizations. They were accused of the obstruction of public services, disturbing the peace, and aggravated extortion.
"Aggravated extortion is a charge used historically in Peru for organized crime cases, but is increasingly being used in cases of social protest."
After various hearings, of the 100 people investigated ten would go on to face trial. Nine of the defendants were acquitted in July last year due to ‘insufficient evidence’. However Walter Aduviri, one of the main spokespersons of the Aymara communities during the mobilisations, was sentenced to seven years in prison and a fine of two million soles (approximately $600,000).
The sentence was ratified by the courts in December 2017 and an arrest warrant was issued for Aduviri. He has been in hiding since then, maintainingthat prosecutors never showed sufficient evidence against him, and that he is facing political persecution. His case has been in the headlines at regional and national level, as well as being presented in international fora.
Importantly, when the judges convicted Aduviri something peculiar happened in the regional courts in Puno that could mark a major turning point in terms of how legal processes are being used to criminalise and repress social mobilisations in Peru.
Although the crime for which Walter Aduviri was convicted was disturbing the peace, at the last minute the judges changed his alleged degree of participation in that crime. The public prosecutor in the case was bringing charges based on a degree of participation known in Peruvian law as 'non-executive co-perpetration’.
But when the judges acquitted the other nine defendants, they honed in on Walter Aduviri as the only guilty party, and now convicted him on the basis of a new interpretation of his role/participation: that of indirect perpetration.
To get a sense of the seriousness of that change, one observation is enough. Indirect perpetration had previously been used in Peru mainly in cases of crimes against humanity and terrorism.
Although the two theories sound complex, understanding them and their increasing use in cases of social and mining conflicts in Peru is both urgent and important.
According to Pablo Abdo, a human rights lawyer from the Institute for the Study of Andean Cultures (IDECA) in Puno, the increasing use of non-executive co-perpetration in cases of social protest itself represents a dangerous legal trend. It implies that one person instigates a crime and another person actually carries it out, but both people agree to commit the crime. In summary "you and I agree to commit a crime, but I give you the orders and you will carry them out."
Abdo explained that this happens when the specific people responsible for an offence can’t be found or their involvement can’t be proven, instead the leaders and spokespeople of the communities involved are identified and charged.
"The use of these two legal theories 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."
Even more worrying is the use of the indirect perpetrator charge faced by Aduviri. Here there is no agreement between the two (or more) parties to commit a crime, but rather, in the words of Abdo, “one of them is manipulating the other to commit the crime against their will……I want to commit a crime and I want to use you to do it. So I'll trick you or force you to do it. ...That is the theory that the judge is now using. It’s like saying that Walter Aduviri forced and cheated the Aymaras, his own people, to commit the alleged crimes."
For DHUMA lawyer Rodrigo Lauracio, the reasoning used by the judges doesn't make sense in the context of these events. He points out that "the Aymara indigenous communities are never overseen by a single leader. This was shown in the anthropological studies carried out in the case. It’s the other way around..the Aymara people choose their representatives or spokespersons to give voice to the issues that the community is facing.”
The use of these two legal theories 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. It also allows for the conviction of community spokespersons and leaders based on them just being leaders of their communities, without having proven their direct involvement in the alleged crimes committed.
According to Abdo, "if these sentences stand, this [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."
To date the legal theory of indirect perpetration has been used above all in major cases of serious human rights violations and crimes against humanity.
Former Peruvian President Alberto Fujimori was sentenced in 2009 to 25 years in prison for crimes against humanity using this legal theory and Abimael Guzmán, Shining Path (Sendero Luminoso) leader was sentenced in 2006 to life imprisonment for terrorism against the State based on the same theory. Now in Peru in 2018, it is being used against spokespersons and leaders of indigenous and peasant communities in social protests.
Indigenous Identity and Rights
A second precedent on the line in the case relates specifically 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.
While anthropological expert opinion concluded that all of the accused in the Aymarazo were indeed members of indigenous communities, the judges ruled that Walter Aduviri was not subject to these rights because, among other things, he had attained a university education, and should therefore “be able to adapt his behaviour according to the law”.
"The case affects not only Walter Aduviri but all indigenous peoples, because it represents jurisprudence for other court rulings."
According to human rights lawyer, Rodrigo Lauracio, "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 for other court rulings".
For Lauracio, the case would undoubtedly have to be brought before internationl fora “if this interpretation and ruling are ratified…it would constitute a rights violation and would mean that the Peruvian state would be subject to the jurisdiction of the Inter-American Court of Human Rights”
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.
The Peruvian public prosecutor in another legal case related to the Aymarazo protests spoke of the those involved in the social mobilization in the following way:
“…..who in their role as institutional leaders with command over these irrational, impassioned, unthinking masses, pushed the population to commit….”
Forms of Criminalisation
According to Rodrigo Lauracio, the court cases against the Aymara spokespersons must also be seen as part of a much broader criminalisation trend against the communities resisting mining projects. For him it can be summed up in four steps.
The first is "the design of policy and legislation that modifies our legal system to make way for mining projects and to create new crimes for those participating in social protests...legislative changes are made in Congress or at executive level, to pave the way for extractive industry activity and to restrict the rights of indigenous peoples or peasant communities opposed to mining projects.”
The second consists of "media smear campaigns, via radio, television and online, in which we are labeled as anti-mining terrorists, environmental terrorists, or as being anti-development." Lauracio spoke in particular of how "the aggressions against women [human rights] defenders take on particular characteristics, including sexual references and references to the private lives of the defenders".
"Of the 78 human rights defenders killed during the last two governments in Peru, 67% died as a result of the actions of state forces during social protests."
The third stage of criminalisation is "the way in which the state intervenes in the social conflicts themselves, especially by declaring states of emergency...then people are killed, literally murdered, and great physical and psychological damage is inflicted on people...there have even been cases of torture . "
Between 2017 and 2018, in a region known as the mining corridor in southern Peru (Cuzco, Arequipa and Apurimac), there have been states of emergency for 10 consecutive months (unprecedented in times of peace in country) with the consequent suspension of basic rights.
Add to this the contracts between mining companies and the police to provide security services, and a change to the laws that exempts the police from any responsibility if they kill somebody in the line of duty and it’s no surprise to see that, of the 78 human rights defenders killed during the last two governments in Peru, 67% died as a result of the actions of state forces during social protests.
The fourth and final stage of criminalisation, according to Lauracio, are the criminal investigations like those that followed the Aymarazo. According to the lawyer, these cases bring real economic, social and psychological damage "the process of criminalisation that begins at policy level is materialised in these cases….the legal processes are used to scare community representatives."
According to the Peruvian National Human Rights Coordinating body, 792 human rights defenders have faced judicial processes at the national level, 55% for actions related to the defense of environmental rights and indigenous peoples.
It really is a very effective strategy to wear people down and to intimidate organized civil society.
Enemies of the State
“In Peru,” says Tomas Medina Mamanchulla, President of the Jatuncachi peasant community in Puno, "there are laws to criminalise popular protest and the government has begun to persecute leaders.
There are many leaders facing legal charges, especially those defending the environment and fundamental [human] rights. It is like a law for the enemy, the Peruvian state itself considers us as its enemies, as if we weren’t part of the state.”
For Aymara community leader Yolanda Quesisto, the current criminalisation reflects historical patterns: "From the moment that the Spaniards arrived, they saw us as inferior to them and I think [those with power] still believe that. [The government and mining companies] are doing the same thing that they did with our great leaders Tupac Katari, Bartolina Sisa, Miguel Bastidas ... and Tupac Amaru, he was drawn and quartered for fighting against oppression. They’re doing the same thing now. They’re shutting us up with their laws.”
Mamanchulla warns,"If Walter Aduviri is convicted, many leaders working in defense of natural resources will be prosecuted. That cannot be."
The Real Criminals?
The case of Walter Aduviri itself has been somewhat controversial because of his electoral aspirations. Aduviri is a candidate in the Puno regional elections in October of this year. The judges in Lima, the electoral authorities and the Puno voters will decide his fate. But what cannot be denied is that his case is symbolic of the widespread criminalisation of social protest in Peru, especially of peasant and indigenous communities. And it’s not going to get better any time soon.
According to the Peruvian Mining Conflict Observatory report in 2017, 14.7% of the Peruvian national territory is under mining concessions. In the Puno region alone, in 2011 approximately 96,437Km2 of the territory was under mining concessions. While in the province of Chucuito where the Santa Ana mining project - which set off the Aymarazo conflict - is located, the number of mining concessions increased dramatically in a decade: from zero concessions in the year 2000 to 59 in the year 2011.
Indigenous and peasant communities are disproportionately affected by this rapid expansion because they depend directly on the land and the water (the first thing to be contaminated) for their livelihoods. Add to this the marginalization and persistent discrimination they face, and it is not surprising that communities resort to social protest.
Meanwhile, several transnational corporations, including Bear Creek (that also has a second mining project in the region known as Corani), remain active in Puno, waiting for the political winds to change to try to push forward their projects, all the while benefiting from the criminalisation of affected communities.
In this context, the words of Yolanda Quesisto referring to the criminalisation of the Aymara people resonate with even more strength. "Is it a crime to defend natural resources? Is it a crime to defend the environment? Do they not depend on water too? Is it a crime to defend the water? "