VI. A global crisis unfolding 

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40. Recent studies by the Special Rapporteur on the situation of human rights defenders (A/71/281) and the Special Rapporteur on human rights and the environment[6] have raised alerts over “a global crisis” of attacks against environmental human rights defenders, highlighting that many of these defenders are members of indigenous communities.

 

41. In a report on human rights defenders killed worldwide in 2017, the authors document the murders of 312 defenders in 27 countries and indicate that 67 per cent of the persons killed were engaged in the defence of land, environmental and indigenous peoples’ rights; nearly all the killings occurred in the context of megaprojects, extractive industry and big business. About 80 per cent of the killings took place in just four countries: Brazil, Colombia, Mexico and the Philippines.[7] Another source documented 200 killings across 24 countries in 2016 of people defending their land, forests and rivers against destructive industries. The authors concluded that almost 40 per cent of those murdered were indigenous and that Latin America accounted for more than 60 per cent of the killings.[8]

 

42. The Special Rapporteur has observed a disconcerting escalation of violent attacks through the mandate to issue communications and undertake fact-finding country visits. While the vulnerability of indigenous peoples to attacks while seeking to defend their lands has been a long-standing concern of the mandate, the drastic escalation of such acts in recent years is of grave concern. The Special Rapporteur has recorded a significant and rising number of such attacks in Brazil, Colombia, Ecuador, Guatemala, Honduras, India, Kenya, Mexico, Peru and the Philippines, not an exhaustive list. The same countries have been identified by other human rights mechanisms and civil society organizations that monitor attacks against indigenous peoples, providing consistent indications that these countries represent particularly worrying situations; authorities of these countries have repeatedly been urged to take action to improve the protection of indigenous peoples but have failed to do so.

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43. The situations in the countries named above are particularly worrisome; however, patterns of concern are also found in other countries, and it should be emphasized that the number of reported attacks do not provide the full picture as the ability to report cases is affected by several factors. Among these are the remoteness of indigenous communities, access to means of communication, linguistic diversity and lack of recognition of indigenous peoples as such. The strength of the national human rights civil society groups and the extent to which local human rights organizations liaise with indigenous organizations are other factors which affect reporting. It must be presumed that in large parts of the world, a significant number of attacks against indigenous defenders go unreported and never figure in the media. 

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44. While the killing of indigenous defenders represents the worst human rights violation, such attacks tend to occur in the context of violence and threats against them and their communities, including enforced disappearances, forced evictions, judicial harassment, arbitrary arrests and detention, limitations to the freedom of expression and freedom of assembly, stigmatization, surveillance, travel bans and sexual harassment.

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45. Although some global estimates exist of the number of defenders who have been killed, there is no such information available on the extent to which judicial harassment and criminal charges are levied against indigenous peoples. The criminalization of indigenous peoples occurs in a variety of contexts and relies on a multitude of penal provisions. Commonly, criminal charges are brought against indigenous peoples who oppose large-scale projects and seek to inform and organize their communities, demanding access to information and the right to participate in consultations and to give their free, prior and informed consent. Leaders are targeted as a strategy to supress and silence the entire community.

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46. Several situations where private entities have provided false information or filed unsubstantiated allegations against defenders have been brought to the attention of the Special Rapporteur. Reports indicate that judges and prosecutors have contributed to the misuse of criminal law by accepting false testimony, issuing warrants without sufficient evidence, allowing unfounded prosecutions to advance and improperly interpreting the law to incriminate indigenous defenders. While legislators may not be directly involved in criminalization, they contribute through the adoption of laws that unduly punish expressions of rights such as freedom of expression and assembly or pass legislation that includes vague definitions of criminal offences, including serious offences such as terrorism.[9] The Inter-American Court of Human Rights has raised concerns over biases and stereotypes in the reasoning in national jurisprudence regarding prosecutions of indigenous peoples under antiterrorist legislation in the case of the Mapuche people in Chile.[10]

 

47. Prior to the presentation of criminal charges, defamation and smear campaigns are often directed through social media against indigenous peoples, their leaders and communities, accusing them of being anti-development and acting against the national interest. Hate speech based on racism and discrimination fuels such discourse. In the worst cases, social media portray indigenous peoples as members of criminal gangs, guerrillas, terrorists and threats to national security. Defamation campaigns are often developed by business actors (see A/HRC/39/17/Add.2, para. 67), with the overt or covert support of corrupt government officials whose financial interests are affected by indigenous peoples’ defence of their lands.

 

48. Multiple, broad and ill-defined criminal charges are often brought, including trespassing, usurpation, conspiracy, kidnapping, coercion, disturbance of public order and incitement of crime. In several countries a crime of aggravated usurpation is commonly brought against indigenous land rights defenders; transgressors are considered to have been caught in flagrante, which implies a restriction on the right to defence guaranteed in international human rights standards. It is widely reported that states of emergency are declared to suspend judicial guarantees and justify the suppression of peaceful social protests.[11]

 

49. At times, arrest warrants are issued on the basis of poor evidentiary standards and uncorroborated witness testimonies and where there are no clear links between the charges and the alleged acts. At times, the accusations fail to specify individual responsibility for the alleged acts, for example when arrest warrants are issued for several community members, accusing them all of being responsible for a single criminal act such as a murder without referring to their individual role; this would appear to be a form of collective punishment against an entire community. In some instances, arrest warrants are deliberately not executed but left pending, leaving the indigenous person affected under the perpetual threat of being arrested when it is deemed convenient for the authorities. 

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50. Procedural guarantees are frequently flaunted and indigenous peoples are particularly disadvantaged as they may not have the means to seek legal counsel. They are unlikely to be in a position to demand the assistance of an interpreter, as in most countries where indigenous languages are spoken interpretation is rarely or not available within the judicial system, nor do ordinary justice systems give much, if any, consideration to the customs, traditions and legal systems of indigenous peoples. The prosecution of indigenous individuals is characterized by prolonged periods of pretrial detention, at times lasting several years, especially in the case of indigenous leaders. The strategic objective is to deprive communities of their voice. Even if they are acquitted, indigenous individuals are rarely awarded remedies.

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51. Indigenous institutions and organizations have also been subjected to illegal surveillance, registration and confiscations under various pretexts, such as the control of foreign donor funding. Laws imposing registration requirements and the control of funding of certain organizations weaken the ability of indigenous communities to mobilize and restrict the support they receive from civil society organizations. The strategy of silencing indigenous communities often extends to the civil society organizations and lawyers who seek to assist them: there have been cases of lawyers who represent indigenous communities being physically attacked and even victims of extrajudicial execution.

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52. The administrative and legal challenges that indigenous peoples face in such situations require specific and targeted support from civil society and the international community that is different from the support they need when they are victims of threats or physical attacks. Criminalization is a sensitive issue for the international community, which does not want to be seen to be interfering in domestic legal processes. However, when supporting companies or Governments that engage in these practices, international actors such as multilateral development banks, international financial institutions or funds such as the Green Climate Fund risk contributing to and exacerbating criminalization.

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53. In the preparation of the present report, the Special Rapporteur received information about hundreds of situations of attacks and criminalization taking place in many parts of the world. To highlight the overall deteriorating situation, she provides recent examples, emphasizing that they are not meant to be an exhaustive but, regrettably, only snapshots of the unfolding crisis. They do, however, give some insights into the current state of affairs.

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54. The Special Rapporteur was particularly disturbed to observe the dire situation of indigenous defenders in Guatemala during her most recent official country visit in May 2018. A staggering seven indigenous leaders were killed during and shortly after her visit. They were killed in different locations by different means: some were shot in the head and in the back while others were stabbed in the throat and their bodies mutilated by machetes. All were representatives of two indigenous farmers’ organizations advocating for land rights and political participation. The killings took place in a broader national context of a pernicious closing of spaces for civil society. The President of Guatemala has been publicly hostile to human rights organizations; draft legislation in parliament seeks to restrict the work of non-governmental organizations[12] and social media, driven by private actors, stigmatize indigenous peoples defending their rights, labelling them criminals and terrorists who are anti-development (see A/HRC/39/17/Add.3, paras. 54 and 58).

 

55. Added to this situation is the escalating number of criminal charges — reportedly in the hundreds — being filed in Guatemala against indigenous leaders and community members. The active participation of private entities in pressing charges implies that prosecutors and judges are colluding with companies and landowners in some of these cases. While in Guatemala, the Special Rapporteur visited several indigenous leaders in prison in retaliation for their land rights advocacy and attempts to litigate against large-scale projects on their territories. Arrest warrants have been issued for vague charges and in some instances on the basis of uncorroborated witness testimonies. The repeated suspension of hearings and the long periods of pretrial detention violate fair trial guarantees (ibid., paras. 52−58).  

 

56. In Kenya, the mandate of the Special Rapporteur has long-standing concerns over the situation of several indigenous peoples, including the Sengwer, the Ogiek and the Maasai, in particular in relation to conservation and climate change projects. In the past two years, there has been an escalation of violence in the Embobut forest where the Kenya Forest Service has repeatedly evicted and burnt Sengwer homes and arrested community members.[13] These acts have taken place despite the fact that the Sengwer are in litigation challenging the evictions and a court injunction has been issued to prevent the evictions in the interim. Several Sengwer have been shot by the Kenya Forest Service, including a Sengwer herder who was killed in January 2018. The European Commission has funded a climate change project in the area, with the Kenya Forest Services among the recipients of funding. The Special Rapporteur issued a public call for the project to ensure respect for human rights and, within days, the European Commission decided to suspend the project pending an assessment of its human rights compliance.[14]

 

57. In the Philippines, indigenous peoples are stigmatized and suspected of being members of the communist New People’s Army and have been subjected to attacks, forced displacements, arbitrary arrests and threats. Militarization has rapidly escalated in recent years and the number of extrajudicial executions has increased dramatically. Indigenous Lumad communities in Mindanao have been particularly targeted.[15]

 

58. In retaliation for having raised concerns over the escalating violence, in February 2018 the Special Rapporteur was herself mentioned, together with 30 other known advocates for indigenous peoples’ rights and some 600 people in total, in a petition submitted by the Department of Justice requesting that a Manila court declare the Communist Party of the Philippines and the New People’s Army terrorist and outlawed organizations. The petition claims that the named individuals are known officers and members of the organizations. The Special Rapporteur vigorously rejects these accusations as baseless and irresponsible. The stigmatization and defamation of human rights defenders jeopardize their security. The Special Rapporteur wishes to express her appreciation for the expressions of support and solidarity that she has received[16] and urges the international community to continue to monitor the situation and the safety of human rights defenders in the Philippines.

 

59. In Colombia, most killings of human rights defenders are taking place in rural areas where the Revolutionary Armed Forces of Colombia-People’s Army (FARC-EP) was historically present and indigenous peoples are among the most affected (see A/HRC/37/3/Add.3, paras. 8−11). There is a persistent stigma associating indigenous peoples with guerrillas. Since the signing of the peace agreement between the Government and FARC-EP in 2016, some 50 indigenous leaders have been killed. Furthermore, the continued presence of the National Liberation Army and the increasing threats from and attacks by former paramilitary groups aggravate the situation. The Human Rights Ombudsman continues to raise early warning alerts of attacks and threats against indigenous peoples in various regions and the Constitutional Court has warned that a number of indigenous peoples in the country are at risk of extinction.[17] The Special Rapporteur has sent several communications on the killings of indigenous leaders by armed groups[18] and on arbitrary detentions, prosecutions and the excessive use of force by government forces against indigenous protesters.[19]

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60. Brazil is by far the most dangerous country in the world for indigenous human rights defenders. During the Special Rapporteur’s country visit to Brazil in 2016 (see A/HRC/33/42/Add.1, paras. 18 and 31), community members in Mato Grosso do Sul showed her bullet wounds on their bodies and took her to places where family members had been killed. They also recounted incidents of arbitrary arrests, torture and criminalization of their leaders. Both government and civil society organizations working with indigenous peoples provided her with disturbing accounts of a regular pattern of threats and intimidation by State and private actors.[20] Impunity is pervasive in relation to attacks, killings and intimidation of indigenous peoples and frequently arise in contexts where indigenous peoples attempt to assert their rights over their lands and go hand in hand with the criminalization of indigenous leaders.

61. During her visit to Honduras in 2015 (A/HRC/33/42/Add.2), the Special Rapporteur observed that criminalization frequently occurred in the context of peaceful protests against logging, mining or hydroelectric projects. Indigenous leaders have been tried for offences such as appropriation of land and damage to private property, among others. While in Honduras, the Special Rapporteur met with Berta Cáceres, who was subsequently killed because of her opposition to the Agua Zarca dam. Other indigenous Lenca defenders have also been attacked and killed.

62. The Special Rapporteur, together with other special procedure mandate holders, has sent several communications on the situation both to the Government of Honduras and to financial investors supporting the Agua Zarca dam project.[21] Several financial investors, including the Netherlands Development Finance Company-FMO, the Central American Bank for Economic Integration and Finnfund, suspended funding for the project. After a year-long probe, an investigative panel known as the International Advisory Group of Experts (GAIPE) concluded in November 2017 that Honduran State agents and senior executives of the hydroelectric company Desarrollos Energéticos Sociedad Anónima had colluded in the planning, execution and cover-up of the assassination of Berta Cáceres.[22]

63. Concerning India, allegations have been received about the failure to ensure free, prior and informed consent in the states of Jharkhand, Madhya Pradesh, Chhattisgarh and Telangana in the context of logging, mining and conservation projects affecting Adivasi lands and resources. In August 2017, 10 persons, among them 7 women, were arrested when they conducted a peaceful demonstration against the eviction of 40,000 families, among them Adivasi communities, as a result of the megaproject for the construction of the Sardar Sarovar dam in the Narmada river valley.[23] Concerns have been raised by the mandate in north-east India about Adivasis who have been attacked, stigmatized for alleged association with Maoist Naxalites and prosecuted under security legislation, including in the states of Chhattisgarh and Telangana.[24]

64. The Special Rapporteur visited Mexico in 2017 and observed that threats, harassment and criminalization of members of indigenous communities during consultation processes tended to undermine the “free” character of those consultations. For example, members of the Yaqui tribe have suffered various attacks, threats and criminalization for opposing the construction of an aqueduct and a gas pipeline, and for demanding consultations and that their free, prior and informed consent be sought for projects built in their territories. The indigenous leader Mario Luna was detained in 2014 on criminal charges of illegal deprivation of liberty and theft for leading community protests. Since his release he has continued to be threatened and attacked, despite calls from the National Commission for Human Rights of Mexico to ensure his protection and the requesting of precautionary measures in favour of the Yaqui community by the Inter-American Commission on Human Rights.[25] She also observed the serious situation of attacks and violence against indigenous communities in the Guerrero Mountains, the Sierra Tarahumara (Chihuahua) and Chiapas.  

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65. In Ecuador, concerns have been raised over several situations, including attacks against and criminalization of Sápara leaders including Gloria Ushigua on charges of terrorist acts, sabotage and obstruction for opposing petroleum exploitation on indigenous territories.[26]

66. In Thailand, indigenous livelihoods such as rotational farming and beekeeping have been banned and indigenous peoples have been evicted from lands declared “protected areas” despite evidence of the contributions of indigenous peoples’ traditional livelihood practices to biodiversity conservation and climate change mitigation and adaptation (A/71/229, A/HRC/6/15/Add.3 and A/HRC/24/41/Add.3).

67. On 3 May 2017, the Supreme Court of Peru acquitted the Quechua defender Máxima Acuña de Chaupe, who had been charged with illegally occupying land. Due to her opposition to the Yanacocha mining company, she has been the victim of several attacks, intimidation, attempted evictions and judicial harassment. On appeal, she was acquitted of all charges and her land rights were recognized. The Special Rapporteur on the rights of indigenous peoples, together with other special procedure mandate holders, has sent several communications relating to Ms. Acuña de Chaupe’s case[27] and has also expressed concern over the conviction of the Aymara leader Walter Aduriri, who was sentenced to seven years in prison in July 2017 on charges of causing disturbances in the context of protests against mining concessions in the Puno region of Peru.[28]

68. In Ethiopia, indigenous Anuak land rights defenders have been prosecuted under antiterrorist legislation and subjected to prison sentences, torture and solitary confinement.[29]

69. In 2012, authorities in the Russian Federation introduced a so called “foreign agent law”. According to the law, non-governmental organizations must declare themselves “foreign agents” if they exercise political activities and receive funds from abroad. The Russian Association of Indigenous Peoples of the North is the main indigenous umbrella organization. In 2012, the Ministry of Justice suspended its operations for three months on the grounds that the organization’s rules were not in compliance with the new legislation. In 2014, two indigenous defenders were prevented from travelling from the Russian Federation to New York to take part in the World Conference on Indigenous Peoples and attempts were made to prevent two others from travelling.[30]

70. In 2016, thousands of protestors, including Native Americans, protested against construction of the Dakota Access Pipeline at the border of North and South Dakota, close to the Standing Rock Sioux Reservation in the United States of America. While Sioux leaders advocated for protests to remain peaceful, State law enforcement officials, private security companies and the North Dakota National Guard employed a militarized response to protests. More than 400 people were allegedly arrested, about 90 per cent of them from the Standing Rock Sioux tribe, including Chairman Dave Archambault II. Civil society organizations reported the use of excessive violence and humiliation during the arrests (see A/HRC/36/46/Add.1, paras. 63−74).[31]

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