REPRESSION OF PROTESTS AGAINST THE RIO BLANCO MINE

Rio Blanco Mine Lawsuit: Judgments Based on “Public Policy” and an Asset Freezing Injunction

A history of local opposition to the Rio Blanco Mine project in Northern Peru culminated in a protest allegedly met by various uses of force by local police and security personnel employed by the mine, including beatings, whippings, and a fatal shooting. Claimants in the resulting negligence lawsuit filed in England also alleged that certain protestors were held captive, tortured, and sexually assaulted. After a High Court justice issued a freezing injunction in the amount of £5.015 million, and shortly before trial was scheduled to take place, the parties agreed to a confidential settlement to end litigation.

Keywords: extractive industry, clash with locals, sexual violence

Background

According to Blanco Copper SA, the Rio Blanco mine project was thought to be one of the largest under-developed copper resources in the world. The Rio Blanco mine is located in a remote area in Northern Peru, in the lower Andes and near El Cajas National Park. The mine is also situated on land belonging to the two peasant communities of Yanta and Segunda y Cajas, both of which hold official land titles.

Rio Blanco is recognised as an Indigenous community by the Federation of Indigenous and Peasant Organisations in the Azuay province (FOA). According to Lauro Sigcha, the chair of FOA, the villagers in the area originally had high hopes for the mine in terms of employment opportunities. When the community saw that those employment opportunities never materialised, the villagers started to protest against the mine. In 2007, a non-binding local referendum was held, which revealed the large extent of local opposition to the project.

Further, the Rio Blanco mine lies close to El Cajas National Park and other important water sources for the area. El Cajas National Park is environmentally vulnerable, as it houses the South American Condor and the Curinquinga, two raptors that are vulnerable to extinction. As a result, the park is recognized as a Ramsar Wetland of International Importance and an Important Bird Area. Finally, the forest ecosystem performs important ecological functions, such as water harvesting and erosion control. This fragile forest is vulnerable to accelerated erosion. Allegedly, environmental groups and locals have “always objected” to the mine’s plans to use up to 1,000 litres of water per hour.

According to Rio Blanco Copper SA, concern over environmental issues and distrust between the local communities and the central government of Peru resulted in an “active and highly politicised anti-mining movement.” The members of the protest movement had the goal of obtaining total suspension of all mining activity in the area.

According to Rio Blanco Copper SA, prior to the incident at issue in the lawsuit, there was an incident in April 2004 in which a protester was fatally wounded. In response to past incidents in 2004 and 2005, the corporation allegedly took various remedial steps, including an increase in social outreach programmes with local communities and liaison with regional and national governments.

The Incident

On August 1, 2005, there was a protest against the proposed development of the Rio Blanco Mine. The demonstration included a march to the mine camp. The plaintiffs of the lawsuit (Claimants) alleged that once they reached the camp, police and private security personnel sprayed noxious substances into their faces, hooded them, beat them with sticks, and whipped them. The Claimants also alleged that they were held captive. Further, two of the female Claimants alleged they were sexually assaulted and threatened with rape. Finally, one of the Claimants alleged that there was a shooting that resulted in the death of one of the demonstrators.

Legal Aspects

Court case: Monterrico Metals lawsuit (re Peru). Filed 1 Jan. 2009.

The Claimants sought damages for physical, psychological, and other consequential damages from Monterrico Metals, and other defendants including Forza (part of Securitas) and Securitas AB Group, under a theory of negligence “and/or conspiracy to injure, assault, batter, falsely imprison the Claimants.” The Claimants contended that the officers of Rio Blanco or of Monterrico should have intervened to prevent the abuse of their human rights, and/or were otherwise responsible for their injuries. According to the Claimants, under English and Peruvian law, the Defendants were liable due to the direct participation of their personnel in the running of the mine, and the specific responsibility for risk management. Further, according to the Claimants, the Defendants had knowledge as to the risk of violence to which environmental protestors could be exposed, and the Defendants had knowledge as to the serious risk of “violence, ill-treatment, and human rights abuses…”

In regards to the alleged breach of duty by the Defendants to the Claimants, the Claimants alleged a lack of risk management procedures, a failure to ensure that suitable and reliable private security companies were contracted, and a failure to take adequate steps to stop the ill-treatment of the Claimants.

In a judgement, the High Court considered a potential time bar to present claims under the Foreign Limitation Period Act. However, Mr. Justice Tugendhat contended that such a time bar would be contrary to public policy, and would cause undue hardship, as the Claimants were vulnerable, poor, and lived in an area so remote that the Claimants had no access to legal advice.

In another judgement, Mrs Justice Gloster set out a conclusion that the Claimants had established a “good arguable case” sufficient to support a world-wide freezing injunction of the Defendant’s assets. Gloster J considered the Claimants’ total claim for general damages, which would be an estimated figure of £1.6 million. Gloster J also considered legal costs and insurance premiums. Based on this figure, Gloster J decided that the amount of the freezing injunction should be £5.015 million.

The International Code of Conduct

The International Code of Conduct requires that Personnel of Member and Affiliate companies take all reasonable steps to avoid the use of force, and if force is used, it should be proportionate to the threat and appropriate to the situation. (Rules for the Use of Force : paragraph 29, Use of Force : paragraph 30-32),

Resources on Use of Force

Additionally, security personnel are only allowed to apprehend persons to defend themselves or others against an imminent threat of violence following an attack or crime against Company Personnel, clients, or property under their protection. Apprehension and detention must be consistent with international and national law, and all apprehended and detained persons must be treated humanely and consistent with their status and protections under applicable human rights law and international humanitarian law. (Detention: paragraph 33)

Resources on Apprehending Persons

Resources on Detention

Further, the International Code of Conduct requires stringent selection and vetting of personnel, assessment of performance and duties (paragraphs 45 to 49), and training of personnel of the Code and relevant international law, including human rights and international criminal law (paragraph 55). Meeting the requirements of the Code of Conduct, can help private security companies and their clients ensure that private security personnel are qualified, trained, supported, informed, and responsible.

Meeting the requirements of the Code of Conduct can help private security companies and their clients ensure that private security personnel are qualified, trained, supported, informed, and responsible.

Under the International Code of Conduct companies cannot allow their personnel to engage in or benefit from sexual exploitation, abuse, or gender-based violence or crimes. Security companies must require their personnel to remain vigilant for all instances of sexual or gender-based violence, and report these instances to competent authorities. (Sexual Exploitation and Abuse (SEA) or Gender-Based Violence (GBV): paragraph 38)

Guidelines on Preventing and Addressing Sexual Exploitation and Abuse

Resources on Preventing Sexual Exploitation and Abuse

Impact

Public Relations

In September 2006, Rio Blanco issued a document stating that the company was undergoing a “sincere period of change and substantial improvement in its attitude towards engagement and dialogue with all those who are located in the area of influence of the Rio Blanco Project.” Rio Blanco wished “to express its public censure and its most deeply felt apologies for attitudes and conflicts that in the past have occurred between certain of its staff and workers…” Rio Blanco denied that this document was an admission of liability in respect to the incident at issue.

The Claimants contend that there were allegedly damning photographs taken of the protest and torture victims at the time of torture published in January 2009. A week after the photographs were published, Rio Blanco stated “regrettably, our managers and employees were not innocent in this violent aggression.”

Settlements

In July 2011, three months before trial was scheduled to take place, Monterrico agreed to a confidential settlement with the Claimants.

Discussion

Whether or not the private security company or their client were aware of the specific risk of violence between private security personnel and civilians affected the liability of the company. What are some indications that there is a potential risk of violence?

What steps can private security personnel do to prevent unnecessary use of force, even with a risk of violence or conflict?

How can private security companies and their personnel prevent gender and sexual violence or exploitation when their personnel are responsible for detaining individuals?

Related incidents

Sources

Case prepared by Madison Zeeman

Clause de non-responsabilité

Conformément à l’avis de non-responsabilité figurant sur la page d’accueil, ni l’Association Internationale du Code de Conduite ni les auteurs ne peuvent être identifiés avec les opinions exprimées dans le texte ou les sources incluses dans « Plaider en Faveur d’une Sécurité Responsable : Carte de Cas du Code de Conduite International ».