Amici Curiae
Teodoro Cabrera Garcia and
Rodolfo Montiel Flores
v.
The State of Mexico
presented by
The Center for Human Rights and Environment (CEDHA)
&
The Center for International Environmental Law (CIEL)
Honorable Inter-American Commission on Human Rights:
Romina Picolotti, in representation of the Center for Human Rights and Environment (CEDHA), address at General Paz 186 – 10A, cp 5000 Córdoba, Argentina and Lewis Gordon, in representation of the Center for International Environmental Law (CIEL), address at 1367 Connecticut Avenue, NW, Suite 300, Washington D.C., 20036; respectfully present the following amicus brief in the case of Teodoro Cabrera Garcia and Rodolfo Montiel Flores v. The State of Mexico.[1]
Table of Contents
Request
to be Considered Amici Curiae 1
Statement of Interest 1
Petitum 2
Summary of the Argument 2
Structure
of Brief 3
Argument 4
India 20
Indonesia 21
Kenya 22
Korea 23
Malaysia 24
Mexico 24
Nigeria 25
Peru 27
Philippines 27
Russia 28
Venezuela 29
IV. The International Framework for the ProtectioN
of Environmental Defenders 30
A. Article 29 of the American Convention Requires the
Commission to Take into Account Contemporary
Development of International Law 30
B.
International Protection of Environmental Defenders
Under
the United Nation's Human Rights System 32
1.
The Declaration on the Right and Responsibility of
Individuals,
Groups, and Organs of Society to Promote
and Protect
Universally Recognized Human rights and
Fundamental Freedoms 32
2. The Special Representative on Human Rights Defenders 34
3.
Expert Assessment for the Need for Protection of
Environmental defenders 34
C. Protection of Environmental Defenders Under the Inter-
American Human Rights System 35
1. OAS General Assembly Resolutions and Country Reports 35
2.
Recognition of a Right to a Healthy Environment in the
Inter-American System 36
D.
The Responsibility of the State of Mexico to Protect
Environmental
Defenders and
to Take Steps to Ensure they Can Carry Out their
Work Freely 37
V. Montiel and Cabrera's Rights
Guaranteed by THE
American Convention on Human Rights Were
Violated 40
A. Violation of the Right to Freedom of Expression under Article
13 of the American Convention 44
B. Violation of the Right to Participate in Government under Article
23 of the
American Convention, and under Article XXIV of the
American Declaration 46
C. Violation of the Right to Freedom of Association under Article 16
of the American Convention,
and under article XXII of the
American Declaration 51
A. Adoption of Measures that Ensure the Infringed Rights 53
1. Duty to Investigate and Sanction those Responsible 53
2.
Duty to Prevent Further Human Rights Violations 54
a. Excessive Value Attached to Extra-Judicial
Confessions 55
b. Erroneous Interpretation of the Principle of
Procedural Immediacy 56
c.
Excessive Jurisdiction Conferred upon the
Military Justice System 57
B. Remedying the Consequences Produced by Infractions 58
C. Establishment of Compensation to be Paid to the Injured
Party for the Damages Caused 59
Consistent with the custom of the Inter-American Commission on Human Rights of accepting amicus briefs, CEDHA and CIEL request that the Commission admit this Amici Curiae in support of the human rights of Rodolfo Montiel and Teodoro Cabrera.
The Center for Human Rights and the Environment (CEDHA), located in Córdoba, Argentina, is a public interest organization dedicated to the defense and promotion of the environment and human rights, serving as a bridge between these two areas of international law. CEDHA has a novel approach to promoting international environmental and human rights legislation, combining the efforts of two increasingly interdependent areas of law. CEDHA works with civil society, governments, and academic institutions to raise awareness, increase capacity, and provide resources to address the linkages between environment and human rights, at the national, regional, and international level.
The Center for International Environmental Law (CIEL), located in Washington, D.C. and Geneva, Switzerland, is a public interest environmental law organization founded in 1989 to focus the energy and experience of the public interest environmental law movement on reforming international environmental law and institutions, and on forging stronger and more meaningful connections between the top-down diplomatic approach of international law and the bottom-up participatory approach that has been the hallmark of the public interest environmental law movement. CIEL is part of a growing network of civil society institutions from various parts of the world that are committed to promoting public interest law and sustainable development.
As non-governmental organizations dedicated to the promotion and protection of human rights and environmentalprotection , CEDHA and CIEL have closely followed the legal proceedings and discussion concerning the violations of the human rights of the internationally recognized environmental s advocates Rodolfo Montiel and Teodoro Cabrera. The particular issue addressed in this brief is the importance of recognizing the critical role played by environmental defenders such as these – especially in the face of a global pattern of abuse of the human rights of such defenders – and the resulting need for this Honorable Commission to both protect them and to require States Parties to respond in a proactive manner to the increasing and disturbing pattern of assault on the rights of environmental defenders.
Petitum
With the anticipation that this contribution might assist the Commission to reach a just decision for the parties involved in this case, CEDHA and CIEL respectfully request that the Honorable Commission:
1) admit The Center for Human Rights and the Environment (CEDHA) and the Center for International Environmental Law (CIEL), as Amici Curiae for this case;
2) attach this Amicus to the case file; and,
3) adopt the views set forth in this brief.
For years, the Organization of American States (OAS) and this Honorable Inter-American Commission on Human Rights (IACHR) have expressly and repeatedly recognized the important role played by human rights defenders in civil society. In recent years, both organizations have expressed growing concern over the increasing level of danger to which these individuals are regularly exposed.
At the same time, the international community has recognized the importance of the protection of the environment on the enjoyment of human rights under the Inter-American Human Rights system, and in national and international law.[2] Environmental abuses and their consequent human rights violations are increasingly coming to world (and Commission) attention, most often in the context of disputes involving indigenous peoples and lands.
As a result, there has similarly emerged a subset of human rights defenders entitled to and in need of protection: namely, “environmental defenders”, those who defend the Planet Earth and advocate for the human rights of the victims of environmental degradation. Rodolfo Montiel and Teodro Cabrera are leading examples of this subset. As will be demonstrated in this brief (infra at part III), there is a pervasive global pattern of these environmental defenders being subjected to abuses of their own human rights as a penalty for their advocacy.
When environmental defenders advocate on behalf of powerless and disenfranchised people against an environmentally destructive project, all to often the defenders will have their own human rights violated. This pattern is a widespread as the one brought to the Commission's attention by the undersigned amici in the recent Awas Tingni[3] and Lhaka Honhat[4] cases: the violations of the human rights of indigenous people involved in conflicts over large-scale development projects that threaten their lands.
There is a troubling additional dimension to the violation of the human rights of the individual environmental defender. Not only are his or her rights to express opinions, associate with like-minded individuals, seek judicial redress, and participate in government decision-making violated, but the rights of those they represent are violated as well. This Commission has spoken in the past of the "chilling effect" on society at large of violations of the human rights of journalists and human rights defenders. When leaders such as Montiel and Cabrera have their individual rights violated, the intent and effect of these violations is to violate collective rights by silencing and intimidating others as well. This makes the individual human rights violations all the more egregious, and all the more deserving of a strong response from the Commission.
Structure OF BRIEF
Part I of this brief details the entirely lawful human rights activities of Rodolfo Montiel and Teodoro Cabrera, who advocated for a healthy environment for themselves and their fellow campesinos (peasant farmers) in their home state of Guerrero, Mexico.
These lawful activities were met by the repressive actions of the government of Mexico and its agents described in Part II of this brief. These actions violated Montiel and Cabrera’s exercise of their fundamental rights of freedom of expression, assembly, association, petition, and participation in government. All of these rights are protected by the American Convention on Human Rights and by other international agreements to which Mexico is a party.
Part III catalogs in detail the similar plight of other environmental advocates around the world. In this way, the violations of the human rights of Montiel and Cabrera by the state of Mexico can be seen as part of a pervasive, global pattern, which is particularly acute in the Americas. It is a pattern in which those who speak as leaders of the disenfranchised and powerless segments of society in defense of their right to a healthy environment are systematically singled out for persecution as part of an effort to silence and intimidate them along with those they represent.
Part IV describes the international legal framework that has recognized the urgent need for protection of human rights defenders. Under this framework, those who advocate for the right to a healthy environment are certainly to be considered human rights defenders.
Part V examines the state of Mexico’s specific violations of Montiel and Cabrera’s rights under several different articles of the American Convention on Human rights, and under international human rights treaties and related documents as well.
In Part VI, we suggest an appropriate remedy for these violations.
The forest resources of the state of Guerrero are among the most important natural resources in Mexico. Several years ago, campesinos from the mountainous Costa Grande region of Guerrero state began to notice that their local rivers had become mere threads of water, and that the rivers’ fish and crayfish were dying. The farmers’ fields no longer yielded adequate harvests.
The farmers believed that these problems were due to massive logging operations that had started in 1995, when then-Guerrero Governor Figueroa had given Boise Cascade, U.S.-based transnational lumber company, exclusive rights to the region’s rich forest resources. For decades, Guerrero’s peasants had lived on ejidos (communal farms), and Article 27 of the Mexican Constitution guaranteed their collective rights to these inalienable lands. To facilitate the North American Free Trade Agreement (NAFTA), Article 27 was amended to allow ejidos to be privatized, while NAFTA itself allowed timber companies to buy from local forestry ejidos.
Many believed that Governor Figueroa’s contract with Boise Cascade was
set up to benefit the Ruben Figueroa Ejido Union ("the Union"), a
group of twenty-four ejidos led by
Bernardo Bautista, a powerful local land-owner. In response to this,
Mexican-owned mills pushed up production in order to compete. These mills would
often run two lumber shipments – though they only paid for one – by illegally
transporting lumber at night. Neither Mexican nor foreign companies reforested
the land as required by law.
In 1997 and 1998, farmers decided to
form the Organization of Peasant Environmentalists from the Mountains of
Petatlán and Coyuca de Catalán (OCESP) to protect the Costa Grande’s natural
resources. Among the most
active members and organizers of the organisation were two local campesinos,
Rodolfo Montiel Flores and Teodoro Cabrera Garcia.
With the tradition of repression and impunity in the state of Guerrero, it was not surprising that powerful caciques from the Ruben Figueroa Ejido Union, who were frequently seen in the company of soldiers, began to lash out against the peasant farmers, even before they were formally organized into the OCESP. August 1997, marked the first of many times soldiers came to Rodolfo Montiel’s home, threatening him and his family.
Through peaceful protests and legal channels, Montiel and Cabrera and their fellow OCESP members promoted environmental awareness and the reforesting of exploited lands, and challenged excessive logging. They filed complaints before various local, state, and federal governmental officials, denouncing environmental destruction and illegal logging practices. They repeatedly requested financial and material assistance in reforestation and sustainable development efforts from the state congress, the Secretary of the Environment (SEMARNAT), and even the army stationed in Petatlán. Their complaints and appeals were met with absolute silence.
In February 1998, the farmers organized their first action.
More than one hundred farmers gathered to block the roads to prevent the
transport of lumber. Several such actions were staged in following months. OCESP also filed complaints opposing
the damage caused to their land by the logging companies with the acquiescence
of state authorities and in violation of norms established under Mexican
forestry laws.
The
actions and other mobilizations carried out by OCESP had mixed results. In the
first half of 1998, logging of the forests in the area was briefly suspended,
and Boise Cascade withdrew, citing “difficult business conditions,” owed
in part to OCESP’s anti-logging campaign. Boise Cascade’s withdrawal did not
halt logging, however. Other Mexican and transnational companies continued to
exploit the forests at a rapid rate without any attempt to reforest the land.
Moreover, after the OCESP’s formal organization and several successful actions challenging the destructive exploitation of the region’s forests, repression of its members intensified. The Banco Nuevo ejido, near Montiel’s home in Mameyal ejido, was successful in driving the Union away from its forest. The Union struck back by sending thugs to burn Banco Nuevo’s forests. In fact, caciques often order forests to be burned, whether to drive inhabitants off the lands and therefore use them for other purposes, take revenge on anti-logging activities, or incriminate peasant organizations. Like Banco Nuevo, Mameyal was also burned in revenge for the actions OCESP was carrying out.
Even more significant was the increasing presence of the Mexican Army in the region. According to
witnesses, a strong wave of repression ensued for members of the OCESP, through
arbitrary detention, torture, murders, and forced disappearance:
- on May 31, 1998, gunmen were sent to Mameyal ejido to kill Celso Figueroa, one of the OCESP’s founders. Instead, they mistakenly killed Aniceto Martínez, who was also an OCESP member.
- on July 2, 1998, in Jilguero ejido, Elena
Barajas was killed by a soldier.
- on July 10, 1998, Romualdo Gómez
García, a young OCESP member, was killed by gunmen.
- on July 11, 1998, soldiers tortured Jesús Cervantes Luviano of Banco Nuevo ejido, accusing him of being a guerrilla.
II.
THE RESULTING VIOLATIONS BY THE STATE OF MEXICO OF MONTIEL AND CABRERA’S
HUMAN RIGHTS
The attempts to suppress OCESP’s efforts to
halt the damaging consequences of logging culminated in the events of May 2,
1999.[5] On that day, approximately forty military officers from the 40th
Infantry Battalion of the Mexican Army entered the community of Pizotla, in the
municipality of Ajuchitlán del Progreso, Guerrero. As the soldiers arrived,
they fired against a group of people who were gathered near the outside of
Teodoro Cabrera's house. Among the people present were Rodolfo Montiel, Teodoro
Cabrera and Salomé Sánchez Ortiz. Prior to the attack and the gunshots, the
military officers had addressed the three, and Salomé Sánchez, Teodoro Cabrera
and Rodolfo Montiel, ran away. One of the shots hit Salomé Sánchez, killing
him.
Rodolfo Montiel and Teodoro Cabrera managed to hide in a ditch, among
shrubs and stones, and the military officers were unable to find them. The
officers did not manage to find them until later the same day, after firing at
the mountainside. They detained them
without an arrest warrant. From the moment in which they were detained, Montiel
and Cabrera were beaten by the military officers, who threw them to the ground
and threatened to execute them on the spot. Afterwards, they were both dragged
by the hair for five meters, to a place where they were detained at an
improvised checkpoint that the army had put up by the banks of the Pizotla
River. They were both tied by their hands and feet and made to lie face down by
the riverbank.
That night, Rodolfo Montiel and Teodoro Cabrera were transferred to the
mountains, where they were interrogated and subjected to further violence. Rodolfo Montiel was interrogated while being
subjected to the following acts of torture and cruel treatment: one officer
pulled him by the jaw, holding his head back, while the other lay across his
shoulders; soldiers beat him in the stomach using their knees and kicks;
soldiers pulled him by the testicles repeatedly, causing him intense pain to
the point where he lost consciousness; soldiers administered electric shocks to
his right thigh after wetting him; and soldiers threatened him with death and
told him that they knew how to reach his family members. During the torture, he
was questioned about his activities with the Organización de Campesinos
Ecologistas de la Sierra de Petatlán (OCESP) and was pressured to confess that
he was part of an armed group, which he consistently denied, as he is not.
Similarly, Teodoro Cabrera was taken to the mountainside, where he was
interrogated and subjected to different forms of torture: he was beaten with
fists to his stomach; the military officers simulated his execution, putting a
firearm in his mouth and telling him that he was going to die as they pushed it
further in; his shoulders were pushed to the floor by someone standing on them;
and he was kicked in the stomach. When it looked as if the soldiers were going
to leave him alone and he was writhing in pain, the soldiers began to hit him
in the left lumbar region with what he thinks was the butt of a rifle; kicked
him in his left buttocks; applied electric shocks; threatened both his and his
family members' lives; and pulled his testicles repeatedly, causing him to lose
consciousness.
The soldiers returned both men to the riverbank, where they remained
until May 4, when they were transferred by helicopter to the facilities of the
40th Battalion, located in Ciudad Altamirano, Guerrero. Once there, they were moved
onto a vehicle, and forced to lie face down with someone's foot on them, so as
to prevent them from moving. In the buildings of the 40th Battalion, one of the
military officers continued to beat them on several parts of their body in
front of a number of soldiers. When Rodolfo Montiel saw that Teodoro Cabrera
was being severely beaten, he tried to intervene, but this led to him also
being beaten in the back with a stick. Afterwards, both men were taken to a
room where they were blindfolded and constantly threatened. They were told that
they would be thrown into a mass grave.
As a result of the pain and threats that they had been subjected to,
Montiel and Cabrera were forced to sign false confessions that had been
prepared by the military officers, in which both accepted that they had
committed the crimes of "sowing marijuana" and "carrying
firearms," each one incriminating the other. They remained incommunicado
and at the disposal of the 40th Battalion of the Mexican Army for a period of
five days, during which time the torture, interrogation and threats did not
stop for a moment. It was not until the night of May 6 that they were presented
before an agent with the Federal Public Ministry of Coyuca de Catalán (Federal
Public Prosecutions Office, Ministerio Público Federal), and subsequently
transferred to the prison of Coyuca de Catalán. They were finally transferred
to the prison of Iguala in June.
The victims were not given any opportunity to exercise their right to
adequate defense counsel, either when the Army held them in incommunicado
detention, or when they were at the Public Ministry. Based on the
self-incriminating statements they signed under torture, Rodolfo Montiel was
presented as a probable suspect in the crimes of sowing marijuana and carrying
firearms, and Teodoro Cabrera was accused of carrying firearms. They were
formally detained and processed, first by the First Instance Criminal Court of
Mina under criminal case 13/99 (even though the body is not competent to take
on the case, as it deals with alleged federal crimes), and subsequently by the
Fifth District Court of the 21st Circuit under case file 61/99.
On August 26, 1999, following the questioning of the military personnel
who had participated in the illegal and incommunicado detention, torture, and
extraction of self-incriminatory statements under coercion, the victims'
defense team asked the presiding judge to denounce the events before the Public
Ministry so that investigations could be initiated. In response, the Fifth District
Judge ordered the Federal Public Prosecutions Office to open the initial
investigation (Averiguación Previa) into the alleged participation of military
officers Artemio Nazario Carballo, Calixto Rodríguez Salmerón, José C. Calderón
Flabiano and others in the crime of torture. On September 30, 1999, the Federal
Public Ministry of Coyuca de Catalán, Guerrero state, began the initial
investigation as ordered.
In November, 1999, the Federal Attorney-General's Office (Producraduría
General de la República, PGR) declared itself incompetent to continue
investigating the torture and abdicated responsibility to the Military Attorney
General of Justice (Producraduría
General de Justicia Militar, PGJM), on the basis that the officers allegedly
responsible for the crime were military officers in active service.
The initial investigation was transferred to the Military Public
Ministry of the 35th Military Zone in Chilpancingo, Guerrero towards the end of
November 1999. The military investigator resolved and shelved the investigation
on June 13, 2000, concluding that there was no evidence to support the torture
charge. It is important to note that up until this time, the case file
consisted of the three statements of officers Artemio Nazario Carballo, Calixto
Rodríguez Salmerón, and José C. Calderón Flabiano, who ratified the information
previously given and denied that they had practiced torture. The investigator
failed to carry out basic tasks, such as taking statements from the victims and
from witnesses who saw the military operatives, and undertaking medical
examinations of the victims.
The victims' defense team filed a complaint with the National Human
Rights Commission (CNDH). On July 14,
2000, the CNDH issued recommendation 8/2000, addressed to the national defense
ministry, but omitted to state its position over the unconstitutionality of the
competence of the Military Attorney-General for the torture investigation.
As a consequence of the recommendation issued by the CNDH, the PGJM
re-opened the initial investigation on September 29, 2000. Yet it was not until
February 10, 2001, seventeen months after the investigation was initiated, that
the military public ministry went for the first time to the Iguala de la
Independencia prison, in Guerrero, for the victims to ratify their complaint
against torture. This explains why, to date, the investigation has not been
completed, and why the crimes against the personal integrity of the victims
have yet to be clarified and those responsible identified and punished. The
public ministry has not even carried out the corresponding criminal actions,
nor has it handed back authority to the PGR to duly investigate the events.
Since the ratification procedure of February 10, 2001, the victims’
defense counsel has presented the Public Ministry with a communiqué containing
evidence, and has requested that the Ministry abdicate responsibly for the case
to the PGR on the basis of article 13 of the Mexican Political Constitution,
because the victims of the crime are civilians, and because torture does not
constitute a crime against military discipline. The request has yet to meet
with any response from the Eighth Official of the Military Public Ministry of
the Central Sector of the military Attorney General's Office.
On August 28, 2000, the Fifth District Judge of the 21st Circuit Court,
based in Iguala, Guerrero, sentenced Rodolfo Montiel to six years and eight
months of imprisonment, and Teodoro Cabrera to ten years of imprisonment. The
sentence was based on the confession extracted from the victims under torture,
incommunicado detention, and without access to a lawyer.
Both the appeal against the sentence that was presented before the First
Unitary Tribunal of the 21st Circuit, which gave rise to criminal case TOCA No
406/2000, and the Amparo No. 117/2001 processed before the Second Collegiate
Tribunal of the 21st Circuit Court, complain that the confession used by the
judge to condemn the victims was extracted under torture. On May 9, 2001, the
Amparo Appeals Court ordered that the medical examination relating to the
torture suffered by the victims be admitted as evidence. The defense offered as proof before the First
Unitary Circuit Court, in the “re-run” of the hearing, a medical report issued
by forensic experts Morris Tidball and Christian Thramsen. However, on July 16, 2001, the Unitary Court
once again confirmed the guilty sentence against the victims.
On October 19, 2001, Digna Ochoa, formerly a member of Montiel and
Cabrera’s defense team, was assassinated. Five days later, on October 24, 2001,
the victims' defense counsel presented the amparo, challenging the sentence
issued by the Unitary Circuit Court on July 16, 2001. On November 8, 2001,
Mexican President Vicente Fox freed Rodolfo Montiel and Teodoro Cabrera.
The State of
Mexico, through members of the Army and other agents, effected a horrible
reprisal on the two campesino ecologists for the "crime" that they
had committed: of having an environmental conscience, participating in and
steering an independent organization of campesinos from the region, and
defending the forests and those who depended on it against ignorance, abuse,
and the appropriation of its natural resources. The harm to the environment and the livelihoods of the
campesinos of Guerrero that Montiel and Cabrera fought to expose was finally
recognized by the Mexican government nineteen months after the detention and
torture of the two leaders: on
December 6, 2000, the federal Attorney General for the Protection of the
Environment (PROFEPA) acknowledged the grave damage caused to the ecosystem of
the Sierra de Petatlán and cancelled seven of the main logging permits that had
earlier been granted, among them El Mameyal, Montiel’s native community
and the origin of his environmental struggle. [6]
Fortunately, the crucial work performed by Rodolfo Montiel and Teodoro Cabrera has been widely recognised by important organizations that work in defense of the environment and human rights, including Amnesty International and the Sierra Club. This recognition culminated in Mr. Montiel’s receiving (while incarcerated) the prestigious Goldman Environmental Prize[7], the Sierra Club’s “Chico Mendes prize”[8], the “Don Sergio Méndez Arceo” human rights prize[9] and the “Roque Dalton prize.”[10]